Court of Appeals for the Armed Forces

United States v. Jones

Is post-incident browser history admissible in a sexual assault[1] of a child case as res gestae, on “some other theory, or as consciousness of guilt?” (The Appellant points out in the Reply that the government never offered the consciousness of guilt theory at trial and should be precluded from bringing it up now.)
 
We don’t know. The court skipped answering the question, assumed an error in the admission, and tested for prejudice. 
 
On the way to concluding there was no prejudice, the court made it clear that the “three factors” in United States v. Kohlbeck, 78 M.J. 326 (C.A.A.F. 2019) are used to decide if the military judge abused her discretion. In a footnote, the court rejects the test in United States v. Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir. 1994).
 
Kohlbeck is the test for nonconstitutional evidentiary errors.
 
Does this chronology from the opinion help decide admissibility?
 
? November 2020 is the date of the incident.

Appellant’s neighbor, SD, walked into the room and saw Appellant kneeling on the bed with his pants down and AG lying on the bed in front of him. SD immediately went into the bathroom and vomited. Appellant “jumped up and pulled his pants up” and told AG he would be in trouble if anyone found out what had happened. SD confronted Appellant later that day to clarify what she had seen.

0400, 5 November, CID interrogates and gets admissions and his smartphone.
 
The DFE found internet searches “for “how many years for sexual assault,” “choking charge,” “Types of sexual assault,” and “what is sextual [sic] assault.””
 
May I suggest the searches are not, or shouldn’t be admissible:
 
(1) The searches are clearly not res gestae; they were done after the event was complete and after the confrontation.
 
(2) The searches are cumulative to his statements, which do express a consciousness of guilt that “he would be in trouble if anyone found out.” Mil. R. Evid. 403 ought to keep them out.
 
(3) A wise prosecutor doesn’t want to introduce a potential error when the rest of the evidence—the “admission” when confronted, independent eyewitness testimony, and the admissions to CID. This is more than sufficient to support guilt BRD. Also, the available evidence doesn't suggest any action that could be construed as "choking."
 
(4) An argument can be that the searches indicate doubt in his mind whether he did commit a sexual assault, so he’s checking to see what the ever-reliable Google says. Or does that counter the government’s argument that “He knew what he did was wrong[?]” That's the Mil. R. Evid. 403 objection. The Appellant's Reply brief makes this point.

However, appellant’s internet searches are more indicative of an ignorant or naïve mind. Contrary to the government’s assertion, the evidence here is even less indicative of consciousness of guilt than in United States v. Tovarchavez, 78 M.J. 458 (C.A.A.F. 2019). In Tovarchavez, the appellant had sent apology texts, which were not considered evidence indicative of guilt. Here, appellant was simply inquiring about the allegations and trying to understand what he might be facing. There is no inference of guilt but rather a search for information after being accused.
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[1] One specification of sexual assault of a child, two specifications of sexual abuse of a child, and one specification of aggravated assault.