United States v. Sergeant MARCELL T. BUNCH

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant MARCELL T. BUNCH
United States Army, Appellant
ARMY 20160197
Headquarters, United States Army Maneuver Center of Excellence
Richard J. Henry, Military Judge
Colonel Wendy P. Daknis, Staff Judge Advocate
For Appellant: Captain Daniel C. Kim, JA (argued); Lieutenant Colonel Melissa R.
Covolesky, JA; Major Christopher D. Coleman, JA; Captain Matthew L. Jalandoni,
JA (on brief); Colonel Mary J. Bradley, JA; Major Patrick J. Scudieri, JA; Captain
Matthew L. Jalandoni, JA (on brief in response to specified issues).
For Appellee: Captain Jonathan S. Reiner, JA (argued); Colonel Mark H. Sydenham,
JA; Lieutenant Colonel A.G. Courie III, JA; Major Anne C. Hsieh, JA; Lieutenant
Colonel Diana Kane, JA (on brief); Colonel Mark H. Sydenham, JA; Lieutenant
Colonel A.G. Courie, III, JA; Major Anne C. Hsieh, JA; Captain Jonathan S. Reiner,
JA (on brief in response to specified issues).
13 July 2017
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
CAMPANELLA, Senior Judge:
We hold that the military judge did not err in accepting appellant’s guilty plea
because appellant’s photographing his sleeping seven-year-old stepdaughter’s
underwear-clad buttocks constitutes a wrongful visual recording under Article
120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c (2012) [hereinafter
UCMJ].
A military judge sitting as general court-martial convicted appellant, pursuant
to his pleas, of absence without leave, sexual abuse of a child, wrongful visual
recording of a private area, and production of child pornography, in violation of
BUNCH—ARMY 20160197
Articles 86, 120b, 120c, and 134 UCMJ. The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for three years, and
reduction to the grade of E-1.
This case is before us for review pursuant to Article 66, UCMJ. 1 Appellant
raises one assignment of error, which merits neither discussion nor relief. Appellant
also raises issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), which we find lack merit. This court specified three additional issues:
whether the military judge abused his discretion by accepting appellant’s plea of
guilty to indecent visual recording under Article 120(c)(a)(2), UCMJ; what is the
extent of a seven-year old step-daughter’s reasonable expectation of privacy from
her stepfather while sleeping with him in a common area of a friend’s house; and
whether Article 120(c)(a)(2), UCMJ is constitutionally overbroad or vague.
BACKGROUND
In August 2015, appellant’s wife found photographs of her seven-year-old
daughter, ZC, in appellant’s Google Drive photo album. At the time, appellant was
ZC’s stepfather. One photograph was explicitly child pornography. The other
photographs do not constitute child pornography; however, they are close-up
pictures of ZC’s clothed buttocks.
With regard to the one photograph that is child pornography, appellant
admitted taking the photograph while he, his wife, and ZC were sleeping in the same
bed. In that instance, appellant awoke sexually aroused during the night and felt his
stepdaughter’s hand in the vicinity of his genitalia. Appellant slid his shorts down,
exposing his genitals, and placed the child’s hand on his erect penis. As ZC slept,
appellant photographed ZC’s hand involuntarily holding appellant’s penis. For
taking this photograph, appellant was charged with, and pleaded guilty to,
production of child pornography under Article 134, UCMJ.
With regard to the close-up photographs of ZC’s underwear-clad buttocks,
these photos were taken on a separate occasion during a visit to a family friend’s
home in West Virginia. During the night, ZC, wearing only a t-shirt and underwear,
left the room she was sleeping in and came into the living room to sleep with
appellant on the couch. ZC fell asleep atop appellant. Appellant awoke in middle of
the night to find ZC laying on top of his legs with her body lying in the opposite
direction of appellant’s body. Appellant’s view was directly looking at his
stepdaughter’s underwear-clad buttocks. Appellant stated he “thought it was a nice
view” so he photographed her buttocks. Appellant adjusted his leg. ZC shifted in her
sleep and raised her buttocks. Appellant photographed her clothed buttocks again as
she laid astride appellant’s leg. In the stipulation of fact, appellant admitted to being
sexually aroused after taking these pictures.
1
This court heard oral argument in this case on 22 June 2017.
2
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As a result of taking these photographs on this occasion, appellant was
charged with, and pleaded guilty to, violating Article 120c, UCMJ:
[i]n that [appellant], U.S. Army, did at or near Beckley,
West Virginia, between on or about 1 October 2014 and on
or about 30 November 2014, knowingly and wrongfully
photograph the private area of Z.C., without her consent
and under circumstances in which she had a reasonable
expectation of privacy.
During the providence inquiry, appellant told the military judge that he
intentionally photographed ZC’s underwear-clad buttocks while she slept and that
she did not, and could not due to her age, consent to being photographed in this
manner. Appellant said that ZC had a reasonable expectation of privacy because a
child sleeping with her stepfather would believe that her private area would not be
photographed in this way, and that his conduct was wrongful because he did not
have legal justification or lawful authorization to take such photos.
LAW AND ANALYSIS
Standard of Review
We review a military judge’s acceptance of a guilty plea for an abuse of
discretion. United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015) (internal
citation omitted). In reviewing a military judge’s decision to accept a guilty plea,
we apply the substantial basis test, looking at whether there is something in the
record of trial, with regard to the factual basis or the law, which would raise a
substantial question regarding the appellant’s guilty plea. Unites States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (internal citation omitted).
Article 120c(a)(2), UCMJ
Article 120c(a)(2), UCMJ, prohibits a visual recording if, without legal
justification or lawful authorization, one knowingly photographs, videotapes, films,
or records by any means the private area of another person, without that other
person's consent and under circumstances in which that other person has a
reasonable expectation of privacy. Manual for Courts-Martial, United States, (2012
ed.) [hereinafter MCM], Part IV, ¶ 45c(a)(a)(2). See also Dep’t of Army Pam. 27-9,
Legal Services: Military Judges’ Benchbook, para 3-45c-1.c(1) (10 September
2014). 2
2
As background, the statutory offense of Indecent Act under Article 120(k), UCMJ,
applicable to appellant’s offenses committed during the period 1 October 2007
through 27 June 2012 was replaced in large part by Article 120c, UCMJ, applicable
(continued . . . )
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Article 120c(d)(2), UCMJ, defines “private area” as the naked or underwear-
clad genitalia, anus, buttocks, or female areola or nipple; MCM, Part IV, ¶
45c(a)(c)(c)(2). Article 120c, UCMJ, further defines the term “under circumstances
in which that other person has a reasonable expectation of privacy,” as:
(A) circumstances 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; or
(B) circumstances in which a reasonable person would
believe that a private area of the person would not be
visible to the public.
UCMJ art. 120c(d)(3)(A) and (B); MCM, Part IV, ¶ 45c(c)(3)(A) and (B). By
enacting this provision of the UCMJ, Congress recognized an expectation of privacy
in the private areas of a person’s body consistent with what has historically been
recognized through widely accepted social norms. United States v. Raines, NMCCA
201400027, 2014 CCA LEXIS 600, at *12-13 (N.M. Ct. Crim. App. 2014).
(. . . continued)
to the offenses committed after 27 June 2012. See MCM, App. 23 at A23-16. The
offense under Article 120(k), UCMJ, stated any person subject to this chapter who
engages in indecent conduct is guilty of an indecent act and shall be punished as a
court-martial may direct. Article 120(t)(12), UCMJ, defined indecent conduct as
that form of immorality relating to sexual impurity that is
grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or deprave
morals with respect to sexual relations. Indecent conduct
includes observing, or making a videotape, photograph,
motion picture, print, negative, slide, or other
mechanically, electronically, or chemically reproduced
visual material, without another person’s consent, and
contrary to that other person’s reasonable expectation of
privacy, of:
(A) that other person’s genitalia, anus, or buttocks, or (if
that other person is female) that person’s areola or nipple;
or
(B) that other person while that other person is engaged in
a sexual act, sodomy under Article 125, UCMJ, or sexual
contact. MCM (2007 ed.), Part IV, ¶ 45(a)(t)(12).
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In the context of adult victims, the current statute is easier to apply and
hinges in large part on the factual determination of the victim’s reasonable
expectation of privacy and whether there was consent to the photographing.
Application of the statute becomes less straight-forward when applied to parents
who photograph their own underwear-clad minor children, which is not an
uncommon occurrence. One need only look in the public domain at such images as
underwear advertisements for children or family-posted photographs of their infant
children on social media sites. The issue of consent is difficult to reliably address in
a situation in which a parent can, and does in many circumstances, consent on behalf
of their child. The issue of a child’s reasonable and actual expectation of privacy
from their own parents is also difficult to apply.
Due Process
The Due Process Clause of the Fifth Amendment “provides heightened
protection against government interference with certain fundamental rights and
liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). A parent’s
interest in the “care, custody, and control of [his] children -- is perhaps the oldest of
the fundamental liberty interests recognized” by the Supreme Court. Troxel v.
Granville, 530 U.S. 57, 65 (2000). 3
Embedded in this interest is the presumption that parents act in their
children’s own best interest, with the burden of proof on the government to prove
otherwise. United States v. Parham, 442 U.S. 584, 602 (1979). As the Supreme
3
See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923) (“the right of the
individual to . . . establish a home and bring up children”); Pierce v. Society of
Sisters, 268 U.S. 510, 534 (1925) (“the liberty of parents and guardians to direct the
upbringing and education of children under their control”); Stanley v. Illinois, 405
U.S. 645, 651 (1972) (“The private interest . . . of a man in the children he has sired
and raised, undeniably warrants deference and, absent a powerful countervailing
interest, protection. It is plain that the interest of a parent in the companionship,
care, custody, and management of his or her children ‘come[s] to this Court with a
momentum for respect lacking when appeal is made to liberties which derive merely
from shifting economic arrangements.’”); Wisconsin v. Yoder, 406 U.S. 205, 232
(1972) (“The history and culture of Western civilization reflect a strong tradition of
parental concern for the nurture and upbringing of their children. This primary role
of the parents in the upbringing of their children is now established beyond debate
as an enduring American tradition.”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
(“the relationship between parent and child is constitutionally protected”); Parham
v. J. R., 442 U.S. at 602 (“Our jurisprudence historically has reflected Western
civilization concepts of the family as a unit with broad parental authority over minor
children”.); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“[T]his Court’s
historical recognition that freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth Amendment.”).
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Court explained in Parham, “[t]he law’s concept of the family rests on a
presumption that parents possess what a child lacks in maturity, experience, and
capacity for judgment required for making life’s difficult decisions,” and
“historically it has recognized that natural bonds of affection lead parents to act in
the best interests of their children.” Id. at 602 (internal citations omitted).
Accordingly, so long as a parent adequately cares for his children, the Due Process
Clause does not permit the government to infringe on his fundamental right to make
childrearing decisions simply because the government believes a “better” decision
could be made. Troxel, 530 U.S. at 72-73.
Parental liberty interests, however, are not absolute. While the Constitution
protects the parent-child relationship from arbitrary infringement by the State, the
Supreme Court has emphasized that this relationship does not “establish a rigid
constitutional shield, protecting every arbitrary parental decision from any challenge
absent a threshold finding of harm.” Id. at 86 (Stevens, J., dissenting). “The
presumption that parental decisions generally serve the best interests of their
children is sound, and clearly in the normal case the parent’s interest is paramount.
But, even a fit parent is capable of treating a child like a mere possession.” Id.Limitations on parental liberty interests arise from the child’s own interests in
preserving his or her fundamental rights. See Planned Parenthood v. Danforth, 428
U.S. 52, 74 (1976) (“Constitutional rights do not mature and come into being
magically only when one attains the state-defined age of majority. Minors, as well
as adults, are protected by the Constitution and possess constitutional rights.”).
When the presumption that a parent acts in his child’s interest is rebutted, the parent
may no longer possesses the constitutional protection of his liberty interest as a
parent.
While there may be issues raised by the statute when applied to minor
children and their parents, here appellant pleaded guilty and admitted to the
following: his stepdaughter had a reasonable expectation of privacy in not having
her underwear-clad buttocks photographed; under the circumstances, he violated her
privacy; and his conduct was done without legal justification or authorization. By
pleading guilty, appellant did more than admit he did the various acts alleged in the
specification; he knowingly and intelligently admitted guilt of a substantive crime.
See United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009) (citing United
States v. Broce, 488 U.S. 563, 570 (1989)) (internal quotations omitted). “An
unconditional guilty plea generally waives all pretrial and trial defects that are not
jurisdictional nor a deprivation of due process of law.” United States v. Jones, 69
M.J. 294, 299 (C.A.A.F. 2011) (internal citation omitted). We do not find the
application of this statute under these circumstances to constitute arbitrary
government infringement on a parent-child relationship. Under the facts of this
case, appellant essentially admitted he was not acting in the best interests of the
child when he took the photographs without legal justification or authorization.
Based on his own admissions, he exceeded the constitutional protection of his liberty
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interests as a parent and the photos were unrelated to his parental duties and
obligations. The photographs themselves and how they were framed—namely
zoomed-in pictures of ZC’s underwear clad buttocks—give context and perspective
to appellant’s actions. Appellant admitted to having no lawful authorized purpose in
taking the photographs.
Reviewing for abuse of discretion, we find the military judge did not abuse
his discretion by accepting appellant’s guilty plea.
Unconstitutional Vagueness and Overbreadth
We review de novo constitutional challenges to Article 120(c), UCMJ. See
United States v. Goings, 72 M.J. 202, 205 (C.A.A.F. 2013). Prior to reaching the
merits of the issues, however, we consider whether the appellant forfeited and perhaps
waived his constitutional claims by failing to raise them at trial. Under the
circumstances of this case, we find that he has at least forfeited his claim and,
accordingly, we at most review his claims for plain error. In our plain error review,
we will grant relief “only where (1) there was error, (2) the error was plain and
obvious, and (3) that error materially prejudiced a substantial right of the [appellant].”
United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011).
The Sixth Amendment to the Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be informed of the nature and
cause of the accusation.” Fairness requires appropriate notice that the act would be
criminal. The Due Process Clause of the Fifth Amendment also demands that a
statute not be so vague or overbroad that one cannot determine its meaning. See,
e.g., United States v. Boyett, 42 M.J. 150, 152 (C.A.A.F. 1995). This is especially
true when viewed in light of First Amendment protections.
In statutory construction cases, we begin with the language of the statute.
United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (quoting Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438 (2002)). The first step is to determine whether
the language at issue has a plain and unambiguous meaning with regard to the
particular dispute in the case. Id. The inquiry ceases if the statutory language is
unambiguous and the statutory scheme is coherent and consistent. Id.To withstand a vagueness challenge, a statute must provide sufficient notice
so that a servicemember can reasonably understand that his conduct is proscribed.
United States v. Moore, 58 M.J. 466, 469 (C.A.A.F. 2003) (citing Parker v. Levy,
417 U.S. 733, 757 (1974)); see also United States v. Vaughan, 58 M.J. 29, 31
(C.A.A.F. 2003) (holding due process requires fair notice that an act is forbidden
and subject to criminal sanction). To determine whether a statute “clearly applies”
and provides fair notice of the proscribed conduct, we consider not only its plain
language, but also other sources, including the “MCM . . . military case law, military
custom and usage, and military regulations.” Vaughan, 58 M.J. at 31 (internal
citations omitted). In determining the sufficiency of notice, “a statute must of
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necessity be examined in the light of the conduct with which the defendant is
charged.” Parker, 417 U.S. at 757; see also United States v. Mazurie, 419 U.S. 544(1975) (“[V]agueness challenges to statutes which do not involve First Amendment
freedoms must be examined in light of the facts of the case at hand.”).
Appellant argues it is unclear what conduct is criminalized under this statute
when a parent, or in this case a step-parent, photographs his child in a seemingly
“innocuous setting.” Specifically, appellant argues the terms “reasonable
expectation of privacy,” “underwear-clad private area,” and “without consent” are
vague as applied to parents and their own children. Under the facts before us,
appellant’s arguments are not persuasive. Appellant’s admission of each of these
elements and his admission that he was sexually aroused by the sight of ZC’s
underwear-clad buttocks undercut his argument that he did not have “fair notice of
what is prohibited.” United States v. Williams, 553 U.S. 285, 303 (2008). We reject
the appellant’s challenge to Article 120c(a)(2), UCMJ, on vagueness grounds.
The overbreadth doctrine articulated by the Supreme Court is an outgrowth of
the First Amendment. See Williams, 553 U.S. at 292. A statute is overbroad if “it
prohibits a substantial amount of protected speech . . . relative to [its] plainly
legitimate sweep.” Id. (internal citations omitted). The Supreme Court has severely
limited the overbreadth doctrine’s applicability and “employed it with hesitation,
and then ‘only as a last resort.’” New York v. Ferber, 458 U.S. 747, 769 (1982)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). Additionally, the
general rule of the overbreadth doctrine holds that a person “may not challenge [the]
statute on the ground that it may conceivably be applied unconstitutionally to others
in situations not before the Court.” Id. at 767 (internal citations omitted).
While we can envision issues associated with the application of the Article
120c(a)(2), UCMJ, under other circumstances in which a parent photographs his or
her own child, we save for another day the issue of overbreadth. Appellant does not
argue, nor, given his plea of guilty, do the facts of this case support, that Article
120c(a)(2), UCMJ, casts a net over otherwise innocent or lawful conduct.
CONCLUSION
Findings and sentencing are AFFIRMED.
Judge HERRING and Judge PENLAND concur.
FOR THE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES JR.
Clerk of Court
Clerk of Court
8