UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                     Specialist CEY BRISTOL J. WILLIAMS
                          United States Army, Appellant

                                   ARMY 20140401

       Headquarters, United States Army Combined Arms Support Command
           James W. Herring, Military Judge (arraignment & motions)
                      Tyesha L. Smith, Military Judge (trial)
              Colonel Ralph J. Tremaglio III, Staff Judge Advocate


For Appellant: Major Christopher D. Coleman, JA (argued); Lieutenant Colonel
Jonathan F. Potter, JA; Major Aaron R. Inkenbrant, JA; Captain J. David Hammond,
JA (on brief).

For Appellee: Captain Tara E. O’Brien, JA (argued); Colonel Mark H. Sydenham,
JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien, JA (on brief).


                                     30 March 2016

                              -----------------------------------
                                OPINION OF THE COURT
                              -----------------------------------

CAMPANELLA, Judge:

       A panel consisting of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification of wrongful
sexual contact, seven specifications of indecent exposure, one specification of
abusive sexual contact, and one specification of indecent language, in violation of
Articles 120, 120c, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920,
920c, 934 (2006 & 2012) [hereinafter UCMJ]. The panel sentenced appellant to a
bad-conduct discharge, confinement for nine months, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The convening authority approved
only so much of the sentence as provided for a bad-conduct discharge, confinement
for eight and a half months, forfeiture of all pay and allowances, and reduction to
the grade of E-1.
WILLIAMS—ARMY 20140401

       This case is before us for review pursuant to Article 66, UCMJ. 1 Appellant
raises one assignment of error which warrants discussion and relief. We find the
matters raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), however, to be meritless.

                                  BACKGROUND

       Appellant was charged with and convicted of seven specifications of indecent
exposure. Two of the specifications are not at issue here. 2 The remaining five
specifications involve appellant showing a digital image of his penis to his victims.

      In four of these instances, appellant took his cell phone, turned the screen
toward the female victim, and showed each victim a digital image of what the
victims believed to be appellant’s penis.

       The last indecent exposure specification at issue involved appellant sending a
victim a text message with an attachment containing a digital image of his penis.
What precipitated appellant sending this digital image was a discussion regarding
circumcision that occurred earlier in the day with members of his office. Soon after
the conversation, SPC SB received a text message from appellant stating, “Thanks
for showing love to uncircumcised dudes.” Attached to the text message was a
digital image of his uncircumcised penis.

       In each instance, the digital image was a picture of an erect penis. While the
digital image did not include identifying features, in at least one instance, appellant
said, “That’s me” to the victim when he showed her the digital image. Appellant
also admitted in his statement to Criminal Investigations Command (CID) there were
photographs of his genitals on his cell phone. Later, several digital images were
recovered from appellant’s cell phone that were consistent with the victim’s
descriptions.

       For each of the charged exposures, when appellant either displayed or sent the
digital images of his penis to the victims, he was fully clothed at the time he showed
the image or sent it. The government presented no evidence as to when appellant’s


1
 Oral argument in this case was heard in East Lansing, Michigan, on 13 January
2016 at the Michigan State University College of Law as part of the Outreach
Program of the United States Army Court of Criminal Appeals.
2
  The two indecent exposure specifications not at issue involve appellant standing on
his back deck and exposing his penis to his neighbor and her daughter. This was a
live display of actual genitalia.




                                           2
WILLIAMS—ARMY 20140401

penis was photographed or whether anyone was physically present at the time he
actually exposed his penis in order to take the digital images.

       Four of the five indecent exposure specifications at issue were charged under
the new Article 120c(c), UCMJ statute, effective 28 June 2012. These specifications
involved appellant either showing a digital image of his penis already stored on his
cell phone or sending a previously taken digital image of his penis via text message.
The remaining specification was charged under the 2006 indecent exposure statute
(Article 120(n), UCMJ). This specification also involves showing a previously
created digital image.

       Before entering pleas, the defense moved to dismiss these specifications under
Rule for Court-Martial [hereinafter R.C.M.] 907(a). Defense counsel argued
appellant’s conduct in merely showing victims a photograph of his penis was not
sufficient to constitute “exposure” for purposes of indecent exposure under Article
120(n), UCMJ or Article 120c(c), UCMJ. After considering motions and arguments
from counsel, the military judge noted that although he found no case law on point,
he interpreted existing precedent to stand for the proposition that showing a digital
image or sending a digital image via electronic means could constitute a basis for an
indecent exposure charge. The military judge denied the defense motion to dismiss.

       After the close of the government’s case-in-chief, the defense moved to
dismiss the same specifications pursuant to R.C.M. 917. Defense counsel reiterated
his arguments that the statute contained a “temporal” requirement and that appellant
never exposed his actual live genitalia to the victims. The military judge denied the
motion. The panel subsequently found appellant guilty of all the indecent exposure
charges and specifications.

                             LAW AND DISCUSSION

                                  Legal Sufficiency

       We review questions of statutory interpretation and issues of legal sufficiency
de novo. United States v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014) (statutory
interpretation); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)
(legal sufficiency). The test for legal sufficiency is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In resolving 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. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).




                                          3
WILLIAMS—ARMY 20140401

                                   Indecent Exposure

      “[T]he purpose of criminalizing public indecency ‘is to protect the public
from shocking and embarrassing displays of sexual activities.’” United States v.
Graham, 56 M.J. 266, 269 (C.A.A.F. 2002) (internal citations omitted). The 2006
version of indecent exposure, Article 120(n), UCMJ, consists of the following
elements:

               (a) That the accused exposed his or her genitalia, anus,
                   buttocks, or female areola or nipple;

               (b) That the accused’s exposure was in an indecent
                   manner;

               (c) That the exposure occurred in a place where the
                   conduct involved could reasonably be expected to be
                   viewed by people other than the accused’s family or
                   household; and

               (d) That the exposure was intentional.

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM, 2012],
Punitive Articles Applicable to Sexual Offenses Committed During the Period 1
October 2007 Through 27 June 2012, app. 28, at A28-9. 3 The 2012 version of the


3
    Prior to 1 October 2007, indecent exposure was an Article 134 offense requiring:

           (1) That the accused exposed a certain part of the accused’s
               body to public view in an indecent manner;

           (2) That the exposure was willful and wrongful; and

           (3) That, under the circumstances, the accused’s conduct was
               to the prejudice of good order and discipline in the armed
               forces or was of a nature to bring discredit upon the armed
               forces.

MCM, 2012, Punitive Articles Applicable to Sexual Offenses Committed Prior to 1
October 2007, app. 27, at A27-3. The explanation in the MCM explained that
“willful” meant “an intentional exposure to public view.” Historically, the
government could demonstrate willfulness in one of two ways: (1) the exposure
occurs in a place “so public that it must be presumed it was intended to be seen by

                                                                          (continued . . .)


                                            4
WILLIAMS—ARMY 20140401

statute, Article 120c(c), encompasses the 2006 version of indecent exposure with the
exception of one element. Congress sought to expand the statute and criminalize
“situations in which the exposure is indecent – even if committed in a place where it
would not be reasonably be [sic] expected to be viewed by people other than
members of the actor’s family or household.” MCM, 2012, app. 23, at A23-17.

      The issue presented herein is whether the term “exposed” under Article 120(n),
UCMJ, or Article 120c(c), UCMJ, encompasses showing a person a photograph or
digital image of one’s genitalia. “Exposure” is not specifically defined by Article
120(c), UCMJ, Article 120(n), UCMJ, or under the prior Article 134, UCMJ statute.

        In the absence of a statutory definition, we look to whether the language has a
plain and unambiguous meaning. The plain language of a statute will control unless
it is ambiguous or leads to an absurd result. United States v. Lewis, 65 M.J. 85, 88
(C.A.A.F. 2007).

             Whether a statutory term is unambiguous, however, does
             not turn solely on dictionary definitions of its component
             words. Rather, “[t]he plainness or ambiguity of statutory
             language is determined [not only] by reference to the
             language itself, [but as well by] the specific context in
             which that language is used, and the broader context of the
             statute as a whole.”

United States v. Schloff, 74 M.J. 312, 315 (C.A.A.F. 2015) dissent (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)) (internal citation omitted).

      In this case, using the plain meaning of the term “expose,” we conclude, at
some point appellant exposed his penis to his cell phone camera when the digital
pictures were taken. Later, on four separate occasions, he displayed those digital
images of his penis to various persons, showing them the digital image on his cell
phone as he held the cell phone up to their view. On another occasion, he sent a
digital image of his penis via text message to a different victim. We find as a matter
of law, these displays do not constitute an exposure for the purposes of these statutes
because appellant did not ‘expose’ his actual live genitalia for view by the victims.
To that extent, we agree with defense that a temporal and physical presence aspect


(. . . continued)
others,” or (2) the exposure is accompanied “by some action by which [the accused]
draws attention to his exposed condition.” See Graham, 56 M.J. at 268 (internal
citations omitted). “Drawing attention” can include “motions, signals sounds or
other actions . . . designed to attract attention to his exposed condition . . . .” Id.




                                           5
WILLIAMS—ARMY 20140401

exists regarding this offense: violations occur when a victim is present to view the
actual body parts listed in the statutes, not images or likenesses of the listed parts. 4
Including the display of digital images or photographs of a person’s genitalia within
the term “expose” does not clearly support the underlying purpose of criminalizing
indecent exposure. We also note that there is an added danger and discomfort when
people physically expose in the presence of their victims as opposed to displaying or
sending people a pornographic picture. Therefore, we find the term “exposed” is
ambiguous under both Article 120(n), UCMJ, and Article 120c(c), UCMJ.

       Because the definition of “exposure” in this statute is unclear, we attempt to
ascertain Congress’s intent from traditional sources of statutory construction. See
United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012). Statutory meaning can also
be determined from looking at the broader statutory context. See United States v.
McPherson, 73 M.J. 393, 395-96 (C.A.A.F. 2014); see also United States v.
McGuinness, 35 M.J. 149, 153 (C.M.A. 1992). Additionally, although the rule of
lenity is a rule of last resort, if ambiguity still remains, it must be resolved in favor
of the accused. 5 See United States v. Thomas, 65 M.J. 132, 135-38 (C.A.A.F. 2007)
(emphasis added).

                  2006 Version of Indecent Exposure, Article 120(n)

       The word “expose,” in the context of the common law offense of indecent
exposure, required the exposure to occur in the actual presence of the victim or the
public. 50 AM. JUR. 2d Lewdness, Indecency, and Obscenity § 17 (1995) (citations
omitted). Under a strict common law definition, an exposure committed through
digital technology outside the presence of a victim does not constitute the offense of
indecent exposure. At the time of the enactment of the 2006 version of the statute,
there was confusion regarding the use of modern technology such as cell phones and
computers to commit an indecent exposure. See United States v. Ferguson, 68 M.J.
431, 435 (C.A.A.F. 2010) dissent (noting confusion in the courts on interpreting the
indecent exposure statute in the “internet age.”).



4
 We note that under the dissent’s definition of “to cause visible or open to view”
showing another a magazine centerfold in which genitalia is exposed could
constitute an indecent exposure—that is too broad of a result.
5
  The government has cited no authority nor has this court found any case law
standing for the proposition that displaying a hard copy photograph of one’s self or
even another’s nude body to a victim (re: in times prior to the digital age)
constituted an indecent exposure for purposes of the statutes referenced in this
opinion.




                                            6
WILLIAMS—ARMY 20140401

       In at least one case, our superior court found an indecent exposure could
occur when an exposure is accomplished using ‘communication technology’ and
there is a live display of actual genitalia. Id. at 434-35 (affirming the appellant's
Article 134 conviction for indecent exposure based on his transmission of live
internet webcam images). 6 In Ferguson, the appellant masturbated and ejaculated
live in front of his computer webcam to an on looking police officer posing as a
minor. Id. at 432. The live video exposing his naked body and erect penis while
masturbating were transmitted in real time over the internet through his computer
using an instant messenger program. Id. at 432-33. The three-judge majority in
Ferguson resolved the case on very narrow grounds focusing its rationale on the
“public view” element. Id. at 434-35. Ferguson pleaded guilty to indecent exposure
and did not raise the issue of the providency of his plea to the Court of Criminal
Appeals. Id. at 432. The United States Court of Appeals for the Armed Forces
(CAAF) simply held that there was not a substantial basis in law or fact to question
Ferguson’s guilty plea. 7 Id. at 433-35.

       In the present case, the sole specification of indecent exposure charged under
Article 120(n), UCMJ, involved appellant taking his cell phone, turning the screen
toward a victim, and revealing a digital image of his exposed erect penis. Although
appellant likely used his cell phone to capture a digital image of his erect penis,
there was no live display of actual genitalia as he showed the image to the victim. 8


6
  We recognize that in the guilty plea case of United States v. Hughes, Army
20120075, 2013 CCA LEXIS 610, at *5 (Army Ct. Crim. App. 14 Aug. 2013) (sum.
disp.), a panel of this court affirmed the holding that the appellant’s transmission of
a digital image of his penis over the internet was an indecent exposure. We find this
unpublished opinion neither persuasive nor precedential.
7
  Judge Erdmann found that the law enforcement officer “specifically invited and
consented to the exposure” and concluded that the facts in this case “do not meet the
legal requirements of indecent exposure as defined in the MCM and [the CAAF]”
leaving the requirement of indecent exposure an open question. Ferguson, 68 M.J.
at 438 (J. Erdmann, dissenting).
8
  See United States v. Quick, 74 M.J. 517, 521 (N.M. Ct. Crim. App. 2014), finding
no legal support to apply an expansive reading of Article 120c(a)(1), UCMJ, to
criminalize the viewing of a visual recording of the victim’s private area. In Quick,
a smart phone was used to video record sexual acts committed by the appellant and
two others. Id. at 519. After the sexual encounter, the appellant viewed and
requested the video to be forwarded to him. Id. The appellant was subsequently
charged with and convicted of knowingly and wrongfully viewing an indecent visual
recording in violation of Article 120c(a)(1), UCMJ; See generally United States v.

                                                                       (continued . . .)


                                           7
WILLIAMS—ARMY 20140401

In other words, what was exposed or shown was not the statutorily required body
parts but instead a picture of those body parts. Additionally, unlike Ferguson,
appellant preserved the issue by contesting this charge and specification at trial, and
objecting to the legal sufficiency of the evidence. 9

     In the absence of unambiguous legislative intent or clear precedential legal
support to apply an expansive reading to the plain language of Article 120(n),
UCMJ, we find the evidence legally insufficient to sustain a conviction for indecent
exposure. Under the circumstances, we also find an ambiguity in the Article 120(n),
UCMJ, statute as applied to appellant’s case. In accordance with the rule of lenity,
we resolve this issue in favor of appellant. We therefore dismiss Specification 2 of
Charge I. 10

                 2012 Version of Indecent Exposure, Article 120c(c)

      The legislature is presumed to act “intentionally and purposefully” when it
includes language in one section but omits it in another. United States v. Wilson, 66
M.J. 39, 45-46 (C.A.A.F. 2008). In 2012, Congress substantially revised the Article
120 statute as a whole. See generally, MCM, 2012, app. 23, at A23-15. Under the
same 2012 revision of the Article 120, UCMJ statute, in the closely related offense
of sexual abuse of a child, it is clear that an exposure may be committed using
communication technology. 11 The pertinent part of the offense of sexual abuse of a


(. . . continued)
McDaniel, 39 M.J. 173, 175 (C.M.A. 1994) (noting the appellant’s actual presence
or participation with the victim is a distinction between the offense of indecent acts
with another and voyeurism).
9
 It is arguable whether the cell phone was used as “communication technology”
because appellant showed a digital image on the cell phone, instead of using
“communication technology” on the device to transmit the image. See generally
MCM, 2012, app. 23, at A23-16.
10
  Our holding does not stand for the proposition that appellant’s misconduct does
not constitute a violation of a different Article of the UCMJ. Our view only applies
to the government’s charging decision herein.
11
  The analysis section of the 2012 adoption of Article 120b, UCMJ, 10 U.S.C. §
920b, in the Manual states:

             The new “Sexual Abuse of a Child” offense . . . was
             intended to consolidate [all indecency crimes against

                                                                       (continued . . .)


                                           8
WILLIAMS—ARMY 20140401

child, “lewd act,” is defined as “intentionally exposing one’s genitalia, anus,
buttocks, or female areola or nipple to a child by any means, including via any
communication technology, with an intent to abuse, humiliate, or degrade any
person, or to arouse or gratify the sexual desire of any person.” UCMJ art.
120b(h)(5)(B) (emphasis added). This language that expands what qualifies as an
exposure is notably absent from the revised 2012, Article 120c(c), UCMJ, offense of
indecent exposure. Congress’ distinction between the offenses is clear when the
victim is a child. Congress has indicated a strong societal interest in protecting
children from pornographic images thrust upon them by predatory adults via the
internet. Thus, Congress expanded the definition of exposure as it relates to
children—eliminating the requirement for the actual display of live genitalia. That
heightened societal interest, however, does not extend to adults.

      “[W]hen ‘Congress includes particular language in one section of a statute but
omits it in another’—let alone a closely related offense—we ‘presume’ that
Congress intended a difference in meaning.” Loughrin v. United States, 134 S. Ct.
2384, 2390 (2014) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
Accordingly, because Congress included offenses committed via “any
communication technology” in sexual abuse of a child, but not in the offense of
indecent exposure, and both sections of the statute were revised at the same time, we
can only conclude that Congress specifically intended this distinction. 12


(. . . continued)
               children] by expanding the definition of “lewd act” to
               include . . . indecent exposure to a child. . . . [It] now
               include[s] offenses committed via any communication
               technology to encompass offenses committed via the
               internet (such as exposing oneself to a child by using a
               webcam), cell phones, and other modern forms of
               communication. This change expands the pre-2012
               definition of “indecent liberty” which proscribed conduct
               only if committed in the physical presence of a child.

MCM, 2012, app. 23 at A23-16 (emphasis added).
12
  Our superior court also mentioned this distinction when comparing the offense of
sexual abuse of a child, Article 120(b)(h)(5), UCMJ, and the 2006 version of
indecent exposure, Article 120(n), UCMJ stating:

             Indecent exposure is more general than sexual abuse of a
             child: it protects both child and adult victims. And while
             the conduct of a sexual abuse of a child offense may be

                                                                        (continued . . .)


                                           9
WILLIAMS—ARMY 20140401

       After considering the statute as a whole, we conclude Congress did not intend
to criminalize an “exposure” through communication technology under Article
120c(c), UCMJ. 13 Further, we note that Article 120c, UCMJ, is not silent on the
issue of photographing private areas or electronically transmitting images. Congress
used clear and unambiguous language to expressly proscribe the making and
distributing of indecent visual recordings. See UCMJ art. 120c(a)(2); see also
UCMJ art. 120c(c)(5).

       Because we find appellant’s convictions in violation of Article 120c(c),
UCMJ, do not comport with Congressional intent or case law, we find the evidence
legally insufficient. Accordingly, we dismiss Specifications 1-4 of Charge II.

                                    Reassessment

      In determining whether we can reassess the sentence, we apply several non-
exhaustive factors:

             (1) Dramatic changes in the penalty landscape and
             exposure.

             (2) Whether an appellant chose sentencing by members or
             a military judge alone. As a matter of logic, judges of the
             courts of criminal appeals are more likely to be certain of
             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting
             conduct or conduct unbecoming.

(. . . continued)
               committed using a form of communications technology, it
               is not so clear whether that is permissible for the offense
               of indecent exposure, which requires that the accused’s
               exposure occurred “in a place where the conduct involved
               could reasonably be expected to be viewed by people other
               than the accused’s family or household.”

United States v. Busch, 75 M.J __, at *5 (C.A.A.F. 29 Jan. 2016) (J. Stucky,
dissenting)
13
  Additionally, as previously stated, the Ferguson case is distinguishable because it
involved an Article 134, UCMJ offense of indecent exposure and not an Article
120c(c), UCMJ or Article 120(n), UCMJ offense. Ferguson was also a guilty plea
that focused on the “public view” element.




                                          10
WILLIAMS—ARMY 20140401

             (3) Whether the nature of the remaining offenses capture
             the gravamen of criminal conduct included within the
             original offenses and, in related manner, whether
             significant or aggravating circumstances addressed at the
             court-martial remain admissible and relevant to the
             remaining offenses.

             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations
omitted).

       First, appellant faced a maximum punishment of a dishonorable discharge,
fifteen years and six months confinement, total forfeiture of pay and allowances, and
reduction to E-1 prior to the reversal of his convictions for indecent exposure.
Appellant still faces a maximum punishment of a dishonorable discharge, eleven
years and six months confinement, total forfeiture of pay and allowances, and
reduction to E-1. This does not constitute a dramatic change in the penalty
landscape. Second, appellant was sentenced by a panel. Third, appellant’s criminal
conduct remains significant: he is convicted of one specification of wrongful sexual
contact; two specifications of indecent exposure; one specification of abusive sexual
contact; and one specification of indecent language. Additionally, appellant remains
convicted of a specification of abusive sexual contact, which carries the greatest
maximum possible confinement of seven years. Fourth, we have familiarity and
experience with the remaining offenses to reliably determine what sentence would
have been imposed at trial. After weighing these factors, we are confident that we
can reassess the sentence in this case.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty of Specification 2
of Charge I and Specifications 1-4 of Charge II are set aside and dismissed. The
remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Winckelmann, 73 M.J. at 15-16, we affirm
only so much of the sentence as provides for a bad-conduct discharge, confinement
for six months and fifteen days, forfeiture of all pay and allowances, and a reduction
to the grade of E-1. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of his sentence set aside by this decision, are
ordered restored. See UCMJ arts. 58b(c) and 75(a).



                                          11
WILLIAMS—ARMY 20140401

      Judge CELTNIEKS concurs.

TOZZI, Senior Judge, dissenting:

      I respectfully dissent from the ruling of the majority dismissing Specification
2 of Charge I and Specifications 1-4 of Charge II.

       In my view, the definition of expose in Article 120(n), UCMJ, and Article
120c(c), UCMJ, is unambiguous, and appellant’s convictions for indecent exposure
in Specification 2 of Charge I and Specifications 1-4 of Charge II should be affirmed
on that basis. Additionally, the evidence in this case is legally sufficient to support
appellant’s conviction. The reasoning of the majority in dismissing these
specifications evinces an erroneous interpretation of the plain meaning of the term
“expose,” a flawed statutory construction analysis, and a failure to apply the
applicable case law of this court as well as our superior court.

       Appellant exposed his genitalia to unsuspecting victims in each of the
specifications at issue either by showing them a digital image of his erect penis on
his cell phone while in their presence, or in one specification by transmitting a text
message with a digital image of his erect penis. Appellant exposed his genitalia to
each victim at the time he displayed or sent them a digital image of his penis, not, as
the majority would have it, when the pictures of appellant’s penis were initially
taken.

       This case turns largely on the definition of “expose” in Article 120(n), UCMJ
and Article 120c(c), UCMJ. Congress did not define the term “expose” in either
version of Article 120, UCMJ. When Congress has not supplied a definition, we
generally give a statutory term its ordinary meaning. Yates v. United States, 135
S.Ct. 1074, 1091 (2015) (Kagan, J., dissenting) (internal citations omitted). The
ordinary meaning of expose in Merriam-Webster, in pertinent part, reads “to make
known: bring to light . . . to cause to be visible or open to view . . . to exhibit for
public veneration . . . to reveal the face of (a playing card) or the cards of (a player’s
hand) . . . to engage in indecent exposure (of oneself).” Merriam-Webster,
http://www.merriam-webster.com/dictionary/expose (last visited Mar. 9, 2016). We
must view this definition in the context of the facts of our case, and determine if the
statutory language has a plain and unambiguous meaning with regard to the dispute
at hand. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). If the statutory
language is unambiguous our inquiry ends. Id. To determine if a statutory term is
unambiguous we reference the language itself as well as “…the specific context in
which that language is used, and the broader context of the statute as a whole.”
Yates, 135 S.Ct. at 1082 (internal citation omitted).




                                           12
WILLIAMS—ARMY 20140401

       Neither the dictionary definition of the word expose nor Article 120, UCMJ,
contain limiting or qualifying words that would require a particular means of
exposure. See generally United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F. 2015).
We also note that the term expose is used several times in the MCM consistent with
its ordinary dictionary meaning. 14 See UCMJ art. 127c(2); see UCMJ art. 108c.(2);
see MCM, 2012, Punitive Articles Applicable to Sexual Offenses Committed During
the Period 1 October 2007 Through 27 June 2012, app. 28, at A28-3. Had Congress
intended to limit the term exposure to any particular means they would have done so.
In addition, this court held that an appellant’s transmission of a digital image of his
penis over the internet was an exposure within the plain and ordinary meaning of the
term expose, relying primarily upon a majority view held by state courts on this
issue. United States v. Hughes, Army 20120075, 2013 CCA LEXIS 610 at *5 (Army
Ct. Crim. App. 14 Aug. 2013) (sum. disp.) (citing State v. Bouse, 150 S.W. 3d 326,
329-35 (Mo. App. 2004)). Our superior court similarly affirmed an indecent
exposure conviction of an appellant who transmitted images of his erect penis over
the internet. United States v. Ferguson, 68 M.J. 431, 434-35 (C.A.A.F. 2010).
Because I find no ambiguity in the plain and ordinary meaning of the term “expose,”
I find no basis to ascertain Congress’s intent from applying the canons of statutory
construction.

       Assuming arguendo that “expose” is ambiguous in the context of indecent
exposure under Article 120(n) and Article 120c(c), UCMJ, the absence of further
guidance from Congress on this issue is instructive. The majority places great
weight on the fact that in the most recent revision of Article 120, UCMJ Congress
added language to the definition of lewd act with a child to include “intentionally
exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any
means, including via any communications technology, with an intent to abuse,
humiliate, or degrade any person, or to arouse or gratify the sexual desire of any
person.” MCM, 2012, pt. IV, ¶ 45b.a.(h)(5)(B). This language is not dispositive in
the context of indecent exposure for several reasons. First, this language must be
read in the context of Congress’ desire to reach illicit activity with children, who are
becoming more proficient with communications technology at early ages. Secondly,
at the same time Congress was revising the definition of lewd act with a child as
delineated above, it revised the elements of indecent exposure, creating the current
Article 120c(c), UCMJ. The simultaneous revision of these two provisions, coupled
with the absence of similar language in Article 120c(c), UCMJ, and the absence of
the promulgation of a definition of “exposed” or “exposure” indicates an



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   For example, in the offense of extortion, the word “expose” is used consistent with
the following Merriam-Webster dictionary definitions: “to make known: bring to
light” or “to cause to be visible or open to view.” UCMJ art. 127c.(2).




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unwillingness on the part of Congress to disrupt the state of the law. In short,
Congress chose not to act, and this court should respect its prerogative.

       In addition, the common law definition of “expose” required physical
presence. See 50 AM. JUR. 2d Lewdness, Indecency, and Obscenity § 17 (1995)
(citations omitted). Although Ferguson supports the proposition that physical
presence is not required, appellant was physically present when he displayed the
digital image of his erect penis on his cell phone to four of the victims. See
Ferguson, 68 M.J. at 434-35; see also Hughes, 2013 CCA LEXIS 610, at *5
(interpreting Ferguson and stating: “An indecent exposure can occur when the
exposure is accomplished electronically and not by physical presence.”). Thus, four
of the five specifications here meet the common law definition of expose.

       Finally, this case involves appellant exposing his erect penis to four victims
by showing them a picture of his penis on his cell phone while physically in their
presence, and by transmitting an image of his erect penis to another victim by text
message attachment. It does not involve artistic depictions of genitalia, a magazine
centerfold depicting genitalia, or anything else of the kind. The facts are not
complex, the definition of expose is unambiguous, the intent of Congress is clear,
the case law of this court is persuasive, and the precedent of our superior court is
controlling. I would affirm the findings and sentence as adjudged.

                                        FOR THE COURT:




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




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