              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
               J.A. FISCHER, R.Q. WARD, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                         NICOLAS VEGA JR.
               STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201300277
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 8 March 2013.
Military Judge: LtCol Elizabeth Harvey, USMC.
Convening Authority: Commanding General, 3d MAW, San Diego,
CA.
Staff Judge Advocate's Recommendation: Col K.C. Harris,
USMC.
For Appellant: LT Jennifer Myers, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT Lindsay
Geiselman, JAGC, USN.

                           31 December 2014

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

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, contrary to his pleas, of one
specification of committing an indecent act and one
specification of extortion, in violation of Articles 120 and127,
Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 927. The
military judge sentenced the appellant to confinement for

Senior Judge Ward participated in the decision of this case prior to
commencing terminal leave.
two years, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority approved the sentence as
adjudged.
      On appeal, the appellant asserts four assignments of error:
(1) the evidence is factually and legally insufficient to
sustain his convictions; (2) the military judge erred by
excluding evidence under MILITARY RULE EVIDENCE 412, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.); (3) the military judge erred by
excluding evidence of a text message that the appellant sent to
the victim; and, (4) the military judge erred by failing to
exclude evidence that had not been disclosed to the defense
prior to trial. 1
     After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
                           Factual Background
     The charges against the appellant stem from a sexual
encounter with AMT on 3 May 2012. The two began dating in
December of 2009 and their relationship became sexual soon
thereafter. Although the couple broke up several months later,
they continued to see each other on occasion and engage in
consensual sexual activity. This continued until several months
before AMT gave birth to the appellant’s daughter, KT, in
December 2010. While they dated, the two occasionally exchanged
sexually explicit photos and texts via their cell phones.
     After they broke up, both the appellant and AMT began
dating other people, though they did contact each other
regarding their daughter, KT. Although initially amicable, the
relationship soured over KT’s custody, visitation, and child
support.
     After the appellant repeatedly tried to convince AMT to
lower his child support, the two eventually discussed a
stipulation in which the appellant would forfeit any visitation
rights in exchange for AMT waiving his child support obligation.
After each consulted with a lawyer, they agreed to meet in order
for him to sign the stipulation.

1
  The appellant’s fourth assignment of error is raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have reviewed assignments
of error (2) – (4) and find no merit. United States v. Clifton, 35 M.J. 79
(C.M.A. 1992).
                                     2
     On 3 May 2012, the appellant picked AMT up a block from her
residence and drove her on base where he had rented a room.
Although she willingly accompanied him in his car, she had no
idea where he was taking her. Once in the room, AMT alleged
that the appellant sexually assaulted her on the bed, and with
his iPhone took multiple photographs and a video of her during
and immediately after the sexual assault. 2
     At trial, AMT testified to the following regarding the
appellant taking the photos and video with his iPhone:
        Q: Okay. And what did you do at that point?
        A: At that point, I tried to, like, wiggle out of his
        grasp and that’s where I first remember seeing the
        phone. He pulled the phone out from, like, under a
        pillow or something. . . . That’s when I first saw the
        phone and I remember him pulling it out from under a
        pillow.

        Q: What happened when he pulled the phone out?
        A: That’s when he tried – he pointed it at me, and I
        figured he was taking pictures and I kept trying to
        get away and pull away.

        Q: Did you want him to take pictures of you?
        A: No, I didn’t.

        Q: Did you tell him?
        A: Yeah. I kept telling him. 3
        . . . .

        Q: . . . [Y]ou were walking to the [appellant]?
        A: Yes, I was walking over to him. I knew that he was
        pointing the camera at me, so I figured that he was
        taking pictures and stuff, so I was trying to hit it
        out of his hands because I didn’t want pictures or
        anything being taken. 4

     After the sexual encounter, AMT testified that using her
cell phone she took a video of the appellant, and explained as
follows:

2
  Id. at 357. The military judge found the appellant not guilty of rape,
forcible sodomy, aggravated sexual assault, and kidnapping. Id. at 1316.
3
    Id. at 352.
4
    Id. at 364.


                                     3
        Q: What were you talking about at that point?
        A: At that point, it was – he needed to take pictures.
        I kept asking, why? He said he needed to take pictures
        and videos to kind of cover his ass to make sure I
        didn’t file for child support after the stipulation
        was signed. And so I felt that, to me that was kind
        of like extorting me, so I wanted to take a video,
        like, getting him to say that. 5

     AMT then described how the appellant continued to discuss
the photographs in his car as he drove her home:

        Q: So what’s the discussion in the car going home?
        A: For a while, it was him telling me that no one
        would be able to find the pictures and stuff because
        he had an email no one had a password to. If I just
        didn’t say anything then no – like if I didn’t file
        for child support, no one would find out and stuff. .
        . .6

        . . . .

        Q: Okay. Now, we had previously spoken about on the
        way home and the conversation leading up to, you
        testified that the [appellant] had told you that as
        long as you didn’t [inaudible] child support that he
        would not what?
        A: Show anybody the pictures that he had taken.

        Q: Okay. So what did that mean to you?
        A: That meant, like, showing my boyfriend . . . [and]
        seeing the pictures online or anything. 7

                     Legal and Factual Sufficiency
     The appellant contends that his convictions for committing
an indecent act and extortion are legally and factually
insufficient. For the indecent act offense, he argues that he
had a reasonable mistake of fact defense based on the couple’s
prior relationship, and furthermore AMT had no reasonable

5
    Id. at 364-65.
6
    Id. at 372.
7
    Id. at 378.


                                   4
expectation of privacy where she knew the appellant had a
camera. Appellant’s Brief of 22 Jan 2014 at 16. For the
extortion offense, he points to AMT’s lack of credibility and
motive to fabricate. Id. at 24-25. We disagree.
     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987); United States v. Reed, 51 M.J. 559,
561-62 (N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F.
2000); see also Art. 66(c), UCMJ. The test for factual
sufficiency is whether, after weighing all the evidence in the
record of trial and recognizing that we did not see or hear the
witnesses, this court is convinced of the appellant's guilt
beyond a reasonable doubt. Turner, 25 M.J. at 325; see also
Art. 66(c), UCMJ. Proof beyond a reasonable doubt does not mean
that the evidence must be free of conflict. United States. v.
Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App. 2001) (citation and
quotation marks omitted).
1. Indecent Act
     It is clear from the record that the appellant took
photographs of AMT’s genitalia, buttocks, and breasts.
Therefore we focus on whether the appellant had a reasonable
mistake of fact as to her consent, and whether AMT held a
reasonable expectation of privacy.
        a. Mistake of fact as to consent
     While they were dating AMT sent the appellant nude
photographs of herself. 8 However, their relationship ended long
before their meeting on 3 May 2012, and both were in ostensibly
monogamous relationships. 9 When the appellant contacted AMT
about meeting, AMT was initially reluctant unless the appellant
was willing to sign the stipulation memorializing their
agreement. Although AMT admitted she was somewhat flirtatious
at first, she repeatedly asked the appellant whether he would
sign the stipulation and further reminded him that “[they]
aren’t going to do anything. . .” Prosecution Exhibit 15 at 2.
Once she mentioned her boyfriend would be present if they met,

8
    Id. at 331.
9
  Although the appellant told investigators that the two on occasion engaged
in sexual intercourse after they broke up, AMT only acknowledged one sexual
encounter after they broke up and that occurred in March 2012. Id. at 332.


                                      5
the appellant told her to “[f]orget it”; however, he later
agreed to sign the stipulation only if she met him alone. Id.
at 7-8.
        In the relevant photos AMT is unclothed and her
genitalia, buttocks, and breasts are visible. She is either not
facing the camera or covering her face. 10 In the video at issue
AMT can be seen trying to hit the appellant’s phone out of his
hand. 11 Nothing in these images indicates that AMT is consenting
to being photographed or recorded. Moreover, AMT testified that
she did not want the photos taken, that she told the appellant
to stop, that she tried to avoid him taking the photos, and that
she attempted to hit his cell phone out of his hand.
     We are not persuaded by the appellant’s argument that his
prior relationship with AMT, to include their exchanging
sexually provocative images while they were dating, gave rise to
his reasonable mistake of fact. AMT testified that she did not
send any more photos of herself to the appellant after they
broke up in 2011, except for a single image she texted him in
early 2012 of her in lingerie. The appellant points to his
partial acquittal as evidence of AMT’s consent to sexual
activity and by extension to pictures thereof, or at least his
reasonable mistake of fact. But any subjective belief on his
part is undermined by the fact that he kept his iPhone under a
pillow until the opportunity arose for a revealing photo. Then,
despite AMT’s efforts to shield her face, the appellant
continued to take more pictures. We are convinced beyond a
reasonable doubt that any mistaken belief that AMT consented was
unreasonable under these circumstances. 12
         b. Reasonable Expectation of Privacy
     Military courts have only recently discussed reasonable
expectation of privacy with regards to Article 120(k). 13 In
United States v. Raines, No. 201400027, 2014 CCA LEXIS 600,
unpublished op. (N.M.Ct.Crim.App. 21 Aug 2014), we recently
addressed whether one who consents to sexual activity implicitly

10
     PE 5(b) and 5(c).
11
     PE 5(d).
12
     MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶45(t)(15).
13
  Although not expressly defined in the 2008 Manual, the 2012 Manual defines
“reasonable expectation of privacy” as “[c]ircumstances in which a reasonable
person would believe that he or she could disrobe in privacy, without being
concerned that an image of a private area of the person was being captured .
. . .” MCM, Pt. IV, ¶45c.(c)(3).
                                            6
consents to the recording of that activity. In Raines the
appellant surreptitiously recorded consensual sex acts with
multiple female partners. We found that the victims had a
reasonable expectation of privacy in their naked bodies despite
their consent to the sexual activity.
     The facts at bar are somewhat analogous to Raines. Here
the appellant did not make AMT aware of his intent until he
reached under a pillow, retrieved his iPhone, and attempted to
photograph her despite her verbal and physical efforts to stop
him from doing so. Simply because she provided him with a
sexually explicit image(s) of herself in the past while the two
were dating does not divest her of any future expectation of
privacy from similarly revealing images. Under these
circumstances, we find that these images were taken contrary to
AMT’s reasonable expectation of privacy.
2. Extortion
     Article 127 prohibits the communication of threats to
another person “with the intention thereby to obtain anything of
value or any acquittance, advantage, or immunity[.]” It is
sufficient if there is some “value” or “advantage” to the thing
sought as the terms are broad concepts and are not limited to
pecuniary or material gain. United States v. McCollum, 13 M.J.
127, 129-30 (C.M.A.1982); see also United States v. Brown, 67
M.J. 147, 149 (C.A.A.F. 2009) (holding that a threat to release
a sexually explicit videotape of the victim in order to obtain
continued sexual relations constituted an advantage for purpose
of extortion).
     AMT testified that the appellant threatened to release
these photographs to her boyfriend and others if she later
sought to enforce his child support obligation. 14 During his
interrogation, the appellant explained to investigators that his
lawyer counseled against signing the stipulation because nothing
would legally prevent AMT from later seeking child support. 15
That their relationship was strained over the subject of custody
and child support is not in dispute, nor was the appellant’s
desire to relieve the financial strain of his child support
obligation. 16 It was, as he told investigators ultimately “a
child custody thing. We both don’t trust each other. She tried
to hide her hooking up from her boyfriend. But like I told her,

14
     Record at 364, 372, 378.
15
     PE 18; Appellate Exhibit XXXIX at 7, 27.
16
     AE XXXIX at 11-14, 27, 32.
                                         7
I told her numerous times: I record shit . . . .” Appellate
Exhibit XXXI at 24. We find that the appellant’s actions in
threatening to release these images if AMT sought child support
payments sufficient to constitute an “advantage” within the
meaning of Article 127, UCMJ.
     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact finder
could have found all the essential elements of the offenses
beyond a reasonable doubt. Furthermore, after weighing all the
evidence in the record and having made allowances for not having
personally viewed the witnesses, we are convinced beyond a
reasonable doubt of the appellant's guilt.
                           Conclusion

     We affirm the findings and the sentence as approved by the
convening authority.
                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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