CAAF decided the Army case of United States v. Nicola, 78 M.J. 223, 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.

Judge Maggs’ opinion outlines an accused’s right to testify in his own defense and the associated risk:

In a criminal trial, the accused has a right to testify. See Rock v. Arkansas, 483 U.S. 44, 52 (1987). But one risk of testifying, recognized long ago, is that the trier of fact may disbelieve the accused’s testimony and then use the accused’s statements as substantive evidence of guilt “in connection with all the other circumstances of the case.” Wilson v. United States, 162 U.S. 613, 620−21 (1896). As the Supreme Court has said, “false testimony, knowingly and purposely invoked by [the] defendant, [may] be used against him.” Allen v. United States, 164 U.S. 492, 500 (1896). Under this principle, the court-martial could have believed that Appellant was lying when he testified that Corporal AA disrobed herself, and then used his statements to find that the opposite was true.

Slip op. at 7-8 (modifications in original). In other words, when Nicola testified that Corporal AA undressed herself to get into the shower (and that he only briefly saw her in her underwear) and that he later entered the shower only to check on her welfare, the members were permitted to assess his credibility and determine whether or not he was telling the truth. And, “if [Nicola] was untruthful in saying that Corporal AA disrobed herself, the court-martial rationally could have inferred that [he] disrobed her.” Slip op. at 9. Similarly, “the court-martial could have disbelieved [Nicola] when he testified that his motivation for entering the shower was merely to check on Corporal AA’s condition . . . [and] the panel could have inferred instead that [he] had a wrongful motive.” Slip op. at 12.

Judge Maggs is careful to emphasize that CAAF’s decision presumes that “some additional evidence is required, beyond the members disbelieving the accused.” Slip op. at 9. This presumption is based on the fact that “some courts have recognized a limitation on the principle that the trier of fact may disbelieve the accused’s testimony and use it against the accused,” slip op. at 8 (citing cases), and that “the Supreme Court does not appear to have addressed this specific issue, but it has cited these cases with approval,” slip op. at 8-9. Furthermore, Judge Maggs notes that during oral argument the Government Division “acknowledged that in the absence of any other evidence, the panel’s mere disbelief of Appellant’s testimony would be insufficient to convict him.” Slip op. at 9.

But the requirement for additional evidence “is easily met in this case,” because:

It is undisputed that Corporal AA was clothed when she entered the barracks room with Appellant and Specialist Long, that Appellant and Corporal AA were the only two persons in the room after Specialist Long departed, and that Corporal AA was later found naked in the shower. Testimony further established that Corporal AA was very intoxicated and had difficulty with simple actions such as walking and talking. If Appellant was untruthful in saying that Corporal AA disrobed herself, the court-martial rationally could have inferred that Appellant disrobed her.

Slip op. at 9. Similarly, when Nicola testified that he entered the shower only to check on Corporal AA’s welfare, the members could have concluded that he was lying and “could have inferred instead that [he] had a wrongful motive.” Slip op. at 12.

Judge Maggs’ opinion ends with a rejection of any argument that the acquittal of the sexual assault alleged to have occurred in the shower is a basis to find the indecent viewing conviction legally insufficient. He writes:

[T]he panel rationally could have believed that Appellant indecently viewed Corporal AA in the shower even if it concluded that Corporal AA’s testimony did not establish all of the elements of sexual assault beyond a reasonable doubt. See United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) [(CAAFlog case page)] (“Defendants are generally acquitted of offenses, not of specific facts, and thus to the extent facts form the basis for other offenses, they remain permissible for appellate re-view.”). And even if there were some inconsistency in finding Appellant guilty of indecent viewing but not guilty of sexual assault, the inconsistency would not make the finding of indecent viewing legally insufficient. “We follow the Supreme Court’s admonition that it is ‘imprudent and unworkable’ to allow an accused ‘to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them.’” United States v. Emmons, 31 M.J. 108, 112 (C.M.A. 1990) (quoting United States v. Powell, 469 U.S. 57, 66 (1984)).

Slip op. at 12. The citation to Rosario is particularly significant because that case also involved alleged facts that were the basis for sexual assault allegations of which the appellant was acquitted. Affirming use of those facts as a basis for a conviction of an orders violation (sexual harassment), CAAF unanimously rejected the notion of acquitted facts with the explanation that “defendants are generally acquitted of offenses, not of specific facts.” 76 M.J. at 117.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

11 Responses to “Opinion Analysis: The appellant’s testimony – disbelieved – makes the conviction legally sufficient, in United States v. Nicola”

  1. Vulture says:

    This opinion has a stale timbre about it.  Something in the tone is like knock-off or cover band cloning an artist.  Like Katy Perry trying to be Madona or Limp Bizkit trying to be Tool.  It’s a four note song.  Formulaic. 
    I want to say that Linda Ronstadt discovered the Eagles and I know that Gene Simmons discovered Van Halen.  But  they sound alike only by gloss.   CAAF needs to stop acting like a Court and start behaving like a court.  The Supreme Court gave them enough nod with Ortiz, but there was a dissent.

  2. Kettle Black says:

    Could you elaborate on what exactly about the opinion leaves you with the impression it is merely a veneer of a judicial opinion? 

  3. Vulture says:

    First, recognize that it is an impression. 
    Second, and this has been gnawing at me all day, is that I should have made a Limp Bizkit to Korn comparison.   It’s a real faux pas on my part because if stating a fact in the vernacular of “life imitating art” I should have had my p’s and q’s in order.  But that is an A-Rod sin that doesn’t deserve an Armstrong punishment.
    Put Nicola in the vein of Acevado and I can understand the apprehension on your part.  But my evidentiary position in Acevedo does rely on anecdotal evidence.  So I’m sticking to my guns there.  But no, I can’t elaborate.

  4. Barry McCockiner says:

    Would you two nerds please knock it off?  Thanks.
    McCockiner, out.

  5. Vulture says:

    Sorry Barry.  I didn’t realize that you were a Fred Durst fan.  I guess it really IS your way or the highway.

  6. stewie says:

    Still baffled. Seems a mighty fine decision that few folks could quibble much with. Jury couldn’t be sure he sexually assaulted her, but he stupidly through his own testimony put himself in there while she was naked allowing the jury to find him guilty of the lesser offense.
    Maybe he was concerned with her welfare, or maybe he was thinking he had an opening…don’t know, wasn’t there, but the panel heard and gauged his credibility and found it wanting in part. What more did you expect CAAF to do Vulture since they cannot engage in fact-finding but only in legal sufficiency?

  7. Vulture says:

    Baffled.  Really?
    Stewie, do you believe that there is no such thing as Brady material in an AWOL offense?  Just asking because I’d like to judge your perception of legal sufficiency and, as I’ve alluded to, the requirement to prove a case.

  8. Vulture says:

    I don’t want to back you in a corner, but what I’m saying is that a “gud nuff” opinion isn’t what meets the requirement for guidance in a controversy.  The timbre of Maggs’ opinion, to milk the musical reference, is like Scott Stapp of Creed.  Pertinent in its time, but now, nobody cares.
    That’s all I’ve got to say on that.

  9. stewie says:

    ok I’ll bite, what does Brady material in an AWOL offense have to do with what is clearly inculpatory testimony in a completely different offense? Brady material, in theory, can exist anywhere. What’s the Brady material here?
    This isn’t simply a “gud nuff” opinion…it’s right smack dab in the center of the bullseye. If you talk, you put your credibility at stake. If you literally reveal evidence that you looked at someone naked in the shower, you tend to risk that someone might find you guilty for…wait for it…looking at someone naked in the shower and not find your excuse for doing so credible because they don’t believe you.
    In fact, it sounds like a pretty nuanced panel. They didn’t fully believe her and they didn’t fully believe him. If he’d kept his mouth shut, he’d not have been convicted. That’s the risk every DC takes in putting their client on the stand vice the reward of satisfying the “need” for the panel to hear from the accused.

  10. Vulture says:

    Funny stewie.  “ok, I’ll bite.” is exactly what I said about you going on about v… v… v… Valerie.
    When you bite, you take it right out the middle.  Here is why I say that:
    Brady material cannot be anywhere.  It has to be in the Governments hand’s.  And the Defense cannot know about it.  So plainly the Accused never got that leave, did he?  There is no reason to even have discovery in the case of AWOL or any other absence offense at all, correct?  It’s up to the Accused to prove his innocence.  Riiight?  Legal sufficiency isn’t something we are going to see eye to eye on.  Maybe that’s a point to harshly made, sorry.  Maybe CAAF should stop using precedent because they are different cases.
    CAAF is judging levels of toxicity from halfway around the world.  There is no literal reveal of evidence that Nicola looked at someone naked in the shower.  Most notably because: Appellant testified that he did not see Corporal AA’s frontal area while she was in the shower.  op. page 3.  Nowhere did it say that he saw her buttocks.
    Call me wrong, shoot I’LL call me wrong!  I HAVE said that I’m wrong.  But the lurid and sorted details of drunken nakedness that CAAF is using to back its position up are just loud.  Loud like a cover band.

  11. stewie says:

    So he said he saw her in the shower…where she was naked. She says he was in the shower with her, naked. He’s placed at least in visual range of her in the shower, naked, with a reason the panel found unconvincing. What he said he saw the panel also found unconvincing.
    He shouldn’t have testified, but he did. He gets the benefits and detriments of dkido so where you appear to want him to only get the benefits.