CAAF will hear oral argument in the Army case of United States v. Nicola, No. 18-0247/AR (CAAFlog case page), on Wednesday, November 7, 2018, after the argument in Bodoh. The court will determine:

Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

The offense of indecent viewing occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a). The statute also defines private area as the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. A conviction is legally sufficient if, considering all of the evidence in the light most favorable to the prosecution, a rational fact-finder could have found all essential elements of the offense beyond a reasonable doubt.

Staff Sergeant (E-6) Nicola was convicted of violating a general regulation, abusive sexual contact, and indecent viewing, by a general court-martial composed of officer members, and he was sentenced to reduction to E-1 and a bad-conduct discharge. Nicola’s convictions relate to his conduct with a junior female soldier – identified as Corporal (CPL) AA – during a night of drinking with other soldiers both on and off post. CPL AA overconsumed and Nicola took her back to her barracks room, where her next memory was sitting naked on the floor of her shower with the water running. She also accused Nicola of committing a sexual act upon her in the shower, but he was acquitted of that.

Nicola testified in his own defense at trial and said that after he brought CPL AA back to her room, he told her to take a shower to help her sober up. He said that she then spontaneously removed her clothes and he saw her in her bra before he could look away. She then went into the shower where she remained for a long time, and Nicola admitted to checking on her at one point (after she didn’t respond when he shouted to her) during which he saw her naked. The prosecution argued that Nicola committed an indecent viewing when he saw CPL AA in her bra as she disrobed and then again when he saw her naked in the shower.

Nicola’s appeal doesn’t challenge that he viewed CPL AA’s private areas, but rather that her “reasonable expectation of privacy was relinquished by taking her own clothes off in front of another person, or superseded by placing herself in harm’s way when she was unresponsive in the shower.” App. Br. at 7.

Observing that “there is a dearth of law directly on point in regards to what constitutes a reasonable expectation of privacy as it pertains to Article 120c of the UCMJ,” Nicola’s brief suggests that:

the 4th amendment’s jurisprudence on search and seizure can be a guide for what courts have held to be reasonable expectations of privacy. . . . Considering the definitions provided by congress, using search and seizure case law, and common sense, it is clear that CPL AA’s expectation of privacy in the facts of this case were not reasonable and society would have never recognized her expectations as legitimate.

App. Br. at 9. Nicola’s brief also dismisses CPL AA’s intoxication as irrelevant:

The government’s theory at trial, that “she’s so drunk she has no idea what’s going on. No idea who is in her room” (JA 235) and thus had a reasonable expectation of privacy is, as a matter of law, incorrect. If CPL AA was so drunk she could not see the person standing right in front of her, she was no longer a reasonable person.

App. Br. at 10.

The Government Appellate Division’s response rejects Nicola’s claims on the basis that they are drawn from Nicola’s trial testimony:

In framing his argument on appeal, appellant asserts that CPL AA did not have a reasonable expectation of privacy because she voluntarily disrobed in front of appellant, and appellant’s concern for CPL AA’s possible alcohol poisoning superseded her expectation of privacy while she was in the shower. (Appellant’s Br. at 7). In crafting this argument, appellant relies on his own testimony at trial to factually support his argument. (Appellant’s Br. at 10, 11). Appellant’s argument lacks merit because it relies on a narrow interpretation of only some evidence in the record, particularly his own testimony.

Gov’t Div. Br. at 10. Noting that Nicola’s trial testimony “contradicted other evidence admitted at trial,” Gov’t Div. Br. at 11, the Government Division suggests that a reasonable fact-finder would have concluded that Nicola’s testimony was false and then would have drawn adverse inferences from it:

Given these contradictions, a reasonable factfinder could regard appellant’s testimony as false and, as a result, find that CPL AA was too drunk to reach the shower under her own power, let alone disrobe by herself and run to the shower. Instead, a factfinder could infer that appellant disrobed CPL AA and took her to the shower. Appellant viewed CPL AA’s private area when disrobing her and again when CPL AA was naked in the shower sitting back on her heels with her knees splayed when he should not have been in her barracks room in the first place.

Gov’t Div. Br. at 14.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Blog post: Argument preview

One Response to “Argument Preview: Reviewing the legal sufficiency of a conviction of indecent viewing, in United States v. Nicola”

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

    Sounds like he had a lawful purpose in checking g on her to ensure she was still doing OK.  Her consent is irrelevant, he had a lawful purpose in viewing her.

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