Charge II (Article 111, UCMJ – leaving the scene of an accident) fail[s] to state an offense when it does not allege that Appellant’s vehicle struck anyone, nor does it allege that anyone other than a passenger in Appellant’s vehicle was injured[.]

did not expressly allege that appellant committed a "violent offense" against his intimate partner, they failed to state an offense. The specifications alleged: 

     SPECIFICATION 3: In that [appellant] did, at or near Cameron, North Carolina, on or about 13 May 2021, unlawfully pick up and throw the body of [the victim], an intimate partner of the accused, on a desk. 

      SPECIFICATION 4: In that [appellant] did, at or near Cameron, North Carolina, on or about 11 May 2021, unlawfully strike[the victim], an intimate partner of the accused, in the face with his hand.

The military judge ultimately concluded that because the specifications did  not contain "direct, that is to say, express language to apprise the accused of the government's theory of criminality under Article 128b," the "omission of the words 'violent offense' .... constitute a failure to state an offense of domestic violence under Article 128b." During argument, the military judge also cut off trial counsel when he tried to argue lack of prejudice, ruling "I don't even reach prejudice on a jurisdictional issue."

The petition included, inter alia, an affidavit from Petitioner about the lingering effects of his conviction and its collateral consequences, and an affidavit from the named victim in Petitioner’s court-martial, LG. In that affidavit, LG recanted her trial testimony that supported the offenses of which Petitioner was convicted. Petitioner requests this court issue “a writ of error coram nobis setting aside his 9 February 2001 conviction, as it was based on false testimony.” Alternatively, Petitioner suggests that if the court is unable to determine LG’s credibility, it remand for a hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). 

Upon careful review of the record, we conclude a fact-finding hearing is appropriate to address two coram nobis threshold requirements, specifically Denedo factors (3) and (4). We allow that in consideration of the Denedo factors, evidence relating to LG’s veracity and Petitioner’s underlying request may be revealed. However, at this time we do not request findings of fact on the merits of Petitioner’s request for a new trial.

I agree with my colleagues’ decision to order further proceedings before the court may settle his petition and resolve whether his substantive claim on the merits warrants setting aside the findings and sentence. For this reason I join my colleagues in the decision to order an evidentiary hearing.

I write separately for two reasons: first, to explain why a factfinding hearing on Denedo factors (3) and (4) is not only appropriate, but that it is necessary under applicable precedent and the circumstances present here. Put differently, the court is correct to order factfinding not because we can, but because we must. For this reason I concur with ordering the DuBay1 judge to fully evaluate Denedo factors (3) and (4), and conduct factfinding on both issues. However, I dissent in part because our order does not afford latitude to the DuBay judge that would allow this court to evaluate Denedo’s second tier of analysis— that is, the question of the merits of LG’s recantation and whether she told the truth before, or is telling the truth now. It is not too soon to inquire into the veracity of LG’s trial testimony and recantation.

​Therefore, I respectfully dissent not because our order is incorrect, but because it is too narrow in scope.

(1) The circumstances surrounding LG’s recantation(s) of her testimony from Petitioner’s court-martial, including when Petitioner learned that LG was recanting. (Denedo factor (3)).

(2) The circumstances leading to Petitioner filing his Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis in January 2022, nearly 21 years after his conviction. (Denedo factor (3)).

(3) The circumstances relating to LG’s 28 October 2021 affidavit statement that LG would have admitted her allegations were untrue to any investigator or participant to the court-martial, had she been asked directly, before Petitioner was convicted. (Denedo factor (4)). 

In pretrial litigation, Appellant attempted to obtain medical records documenting Emily's week of inpatient treatment at the hospital. The military judge ordered the hospital to produce Emily's prescription records and her mental health diagnoses. He found the remainder of her records were privileged and that Appellant had not made a showing of vital necessity to require production or an in camera review.

The week before the trial began, the hospital produced the required records. While at the hospital, Emily was prescribed Tylenol and four other medications, including Thorazine. It was the Thorazine that was at issue. This medication was prescribed for "psychotic agitation." Appellant had a child psychologist provide expert testimony that Thorazine was a "known antipsychotic medication" used to assist patients who may be "stimulated internally by things that are not actually going on" or who could be "laboring under the burden of delusions." But Emily was diagnosed with "depression without psychotic features" and the Thorazine was prescribed "as needed." There was also no evidence Emily ever exhibited psychotic agitation or ever took Thorazine. The military judge denied Appellant's motion for in camera review of Emily's mental health records and denied his motion for a continuance based on the timeline of the disclosure of the records. The day before trial, Appellant moved the military judge to reconsider his denial of the continuance; the military judge denied the motion to reconsider.

The military judge applied the wrong legal standard in conducting his analysis. In his Conclusions of Law, he wrote that Appellant failed to demonstrate "a reasonable probability that the records contain information otherwise unavailable to the defense, and that the information sought is vital to the defense theory of the case." This standard "conflate[s] the constitutionally required standard envisioned in Mil. R. Evid. 412 [pertaining to the admission of constitutionally required evidence] with Mil. R. Evid. 513 [pertaining to the disclosure or in camera review of constitutionally required privileged materials]" which we have cautioned against. Because the military judge applied the wrong legal standard, we find he abused his discretion and turn to whether this materially prejudiced Appellant's substantial rights.
​
We are convinced beyond a reasonable doubt that Appellant suffered no prejudice. First, there was no evidence Emily ever had the psychotic disorder Appellant alleges or that she ever took Thorazine because she was suffering from psychotic disorders or "laboring under delusions." Appellant was far from showing a "specific factual basis" demonstrating a "reasonable likelihood" the records would yield any evidence admissible under an exception to the privilege. More important, the timeline does not support Appellant's argument. Even if Emily had been suffering from psychotic delusions and had trouble appreciating reality in May 2017, Appellant would have to somehow tie those later-occurring problems to the timeframe when the alleged abuse actually happened, some four years prior. And there was absolutely no evidence she had any mental health problems when she was in fourth grade. Finally, the very fact that Emily merely repeated the same disclosure she had previously made to her mother four years earlier indicates she had at least some mental connection to a past event, which weakens any argument that she was experiencing psychotic disorders.
Despite his application of the wrong legal standard, we cannot find that the military judge's decision to deny production of the privileged records, or his refusal to conduct an in camera review, undermined Appellant's ability to make a constitutional defense or in any way contributed to the verdict. We find no prejudice.

The record before us contains conflicting information about whether E.B. was experiencing psychotic agitation when she was hospitalized shortly after her May 2017 outcry against Appellant. On the one hand, the record indicates that E.B. was diagnosed with PTSD and major depressive disorder without psychotic features. On the other hand, the medical records indicate that E.B. was prescribed Thorazine for psychotic agitation. Because of this conflicting evidence, there is a crucial dispute between the parties about whether the medical records indicate that E.B.'s physician diagnosed E.B. with psychotic agitation and authorized attending medical personnel to administer Thorazine when needed, or that E.B.'s physician was merely indicating in the charts that medical personnel were authorized to administer Thorazine if needed in the event E.B. subsequently displayed symptoms of psychotic agitation.

The military judge essentially sided with the Government in this dispute when denying the defense motions for a continuance and in camera review. Specifically, he made two key findings of fact: (1) Although the hospital prescribed Thorazine as needed for psychotic agitation, "[t]here is no evidence that E.B. ever experienced psychotic agitation"; and (2) "There is no evidence [that] the prescription for Thorazine was ever filled" or that "E.B. ever took Thorazine," and, in fact, Thorazine was "never administered to E.B." To properly assess the military judge's continuance and in camera rulings, we must determine whether these two factual findings are clearly erroneous. See Ayala, 81 M.J. at 27-28. However, we cannot evaluate the military judge's critical factual findings because of obvious omissions and ambiguities in the record.

First, this record omits five pages of hospital documents reviewed by the defense forensic psychologist (and presumably by the military judge) when she testified at the Article 39(a), UCMJ, session. This missing evidence may be important to the disposition of this case because the defense forensic psychologist's assessment of the hospital records directly contradicts the military judge's assessment of—and factual findings regarding—these same records. Without this evidence, our ability to assess the military judge's factual findings is significantly and substantively impeded.

Second, the record omits information that the military judge ordered the Government and the hospital to produce on June 14, 2018. Indeed, as previously noted, there is no indication whether the Government and the hospital even complied with the military judge's orders. However, this court-ordered information—if produced—likely would have resolved the questions surrounding E.B.'s diagnosis and her Thorazine prescription for psychotic agitation.
​
Because the record before us is unclear and incomplete, we cannot make an informed decision about whether the military judge's crucial factual findings are clearly erroneous. Accordingly, we vacate the decision of the lower court in part and remand for further factual development of the record.