United States v. Sims

UNITED STATES, Appellee

V.

Kendall L. SIMS, Staff Sergeant
U.S. Army, Appellant

No. 01-0765

Crim. App. No. 9900641

United States Court of Appeals for the Armed Forces

Argued February 26, 2002

Decided September 30, 2002

GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. SULLIVAN, S.J., filed
an opinion concurring in the result. CRAWFORD, C.J.,
filed a dissenting opinion.

Counsel
For Appellant: Captain Sean S. Park (argued); Colonel Adele H.
Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major
Imogene M. Jamison (on brief).
For Appellee: Captain Susana E. Watkins (argued); Colonel Steven
T. Salata and Major Paul T. Cygnarowicz (on brief).

Military Judge: Keith H. Hodges

This opinion is subject to editorial correction before final publication.
United States v. Sims, No. 01-0765/AR

Judge GIERKE delivered the opinion of the Court.

A military judge sitting as a general court-martial

convicted appellant, pursuant to his pleas, of making a false

official statement, sodomy, and committing an indecent act, in

violation of Articles 107, 125, and 134, Uniform Code of Military

Justice, 10 USC §§ 907, 925, and 934, respectively. The adjudged

and approved sentence provides for a bad-conduct discharge,

confinement for 30 days, total forfeitures, and reduction to the

lowest enlisted grade. The Court of Criminal Appeals affirmed

the findings and sentence without opinion.

This Court granted review of the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
AFFIRMING APPELLANT’S CONVICTION OF INDECENT ACTS (1) WHEN
APPELLANT, WITH CONSENT, MOMENTARILY TOUCHED THE BREASTS OF
A FEMALE WHO MERELY LIFTED HER SHIRT WITHOUT REMOVING IT AND
(2) WHEN THE CONSENSUAL ACT OCCURRED IN THE PRIVACY OF
APPELLANT’S OWN ROOM WITH NO THIRD PARTY PRESENT AND WITH
THE DOOR CLOSED.

For the reasons set out below, we hold that appellant’s guilty

plea to committing an indecent act was improvident.

Facts
The offenses arose when appellant hosted a party in his
quarters in Riyadh, Saudi Arabia. The offenses of which he was

found guilty were consensual sodomy (fellatio) with a young

female soldier, Private First Class (PFC) AB, who attended the

party; indecent acts by touching PFC AB’s bared breasts; and

falsely denying that he had taken a female into his bedroom

during the party.

The parties stipulated to the facts underlying the pleas of

guilty. The stipulated facts offered to support the plea of

guilty to committing an indecent act are as follows:

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At approximately 2400 the accused approached PFC [AB]
and asked her back to his bedroom. Both went to the
bedroom accompanied by three other soldiers. Once back
in his bedroom, the accused, PFC [AB], and the other
three party attendees engaged in conversational
pleasantries. Within minutes, PFC [AB] was left alone
with the accused in his bedroom after the other three
party attendees departed the bedroom.

As soon as PFC [AB] was left alone with the
accused, he asked her if she would show him one her
breasts [sic]. PFC [AB] denied this request. The
accused then asked if he could show them without the
top [sic]. She lifted her shirt, and the accused
stared at the breasts and began to lustfully fondle
them with both hands . . . .

The accused admits that his actions with PFC [AB]
were, under the circumstances, indecent. The accused
realizes that his conduct was to the prejudice of good
order and discipline and service discrediting because
it was irresponsible for a newly promoted Staff
Sergeant to conduct himself in such a manner with a
junior enlisted soldier who had been drinking alcohol
supplied by the accused. The accused was also aware
that she was probably violating a local order barring
deployed soldiers from being alone in the sleeping
quarters of soldiers of the opposite sex. Moreover, he
knew, or at least believed, that there was a
substantial risk that his activity could be discovered
at any given time if someone had walked in on them.

During the plea inquiry, appellant told the military judge

that there were about 40 people at his promotion party. There

was music and dancing in one room and food in another room next

to appellant’s bedroom. Appellant did not share his bedroom with

anyone else.

Appellant kept a supply of hard liquor in his bedroom

because “there were a lot of people at the party and [he] didn’t

want to run out of liquor.” He had also told the women present

at the party that they could leave their purses and personal

items in his bedroom.

Appellant invited three male soldiers and AB into his

bedroom for “a private party” separate from the main party. They

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stayed for five to ten minutes and each had two or three shots of

hard liquor. A video showing female nudity was playing on a

television in appellant’s bedroom, but he did not know who put it

in the video player.

The three male soldiers departed, leaving appellant alone

with AB. Appellant and AB watched the video, talked, and had

another drink. The door was closed but not locked. During the

time that appellant and AB were alone in the bedroom, no one

knocked on the door or came into the room. At this point in the

plea inquiry, the military judge explained the requirement for

“open and notorious” conduct as follows:

Consensual sexual conduct ordinarily -- and in your
case would ordinarily be -- not a criminal offense if
done in private. However, it can constitute an
indecent act if done in public. And “public” includes
that there is a substantial risk that your conduct --
your activities could be viewed by another or it’s
reasonably likely that your conduct could be viewed by
another.[1]
When the military judge asked, “Were people coming and going

throughout the evening?,” appellant responded, “Only the people I

let into my room.” However, he also told the military judge that
“[i]t wouldn’t be any problem” for one of the women to retrieve

her purse without asking permission. Appellant admitted that

there was nothing to prevent someone from coming into the room

and observing his conduct.

1
The military judge’s explanation clearly shows that this case
is not about victims’ rights, as the dissent suggests. Appellant
pleaded guilty to a consensual act. The alleged unlawfulness of
the act was based on its public nature, not the co-actor’s lack
of consent.

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Appellant told the military judge that he asked AB if he

could touch her breasts. AB lifted up her shirt, and appellant

touched her breasts.

Discussion

RCM 910(e), Manual for Courts-Martial, United States (2000

ed.),2 provides: “The military judge shall not accept a plea of

guilty without making such inquiry of the accused as shall

satisfy the military judge that there is a factual basis for the

plea.” In order to establish an adequate factual predicate for a

guilty plea, the military judge must elicit “factual

circumstances as revealed by the accused himself [that]

objectively support that plea[.]” United States v. Davenport, 9
MJ 364, 367 (CMA 1980). It is not enough to elicit legal

conclusions. The military judge must elicit facts to support the

plea of guilty. United State v. Outhier, 45 MJ 326, 331 (1996).

Appellant contends that his guilty plea was improvident

because his act was not performed in an “open and notorious

manner.” The Government contends that appellant’s act was

committed “openly and notoriously” because it was reasonably
likely that others would see it, even though no one actually saw

it.

“‘Indecent’ signifies that form of immorality relating to

sexual impurity which is not only grossly vulgar, obscene, and

repugnant to common propriety, but tends to excite lust and

deprave the morals with respect to sexual relations.” Para. 90c,

2
All Manual provisions cited are identical to those in effect at
the time of appellant’s court-martial.

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Part IV, Manual, supra. An otherwise lawful sexual act may

violate Article 134, supra, if it is committed “openly and

notoriously.” United States v. Berry, 6 USCMA 609, 614, 20 CMR
325, 330 (1956). An act is “open and notorious . . . when the

participants know that a third person is present.” Id.

In United States v. Izquierdo, 51 MJ 421, 423 (1999),

decided after appellant’s court-martial, this Court held that the

evidence was legally sufficient to support a conviction of

committing an indecent act, where the accused had sexual

intercourse with a woman in his barracks room while his two

roommates were in the room, even though he blocked their view by

hanging up a sheet “that substantially blocked his roommates’

view of his side of the room.” In the same case, however, we

held that the evidence was legally insufficient to prove an

indecent act where the accused had sexual intercourse in a shared

barracks room, with the door closed but unlocked and no one else

present in the room.

Izquierdo was a contested case, but it is instructive and
closely analogous to this case. In Izquierdo, this Court tacitly
approved the military judge’s instruction that sexual acts are

open and notorious when committed “in such a place and under such

circumstances that it is reasonably likely to be seen by others

even though others actually do not view the acts.” Id.; see

United States v. Carr, 28 MJ 661, 664 (NMCMR 1989). Izquierdo

clarified the Berry definition (“when the participants know that

a third person is present”) by holding that it was not necessary

to prove that a third person actually observed the act, but only

that it was reasonably likely that a third person would observe

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it. However, we concluded that, even when viewed in the light

most favorable to the prosecution, the evidence was legally

insufficient to prove that the sexual act, committed in a shared

barracks room with no third party present and with the door

closed but unlocked, was open and notorious.

In this case, the sexual touching was committed in a private

bedroom, with the door closed but unlocked. This is a close

case, because as in Izquierdo, there was a possibility that
someone, in this case from the ongoing party, would enter through

the closed but unlocked door and observe the sexual activity.

However, this case is weaker than Izquierdo in two respects: (1)

appellant was in his private bedroom, which gave him a greater

expectation of privacy than a shared barracks room; and (2)

neither party had disrobed. The act in question could have been

terminated easily and quickly. Had anyone knocked, called out,

or in any way signaled their entry into the room, AB could have

quickly pulled her shirt down and covered herself.

We have noted appellant’s stipulation that “there was a

substantial risk that his activity could be discovered[.]” In
our view, appellant’s conclusory stipulation, without any

additional facts to distinguish this case from Izquierdo, is

inadequate to establish a factual predicate for “open and

notorious” sexual conduct. See Outhier, supra. Accordingly,

there is a substantial basis for rejecting the plea as

improvident, because appellant’s responses and the stipulation of

fact state only the conclusion that it was reasonably likely

under these circumstances that appellant’s act of touching PFC AB

would have been seen by others, but they do not provide the

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factual basis for that conclusion.3 United States v. Prater, 32

MJ 433, 436 (CMA 1991).

We turn finally to the question of prejudice. Considering

the nature of the remaining findings of guilty and the sentence

adjudged at trial, we are satisfied that appellant was not

prejudiced as to sentence, and “we perceive no reasonable

possibility of benefit to [appellant] by remand of the record

. . . for reassessment of the sentence.” See United States v.
Rushing, 11 MJ 95, 98 (CMA 1981).

Decision

The decision of the United States Army Court of Criminal

Appeals is reversed as to the finding of guilty of Specification

2 of Charge V. The finding of guilty of Specification 2 of

Charge V is set aside, and that specification is dismissed. In

all other respects, the decision is affirmed.

3
Our decision does not establish a per se rule, as asserted by
the dissent. We have applied well-established law providing that
otherwise lawful sexual conduct is indecent if committed in
public, and we have held, on a case-specific basis, that the
factual predicate elicited from appellant in this case was
inadequate to establish that his conduct was “public.”

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United States v. Sims, No. 01-0646/AF

SULLIVAN, Senior Judge (concurring in the result):

I agree with the result reached by the majority in this case,

but not its rationale. The alleged indecent act of consensually

fondling an adult female’s (AB’s) breasts was done behind the

closed door of appellant’s barracks room, and no third person was

actually present. Under our case law at the time of appellant’s

trial, a consensual sexual act of this type by a servicemember in

these circumstances did not constitute the crime of indecent acts

because it was not “open and notorious.” See United States v.

Berry, 6 USCMA 609, 614 20 CMR 325, 330 (1956) (known presence of

a third party required for otherwise lawful sexual intercourse to

be considered an indecent act). The military judge obviously

ignored Berry and erred by applying a “reasonably likely to be

viewed by another” standard in determining appellant’s guilt.

(R.425-28) Accordingly, the indecent act conviction here needs

to be reversed.

I also do not agree with the majority now adopting a broader

rule of criminal liability than approved in Berry based on dicta

in United States v. Izquierdo, 51 MJ 421, 423 (1999) (a case

decided after appellant’s trial), and applying it in appellant’s
United States v. Sims, No. 01-0646/AF

case.* The majority would hold that consensual sexual acts by a

servicemember can be considered “open and notorious” (and, thus,

criminal) when committed “in such a place and under such

circumstances that it is reasonably likely to be seen by others

even though others actually do not view the acts.” __ MJ at (6).

Moreover, in applying the new standard, the majority weakly

reasons that the facts of appellant’s case do not satisfy this

new test because “[t]he act in question [touching a female’s bare

breasts] could have been terminated easily and quickly . . . .

AB could have quickly pulled her shirt down and covered [her

exposed breasts].” __ MJ at (7). I have serious concerns with

this vague and uncertain approach to criminal law in the

consensual sex area. See Rogers v. Tennessee, 532 U.S. 451

(2001)(due process limitation on application of a judicial

construction of a criminal statute). A crime in the area of

consensual sex between adults needs to be clear and certain.

Finally, I disagree with this new rule of the majority, which

is apparently derived from the decision of the Navy-Marine Corps

Court of Military Review in United States v. Carr, 28 MJ 661, 664

(NMCMR 1989). See United States v. Izquierdo, supra at 423-24

(Sullivan, J., concurring in the result).

*
The majority opinion in Izquierdo reversed one of two convictions for
indecent acts because it concerned sexual acts which occurred between a
servicemember and another when “the door was closed and nobody else was in the
room.” This is the same standard used in United States v. Berry, 6 USCMA 609,
614, 20 CMR 325, 330 (1956). See United States v. Tollinchi, 54 MJ 80, 83
(2000)

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CRAWFORD, Chief Judge (dissenting):

This is a case of a non-commissioned officer plying a

19-year-old with alcohol and then taking sexual advantage

of her by indecently “fondl[ing]” her breasts “with both

hands,” asking her to masturbate, and persuading her to

commit fellatio on him. Although the granted issue

concerns only the indecent act specification, when viewed

in context with the other sexual activity behind closed

doors, I am not persuaded that appellant’s fondling the

victim’s breasts involved an activity that “could have been

terminated easily and quickly.” ___ MJ at (7).

The majority opinion effectively establishes a per se

rule that if a sexual act takes place behind a closed door

without intrusion, the act cannot be “indecent” as a matter

of law. Having considered it, along with other cases

involving sexual offenses, see, e.g., United States v.

Baker, No. 01-0064, ___ MJ ___ (2002); United States v.

Ayers, 54 MJ 85, 95, 99 (2000)(Crawford, C.J., concurring

in part and dissenting in part; Sullivan, J., dissenting);

United States v. Tollinchi, 54 MJ 80, 83 (2000)(Sullivan,

J., concurring in part and dissenting in part; Crawford,

C.J., dissenting); United States v. Morrison, 52 MJ 117,

124 (1999)(Sullivan, J., joined by Crawford, J.,

dissenting); United States v. Hoggard, 43 MJ 1, 4, 8
United States v. Sims, No. 01-0765/AR

(1995)(Crawford, J., dissenting in part and concurring in

the result in part; Sullivan, C.J., dissenting); United

States v. Cage, 42 MJ 139, 145, 147 (1995)(Sullivan, C.J.,

and Crawford, J., dissenting), I must once again express my

concern with the impact of the majority opinion on

prevailing jurisprudence, the rights of victims, and the

public perception of military justice.

Appellant pleaded guilty. Because appellant’s plea is

provident under our prior case law, RCM 910, Manual for

Courts-Martial, United States (2000 ed.), and United States

v. Vonn, ___ U.S. ___, ___, 122 S.Ct. 1043, 1052-53 (2002),

I respectfully dissent.

In order to affirm a conviction of committing an

indecent act, there must be a finding:

(1) That the accused committed a certain wrongful
act with a certain person;

(2) That the act was indecent; and

(3) That, under the circumstances, the conduct of
the accused was to the prejudice of good order
and discipline in the armed forces or was of a
nature to bring discredit upon the armed forces.

Para. 90b, Manual, supra.

‘Indecent’ signifies that form of immorality
relating to sexual impurity which is not only
grossly vulgar, obscene, and repugnant to common
propriety, but tends to excite lust and deprave
the morals with respect to sexual relations.

Para. 90c.

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Appellant argues that his guilty plea to committing an

indecent act was improvident because the act itself was not

“open and notorious.” RCM 910(e) states that “[t]he

military judge shall not accept a plea of guilty without

making such inquiry of the accused as shall satisfy the

military judge that there is a factual basis for the

plea[.]” As the majority states, “[i]n order to establish

an adequate factual predicate for a guilty plea, the

military judge must elicit ‘factual circumstances as

revealed by the accused himself [that] objectively support

that plea.’” ___ MJ at (5), quoting United States v.

Davenport, 9 MJ 364, 367 (CMA 1980). The majority

continues, “It is not enough to elicit legal conclusions.

The military judge must elicit facts to support the plea of

guilty.” Id., citing United States v. Outhier, 45 MJ 326,

331 (1996).

As to the indecency of the act,

[t]he public nature of an act is not always
determined by the place of occurrence. A private
residence in which other persons are gathered may
be regarded as a public place for the purpose of
evaluating the character of conduct by one of the
persons. This is particularly true when the act
is of such a nature as to bring discredit upon
the armed forces. United States v. Lowe, 4 USCMA
654, 16 CMR 228. An act, therefore, may be “open
and notorious” not merely because of the locus,
but because of the actual presence of other
persons. We doubt, for example, that any

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reasonable person would contend that an act of
fornication committed in full and open view of
twenty persons gathered in a private home is not
so aggravated in nature as to constitute an
offense under the Uniform Code. How many persons
then need be present to make the act a public
one? In our opinion, the act is “open and
notorious,” flagrant, and discrediting to the
military service when the participants know that
a third person is present.

United States v. Berry, 6 USCMA 609, 614, 20 CMR 325, 330

(1956). This definition was further restricted in United

States v. Izquierdo, 51 MJ 421 (1999), when this Court held

that

[s]exual acts are considered to be committed openly
and notoriously when such acts are performed in
such a place and under such circumstances that it
is reasonably likely to be seen by others even
though others actually do not view the acts. In
determining if sexual acts are performed openly and
notoriously, you must look not only to the location
of the act itself, but also to the attendant
circumstances surrounding their commission.

Id. at 423 (emphasis added).

Appellant’s stipulation of fact stated:

On the evening of 12 November 1998, the
accused hosted a promotion party for himself at
his Villa on Eskan Village in Riyadh, Saudi
Arabia. Approximately 30-40 persons attended the
party to include both civilians and military
personnel. The party attendees entertained
themselves by mingling with one another, playing
cards, and dancing to loud music. Many of those
in attendance were combatants, and hence subject
to General Order Number 1 which prohibits the
consumption of alcohol by combatant personnel.
In spite of his knowledge of the combatant-status
of many of those in attendance, SSG Sims provided
beer, and a vodka-punch mix to the partiers. For

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this, SSG [] Sims received a General Officer
Memorandum of Reprimand for having served alcohol
to combatants. The GOMOR has been filed in his
OMPF. The accused's willful disobedience, lack
of judgment, and lack of integrity were
specifically cited by MG Marcello as reasons for
imposing the GOMOR.

. . . Prior to this party, PFC [AB] and SSG Sims
had not known or been acquainted with one
another.

. . . the accused was taken to his room . . . .
While in the room, the accused and several other
male soldiers began to watch a very provocative
video about “Freak-Nik.” This is an annual event
held in Atlanta, Georgia, attended by mainly
young African-American men and women. At
approximately 2400 the accused approached PFC
[AB] and asked her back to his bedroom. Both
went to the bedroom accompanied by three other
soldiers. Once back in his bedroom, the accused,
PFC [AB], and the other three party attendees
engaged in conversational pleasantries. Within
minutes, PFC [AB] was left alone with the accused
in his bedroom after the other three party
attendees departed the bedroom.

As soon as PFC [AB] was left alone with the
accused, he asked her if she would show him one
of her breasts. PFC [AB] denied this request.
The accused then asked if [she] could show them
without the top. She lifted her shirt, and the
accused stared at the breasts and began to
lustfully fondle them with both hands.
Afterwards, the accused asked her if PFC [AB]
would masturbate in front of him. She denied the
request. The accused then asked PFC [AB] to
perform fellatio on him; she complied. The
accused admits that placing his penis in her
mouth was an act of unnatural carnal copulation
as that is defined in Article 125, UCMJ.

The accused admits that his actions with PFC
[AB] were, under the circumstances, indecent.
The accused realizes that his conduct was to the
prejudice of good order and discipline and

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United States v. Sims, No. 01-0765/AR

service discrediting because it was irresponsible
for a newly promoted Staff Sergeant to conduct
himself in such a manner with a junior enlisted
soldier who had been drinking alcohol supplied by
the accused. The accused was also aware that
[he] was probably violating a local order barring
deployed soldiers from being alone in the
sleeping quarters of soldiers of the opposite
sex. Moreover, he knew, or at least believed,
that there was a substantial risk that his
activity could be discovered at any given time if
someone had walked in on them.

(Emphasis added.) The following subsequently took place

during appellant’s providence inquiry:

MJ: Well, what purpose or reason would anybody,
if any, have to come to your room during the
party that night?

ACC: Ah--Some--Some people knew there was liquor
back there--the people that I told and also
some people to get their personal effects--
some--some of the women, like their purses.

MJ: Okay, were there--Do you know why we’re
having such a large--a long conversation on
such a relatively simply offense?

ACC: Negative, Your Honor.

MJ: Would you like to know?

ACC: Yes, Your Honor.

MJ: Consensual sexual conduct ordinarily--and in
your case would ordinarily be--not a
criminal offense if done in private.
However, it can constitute an indecent act
if done in public. And “public” includes
that there is a substantial risk that your
conduct--your activities could be viewed by
another or it’s reasonably likely that your
conduct could be viewed by another. So I’m
trying to figure out what is the indecent
nature of the conduct and the contact you

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had with Private [AB] that would make this
indecent, that is, that would make it likely
or reasonably likely or a substantial risk
that you could be discovered. So that’s
what I’m trying to find out. You’re the guy
pleading guilty, not anybody else.

ACC: Yes, Your Honor. I understand, Your Honor.

MJ: Did the women store their purses and other
personal effects in your room?

ACC: Yes, Your Honor.

MJ: Was that to provide security for those
effects?

ACC: Yes. Because it was my party they--they
only knew me so they decided to put their
purses back in my room. Yes, Your Honor.

MJ: Okay. And did you leave the door to your
room unlocked throughout the evening?

ACC: Yes, Your Honor.

MJ: Were people coming and going throughout the
evening?

ACC: Only the people I let into my room. Yes,
Your Honor.

MJ: Well, if somebody was in the party and they
wanted to leave would they ask your
permission before leaving or would there be
any problem if they went to the room and got
their purse?

ACC: It wouldn’t be any problem for them to get
their purse. No, sir.

MJ: Did you put the videotape in the TV?

ACC: No, sir. The video had been playing most of
all of the night.

MJ: Who put the videotape in?

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ACC: I--I do not know who put the videotape in,
Your Honor.

MJ: That would indicate to me that somebody went
into your room without your permission and
watched your videotape. Would that be
correct or incorrect?

ACC: That would be correct, Your Honor.

MJ: And, at the time that you went into the room
with Private [AB], did you realize that
somebody had been into your room to use your
room to watch the video?

ACC: Yes, Your Honor.

MJ: Okay. Had people been going back into the
back of your room by themselves, in other
words, not in your company to go into the
room to sneak a drink?

ACC: Later I found out. Yes, Your Honor.

MJ: Well, did you have reason to believe or did
you know prior to going to the back of the
room with Private [AB] that some of the guys
had been back there or some of the people
had been going into your room to the private
stash of alcohol?

ACC: Yes, Your Honor.

MJ: You knew that for a fact?

ACC: Yes, Your Honor, by one of the empty
bottles. Yes, Your Honor.

MJ: And did you know that at the time that you
were in the room with Private [AB] that
people had been going back there and using
the stash?

ACC: Yes, Your Honor.

MJ: No doubt about that?

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ACC: No doubt about that, Your Honor.

MJ: At the time that you were in the room alone
with Private [AB], what would keep one of
the ladies who had their purses back there
from coming into the room or one of the
people who knew about the private store of
alcohol from coming into the room and seeing
what you were doing?

ACC: Nothing, Your Honor.

MJ: Okay. While in the room, what occurred
between you and Private [AB] with regard to
touching her breasts?

ACC: In regards to that, Your Honor, we were
watching the video, having a drink and in
the video some--some of the females were
lifting up their shirts and acting wildly
and--and I asked her if I could touch her
breasts, Your Honor.

MJ: Why’d you do that?

ACC: It was in poor judgment, Your Honor.

MJ: Well, yeah, but I mean were you--I’m going
to be funny for a minute but just to
illustrate why I’m asking you the question.
Did you ask her to do that so you could
check her for a sunburn?

ACC: Negative, Your Honor.

MJ: Why did you do it?

ACC: To--to touch her breasts, Your Honor.

MJ: For sexual gratification?

ACC: Yes, Your Honor.

MJ: All right. And what did she say?

ACC: She lifted up her shirt, Your Honor.

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MJ: And what did you do?

ACC: I touched her breasts, Your Honor.

MJ: If somebody had walked in the room at that
minute, very carefully, would they have seen
her breasts?

ACC: Yes, Your Honor.

MJ: Would they have seen you touching her
breasts?

ACC: Yes, Your Honor.

MJ: What do you think about somebody walking
into a room and seeing a noncommissioned
officer with a young woman in your
government provided quarters, in a forward
deployed Moslem country touching a woman’s
breasts?

ACC: It’s not appropriate, Your Honor.

MJ: Do you think that when soldiers do or have
learned about what you’ve just told me, do
you think they would have greater respect
for you or less respect for you?

ACC: Less respect for me, Your Honor.

MJ: Do you believe that soldiers are required to
have respect for you in order for you to be
an effective leader?

ACC: Yes, Your Honor.

MJ: Do you think ineffective leadership destroys
discipline and morale?

ACC: Yes, Your Honor, I do.

(Emphasis added.)

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United States v. Sims, No. 01-0765/AR

The majority claims that this case is weaker than

Izquierdo because appellant was in his private bedroom,

which allowed a greater expectation of privacy than a

shared barracks room. Consequently, the majority concludes

that appellant’s “responses and the stipulation of fact

state only the conclusion” that there was a substantial

risk of discovery, and that is not enough to satisfy the

required factual predicate for “open and notorious.” ___

MJ at (7).

I disagree. Izquierdo makes it clear that that is

exactly what is required. The facts show that it was

reasonably likely that the conduct would be viewed by

others for several reasons: (1) there was no lock on the

door; (2) there were approximately 30-40 people at the

party; (3) it was a small place; (4) purses were kept in

the room; (5) the “special brew” was kept in the room; (6)

the video “Freak-Nik” was playing in the room; and (7) the

providency inquiry was sufficient (as was the agreed

stipulation of facts) to meet the standard set forth in RCM

910(e). See Vonn, ___ U.S. at ___, 122 S.Ct. at 1052-53

(omission from guilty plea inquiry results in reversal of

conviction only when an appellant demonstrates his

substantial rights were affected, e.g., no automatic

reversal when mistake conducting inquiry under

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United States v. Sims, No. 01-0765/AR

Fed.R.Crim.P. 11 does not impact on “the overarching issues

of knowledge and voluntariness”); RCM 910(c).

The military judge carefully covered every element of

the offense with appellant, took the time to explain that

the standard was a “substantial risk,” and carefully placed

on the record exactly how substantial that risk was.

Appellant admitted this risk at trial and should not be

allowed now to claim that his plea was improvident.

Accordingly, I dissent.

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