## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS



### UNITED STATES ) No. ACM 40462

Appellee ) )

v. ) ) ORDER Malik C. SIMMONS ) Airman First Class (E

- 3) ) U.S. Air Force )

Appellant ) Panel 1

On 3 March 202 3 , Appellant was convicted by a general court

- martial at Minot Air Force Base, North Dakota

, of one specification of possessing child pornography in violation on Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. * The military judge sentenced Appellant to a dishonorable discharge, confinement for 1 1 months, reduction to the grade of E

- 1 , and a reprimand

. The record of trial was docketed with this court on 16 May 2023. Upon this court’s review of the record, we discovered P reliminary Hearing Officer (PHO) Exhibits 1 2

– 3 4 missing.

“A substantial omission renders a record of tr ial incomplete and raises a presumption of prejudice that the Government must rebut.” United States v. Henry , 53 M.J. 108, 111 (C.A.A.F. 2000) (citations omitted). “Insubstantial omissions from a record of trial do not raise a presumption of prejudice or a ffect that record’s characterization as a complete one.” Id

. “Whether an omission from a record of trial is ‘substantial’ is a question of law which [appellate courts] review de novo .” United States v. Stoffer , 53 M.J. 26, 27 (C.A.A.F. 2000).
Each case is analyzed individually to decide whether an omission is substantial. United States v. Abrams , 50 M.J. 361, 363 (C.A.A.F. 1999).

On 16 May 2023, this court ordered the Government to show cause why the court should not remand this record for completion and co rrection of the record. On 1 June 2023, the Government responded to the court’s order by requesting
the court return the case to the Chief Trial Judge for correction. According tothe Government, “A PHO report under Article 32, UCMJ, including its attachme nts, is not required co n tent of a record of trial under R.C.M. 1112(b).

* All references in this order to the UCMJ are to the Manual for Courts

- Martial

, United States (2019 ed.).United States v. Simmo ns , No. ACM 40462

2 However, under R.C.M. 1112 (f)(1)(A), the PHO report is among those items the United States is required to attach to the record of trial.”

Accordingly, it is by the court on this 5 th day of June , 202 3

, ORDERED:

The record of trial in Appellant’s case is returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for
PHO Exhibits 12

– 34 , and any other portion of the record that is dete rmined to be missing or defective hereafter, after consultation with the parties. See Article 66(g), UCMJ, 10 U.S.C. § 866(g); R.C.M. 1112(d)(2)

– (3). Thereafter, the record of trial will be returned to this court fo r completion of its appellate review
unde r Article 66(d), UCMJ, 10 U.S.C. § 866(d).

The record of trial will be returned to the court not later than 30 June 2023
unless a military judge or this court grants an enlargement of time for good
cause shown

. T he Government will inform the court in writing not later than

2 2 June 202 3 of the status of the Government’s compliance with this order

, unless the record of trial has already been returned to the court by that date

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court