United States v. Bishop , 76 M.J. 627 ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38879
________________________
UNITED STATES
Appellee
v.
Jaren T. BISHOP
Airman First Class (E-3), USAF, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 2 February 2017
________________________
Military Judge: Marvin W. Tubbs II (sitting alone).
Approved sentence: Dishonorable discharge, confinement for 3 years, forfeiture
of all pay and allowances, and reduction to E-1. Sentence adjudged 21 May
2015 by GCM convened at Little Rock Air Force Base, Arkansas.
For Appellant: Captain Travis L. Vaughan, USAF.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce, Esquire;
and Ms. Morgan L. Herrell (civilian intern). 1
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military Judges.
Judge JOHNSON delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge SPERANZA joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
1Ms. Herrell was a law student extern with the Air Force Legal Operations Agency
and was at all times supervised by attorneys admitted to practice before this court
during her participation.
United States v. Bishop, No. ACM 38879
JOHNSON, Judge:
A general court-martial composed of a military judge sitting alone found
Appellant guilty contrary to his pleas of one specification of sexual assault in
violation of Article 120, UCMJ, 10 U.S.C. § 920. The court-martial sentenced
Appellant to a dishonorable discharge, confinement for three years, forfeiture
of all pay and allowances, and reduction to E-1. The convening authority ap-
proved the sentence as adjudged.
Before us, Appellant raises six assignments of error: (1) the evidence is le-
gally and factually insufficient to support his conviction; (2) the military judge
erred in admitting uncorroborated portions of Appellant’s oral and written
statements to investigators; (3) the military judge erred in denying the Defense
motion to compel expert assistance, discovery, and production related to the
victim’s phone; (4) the military judge erred in partially denying the Defense
motion under Military Rule of Evidence (Mil. R. Evid.) 412; (5) the military
judge erred in partially denying the Defense motion under Mil. R. Evid. 513;
and (6) the military judge erred in denying the Defense motion to suppress a
text exchange between Appellant and the victim and Appellant’s statements to
investigators. 2 We find no relief is warranted and thus affirm the findings and
sentence.
I. BACKGROUND
Appellant was a member of the security forces squadron at Little Rock Air
Force Base, Arkansas. Airman First Class (A1C) JS was a member of the same
squadron and an acquaintance of Appellant. A1C JS was also a good friend of
Appellant’s ex-wife, Staff Sergeant (SSgt) AC, who was assigned to the same
base.
At approximately 2230 on 4 July 2014, A1C JS returned to her off-base
house after a difficult day on the swing shift. Around 2300, two other female
Airmen visited A1C JS at her house for approximately three hours. In her trial
testimony, A1C JS estimated she drank one bottle of beer and approximately
one and a half bottles of pre-mixed liquor during this time. Sometime after the
two visitors left around 0200 on 5 July 2014, A1C JS sent a text message to
Appellant asking him if he could give her a ride onto the base the next day,
writing “Can you give me a ride tomorrow I’m really drunk.” 3 In the course of
a brief text conversation, Appellant agreed. After a 17-minute lull in their text
2Appellant personally raises the fourth, fifth, and sixth assignments of error pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3 A1C JS’s on-base driving privileges had been revoked at the time.
2
United States v. Bishop, No. ACM 38879
exchange, during which A1C JS continued texting with two other individuals,
Appellant reinitiated texting. After another brief exchange, A1C JS invited Ap-
pellant to come to her house to “hang out.” Appellant accepted. In the following
half hour before Appellant arrived, A1C JS invited several other individuals to
her house, including Appellant’s ex-wife SSgt AC, but no one else came.
When Appellant arrived, A1C JS prepared a drink for him, she told him
about her upsetting day at work, and they watched television for a time. They
were alone in the house. A1C JS later described herself as “pretty drunk” by
this point and she was still drinking. Eventually, Appellant moved close to A1C
JS and leaned towards her in what she believed was an attempt to kiss her.
A1C JS had no previous romantic or sexual involvement with Appellant, and
in her testimony she denied having any interest in such involvement. After
Appellant moved toward her, A1C JS jumped up, ran to her bedroom, and tried
unsuccessfully to shut the door. Appellant called out to her asking what was
wrong. A1C JS began to hyperventilate and she vomited on the floor of her
bedroom. She responded to Appellant, telling him she was throwing up and
just wanted to go to bed. She went to her bathroom and locked the door. Then
she went to her bathroom closet, created impromptu bedding for herself from
clothing, laid down, and fell asleep.
A1C JS had no memory of anything that occurred after that point until her
alarm went off at 0800 hours, when she found herself naked in her bed with
Appellant pressed up against her. She felt a throbbing pain and was bleeding
in her vagina. When Appellant awoke, he attempted to initiate sex with her
but A1C JS refused. Later Appellant, who had brought his uniform with him,
got dressed, and A1C JS rode with him to a unit event on base. When A1C JS
returned home, she spent the rest of the weekend cleaning her house. Signifi-
cantly, she found and cleaned a small amount of feces in her bathroom on the
outside base of the toilet.
On 7 July 2014, A1C JS reported the sexual assault and submitted to an
examination that indicated the presence of DNA consistent with Appellant’s in
her vagina. That same day, A1C JS was interviewed by agents of the Air Force
Office of Special Investigations (AFOSI), and she agreed to allow them to ob-
serve a text exchange she initiated with Appellant. In the course of the ex-
change, A1C JS stated she did not remember what happened. Appellant wrote
that A1C JS had gone to the bathroom for a long time and he thought she may
have passed out. He found her “knocked out naked in [her] closet.” Appellant
further wrote that he “picked [her] up and put [her] in bed then [she] got up
and was hyper as f**k.” According to Appellant, A1C JS then invited Appellant
to join her in the shower, which he did, and they “had sex” there. They then
moved to the bed where they engaged in sexual intercourse for “almost 2 hours”
3
United States v. Bishop, No. ACM 38879
before Appellant ejaculated on A1C JS’s breasts. Appellant concluded with “I’m
sorry :( I thought u were conscious enough to know I feel terrible.”
Appellant was subsequently interviewed by AFOSI agents and agreed to
provide oral and written statements. His account largely corroborated A1C
JS’s subsequent testimony as to the events she could remember. As to events
she could not remember, he elaborated on the version he texted to A1C JS. In
particular, he explained he was able to open the locked bathroom door when
he found a key above the doorway. He further described finding A1C JS in her
bathroom closet, lying unconscious on her stomach, naked from the waist
down, with feces “smeared all over her buttocks.” He attempted to awaken her
three times by tapping her on the shoulder, but she did not respond. Neverthe-
less, Appellant maintained that after he attempted to move A1C JS to her bed,
she suddenly became hyperactive, alert, and the initiator of the subsequent
sexual activity.
II. DISCUSSION
A. Defense Motion to Compel Expert Assistance, Discovery, and Pro-
duction
Appellant contends the military judge abused his discretion by denying
both the Defense motion to compel expert assistance in the field of computer
forensics and the motion to compel discovery and production of the victim’s cell
phone. Appellant’s assignment of error combines two distinct issues which we
consider in turn, beginning with the discovery and production of the victim’s
phone.
We review a military judge’s ruling on requests for discovery or production
of evidence for an abuse of discretion. United States v. Jones, 69 M.J. 294, 298
(C.A.A.F 2011); United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004).
An abuse of discretion occurs when the military judge’s findings of fact are
clearly erroneous or when his ruling is influenced by an erroneous view of the
law. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008).
Each party to a court-martial must have an equal opportunity to inspect
evidence and to obtain witnesses and other evidence. United States v. Stellato,
74 M.J. 473, 483 (C.A.A.F. 2015) (citing Rule for Courts-Martial (R.C.M.) 701(e)
and Article 46, UCMJ, 10 U.S.C. § 846). The Court of Appeals for the Armed
Forces (CAAF) “has interpreted this requirement to mean that the ‘Govern-
ment has a duty to use good faith and due diligence to preserve and protect
evidence and make it available to the accused.’” Id. (quoting United States v.
Kern, 22 M.J. 49, 51 (C.M.A. 1986)). The duty to preserve includes (1) evidence
that has an apparent exculpatory value and that has no comparable substitute;
(2) evidence of such central importance to the Defense that it is essential to a
4
United States v. Bishop, No. ACM 38879
fair trial; and (3) statements of witnesses testifying at trial. Id. (citations omit-
ted).
Each party is entitled to the production of evidence which is relevant and
necessary. R.C.M. 703(f)(1); Rodriguez, 60 M.J. at 246. Evidence is relevant if
“it has any tendency to make a fact more or less probable than it would be
without the evidence” and “is of consequence in determining the action.” Mil.
R. Evid. 401. “Relevant evidence is ‘necessary when it is not cumulative and
when it would contribute to a party’s presentation of the case in some positive
way on a matter in issue.’” Rodriguez, 60 M.J. at 246 (quoting R.C.M. 703((f)(1)
Discussion).
AFOSI agents extracted data from A1C JS’s cell phone on 7 July 2014 be-
fore returning the phone to her. The Government did not thereafter seek or
obtain possession of her phone. However, trial defense counsel were provided
with electronic copies of the extracted data. At trial, the Defense sought to
compel the Government to secure A1C JS’s phone to enable trial defense coun-
sel to access it. The Defense essentially advanced two arguments: (1) The De-
fense needed to examine A1C JS’s phone to determine whether there was ad-
ditional data on the phone as of 7 July 2014 that had not been captured by
AFOSI’s extraction; and (2) There were text messages on the phone sent after
the extraction that were potentially useful to the Defense, pointing to A1C JS’s
testimony that she had sent messages after 7 July 2014 regarding her thoughts
and feelings about the sexual assault and the facts of the case.
The military judge denied the Defense motion. In an oral ruling, he found
A1C JS’s phone was not in the possession of the Government, and, therefore,
discovery under R.C.M. 701 was not applicable. Turning to production under
R.C.M. 703, the military judge found that although A1C JS testified she sent
text messages about the sexual assault after 7 July 2014, the Defense had pro-
duced no evidence as to what those messages were nor to whom they were sent.
Therefore, the military judge could not determine that they were relevant or
necessary, and thus they did not meet the standard for compelling production
under R.C.M. 703.
We find the military judge did not abuse his discretion. With regard to the
Government’s duty to preserve evidence, AFOSI extracted the data on
A1C JS’s phone as of 7 July 2014 before returning the phone to her. The De-
fense was subsequently provided a copy of the extracted data. There was no
showing that the copy of the data extracted by AFOSI in fact omitted any evi-
dence of relevance to the case that was on the phone as of 7 July 2014. Thus,
the Government fulfilled its duty of good faith and due diligence to preserve
evidence of apparent exculpatory value or of such central importance to the
Defense that it was essential to a fair trial. See Stellato, 74 M.J. at 483.
5
United States v. Bishop, No. ACM 38879
With regard to the phone itself, we agree with the military judge that once
it was returned to A1C JS it was no longer in the Government’s possession,
and, therefore, the appropriate analysis is production under R.C.M. 703(f) ra-
ther than discovery under R.C.M. 701. As the moving party, the Defense bore
the burden of persuading the trial court that production of A1C JS’s phone was
required to obtain relevant and necessary evidence. R.C.M. 905(c)(2)(A),
906(b)(7); see Rodriguez, 60 M.J. at 246. Trial defense counsel offered no spe-
cific information that any particular relevant evidence not already in the pos-
session of the Defense was on the phone. A1C JS’s general statement that she
sent text messages about the incident after 7 July 2014 was, standing alone,
insufficient to demonstrate relevance or necessity. 4 This was not necessarily
an impossible burden for trial defense counsel; for example, they might have
learned of the existence of specific relevant and necessary text messages from
interviewing the victim’s friends and associates and used such information to
bolster their motion. But that was not the case here.
Turning to the Defense motion to compel the assistance of an expert in
computer forensics, “[a] military judge’s ruling on a request for expert assis-
tance is reviewed for an abuse of discretion.” United States v. Lloyd, 69 M.J.
95, 99 (C.A.A.F. 2010) (citing United States v. Bresnahan, 62 M.J. 137, 143
(C.A.A.F. 2005)). An accused is entitled to expert assistance when necessary
for an adequate defense. Freeman, 65 M.J. at 458. The mere possibility of as-
sistance is not a sufficient basis; “[i]nstead, the accused has the burden of es-
tablishing that a reasonable probability exists that (1) an expert would be of
assistance to the defense and (2) that denial of expert assistance would result
in a fundamentally unfair trial.” Id. (citations omitted). “To establish the first
prong, the accused ‘must show (1) why the expert assistance is needed; (2) what
the expert assistance would accomplish for the accused; and (3) why the de-
fense counsel were unable to gather and present the evidence that the expert
assistance would be able to develop.’” Id. (quoting Bresnahan, 62 M.J. at 143).
“Defense counsel are expected to educate themselves to attain competence in
defending an issue presented in a particular case.” United States v. Kelly, 39
M.J. 235, 238 (C.A.A.F. 1994).
Trial defense counsel sought and were granted the assistance of expert con-
sultants in forensic toxicology, forensic psychology, forensic biology, and foren-
sic sexual assault nurse examination. However, their request for an expert con-
sultant in computer forensics was denied by the convening authority. At trial,
the Defense sought to compel such an expert to assist trial defense counsel both
to understand and analyze the data already extracted from Appellant’s and
4Significantly, Airman First Class (A1C) JS testified she did not send any text mes-
sages from her phone to Appellant after 7 July 2014.
6
United States v. Bishop, No. ACM 38879
A1C JS’s phones and provided to the Defense, and to examine the phones them-
selves. As to the extracted data provided by the Government, trial defense
counsel argued they “lack[ed] the skill or ability to sort, analyze, review, or
understand this digital evidence. Indeed, the Defense has had difficulty even
opening some of the files involved, and the Defense does not have the skill,
tools, or software to try to resolve those issues.” However, during argument on
the motion trial defense counsel conceded they had not sought AFOSI’s assis-
tance in opening the files provided by AFOSI. With regard to analyzing the
phones themselves, trial defense counsel relied on a general statement pro-
vided by their requested computer forensics expert stating the type of data ex-
traction AFOSI performs “is often not all of the data that is contained in the
device and that may be relevant to the case.”
The military judge denied the motion to compel and provided a written rul-
ing. In his findings of fact, the military judge summarized the extracted mate-
rial in trial defense counsel’s possession before noting “[t]he Defense did not
present any evidence to show that these files were not accessible to them nor
was any evidence submitted that demonstrated the content of the files was
beyond the ability of the Defense to analyze and sort.” Therefore, after reciting
the applicable standards set forth in Freeman, 65 M.J. at 458, the military
judge concluded trial defense counsel had not met their burden of persuasion
that expert assistance in computer forensics was needed, or that the lack of
such assistance would result in a fundamentally unfair trial.
We find no abuse of discretion. The military judge’s findings of fact are sup-
ported by the record and he applied the correct legal standards in denying the
motion to compel expert assistance. While it is possible such expertise might
have assisted Appellant at trial, a possibility alone is not sufficient. See id. In
the absence of any factual showing—as opposed to mere argument—that trial
defense counsel were unable to access the data provided, with or without gov-
ernment assistance; that trial defense counsel attempted to educate them-
selves sufficiently to understand the data provided; or that expert assistance
would have enabled them to access any additional relevant and necessary in-
formation not already in their possession, the Defense failed to meet its burden
to demonstrate either that the requested expertise was needed or that denial
resulted in a fundamentally unfair trial. See id.
B. Corroboration of References to Feces in Appellant’s Admissions
In his oral and written statements to AFOSI, Appellant described A1C JS
as having feces smeared on her buttocks when he found her, unconscious and
naked from the waist down, in her bathroom closet. The presence of feces on
the victim’s body became a focal point of both the AFOSI interview and litiga-
tion at trial. Appellant now contends the military judge erred in denying the
7
United States v. Bishop, No. ACM 38879
Defense motion to suppress his references to feces on A1C JS’s body in his
written and video-recorded oral statements to AFOSI as an uncorroborated ad-
mission inadmissible under Mil. R. Evid. 304.
Mil. R. Evid. 304(c)(1) provides: “An admission or a confession of the ac-
cused may be considered as evidence against the accused on the question of
guilt or innocence only if independent evidence, either direct or circumstantial,
has been admitted into evidence that would tend to establish the trustworthi-
ness of the admission or confession.” The version of Mil. R. Evid. 304(c)(4) in
effect at the time of Appellant’s trial further provided:
The independent evidence necessary to establish corroboration
need not be sufficient of itself to establish beyond a reasonable
doubt the truth of the facts stated in the admission or confession.
The independent evidence need raise only an inference of the
truth of the essential facts admitted. The amount and type of
evidence introduced as corroboration is a factor to be considered
by the trier of fact in determining the weight, if any, to be given
to the admission or confession. 5
Interpreting this rule, the CAAF explained, “M[il]. R. E[vid]. 304(c) re-
quires an amount of independent evidence sufficient to justify an inference of
truth of the essential facts admitted from the confession [or admission].”
United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015). “What constitutes
an essential fact of an admission or confession necessarily varies by case.” Id.
“If sufficient corroborating evidence of an essential fact is not provided, then
the uncorroborated fact is not admissible and the military judge must excise it
from the confession [or admission].” Id. “There is no ‘tipping point’ of corrobo-
ration which would allow admission of the entire confession.” Id. In other
words, each essential fact must be individually corroborated by independent
evidence sufficient to create an inference of the truth of that admitted fact. The
5 After Appellant’s trial, Executive Order 13,730 amended Mil. R. Evid. 304(c) to re-
move the individual corroboration requirement for “essential facts” and instead require
corroboration only for the confession or admission as a whole. Exec. Order 13,730, 81
Fed. Reg. 33,350–51 (26 May 2016). For example, Mil. R. Evid. 304(c)(2) currently
reads in part: “Not every element or fact contained in the confession or admission must
be independently proven for the confession or admission to be admitted into evidence
in its entirety.” Id. at 33,350. Thus the CAAF’s analysis of the prior version of Mil. R.
Evid. 304(c) in United States v. Adams, 74 M.J. 137 (C.A.A.F. 2015), discussed here,
while appropriately guiding the military judge’s ruling in Appellant’s trial, has been
rendered moot for current trial practice by a subsequent change to the rule.
8
United States v. Bishop, No. ACM 38879
amount of independent evidence required may be “slight” so long as it creates
an inference of truth. Id. (citations omitted).
In an oral ruling, the military judge denied the Defense motion to suppress
under Mil. R. Evid. 304. Applying the applicable legal standards from Mil. R.
Evid. 304 and Adams, he found Appellant’s admissions that A1C JS had feces
on her body when he found her on the floor of her bathroom closet in the early
hours of 5 July 2014 were sufficiently corroborated by A1C JS’s testimony that
she found a small amount of feces on the outside of the base of her toilet when
she cleaned her bathroom later that same day.
Appellant contends that finding feces on A1C JS’s toilet, in the absence of
any evidence of feces found on her clothes, bed, or closet, was insufficient cor-
roboration. We disagree. A slight amount of corroboration may be sufficient,
see Adams, 74 M.J. at 140, and we find the military judge did not abuse his
discretion in concluding that feces on the outside base of the toilet was suffi-
cient corroboration that A1C JS had feces on her naked buttocks on the floor
of the closet bathroom earlier the same day.
We are not persuaded by Appellant’s comparison of the instant case to
United States v. Perez, ACM 38559 (A.F. Ct. Crim. App. 12 Aug. 2015) (unpub.
op.). In Perez, this court found the military judge abused his discretion by fail-
ing to require the prosecution to offer independent corroboration of each essen-
tial fact the Government relied on in securing a conviction, as required by Ad-
ams. 6 Id. at 8–11. Appellant argues his case is similar because the military
judge used an unrelated fact to corroborate an essential fact. We disagree. In
Appellant’s case, unlike Perez, the military judge employed the applicable
standard for corroboration set forth in Adams and applied it to the particular
essential fact challenged by trial defense counsel. His conclusion was factually
and legally sound and we find no error.
C. Legal and Factual Sufficiency
We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). Our assessment of legal and factual sufficiency is limited to
6At the time Perez was tried, Adams had not been decided. The panel in Perez acknowl-
edged the military judge’s conclusions “may have been a reasonable application of pre-
Adams case law,” but recognized “courts on direct review apply the law at the time of
the appeal, not the time of trial.” United States v. Perez, ACM 38559, unpub. op. at 9
(A.F. Ct. Crim. App. 12 Aug. 2015) (citing United States v. Mullins, 69 M.J. 113, 116
(C.A.A.F. 2010)).
9
United States v. Bishop, No. ACM 38879
the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993).
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324 (C.M.A. 1987); see also United States v. Humph-
erys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term “reasonable doubt” does not
mean that the evidence must be free from conflict. United States v. Lips, 22
M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency,
we are bound to draw every reasonable inference from the evidence of record
in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, im-
partial look at the evidence,” applying “neither a presumption of innocence nor
a presumption of guilt” to “make [our] own independent determination as to
whether the evidence constitutes proof of each required element beyond a rea-
sonable doubt.” Washington, 57 M.J. at 399.
Appellant was convicted of a single specification of sexual assault under
Article 120, UCMJ. To sustain a conviction for sexual assault, the prosecution
was required to prove: (1) Appellant committed a sexual act upon A1C JS, to
wit: penetrating her vulva with his penis; and (2) Appellant did so when A1C
JS was incapable of consenting to the sexual act due to impairment by an in-
toxicant, and that condition was known or reasonably should have been known
to Appellant. See Department of the Army Pamphlet 27-9, Military Judges’
Benchbook, 3-45-14. Appellant contends his conviction is legally and factually
insufficient in light of the CAAF’s recent decision in United States v. Pease, 75
M.J. 180 (C.A.A.F. 2016). In Pease, our superior court found the Navy-Marine
Corps Court of Criminal Appeals applied the proper definition of “incapable of
consenting” when it overturned the appellant’s convictions for sexual assault
and abusive sexual contact under Article 120, UCMJ. Id. at 182. Specifically,
the CAAF endorsed the following definition: “‘lack[ing] the cognitive ability to
appreciate the sexual conduct in question or [lacking] the physical or mental
ability to make [or] to communicate a decision about whether they agreed to
10
United States v. Bishop, No. ACM 38879
the conduct.’” 7 Id. at 185-86 (quoting United States v. Pease, 74 M.J. 763, 770
(N-M. Ct. Crim. App. 2015)).
According to Appellant, his own statements to AFOSI—introduced by the
Government at trial—that the victim was conscious, mobile, and not only com-
municated her agreement but initiated the sexual activity fatally undermines
the Government’s case in light of the definition of “incapable of consenting”
articulated in Pease. Appellant characterizes trial counsel’s closing argument
as “effectively conceding” that A1C JS had awakened and was moving about,
and Appellant contends evidence that A1C JS was drunk and her executive
functioning was impaired was, without more, insufficient to prove she was in-
capable of consenting. Appellant argues his statements to AFOSI, coupled with
evidence of A1C JS’s motives to fabricate, her character for untruthfulness,
and scientific evidence that she could have made and communicated consent
while later not remembering the events, establish a reasonable doubt as to his
guilt.
We disagree. Appellant’s statements to investigators offered by the prose-
cution corroborated important aspects of A1C JS’s testimony and added sub-
stantial additional evidence that she was, in fact, incapable of consenting—for
example, that Appellant found her on the floor of her closet unconscious, unre-
sponsive, half-naked, and with feces smeared on her buttocks. However, trial
counsel was not bound to accept the entirety of Appellant’s statements at face
value; nor did they. Trial counsel’s argument on findings is replete with chal-
lenges to the credibility of various contradictory and self-serving aspects of Ap-
pellant’s statements. Similarly, the military judge was not required to accept
Appellant’s statements wholesale merely because there was no other witness
to events from the time A1C JS fell asleep in her bathroom closet until her
alarm woke her at 0800. Nor are we so constrained.
The Government presented evidence that on the night in question A1C JS
drank at least one bottle of beer and one and a half bottles of mixed liquor over
the course of approximately three to four hours. She described herself to Ap-
pellant as “really drunk” and “wasted” before he arrived, and Appellant later
described her to investigators as “pretty drunk.” After Appellant moved toward
7 The CAAF found the Navy-Marine Corps Court of Criminal Appeals (NMCCA) mis-
stated the definition as lacking the ability “to make and to communicate a decision,”
rather than “to make or to communicate a decision.” United States v. Pease, 75 M.J.
180, 186 (C.A.A.F. 2016) (citing United States v. Pease, 74 M.J. 763, 770 (N-M. Ct.
Crim. App. 2015)) (emphasis added). However, notwithstanding this “scrivener’s er-
ror,” the CAAF found the NMCCA in fact applied the correct definition in overturning
the appellant’s Article 120 convictions. Id.
11
United States v. Bishop, No. ACM 38879
her, A1C JS fled to her bedroom where she vomited on the floor. She then re-
treated to her bathroom, which she locked in order to keep Appellant out. She
made a bed for herself from the clothes in her closet, lay down, and fell asleep.
Appellant gained access to the bathroom when he found a key above the door.
He found A1C JS on the floor of her bathroom closet, unconscious and naked
from the waist down, with feces smeared on her buttocks. She did not respond
when he repeatedly attempted to awaken her. When A1C JS awoke at 0800,
she was lying naked next to Appellant with pain and bleeding in her vagina.
Appellant later informed her they had sexual intercourse. Evidence of DNA
consistent with Appellant’s was subsequently found on swabs of her vagina
taken after she reported the assault two days later. Drawing “every reasonable
inference from the evidence of record in favor of the prosecution,” see Barner,
56 M.J. at 134, the evidence was legally sufficient to support a finding that
Appellant’s penis penetrated A1C JS’s vulva, that A1C JS was incapable of
consenting due to impairment by an intoxicant, and that condition was known
or reasonably should have been known to Appellant. Thus Appellant’s convic-
tion for sexual assault is legally sufficient.
Turning to factual sufficiency, several factors undermine the credibility of
Appellant’s account of events from the time he found A1C JS unconscious to
the time she awoke later that morning. Appellant’s version is evidently self-
serving. His claim that A1C JS suddenly, in his words, “sprang back to life,
completely hyper running around the house,” before initiating a marathon of
sexual intercourse with Appellant first in the shower and then pulling him to
her bed strains credulity. AFOSI investigators challenged him on several in-
consistencies with regard to the timeline and sequence of events, as well as
details such as whether and how A1C JS dressed herself after she allegedly
awoke and where Appellant ejaculated. Appellant’s explanations are uncon-
vincing, and he acknowledged lying to A1C JS about ejaculating on her breasts.
At trial the Defense offered opinion testimony from two members of the
squadron—one of them a friend of Appellant—that A1C JS had an untruthful
character, and testimony from Appellant’s friend and the unit first sergeant
that A1C JS had a reputation for untruthfulness. The prosecution countered
with opinion testimony from four witnesses as A1C JS’s truthful character. The
Defense also offered evidence that A1C JS was in a romantic relationship with
another member of the squadron, SSgt JM, although A1C JS and SSgt JM had
argued on 3 July 2014 and were avoiding speaking to one another at the time
of the assault. During argument on findings, trial defense counsel proposed
A1C JS thus had a motive to fabricate a false allegation of sexual assault to
protect her relationship with SSgt JM. There was also evidence A1C JS had
previously expressed a desire to leave Little Rock Air Force Base, and that she
sought and obtained an expedited transfer to another base one or two months
12
United States v. Bishop, No. ACM 38879
after she reported the sexual assault. Finally, there was some evidence and
expert testimony as to prescription drugs A1C JS may have been taking at the
time and the effects they might have had. In our view, none of this evidence
significantly undermines the strong evidence that Appellant penetrated the
victim’s vulva with his penis, while she was incapable of consenting to the sex-
ual act due to impairment by an intoxicant, and that Appellant either knew or
reasonably should have known the victim was incapable of consenting. Having
weighed the evidence in the record of trial and having made allowances for not
having personally observed the witnesses, we are convinced of Appellant’s guilt
beyond a reasonable doubt.
D. Partial Denial of Mil. R. Evid. 412 Motion
Appellant next asserts the military judge erred by excluding under Mil. R.
Evid. 412 evidence of events at a party attended by A1C JS and other Airmen—
not including Appellant—that occurred in February 2011, over three years be-
fore the charged offense. 8 Trial defense counsel argued the evidence showed
A1C JS had previously lied about engaging in sexual activity in order to protect
a developing romantic relationship. Therefore, trial defense counsel asserted,
the evidence was constitutionally required under the Sixth Amendment in or-
der for the Defense to confront and impeach A1C JS with regard to the charge
against Appellant.
“We review the military judge’s ruling on whether to exclude evidence pur-
suant to [Mil. R. Evid.] 412 for an abuse of discretion. Findings of fact are re-
viewed under a clearly erroneous standard and conclusions of law are reviewed
de novo.” United States v. Ellerbrock, 70 M.J. 314, 317 (C.A.A.F. 2011) (citation
omitted).
Under Mil. R. Evid. 412, evidence offered by the accused to show that the
alleged victim engaged in other sexual behavior is inadmissible, with three
limited exceptions. The third exception states that the evidence is admissible
if “the exclusion of [it] would violate the constitutional rights of the accused.”
Mil. R. Evid. 412(b)(1)(C). This exception includes an accused’s Sixth Amend-
ment right to confront witnesses against him, including the right to cross-ex-
amine and impeach those witnesses. Ellerbrock, 70 M.J. at 318.
If there is a theory of admissibility under one of the exceptions, the military
judge, before admitting the evidence, must conduct a balancing test as outlined
in Mil. R. Evid. 412(c)(3) and clarified by United States v. Gaddis, 70 M.J. 248,
250 (C.A.A.F. 2011). The test is whether the evidence is “relevant, material,
8 Appellant raises this issue pursuant to Grostefon, 12 M.J. at 435.
13
United States v. Bishop, No. ACM 38879
and the probative value of the evidence outweighs the dangers of unfair preju-
dice.” Ellerbrock, 70 M.J. at 318 (citation omitted). Relevant evidence is any
evidence that has “any tendency to make the existence of any fact . . . more
probable or less probable than it would be without the evidence.” Mil. R. Evid.
401. Evidence is material if it is “of consequence to the determination of [the]
appellant’s guilt.” United States v. Dorsey, 16 M.J. 1, 6 (C.M.A. 1983) (citations
and internal quotation marks omitted).
In closed proceedings, the military judge received evidence and heard ar-
gument from counsel. He concluded in an oral ruling the Defense had failed to
show that events involving A1C JS, but not Appellant, that occurred over three
years prior to the charged offense were relevant at Appellant’s trial. Specifi-
cally, the military judge found the Defense offered insufficient evidence to sup-
port a conclusion A1C JS had lied or even made an inaccurate statement. The
military judge further found that, given the lack of concrete evidence that A1C
JS lied about events at the 2011 party, the probative value of the offered testi-
mony did not outweigh the danger of unfair prejudice.
We find no abuse of discretion in excluding the evidence. Without deciding
whether the military judge was correct in his conclusion that the offered evi-
dence had no relevance, we agree that whatever minimal relevance it had was
outweighed by the dangers of unfair prejudice. The offered testimony was un-
clear as to what question was posed to A1C JS after the prior incident, in re-
sponse to which she allegedly lied. Moreover, the incident in question occurred
over three years before the charged offense, was unrelated to the charged of-
fense, and did not involve Appellant. Trial judges retain “wide latitude” to rea-
sonably limit an accused’s right to cross-examine a witness based on concerns
including harassment, confusion of the issues, or “interrogation that is . . . only
marginally relevant.” Ellerbrock, 70 M.J. at 318 (citations and internal quota-
tion marks omitted). The military judge acted within the scope of that latitude.
E. Partial Denial of Mil. R. Evid. 513 Motion
Trial defense counsel moved the trial court to compel the production of A1C
JS’s mental health records. Trial counsel obtained the records and provided
them to the military judge. After in camera review, the military judge released
some but not all of the records to the parties subject to a protective order. Ap-
pellant now asserts the military judge’s failure to provide all of the records
violated Appellant’s Sixth Amendment right to effectively confront A1C JS. 9
9 Appellant raises this issue pursuant to Grostefon, 12 M.J. at 435.
14
United States v. Bishop, No. ACM 38879
We review a military judge’s ruling on a discovery or production request for
abuse of discretion. Stellato, 74 M.J. at 480. “A military judge abuses his dis-
cretion when his findings of fact are clearly erroneous, when he is incorrect
about the applicable law, or when he improperly applies the law.” United
States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). “Our review of discov-
ery/disclosure issues utilizes a two-step analysis: first, we determine whether
the information or evidence at issue was subject to disclosure or discovery; sec-
ond, if there was nondisclosure of such information, we test the effect of that
nondisclosure on the appellant’s trial.” Id. at 325.
Mil. R. Evid. 513(a) provides:
A patient has a privilege to refuse to disclose and to prevent any
other person from disclosing a confidential communication made
between the patient and a psychotherapist or an assistant to a
psychotherapist, in a case arising under the [UCMJ], if such
communication was made for the purpose of facilitating diagno-
sis or treatment of the patient’s mental or emotional condition.
However, the privilege is subject to a number of exceptions. Mil. R. Evid.
513(d). At the time of Appellant’s trial, these exceptions expressly included
when the records are “constitutionally required.” Mil. R. Evid. 513(d)(8) as
amended by Exec. Order 13,643, 78 Fed. Reg. 29,559, 29,592 (15 May 2013). A
prosecutor may not suppress evidence favorable to an accused upon request,
as this violates constitutional notions of due process where the evidence is ma-
terial either to guilt or punishment, irrespective of the good faith or bad faith
of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). When a witness’s
reliability may well be determinative of guilt or innocence, nondisclosure of
evidence affecting credibility falls within this general rule. Giglio v. United
States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269
(1959)). Therefore, the Government violates an accused’s due process rights if
it withholds evidence that is “exculpatory, substantive evidence, or evidence
capable of impeaching the [G]overnment’s case,” and “there is a reasonable
probability that, had the evidence been disclosed, the result of the proceeding
would have been different.” United States v. Behenna, 71 M.J. 228, 238
(C.A.A.F. 2012) (quotation marks omitted).
At trial the Defense contended A1C JS’s mental health records were re-
quired because: (1) they would likely contain information about conditions and
drug prescriptions that might have affected her perception of events on the
night in question; (2) they would contain information she related to providers
about the sexual assault; and (3) they could be used to explore and rebut claims
of victim impact during any sentencing proceedings. For these reasons, trial
15
United States v. Bishop, No. ACM 38879
defense counsel argued, the mental health records should be disclosed to ena-
ble the Defense to effectively cross-examine A1C JS in accordance with Appel-
lant’s Sixth Amendment right to confrontation. After hearing testimony and
argument on the motion and in camera review of the available records, the
military judge issued an oral ruling. Subject to a protective order, he released
to the parties those records that were responsive to the Defense request and
either: (1) were not covered by Mil. R. Evid. 513 because they were not in fact
mental health records; (2) were covered by Mil. R. Evid. 513 but referenced the
events described in the specification of the charge against Appellant, and were
therefore potentially constitutionally required; or (3) were covered by Mil. R.
Evid. 513 but were indicative of an inability to remember or a tendency to mis-
perceive events or things on the part of A1C JS, and were, therefore, constitu-
tionally required.
On appeal, Appellant fails to articulate how any specific information con-
tained in the undisclosed records would have impacted his trial in any way,
beyond a bare assertion that disclosure would have enabled the Defense to bet-
ter present its theory of the case and more fully impeach and confront A1C JS.
Nevertheless, we have reviewed the undisclosed records. We readily conclude
the undisclosed records were neither exculpatory, nor capable of impeaching
the Government’s case, nor otherwise constitutionally required under notions
of due process or to uphold Appellant’s right to confrontation under the Sixth
Amendment. See Behenna, 71 M.J. at 238. Further, we perceive no prospect
that the result of the proceeding would have been different had these records
been disclosed. See id. Accordingly, Appellant’s assignment of error is without
merit.
F. Denial of Motion to Suppress Appellant’s Statements
Appellant’s final assignment of error asserts the military judge erred in
denying the Defense motion to suppress his text exchange with A1C JS on 7
July 2014 as well as his subsequent statements to AFOSI agents and all deriv-
ative evidence therefrom. 10 Appellant contends the text exchange should have
been suppressed because he was not advised of his rights under Article 31,
UCMJ, 10 U.S.C. § 831. He further contends his oral and written statements
to AFOSI were involuntary because he did not freely and voluntarily waive his
Article 31, UCMJ, rights, and because his interviewer made a misstatement of
law during the interview.
We review a military judge’s ruling on a motion to suppress for an abuse of
discretion. United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014). “When
there is a motion to suppress a statement on the ground that rights’ warnings
10 Appellant raises this issue pursuant to Grostefon, 12 M.J. at 435.
16
United States v. Bishop, No. ACM 38879
were not given, we review the military judge’s findings of fact on a clearly-
erroneous standard, and we review conclusions of law de novo.” Id. Whether a
questioner was acting or could reasonably be considered to be acting in a law
enforcement or disciplinary capacity is a question of law requiring de novo re-
view. Id. at 361.
Article 31, UCMJ, 10 U.S.C. § 831, states in pertinent part:
(b) No person subject to this chapter may interrogate, or request
any statement from an accused or a person suspected of an of-
fense without first informing him of the nature of the accusation
and advising him that he does not have to make any statement
regarding the offense of which he is accused or suspected and
that any statement made by him may be used as evidence
against him in a trial by court-martial.
...
(d) No statement obtained from any person in violation of this
article, or through the use of coercion, unlawful influence, or un-
lawful inducement may be received in evidence against him in a
trial by court-martial.
“Thus, Article 31(b), UCMJ, warnings are required when (1) a person sub-
ject to the UCMJ, (2) interrogates or requests any statement, (3) from an ac-
cused or person suspected of an offense, and (4) the statements regard the of-
fense of which the person questioned is accused or suspected.” Jones, 73 M.J.
at 361.
In Jones, however, our superior court noted that cases involving undercover
officials and informants involve unique considerations. The CAAF stated, “Be-
cause undercover officials and informants do not usually place the accused in
a position where a reasonable person in the accused’s position would feel com-
pelled to reply to questions, . . . logic dictates that Article 31(b), UCMJ, would
not apply in those situations.” Id. at 361, n.5. Modifying its previous ruling in
United States v. Duga, 10 M.J. 206 (C.M.A. 1981), the Jones court adopted a
two-prong test for determining whether statements by an accused to inform-
ants and undercover officials must be suppressed. The first prong is whether
the person who conducted the questioning was “‘participating in an official law
enforcement or disciplinary investigation or inquiry,’ as opposed to having a
personal motivation for the inquiry.” Id. at 361 (quoting United States v. Swift,
53 M.J. 439, 446 (C.A.A.F. 2000)). The second prong applies an objective stand-
ard of a reasonable person in the suspect’s position to determine whether that
person would have concluded that the questioner was acting in an official law
enforcement or disciplinary capacity. Id. at 362.
17
United States v. Bishop, No. ACM 38879
The voluntariness of a confession is a question of law this court reviews de
novo for an abuse of discretion. Freeman, 65 M.J. at 453. “A confession is in-
voluntary, and thus inadmissible, if it was obtained ‘in violation of the self-
incrimination privilege or due process clause of the Fifth Amendment to the
Constitution of the United States, Article 31, or through the use of coercion,
unlawful influence, or unlawful inducement.’” Id. (quoting Mil. R. Evid.
304(a)(1)(a)). “We examine ‘the totality of the surrounding circumstances’ to
determine ‘whether the confession is the product of an essentially free and un-
constrained choice by its maker.’” Id. (quoting United States v. Bubonics, 45
M.J. 93, 95 (C.A.A.F. 1996)).
At trial, the Defense moved to suppress the pretext text messages between
A1C JS and Appellant that AFOSI observed on 7 July 2014, and all evidence
derived therefrom, as obtained in violation of Appellant’s rights under Article
31, UCMJ. In addition, the Defense moved to suppress Appellant’s oral and
written statements made during his AFOSI interview, as well as evidence de-
rived therefrom, due to a separate alleged Article 31, UCMJ, violation. On ap-
peal, Appellant personally reasserts the arguments set forth in the suppression
motion. In addition, although not argued at trial, Appellant now appears to
contend that a misrepresentation during the interview by AFOSI agents re-
garding the legal standard for capability to consent to a sexual act rendered
Appellant’s statement involuntary.
At trial, the military judge heard evidence and issued a written ruling
denying the motion to suppress. He made the following pertinent factual find-
ings, which—with the exception of several apparent errors as to the dates—
are supported by the record:
...
3. During [A1C JS’s] time at AFOSI [on 7 July 2014], [SA B]
asked [A1C JS] if she would like to find out more information
about what happened to her to get [Appellant’s] side of the story.
[A1C JS] agreed that she would and [SA B] suggested that she
conduct a text conversation with [Appellant] regarding what had
happened on 5 July 2015 [sic]. [SA B] suggested general topics
and possible questions but [A1C JS] determined which questions
to ask [Appellant] and about what topics.
4. [A1C JS] and [Appellant] engaged in a text conversation . . . .
5. On 7 July 2015 [sic] while at AFOSI, [A1C JS] was not work-
ing as an agent for AFOSI nor was she acting in a law enforce-
ment capacity as a Security Forces troop, she was there rather
18
United States v. Bishop, No. ACM 38879
as a victim to report a crime. [A1C JS] was given no briefings or
training by AFOSI prior to the text exchange.
...
7. On 7 July 2015 [sic], [Appellant] was called to AFOSI for an
interview relating to the allegations made by [A1C JS]. [Appel-
lant] was transported to AFOSI by his First Sergeant and was
not constrained in any way during the transport. When he ar-
rived, [Appellant] was placed in an interview room for a short
period of time while AFOSI prepared for the interview.
8. The interview began at 2056 hours with some basic rapport
building. [Appellant] was provided with a rights advisement in
accordance with Article 31 of the UCMJ at 2108 by [Special
Agent (SA) C]. In the time between 2056 and 2108 no questions
were asked of [Appellant] likely to solicit [sic] an incriminating
response. [Appellant] was notified that [SA C] suspected him of
committing the offense of Rape in violation of Article 120 of the
UCMJ. At approximately 2109 hours [Appellant] indicated that
he understood his rights in accordance with Article 31, that he
did not desire to consult with a lawyer, that he wished to waive
his rights and talk with the AFOSI. During the course of the
rights advisement, there was a pause and [SA C] told [Appellant]
that he could start talking with the [AFOSI] and then stop at
anytime. [Appellant] responded acknowledging that he could
lawyer up at any time.
9. During the rights advisement and subsequent interview [Ap-
pellant] was alert and spoke coherently. He asked questions and
responded appropriately to the questions asked by [SA C]. Dur-
ing the course of his time at AFOSI [Appellant] was offered var-
ious bathroom breaks along with food and water.
10. [Appellant] went on to make oral statements and written
statements to AFOSI over the next two and a half hours . . . .
...
In analyzing the pretext text message exchange, the military judge recited
the four-part test for when an Article 31 rights advisement is required as re-
stated in Jones, 73 M.J. at 361. He found A1C JS was not acting in a discipli-
nary or law enforcement capacity at the time, and, therefore, no Article 31
rights advisement was required. We find no abuse of discretion in this conclu-
sion. The mere fact A1C JS was a security forces member is not determinative
19
United States v. Bishop, No. ACM 38879
of whether she was acting as an agent of the Government during the text ex-
change. See United States v. Buford, 74 M.J. 98, 101 (C.A.A.F. 2015). A1C JS
was present at AFOSI as a crime victim, not in a law enforcement capacity.
She had no training or prior experience as an agent or informant for AFOSI.
Although SA B suggested that she might want to text Appellant about the in-
cident, and suggested certain topics, he did not direct her to do so, and A1C JS
decided what questions to ask. During the motions hearing, A1C JS and SA B
both testified that A1C JS declined to ask certain questions suggested by the
agent. Moreover, a reasonable person in Appellant’s position would not have
perceived A1C JS to be acting in a disciplinary or law enforcement capacity at
the time. See Jones, 73 M.J. at 362. Although Appellant knew A1C JS was in
security forces, he knew her as a peer and he outranked her. The nature of the
exchange was personal and informal, with A1C JS asking questions about
events she could not remember and expressing sadness at what occurred.
When reviewing Appellant’s interview with AFOSI, the military judge
found the totality of the circumstances indicated Appellant freely and know-
ingly waived his Article 31 rights, and his statements were voluntary. We
agree. Although Appellant paused after SA C read him his rights, apparently
deep in thought, he did not request to speak to a lawyer or refuse to answer
questions. SA C’s clarification that Appellant could stop the interview after it
began was an accurate statement and did not constitute coercion, unlawful in-
fluence, or unlawful inducement. See Freeman, 65 M.J. at 453; Mil. R. Evid.
304(a)(1)(A). We are convinced Appellant made a free and voluntary decision
to proceed with the interview.
Finally, Appellant’s assertion that AFOSI’s misrepresentation regarding
the legal standard for capability to consent rendered his statement involuntary
is without merit. Well into the interview, the following colloquy occurred be-
tween Appellant and SA C:
SA C: You’ve been in for what, say five years. And how many
sexual assault briefings have you been to in those five years?
Appellant: Wow. I don’t know if they are annually? . . . I would
say quite a few.
SA C: What’s the Air Force’s policy on consent or when someone
cannot consent?
Appellant: Um, drunk.
SA C: Was she drunk that night?
Appellant: Yes.
20
United States v. Bishop, No. ACM 38879
SA C: So, could she consent? According to the Air Force policy,
and you are both Air Force, could she consent?
Appellant: Legally not.
SA C: Correct. So, did—I’m gonna ask you the question again.
Do you think that she could consent to what happened that
night?
Appellant: In my opinion, yes. Legally, no. I felt like she was
perfectly capable of giving me consent. Making advances to-
wards me. Conscious. She was up. Level-headed. Yes, I feel she
could, after all that.
SA C: And legally?
Appellant: Legally, obviously, no. She was drunk. We were both
drunk. Anybody that’s drunk—it is considered no consent. I
mean, there’s people who have sex all the time when they are
drunk. I mean, it happens. But legally, no. You can’t give consent
when you are drunk.
SA C: And knowing that . . .
Appellant: Knowing I’m a cop, yeah, I should have made the best
judgment call there.
Although SA C adopted Appellant’s incorrect statement of law, presumably
as an interrogation ploy, a false statement by an investigator is not determi-
native of the voluntariness of a statement. See Freeman, 451 M.J. at 455. We
still examine the totality of the circumstances. Id. at 453. In this case, consid-
ering the Appellant, his demeanor, the demeanor and statements of the inves-
tigators, and the circumstances of the interview, we easily conclude Appellant’s
statements were voluntary and not unlawfully induced or coerced.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
21