UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before KRIMBILL, BROOKHART, and LEVIN 1 Appellate Military Judges UNITED STATES, Appellee v. Sergeant MICHAEL R. MOTTELER JR. United States Army, Appellant ARMY 20180512 Seventh Army Training Command Joseph A. Keeler, Military Judge Lieutenant Colonel Joseph B. Mackey, Staff Judge Advocate For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA; Captain Zachary A. Gray, JA (on brief). For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H. Williams, JA; Major Craig J. Schapira, JA; Captain Christopher K. Wills, JA (on brief). 2 June 2020 ---------------------------------- SUMMARY DISPOSITION ---------------------------------- This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. LEVIN, Judge: A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification of attempted indecent recording and one specification of indecent exposure, in violation of Articles 80 and 120c, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 920c [UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for twenty months, and reduction to the grade of E-1. On appeal before this court, appellant raises one assignment of error involving a matter of statutory construction: 1 Judge Levin participated in this case while on active duty. MOTTELER—ARMY 20180512 WHETHER THE PLAIN-LANGUAGE READING OF ARTICLE 120c(c) MANDATES THAT IN ORDER TO BE GUILTY OF INDECENT [EXPOSURE], AN APPELLANT MUST BOTH INTENTIONALLY “EXPOSE” HIMSELF AND INTENTIONALLY DO SO “IN AN INDECENT MANNER.” For the reasons that follow, we find no error. LAW AND DISCUSSION “The mens rea applicable to an offense is an issue of statutory construction, reviewed de novo.” United States v. McDonald, 78 M.J. 376, 378 (C.A.A.F. 2019) (citing United States v. Gifford, 75 M.J. 140, 142 (C.A.A.F. 2016)). Where an appellant does not object at trial, he prevails only if his argument survives a plain error review. See United States v. Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017). Reviewing a question of law de novo is not “mutually exclusive” of a plain error appellate review of unpreserved error. See United States v. Davis, 75 M.J. 537, 542 (Army Ct. Crim. App. 2015) (citing United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013)). Under a plain error review, appellant has the burden of establishing: “(1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.” United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017) (citation omitted). “[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it.” Id. (citation omitted). “[F]ailure to establish any one of the prongs is fatal to a plain error claim.” Id. (citing United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)). For the third prong, “the appellant must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Id. (citation and internal quotation marks omitted). We begin our analysis ...
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