United States v. Jones
ACM 38859
| A.F.C.C.A. | Jan 18, 2017Background
- Appellant, an NCO at Aviano AB, had a sexual relationship with A1C SM; they exchanged extensive explicit messages and engaged in an unconventional sexual fantasy dynamic.
- A1C SM alleged that in June 2012 Appellant forcibly penetrated her in bed, put his hands around her neck, and said, “If you ever sleep with anyone else, or if you do anything wrong to me, I will kill you and ruin your career.” Appellant was acquitted of rape but charged with communicating threats.
- A1C SM disclosed the incident to two friends soon after and later made a Project Unbreakable video; the allegation was ultimately reported to AFOSI and investigated.
- At trial members found Appellant guilty, but the findings worksheet excepted the word “kill” from Appellant’s intent (allowing conviction on an intent to injure the person or reputation). The original Court-Martial Order had an error that was corrected.
- Defense sought an in camera review of A1C SM’s mental-health records (claimed she sought counseling for the offense); the military judge denied the request after a closed hearing where SM denied counseling for the offense and said her records were grief counseling.
- Court of Criminal Appeals affirmed the conviction and sentence (bad-conduct discharge; reduction to E-3), rejecting claims of ambiguous findings, insufficiency, denial of records review, and sentence inappropriateness.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Ambiguous finding as to whether members convicted on "kill" language | Worksheet excepted the word “kill” twice; ambiguity prevents review | Members were instructed they could except "kill" as to intent and followed instructions; worksheet and corrected CMO clarify intent | Not ambiguous; members found guilty without proof of intent to kill; no relief |
| Legal and factual sufficiency of threat conviction | Threat was part of consensual sexual communications and thus not wrongful or service-discrediting | Words and surrounding facts (choking, rank disparity, unit impact) support wrongfulness and both terminal elements | Evidence legally and factually sufficient; conviction affirmed |
| Denial of in camera review of SM’s psychotherapist records (Mil. R. Evid. 513) | Defense asserted reasonable likelihood records would show counseling for offense and be admissible impeachment | SM testified records were grief counseling; defense waived grief records and failed to meet Klemick threshold | Military judge did not abuse discretion; denial proper and nondisclosure harmless |
| Sentence appropriateness (bad-conduct discharge) | Discharge too severe; members thought BCD was only option per clemency letters | Sentence was within authorized range; members properly instructed and considered factors | Sentence not inappropriately severe; affirmed |
Key Cases Cited
- United States v. Ross, 68 M.J. 415 (C.A.A.F.) (review of ambiguous verdicts; de novo review)
- United States v. Walters, 58 M.J. 391 (C.A.A.F.) (ambiguity when charges involve divers occasions)
- United States v. Klemick, 65 M.J. 576 (N-M. Ct. Crim. App.) (three-prong test for in camera review of privileged records)
- United States v. Wright, 75 M.J. 501 (A.F. Ct. Crim. App.) (in camera review appropriate but not automatic; application of Klemick)
- United States v. Behenna, 71 M.J. 228 (C.A.A.F.) (Brady/Giglio materiality standard)
- United States v. Roberts, 59 M.J. 323 (C.A.A.F.) (standard for nondisclosure review)