In a published opinion in United States v. Johnston, 75 M.J. 563, No. 201400338 (N-M. Ct. Crim. App. Jan. 21, 2016) (link to slip op.), a three-judge panel of the NMCCA reverses the appellant’s conviction of indecent exposure in violation of Article 120c(c), for sending text-message pictures of his erect penis to a 14 year-old girl, because the evidence leaves the CCA unconvinced that the appellant exposed himself in an indecent manner.

Judge Marks, writing for the panel, explains that Article 120c(c), which took effect on June 28, 2012, lacks the element of public exposure that was present in the prior (2006) version of Article 120 and in the enumerated Article 134 offense that was in effected before that:

Unlike prior versions, this statute requires neither a public setting nor a public view.2 By removing such an element, Congress sought to criminalize “situations in which the exposure is indecent – even if committed in a place where it would not be reasonably be [sic] expected to be viewed by people other than the members of the actor’s family or household.” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), App. 23, at ¶ 45c.a. This amendment reflected the Court of Appeals for the Armed Forces’ (CAAF) more expansive interpretation of indecent exposure in United States v. Graham, 56 M.J. 266 (C.A.A.F. 2002), discussed infra. It also left “an indecent manner” as the only element making intentional exposure criminal.

Johnston, slip op. at 3-4. Considering the President has (still) not promulgated guidance for this statute, the CCA “turn[s] to case law for objective factors to help define the parameters of an indecent manner. Three factors emerge as hallmarks of indecent conduct: (1) lack of consent; (2) involvement of a child; and/or (3) public visibility.” Slip op. at 4.

Considering these factors, Judge Marks concludes that the evidence depicts the child “as a willing and active participant in graphic sexual fantasies shared via text, or ‘sexting,'” slip op. at 7, that “the sustained volleys of sexually explicit messages and A.C.’s repeated requests for details of imagined sexual encounters with the appellant are inconsistent with claims that photos of the appellant’s penis came without her invitation or consent,” slip op. at 8, that there is “unrefuted evidence supporting the appellant’s reasonable mistake of fact as to A.C.’s age during the period charged in the specification,” slip op. at 9, and finally that there was no evidence of public visibility, slip op. at 9.


Returning to the elements, the Government proved through the photographs themselves that the appellant intentionally exposed his penis. The evidence, however, leaves us unconvinced that he exposed himself in an indecent manner. The photograph’s “tend[ency] to excite sexual desire” is apparent from the relationship and pattern of sexting surrounding it. But the evidence points to private conduct toward someone he reasonably perceived to be a consenting adult. This case has none of the three hallmarks of indecency but all three of the factors comprising the liberty interest identified in Lawrence. Consent, age (or a reasonable mistake of fact as to age), and privacy leave us with a reasonable doubt that the appellant’s conduct was indecent. Therefore, we set aside the finding of guilty to the Second Additional Charge II and its sole specification, violation of Article 120c(c) from 1-31 December 2012, for factual insufficiency.

Slip op. at 9.

9 Responses to “The NMCCA reverses an indecent exposure for factual insufficiency (in a published opinion)”

  1. RY says:

    I’ve never liked the “indecent” category of offenses. It’s so subjective that the offense rises and falls on the particularized whims of whoever the fact-finder happens to be.  It’s a scary legal standard.

  2. k fischer says:

    Nothing like a text conversation about the DMV to get a man’s heart racing.  I haven’t hung out with a 15 year old girl since I was a senior in high school.  But, looking back on those days, I can only imagine that I was a pimple-faced freaktarded idiot.
    If that were my daughter, then she would have a really nice flip-phone with no texting capabilities, she would be grounded for a month, and I would have a very stern conversation with the accused letting him know that he just dodged a bullet and that he should probably read Proverbs 5, take Solomon’s advice, and not engage in conversations with females who are immoral, particularly if they are under 16. 
    Oh, and I forgot one thing: I’d give him my card and let him know my general retainer amount, in the event that he failed to heed my advice.

  3. Peanut Gallery says:

    I’m confused.  A minor cannot consent to sexual conduct, but can consent to P-pics? 

  4. k fischer says:

    Peanut Galliery,
    Now, I’m confused. Are you saying that an accused can expose his penis and stick it into a 14 year old girl’s vagina who lies and says she is 17 where she looks 17, and the act is factually consensual, so he has a reasonable mistake of fact as to her age and is not guilty of the offense of carnal knowledge?  Yet, if pulls out his penis and sends her a picture of it when he reasonably believes her to be 17 and requesting said picture, then he should be prosecuted?
    If that were the case, then there would be no mistake of fact defense, as in Florida and Georgia.  By the way, be quiet Peanut Gallery!  Otherwise, these idiot kids won’t have mistake of fact defense to help them out when 14 year old girls lie they meet online lie to them if Gillibrand and McCaskill catch wind of this defense.

  5. Tami a/k/a Princess Leia says:

    A child (not minor) who successfully lies about her age can consent to sexual conduct, in addition to consent to receiving p-pics.  That’s how I see it.

  6. K fischer says:

    No, no, no, your Highness.  A child can never legally consent.  Factually, she might consent and even take steps to seduce a man, but the law recognizes that she is like a retarded person who is incompetent and incapable of consenting.  It is only when she lies and her lies are both objectively and subjectively believable that the accused has the affirmative defense of mistake of fact regarding her age.  In Georgia and Florida, this defense is not available.  So, if a man meets a 14 year old girl at a bar and she is drinking dark and stormies that she was able to order with her fake ID and they go back to her parents place where they begin intercourse, until the girl’s parents walk in, then he is going to be a sex offender if a prosecutor indicts him.
    But, in all fairness, your version operates the same way except it would encourage a bunch of children who think they are women to get dolled up, lie about their age, and go after older guys because 15 year old girls just wanna have fun.  That’s all they really want.  It’s not fair.

  7. Tami a/k/a Princess Leia says:

    k fischer, I know.  Pretty frustrating to see something like this though.  Personally I think the age of consent should be lowered to 14 or 15.  They’re able to appreciate the nature of the activity and consequences by that age.

  8. k fischer says:

    But, it is so much easier to parent when you can blame a 19 year old boy for being a molester, instead of dealing you with your 14 year old daughter who is a lying skeezer.  In this case, homeslice should have said, “Game off” when he found out she was really 14.

  9. Peanut Gallery says:

    I consent to this thread continuing.