Navy-Marine Corps Court of Criminal Appeals--Vance

In Vance, an "enlisted" panel convicted hin of attempted sexual assault of a child, attempted sexual abuse of a child, and attempted extramarital sexual conduct, in violation of Article 80, Uniform Code of Military Justice [UCMJ], and for communicating indecent language to and attempting to have sex with a person Appellant believed was 13-years-old. They sentenced him to 15 months, RiR, and a DD. Issues raised.

(1) The military judge abused her discretion by removing two members over defense objection and not granting a defense implied-bias challenge to another member.

• The Government challenged Staff Sergeant John due to his persistent cough. When questioned during voir dire, he stated that he was awaiting COVID-19 test results, that he was asymptomatic with regard to COVID-19 except for the cough, and that the cough was due to being outside in the heat then coming inside to a cooler area. Trial defense counsel objected to the Government’s challenge, arguing among other things that Staff Sergeant John was the “only member on this panel who is African American . . . [s]o if he is kicked, there will be no member as a result who reflects the race of [Appellant].” The military judge excused Staff Sergeant John, noting that his cough was distracting, that it was a “productive” cough as opposed to a dry cough, and that he himself was concerned enough to be tested for COVID-19.
• The member was personally accused of sexual assault in 2004 and was investigated by the San Diego police department. He reported that he believed he would be unable to sit a “sexual assault” trial “without clear evidence” because of the previous accusation against him. When asked about the show “To Catch a Predator,” he said the show “does . . . make you feel angry at the individual because they definitely seem guilty from the beginning.” In clarifying his answer, he stated, “[I]n general, the crime itself is repulsive,” but also stated that the individual was “innocent until proven guilty and . . . gets a fair trial.” However, he stated that he would “just weigh differently” and would “need more evidence” than circumstantial evidence in a sexual assault case with two adults because there was “probably some bias on [his] end.”
• The Defense’s implied bias challenge revolved around answers to questions regarding adultery charges. He indicated in group voir dire that he had “strong beliefs in favor of the military’s criminalization of adultery.” On more specific questioning,  "he would “[a]bsolutely” be able to consider someone accused of adultery innocent until proven guilty, and that he would be able to set aside his judgment until guilt was proven beyond a reasonable doubt, because he “[felt] like that’s what our nation’s based off of, like, part of our constitutional rights and everythin[.]"

(2) The panel was improperly constituted where at least one member was solicited and volunteered. The court finds no United States v. Dowty, 60 M.J. 163, 173 (C.A.A.F. 2004)  problem, but gives a caution for the future (in a footnote).

(3) The military judge erred by denying production of the undercover law enforcement agent who had pretended to be the underage girl on the phone. 

(4) the military judge erred by not allowing the Defense to argue in closing that the Government had to prove Appellant’s predisposition to commit the offense beyond a reasonable doubt.

(5) The military judge erred by failing to issue a tailored entrapment instruction.

• Appellant’s position on appeal, as at trial, is that the military judge’s view during this exchange is a misstatement of the law. We disagree. While the burden does shift to the government after the defense shows some evidence that the suggestion to commit the crime originated with the government, the government must then prove beyond a reasonable doubt either “that the criminal design did not originate with the [g]overnment or that the accused had a predisposition to commit the offense.” In other words, the burden shifts to the government to prove beyond a reasonable doubt that, one way or the other, the accused was not entrapped. That is exactly what the military judge instructed the members in this case and exactly what the military judge allowed the Defense to argue during closing argument. The military judge did not abuse her discretion in limiting Defense’s closing argument to restating the entrapment defense’s proper elements and burden shifting. 

(6) The military judge erred by admitting Appellant’s communications with others to show propensity.

• Here, Appellant sent messages to two other online personas on the same night as the charged offenses. To one of the personas, Appellant expressed that he was using the social media application because he was “looking for chicks.” The second additional persona was, like the persona for the charged offenses, an undercover agent posing as a 13 year-old girl. To this persona Appellant communicated that “we can f[***],” that he was “cool” with her statement that she would be turning 14 in two weeks, and that the persona’s age would not bother Appellant “as long as you don’t tell me your age.”

     Good enough for Mil. R. Evid. 404(b).

(7) the record of trial is incomplete.

(8) the evidence is legally and factually insufficient to sustain Appellant’s convictions.

(9) Cumulative error.

(10) Unanimous verdict instruction.

Some of which are discussed, but the court finds no prejudicial error and affirms.