United States v. Reynolds--ACCA

​Reynolds is a To-Catch-A-Predator case, tried before an "enlisted" panel.

Findings: G of attempted sexual assault of a child and attempted sexual abuse of a child.

Sentence: By MJ, five years, RiR, and a DD.

Issues: (1) Abuse of discretion denying motion to compel forensic psychologist, and (2) IAC regarding MJ's instructions (failure to request instruction for mistake of age).

Issue 1.

[H]is assignment of error is nearly identical to the issue we addressed last year in United States v. Hunt, ARMY 20200158, 2021 CCA LEXIS 457 (Arm Ct. Crim. App. 9 Sep. 2021) (mem. op.). Hunt was [a similar] ase [to Appellant's].
. . .
Indeed, the only meaningful factual distinction between Hunt and this case is that appellant here actually traveled in the hopes of meeting up with one of his chat partners, whereas Hunt did not. Hunt also requested that an expert assistant be appointed to his defense team, and the (same) military judge denied Hunt's request. We affirmed the military judge's decision, and explained that Hunt could "show only the possibility" that an expert assistant could have assisted in his defense, and that this was not a sufficient showing under the applicable precedent.

At best the Appellant could only show "the mere possibility" of assistance--"that is not enough."

​Issue 2.

First the court addressed waiver when DC answered "none" and "No, Your Honor" when asked counsel about any "additioaal instructions." So, "likely waiver." Regardless, the court addressed the issue as follows.

The instructions the military judge did give resolved this assignment of error.

On this point, the military judge instructed the panel that the government had the affirmative obligation to prove beyond a reasonable doubt that appellant actually believed that [x] and [x] "had not attained he age of 16 years" at the time of the attempted sexual assault or sexual abuse.

Based on this instruction, if the panel credited appellant's testimony that he did not think the individuals he was chatting with were minors, then he was not guilty because of a failure of the government's proof, without having to resort to any affirmative defenses. Cf United States v. Teague, 75 M.J. 636, 638 (Army Ct. Crim. App. 2016) (finding thar mistake of fact defense was "baked in" to the elements themselves where the government was required to affirmatively prove that appellant "knew or reasonably should have known" that victim was incapable of consenting). Stated differently, the instructions appellant actually received were more favorable to him than the one that he now claims his counsel should have requested. 
. . . 
While the parties did not discuss the issue at trial, it is apparent that the military judge tailored his instructions to account for the fact that appellant was charged with attempted sexual assault of a child and attempted sexual abuse of a child, and not with the substantive offenses themselves. As these instructions recognized, to be guilty of an attempt appellant had to have the "specific intent to commit the underlying offense"-here, sexual abuse of a child and sexual assault of a child. Thus, as the military judge instructed, if appellant believed hat he was talking to adults, he did not have the requisite specific intent to commit
he inchoate offense of attempt.
. . . 
Appellant's counsel therefore did not render deficient performance.

Findings and sentence affirmed.

Note, this is one of several opinions coming from ACCA using a "cleaned up" cite.