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.
(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.
(6) The military judge erred by admitting Appellant’s communications with others to show propensity.
(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.
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.