           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                   Airman First Class KELVIN I. L. O’SHAUGHNESSY
                                 United States Air Force

                                               ACM 38732

                                               5 May 2016

         Sentence adjudged 21 August 2014 by GCM convened at Ellsworth Air Force
         Base, South Dakota. Military Judge: Gregory O. Friedland (arraignment)
         and Vance H. Spath.

         Approved Sentence: Bad-conduct discharge, confinement for 60 days,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Lauren A. Shure.

         Appellate Counsel for the United States: Colonel Katherine E. Oler; Captain
         Tyler B. Musselman; and Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, MAYBERRY, and BROWN
                                 Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



MAYBERRY, Judge:

      At a general court-martial composed of officer and enlisted members Appellant was
convicted, contrary to his pleas, of one charge and one specification each of sexual assault
and abusive sexual contact, in violation of Article 120 UCMJ, 10 U.S.C. § 920. Appellant
was acquitted of one specification of abusive sexual contact. The court sentenced
Appellant to a bad-conduct discharge, confinement for 60 days, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority approved the sentence as
adjudged but deferred the adjudged forfeitures from 14 days after sentence was announced
until action.

       On appeal, Appellant contends that the mental health records of RS, Appellate
Exhibit VII, are incomplete thereby render the record of trial incomplete. Accordingly,
Appellant asserts that he was denied due process under the Fifth Amendment1 when this
court failed to examine the entire record of trial and that he was further denied due process
under the Fifth Amendment due to appellate counsel’s inability to review the complete
mental health records, resulting in counsel’s inability to provide effective assistance of
counsel. We disagree and affirm the findings and sentence.

       Prior to filing his assignment of errors, Appellant moved this court to compel the
production of “the entirety of the mental health records for Ms. RS.” Appellant asserted
that the presence of an arrow in the margins of one page of the records contained in the
mental health records “indicates there is more information contained on the back side or
additional pages.” Appellant’s position is that facially it appears the mental health records
as provided to the Government, and eventually the military judge, were incomplete.
Appellant maintained that the incomplete record prohibited his counsel from determining
whether there was some prejudice or harm to Appellant and this court was unable to
conduct its review pursuant to Article 66, UCMJ.

        This court denied the motion to compel, applying the four-prong standard for post-
trial discovery set out in United States v. Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002).
This court held that Appellant had failed to meet his threshold burden of demonstrating
some measure of appellate inquiry was warranted in this matter. First, he had not
demonstrated that the claimed “additional” records exist. Appellate Exhibit VII was
reviewed in camera by the military judge at trial, and later provided to both trial and trial
defense counsel. Additionally, their respective expert consultants were authorized to
review the documents. RS was interviewed by trial defense counsel and testified in
findings and sentencing but there was no showing that trial defense counsel inquired about
the handwritten arrow or questioned the completeness of the record at trial. Finally, since
Appellant had not filed an assignment of errors at the time of his motion, he had not
provided a sufficient showing of relevance to a claim of error or defense and this court was
unable to determine whether there was a reasonable probability that the result of the
proceeding would have been different if this information had been disclosed (assuming it
exists). Additional facts necessary to resolve this issue are discussed below.

        The sole error now claimed by Appellant is that the record of trial is incomplete as
a result of the existence of this extraneous mark contained on one page of the sealed mental
health records. Appellant’s requested relief is that either the conviction be set aside or the
bad-conduct discharge be disapproved.

1
    U.S. CONST. amend. V.


                                              2                                    ACM 38732
                                     Record of Trial—Is it Complete?

       The issues of whether a record of trial is complete and a transcript is verbatim are
questions of law that we review de novo. United States v. Davenport, 73 M.J. 373, 376
(C.A.A.F. 2014). The lack of a verbatim transcript and an incomplete record are two
separate and distinct errors. United States v. Gaskins, 72 M.J. 225, 230 (C.A.A.F. 2013).

        We first address the issue of whether the transcript is verbatim; it is. Article
54(c)(1), UCMJ, 10 U.S.C. § 854(c)(1), requires a “complete” record of the proceedings
and testimony to be prepared for any general court-martial resulting in a punitive discharge.
A “complete” record must include the exhibits that were received in evidence, along with
any appellate exhibits. Rule for Courts-Martial (R.C.M.) 1103(b)(2)(D)(v). The “missing”
appellate exhibit page(s) solely raise the issue of whether the record is complete. The
threshold question is whether the missing exhibits are substantial, either qualitatively or
quantitatively. Davenport, 73 M.J. at 377. Omissions may be quantitatively insubstantial
when in light of the entire record the omission is “so unimportant and so uninfluential . . .
that it approaches nothingness.” Id. (quoting United States v. Nelson, 13 C.M.R. 38, 43
(C.M.A. 1953)).

       Where a record is missing an exhibit, this court evaluates whether the omission is
substantial. United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000). “Insubstantial
omissions from a record of trial do not raise a presumption of prejudice or affect that
record’s characterization as a complete one.” Id. Whether an omission is insubstantial is
a “case-by-case,” fact based inquiry.” United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F.
1999). If the omission is substantial, thereby raising a presumption of prejudice, the
Government may rebut the presumption by reconstructing the missing material. United
States v. Lovely, 73 M.J. 658, 676 (A.F. Ct. Crim. App. 2014).

         Based upon the evidence in the record of trial, Appellate Exhibit VII includes every
page provided to the military judge for his in camera review. We note that the record of
trial is silent as to the number of pages provided to the judge.2 We also note that the mental
health records were not sealed at the time they were provided to the military judge.
However, there was no objection or comment of any kind made by any party when this fact
was announced in open court by the Special Victim’s Counsel (SVC). Additionally, while
the trial counsel indicated on the record that they had procured the mental health records,
it was the SVC who provided them to the military judge, stating on the record that his client
had them in her possession. The military judge took possession of the documents and
indicated that he would “identify page numbers later.” After his in camera review of the
documents, the military judge held that there was nothing material or necessary to the
2
  The only estimate as to the number of pages is offered by the trial counsel during the closed hearing on the Defense
Motion to Compel Mil. R. Evid. 513 records. Trial counsel indicates that the records have been secured, and indicates
the number of pages is “bordering [on] maybe 100 or so.”


                                                          3                                             ACM 38732
defense and did not provide the records to either party; they remained sealed. The military
judge forewarned the SVC that if there was victim impact evidence presented during the
sentencing phase, assuming there was a sentencing phase, this issue would likely resurface.
The SVC acknowledged that possibility and advised that he had discussed it with his client.

        In the sentencing phase of the trial, the SVC requested that RS be allowed to make
an unsworn statement. Again, the military judge discussed the possibility of this allowing
access by counsel to the mental health records. The record of trial references that over the
evening recess, the military judge decided to provide access to the mental health records
and sent an email to the parties notifying them of his decision. On the record the next day
the military judge states “both sides have a copy.” 3 RS provided an unsworn statement to
the court. In rebuttal, the defense offered a single page from those records as Defense
Exhibit R, without objection from the SVC or the Government. This document was
admitted and sealed. The page offered was neither the page containing the arrow, nor the
other pages of the mental health records containing information on this same subject
matter. 4 The Government did not call RS or offer any surrebuttal.

       The record of trial contains no further discussion regarding the content of the mental
health records in Appellate Exhibit VII. The Master Index for the record of trial does not
indicate the number of pages contained in Appellate Exhibit VII, nor does the cover sheet
of the envelope containing the exhibit. The only quantitative description of the records
was by the trial counsel, when he opined that they bordered on 100 pages. There are in
fact 12 pages. However, in so far as the mental health records were in the possession of
the SVC and trial counsel had not seen them, his assessment can best be characterized as
an estimate designed to guide the military judge’s decision as to how long it would take
him to review the material.

       Appellate Exhibit VII contains a “Release of Confidential Information
Authorization Form” signed by RS on 12 August 2014, authorizing release of the entire
contents of her mental health records to her SVC. There is no evidence before us to support
that the mental health records provided to the military judge differ in any way from the
documents contained in Appellate Exhibit VII. Both Appellant’s counsel and this court
have access to the entire original record of trial. The record of trial in this case is complete.

       Assuming arguendo the presence of an arrow in the margin signifies that additional
pages of mental health records exist, this court must determine whether the omission is
substantial. Lovely, 73 M.J. at 676. These records only affect the sentencing phase of the

3
  The record of trial does not contain the email, and the transcript contains no additional explanation as to how the
sealed matters were provided to the counsel. We consider this to be analogous to a Rule for Courts-Martial 802 session
and remind military judges and counsel that such matters should be included in the record orally or in writing.
4
  To avoid unnecessarily disclosing the content of privileged mental health records, this court deliberately confines
our description of the narrative on that page to be administrative in nature. Furthermore, the same subject matter is
present on two other pages.


                                                          4                                             ACM 38732
trial because they only became relevant after RS provided victim impact evidence.
Appellant subsequently offered a portion of one page of the records. Having examined the
contents of the page with the arrow, even if that arrow refers to additional matters found
on the back of the same page or an additional page, we are convinced those matters would
be insubstantial with respect to sentencing. We find that if additional records exist related
to the subject matter proximate to the arrow, their omission is insubstantial. In this case
the omission was insubstantial both qualitatively, because the substance of the omitted
testimony presumably relates directly to the subject matter proximate to the arrow, and
quantitatively, since the subject matter is addressed in other portions of the mental health
records. That information is not relevant to the subject matter of RS’s victim impact
evidence.

       Finally, we reevaluate the propriety of post-trial discovery using the Campbell
factors. Campbell, 57 M.J. at 138. Our assessment is unchanged regarding the factors
that Appellant has not made a colorable showing that the evidence exists or that the
evidence, if it exists, was discoverable at the time of trial had the trial defense counsel
raised the issue with the military judge, the individual who provided the copies, or RS
herself. Given that Appellant has not asserted any error other than the speculation that the
record of trial is incomplete, this court finds that any potential additional information is not
relevant to an articulated claim or defense and there is no reasonable probability that the
result of the proceeding would have been different if the putative information had been
disclosed.

       The record of trial is complete. Appellant’s counsel had the benefit of reviewing
the entire record of trial and was able to provide effective assistance. We are able to
conduct a thorough and detailed appellate review of this case and have done so.

                                             Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                               5                                    ACM 38732
