This opinion is subject to administrative correction before final disposition.




                               Before
                 CRISFIELD, HITESMAN, and KOVAC,
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                          Brian D. LOHR
          Intelligence Specialist First Class (E-6), U.S. Navy
                               Appellant

                             No. 201800199

                         Decided: 17 January 2020

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Commander Arthur L. Gaston, III, JAGC, U.S. Navy.
 Sentence adjudged 2 March 2018 by a general court-martial convened
 at Naval Support Activity, Naples, Italy; Naval Station Norfolk, Vir-
 ginia; and U.S. Army Garrison, Stuttgart, Germany, consisting of
 members with enlisted representation. Sentence approved by the con-
 vening authority: reduction to pay grade E-1, forfeiture of all pay and
 allowances, confinement for six months, and a dishonorable discharge.

 For Appellant: Philip D. Cave, Esq.; J. Thomas Province, Esq.; Lieu-
 tenant Commander Jeremy J. Wall, JAGC, U.S. Navy.

 For Appellee: Lieutenant Kurt W. Siegal, JAGC, U.S. Navy; Lieuten-
 ant Clayton S. McCarl, JAGC, U.S. Navy; Major Kerry E. Friedewald,
 U.S. Marine Corps; Lieutenant Timothy C. Ceder, JAGC, U.S. Navy.

                        _________________________
                 United States v. Lohr, NMCCA No. 201800199


         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                           _________________________

PER CURIAM:
    Appellant was found guilty by members with enlisted representation, con-
trary to his pleas, of one specification of indecent visual recording, one speci-
fication of assault consummated by a battery, and one specification of patron-
izing a prostitute, in violation of Articles 120c, 128, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920c, 928, 934 (2016).
    Appellant asserts eleven assignments of error (AOE): (1) the evidence to
support his conviction of indecent visual recording is legally and factually in-
sufficient; (2) the military judge erred when he failed to give a mistake of fact
as to consent instruction for the assault charge; (3) the trial counsel made
improper argument; (4) the evidence to support his conviction of assault is
legally and factually insufficient; (5) the evidence to support his conviction of
patronizing a prostitute is legally and factually insufficient; (6) the military
judge abused his discretion in denying a challenge to Chief Yeoman LJ;
(7) the military judge erred when he allowed evidence under Military Rule of
Evidence 404(b) without providing a limiting instruction; (8) trial defense
counsel was ineffective by failing to procure the services of an independent
and unconflicted interpreter; (9) the record of trial is incomplete; (10) the
First Amendment protects an individual’s right to associate with prostitutes
where there is no military nexus to the association; 1 and (11) the evidence
fails to prove the scienter element of the indecent visual recording charge, as
required by Rehaif v. United States, __ U.S. __, 139 S. Ct. 2191 (2019).
   We find no merit in the AOEs and affirm the findings and sentence.

                                I. BACKGROUND

    Appellant visited a brothel while he was stationed in Germany. He paid
for the sexual services of two prostitutes, one shortly after the other. His in-


   1 AOEs (4) through (10) are raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). Having carefully considered those assignments of error, we find
them to be without merit. See United States v. Clifton, 35 M.J. 79 (C.M.A. 1992);
United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968
(1988).




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                United States v. Lohr, NMCCA No. 201800199


teractions with the two prostitutes occurred in two separate bedrooms. With-
out obtaining their consent, Appellant videotaped both of the sexual encoun-
ters utilizing a camera hidden inside a tissue box. The first prostitute patron-
ized by Appellant (the “first victim”) did not see any camera in her bedroom
when she was having sex with Appellant, but she remembered seeing a tissue
box near her bed. The second prostitute (the “second victim”), while having
sex with appellant, noticed a camera lens protruding from a tissue box next
to her bed. She grabbed the box in alarm, asked in German “what is this?”
and screamed for assistance. Appellant then forcibly tried to regain posses-
sion of his video camera and the two scuffled. In the course of the scuffle, Ap-
pellant assaulted the second victim by grabbing her around the torso, and she
bit Appellant on the wrist. The conflict ended when the brothel’s security
guard entered the room. The brothel’s staff called German police. Police ar-
rived on the scene, seized the camera, and arrested Appellant. Video from the
camera shows the buttocks, breasts, and genitalia of both victims.
   Additional facts necessary to resolve the AOEs are contained below.

                                II. DISCUSSION

A. Appellant’s Conviction of Charge I is Legally and Factually Suffi-
cient
    Appellant asserts that the evidence presented by the Government was le-
gally and factually insufficient to prove that the second victim did not consent
to being videotaped and that she had a reasonable expectation of privacy in
her brothel bedroom. He also asserts that the evidence is legally and factually
insufficient to prove that the first victim is the prostitute featured in the vid-
eo.
   We review questions of legal and factual sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c) (2012); United States v. Rosario, 76 M.J. 114, 117
(C.A.A.F. 2017).
    The test for legal sufficiency is whether, considering the evidence in the
“light most favorable to the prosecution,” a reasonable fact finder “could have
found the essential elements of the crime beyond a reasonable doubt.” Ro-
sario, 76 M.J. at 117 (citation and internal quotation marks omitted). In re-
solving questions of legal sufficiency, we are “bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United
States v. Nicola, 78 M.J. 223, 226 (C.A.A.F. 2019) (citation and internal quo-
tation marks omitted).
   The test for factual sufficiency is whether “after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [this Court is] convinced of Appellant’s guilt beyond a reasona-


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               United States v. Lohr, NMCCA No. 201800199


ble doubt.” Rosario, 76 M.J. at 117 (citation, internal quotation marks, and
emphasis omitted). In conducting this unique appellate function, we take “a
fresh, impartial look at the evidence,” applying “neither a presumption of in-
nocence nor a presumption of guilt” to “make [our] own independent determi-
nation as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). Proof beyond a reasonable doubt does not mean, however,
that “the evidence must be free from conflict.” United States v. Goode, 54 M.J.
836, 841 (N-M. Ct. Crim. App. 2001) (citation and internal quotation marks
omitted).
   In order to convict Appellant of indecent visual recording as alleged in
Charge I, the Government was required to prove the following elements:
   (1) That Appellant knowingly recorded the private areas of the two vic-
tims;
   (2) That the recording was done without the victims’ consent; and
   (3) That the recording was made under circumstances in which the vic-
tims had a reasonable expectation of privacy.
Art. 120c(a)(2), UCMJ.
     The Government presented evidence from both victims that they did not
consent to being videotaped by Appellant and did not know they were being
videotaped. Both victims testified that they did not consent. It also presented
evidence that Appellant hid his video camera inside a tissue box so that only
the camera’s lens was protruding from the box. The videos obtained from Ap-
pellant’s camera showed the private areas of both victims. The evidence also
established that prostitutes in the brothel had an expectation that when they
were in their bedrooms with customers they would not be visible to the pub-
lic. Based on the evidence presented, a reasonable fact finder could easily
have found all the essential elements beyond a reasonable doubt.
    Our independent review of the evidence similarly convinces us that each
element was proven beyond a reasonable doubt. In particular, we are con-
vinced that the second victim did not consent to being recorded. Her actions
in the video and her testimony on the witness stand are completely consistent
with one who was genuinely caught by surprise when she discovered the hid-
den camera. We are also convinced that the first victim is the person depicted
in the video, notwithstanding its poor quality. The first victim’s testimony
that she recognized the bed and bedroom as hers, and that she remembered
seeing a tissue box in the room when she was with Appellant, strongly cor-
roborate the fact that it is her in the video. Having carefully considered the
evidence in the record of trial and making suitable allowances for not having



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                 United States v. Lohr, NMCCA No. 201800199


personally observed the witnesses, we are convinced of Appellant’s guilt of
Charge I beyond a reasonable doubt.

B. A Mistake of Fact as to Consent Instruction for Charge I was not
Warranted
    A military judge shall instruct on the elements of the offense and any af-
firmative, or “special,” defenses reasonably raised. See RULE FOR COURTS-
MARTIAL 920(E), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.);
United States v. Davis, 76 M.J. 224, 228 (C.A.A.F. 2017). Mistake is an af-
firmative defense upon which the members shall be instructed if the defense
was “reasonably raised by the evidence.” Davis, 76 M.J. at 228. There “must
be some evidence of an honest and reasonable mistake to which the members
could have attached credit if they had so desired.” Id. (quoting United States
v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003)) (internal quotation marks omit-
ted). We review de novo whether a special defense, such as mistake of fact,
was raised such that it would require instruction by a military judge. Id. at
228-29.
   At trial, Appellant’s counsel asked for a mistake of fact instruction based
on three assertions: (1) the victims looked at the camera lens; (2) the tissue
box concealing the camera was brightly colored; and (3) the video camera
beeps when turned on, at least when in its default setting.
    The military judge denied Appellant’s request, finding that there was no
evidence that either victim saw the camera until the second victim grabbed
it. He also found that the evidence supported the fact that Appellant had dis-
guised his camera in a tissue box and started recording while the camera was
out of view of the victims, indicating that Appellant did not actually believe
they consented to being videotaped. Additionally, he found that the second
victim testified that she did not hear a beep and that there was insufficient
evidence to establish that the camera was even set up to beep when turned
on. The military judge’s findings are well supported by the evidence. We con-
cur with his conclusion that there was no evidence of an honest and reasona-
ble mistake by Appellant. 2




   2 We also concur with the military judge’s finding that even if there was some ev-
idence that a victim saw that she was being recorded there would need to be addi-
tional evidence that Appellant realized that the victim saw the camera before the de-
fense of mistake of fact could be reasonably raised.




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                 United States v. Lohr, NMCCA No. 201800199


C. The Trial Counsel’s Argument Was Not Plain Error
    Appellant asserts that the trial counsel committed prosecutorial miscon-
duct by making improper and prejudicial statements during argument on the
merits and sentencing. On the merits, Appellant claims that the trial counsel
purported to express thoughts of the Appellant that were not reasonably in-
ferred from the evidence; 3 attempted to put the members on the prosecution
team; 4 demonized Appellant; 5 impugned the integrity and institutional role of
the defense counsel; 6 commented on Appellant’s decision not to testify; 7 and
personally vouched for evidence. 8 During sentencing, Appellant claims that
the trial counsel committed prosecutorial misconduct by unfairly challenging
Appellant’s apology to the victims in his unsworn statement.
    The trial defense counsel did not object to any of these arguments. There-
fore, we review for plain error. United States v. Andrews, 77 M.J. 393, 398-99
(C.A.A.F. 2018). Plain error review requires there be an error; that the error
was plain, or clear, or obvious; and that the error resulted in material preju-
dice to Appellant’s substantial rights. United States v. Maynard, 66 M.J. 242,
244 (C.A.A.F. 2008). Appellant has the burden to establish plain error. Id.
   Examining the various statements of trial counsel in his closing argument
on the merits, we do not find that any constitute plain error, although some
were inartfully phrased. With regard to Appellant’s claim of improper sen-



    3 “He chose those victims because he thought people aren’t going to care because
this is—these are prostitutes.” Record at 626.
    4 E.g., “We wear the uniform of our nation every day. We have a higher responsi-
bility to the American people that we—that we defend. Any deck seaman can tell you
right out of boot camp that we are United States Sailors 24-7.” Id. at 626.
    5“He disregarded their privacy, and he treated them as lesser people. That is the
most chilling thing that he targeted them specifically because he thought, “Who
cares? They’re not people. They’re prostitutes. They’re not people.” Id. at 637-38.
    “Throughout this trial, the defense has tried to create kind of—kind of a fog. . . .
    6

And they’ve tried to confuse the truth. . . . They’re trying to distract about—from
what really happened and what common sense[.]” Id. at 657.
    7“It’s without reason to speculate as to possibilities of other things that are going
on that we don’t have any direct evidence of. Other than what the government put
on. Because that’s the only case—that’s the only case, that’s the only evidence that
you have.” Id. at 666.
    8“And I know that’s hard to see from here, but you’ll have it in the deliberation
room. Trust me, when you—when you look at it, Lohr comma Brian, this is his
apartment.” Id. at 629.




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                United States v. Lohr, NMCCA No. 201800199


tencing argument, we find no error, plain or otherwise. The trial counsel’s
sentencing argument, questioning the sincerity of Appellant’s apology to the
victims, was a fair comment on Appellant’s unsworn statement.
    Even if we were to find that any of the trial counsel’s arguments rose to
the level of plain error, there is no material prejudice to Appellant’s substan-
tial rights. Prosecutorial misconduct only merits relief where its “cumulative
impact” is “so damaging that [this Court] cannot be confident that the mem-
bers convicted the appellant on the basis of the evidence alone.” United States
v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005); United States v. Pabelona, 76
M.J. 9, 12 (C.A.A.F. 2017) (citation and internal quotation marks omitted).
    Where improper argument occurs, this Court considers three factors to
determine whether an appellant suffered prejudice: “(1) the severity of the
misconduct, (2) the measures adopted to cure the misconduct, and (3) the
weight of the evidence supporting the conviction.” Fletcher, 62 M.J. at 184. If
the weight of the evidence supporting the conviction is strong enough, that
factor alone can establish lack of prejudice without reference to the first two
factors. See Pabelona, 76 M.J. at 12 (citing United States v. Halpin, 71 M.J.
477, 480 (C.A.A.F. 2013)).
    Assuming arguendo that the arguments constituted plain error, we are
convinced that they did not alter the findings. The evidence on all three
charges was overwhelming. We are also confident that the members’ sentence
of six months confinement, a dishonorable discharge, reduction in rank to
pay-grade E-1, and total forfeitures of pay and allowances for his multiple
offenses was based on the strength of the evidence and not on any improper
argument. See Id. Accordingly, we find with confidence that Appellant was
not prejudiced by any error in the trial counsel’s arguments.

D. Scienter Does Not Apply to the Lack of Consent Element in Art.
120c, UCMJ
    Appellant asserts that the Government failed to prove the second element
of the Art. 120c(a)(2), UCMJ, indecent recording offense (i.e., that Appellant
knew that the victims did not consent to being recorded). Appellant claims
that this evidentiary failure runs afoul of the Supreme Court’s recent decision
in Rehaif v. United States, __ U.S. at __, 139 S. Ct. 2191 (2019). Appellant in-
terprets Rehaif as requiring scienter (i.e., “knowledge of wrongfulness”) to
apply to every element of Article 120c(a)(2), including the second element, the
lack of consent.
   We review de novo the statutory interpretation issue of determining
which mens rea applies to an offense. United States v. McDonald, 78 M.J.
376, 378 (C.A.A.F. 2019).



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                United States v. Lohr, NMCCA No. 201800199


    In Rehaif, the Supreme Court was faced with the question of interpreting
the scienter requirement in a federal criminal statute, 18 U.S.C. § 924(a)(2).
This statute states that “whoever knowingly violates” 18 U.S.C. § 922(g), in-
ter alia, shall be subject to certain penalties. The text of § 922(g) in turn pro-
vides that it shall be unlawful for any alien illegally or unlawfully in the
United States, to possess any firearm or ammunition. The Supreme Court
determined that the “knowledge” requirement of § 924(a)(2) applies to both
elements of § 922(g)—the alien’s status and the firearms possession.
   We distinguish Rehaif from the instant case by noting that the scienter
requirement in Article 120c(a)(2), UCMJ, is written into the text of the stat-
ute:
       Any person subject to this chapter who, without legal justifica-
       tion or lawful authorization . . . knowingly photographs, vide-
       otapes, films, or records by any means the private area of an-
       other person, without that other person’s consent and under
       circumstances in which that other person has a reasonable ex-
       pectation of privacy . . . is guilty of an offense . . . .
Id. (emphasis added).
    In contrast, in Rehaif, the scienter requirement stated in 18 U.S.C.
§ 924(a)(2) was made applicable to a separate statute, 18 U.S.C. § 922(g), in
toto. The Court itself distinguished its analysis in Rehaif from cases where
“knowingly” introduces an element or elements of an offense: “This is notably
not a case where the modifier ‘knowingly’ introduces a long statutory phrase,
such that questions may reasonably arise about how far into the statute the
modifier extends.” Rehaif, __ U.S. at __, 139 S. Ct. at 2196. Thus, the gram-
matical structure of the statutes involved in Rehaif is very different from the
grammatical structure of the statute involved in the instant case.
    We therefore decline to automatically apply the “knowingly” requirement
to every element of Article 120c(a)(2), but instead apply customary statutory
interpretation rules to determine which elements must be committed know-
ingly to constitute a violation.
    The plain reading of Article 120c(a)(2) indicates to us that “knowingly”
modifies the verbs that immediately follow it (“photographs, videotapes,
films, or records”) and the direct object (“private area of another person”), but
does not apply to more distant phrases: “without that other person’s consent,”
or “under circumstances in which that other person has a reasonable expecta-
tion of privacy.”
    As the Government notes in its supplemental brief, a comparison of Arti-
cles 120c(a)(2) and 120c(a)(3) (broadcasting indecent images) strongly sup-
ports the proposition that “knowingly” as used in 120c(a)(2) applies only to


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               United States v. Lohr, NMCCA No. 201800199


the first element. Unlike Article 120c(a)(2), Article 120c(a)(3) imposes crimi-
nal liability on one who “knowingly broadcasts or distributes any [recording
of the private area of another person] that the person knew or reasonably
should have known was made [without that other person’s consent and when
that other person had a reasonable expectation of privacy].” Art. 120c(a)(3),
UCMJ (emphasis added).
    In statutory interpretation issues such as this, we also must attempt to
satisfy congressional intent. See Rehaif, __ U.S. at __, 139 S. Ct. at 2195
(“Whether a criminal statute requires the Government to prove that the de-
fendant acted knowingly is a question of congressional intent.”). The fact that
Congress inserted a scienter requirement specifically applicable to the second
element of Article 120c(a)(3) supports the proposition that Congress did not
intend for there to be a scienter requirement for the second element of Article
120c(a)(2). We therefore decline to re-write the statute to apply a knowledge
requirement to the element of lack of consent.

                             III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and no error materially prejudicial to the appellant’s substantial
rights occurred. Arts. 59, 66, UCMJ. Accordingly, the findings and sentence
as approved by the convening authority are AFFIRMED.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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