United States v. Berry
ACM S32351
| A.F.C.C.A. | Feb 8, 2017Background
- Appellant (missile security Airman) was charged and convicted at a special court-martial of attempting to record a fellow Airman’s private areas with his cell phone; he was acquitted of creating an actual recording and dereliction of duty.
- Victim, a female Airman, returned from shower nude and heard a cell phone ring twice; she found a phone propped on her roommate’s bed, pointed toward her bed and partly concealed.
- The phone disappeared from the room before the victim and roommate returned; the victim later identified Appellant’s phone among others in the MAF.
- Appellant confessed to entering the victim’s room, setting his phone to record hoping to capture her nude, and deleting the video before watching it; forensic exam found no recording but an investigator testified a recording could have been made.
- Military judge suppressed the uncorroborated portion of the confession that alleged an actual recording but admitted the portion corroborating an attempt; trial conviction was for attempt under Article 80, UCMJ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appellant's confession was sufficiently corroborated to be admitted | Gov’t: Circumstantial evidence (timing, phone location, concealment, victim ID of phone) corroborates confession as to attempt | Appellant: No independent evidence shows intent to record victim naked or that a recording was attempted | Military judge and court: Confession admissible only as to attempt; corroborating circumstantial evidence supports admission (no abuse of discretion) |
| Whether the evidence was legally and factually sufficient to sustain conviction for attempt to record private areas | Gov’t: Victim ID, phone placement, absence of alternative explanation, and confession suffice | Appellant: Evidence was circumstantial and insufficient; no proof of recording or intent | Court: Evidence legally sufficient (viewed in prosecution’s favor) and factually sufficient (appellate court convinced beyond a reasonable doubt); conviction affirmed |
Key Cases Cited
- United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (framework for appellant’s assignments of error)
- United States v. Adams, 74 M.J. 137 (C.A.A.F. 2015) (corroboration requirement for confessions under prior Mil. R. Evid. 304(c))
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (standard of review for legal and factual sufficiency)
- United States v. Humphreys, 57 M.J. 83 (C.A.A.F. 2002) (legal sufficiency test)
- United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (articulating reasonable-finder standard)
- United States v. Barner, 56 M.J. 131 (C.A.A.F. 2001) (inferences drawn in favor of prosecution)
- United States v. McGinty, 38 M.J. 131 (C.M.A. 1993) (drawing inferences for prosecution)
- United States v. Lips, 22 M.J. 679 (A.F.C.M.R. 1986) (conflict in evidence does not preclude conviction)
- United States v. Dykes, 38 M.J. 270 (C.M.A. 1993) (appellate sufficiency review limited to trial record)