UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 LIND, KRAUSS, and PENLAND
                                    Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                       Staff Sergeant ALEJANDRO L. PEREZ III
                              United States Army, Appellant

                                        ARMY 20130174

                              Headquarters, Fort Stewart
                           Tiernan P. Dolan, Military Judge
             Lieutenant Colonel Kent Herring, Acting Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles Lozano, JA; Major M. Patrick Gordon,
JA; Captain Amanda R. McNeil, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Major Daniel
D. Derner, JA; Major Daniel M. Goldberg, JA (on brief).


                                           29 May 2015

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to the plea entered by the military judge on
appellant’s behalf, of one specification of assault consummated by a battery in
violation of Article 128, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 928 (2006). 1 The panel sentenced appellant to a bad-conduct discharge

1
 Appellant was also charged with one specification o f rape and one specification of
aggravated assault with a force likely to produce death or grievous bodily harm in
violation of Articles 120 and 128, UCMJ, 10 U.S.C. 920, 928 (2006 & Supp. II
2009). Pursuant to his pleas of not guilty, the panel acquitted appellant of both
offenses.
PEREZ—ARMY 20130174

and reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

       We review this case under Article 66, UCMJ. Appellant raises two
assignments of error, one of which warrants discussion and relief. We have also
considered appellant’s matters personally submitted pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982); they are without merit. Appellant asserts the
military judge abused his discretion by excluding his medical records as evidence of
mitigation and rehabilitation under Rule for Court -Martial 1001(c), and that this
error prejudiced appellant. We agree and will provide relief in our decretal
paragraph.

                              Procedural Background

       Appellant pled guilty to assault consummated by a battery. In the providence
inquiry, he described an incident on 2 March 2009 in which he argued with and
struck his wife, JP. Appellant indicated his consumption of Adderall at the time
caused him to misapprehend JP’s actions as physically threatening, leading to his
assaultive behavior. The military judge concluded that appellant had raised self-
defense, entered a plea of not guilty to the affected specification, and assembled the
court for a fully contested trial.

       Appellant testified that on the night of the charged assault, he was under the
influence of Adderall, a medication prescribed for his attention deficit hyperactivity
disorder (ADHD), which caused him to believe it was necessary to push his wife
because she entered his personal space. The government also introduced evidence of
appellant’s Adderall use, eliciting testimony from JP that appellant’s consumption of
the drug “made him worse” and that “he just went off in a rage, especially when he
was on medication.” The military judge instructed the panel on self -defense,
including that: “The issue of Adderall consumption is relevant only to whether the
accused actually believed the amount of force he used was required to protect
himself. It is not relevant to any other issue.”

       Pre-sentencing proceedings began shortly after the panel found appellant
guilty of the assault. The military judge granted defense counsel’s request to relax
the rules of evidence under Rule for Courts-Martial [hereinafter R.C.M.] 1001(c)(3).
Toward the end of appellant’s pre-sentencing case, defense counsel offered a portion
of appellant’s medical records. The government objected, citing a lack of notice
under Military Rule of Evidence [hereinafter Mil. R. Evid.] 513 and stating it had
received the records approximately one hour earlier.

       The medical records evinced appellant’s interaction with health care providers
for the period of February through April 2009. The records one month prior to his
assault of JP reflect: appellant took Adderall to manage his ADHD; appellant was



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PEREZ—ARMY 20130174

concerned about his “anxious and assertive behavior” with soldiers; and appellant
requested a decreased Adderall dosage or a change in med ication. A health care
provider reduced his medication and recommended appellant be reevaluated if the
symptoms did not change. After the assault, appellant was command referred to and
attended anger management group counseling, individual counseling, and cognitive
behavioral therapy. Appellant then told his providers that: he started taking
Adderall six weeks previously; while Adderall helped mitigate forgetfulness and
improve concentration, he noticed an increase in his anger and aggravation level; he
believed his assault was due to becoming enraged as a result of taking Adderall; he
had ceased taking Adderall since his arrest ; he would like counseling to “organize”
his life. The records also discussed appellant’s progress at these classes , describing
his previous anger management techniques as ineffective and identifying anger
management counseling as beneficial.

       The military judge deferred ruling on admissibility of the records. Appellant
then testified under oath, describing inter alia, his post-assault improvement as a
result of anger management classes and cognitive behavioral therapy counseling.
After this testimony, the military judge convened an Article 39(a) session and
addressed the medical records. When defense counsel confirmed providing them to
the government an hour before, the military judge responded:

             MJ: Defense, It think I’ve made it clear -- well, let me
             make it clear. I don’t like trial by ambush. [2] I consider
             that sort of late disclosure an ambush. For that reason,
             I’m not going to even consider your motion to introduce
             the evidence. Were I to consider it, I would not allow its
             admission under 403. It is filled with statements and
             assertions that are confusing, would unduly waste the

2
  The military judge was apparently referring to an earlier discussion with defense
counsel during the defense case-in-chief, after the defense counsel informed the
judge that appellant would testify regarding his use of Addera ll on the night of the
assault. The judge said he was “disappointed,” “unhappy,” and “surprise[d]” that
defense counsel waited “to have this issue briefed in the middle of trial. . . . [with]
no notice to the court, no notice to the government[.]” The judge admonished
defense counsel that: “The reason I set trial schedules and motions deadlines is so
that all parties can enter the trial knowing the litigation battlefield upon which they
will enter. And you have disrupted the order that this court has tri ed to impose on
these proceedings by your actions.” These comments were made despite the judge’s
and the government’s extant knowledge of appellant’s Adderall use; indeed, the
military judge had earlier rejected appellant’s plea of guilty to the assault a fter
finding that appellant was raising self-defense in describing his reaction to Adderall.




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PEREZ—ARMY 20130174

             court’s time, and frankly are unfairly prejudicial. As well,
             it contains hearsay, numerous statements by the accused,
             some of which astoundingly raise mental health issues that
             you have affirmatively waived in this court -martial. So,
             that’s why I wouldn’t allow it, even were I to consider it.
             But because of the ambushery you’ve put into play, I’m
             simply not going to consider its admission.

       During sentencing argument, trial counsel argued appellant’s anger
management counseling had not resolved his anger problems. He further argued:
“This Soldier can’t be rehabilitated because he can’t accept -- he can’t accept what
he has done as wrong.” The court closed for sentencing deliberation s. Fifty-one
minutes later, the panel returned to ask: “May the panel recommend a lesser
discharge than the bad[-]conduct?” The military judge correctly instructed that a
bad-conduct discharge was the only discharge they could adjudge. After some
clarifying dialogue with the panel president, the military judge again correctly
instructed that the members were authorized to make a recommendation in
connection with their adjudged sentence, but they “must not adjudge an excessive
sentence in reliance upon possible mitigating action by the Convening or higher
authority.” The panel president indicated his understanding, and the court closed for
deliberations. Less than twenty minutes later, the panel announced the adjudged
sentence and did not recommend clemency.

                                 Law and Analysis

      The accused possesses a broad right to present evidence in mitigation and
extenuation during sentencing. See R.C.M. 1001(c); United States v. Becker,
46 M.J. 141, 143 (C.A.A.F. 1997); see also United States v. Jackson, 36 C.M.R. 677,
679 (A.B.R. 1966) (“An accused has a fundamental r ight after findings and prior to
sentencing to present evidence in mitigation and extenuation as to the offenses of
which he stands convicted.”). Matters in extenuation “serve[] to explain the
circumstances surrounding the commission of an offense, including those reasons for
committing the offense which do not constitute a legal justification or excuse.”
R.C.M. 1001(c)(1)(A). Matters in mitigation are “introduced to lessen the
punishment to be adjudged by the court -martial, or to furnish grounds for a
recommendation of clemency.” R.C.M. 1001(c)(1)(B).

       We review the military judge’s decision to exclude evidence for an abuse of
discretion. United States v. Griggs, 61 M.J. 402, 406 (C.A.A.F. 2005). “A ruling
based on an erroneous view of the law constit utes an abuse of discretion.” Id.

      We hold the military judge abused his discretion by excluding appellant’s
medical records during presentencing. The offered records were admissible. They
were logically relevant under Mil. R. Evid. 401 and 402 and legally relevant under



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PEREZ—ARMY 20130174

Mil. R. Evid. 403. The Mil. R. Evid. 403 balancing test under these facts favored
admissibility. Their probative value—that is, their tendency to extenuate appellant’s
misconduct, demonstrate his rehabilitative potential, and mitigate his punishment—
was not substantially outweighed by the danger of unfair prejudice. Indeed, we
perceive no danger of unfair prejudice. This is especially true in light of the judge’s
decision to relax the rules of evidence.

       We also hold the judge abused his discretion when he plainly refused “to
consider . . . admission” of the medical records because no evidence supports the
judge’s conclusion that the defense ambushed the government or the trial court in
this case. As the government points out in its brief, the record of trial contains no
indication of a reciprocal government discovery request under R.C.M.
701(b)(1)(B)(ii). We further note that JP’s direct testimony evinced the
government’s understanding of appellant’s relevant medical condition. Finally, even
if the defense disclosure to the government was untimely, the military judge made
no finding that the government was prejudiced and he failed to consider remedies
short of excluding the defense evidence. See generally R.C.M. 701(g)(3) discussion.

        In this case, preventing admission of medical records impermissibly
restricted appellant’s right to present matters in extenuation and mitigation in his
sentencing. See Becker, 46 M.J. at 144. We now turn to deciding whether appellant
was prejudiced by this error. When evidence is erroneously excluded during the
presentencing portion of a court-martial, we must determine if the error
“substantially influenced the adjudged sentence.” Griggs, 61 M.J. at 410.

       Unable to present the records and argue inferences from them, appellant was
particularly disadvantaged in corroborating his own testimony and responding to
government counsel’s strong argument about hi s dim chances of rehabilitation; for
example, he was unable to show the portion of his record s in which he sought help
for negative changes in his behavior resulting from Adderall before the assault and
acknowledged the wrongfulness of his abusive behavior after the assault . Further,
considering the panel’s question about recommend ing a less than punitive discharge,
we conclude their decision was close. See United States v. Washington, 55 M.J. 441,
442-43 (C.A.A.F. 2001) (prejudicial error for military judge to exclude appellant’s
evidence of potential loss of retirement pay because evidence showed the decision to
adjudge a punitive discharge was a “close call” ). Under these facts, “we cannot be
confident that the error[] during sentencing did not ‘substantially sway’ the members
in their decision to adjudge a punitive discharge.” United States v. Reyes, 63 M.J.
265, 268 (C.A.A.F. 2006).

       Finally, we must answer whether we should send this case back for a sentence
rehearing or whether we can reassess the sentence. Our superior court permits
reassessment if this court can “determine to its satisfaction that, absent any error,
the sentence adjudged would have been of at least a certain severity, [because]



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PEREZ—ARMY 20130174

then a sentence of that severity or less will be free of the prejud icial effects of
error . . . .” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013) (quoting
United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986)) (internal quotation marks
omitted). Applying the Winckelmann factors, including consideration of an
additional factor—that of appellant’s request for sentence reassessment rather than a
sentence rehearing—we find reassessment is proper in this case. W e can reliably
determine the least severe sentence that would have been imposed had the medical
records been admitted and considered by the members , thereby purging the
prejudicial effect of this error.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the error noted, the entire record, and in accordance with the principles of
Winckelmann, 73 M.J. 11, and Sales, 22 M.J. 305, the court affirms only so much of
the sentence as provides for reduction to the grade of E-1. The bad-conduct
discharge is set aside. 3 All rights, privileges, and property, of which appellant has
been deprived by virtue of the portion of the sentence set aside by this decision, are
ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge LIND and Judge KRAUSS concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




                                         MALCOLMH.
                                        MALCOLM      H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                         Clerk of Court
                                        Clerk of Court




3
  See United States v. Vasquez, 54 M.J. 303, 306 (C.A.A.F. 2001). In Vasquez, the
Court of Appeals for the Armed Forces (CAAF) could not say with “fair assurance”
that the inadmissible sentencing evidence did not have a substantial influence on the
sentence imposed by the military judge. 54 M.J. at 306. Applying Sales, 22 M.J.
305, CAAF remanded the case for the service court to either order a sentence
rehearing or reassess and affirm a sentence that did not include a bad-conduct
discharge. Id.




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