           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                             Staff Sergeant MICHAEL S. LANDON
                                     United States Air Force

                                               ACM 38560

                                               7 May 2015

         Sentence adjudged 9 January 2014 by GCM convened at Mountain Home
         Air Force Base, Idaho. Military Judge: Lyndell M. Powell.

         Approved Sentence: Bad-conduct discharge, confinement for 6 months,
         reduction to E-3, and a reprimand.

         Appellate Counsel for the Appellant: Captain Johnathan D. Legg.

         Appellate Counsel for the United States: Captain Meredith L. Steer and
         Gerald R. Bruce, Esquire.

                                                  Before

                                HECKER, SANTORO, and TELLER
                                    Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



SANTORO, Senior Judge:

       A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of attempted visual recording of another and visual recording of
another, in violation of Articles 80 and 120c, UCMJ, 10 U.S.C. §§ 880, 920c. The
adjudged and approved sentence consisted of a bad conduct-discharge, confinement for
6 months, reduction to E-3, and a reprimand.

       The appellant argues that the military judge erred in his evidentiary instructions to
the court members. We disagree and affirm.
                                                 Background

       The appellant concealed his cellular telephone in his 14-year-old stepdaughter’s
bedroom in an attempt to record her dressing or undressing. While several attempts led
to recordings of a dark room, he did capture a recording of his stepdaughter’s exposed
breasts on one occasion. His actions came to light when his stepdaughter found his cell
phone secreted under her dresser and partially hidden by a shirt. For this conduct, the
appellant was convicted of attempting on divers occasions to make a visual recording of
his stepdaughter’s private area, and of successfully making such a recording on one
occasion.

       When confronted, the appellant said that he was planning to plant the recordings
on his 18-year-old stepson’s computer in the hope that his stepson would be found in
violation of his probation and removed from the appellant’s home.

                                           Findings Instructions

        The appellant asserts that the military judge erred in failing to define the term
“indecent” when he instructed the members before their deliberations on findings. He
neither requested this instruction nor objected to the military judge’s instructions. The
failure to object to the omission of an instruction before members deliberate constitutes
forfeiture1 of the objection in the absence of plain error. Rule for Courts-Martial
(R.C.M.) 920(f); United States v. Simpson, 58 M.J. 368, 378 (C.A.A.F. 2003)
(citing United States v. Glover, 50 M.J. 476, 478 (C.A.A.F. 1999)).

       “To prevail under a plain error analysis, [the appellant bears the burden of
showing] that: ‘(1) there was an error; (2) it was plain or obvious; and (3) the error
materially prejudiced a substantial right.’” United States v. Scalo, 60 M.J. 435, 436
(C.A.A.F. 2005) (quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).

       Here, the appellant was charged with violating and attempting to violate
Article 120c(a)(2), UCMJ. Article 120c is entitled, “Other sexual misconduct.”
Subsection (a) of Article 120c reads, in pertinent part:

                 (a) Indecent viewing, visual recording, or broadcasting. Any
                 person subject to this chapter who, without legal justification
                 or lawful authorization--
                 ....

1
 We recognize that Rule for Courts-Martial 920(f) states that the failure to object constitutes waiver. However, as
subsequent decisions have clarified, this is actually forfeiture. United States v. Sousa, 72 M.J. 643, 651–52
(A.F. Ct. Crim. App. 2013).


                                                        2                                             ACM 38560
                          (2) knowingly photographs, videotapes, films, or
                          records by any means 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; . . .

                 is guilty of an offense under this section and shall be punished
                 as a court-martial may direct.

Article 120c(a), UCMJ.

       As charged in this case, the elements of those offenses were: (1) that at the time
and place alleged, the appellant knowingly recorded with a cell phone the private area of
his 14-year-old stepdaughter, (2) that he did so without her consent, (3) that under the
circumstances at the time of the offense, she had a reasonable expectation of privacy, and
(4) that the conduct was wrongful.2 See Department of the Army Pamphlet 27-9,
Military Judges’ Benchbook, ¶ 3–45c–1.c(1) (10 September 2014).3 The military judge
also instructed the panel that “private area” is defined as “the naked or underwear-clad
genitalia, anus, buttocks or female areola or nipple.” Id.; Article 120c(d)(2), UCMJ.

        The appellant now argues that the military judge erred by failing to instruct on the
definition of the term “indecent.” He asserts that because Congress used the word
“indecent” to title the offense, it necessarily intended to require that the “indecency” of
the conduct be an element of the offense. We disagree.

                         As in all statutory construction cases, we begin with
                 the language of the statute. The first step is to determine
                 whether the language at issue has a plain and unambiguous
                 meaning with regard to the particular dispute in the case. The
                 inquiry ceases if the statutory language is unambiguous and
                 the statutory scheme is coherent and consistent.

United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (quoting
Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002)).

       Sections of a statute should be construed in connection with one another as “a
harmonious whole” manifesting “one general purpose and intent.” NORMAN J. SINGER ET
AL., STATUTES AND STATUTORY CONSTRUCTION § 46:05 at 154 (6th ed. 2000) (footnote

2
  The military judge properly tailored the instruction relating to the attempt to violate this section charged under
Article 80, UCMJ, 10 U.S.C. § 880.
3
  At the time of the appellant’s trial the Department of the Army had published an approved interim update, effective
21 June 2012, which used language identical to that found in the later published Department of the Army Pamphlet
27-9, Military Judges’ Benchbook, ¶ 3–45c–1.c(1) (10 September 2014).


                                                         3                                              ACM 38560
omitted). “Just as a single word cannot be read in isolation, nor can a single provision of
a statute.” Smith v. United States, 508 U.S. 223, 233 (1993); see Russello v.
United States, 464 U.S. 16, 23 (1983) (“[Where] Congress includes particular language in
one section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.” (internal quotation marks omitted)).

       We need only look to subsections (c) and (d) of the same Article to resolve this
question. Subsection (c), entitled “indecent exposure,” makes it an offense to
intentionally expose certain body parts “in an indecent manner.” Subsection (d) then
defines the phrase “indecent manner.”

       The statutory language is unambiguous. Congress proscribed acts committed “in
an indecent manner” in one subsection of this Article, while not using that phrase in the
charged subsection, demonstrating that Congress intended to criminalize different forms
of conduct in the different subsections. In fact, Congress’ intent is plain. With respect to
the subsection at issue in this case, Congress sought to criminalize conduct that invaded
the victim’s private space: circumstances in which a reasonable person would believe
that he or she could disrobe in privacy, without being concerned that an image of his or
her private area was being captured; or circumstances in which a reasonable person
would believe that a private area of the person would not be visible to the public.
Article 120c(d)(3), UCMJ.

      The appellant further argues, citing Ashcroft v. Free Speech Coalition,
535 U.S. 234, 255 (2002), that without indecency as an element of the offense, the statute
unconstitutionally infringes his right to free speech. We find this argument unpersuasive.
The constitutional infirmity in Free Speech Coalition was that the statute in question
could be read to criminalize both child and adult pornography and was therefore
overbroad and potentially violative of the right to possess or view non-obscene adult
pornography.

       The conduct Article 120c(a)(2), UCMJ, proscribes is qualitatively different. We
conclude, as did our sister court in United States v. Quick, 74 M.J. 517, 521
(N.M. Ct. Crim. App. 2014), that criminalizing the making a nonconsensual visual
recording of the victim’s private area when she had a reasonable expectation of privacy is
constitutionally defensible. The victim’s lack of consent to the recording, coupled with
the appellant’s knowing invasion of a place in which the victim had a reasonable
expectation of privacy, are sufficient to pass constitutional muster.4


4
  Even the instruction the appellant believes the military judge should have given highlights the correctness of the
instructions the judge actually gave. The appellant believes the judge should have instructed that “[i]ndecent
conduct includes . . . making a videotape . . . without another person’s consent, and contrary to that other person’s
reasonable expectation of privacy.” The military judge instructed on lack of consent and reasonable expectation of


                                                         4                                              ACM 38560
                                                 Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence are AFFIRMED.



                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




privacy as elements, which under the appellant’s proposed construct, would equate to the indecent conduct element
he believes is missing.


                                                       5                                            ACM 38560
