Recent NMCCA Opinion--Axe

Appellant was convicted of one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of Military Justice [UCMJ] , 10 U.S.C. § 80 (2012), for communicating indecent language to, and arranging to meet and have sex with a fictitious individual named “Sarah.” Appellant believed Sarah to be a 14-year-old female, but the individual with whom Appellant communicated was in fact an online persona portrayed by a special agent of the Air Force Office of Special Investigations. On appeal, Appellant asserts four assignments of error.[1] The Court, addressing only the first two assignments, found no abuse of discretion and affirmed the decision.

[1] (1) The military judge abused his discretion when he denied in part a Defense motion to compel an expert consultant in forensic psychology; (2) the military judge abused his discretion when he denied a Defense motion to suppress a statement by Appellant under Military Rule of Evidence [Mil. R. Evid.] 404(b); (3) trial defense counsel was ineffective for waiving a potential defense of entrapment; and (4) Appellant's convictions are not legally or factually sufficient because the special agent with whom Appellant communicated did not provide an age or gender in the chat application profile used to communicate with Appellant, and sent him images that were in fact of adults.

Opinion Here.

Appellant's Right to Expert Assistance
 
Before going to trial, Appellant requested the appointment of a certain forensic psychologist, Dr. S, as an expert consultant to evaluate the Government’s case and the Appellant’s risk of recidivism. However, the convening authority granted his request for a consultant with Dr. A, rather than Dr. S, and limited the scope to focus only on Appellant’s risk of recidivism.
           
On appeal, challenging the appointment of Dr. A, Appellant argues that “Dr. A did not possess similar qualifications as Dr. S, would not testify to the same conclusions as Dr. S, and that Dr. S. harbored a bias or conflict of interest that precluded his participation in Appellant's defense.” Upon finding Dr. A’s qualifications sufficient, the Court explained that “the law governing pretrial expert assistance does not require a tit-for-tat comparison of the professional qualifications of Doctors A and S. Nor must the trial court consider divergences in speculative testimony between expert consultants. This is so because the government is not required to employ the expert consultant of Appellant’s choosing, nor one with precisely equivalent professional qualifications as any defense-requested expert.” As such, the Court found that the military judge’s decision was supported by the facts and did not abuse his discretion.
 
Military Rule of Evidence 404(b)
 
Next, Appellant argues that the court below abused [its] discretion by permitting the Government to introduce communications between Appellant and Sarah regarding another sexual relationship involving Appellant and a female “like [Sarah].” Mil. R. Evid. 404(b) permits the admission of evidence of other crimes, wrongs, or acts so long as that evidence is relevant for a purpose other than to prove propensity.[1] The three-part test established by the CAAF requires that evidence must satisfy its prongs prior to being admissible.[2]

[1] “The military judge permitted the evidence under Mil. R. Evid. 404(b) as evidence tending to demonstrate intent, plan, knowledge, and in the event an entrapment defense was raised, predisposition.”

[2] (1) “Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts;” (2) “What fact . . . of consequence is made more or less probable by the existence of this evidence;” and (3) “Is the probative value . . . substantially outweighed by the danger of unfair prejudice?” United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)

Farris Francis

Intern