CAAFlog » October 2018 Term » United States v. Nicola

CAAF decided the Army case of United States v. Nicola, __ M.J. __, No. 18-0247/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 9, 2019. Emphasizing that an accused who testifies in his own defense may be disbelieved by the trier of fact (members, in this case), and that such disbelief may form the basis for a conviction, CAAF finds a conviction for indecent viewing legally sufficient and affirms the decision of the Army CCA.

Judge Maggs writes for a unanimous court.

CAAF granted review of a single issue:

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 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 high-intoxicated, junior female soldier, identified in CAAF’s opinion as Corporal AA.

Corporal AA testified during Nicola’s trial, and Nicola testified in his own defense. Their stories conflicted. Corporal AA claimed that Nicola sexually assaulted her in the shower in her barracks room (he was acquitted of an offense related to that alleged sexual assault). Nicola claimed that he only briefly saw Corporal AA in her bra as she undressed herself to get into the shower, and then that he later looked at her in the shower only to check on her welfare. Nicola focused on his version of events to claim that his conviction of indecent viewing is legally insufficient, while the Army Government Appellate Division asserted that Corporal AA’s version of events supports Nicola’s indecent viewing conviction (even though Nicola was acquitted of the related sexual assault allegation) and also that the members were free to disbelieve Nicola’s version of events and conclude that – even if he did not do everything Corporal AA claimed he did – he did more than he admitted to doing.

CAAF agrees with the Government Division, with Judge Maggs explaining that the court “find[s] the evidence legally sufficient to support each of the Government’s theories.” Slip op. at 6. The primary reason for that finding is Nicola’s testimony in his own defense.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Bodoh, No. 18-0201/AR (CAAFlog case page): Oral argument audio

United States v. Nicola, No. 18-0247/AR (CAAFlog case page): Oral argument audio

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.

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On Friday CAAF granted review in this Army case:

No. 18-0247/AR. U.S. v. Hector Nicola. CCA 20150781. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE OF INDECENT VIEWING IN VIOLATION OF ARTICLE 120c, UCMJ, WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. It does not address this conviction in depth, but it looks like the appellant was convicted of indecent viewing the private area of the alleged victim by taking a shower with her when she was incapacitated by alcohol. The CCA’s opinion observes:

Appellant’s last assignment of error asserts the evidence is both legally and factually insufficient to support a conviction for wrongfully viewing SPC AA’s private area, as appellant was acquitted of sexual assault. We see nothing inconsistent with the panel acquitting appellant of sexually assaulting SPC AA while at the same time convicting appellant of wrongfully viewing SPC AA based on her testimony of appellant being in the shower with her. See United States v. Rosario, 76 M.J. 114, 117-18 (C.A.A.F. 2017).

Slip op. at 2 n.2.

The offense of indecent viewing in violation of Article 120c(a) 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.” In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014) (discussed here), the Navy-Marine Corps CCA held that a conviction of this offense requires that the accused view the real-life private are of the alleged victim (viewing a recording is not sufficient). CAAF later rejected a certified issue that challenged the authority of a CCA to order a sentence-only rehearing, in United States v. Quick, 74 M.J. 332 (C.A.A.F. Aug. 11, 2015) (CAAFlog case page).