UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                                           Before
                                                               COOK, GALLAGHER, and HAIGHT
                                                                  Appellate Military Judges

                                                           UNITED STATES, Appellee
                                                                        v.
                                                          Sergeant CHARLES L. SMITH
                                                          United States Army, Appellant

                                                                      ARMY 20101013

                                     Headquarters, III Corps and Fort Hood
                                         James Varley, Military Judge
                          Lieutenant Colonel Mark H. Sydenham, Staff Judge Advocate


For Appellant: Captain James S. Trieschmann, Jr., JA (argued); Colonel Patricia A.
Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA;
Captain James S. Trieschmann, JA (on brief). Colonel Patricia A. Ham, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain
James S. Trieschmann, JA (on reply brief).

For Appellee: Captain Sasha N. Rutizer, JA (argued); Major Robert A. Rodrigues,
JA; Captain Sasha N. Rutizer, JA (on brief).


                                                                      27 February 2013
                                                                 -----------------------------------
                                                                  SUMMARY DISPOSITION
                                                                 -----------------------------------

Per Curiam:

       A panel of officer members sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of false official statement, two
specifications of wrongful sexual contact, one specification of indecent exposure,
one specification of aggravated sexual assault, and one specification of adultery, in
violation of Articles 107, 120, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 907, 920, 934 (2006) [hereinafter UCMJ]. 1 The convening authority approved the
adjudged sentence of a dishonorable discharge, confinement for seven years,
forfeiture of all pay and allowances, and reduction to the grade of E-1.

                                                            
1
  At action, the convening authority disapproved the finding of guilty to adultery
under Article 134, UCMJ.  
SMITH—ARMY 20101013

       The case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error 2 basically asserting the evidence is factually and
legally insufficient to find him guilty of Specification 1 of Charge II (wrongful
sexual contact), Specification 2 of Charge II (wrongful sexual contact), and
Specification 3 of Charge II (indecent exposure). We agree with appellant’s first
assignment of error and will order relief in our decretal paragraph. Appellant’s third
assignment of error merits discussion but no relief. Appellant’s remaining
assignment of error, along with the matters he personally raises pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), is without merit.

                                                            
2
                                                                I.

                             THE EVIDENCE IS LEGALLY AND FACTUALLY
                             INSUFFICIENT   TO  SUPPORT    SGT   SMITH’S
                             WRONGFUL SEXUAL CONTACT CONVICTION FOR
                             GROPING PVT FD’S INNER THIGH IN THE LION’S
                             CLUB PARKING LOT BECAUSE THE GOVERNMENT
                             FAILED TO PRODUCE ANY EVIDENCE THAT SGT
                             SMITH GROPED PVT FD’S INNER THIGH AND EVEN
                             IF HE DID, HE WAS UNDER A MISTAKE OF FACT
                             THAT SHE CONSENTED.

                                                               II.

                             THE EVIDENCE IS LEGALLY AND FACTUALLY
                             INSUFFICIENT   TO   SUPPORT   SGT  SMITH’S
                             WRONGFUL     SEXUAL   CONTACT   CONVICTION
                             BECAUSE THE MOMENT PVT FD TOLD SGT SMITH
                             SHE WAS UNCOMFORTABLE, HE NEVER TOUCHED
                             HER AGAIN.

                                                               III.

                             THE EVIDENCE IS LEGALLY AND FACTUALLY
                             INSUFFICIENT TO SUPPORT SGT SMITH’S
                             INDECENT EXPOSURE CONVICTION BECAUSE THE
                             HEIGHT OF HIS SUV, THE DARK TINTED WINDOWS
                             OF HIS SUV, AND THE FACT HE DID NOT INTEND
                             TO BE SEEN BY ANY MEMBER OF THE PUBLIC
                             MADE IT HIGHLY UNREASONABLE THAT HIS
                             CONDUCT WOUULD BE WITNESSED BY A MEMBER
                             OF THE GENERAL PUBLIC AT LION’S CLUB PARK.
 



                                                                2
SMITH—ARMY 20101013

                                   BACKGROUND

       On 8 March 2010, Private (PVT) F-D and another soldier were walking to the
food court when appellant called out to PVT F-D and asked if she was new on post.
Private F-D responded that she was in fact new on post and was on her way to eat
lunch. Appellant offered to drive PVT F-D and the other soldier to the food court in
his Chrysler SUV. After eating, appellant offered to take PVT F-D off-post to show
her around. Private F-D agreed and exchanged phone numbers with appellant with
the intent of meeting later that afternoon.

       After picking up PVT F-D, appellant drove off-post and the conversation
turned sexual. They drove to a nearby public park and parked in the parking lot. It
was mid-afternoon and there were several people at the park. Appellant began
rubbing PVT F-D’s thighs and kissing her. Private F-D did not tell appellant to stop
and even kissed him back. Appellant then said, “I need to get off.” He then exposed
his penis and requested PVT F-D “help [him].” Private F-D refused and turned her
head towards the window. Appellant proceeded to masturbate in PVT F-D’s
presence. After appellant had completed the act and cleaned up, he saw an
individual he thought he knew walk past the driver-side window. Appellant
slouched down in his seat to avoid being detected by the individual.

                              LAW AND DISCUSSION

                               Wrongful Sexual Contact

       We find the evidence of wrongful sexual contact as alleged in Specification 1
of Charge II to be factually insufficient. UCMJ art. 66(c); United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). A person is guilty of wrongful
sexual contact when he “engages in sexual contact with another person without that
other person’s permission.” See Manual for Courts-Martial, United States (2008
ed.) [hereinafter MCM], pt. IV, ¶45.a.(m). “Sexual contact” means “the intentional
touching, either directly or through the clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks of another person . . . with an intent to abuse, humiliate, or
degrade any person or to arouse or gratify the sexual desires of any person”
(emphasis added). MCM, pt. IV, ¶45.a.(t)(2). In this case, while kissing, appellant
put his hand on PVT F-D’s thigh. Private F-D did not object to appellant’s actions,
continued kissing him, and she responded “No, I’m ok, I’m straight” when
questioned by appellant if she okay. In light of the above and all other elicited
testimony regarding this incident, we maintain reasonable doubt that appellant
engaged in wrongful sexual contact of PVT F-D’s inner thigh. As such, we will take
appropriate action in our decretal paragraph.




                                            3
SMITH—ARMY 20101013

                                  Indecent Exposure

      In Specification 3 of Charge II, the government charged appellant with
indecently exposing himself in violation of Article 120, UCMJ. Indecent exposure
occurs when an individual “intentionally exposes, in an indecent manner, in any
place where the conduct involved may reasonably be expected to be viewed by
people other than members of the actor’s family or household, [his] genitalia . . .”
MCM, pt. IV, ¶45.a.(n). Here, the parties do not contest the indecency of the
exposure. Rather, the contention lies with the alleged public nature of appellant’s
actions.

       Turning to the record, the following circumstances were in evidence
surrounding the offense of appellant’s indecent exposure while in his vehicle. First,
appellant exposed himself in the middle of the afternoon, during daylight hours.
Second, the exposure took place in the center portion of a parking lot of a public
park. Third, there were twenty to forty cars parked in the parking lot. Fourth,
children were playing softball on the field directly in front of appellant’s car. Fifth,
men were playing basketball directly behind appellant’s car. Furthermore, there was
a lady with a stroller next to a nearby fence. Sixth, although appellant’s car
windows were tinted, it was established that people were still able to observe inside
the vehicle. Private F-D testified that after appellant completed masturbating, an
individual walked past appellant’s car causing him to slouch down to avoid
detection. Consequently, we find the evidence as to Specification 3 of Charge II to
be legally and factually sufficient because appellant indecently exposed himself in a
place where his conduct could be reasonably expected to be viewed by the public.
UCMJ art. 66(c); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Washington, 57
M.J. at 399; United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

                                   CONCLUSION

       The finding of guilty to Specification 1 of Charge II is set aside and
dismissed. We affirm the remaining findings of guilty. Reassessing the sentence on
the basis of the error noted, the entire record, and in accordance with the principles
of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit,
63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his
concurring opinion, the court affirms the sentence.

                                        FOR   THE COURT:
                                         FOR THE COURT: 




                                        MALCOLM H. SQUIRES, JR.                         
                                        MALCOLM         H. SQUIRES, JR.
                                        Clerk of Court 
                                        Clerk of Court


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