UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201700018

_________________________

UNITED STATES OF AMERICA

Appellee

v.

TAYLOR U. JONES

Hospitalman (E-3), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: Captain Robert J. Crow, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast, 

Jacksonville, FL.

Staff Judge Advocate’s Recommendations: Lieutenant Medardo M. 

Martin, JAGC, USN.

For Appellant: Lieutenant Commander Jeremy J. Wall, JAGC, USN.

For Appellee: Captain Sean M. Monks, USMC; Lieutenant Megan P. 

Marinos, JAGC, USN.

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Decided 8 February 2018

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Before HUTCHISON, PRICE, and SAYEGH, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent but may be cited as 

persuasive authority under NMCCA Rule of Practice and Procedure 

18.2.

_________________________

SAYEGH, Judge: 

A military judge sitting as a general court-martial convicted the 

appellant, contrary to his pleas, of sexual assault of JB while she was asleep 

in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 920. The military judge sentenced the appellant to reduction to pay 

grade E-1, confinement for 18 months, and a dishonorable discharge. The 
United States v. Jones, No. 201700018

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convening authority (CA) approved the sentence as adjudged and, except for 

the dishonorable discharge discharge, ordered it executed. 

The appellant raises one assignment of error: the military judge abused 

his discretion by not dismissing the charge and specification or abating the 

proceedings for the government’s failure to preserve two text messages on the 

victim’s cell phone that were of apparent exculpatory value and of central 

importance to the defense.

After careful consideration of the record of trial and the parties’ 

pleadings, we conclude the findings and sentence are correct in law and fact, 

and no error materially prejudicial to the substantial rights of the appellant 

occurred. Arts. 59(a) and 66(c), UCMJ. 

I. BACKGROUND

In 2014, the appellant and JB were “C” school classmates. The appellant 

was convicted of sexually assaulting JB in a hotel in San Antonio, Texas, on 

23 August 2014. JB alleged that after a night of heavy drinking she awoke

with the appellant on top of her engaged in sexual intercourse. After 

maneuvering herself away from the appellant, JB quickly got dressed and left 

the hotel room where the sexual assault had just occurred. She went to the 

lobby and exited the hotel to find a cab. On the ride home, JB sent a group 

text to her friend Hospitalman (HN) RA, whose birthday party she had 

attended at a bar on the evening of 23 August, and another friend who was 

then in Italy.1 In this text, JB said, “F***, mistake, all a mistake.”2

Approximately two and one-half hours later, JB sent HN RA another text 

stating, “I should have stayed at [the bar] with you all until I got kicked 

out.”3

On 23 August 2014, JB reported to the San Antonio Police Department 

(SAPD) that she was sexually assaulted by the appellant. On 25 August 2014, 

SAPD conducted a video-recorded interview with JB. During this interview, 

JB read aloud the two text messages she sent to HN RA from her cell phone 

after the alleged sexual assault. The Naval Criminal Investigative Service 

(NCIS) subsequently assumed investigative jurisdiction of the case and NCIS 

Special Agent (SA) B. re-interviewed JB, who again mentioned the text 

messages. SA B. attempted, but was unable, to retrieve the text messages 

from JB’s cell phone. SA B. did make photographic copies of other text 

messages sent close in time to the incident, but not the two aforementioned 

 

1 Record at 486-89. No investigation efforts were made to speak with or obtain 

cell phone records from the friend in Italy. Id. at 66. 

2 Id. at 493.

3 Id. at 493-95.
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messages sent by JB to HN RA, testifying that those messages had been 

deleted.

4 In May 2016, the appellant requested the government produce these 

text messages, but the request was denied because JB no longer had the 

same cell phone and the government had not otherwise preserved them. 

At trial, the appellant moved pursuant to RULE FOR COURTS-MARTIAL 

(R.C.M.) 701(g)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) 

to dismiss the charge and specification with prejudice due to the 

government’s violation of R.C.M. 701 and 703, and Brady v. Maryland, 373 

U.S. 83 (1963). Following an Article 39(a), UCMJ, motions hearing, the

military judge denied the motion.5 After the appellant presented additional 

evidence that JB did not delete the text messages before meeting with NCIS 

on 15 September 2014,

6 the military judge agreed to reconsider his previous 

ruling but ultimately again denied the appellant’s motion.7 

II. DISCUSSION

We review a military judge’s trial ruling on a motion to dismiss for abuse 

of discretion. United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). An 

abuse of discretion occurs when a court’s findings of fact are clearly erroneous 

or the decision is influenced by an erroneous view of the law. United States v. 

Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013). “The abuse of discretion standard is 

a strict one, calling for more than a mere difference of opinion. The 

challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly 

erroneous.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citations 

and internal quotation marks omitted). ”[T]he abuse of discretion standard of 

review recognizes that a judge has a range of choices and will not be reversed 

so long as the decision remains within that range.” Gore, 60 M.J. at 187

(citing United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C.Cir. 1992).

The appellant alleges the military judge abused his discretion by not 

dismissing or abating the case “after it became clear NCIS failed to make 

even cursory efforts to preserve important evidence.”8 We disagree. Although 

the two text messages were relevant and necessary to the appellant’s defense, 

we find that there was an “adequate substitute for such evidence” that 

ensured the appellant had a fair trial.

9

 

4 Id. at 45.

5 Id. at 107.

6 Appellate Exhibit (AE) XVI at 6.

7 Record at 642.

8 Appellant’s Brief of 20 Jun 2017 at 8.

9 R.C.M. 703(f)(2).
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The government has no explicit requirement to preserve evidence. United 

States v. Stellato, 74 M.J. 473, 483 (C.A.A.F. 2015). However, Article 46,

UCMJ, requires that the defense have equal opportunity to obtain 

exculpatory evidence. United States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986).

R.C.M. 703(f) sets forth the criteria and process a military judge must follow 

in deciding whether an accused is entitled to discovery relief and what type of 

relief may be given. R.C.M. 703(f)(1) states: “Each party is entitled to the 

production of evidence which is relevant and necessary.” However, R.C.M. 

703(f)(2) states that despite the broad rule in R.C.M. 703(f)(1): 

[A] party is not entitled to the production of evidence which is 

destroyed, lost, or otherwise not subject to compulsory process. 

However, if such evidence is of such central importance to an 

issue that it is essential to a fair trial, and if there is no 

adequate substitute for such evidence, the military judge shall 

grant a continuance or other relief in order to attempt to 

produce the evidence or shall abate the proceedings, unless the 

unavailability of the evidence is the fault of or could have been 

prevented by the requesting party.

We begin our review by determining whether the military judge’s analysis 

reasonably arose from his findings of fact.10 We find support for these 

findings of fact in the record, do not find them to be clearly erroneous, and 

adopt them. We next look to see whether the military judge properly 

interpreted R.C.M. 703(f)(2). The military judge applied a five-part test 

derived from R.C.M. 703 and set out in United States v. Smith, 2015 CCA 

LEXIS 40 at *8, unpublished op. (N-M. Ct. Crim. App. 10 Feb 10, 2015) (per 

curiam), which is consistent with Stellato:

Therefore, to be entitled to relief under R.C.M. 703(f)(2), an 

accused must show: (1) the evidence is relevant and necessary; 

(2) the evidence has been destroyed, lost, or otherwise not 

subject to compulsory process; (3) the evidence is of such 

central importance to an issue that it is essential to a fair trial; 

(4) there is no adequate substitute for such evidence; and (5) 

the accused is not at fault or could not have prevented the 

unavailability of the evidence.

The record establishes, and the appellant does not challenge, the military 

judge’s rulings with regards to prongs (2) and (5). In addressing the 

remaining prongs, the military judge determined that the two text messages 

were not relevant, necessary, or exculpatory evidence essential to the 

appellant having a fair trial, and even if they were, they were available to the 

 

10 See AE XXXV. 
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appellant through other adequate means.11 Contrary to the military judge’s 

ruling, we find the two text messages were relevant and necessary to the 

appellant’s defense as evidence that sexual activity with the appellant may 

have been consensual and that JB may have regretted engaging in a sexual 

act with the appellant. However, that does not end our analysis as we must 

still determine whether an adequate substitute for the text messages was 

available.

At appellant’s trial, his civilian defense counsel objected to the admission 

of testimony regarding both texts.12 The military judge only admitted 

testimony regarding the first text stating “F***, made a mistake. All a 

mistake.” into evidence.13 We find that a variety of comparable substitutes for 

that text message was available to the appellant. The SAPD video of JB’s 

interview, which includes JB reading the text to investigators, provided the 

appellant sufficient understanding of what the text said and how the 

government was going to use it at trial. Additionally, the testimony of JB, 

HN RA, SA B. and the other NCIS and SAPD investigators provided an 

adequate substitute for the appellant to impeach JB or confront her and HN 

RA about the text. The appellant was also able to argue how it supported the 

defense theory of the case:

Then you have when she leaves the room, Your Honor, 

“This isn’t me. This isn’t me.” “F***, I made a mistake, all a 

mistake.” “Everyone wants to be with me, but I don’t want to 

be with them.” So what do you do with that? What you don’t 

have, Your Honor, is “I just got attacked.” What you don’t have, 

Your Honor, is “I just got attacked and it was HN Jones.” What 

you don’t have is “I woke up and someone is having sex with 

me, and I don’t know right now who it is.”14

Through these witnesses, the video, and argument, the appellant had what 

was essential to put on a defense, and thus a fair trial in this case. 

 

11 AE XXXV.

12 Record at 487.

13 Id. at 493-94. The military judge sustained the defense objection to testimony 

regarding the second text because JB testified the second text was sent later and the 

military judge determined it was not an excited-utterance. Id. at 495.

14 Id. at 707.
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The military judge also conducted a separate analysis addressing the 

government’s duty to preserve evidence under the constitutional due process 

standard.15 Due process requires the government to preserve evidence with: 

(1) apparent exculpatory value before it is lost and, (2) that “[the evidence] be 

of such a nature that the defendant would be unable to obtain comparable 

evidence by other reasonable available means.” California v. Trombetta, 467 

U.S. 479, 489 (1984). However, the failure to preserve “potentially useful 

evidence” is only a violation of due process if there is a showing of bad faith 

by law enforcement, otherwise the fact such evidence is lost or destroyed does 

not constitute a denial of due process. United States v. Simmermacher, 74 

M.J. 196, 199 (C.A.A.F. 2015) (citing Arizona v. Youngblood, 488 U.S. 51, 58 

(1988)). But this exception is not without limitations and is “‘generally 

limited in its application.’” United States v. Muwwakkil, 74 M.J. 187, 193

(C.A.A.F. 2015) (quoting United States v. Jarrie, 5 M.J. 193, 195 (C.M.A. 

1978)).

In September 2014, SA B. attempted to extract the text messages off of 

JB’s cell phone and confirmed that HN RA no longer had them. SA B. 

photographed and documented the text messages between JB and four other 

witnesses but did not photograph the text messages between JB and HN RA. 

SA B. testified that she recalls she was unable to retrieve those two texts 

because they were “deleted.”16 Although SA B.’s testimony is controverted 

with JB’s claims she did not delete the texts,

17 the record does not support 

finding that SA B. acted intentionally or willfully in failing to retrieve or 

photograph the two text messages. As discussed supra, regardless of whether 

or not the two text messages had potential exculpatory value or were 

potentially useful to the appellant, they were available to him through other 

adequate means. 

We find nothing in the record to suggest that NCIS’ failure to retrieve or 

photograph the two text messages was willfull or as a result of bad faith. 

Therefore, despite the government’s inability to produce the two text 

messages JB sent to HN RA, the military judge did not abuse his discretion 

in denying the appellant relief under R.C.M. 703 or the constitutional due 

process standard. 

 

15 AE XXXV at 11.

16 Record at 45.

17 AE XVI at 6. In an email to her victim’s legal counsel, JB indicated that NCIS 

did attempt to photograph the text message she sent to HN RA.
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III. CONCLUSION

The findings and sentence, as approved by the CA, are affirmed. 

Senior Judge HUTCHISON and Judge PRICE concur.

For the Court

R.H. TROIDL

Clerk of Court