U.S. v. Mays, 83 M.J. 277

Core Criminal Law Subjects: Crimes: Article 120c - Other Sexual Misconduct Offenses on/after 1 Jan 2019 › (a) Indecent Viewing, Visual Recording, or Broadcasting

1. in this case, the evidence was legally sufficient to find appellant guilty of attempted indecent viewing where he attempted to view visual images of a person’s private area by holding his cell phone over a shower stall in which that person was showering; an attempted viewing of an object can be accomplished not only by attempting to view the object itself but also by attempting to view a contemporaneously produced visual image of the object; accordingly, an attempted viewing of a person’s private area through the medium of a cell phone is enough to violate Article 120c(a)(1), UCMJ, as appellant did in this case; not only is the meaning of the term “viewing” in Article 120c(a)(1), UCMJ, broad enough to cover viewing the private area, it is broad enough to cover viewing a contemporaneously produced visual image of the private area of a person; and the rule of lenity is inapplicable where there is no substantial ambiguity about whether an accused can violate Article 120c(a)(1), UCMJ, by viewing a contemporaneously produced visual image of the private area of a person

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. questions about the meaning of statutes, including the meaning of the UCMJ’s punitive articles, are questions of law that an appellate court reviews de novo
2. an appellate court reviews de novo the legal sufficiency of the evidence to support a finding that an accused is guilty of an offense, and the evidence is legally sufficient if any rational factfinder could have found all essential elements of the offense beyond a reasonable doubt; and in determining whether the evidence is legally sufficient, the court must draw every reasonable inference from the evidence of record in favor of the prosecution
3. the rule of lenity generally holds that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; the rule, however, applies only in cases of significant ambiguity; because most statutes are ambiguous to some degree, the simple existence of some statutory ambiguity is not sufficient to warrant application of the rule; to invoke the rule, an appellate court must conclude that there is a grievous ambiguity or uncertainty in the statute

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. questions about the meaning of statutes, including the meaning of the UCMJ’s punitive articles, are questions of law that an appellate court reviews de novo
2. the rule of lenity generally holds that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; the rule, however, applies only in cases of significant ambiguity; because most statutes are ambiguous to some degree, the simple existence of some statutory ambiguity is not sufficient to warrant application of the rule; to invoke the rule, an appellate court must conclude that there is a grievous ambiguity or uncertainty in the statute