United States v. Lopez ( 2019 )

United States Navy-Marine Corps
Court of Criminal Appeals
_________________________
UNITED STATES
Appellee
v.
Randy A. LOPEZ
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
_________________________
No. 201700252
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Decided: 31 January 2019.
_________________________
Military Judge: Major Michael D. Libretto, USMC.
Approved Sentence: Reduction to E-1, confinement for 3 years, 1 and a
dishonorable discharge. Sentence adjudged 23 March 2017 by a
general court-martial convened at Parris Island, South Carolina,
consisting of a military judge sitting alone.
For Appellant: Commander Suzanne M. Lachelier, JAGC, USN.
For Appellee: Captain Lucas R. Huisenga, USMC.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
1 The Convening Authority suspended all confinement in excess of 18 months
pursuant to a pretrial agreement.
United States v. Lopez, No. 201700252
Before WOODARD, FULTON, and HITESMAN,
Appellate Military Judges.
FULTON, Senior Judge:
A general court-martial convicted Staff Sergeant Lopez, in accordance
with his pleas, of one charge and specification of sexual abuse of a child by
committing a lewd act, and one charge and specification of committing inde-
cent conduct—violations of Articles 120b(c) and 134, Uniform Code of Mili-
tary Justice (UCMJ). 2
In his sole assignment of error, the appellant alleges the military judge
abused his discretion by accepting the appellant’s guilty plea to Charge I and
its sole specification (sexual abuse of a child by committing a lewd act). The
appellant argues that his conviction is legally insufficient because the victim
was not aware of his conduct. We conclude otherwise.
I. BACKGROUND
Twice in the middle of the night, the appellant took off all of his clothes
and went into his 10-year-old adopted daughter’s room and masturbated
while she slept. The appellant’s daughter, JL, did not wake up and was una-
ware of the appellant’s conduct. On a third occasion, 28 October 2016, SL—
the appellant’s wife and JL’s mother—noticed the lights were on in JL’s
room. SL’s entered her daughter’s room to find the appellant naked, standing
near JL’s bed, about to masturbate. SL immediately called 9-1-1 and the ap-
pellant was apprehended.
The appellant was initially charged with two specifications of sexual
abuse of a child under Article 120b(c), UCMJ, for exposing his penis to JL
while she was sleeping (Charge I), and one specification of indecent conduct
under Article 134, UCMJ, for masturbating on divers occasions in JL’s pres-
ence while she slept (Charge II).
After securing a pretrial agreement, the appellant pleaded guilty to one
specification of sexual abuse of a child under Charge I and to the sole specifi-
cation of indecent conduct under Charge II. The specification to which the
appellant pleaded guilty under Charge I alleges that the appellant intention-
ally exposed his genitalia to JL, with an intent to arouse and gratify the sex-
ual desire of the said Staff Sergeant Lopez.
During the inquiry into his guilty plea, the military judge explained to the
appellant that this offense consisted of two elements:
2 10 U.S.C. §§ 920b, 934 (2016).
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United States v. Lopez, No. 201700252
(1) That the appellant intentionally exposed his genitalia to
a child by any means; and
(2) That the appellant did so with an intent to gratify his
sexual desires. 3
During the providence inquiry, the appellant explained to the military
judge that he was guilty of this offense because he intentionally exposed his
penis to JL on 28 October 2016 when he went into her room to masturbate.
When the military judge asked the appellant why he intended to expose his
genitalia to her, the appellant stated that he did so in order gratify his own
sexual desire. The appellant also stated that the lights were on, that JL was
sleeping facing the wall, but that she could have woken up at any time, and
that he was standing four feet away from her. The appellant further stated
that JL did not have any medical impairment that would have prevented her
from seeing his genitalia had she awoken. The appellant’s testimony was
consistent with his stipulation of fact. 4
II. DISCUSSION
The appellant argues that his plea of guilty to sexual abuse of JL by
committing a lewd act is not legally sufficient because Article 120b(c) re-
quires that JL be aware of the indecent exposure of the genitalia. Since JL
was asleep and unaware of his conduct, the appellant asserts his conduct was
not criminal.
We review a military judge’s acceptance of a plea of guilty for an abuse of
discretion, reversing only if the “record shows a substantial basis in law or
fact for questioning the plea.” 5 A substantial basis exists if the appellant has
pled guilty to conduct that was not criminal. 6 A military judge abuses his dis-
cretion if he accepts an appellant’s guilty plea based upon an erroneous view
of the law. 7 “The providence of a plea is based not only on the accused’s un-
3 See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) Part IV,
¶45b.b(4)(c).
4 Prosecution Exhibit 1 at 2.
5 United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United States v.
Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)).
6 United States v. Ferguson, 68 M.J. 431, 433 (C.A.A.F. 2010) (noting that we
should review such an issue).
7 United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012).
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United States v. Lopez, No. 201700252
derstanding and recitation of the factual history of the crime, but also on an
understanding of how the law relates to those facts.” 8
Article 120b(c), UCMJ, provides that, “[a]ny person subject to this chapter
who intentionally commits a lewd act upon a child is guilty of sexual abuse of
a child and shall be punished as a court-martial may direct.” 9 The statute de-
fines lewd act to include “intentionally exposing one’s genitalia . . . to a child
. . . with an intent to . . . arouse or gratify the sexual desire of any person.” 10
The appellant argues that this definition is ambiguous because it does not
state whether the child must be aware of the exposure for it to qualify as a
“lewd act.”
The appellant contends that if JL was unaware of his conduct, he did not
expose himself to her. The word exposing is not defined in the statue. But the
statutory language does not require that the child be aware of the appellant’s
conduct for the exposure to qualify as a lewd act. Expose, like many English
words, has several meanings. But this does not render the statute ambigu-
ous. When a term is not defined in a statute, we use its ordinary meaning,
considering the context in which it was used, and the broader statutory con-
text. 11 The ordinary meaning of expose, and the one consistent with the con-
text of this statute, is “to lay open . . . leave unprotected . . . to make accessi-
ble.” 12 This definition places the focus on the appellant’s actions, not JL’s
awareness. Here, the appellant admitted that he entered JL’s bedroom while
naked and that he intentionally exposed his genitalia to her in order to
arouse or gratify his sexual desires.
We find that the appellant’s description of his conduct satisfies the ele-
ments of Article 120b(c), UCMJ. There is no substantial basis in law or fact to
question the providence of the appellant’s plea. We find the military judge did
not abuse his discretion by accepting the plea.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to the appellant’s sub-
8 Moon, 73 M.J. at 386.
9 10 U.S.C. §920b(c) (2016).
10 10 U.S.C. §920b(h)(5)(B) (2016).
11 United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016).
12 WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH (3d. College ed.
1994), at 479.
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United States v. Lopez, No. 201700252
stantial rights occurred. 13 Accordingly, the findings and sentence as approved
by the convening authority are AFFIRMED.
Chief Judge WOODARD and Judge HITESMAN concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
13 Art. 59(a) and 66(c), UCMJ.
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