Navy-Marine Corps Court of Criminal Appeals

United States v. Jordan Jones is a published decision where

Officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of Military Justice [UCMJ]. Appellant was also convicted, pursuant to his pleas, of desertion, absence without leave, escape from custody, false official statement, wrongful possession of a controlled substance, and wrongful appropriation in violation of Articles 85, 86, 87a, 107, 112a, and 121 UCMJ, respectively. Appellant asserts three assignments of error [AOE]: (1) the admission of his statement, “I’m going to tap that” implicated Appellant’s substantial right to be presumed innocent under the Due Process Clause of the Fifth Amendment, and but for that error, the outcome of the proceeding would have been different[.]

A first point to consider is whether to give, and what must be included in a notice under Mil. R. Evid. 404(b).

Prior to trial the Government provided notice under Mil. R. Evid. 404(b) that it intended to offer certain non-hearsay statements of Appellant. Among this evidence was a statement Appellant made earlier in the evening to Machinist’s Mate Third Class [MM3] Charlie (one of the other Sailors present at the hotel), in which Appellant stated that “he was going to have sex ‘regardless’ that night, or that he was ‘going to get some tonight,’ or words to that effect.”8 The Government made clear in its notice that it was not conceding that the statements were covered by 404(b) however, “out of an abundance of caution” it was providing notice.9 The Government’s notice did not specifically contain Appellant’s alleged statements including the words “tap that,” “hit that,” or words that conveyed the same meaning. Appellant subsequently filed a motion to exclude evidence listed in the Government’s motion; however, Appellant’s motion was limited to other unrelated evidence in the Government’s notice pertaining to an alleged violation of a protective order. The Government ultimately elected not to introduce that evidence. Appellant’s motion to exclude did not include Appellant’s alleged statements “he was going to have sex ‘regardless’ that night” or, that he was “going to get some tonight.” 

At trial, the Government questioned MM3 Charlie about Appellant’s statements to him on the evening of the incident.

     TC: Did [Appellant] say anything about what his intentions were that night? MM3: Yeah, somewhat.
     TC: What did he say? MM3: That he was trying to get with them.
    TC: Okay. Do you remember him saying that he was going to get some that night? MM3: Yeah.

At no point did trial defense counsel object. Additionally, the Government questioned AR Delta about her interactions with Appellant on the evening of the incident. AR Delta testified that on meeting Appellant at the hotel for the first time, Appellant stated, “[O]h, damn, I’m going to hit that tonight,” referring to AR Delta’s body.11 AR Delta testified that Appellant told her “he was going to tap that” (or words to that effect) later  in the evening, again referencing AR Delta. Trial defense counsel did not object to the line of questioning regarding these statements.

After summarizing the law, the court goes to United States v. Brazell, No. ACM 39325, 2019 CCA LEXIS 34, *14-15 (A.F. Ct. Crim. App. Jan. 29, 2019) (unpub.) (Shepardized), for help.

"Appellant’s statements were admissible non-hearsay statements demonstrating his intent and desire to engage in a sexual act while at the hotel that evening.

• [T]he probative value of these statements demonstrating the intent of Appellant on the evening of the incident substantially outweighs any risk of unfair prejudice posed by the phrases “tap that” or “get some,” particularly when compared to the far more offensive language referenced in Brazell.
• [W]hile the Government briefly referenced Appellant’s statement he was “going to get some tonight” in closing argument, trial counsel in no way insinuated the statement served as evidence of Appellant’s propensity to commit sexual misconduct or show he acted in accordance with a trait of general bad character.
• Appellant’s statements were not governed by Mil. R. Evid. 404(b) because while seemingly inappropriate, they in no way implicate a crime, wrong, or other act against the victim in this case.
• Even if Mil. R. Evid. 404(b) was applicable in this instance, we find these statements would have served the legitimate purpose of proving Appellant’s intent, rather than his propensity to commit “crimes, wrongs, or other acts.”
• [W]e do not find these statements to have materially prejudiced a substantial right of Appellant. Accordingly, Appellant has failed to demonstrate that the admission of his statements constitutes plain error.

There being no prejudicial error, no need to address the claim of IAC. And Brazell,

Petitioner filed for Writ of Habeas Corpus asserting that the court-martial lacked subject matter jurisdiction because the U.S. Japan Status of Forces Agreement ("SOFA") assigned the primary right to exercise jurisdiction over Petitioner's offenses to Japan, and Japan did not waive its primary jurisdiction. Respondent's Answer assert[ed] the U.S. military courts had proper concurrent jurisdiction in this case. Further, Respondent contends that "Petitioner has no standing to object to 'violations' of the SOFA." (the issue was raised at AFCCA.)
Brazell v. Uddenberg, No. 19-CV-01084 JLS (MSB), 2020 U.S. Dist. LEXIS 216989, at *3-4 (S.D. Cal. Nov. 17, 2020). Petition denied for lack of standing, with a footnote to R.C.M. 201(d)(3).

Cheers