United States v. Jones ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40226
________________________
UNITED STATES
Appellee
v.
Alexander V. JONES
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 30 May 2023
________________________
Military Judge: Julie L. Pitvorec.
Sentence: Sentence adjudged 18 August 2021 by GCM convened at Joint
Base McGuire-Dix-Lakehurst, New Jersey. Sentence entered by mili-
tary judge on 5 November 2021: Dishonorable discharge, confinement
for 48 months, forfeiture of all pay and allowances, and reduction to E-
1.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major John P. Patera, USAF; Captain
Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire.
Before RICHARDSON, CADOTTE, and ANNEXSTAD, Appellate Mili-
tary Judges.
Senior Judge RICHARDSON delivered the opinion of the court, in which
Judge CADOTTE and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Jones, No. ACM 40226
RICHARDSON, Senior Judge:
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of two specifications of sexual assault and one
specification of wrongful distribution of intimate visual images in violation of
Articles 120 and 117a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920, 917a.1,2 The military judge sentenced Appellant to a dishonorable dis-
charge, confinement for 48 months, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority took no action on the
findings or sentence.
Appellant raises five issues on appeal, asking whether (1) Appellant was
deprived of a constitutional right to a unanimous verdict; (2) Appellant’s con-
victions for sexual assault are legally and factually sufficient; (3) Appellant’s
conviction for wrongful distribution of intimate images is legally and factually
sufficient; (4) the military judge erred in failing to excuse a court member for
implied bias; and (5) the military judge abused her discretion in denying a de-
fense motion to compel the complaining witness’s medical records relating to
diagnosis and prescribed medications.3 We have carefully considered issues (1)
and (2) and find they do not require discussion or warrant relief. See United
States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). We find the convictions to be
legally and factually sufficient. We find no error materially prejudicial to Ap-
pellant’s substantial rights, and we affirm the findings and sentence.
I. BACKGROUND
Appellant and JJ met around 2017. They married in August 2018, after
Appellant completed technical school in Texas and before he moved to Joint
Base McGuire-Dix-Lakehurst (JBMDL). JJ did not move to JBMDL until late
December 2018. The two were divorced right before trial.
JJ testified at length about the charged offenses. While at technical school
in Texas, Appellant asked JJ numerous times to send sexual photos of herself
to him. She was hesitant, and told him she was concerned that he would share
1Unless otherwise noted, all references in this opinion to the UCMJ, Military Rules of
Evidence, and Rules for Courts-Martial are to the Manual for Courts-Martial, United
States (2019 ed.).
2 The members found Appellant not guilty of one specification of domestic violence by
strangling, charged in violation of Article 128b, UCMJ, 10 U.S.C. § 928b.
3The military judge sealed the documents and transcript pages relating to Appellant’s
motion to compel because they contained matters involving Mil. R. Evid. 513. While
we resolve this assignment of error on a basis other than Mil. R. Evid. 513, our opinion
necessarily contains discussion of some of this sealed material.
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United States v. Jones, No. ACM 40226
them. When she finally agreed to send the photos, she told Appellant, “if [she]
was going to send those, not to share them.” Appellant “promised” he would
not share them, and she sent Appellant at least three intimate photos of her-
self. JJ did not consent to Appellant sending those photos to anyone else.
One day in early 2019, after Appellant was asleep, JJ looked through Ap-
pellant’s phone. She found recent messages between Appellant and another
woman, MK, that included those photos of JJ and sexual comments about those
photos. JJ knew MK through Appellant. In the messages, Appellant told MK
to keep the photos a secret, which MK took to mean a secret from JJ.
When JJ saw that Appellant sent those photos to MK, JJ was “very upset,”
“shaking,” and “blown away and baffled.” She went to a friend’s house, still
“very upset.” JJ’s friend advised her to talk to Appellant. JJ went home, woke
Appellant, and confronted him. JJ testified, “He claimed that he didn’t know
what I was talking about; and, then, once he saw the photos, he said it wasn’t
what it looked like.” JJ called and texted MK still feeling “upset.” JJ suspected
MK and Appellant were having an affair, but MK assured her they were not.
After JJ and MK talked, they stayed on friendly terms, although JJ was “dis-
appointed” MK had not told her Appellant sent the photos. Appellant claimed
to investigators that JJ wanted to have a “threesome” and he sent the photos
to MK to facilitate it.4 MK denied talking to Appellant or JJ about “a three-
some.” JJ admitted that one time she talked to Appellant about a threesome,
but insisted she did not consent to him distributing the photos.
About a year later, in March 2020, JJ told Appellant she wanted a divorce.
Appellant did not. The two continued to live together, but kept separate bed-
rooms. About a week later, the couple had what JJ called “a reconcile period”
that “lasted like two days,” during which time they engaged in consensual sex-
ual activity.
JJ also described the events leading to Appellant sexually assaulting her
in their home around 28 March 2020. That evening, JJ had gone to a friend’s
house, where she drank no more than one alcoholic beverage. She arrived home
around 0100; Appellant arrived home shortly thereafter. Anticipating a con-
frontation, JJ turned on the voice-memo feature of her watch. Appellant ques-
tioned JJ about what she did that evening and with whom, then took her
phone. JJ’s watch captured audio of their ensuing argument. Most of the argu-
ment is about JJ’s phone; Appellant asked JJ to “beg for it.” He also said, “Beg
for it. Beg. You’re already on your knees, go ahead.” JJ told him “stop” and “get
off of me” numerous times. During part of the recorded exchange, Appellant
4Investigators interviewed Appellant about the photos in the course of their investi-
gation into the events on 28 March 2020, as described below.
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United States v. Jones, No. ACM 40226
pulled JJ’s hair and put his fingers in her mouth, all while JJ was telling him
to stop.
JJ also testified Appellant “slamm[ed] her face into the couch” and she
“kept trying to get away from him.” Appellant then picked up JJ and took her
to the bedroom, where he removed her leggings. He put his fingers in JJ’s
vagina while JJ told Appellant multiple times to stop. Appellant began to lick
JJ’s vaginal area. Appellant maneuvered JJ to a different position on the bed
and “pinned [her] to where [she] couldn’t move.”
During direct examination, JJ explained what happened next:
[JJ]. He basically decided to have his way with me.
[Circuit Trial Counsel (CTC)]. What do you mean, he had his
way with you?
[JJ]. He proceeded to have sex with me, even though I was ask-
ing him not to.
[CTC]. When you say this, it matters exactly what sex you’re re-
ferring to. What did he do?
[JJ]. He put his penis inside of my vagina.
[CTC]. Were you telling him to stop?
[JJ]. I . . . yeah. I asked him to stop. I begged for him to stop. At
one point, I was even crying and he told me that nobody would
feel sorry for me.
[CTC]. Did he stop?
[JJ]. No.
JJ recorded other conversations with Appellant that night. JJ asked Appel-
lant to leave her alone, to which Appellant replied that he was “being super
civil about all this.” JJ disagreed, telling Appellant, “You just f**king basically
raped me.” Appellant denied he had, and stated, “No, I did not. I did not rape
you. If I raped you -- if I would have raped you, I would still go, but I’m not that
type of person.” JJ told Appellant to “go to [his] room and close the door,” and
Appellant complied.
About 15 minutes later, JJ heard Appellant talking and laughing. She con-
fronted Appellant, then called 9-1-1 and locked herself in her bedroom. JJ told
the 9-1-1 operator Appellant “forced himself” on her, as well as “choked” her
and “slammed” her into a wall. She denied having any injuries. During this
time, Appellant removed the knob from the bedroom door. When security forces
personnel responded, Appellant was sitting in the front yard.
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United States v. Jones, No. ACM 40226
After he was apprehended, Appellant agreed to be interviewed by Air Force
Office of Special Investigations (AFOSI) agents. Appellant admitted digital
and penile penetration of JJ’s vulva, and oral contact on her vaginal area. He
denied ever physically assaulting JJ. AFOSI agents gathered Appellant’s
clothes and took a DNA sample.
Later that morning, JJ went to a local hospital where a nurse performed a
sexual assault forensic examination. The nurse noted JJ “was quiet and crying”
and complained of lower abdominal and lower back pain. The nurse saw no
injuries, which she testified was “common” after a report of sexual assault. Fo-
rensic testing revealed Appellant’s DNA in JJ’s vagina, and JJ’s DNA on Ap-
pellant’s underwear.
JJ admitted having “angry sex” with Appellant in the past. She described
it as “a little bit more of an aggressive style of sex” but distinguished it from
what occurred on the night of the charged sexual assault. She clarified that
“angry sex” is consensual, does not involve repeatedly saying no and the other
person not stopping, and does not result in a 9-1-1 call or trip to the hospital.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021)
(citation omitted), rev. denied, 82 M.J. 312 (C.A.A.F. 2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (citation omitted).
“[T]he term ‘reasonable doubt’ does not mean that the evidence must be free
from any conflict . . . .” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(citation omitted). In 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. Bright, 66 M.J. 359, 365 (C.A.A.F. 2008) (inter-
nal quotation marks and citations omitted). The evidence supporting a convic-
tion can be direct or circumstantial. See United States v. Long, 81 M.J. 362,
368 (C.A.A.F. 2021) (citing Rule for Courts-Martial (R.C.M.) 918(c)) (additional
citation omitted). “[A] rational factfinder[ ] could use his ‘experience with peo-
ple and events in weighing the probabilities’ to infer beyond a reasonable
doubt” that an element was proven. Id. at 369 (quoting Holland v. United
5
United States v. Jones, No. ACM 40226
States, 348 U.S. 121, 140 (1954)). The “standard for legal sufficiency involves
a very low threshold to sustain a conviction.” King, 78 M.J. at 221 (internal
quotation marks and citation omitted).
“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.’” Rodela, 82 M.J. at 525 (second alteration in original) (quoting United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this unique
appellate role, we take ‘a fresh, impartial look at the evidence,’ applying ‘nei-
ther 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 reasonable doubt.’” United States v. Wheeler,
76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting
Washington, 57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
2. Analysis
The parties agree that, as charged in this case, the offense of wrongful dis-
tribution of intimate images in violation of Article 117a, UCMJ, has seven ele-
ments:
(1) on or about 24 January 2019, at or near Joint Base McGuire-
Dix-Lakehurst, New Jersey, [Appellant] knowingly and wrong-
fully distributed intimate visual images of JJ;
(2) JJ was at least 18 years of age when the visual images were
created;
(3) JJ is identifiable from the visual images or from information
displayed in connection with the visual images;
(4) JJ did not explicitly consent to the distribution of the visual
images;
(5) [Appellant] knew, or reasonably should have known, that the
visual images were made under circumstances in which JJ re-
tained a reasonable expectation of privacy regarding any distri-
bution of the visual images;
(6) [Appellant] knew, or reasonably should have known, that the
distribution of the visual images was likely to cause emotional
distress for JJ; and,
(7) [Appellant’s] conduct, under the circumstances, had a reason-
ably direct and palpable connection to a military mission or mil-
itary environment.
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United States v. Jones, No. ACM 40226
See also Article 117a, UCMJ, Manual for Courts-Martial, United States (2019
ed.) (MCM), App. 2 at A2-40.
Appellant challenges the legal and factual sufficiency of his conviction for
wrongful distribution of intimate visual images, asserting the Government
failed to prove beyond a reasonable doubt elements (6) and (7). Appellant does
not challenge the Government’s proof for the other elements of the offense.
a. Likely to Cause Emotional Distress
Appellant acknowledges JJ was upset after learning he had shared the in-
timate images of her with MK, but argues the evidence is not clear exactly
what JJ was upset about. Further, he suggests that feeling “very upset” does
not qualify as “emotional distress.” Appellant also asserts a lack of evidence
that Appellant “sent these pictures to cause [JJ] emotional distress.”
This court finds a rational factfinder could conclude from the evidence that
Appellant either knew or reasonably should have known JJ would likely suffer
emotional distress if he broke his promise and shared the photos with another
woman. The evidence shows Appellant pressured JJ to send him the photos in
the first instance, and JJ refused until she was satisfied Appellant was not
going to share them with anyone else. JJ testified she was “very upset,” “shak-
ing,” and “blown away and baffled” upon discovering Appellant distributed the
images against her wishes. Whether or not Appellant believed JJ was inter-
ested in the general idea of a threesome with the recipient of the photos is
beside the point. Moreover, the Government was not required to prove JJ ac-
tually was caused emotional distress or Appellant intended to cause her emo-
tional distress.
b. Connection to Military
Appellant argues his conduct did not have a connection to the military mis-
sion or military environment. He notes that at trial, the Government presented
no argument that Appellant’s conduct had a connection to a military mission,
and the evidence did not support any such connection. Appellant contends that
“[t]o allow the Government to prove ‘a reasonably direct and palpable connec-
tion to a . . . military environment,’ merely because [Appellant] was a military
member, [MK] was a military member, and [JJ] was the spouse of a military
member [ ], makes this element surplusage.” We are not persuaded.
Appellant shared the intimate photos of JJ with MK, a person whom he
knew was a military member. The evidence indicates one of Appellant’s pur-
poses for sharing the photos was to facilitate a sexual liaison with his wife and
this other military member. Appellant’s conduct was sufficiently connected to
a military environment because he put MK—a military member—“in contact
with the images” by sending them directly to her. United States v. Hiser, 82
M.J. 60, 66−67 (C.A.A.F. 2022) (finding a connection to a military environment
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United States v. Jones, No. ACM 40226
where an appellant posted intimate photos to a pornography website and a
military member saw them). We conclude a rational factfinder could find that,
under the circumstances of this case, Appellant sending the intimate photos of
his wife to MK “had a reasonably direct and palpable connection to a . . . mili-
tary environment.” Article 117a, UCMJ, MCM, App. 2 at A2-40.
We conclude that viewing the evidence produced at trial in the light most
favorable to the Prosecution demonstrates a rational trier of fact could have
found the essential elements of wrongful distribution of intimate images be-
yond a reasonable doubt. See Robinson, 77 M.J. at 297−98. Furthermore, after
weighing the evidence in the record of trial and making allowances for not hav-
ing personally observed the witnesses, we are ourselves convinced of Appel-
lant’s guilt beyond a reasonable doubt. See Rodela, 82 M.J. at 525.
B. Challenge for Implied Bias
Appellant asserts the military judge erred in denying the defense challenge
against Lt Col EW for implied bias when the member: (1) had a family com-
mitment the next day; (2) expressed “‘strong feelings’ concerning cheating and
threesomes;” and (3) believed not-guilty findings in sexual assault cases place
the military in a negative light. Appellant also asserts the military judge failed
to articulate the standard for implied bias. We find the military judge did not
err.
1. Additional Background
In group voir dire, the military judge asked, “[D]oes anyone know of any-
thing of a personal or professional nature that would cause you to be unable to
give your full attention to these proceedings throughout the trial?” Lt Col EW
answered in the affirmative. He explained he had tickets to a baseball game
the next day at 1600 that “a large quantity of [his] family [was] coming into
town to go to in Philadelphia[.]” In individual voir dire, the military judge
asked Lt Col EW follow-up questions. She asked him what time he would have
to leave to make the game, and he replied, “I believe I could probably make 2
o’clock work. I mean, my wife wouldn’t be super happy to take the five kids
down that direction herself, but she’d be going with family being there to help
her going to the hotel . . . .” Lt Col EW explained his plan was not to stay at
the hotel the evening of the game, but return to his home on base. When asked
about his plans for the following day—Sunday—he mentioned a tentative plan
in Philadelphia “that can be worked around,” and said, “Again, just to empha-
size,” because he was “wearing the uniform, [he would] do what [he was] told
to do.” He explained that the other family members were on his wife’s side, he
had seen them recently, and none was planning to stay at or visit his home.
In group voir dire, trial defense counsel asked, “Does anyone have any
strong feelings about cheating in a marriage that may impact your ability to
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United States v. Jones, No. ACM 40226
be fair in deciding this case?” After receiving a negative response from every-
one but Lt Col JJ—who hesitated—defense counsel asked if he would like to
“talk about this one-on-one,” to which he agreed. Lt Col EW then said he would
like that as well. Soon thereafter, trial defense counsel asked whether any
member has “any moral, ethical, or religious feelings about consensual three-
somes that may impact [their] ability to be fair in deciding this case?” Lt Col JJ
and Lt Col EW provided responses similar to the cheating question.
During individual voir dire, Lt Col EW explained that he believed “mar-
riage between a man and a woman is sacred, and cheating can vastly impact
that relationship in a negative way.” He also stated “a consensual threesome”
was a form of cheating, considering “the marriage vows.” After Lt Col EW was
asked to confirm that he had “strong feelings” on these topics, he stated:
I feel as we put -- as we all put these uniforms on, we all have
personal feelings that I am -- have to put aside to be able to lead
in good order and discipline. Just because I have a differing opin-
ion on how things are doesn’t mean I can’t be objective to the
whole of the process. I do realize that not everyone shares the
same values with me on that.
Lt Col EW affirmed that hearing about cheating or a threesome during trial
would not cause him “to make any kind of judgments about the other facts in
the case.”
The circuit trial counsel and then the military judge followed up with
Lt Col EW about his response in group voir dire that a finding of not guilty for
a sexual or physical assault charge would reflect negatively on the military.
[Lt Col EW]. . . . I think the civilian side of the United States
fails to take that into account sometimes and expects us to -- that
if it happens, we should -- it should never happen in the military
and, therefore, if it does, it should be an automatic guilty. I think
that’s a negative light that’s put on the military.
I don’t feel it takes away from the proceedings here. I think eve-
rything internal is fine. But exterior, I think there’s negative
light to whenever a negative sexual assault -- a not guilty verdict
is given in a sexual assault.
....
[Circuit Trial Counsel]. . . . Do you think it should be an auto-
matic guilty because there’s an allegation?
[Lt Col EW]. Oh, no, not at all.
....
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United States v. Jones, No. ACM 40226
[Military Judge (MJ)]. [Lt Col EW], before he stops. Are you re-
ferring -- when you say “public perception,” are you referring to
just the sheer number of congressional hearings and all the stuff
that’s been happening?
[Lt Col EW]. Yes, ma'am.
[MJ]. Okay. So when you say the “public perception,” you’re talk-
ing about the external -- like the external pressure from Con-
gress to, you know, crack down on sexual assaults?
[Lt Col EW]. Yes, ma’am.
[MJ]. Okay. Does that external pressure from Congress influ-
ence you in any way to vote for a finding of guilty without any
evidence in this case?
[Lt Col EW]. None whatsoever.
[MJ]. Would you keep an open mind and follow my instructions
to hold the Government to the standard of proof beyond a rea-
sonable doubt?
[Lt Col EW]. Yes, ma’am.
The Defense challenged Lt Col EW for cause for implied bias and for the
same reasons as articulated on appeal. In denying the challenge, the military
judge stated:
So I have considered the challenge -- the defense challenge for
cause under both actual and implied bias theories, and I am
aware of the duty to liberally grant defense challenges. However,
[Lt Col EW] was very clear in his ability. I think he even said, “I
wear the uniform. I will be wherever you tell me to be.” He was
questioned -- he was questioned ad nauseam about his positions.
He actually clarified, to the Court’s questions, about what he
meant by when he said the negative reflection is that it was a
congressional mandate and that Congress is constantly looking.
He also stated . . . that he would weigh this case on the facts of
the case alone and was, I think, very candid about his feel-
ings. . . .
The Defense then challenged Lt Col JJ for cause, also based on implied
bias. When denying that challenge, the military judge stated, “In fact, to be
perfectly honest, I don’t think it’s even close for either one of them.” (Emphasis
added). The Defense used its peremptory challenge against Lt Col JJ.
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United States v. Jones, No. ACM 40226
2. Law
“A member shall be excused for cause whenever it appears that the member
. . . [s]hould not sit as a member in the interest of having the court-martial free
from substantial doubt as to legality, fairness, and impartiality.” R.C.M.
912(f)(1)(N). “‘Substantial doubt’ exists where the presence of a member on the
panel would cause the public to think ‘that the accused received something less
than a court of fair, impartial members,’ injuring the public’s perception of the
fairness of the military justice system.” United States v. Commisso, 76 M.J.
315, 323 (C.A.A.F. 2017) (citation omitted). Implied bias is measured by an
objective standard. United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010)
(citation omitted). “Implied bias exists when, ‘regardless of an individual mem-
ber’s disclaimer of bias, most people in the same position would be preju-
diced. . . .’” Id. (citation omitted). We assess implied bias based on the “totality
of the factual circumstances,” assuming the “hypothetical ‘public’” is familiar
with the military justice system. Id. (citations omitted).
“The military judge is [ ] mandated to err on the side of granting a chal-
lenge[; t]his is what is meant by the liberal grant mandate.” United States v.
Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (citation omitted).
We review the military judge’s ruling on a claim of implied bias “pursuant
to a standard that is ‘less deferential than abuse of discretion, but more defer-
ential than de novo review.’” United States v. Dockery, 76 M.J. 91, 96 (C.A.A.F.
2017) (quoting Peters, 74 M.J. at 33). This standard is appropriate “in light of
the fact that resolving claims of implied bias involves questions of fact and
demeanor, not just law.” United States v. Woods, 74 M.J. 238, 243 n.1 (C.A.A.F.
2015). Appellate courts afford greater deference to a military judge’s ruling on
a challenge for implied bias where the military judge puts her analysis on the
record and provides a “clear signal” she applied the correct law. United States
v. Rogers, 75 M.J. 270, 273 (C.A.A.F. 2016) (citations omitted). “In cases where
less deference is accorded, the analysis logically moves more towards a de novo
standard of review.” Id. “[I]n the absence of actual bias, where a military judge
considers a challenge based on implied bias, recognizes his duty to liberally
grant defense challenges, and places his reasoning on the record, instances in
which the military judge’s exercise of discretion will be reversed will indeed be
rare.” United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).
3. Analysis
In assessing the challenge against Lt Col EW, the military judge invoked
implied bias and the liberal grant mandate, as well as actual bias. Although
the military judge did not state the standard for considering a challenge based
on implied bias, we see no reason to conclude she did not apply the correct
standard. To the contrary, she provided a “clear signal” that she understood
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United States v. Jones, No. ACM 40226
the law when granting a challenge for cause against another member based on
implied bias. See Rogers, 75 M.J. at 273. Regarding that challenge, the military
judge stated, “I do believe that if the public were watching this and knew that
the spouse of a sex assault victim were on this court-martial that it would cause
them to question our military justice system.”
The military judge did not find the challenge against Lt Col EW a “close
call.” She stated Lt Col EW “was very clear in his ability” to yield to duties
required by his “wear[ing of] the uniform.” She found that Lt Col EW believed
it was Congress that would see a not-guilty verdict as a negative reflection of
the military. She further found that Lt Col EW was “very candid” and was
“questioned ad nauseum,” and his personal feelings about cheating and three-
somes would not factor into his determination of the facts of the case.
If we were to give the military judge less deference because her stated rea-
soning was thin, we still would find no error. From our review, it appears
Lt Col EW was not very concerned with missing the family event. Moreover,
by asking what time he would need to leave to get ready for the game, the
military judge gave him reason to believe that he could be released in time to
make the event.5 Regarding “cheating” and “threesomes,” Lt Col EW gave no
indication his personal feelings would cloud his consideration of the evidence
in Appellant’s case. We do not find Lt Col EW’s continued presence as a court
member to be injurious to “the public’s perception of the fairness of the military
justice system.” See Commisso, 76 M.J. at 323. Finding no error, we grant no
relief.
C. Diagnosis and Prescription Records
Appellant contends the military judge erred in denying his motion to com-
pel discovery for medical records relating to JJ’s mental health diagnosis and
related medical prescriptions. Appellant notes the military judge denied the
Defense’s motion after analyzing three rules: R.C.M. 701, 703, and Mil. R. Evid.
513. We find the military judge did not abuse her discretion in denying the
motion based on R.C.M. 701 and 703; consequently, we need not reach the issue
involving Mil. R. Evid. 513.
1. Law
“We review a military judge’s ruling on requests for discovery or production
of evidence for an abuse of discretion.” United States v. Bishop, 76 M.J. 627,
633 (A.F. Ct. Crim. App. 2017) (citations omitted); see also United States v.
Graner, 69 M.J. 104, 107 (C.A.A.F. 2010) (noting this is a “strict standard”).
We find an abuse of discretion when the military judge’s “findings of fact are
5We note that the court-martial was not in session on that Saturday, a circumstance
the military judge may have predicted.
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United States v. Jones, No. ACM 40226
clearly erroneous, the court’s decision is influenced by an erroneous view of the
law, or the military judge’s decision on the issue at hand is outside the range
of choices reasonably arising from the applicable facts and the law.” United
States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2009) (citation omitted).
Discovery of evidence in the possession of the Government is regulated by
R.C.M. 701; production of evidence is regulated by R.C.M. 703. “Each party is
entitled to the production of evidence which is relevant and necessary.” R.C.M.
703(e)(1).
[A]ny defense request for the production of evidence shall list the
items of evidence to be produced and shall include a description
of each item sufficient to show its relevance and necessity, a
statement where it can be obtained, and, if known, the name,
address, and telephone number of the custodian of the evidence.
R.C.M. 703(f). Evidence “not under control of the Government may be obtained
by subpoena.” R.C.M. 703(g)(3)(A). The Defense bears the burden of showing
that the requested evidence exists. United States v. Rodriguez, 60 M.J. 239,
246 (C.A.A.F. 2004).
2. Additional Background
Prior to trial, the Defense requested the Government provide a “Record of
JJ’s [disorder] diagnosis and medication history for treating it from August
2018 until 30 March 2020.” The Defense provided no additional information
related to this request. The Defense did not indicate whether the Government
or some other entity held the records. The Government denied this defense
request based on Mil. R. Evid. 513 and relevance.
The Defense then filed a motion with the military judge “to compel the Gov-
ernment to fully discover and disclose records of JJ’s [disorder] diagnosis and
medication history for treating said diagnosis from August 2018 until the pre-
sent.” The Defense supported its request with excerpts from the AFOSI inves-
tigative file, showing JJ told AFOSI agents that she was diagnosed with a cer-
tain disorder and was prescribed medications to treat it in January 2020, and
that the medication lowered her sex drive and induced heavy sleep. The De-
fense argued that evidence of the date JJ was diagnosed and prescribed medi-
cations was relevant to “whether or not [JJ] could perceive, comprehend, and/or
remember what happened in January 2019 and March 2020,” the timeframe
of the charged offenses. The Defense supported its assertion with a memoran-
dum from an expert psychologist, which explained the symptoms of the disor-
der and generally how a professional would diagnose and treat it. However,
the Defense did not claim JJ suffered any particular symptoms or episodes at
any particular time. The Defense also argued JJ’s diagnosis and medication
history were relevant to Appellant’s purpose for removing locked doorknobs,
13
United States v. Jones, No. ACM 40226
specifically that they could show his concern for her safety. The Defense em-
phasized that their request was limited to diagnosis and medication records—
and not communications—and thus was not protected by the privilege in Mil.
R. Evid. 513. During argument on the motion in a closed hearing pursuant to
Mil. R. Evid. 513 and Article 39(a), UCMJ, 10 U.S.C. § 839(a), the Defense
added that whether JJ actually had that diagnosis as she claimed was relevant
to her truthfulness.6
The military judge denied the Defense’s motion to compel discovery based
on, inter alia, R.C.M. 701 and 703. In her written ruling, the military judge
found the Defense had not established that the Government was in possession
of the requested documents, and therefore had no duty to provide them to the
Defense under R.C.M. 701. The military judge also ruled:
The [D]efense has failed to meet the requirements under
[R.C.M.] 703(f): the [D]efense does not include a description of
each item sufficient to show its relevance and necessity, a state-
ment where it can be obtained, or, if known, the name, address,
and telephone number of the custodian of the evidence as re-
quired by [R.C.M.] 703(f). Additionally, the [D]efense must show
the evidence requested is relevant and necessary, and not cumu-
lative, which [defense counsel] has failed to do.
The military judge determined that while “JJ’s credibility will be in issue,
it is not clear that whether she had medications or received treatment is in
dispute or ‘in issue.’” The military judge also determined it “is not clear that
further evidence regarding the timing of prescriptions or treatment makes any
fact in issue more or less likely.” She highlighted that the Defense already had
“evidence indicating JJ had a history of [the] disorder and had access to medi-
cation close in time to the alleged sexual assault when [JJ’s] statements were
made.” Moreover, the military judge noted that “prescriptions alone [do] not
indicate consumption, effectiveness, or reasons for such medication” and even
if they did, “it is not clear how such information would make JJ’s statement
more or less likely to be true.” The military judge found that “[w]hile individu-
als who are in an active [ ] episode may have difficulty accurately perceiving
their surroundings, the same is not expected” when the individual is at “base-
line.” She further found “no evidence to suggest JJ was in an active [ ] episode
on 28 March 2020.”
6Before a military judge may order production of matters covered by Mil. R. Evid. 513,
she “must conduct a hearing, which shall be closed” and “outside the presence of the
members.” Mil. R. Evid. 513(e)(2).
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United States v. Jones, No. ACM 40226
In its case in chief, the Government offered Prosecution Exhibit 4, a video
recording of an AFOSI interview with Appellant. The Defense objected to the
Government’s proposed redactions. Specifically, the Defense noted that the
Government redacted only part of the “discussions about [JJ’s] [ ] diagnosis.”
Citing Mil. R. Evid. 403, the Defense requested that if the Government re-
dacted some, it should redact it all. The Government agreed to redact that ad-
ditional portion of the video recording, resulting in no mention of JJ’s diagno-
sis.
The Defense, however, introduced evidence of JJ’s mental health diagnosis
and prescriptions through cross-examination of the sexual assault nurse ex-
aminer (SANE) and a page from the SANE report—Defense Exhibit A. Both
indicated JJ said her “current medications” included a medication used to treat
the disorder, and “medical history” consisted of a shorthand name for the dis-
order. During cross-examination of JJ, the Defense did not ask her about her
diagnosis or related medication history. In closing argument, the Defense ques-
tioned why the Government did not present evidence of JJ’s medical history:
What about the SANE report? Why is this important? [Appel-
lant] talks about [JJ] mixing her meds with alcohol and why he
took the door knobs off, his motivation behind this. So, knowing
from [Defense] Exhibit A that [JJ] was diagnosed with [the dis-
order] and is on current medication is -- I mean, would you want
to know that? Would that be important to assessing her credibil-
ity, her state of mind at that time, maybe even [Appellant’s] mo-
tivation?
3. Analysis
Appellant does not directly contest the parts of the military judge’s ruling
under R.C.M. 701 and 703 that the Government did not have possession of the
requested records and that the Defense failed to provide a statement or infor-
mation about how the requested records can be obtained. Instead, he asserts
the military judge’s “belief that the records were protected by [Mil. R. Evid.]
513 colored her entire analysis,” including of R.C.M. 701 and 703. His support
for this assertion is that “the majority of the military judge’s questions” during
the closed Article 39(a), UCMJ, hearing were about the application of Mil. R.
Evid. 513. Essentially, Appellant faults the Government for not issuing a sub-
poena for records the Defense did not identify with any specificity. Similarly,
Appellant faults the military judge for not compelling the Government to pro-
duce records not known to be under the Government’s control and for not re-
viewing any purported records in camera.
We find the military judge did not abuse her discretion in determining the
Defense failed to meet the requirement of R.C.M. 703 for records not under the
15
United States v. Jones, No. ACM 40226
control of the Government. The Defense did not provide information that the
Government would need to prepare and issue a subpoena, nor did the Defense
request investigative assistance to gather this information. Relatedly, the De-
fense failed in its burden to show that the records exist. On these grounds alone
we find the military judge did not abuse her discretion in denying the defense
motion.
We also find the military judge did not abuse her discretion in determining
the Defense failed to meet the requirement under R.C.M. 703 to demonstrate
both the relevance and necessity of the purported records. The Defense sought
information about the diagnosis to show JJ acted in conformity with the disor-
der, or—changing tack—that she lied about the diagnosis. The former could be
considered improper character evidence.7 Regardless, the military judge rea-
sonably found that evidence a victim with the disorder was in an “active epi-
sode” as opposed to at “baseline” would be relevant, but no evidence suggested
JJ was suffering an active episode on 28 March 2020. Regarding the latter con-
tention, the military judge reasonably determined that the Defense failed to
establish that the absence of a diagnosis in a record was both relevant and
necessary.8
The military judge found as fact that Appellant told AFOSI agents that JJ
was diagnosed with the disorder and that he was concerned about her suicidal
ideations, leading him to remove a door knob. She also found as fact that JJ
admitted to AFOSI agents that she had the diagnosis and was taking medica-
tions to treat it. The military judge concluded that “while [D]efense makes the
discovery request, it is clear [D]efense already has the facts it seeks to obtain
through discovery.” Indeed, the relevance is Appellant’s belief of JJ’s assertions
about whether JJ was diagnosed with a mental health disorder which might
lead to suicidal ideations, not whether such a diagnosis was actually made.
7“Evidence of a person’s character or character trait is not admissible to prove that on
a particular occasion the person acted in accordance with the character or trait.” Mil.
R. Evid. 404(a)(1). “Character evidence” might include “psychiatric diagnosis or per-
sonality disorders.” United States v. Dimberio, 56 M.J. 20, 25 (C.A.A.F. 2001). An ex-
ception to this prohibition against introducing character evidence is that an accused
may offer evidence of “an alleged victim’s pertinent trait.” Mil. R. Evid. 404(a)(2)(B).
Moreover, even if inadmissible under Mil. R. Evid. 404(a), an accused may have a con-
stitutional right to introduce evidence of a psychological diagnosis if legally and logi-
cally relevant under Mil. R. Evid. 401 and 403. Dimberio, 56 M.J. at 25. Whether a
victim’s ability to perceive and remember, mental capacity, or psychological condition
are “pertinent traits” within the meaning of Mil. R. Evid. 404(a) is an open question
that we do not resolve today.
8Without being able to identify any holder of a responsive medical record, the Defense
could have little hope of finding the absence of a diagnosis.
16
United States v. Jones, No. ACM 40226
Additionally, the Defense wanted records of JJ’s prescriptions to show JJ
took medication to treat her condition and was under the influence of that med-
ication during the charged timeframes. The Defense supported its contentions
about the characteristics of the disorder generally, but was unable to show that
a record containing only a diagnosis or prescription history would reveal
whether JJ was suffering an episode at any relevant time. Furthermore, the
records would do little to show JJ ingested medication at any relevant time.
Finally, we reject Appellant’s contention that the military judge’s analysis
of R.C.M. 701 and 703 was flawed because of an erroneous view of Mil. R. Evid.
513. The hearing on the Defense’s motion to compel was closed because it po-
tentially would disclose matters protected by Mil. R. Evid. 513. This would ex-
plain why most of the military judge’s questions were about that Rule. The
military judge’s rulings on R.C.M. 701 and 703 were almost entirely independ-
ent from her ruling on Mil. R. Evid. 513. The military judge alluded to Mil. R.
Evid. 513 only in her consideration of whether the requested evidence was cu-
mulative, noting the “[D]efense has other avenues, vice piercing a protected
privilege to obtain such evidence, to include others JJ may have disclosed to,
as well as inquiries of JJ that would bear on her credibility.” (Emphasis added).
The military judge carefully considered the Defense’s arguments, proffers, and
evidence; applied R.C.M. 703; and reasonably determined the information the
Defense anticipated it would find in a record would not be relevant and neces-
sary.
We find the military judge did not abuse her discretion in denying the de-
fense motion to compel JJ’s medical records based on R.C.M. 701 and 703. In
this regard, the military judge’s findings of fact were not clearly erroneous, her
determinations were not influenced by an erroneous view of the law, and her
decision was inside the range of choices reasonably arising from the applicable
facts and the law. See Miller, 66 M.J. at 307.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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