The AFCCA affirmed the decision and sentence of Staff Sergeant Jesse Cool, finding no prejudicial error.
Cool opinion here.
Appellant was convicted, contrary to his pleas, of two specifications of attempted sexual abuse of a child in violation of Article 80, UCMJ. The court-martial sentenced Appellant to a bad-conduct discharge and reduction to the grade of E-1. The convening authority approved the sentence as adjudged.
In early August 2017, Staff Sergeant Jesse Cool (Appellant) started messaging a user named “HALEEEBUG” over Kik, who told Appellant her mother was in the Air Force and she was 14 years old. “HALEEEBUG” was actually Special Agent SW with the Air Force Office of Special Investigations (AFOSI). During these conversations, Appellant asked “HALEEEBUG” for “pics,” including “booty pics.” Appellant also sent the user a photo of an erect penis inside shorts, a photo of a man’s scrotum, and a photo of a bare erect penis.
Appellant asked “HALEEEBUG” if she was really only 14, and after she replied affirmatively, continued his sexually charged messaging and asking her for pictures. Just after leaving for deployment, Appellant’s last message to “HALEEEBUG” was “[p]ics then hook up.”
Appellant raised four issues on appeal: (1) whether his conviction is factually and legally sufficient; (2) whether the Government failed to disprove the defense of entrapment; (3) whether the military judge erred by denying the defense motion to compel the appointment of an expert forensic psychologist; and (4) whether the military judge abused his discretion by instructing the court members on false exculpatory statements.
1. Legal and Factual Sufficiency
Appellant argues that the Government did not meet its burden of proving Appellant believed he was communicating with someone under 16 years of age rather than “an adult or a computer program.” Appellant asserts that he did not believe “HALEEEBUG” was who she said she was, pointing out messages where he asked “HALEEBUG” whether she was real, and to send “pics” to prove it, as well as the lack of other evidence indicating Appellant had a sexual interest in minors.
In order for Appellant to be found guilty of the first specification, the Government was required to prove that Appellant intended to commit a lewd act upon “HALEEEBUG” by intentionally communicating indecent language to a child whom he believed was not yet 16 years old, with an intent to gratify his own sexual desire. As for the second specification, the Government needed to prove that Appellant intended to commit a lewd act upon “HALEEEBUG” by sending pictures of male genitalia to her, a child who he believed was not yet 16 years old, tending to excite sexual desire or deprave morals with respect to sexual relations.
While the Court agreed with Appellant that the evidence did not indicate Appellant was seeking out minors, they did not believe this was “a necessary precursor to believing that a minor, once found, is actually a minor.” As such, the Court, convinced of Appellant’s guilt beyond a reasonable doubt, affirmed the decision.
Appellant also asserted that the Government did not disprove the defense of entrapment beyond a reasonable doubt. Appellant argued that the agent posing as “HALEEEBUG” instigated the sexual talk with Appellant and that Appellant only communicated any indecent language “at her urging, and after being asked several times, in several ways, what kind of sex he wanted or liked.”
The Court disagreed and explained that when Appellant first contacted “HALEEEBUG,” he included a photo of an erect penis. The Court further noted that Appellant asked “HALEEEBUG” for “pics,” inquired if she wanted to “hook up” and what she was “looking for,” sent a photo of his face, and asked her age. The Court determined that this evidence strongly indicated that Appellant was predisposed to commit the charged offenses and that he committed them “without being offered extraordinary inducements.”
3. False Exculpatory Statement Instruction
Trial counsel requested the military judge instruct the court members on false exculpatory statements made by Appellant during his interview with AFOSI agents, a copy of which was admitted into evidence without objection. Over defense counsel’s objection, the military judge provided the members tailored instruction on false exculpatory statements.
Appellant argued that the instructions were unwarranted, and he suffered material prejudice as a result of the military judge drawing attention to a non-issue. Appellant argued his statement that his Kik username “shouldbe JACOOL32” was not strictly false. The Court, however, determined that when read in conjunction with Appellant’s statements that he had only one screen name and that he has never had other Kik profiles, one could conclude Appellant made a false statement about his Kik username. The Court instead concluded that neither of these false statements constituted general denials of guilt, but rather were denials about specific facts relevant to the investigation.
4. Denial of Expert Assistance
The military judge denied the Defense’s motion to compel the appointment of an expert forensic psychologist, and upheld the decision on reconsideration. The military judge concluded that “none of these arguments and assertions demonstrate[d] why an exploration into this complex psychological field is necessary in this case” and that “the Defense failed to demonstrate how denial of expert assistance from a forensic psychologist would result in a fundamentally unfair trial.”
Reviewing the military judge’s ruling for an abuse of discretion, the Court found that the military judge did not err when he denied the motion to compel expert assistant in the field of forensic psychology.
Stating: “There has been evidence that after the offenses were allegedly committed, the accused may have made false statements about the alleged offenses, specifically that he told an investigator that he chatted with ‘HALEEEBUG’ after [she] initiated contact with him and that JACOOL34 was his only Kik profile.”