On 10 February 2021, the United States Navy-Marine Court of Criminal Appeals (“NMCCA”) published an opinion in United States v. Corporal Thomas A. Page III. The NMCCA reviewed Appellant’s two assignments of error de novo. The NMCCA SET ASIDE and DISMISSED WITH PREJUDICE the finding of guilty pursuant to Article 117a and, with careful consideration of the law and facts, AFFIRMED the remaining findings and sentence in Entry of Judgment pursuant to UCMJ Arts. 59, 66.
While participating in an exercise, Appellant took Corporal Charlie’s (pseudonym for the victim) phone while he slept and found a picture of genitalia in a text messaging exchange between Corporal Charlie and his wife. Appellant texted that picture, which he believed to be depicting Corporal Charlie’s genitalia, to himself from Corporal Charlie’s phone. Notably, Corporal Charlie was not identifiable from the image.
On a separate occasion, Appellant fellated a fellow Marine while he was incapable of consenting due to impairment by alcohol. In accordance with his pleas, Appellant was convicted of one specification of wrongful broadcast of intimate visual images and one specification of abusive sexual contact in violation of Articles 117a (Wrongful broadcast or distribution of intimate visual images)and 120 (Rape and sexual assault generally), Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 917a, 920.
Appellant claimed two assignments of error (“AOE”) pursuant to his guilty plea to wrongfully broadcasting intimate images. Appellant contended the Court was imprudent in that (1) the information independent of the photo broadcasting does not satisfy the victim identification element, and (2) the term “broadcasting” does not include text messaging an image to one’s own phone.
The NMCCA found merit in Appellant’s first AOE and mooted the second AOE.The resulting issue for the NMCCA is whether evidence tying the image to Corporal Charlie is sufficient to constitute “information displayed in connection with the intimate visual image,” Art. 117a’s third element. The NMCCA analyzed the providence of Appellant’s guilty conviction, pursuant to a violation of Art. 117a, under a Care inquiry, which comports with the pertinent language of the Art. 117a elements.
A. Statutory and Factual Analyses
In the NMCCA’s statutory analysis, it asserted that “the gravamen of Article 117a is transmitting the image in a way that allows others to identify the person in the picture, either from information contained in the image itself or displayed in connection with the image as broadcast.” The NMCCA found that the military judge erred by failing to define “information displayed in connection with the intimate visual image” as applied to the identification of Corporal Charlie from the broadcasted image.
The Government proposed the mere fact that text message information identifies the sender should be sufficient to satisfy the third element. The Court disagreed becauseit would become “surplusage” to the fourth, fifth, and sixth elements. The Court observed that allowing prior obtained information to satisfy the third element would render the sixth element a factual impossibility. Consequently, the NMCCA limited the interpretation of “information displayed in connection with the intimate image” to only the information that was both transmitted with the image and remained after broadcast or display occurred. The NMCCA concluded that the information displayed in connection with the intimate image was not sufficient to meet the standard. The image alone did not sufficiently identify the victim.
B. Sentence Reassessment
The Court dismissed the Art. 117a conviction, carrying a maximum sentence of seven years at half the maximum sentence for the two offenses to which he was sentenced. The military judge awarded six months confinement to be served concurrently for the two offenses, the minimum confinement allowed by the plea agreement. Considering the severity of the Art. 120 offense, in which Appellant fellated an unconscious fellow marine, and the aggravating circumstances of victimizing and abusing the trust and friendship of a fellow Marine who is asleep or unconscious, the Court concluded that Appellant would have received a sentence no less than that awarded by the military judge for the Art. 120 offense alone. The Court, therefore, did not find a change in punitive exposure warranting a reduction in sentence.
The NMCCA affirmed and approved the previously adjudged sentence, finding the affirmed charge in violation of Art. 120 the more serious of the two specifications. Because Appellant was serving concurrent sentences, a reduction to E-1, forfeiture of all pay, confinement for six months, and a bad-conduct discharge are affirmed without prejudice.
See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969). During the court’s Care inquiry, the military judge advised Appellant of the elements of the offense charged under Article 117a: 1) Appellant knowingly and wrongfully broadcast intimate visual images of Corporal Charlie; 2) Corporal Charlie was at least 18 years of age when the visual images were created; 3) Corporal Charlie is identificable from the visual images or from information displayed in connection with the visual images; 4) Corporal Charlie did not explicitly consent to the broadcast of the images; 5) Appellant knew, or reasonably should have known, that the visual images were made under circumstances in which Corporal Charlie retained a reasonable expectation of privacy regarding a broadcast of the images; 6) Appellant knew or reasonably should have known that the broadcast of the visual images were likely to cuase harassment and emotional distress for Corporal Charlie and to harm substantially his reputation and personal relationships; 7) Appellant’s conduct had a reasonably direct and palpable connection to a military mission or military environment.
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