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

                           UNITED STATES, Appellee
                                        v.
                         Sergeant JEFFREY M. HUGHES
                          United States Army, Appellant

                                   ARMY 20120075

            Headquarters, United States Army Aberdeen Proving Ground
                           Denise Lind, Military Judge
           Lieutenant Colonel Joseph M. Masterson, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on
brief); Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain Kristin
McGrory, JA (on brief in response to specified issue).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief); Lieutenant
Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, JA; Captain Daniel H.
Karna, JA (on brief in response to specified issue).


                                    14 August 2013

                               ---------------------------------
                                SUMMARY DISPOSITION
                               ---------------------------------

GALLAGHER, Judge:

       A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of violation of a lawful general regulation, false official
statement, and indecent exposure, in violation of Articles 92, 107, and 120, Uniform
Code of Military Justice, 10 U.S.C. §§ 892, 907, and 920 (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for three months, and reduction to the grade of Private E1. The
convening authority approved the adjudged sentence, deferred automatic forfeitures
until action, and waived automatic forfeitures from the date of action until
appellant’s release from confinement.


  Judge GALLAGHER took final action on this case prior to her permanent change
of station.
HUGHES — ARMY 20120075

       This case is before the court for review under Article 66, UCMJ. After the
parties filed their initial briefs, this court specifi ed the following issue pertaining to
appellant’s conviction for indecent exposure:

              DOES APPELLANT’S CONDUCT OF
              PHOTOGRAPHING HIS PENIS WHILE PHYSICALLY
              LOCATED IN HIS HOUSE AND SENDING THE
              DIGITAL IMAGE TO THE CELL PHONE OF A
              TRAINEE LIVING IN THE TRAINEE BARRACKS
              CONSTITUTE A VIOLATION OF ARTICLE 120, UCMJ,
              INDECENT EXPOSURE, UNDER THE FACTS AND
              CIRCUMSTANCES OF THIS CASE? CF. UNITED
              STATES V. FERGUSON, 68 M.J. 431 (C.A.A.F 2010).

      For the reasons set forth below, we find that there is not a substantial basis in
law or fact to question appellant’s plea of guilty to indecent exposure.

                                    BACKGROUND

       Appellant, who was an Advanced Individual Training (AIT) instructor at
Aberdeen Proving Grounds, Maryland, initiated a n unofficial and prohibited
personal relationship with Private (PV2) JW. During this time, PV2 JW was a
trainee living in the barracks. After appellant gave his phone number to PV2 JW,
the two began to communicate via personal text message s. The very next day, and
without invitation, appellant sent a digital image of his penis via text message to
PV2 JW’s cellular telephone. Appellant took the digital picture of his penis while
he was located inside his home. This unrequested transmission, the basis for the
indecent exposure charge, depicts appellant’s naked erect penis placed alongside a
television remote control.

       The government charged appellant with indecent exposure in violation of
Article 120, UCMJ. Appellant stipulated that he “sent a picture of his peni s to PV2
[JW] via text message.” During the providence inquiry, appellant explained that he
sent the picture of his penis in an effort to try to “take [their] friendship to a sexual
nature.”

       The military judge explained that the exposure must have occurred “at a place
where the conduct involved could reasonably be ex pected to be viewed by people
other than members of your family or household, to wit: [PV2 JW], by a digital
image sent to her cellular telephone.” Appellant admitted that he intended and
wanted PV2 JW to see his exposed penis. In addition, appellant admitted that by
sending the picture of his penis directly to PV2 JW’s mobile phone, it was
reasonable to expect that PV2 JW would see the image. Furthermore, the appellant
even admitted it was reasonably foreseeable others would view his exposure.



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HUGHES — ARMY 20120075

                              LAW AND DISCUSSION

       We review a military judge’s acceptance of a guilty plea for an abuse of
discretion. United States v. Caldwell, 72 M.J. 137, 140 (C.A.A.F. 2013). Questions
of law arising from a guilty plea are reviewed de novo. United States v. Ferguson,
68 M.J. 431, 433–34 (C.A.A.F. 2010). A military judge’s acceptance of a guilty
plea will not be overturned unless the record of trial shows a substantial basis in law
and fact for questioning the plea. United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008). In a guilty plea case, “The factual predicate is sufficiently
established if ‘the factual circumstances as revealed by the accused himself
objectively support that plea.’” Ferguson, 68 M.J. at 434 (quoting United States v.
Davenport, 9 M.J. 364, 367 (C.M.A. 1980)). We will not overturn a military judge’s
acceptance of a guilty plea based on a mere possibility of a defense. Id. (quotations
and citations omitted). Nor will we “speculate post-trial as to the existence of facts
which might invalidate an appellant’s guilty pleas.” Id. (quoting United States v.
Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995) (internal quotations omitted).

       An indecent exposure can occur when the exposure is accomplished
electronically and not by physical presence. Ferguson, 68 M.J. at 434-35 (affirming
appellant’s Article 134 conviction for indecent exposure based on his transmission
of live internet webcam images). See also State v. Bouse, 150 S.W.3d 326, 329-35
(Mo.App.2004) (applying the broad dictionary definition of “expose”, the court held
that exposure can occur in various manners , including photographs sent via the
internet, and noted that the legislature could have qualified the definition by
requiring the exposure to be in the victim’s physical presence or be by a particular
means or mode, but chose not to do so). See also Brooker v. Commonwealth, 41
Va.App. 609, 616-17, 587 S.E.2d 732, 736 (2003) (affirming an indecent exposure
conviction based on genital exposure via web camera during an instant message
internet conversation).

      At the time of appellant’s conduct, the elements of indecent exposure were:

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

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

             (3) 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

             (4) That the exposure was intentional.



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HUGHES — ARMY 20120075

Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶ 45.b.(14).

      The military judge adequately listed and explained the se elements of indecent
exposure to appellant. Subsequently, appellant admitted facts sufficient to support
each element of the offense.

       Appellant freely and voluntarily admitted that PV2 JW was not a member of
appellant’s family or household and that he intentionally sent a digital image of his
naked erect penis to her cell phone in order to “excite lust” and “take [their]
friendship to a sexual nature.” Additionally, he admitted that PV2 JW’s cell phone
was a place where PV2 JW could reasonably be expected to view the image of his
naked penis and that the exposure of his penis over the cell phone was intentional
and indecent.

       Appellant chose to plead guilty to the offense of indecent exposure, and he
did so providently, admitting that his conduct constituted an exposure that was
indecent in violation of the charged statute. The record does not disclose any matter
inconsistent with appellant’s plea of guilt. We therefore find the military judge did
not abuse her discretion in accepting appellant’s guilty plea.

                                   CONCLUSION

       On consideration of the entire record, including thos e matters raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and the
parties’ briefs, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge HAIGHT concur.


                                        FOR THE COURT:




                                        ANTHONY        O. POTTINGER
                                        ANTHONY O. POTTINGER
                                        Chief Deputy Clerk
                                        Chief Deputy Clerk of Court
                                                                 of Court




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