## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________ No. 201 700018

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v.



### TAYLOR U. JONES Hospitalman (E

- 3 ) , U.S. Navy

Appellant

_________________________ Appeal from th e United States Navy

- Marine Corps Trial Judiciary

Military Judge s : C aptain Robert J. Crow , JAGC, USN

. Convening Authority: Command er, Navy Region Southeast, Jacksonville, FL

. Staff Judge Advocate’s Recommendation s : 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

.

_________________________ Decided 8 February 2018

_________________________ Before H UTCHISON , P RICE , and S A YEGH , 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 appellan t to reduction to pay grade E

- 1, confinement for 18 months, and a dishonorable discharge. TheUnited States v. Jones , No. 201 7 00 018

2 convening authority (CA) approved the sentence as adjudged and, except for the dishonorable discharge discharge, ordered it executed.
The appellant raises one as signment 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 va lue and of central importance to the defense.

A fter careful consideration of the record of trial and the parties’ pleadings, we conclude t he findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights o f the appellant occurred. Art s . 59(a) and 66(c) , UCMJ

. I. B ACKGROUND 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 t he 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 s aid, “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 S an A ntonio P olice D epar tment (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 a ssault. 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 te xt 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 spe ak with or obtain cell phone records from the friend in Italy. Id

. at 66.

2 Id . at 493.

3 Id. at 493

- 95.United States v. Jones , No. 201 7 00 018

3 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 R ULE FOR C OURTS

- M ARTIAL (R.C.M.) 701(g)(3), M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (2016 ed.) to dismiss the c harge 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). F ollowing an Article 39(a), UCMJ, motions hearing

, the military judge denied the motion. 5 After the appellant presented additional evidence that J B did not delete the text messages before meeting with NCIS on 15 September 2014

, 6 the military judge agreed to reconsider his previous

ru ling but ultimately again denied the appellant’s motion. 7

II. D ISCUSSION

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 diff erence 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. 1 9 92).

T he 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 app ellant’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).United States v. Jones , No. 201 7 00 018

4 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 whe ther 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 r ule 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, i f such evidence is of such central importance to an issue that it is essential to a fair t rial, 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)

. T he 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, unp ublished 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 des troyed, 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 cou ld not have prevented the unavailability of the evidence.
The record establishes, and the appellant does not challenge, the military judge ’s ruling s with regards to prongs (2) and (5 ). In addressing the remaining prongs, t he military judge determined tha t 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 A E XXXV.United States v. Jones , No. 201 7 00 018

5 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 do es 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 th at text message was available to the appellant. The SAPD video of JB’s interview
, which inclu des 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 j ust 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 4 87

.

13 Id. at 49 3

- 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

- utte rance. Id. at 495.

14 Id. at 707.United States v. Jones , No. 201 7 00 018

6 The military judge also conducted a separate analysis addressing the government’s duty to preserve evidence under the c onstitutional d ue p rocess standard. 15 Due p rocess 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)

. H owever, the failure to preserve “potentially useful evidence” is only a violation of d ue p rocess 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 d ue p rocess. Unite d 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. Muw w akkil
, 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. attempt ed 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 controverte d with JB’s claims she did not delete the texts

, 17 t he record does not support finding that SA B

. act ed intentionally or willfully in failing to retrieve or photograph the two text messages. As discussed supra, regardless of whether
or not the two text mess ages ha d potential exculpatory value or were potentially useful to the appellant

, they were available to him through other adequate means.

W e find nothing in the record to suggest that NCIS ’ failure to retrieve or photograph the two text messages was will full or as a result of bad faith

. Ther e fore, 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 de nying the appellant relief under R.C.M. 703 or the c onstitutional d ue
p rocess 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.United States v. Jones , No. 201 7 00 018

7 III

. C ONCLUSION 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