United States v. Bond
ACM 38934
A.F.C.C.A.Jun 7, 2017Background
- Appellant convicted by panel of: one specification of sexual assault (Art. 120), two specifications of communicating a threat (Art. 134), and, consistent with plea, one specification of making a worthless check; sentence: dishonorable discharge, 10 years confinement, reduction to E-1; convening authority approved.
- June 2014 incident: after heated marital argument and being denied access to his gun, Appellant told his wife in front of her parents “you’re lucky I don’t have my gun”; he earlier told his mother he wanted to kill his wife/in‑laws and later told a friend “I threatened to kill my wife”; he was evaluated in the ED for homicidal ideation and medical record documented intent to kill if discharged.
- December 2014 incident: during divorce and under a restraining order, Appellant told co‑worker SrA VR that if he obtained a high‑powered rifle he “could” reach/hurt his wife; SrA VR reported the remark.
- Defense sought to elicit Appellant’s prior suicidal ideation and hospitalization on cross; government sought access to Appellant’s psych/medical records; military judge ordered in‑camera review and admitted a redacted portion under the Mil. R. Evid. 513(d)(7) exception.
- Court addressed six assignments of error: sufficiency of threat specifications, sufficiency of sexual assault specification, reasonable‑doubt instruction (forfeited), admission of medical records, victim’s unsworn statement referencing plural “assaults,” and post‑trial delay. One December threat conviction was set aside as factually insufficient; remaining findings and a reassessed sentence were affirmed.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Legal/factual sufficiency of June 2014 threat ("you’re lucky I don’t have my gun") | Words were contingent (no gun present) and thus not a present determination to injure | Context (asking for gun, demeanor, prior homicidal statements, ED evaluation) shows present intent; objectively threatening | Affirmed: factually and legally sufficient (words + context supported a present determination to injure) |
| Legal/factual sufficiency of Dec. 2014 threat ("could reach her with high‑powered rifle") | Literal wording ("could/can") expresses capability/possibility, not present intent; could be joking | Government relied on restraining order context and prior threats to show persistent danger | Reversed: factually insufficient (wording and context did not convince court beyond reasonable doubt) |
| Legal/factual sufficiency of sexual assault | Appellant denied consent/claimed lack of intent | Government: testimony that KB communicated non‑consent and Appellant continued intercourse causing bodily harm | Affirmed: evidence legally and factually sufficient to convict of sexual assault |
| Admission of ED/medical records (Mil. R. Evid. 513) | Admission violated psychotherapist‑patient privilege and Clark; Defense did not place mental‑responsibility defense at issue | Trial court: Defense elicited mental‑state evidence on cross (prior suicidal ideation), opening Mil. R. Evid. 513(d)(7) exception; records rebutted defense theory and were proper rebuttal | Affirmed: military judge did not abuse discretion in in‑camera review and admitting redacted statements under Mil. R. Evid. 513(d)(7) |
| Victim’s unsworn statement referencing multiple "assaults" at sentencing | Reference to plural assaults misstated convictions and prejudiced sentencing | Government: minor verbal slip, no defense objection, judge instructed members to sentence only on convictions | Affirmed: error was minor, not prejudicial to sentence |
| Post‑trial delay (convening authority action after 152 days) | Delay presumptively unreasonable; requests sentence reduction | Government: delay mainly transcription, voluminous record, victim submissions; no bad faith or gross indifference | Denied relief: Gay/Tardif factors weighed; no extraordinary relief warranted; sentence reassessed after dismissal of one spec. |
Key Cases Cited
- United States v. Beatty, 64 M.J. 456 (C.A.A.F. 2007) (standard for appellate review of sufficiency)
- United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016) (elements and framework for communicating a threat under Article 134)
- United States v. Brown, 65 M.J. 227 (C.A.A.F. 2007) (context may convert contingent words into a threat)
- United States v. Cotton, 40 M.J. 93 (C.M.A. 1994) (literal wording like "would" or "would kill" can be antithetical to present determination)
- United States v. Clark, 62 M.J. 195 (C.A.A.F. 2005) (limits on compelled sanity‑board statements; privilege analysis)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standards for appellate sentence reassessment)
- United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (presumption of unreasonable post‑trial delay after 120 days)