United States v. Sergeant VICTOR F. MORALES

MORALES - ARMY 20230236 clothed women outside of a Department of Defense (DoD) elementary school was subject to criminal sanction under Article 134, Uniform Code of Military Justice 10 U.S.C. § 934 (2019) [UCMJ]. We agree.

BACKGROUND Contrary to his pleas, an enlisted panel at a general court-martial convicted appellant of two specifications of possession of child pornography and one specification of indecent conduct, in violation of Article 134, UCMJ. On 29 April 2023, the military judge sentenced appellant to a dishonorable discharge, confinement for nine years, and reduction to the grade of E-1.

The issue before us concerns Specification 4 of The Charge, 2 which alleges appellant committed indecent conduct, "to wit: taking photographs of multiple women without their knowledge emphasizing their buttocks while outside Bowley Elementary School, a DoD school, and that said conduct was of a nature to bring discredit upon the armed forces." Prior to trial, appellant's defense counsel filed a motion only alleging the above cited specification failed to state an offense. The substance of their argument was that appellant's conduct could never meet the legal definition of "indecent" and the charge should be dismissed. The military judge denied their motion. Defense counsel, however, did not assert appellant lacked fair notice his conduct was criminal.

At trial, the government admitted over 100 images from appellant's cellphone of women, mostly mothers, outside an on-post elementary school, with the focus of the photo on the clothed buttocks of the women. Mrs. took the stand and identified herself and other people in the photos. She also testified to the procedures for student pickup at the school and that she regularly saw appellant in the student pickup area with his phone out, occasionally in uniform. Finally, Mrs. testified she used to feel safe on post, but after she found out appellant took photos of her buttocks at the elementary school, she no longer felt safe.

LAW AND DISCUSSION "When not objected to at trial, defects in an indictment are reviewed for plain error." United States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013) (citing United States v. Cotton, 535 U.S. 625, 631 (2002)). Like our superior court's determination in Warner, we find this court must use a plain error standard of review when considering appellant's fair notice argument, as he forfeited this issue at trial. Id. Although this Specification was renumbered during the trial, we refer to it by its original number as preferred and referred.