CAAF grants review to determine the legal sufficiency of a conviction of indecent viewing in violation of Article 120c
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).