The Navy-Marine Court of Criminal Appeals overturns court-martial conviction for indecent exposure to a child due to factual insufficiency

Recently, the Navy-Marine Court of Criminal Appeals (N-MCCA) in United States v. Johnston, reversed the conviction of an appellant convicted of indecent exposure at a court-martial for sending a text message showing his erect penis to a fourteen year old girl.  The appellant, a Marine Corporal, met the young girl (A.C.) electronically through online social networking in 2012.   Corporal Johnston and (A.C.) began talking to each other through texts between October 2012 and January 2013.  Corporal Johnston was 19 at the time and A.C. lied to him stating that she was 17, when she was really 14.  They exchanged over 2,000 texts, some of them sexual in nature.  In some of the “sexts,” A.C. sent pictures of herself and Corporal Johnston on more than one occasion sent her a picture of his erect penis.  On December 31, 2012, about two months after they began exchanging texts, A.C. revealed to Corporal Johnston that she was really 14 years old.  Corporal Johnston became angry with her and they did not text for a few days.  Then, the texting and sexting resumed and Corporal Johnston sent A.C. at least one more picture of his erect penis.  A.C.’s mother saw the text messages and turned Corporal Johnston into Marine Corps law enforcement.  At his court-martial, one of the charges he was convicted of was indecent exposure for a picture sent prior to December 31, 2012.  On appeal, the N-MCCA reviewed that indecent exposure charge and determined that it was not proven beyond a reasonable doubt.  The court found that Corporal Johnston believed he was texting a 17 year old girl at the time and even though a child cannot consent, he had a reasonable mistaken belief that she was 17 and consented.  The court also highlighted the fact that the text was private and not in a public setting.  Therefore, the N-MCCA overturned Corporal Johnston’s conviction of indecent exposure for this time period based on factual insufficiency.  In most of the court-martial appeals I write and argue, I include an argument regarding factual insufficiency.  If the elements of a crime are not fully proven beyond a reasonable doubt at the court-martial level, an appellate court may overturn the conviction.  If you or your loved one may have a factual insufficiency appeal, contact me.  The consultation is free.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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