                 UNITED STATES NAVY-MARINE CORPS
                    COURT OF CRIMINAL APPEALS
                         WASHINGTON, D.C.

                                     Before
                   J.A. FISCHER, K.M.MCDONALD, D.C.KING
                            Appellate Military Judges

                         UNITED STATES OF AMERICA

                                        v.

                            TODD A. SMITH
                 STAFF SERGEANT (E-6), U.S. MARINE CORPS

                                 NMCCA 201400400
        Review Pursuant to Article 62(b), Uniform Code of Military Justice,
     10 U.S.C. § 862(b) and Review of a Third Party Petition for Extraordinary
                    Relief in the Nature of a Writ of Mandamus

Military Judge: Maj C.D. Bareford, USMC.
Convening Authority: Commander, Marine Corps Base,
Quantico, VA.
For Appellant: Maj Suzanne Dempsey, USMC; Capt Matthew
Harris, USMC.
For Appellee: Maj Jason Wareham, USMC.
For Third Party Petitioner: Maj Marc Tilney, USMC.

                              10 February 2015

       ---------------------------------------------------
                       OPINION OF THE COURT
       ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     This case was docketed with the court on 4 November 2014 as
a Government interlocutory appeal pursuant to Article 62,
Uniform Code of Military Justice. 1 The appellee is currently
charged with violations of Articles 92, 93, 107, and 128, UCMJ.
1
    10 U.S.C. § 862.
Following the military judge’s written ruling dismissing with
prejudice several of the specifications, the government filed a
timely notice of appeal. On 20 January 2015, Victim’s Legal
Counsel representing Corporal (Cpl) JK filed a Petition for
Extraordinary Relief in the Form of a Writ of Mandamus with the
court pursuant to the All Writs Act. 2 The petitioner seeks a
“Stay until this Court rules on this Petition and Petitioner
seeks a Writ of Mandamus setting aside the Trial Court’s rulings
of October 14, 2014, under RCM 703, and directing the Military
Judge to treat Cpl JK with fairness and respect for her dignity
pursuant to 10 U.S.C. § 806(b) by providing her an opportunity
to “be heard” prior to ruling on the defense motion to dismiss
all charges and specifications.” 3

     After carefully considering the record, the military
judge’s ruling, and the submissions of the parties, we find that
the military judge failed to make adequate findings of fact and
omitted analysis necessary to permit us to determine whether he
abused his discretion. Accordingly, we grant the Government's
appeal and remand the record for action consistent with this
opinion. This resolution renders the Petition for Extraordinary
Relief moot and it is therefore denied without prejudice.

                                   Background

     The appellee was a military police patrol supervisor.
Lance Corporal (LCpl) JK 4 was one of his subordinates and stood
watch in the lobby of a secure law enforcement facility known as
MDIA. On 28 October 2013, the appellee stopped at the lobby
while LCpl JK, Cpl Pelligrino, and Cpl Toner were on duty.
While there, the appellee is alleged to have approached the
front desk, picked up a bottle of hand sanitizer, pointed it at
LCpl JK and squirted some of the contents onto her shoulder,
stating “Oops, just splooged on you.” This allegation, in part,
formed the basis for sexual harassment and maltreatment charges
against the appellee.

     On 11 November 2013, the appellee arrived to conduct his
rounds at the MDIA lobby. In the presence of Cpl Toner and LCpl
JK, the appellee is alleged to have been unable to properly open
a door and to have fallen asleep on the desk. This conduct


2
    28 U.S.C. § 1651(a).
3
    Petition for Extraordinary Relief of 20 Jan 2015 at 3.
4
    LCpl JK has since been promoted to corporal.
                                        2
forms the basis of a dereliction of duty charge against the
appellee.

     Gunnery Sergeant (GySgt) Ableman conducted a command
investigation into the allegations against the appellee. During
his investigation, Cpl Pelligrino and LCpl JK provided
information regarding the hand sanitizer and Cpl Toner provided
information regarding the 11 November 2013 dereliction
allegation. GySgt Ableman discovered that the MDIA lobby was
under twenty-four hour video surveillance and, with the
assistance of Major (Maj) Rainey, the Security Battalion
Operations Officer, made arrangements to view the recordings of
the lobby during the relevant time frames.

     Maj Rainey contacted Ms. Stewart, the MDIA Deputy Head of
Security whose duties included maintaining the building’s video
surveillance equipment. In an email, Maj Rainey asked Ms.
Stewart “about getting the footage reviewed and put on disc.” 5
On or about 20 November 2013, Ms. Stewart and two of her
subordinates (Mr. Waller and Ms. Bullard) reviewed the footage
from the lobby recorded on 28 October 2013 and Ms. Stewart
notified Maj Rainey that “video review of 28 October is not
showing that someone approaching the front desk squirted hand
sanitizer on any of the officers.” 6 The military judge found
that Mr. Waller and Ms. Stewart “could not remember certain
details about what the video showed, such as the number and
gender of Marines behind the desk when the alleged incident
occurred.” 7

     Regarding video review of 11 November 2013, Ms. Stewart
asked Maj Rainey for “further details” so that a more in-depth
review could be conducted. 8 Maj Rainey never responded. 9
However, Ms. Bullard reviewed the video footage of that day and
did not see the appellee have difficulty opening the door. 10
However, Ms. Bullard testified that while reviewing the video of
28 October 2013, she did observe the appellee use hand sanitizer

5
     AE XVII, Military Judge Finding of Fact (FoF) 9.
6
     FoF 10.
7
     FoF 15.
8
     FoF 10.
9
     FoF 11.
10
     FoF 18.


                                         3
“on himself,” testimony that was not cited by the military
judge. 11

     Jurisdiction of the investigation was assumed by Criminal
Investigations Division and thereafter by the Naval Criminal
Investigative Service. Video footage of the relevant time
frames was not preserved and was ultimately destroyed thirty
days after recording. However, when interviewed by government
investigators, the appellee admitted that he had “accidentally
squirted” hand sanitizer on JK and said “oops, just splooged on
you.” 12

      On 11 April 2014, charges were preferred accusing the
appellee of several violations of the UCMJ. Shortly thereafter,
the defense brought a motion to dismiss all charges and
specifications because the Government failed to preserve the
video footage. The motion was litigated in advance of trial and
on 14 October 2014 the military judge entered findings of fact
and conclusions of law. Applying RULE FOR COURTS MARTIAL 703, MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), the military judge
determined that the destroyed video footage was relevant,
necessary, and essential to a fair trial both in terms of
showing the alleged events did not occur as well as utilizing
the footage to impeach Cpl Pelligrino, Cpl Toner, and LCpl JK.
Determining that there was no adequate substitute for the video
footage, the military judge dismissed with prejudice the
relevant specifications and barred the testimony of Cpl
Pelligrino, Cpl Toner, and LCpl JK. After a motion for
reconsideration was denied, the Government filed this timely
appeal.

                              Standard of Review

     This Court has jurisdiction to hear this appeal under
Article 62(a)(1)(A), UCMJ, which authorizes the Government to
appeal “[a]n order or ruling of the military judge which
terminates the proceedings with respect to a charge or
specification.” On an interlocutory appeal, we are constrained
to act “only with respect to matters of law.” Art. 62(b), UCMJ.
Unless they are clearly erroneous, we are bound by the military
judge’s findings of fact and lack authority to find additional
facts. United States v. Baker, 70 M.J. 283, 287-88 (C.A.A.F.
2011).


11
     Record at 101.
12
     Prosecution Exhibit 3 at 3.
                                      4
     “When a court is limited to reviewing matters of law, the
question is not whether a reviewing court might disagree with
the trial court’s findings, but whether those findings are
fairly supported by the record.”   United States v. Gore, 60
M.J. 178, 185 (C.A.A.F. 2004) (quoting United States v. Burris,
21 M.J. 140, 144 (C.M.A. 1985)) (internal quotation marks and
additional citations omitted). If findings are incomplete or
legal issues left unresolved by the military judge, the
“‘appropriate remedy . . . is a remand for clarification’ or
additional findings.” United States v. Lincoln, 42 M.J. 315, 320
(C.A.A.F. 1995) (quoting United States v. Kosek, 41 M.J. 60, 64
(C.M.A. 1994)).

     This court reviews a military judge's ruling on a motion to
dismiss for an abuse of discretion. Gore, 60 M.J. at 187. This
occurs when the military judge’s “findings of fact are clearly
erroneous, the court’s decision is influenced by an erroneous
view of the law, or the military judge’s decision on the issue
at hand is outside the range of choices reasonably arising from
the applicable facts and the law.” United States v. Miller, 66
M.J. 306, 307 (C.A.A.F. 2008) (citations omitted). “The abuse
of discretion standard is a strict one, calling for more than a
mere difference of opinion. The challenged action must be
arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010) (citations and internal quotation marks omitted).

                           Discussion

     The military judge relied upon R.C.M. 703(f)(2) in
determining that dismissal was an appropriate remedy. R.C.M.
703(f)(1) provides that: “[e]ach party is entitled to the
production of evidence which is relevant and necessary.”
Although R.C.M. 703(f)(2) notes that “a party is not entitled to
the production of evidence which is destroyed, lost, or
otherwise not subject to compulsory process,” the rule also
provides that:

     [I]f such evidence is of such central importance to an
     issue that it is essential to a fair trial, and if
     there is no adequate substitute for such evidence, the
     military judge shall grant a continuance or other
     relief in order to attempt to produce the evidence or
     shall abate the proceedings, unless the unavailability
     of the evidence is the fault of or could have been
     prevented by the requesting party.


                                5
Therefore, to be entitled to relief under R.C.M. 703(f)(2), an
accused must show: (1) the evidence is relevant and necessary;
(2) the evidence has been destroyed, lost, or otherwise not
subject to compulsory process; (3) the evidence is of such
central importance to an issue that it is essential to a fair
trial; (4) there is no adequate substitute for such evidence;
and (5) the accused is not at fault or could not have prevented
the unavailability of the evidence. R.C.M. 703(f)(1) and (2).
The Government does not challenge the military judge’s findings
that the evidence has been destroyed nor contend that the
appellee was at fault or could have prevented the unavailability
of the evidence. Therefore, we focus on the first, third, and
fourth prongs of this analysis. 13

Relevant and Necessary

      Relevant evidence is evidence which has a “tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would without the evidence.” MILITARY RULE OF EVIDENCE 401, MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Relevant evidence is
necessary when it is “not cumulative and when it would
contribute to a party’s presentation of the case in some
positive way on a matter in issue.” R.C.M. 703(f)(1),
Discussion. The military judge found that the destroyed footage
was relevant and necessary because:

        such footage apparently would have showed that at
        least some of the behavior described by government
        witnesses was not evident in the footage.
        Furthermore, it could have been important impeachment
        evidence for the defense, which could have used the
        video footage to cast doubt on these specific
        allegations, as well as other allegations, made by key
        government witnesses, including [LCpl JK, Cpl
        Pelligrino and Cpl Toner]. 14

We agree and hold that the military judge did not abuse his
discretion in this regard.




13
  In light of our resolution of the appeal, it is not necessary to address
whether R.C.M. 703(f)(2) imposes a stricter standard than does Article 46,
UCMJ.
14
     AE XVII, Conclusion of Law 8.
                                      6
Central Importance

     Next, the military judge determined that the video footage,
which apparently showed no sign of the appellee committing the
misconduct of which he was accused, was of “central importance”
to the appellee’s ability to defend against the allegations that
he squirted hand sanitizer on LCpl JK on 28 October 2013.
However, as the Government correctly points out, the military
judge did not address the appellee’s admission that the hand
sanitizer incident occurred and did not analyze whether this
admission would impact the “central importance” of this evidence
at trial.

     An accused’s “confession is like no other evidence [and] is
probably the most probative and damaging evidence that can be
admitted against him.” United States v. Ellis, 57 M.J. 375, 381
(C.A.A.F. 2002) (quoting Arizona v. Fulminante, 499 U.S. 279 296
(1991)). We see no difference where, as here, the admission
concedes the actus reus but not the mens rea. As such, an
admission may very likely impact the importance of other
evidence. See generally Ellis, 57 M.J. 375 (in case of
destroyed evidence, confession went far in rendering harmless
any error for failure to provide requested remedy). Having
reviewed the parties’ briefs, the military judge’s findings, and
the record of trial, we conclude that this omission
substantially limits our ability to determine if the military
judge abused his discretion by finding the destroyed evidence
was of “central importance.”

No adequate substitute

     Finally, regarding the specification that the appellee was
derelict in the performance of his duties on 11 November 2013,
the military judge found that Ms. Bullard “did not see [the
appellee] drop anything or have problems opening the door on
November 11, 2013.” 15 However, there is no finding as to how
carefully she viewed the video, how certain she could be of its
contents, or whether or not she had difficulty recalling what
she saw. In addition, as the Government points out, the
military judge failed to even consider Ms. Bullard as a
substitute and he made no mention of her testimony that she saw
the appellee use the hand sanitizer on himself. Without a
complete recitation of the facts or the military judge’s
thorough analysis based thereon, we are again unable to
determine if there was an abuse of discretion.

15
     FoF 18.
                                7
                           Conclusion

     The military judge entered incomplete findings which lead
to inadequate analysis. First, he failed to recognize the
appellee’s admission and omitted any analysis of what impact
that it would have on the importance of the destroyed evidence.
Moreover, he overlooked findings on the totality and quality of
Ms. Bullard’s testimony and omitted any analysis on whether that
testimony would provide an adequate substitute for the destroyed
footage. The lack of these necessary findings and analysis
constrains our ability to adequately determine if the military
judge abused his discretion in dismissing the specifications.
In light of these incomplete findings, the appropriate remedy is
a remand for additional findings and analysis. Kosek, 41 M.J.
at 64.

     Accordingly, the appeal of the United States is granted.
The military judge’s ruling is vacated and the record of trial
is returned to the Judge Advocate General for remand to the
convening authority and delivery to the military judge for
reconsideration in light of this opinion. The military judge
may permit additional evidence and argument on the motion to
dismiss and shall enter thorough findings of fact and
conclusions of law to support his reconsidered ruling. The
trial may then proceed or the United States may again pursue
appeal under Article 62, UCMJ, if appropriate. Kosek, 41 M.J.
at 65.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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