The AFCCA affirmed the findings and sentence of Technical Sergeant Soren G. Gere (Appellant), finding no error to be materially prejudicial.
Contrary to his plea, Appellant was convicted by a military judge sitting as a general court-martial of one specification of attempted sexual assault of a child, one specification of sexual abuse of a child, and one specification of sexual assault of a child, in violation of Articles 80 and 120b, UCMJ. The military judge sentenced Appellant to a dishonorable discharge, ten years confinement, and reduction to the grade of E-1.
Each of the charges arose from Appellant’s actions against his girlfriend’s (JR) thirteen-year-old daughter (SN). On the night of the assault, Appellant gave SN multiple alcoholic drinks and a sleeping pill. He sexually assaulted her later that night in his bed. On appeal, the Court addressed four issues raised by Appellant. Appellant argued that (1) the military judge erred in not compelling the production of SN’s cellphone, (2) the evidence was legally and factually insufficient to support his convictions, (3) the military judge erred by admitting expert testimony at sentencing, and (4) that he was entitled to new post-trial processing when the staff judge advocate’s recommendation (SJAR) and attachments contained errors.
Appellant first argued that the military judge should have compelled the production of SN’s cellphone. Specifically, Appellant alleged that the military judge abused his discretion in finding that there was a small chance of recovering relevant Snapchat text messages deleted by SN and by requiring that the deleted messages include “smoking gun” evidence.
Contrary to SN’s testimony, JR alleged that SN had verbally recanted her allegations of sexual assault on three occasions, and defense counsel proffered that a deleted Snapchat text message from SN to JR stating “I f’ d up” would support proving this admission. SN admitted to inadvertently deleting several Snapchat text messages, including the message in question, when taking screenshots of the messages for trial counsel. The Court noted that even if the deleted text message could be recovered (which was found to be unlikely) Appellant failed to show that the message would provide any relevant information when the context of the deleted message—not the content—was in dispute. Additionally, although the military judge noted in his ruling that the text message must include “smoking gun” evidence before production of the cellphone would be ordered, the Court found that the context of the opinion correctly showed that the text message was only legally required to be relevant.
2. Legal and Factual Sufficiency
Appellant also claimed that his convictions were legally and factually insufficient because SN was not a credible witness after allegedly deleting text messages with an intent to destroy evidence. Noting that the content of the deleted message was never in dispute, the Court found that there was little motive to maliciously delete the text messages. In addition, though there were some inconsistencies between SN’s testimony at trial and what she had initially reported, the Court did not find the inconsistencies to be sufficiently problematic considering the two years that had passed since the assault. Finally, because SN’s trial testimony was corroborated by her initial reports, a sexual assault nurse examiner, toxicology reports, and DNA evidence, the Court found Appellant’s convictions both legally and factually sufficient.
3. Expert Testimony
Appellant contended next that the testimony of the government’s expert witness at sentencing was irrelevant and should have been excluded. Appellant based this argument on the premise that the expert’s testimony described generalized effects of sexual abuse on children, rather than commenting on SN’s specific emotional injuries. However, the Court held that the evidence was relevant because the expert testimony commented on the effects of sexual abuse on children who know their attacker, creating a sufficient nexus to the evidence of Appellant’s crimes. Thus, the testimony was deemed relevant.
4. Post-Trial Processing
Finally, Appellant argued that he was entitled to a new post-trial processing because the SJAR and attached Personal Data Sheet (PDS) each contained errors when submitted to the convening authority. The SJAR listed the maximum term of confinement as seventy years instead of thirty years. Additionally, the addendum to the SJAR failed to address Appellant’s claim that his convictions lacked legal and factual sufficiency. The PDS incorrectly listed Appellant’s basic pay and was missing his prior military service and one personal award.
First, because Appellant was already sentenced to one third of the maximum term of confinement, and because the convening authority lacked the ability to commute or set aside the sentence, the Court found no prejudice in incorrectly listing the maximum term of confinement on the SJAR. Second, because the Court already found Appellant’s convictions to be factually and legally sufficient, and because the convening authority had no authority to disapprove a finding of guilty, the error on the addendum was also found to be without prejudicial effect. Finally, because Appellant’s prior military service and personal accomplishments were conveyed to the convening authority through other means, the PDS errors showed no prejudice. Therefore, the Court held that no additional post-trial processing was required.
LT Chris Clifton
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