United States v. Johnston
2016 CCA LEXIS 23
| N.M.C.C.A. | 2016Background
- Cpl. Dustin M. Johnston (19) exchanged ~2,000 text messages with A.C. (14) from Oct 2012–Jan 2013, including sexually explicit messages and photos; at least two photos the appellant sent featured his erect penis.
- A.C. initially told Johnston she was 17; she revealed she was 14 on 31 Dec 2012; texts and photos continued after that disclosure through 12 Jan 2013.
- NCIS recovered the messages and photos; appellant was convicted at general court-martial of four specifications of sexual abuse of a child (Art. 120b) and one specification of indecent exposure (Art. 120c); sentence: 8 months confinement, reduction to E‑1, forfeitures, bad‑conduct discharge.
- On appeal Johnston raised: (1) factual and legal insufficiency of the indecent‑exposure conviction; (2) facial and as‑applied vagueness of Art. 120c; (3) unreasonable multiplication of charges for dividing text messages into multiple specifications; and (4) that Art. 120c does not cover digital images.
- The court conducted a de novo factual sufficiency review, focused on three hallmarks to define “indecent manner”: lack of consent, involvement of a child (age/mistake of fact), and public visibility/privacy.
- Holding: the court set aside the indecent‑exposure conviction (Article 120c) for factual insufficiency (reasonable mistake of age, apparent consent in the sexting context, private transmission), mooting the vagueness and digital‑image issues; it rejected the unreasonable‑multiplication claim and affirmed remaining findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Factual sufficiency of indecent‑exposure conviction (Art. 120c) | Govt: photo of exposed penis plus surrounding sexting shows intentional indecent exposure | Johnston: reasonable belief victim was 17, apparent consent in sustained sexting, private transmission -> not indecent | Conviction set aside for factual insufficiency (consent context, reasonable mistake of age, privacy created reasonable doubt) |
| 2. Facial and as‑applied vagueness of Art. 120c | Johnston: statute overly broad/void for vagueness without public‑view element | Govt: statute clarified by case law factors; not unconstitutionally vague | Mooted by factual reversal; court framed factors (consent, age, public/private) for indecency analysis |
| 3. Unreasonable multiplication of charges (multiple text specs) | Johnston: single half‑hour conversation charged as multiple specifications | Govt: each discrete message is a separate act; charging was permissible | Rejected; no unreasonable multiplication (close call but factors weigh slightly for Govt) |
| 4. Applicability of Art. 120c to digital images | Johnston: statute does not reach digital images; legal insufficiency | Govt: Art. 120c covers exposure by any means | Mooted by factual ruling on indecent exposure; court did not decide the statute's reach to images |
Key Cases Cited
- United States v. Graham, 56 M.J. 266 (C.A.A.F. 2002) (private exposure to a non‑consenting minor can be indecent)
- United States v. Baker, 57 M.J. 330 (C.A.A.F. 2002) (indecency requires consideration of all circumstances including age, proximity, prior relationship, and consent)
- United States v. Strode, 43 M.J. 29 (C.A.A.F. 1995) (reasonable mistake of fact as to age can be a defense)
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (standard for de novo factual sufficiency review)
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (framework for assessing unreasonable multiplication of charges)
- United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (distinct criminal acts test for multiplicitous charging analysis)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (factors guiding appellate sentence reassessment)