            U NITED S TATES AIR F ORCE
           C OURT OF C RIMINAL APPEALS
                      ________________________

                           No. ACM 39018
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                       Ralph G. MORALES
         Technical Sergeant (E-6), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                     Decided 13 September 2017
                      ________________________

Military Judge: Marvin W. Tubbs II.
Approved sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to E-4. Sentence adjudged 13 November 2015 by GCM
convened at Fairchild Air Force Base, Washington.
For Appellant: Kirk Sripinyo, Esquire (argued); Major Mark C.
Bruegger, USAF.
For Appellee: Major Meredith L. Steer, USAF (argued); Colonel Kathe-
rine E. Oler, USAF; Major Mary Ellen Payne, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge SPERANZA joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                      United States v. Morales, No. ACM 39018


JOHNSON, Senior Judge:
    A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one specification of aggravated assault and
two specifications of assault consummated by battery in violation of Article
128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. 1 The court-
martial sentenced Appellant to a bad-conduct discharge, confinement for four
months, reduction to the grade of E-4, and a reprimand. With the exception of
the reprimand, the convening authority approved the sentence as adjudged,
but he waived the mandatory forfeiture of pay and allowances for the benefit
of Appellant’s dependent child.
    Appellant raises three issues for our consideration on appeal: (1) whether
the application of the executive order removing the “constitutionally required”
exception from Military Rule of Evidence (Mil. R. Evid.) 513 was an abuse of
discretion by the military judge or deprived Appellant of his rights to confron-
tation, compulsory process, or due process of law; (2) whether the military
judge erroneously instructed the court members regarding the burden of
proof; 2 and (3) whether the evidence is legally and factually sufficient to sus-
tain Appellant’s convictions. 3 Finding no relief is warranted, we affirm the
findings and sentence.

                                   I. BACKGROUND
   YM, the victim in this case, met Appellant in October 2008 at Fort Belvoir,
Virginia, where YM worked as a recreation specialist. 4 At the time, Appellant
was a member of the Air Force Honor Guard stationed at Bolling Air Force
Base (AFB), District of Columbia. Appellant and YM began dating in January
or February 2009 and were married in May 2011. In November 2011, their
daughter was born. In early 2013, Appellant went to San Antonio, Texas, for
several months to train into a new career field; during this time, YM and their




1 The court-martial found Appellant not guilty of three specifications of assault con-
summated by battery and one specification of wrongfully communicating a threat, in
violation of Articles 128 and 134, UCMJ, 10 U.S.C. §§ 928, 934.
2 As the United States Court of Appeals for the Armed Forces recently decided this
issue adversely to Appellant’s position, we do not further address this issue here. See
United States v. McClour, 76 M.J. 23, 26 (C.A.A.F. 2017).
3Appellant’s third assignment of error is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
4   The following factual summary is based on YM’s trial testimony.


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                  United States v. Morales, No. ACM 39018


daughter lived with YM’s mother in Alexandria, Virginia. In August 2013, af-
ter Appellant completed training, the family moved to Fairchild AFB, Wash-
ington.
    YM testified Appellant began to physically abuse her in March or April of
2009, shortly after they began dating. YM described an incident during which,
in response to a comment she made as they were walking to Appellant’s car on
a street after having drinks, Appellant punched her “around her chest,”
knocked her to the ground, dragged her to the car, and grabbed her by the hair.
As a result, she had bruises on her chest and marks on her face. According to
YM, the following morning she and Appellant both cried about the incident,
and they reconciled after he told her it would not happen again. YM attempted
to conceal the injuries, and made up a story that she had fallen to explain the
visible mark on her face to her mother and co-workers.
   However, YM testified she had another argument with Appellant after they
had been drinking in approximately May 2009. YM testified she did not “re-
member much” of the incident, but she recalled Appellant hit her as they were
going from his car into his off-base apartment. It was in the early hours of the
morning and no one else was around.
    The next incident YM described occurred on New Year’s Eve in December
2009. YM and Appellant were dancing at a club when another man asked to
dance with YM. A dispute ensued that resulted in Appellant and YM getting
“kicked out” of the club. When they returned to their car, Appellant blamed
YM for the incident and began punching her. YM attempted to leave the car,
but Appellant grabbed and held her and drove them to his apartment.
    Appellant assaulted YM again in October 2010 in the bedroom of his apart-
ment after another argument. Appellant punched her “around” her chest and
arms “very, very hard,” and “bear-hugg[ed]” her. YM screamed and hit the
walls so that the neighbors would hear, but the police did not respond that
night. Appellant then threw YM on the floor and stepped on her hand, inten-
tionally putting all his weight and “bouncing” on it, breaking her little finger.
Afterwards, YM covered the bruises on her body with her clothing, but went to
see a doctor regarding her broken finger.
   YM testified in May or June of 2011, when she was pregnant, Appellant
punched her again in the kitchen of his apartment following another argument.
Appellant also pushed YM down, pinned her to the floor with his knee, kicked
her, and spat on her. YM further testified that Appellant grabbed a knife,
pointed it at her, and said he would “kill [them] both.” However, according to
YM, Appellant then got on his knees and hugged her. The following morning
YM went to a hospital alone to ensure the unborn baby was unharmed; she did




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                    United States v. Morales, No. ACM 39018


not disclose the assault or threat, but instead told the hospital staff she had
fallen down.
   On 18 November 2011, ten days after their daughter was born, after an-
other argument, Appellant punched YM very hard on the arm as she held the
baby in the living room of Appellant’s apartment. YM attempted to leave with
the baby, but Appellant resisted. YM left their daughter with Appellant and
went to her mother’s home. YM took two pictures of the resulting bruises and
sent them to Appellant’s mother. She also called Appellant’s mother and in-
formed her of the abuse.
   YM testified that in May or June of 2012, she had yet another argument
with Appellant in his apartment. After YM retreated to a bathroom, Appellant
broke through the door and struck her on her breasts. YM testified she did not
report this assault and covered the resulting bruises with her clothing so no
one would see.
   In December 2013, YM and Appellant were in Alexandria, Virginia, visiting
YM’s seriously ill mother. YM and Appellant had an argument at YM’s
mother’s house, which led to Appellant breaking open a door and stomping on
YM’s foot. YM again took pictures of the injury but did not inform anyone.
   Finally, YM testified that in August 2014 at Fairchild AFB, after yet an-
other argument, Appellant grabbed her by the neck and pushed her back. In
2015, YM and Appellant divorced, and YM was ultimately awarded primary
custody of their daughter.
    On 9 March 2015, the following specifications were preferred against Ap-
pellant: one specification of aggravated assault in violation of Article 128,
UCMJ, for the October 2010 incident in which he broke YM’s finger with his
foot; five specifications of assault consummated by battery in violation of Arti-
cle 128, UCMJ, for the incidents that occurred in May or June of 2011 and
thereafter; and one specification of communicating a threat to the prejudice of
good order and discipline and of a nature to bring discredit on the armed forces
in violation of Article 134, UCMJ, in May or June of 2011. The assaults from
2009 were not charged. 5 The convening authority referred the charges and
specifications to trial by general court-martial on 20 May 2015.
  On 2 June 2015, the Defense requested copies of, inter alia, all of YM’s
medical and mental health records.



5In general, a person charged with assault under Article 128, UCMJ, “is not liable to
be tried by court-martial if the offense was committed more than five years before the
receipt of sworn charges and specifications by an officer exercising summary court-
martial jurisdiction over the command.” 10 U.S.C. § 843.


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                     United States v. Morales, No. ACM 39018


    On 17 June 2015, Executive Order (EO) 13,696 went into effect. The EO,
inter alia, deleted Mil. R. Evid. 513(d)(8), which had provided an exception to
the psychotherapist-patient privilege established by Mil. R. Evid. 513 where
“admission or disclosure of a communication is constitutionally required.”
However, Section 2 of the EO stated:
         Nothing in these amendments shall be construed to invalidate
         any . . . referral of charges, trial in which arraignment has oc-
         curred, or other action begun prior to the effective date of this
         order, and any such . . . action may proceed in the same manner
         and with the same effect as if these amendments had not been
         prescribed.
Exec. Order 13,696, 80 Fed. Reg. 35,783 (17 Jun. 2015).
   On 8 July 2015, the Defense moved to compel production of, inter alia, YM’s
mental health records. On 13 July 2015 the Government responded that it had
provided the Defense copies of the medical and mental health records in its
possession, and was in the process of obtaining further records for in camera
review by the military judge. 6 However, the Government contended the De-
fense request was “unduly burdensome, overly broad, and . . . completely un-
supported,” and asked the military judge to release only those portions of the
records that were “material to the preparation of the Defense.”
    On 21 July 2015, the military judge held a closed hearing on the Defense
motion to compel. Pursuant to Mil. R. Evid. 513, YM asserted her privilege to
prevent disclosure of previously-undisclosed records. The Defense acknowl-
edged EO 13,696 had “changed the landscape of military jurisprudence,” but
maintained Appellant had a right to the requested records under the Sixth
Amendment, 7 as well as the Due Process Clause of the Fourteenth Amend-
ment 8 under Brady v. Maryland, 373 U.S. 83 (1963). However, trial defense
counsel conceded he had “no way of knowing” and could “merely speculate” as
to what information was in the requested records. The Government opposed
the motion, which assistant trial counsel characterized as “a fishing expedition
in the extreme.” In an oral ruling, the military judge denied the motion, finding
no specific factual basis demonstrating a reasonable likelihood the records


6At some point during the investigation, YM voluntarily provided to the Government
three pages of mental health records documenting one particular visit to a mental
health provider. The Government provided this record to the Defense. However, both
parties were aware YM had seen both military and civilian mental health providers on
a number of other occasions.
7   U.S. CONST. amend. VI.
8   U.S. CONST. amend. XIV.


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                        United States v. Morales, No. ACM 39018


sought would yield evidence admissible under an exception to Mil. R. Evid. 513,
nor that the requested information met such an exception. However, the mili-
tary judge indicated he would permit the Defense to separately raise the “con-
stitutional issue” of whether the EO’s deletion of the constitutionally required
exception to Mil. R. Evid. 513 was “facially invalid.”
    Accordingly, on 26 July 2015 the Defense filed a “Motion Related to Inap-
plicability of [EO] 13696 to Defense Motion to Compel IAW [Mil. R. Evid.] 513.”
Therein the Defense contended, inter alia, that although Appellant “can only
speculate” as to the contents of YM’s mental health records, the United States
Supreme Court’s decision in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), estab-
lished his due process right to have the military judge conduct an in camera
review of the records to determine if they contained information that would
probably alter the outcome of the trial. In addition, the Defense contended the
EO’s redaction of the constitutionally-required exception was a “legally unten-
able” and “statutorily unconscionable” deprivation of Appellant’s Sixth Amend-
ment right to confront and cross-examine witnesses. Furthermore, the Defense
asserted the application of the EO to Appellant’s trial was an inappropriate
retroactive application of the rule change that violated the Constitution’s pro-
hibition on ex post facto laws 9 because the EO took effect after the charges and
specifications were referred to trial. In response, the Government continued to
oppose disclosure, contending: (1) Appellant sought the sort of balancing of in-
terests that the Supreme Court rejected in Jaffee v. Redmond, 518 U.S. 1
(1996); (2) testimonial privileges do not necessarily require a constitutional ex-
ception; (3) the privilege did not implicate Appellant’s Sixth Amendment con-
frontation rights; (4) the Defense had not shown a specific factual basis demon-
strating a reasonable likelihood the records would yield admissible evidence,
as required by Mil. R. Evid. 513(e)(3)(B); and (5) the application of the EO to
Appellant’s trial did not violate the Ex Post Facto Clause.
   On 27 October 2015, the military judge issued a written ruling denying the
Defense motion. The military judge cited United States v. Weiss, 510 U.S. 163,
177 (1994), for the proposition that “when determining what due process is,
courts ‘must give particular deference to the determination of Congress, made
under its authority to regulate the land and naval forces.’” He then explained:
           [ ] The Defense makes two contentions in its motion, first that
           the changes to Mil. R. Evid. 513 that were mandated by Con-
           gress are facially unconstitutional and second that even if not
           facially unconstitutional, applying the changes to the accused’s
           case would constitute an Ex Post Facto violation.



9   See U.S. CONST. art. I, § 9, cl. 3.


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                  United States v. Morales, No. ACM 39018


       [ ] With respect to the first contention that the changes by Con-
       gress are facially unconstitutional this Court finds that the
       changes are not. First, given the applicable precedent dealing
       with Congressional determinations as to due process, the Court
       finds that the Defense has failed to establish that a due process
       violation has occurred. Furthermore, this Court finds that the
       changes to Mil. R. Evid. 513 do not facially violate the accused’s
       right to confrontation. This Court interprets Jaffe, [sic] supra to
       not require after the fact trial court determinations of the confi-
       dentiality of statements protected by this privilege.
       [ ] The Defense contention that the changes to the law constitute
       an ex post facto violation are also without merit. This court finds
       that the changes to Mil. R. Evid. 513 does [sic] not 1) punish as
       a crime an act previously committed, which was innocent when
       done; 2) make more burdensome the punishment for a crime, af-
       ter its commission; or 3) deprive one charged with a crime of any
       defense available according to law at the time when the act was
       committed. The current version of Mil. R. Evid. 513 does not
       change the elements of any offenses, the burden of proof at trial,
       the maximum punishment, or the right of an accused to present
       any defenses. As such, the changes to Mil. R. Evid. 513 do not
       violate the Ex Post Facto Clause.
   Appellant’s trial commenced on 9 November 2015. Contrary to his pleas, he
was convicted of the October 2010 aggravated assault and November 2011 and
December 2013 assaults consummated by battery; he was acquitted of the
other three charged assaults and of communicating a threat.

                                II. DISCUSSION
A. Mil. R. Evid. 513
   1. Law
    We review a military judge’s ruling on a discovery or production request for
abuse of discretion. United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015);
United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). “A military judge
abuses his discretion when his findings of fact are clearly erroneous, when he
is incorrect about the applicable law, or when he improperly applies the law.”
United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). “Our review of dis-
covery/disclosure issues utilizes a two-step analysis: first, we determine
whether the information or evidence at issue was subject to disclosure or dis-
covery; second, if there was nondisclosure of such information, we test the ef-
fect of that nondisclosure on the appellant’s trial.” Id. at 325.


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                   United States v. Morales, No. ACM 39018


   Mil. R. Evid. 513(a) provides:
       A patient has a privilege to refuse to disclose and to prevent any
       other person from disclosing a confidential communication made
       between the patient and a psychotherapist or an assistant to a
       psychotherapist, in a case arising under the [UCMJ], if such
       communication was made for the purpose of facilitating diagno-
       sis or treatment of the patient’s mental or emotional condition.
The privilege is subject to a number of exceptions. Mil. R. Evid. 513(d). Prior
to 17 June 2015, these exceptions expressly included when the records are “con-
stitutionally required.” Mil. R. Evid. 513(d)(8) as amended by Exec. Order
13,643, 78 Fed. Reg. 29,559, 29,592 (15 May 2013). However, as described
above, EO 13,696 eliminated the enumerated “constitutionally-required” ex-
ception to Mil. R. Evid. 513 as of 17 June 2015.
    Before ordering the production or admission of a patient’s records or com-
munications under Mil. R. Evid. 513, the military judge must conduct a closed
hearing at which the patient is provided a reasonable opportunity to attend
and be heard. Mil. R. Evid. 513(e)(2). Before conducting an in camera review
of Mil. R. Evid. 513 evidence, “the military judge must find by a preponderance
of the evidence that the moving party showed”:
       (A) a specific factual basis demonstrating a reasonable likelihood
       that the records or communications would yield evidence admis-
       sible under an exception to the privilege;
       (B) that the requested information meets one of the enumerated
       exceptions under [Mil. R. Evid. 513(d)];
       (C) that the information sought is not merely cumulative of other
       information available; and
       (D) that the party made reasonable efforts to obtain the same or
       substantially similar information through non-privileged
       sources.
Mil. R. Evid. 513(e)(3).
    A prosecutor may not suppress evidence favorable to an accused upon re-
quest, as this violates constitutional notions of due process where the evidence
is material either to guilt or punishment, irrespective of the good faith or bad
faith of the prosecution. Brady, 373 U.S. at 87. When a witness’s reliability
may well be determinative of guilt or innocence, nondisclosure of evidence af-
fecting credibility falls within this general rule. Giglio v. United States, 405
U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).
Therefore, the Government violates an accused’s due process rights if it with-
holds evidence that is “exculpatory, substantive evidence, or evidence capable

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                   United States v. Morales, No. ACM 39018


of impeaching the [G]overnment’s case,” and “there is a reasonable probability
that, had the evidence been disclosed, the result of the proceeding would have
been different.” United States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012)
(quotation marks omitted).
   2. Analysis
    Appellant makes several arguments related to the military judge’s applica-
tion of Mil. R. Evid. 513, including inter alia: (1) the military judge abused his
discretion by applying the “new,” post-EO 13,696 version of the rule to his
court-martial; (2) the removal of the “constitutionally-required” exception vio-
lated Appellant’s constitutional rights; (3) YM waived her Mil. R. Evid. 513
privilege by voluntarily releasing a portion of her mental health records; and
(4) the Constitution required the military judge to review YM’s mental health
records in camera.
       a. Application of the “new” version of Mil. R. Evid. 513 to Appel-
       lant’s trial
    EO 13,696 went into effect on 17 June 2015, after the charges and specifi-
cations were referred to trial but before Appellant moved to compel production
of YM’s mental health records, and before Appellant was arraigned and tried.
In ruling on the Defense motion to compel, the military judge applied the “new”
Mil. R. Evid. 513 which lacks the “constitutionally-required” exception. Appel-
lant seizes on language in Section 2 of the EO that “any . . . referral of charges,
trial in which arraignment has occurred, or other action begun prior to the
effective date of this order . . . may proceed in the same manner and with the
same effect as if these amendments had not been prescribed” to argue that the
military judge was not required to apply the change and, under the circum-
stances, abused his discretion by doing so. Exec. Order 13,696, 80 Fed. Reg.
35,783 (17 Jun. 2015).
    We are not persuaded. First, although this provision permits such actions
to proceed under the previous version of the rules, it does not require applica-
tion of the old rules. Second, the evident purpose of this savings clause is to
preserve the fairness and integrity of ongoing actions where the previous ver-
sion of a rule has been applied. For example, if the military judge had made a
pretrial ruling prior to 17 June 2015 relying on a provision of an “old” rule that
had been changed by the EO, this clause would avert the need for the military
judge to revisit that ruling in light of the change. However, in the instant case
Appellant brought no motion and the military judge made no ruling prior to
the rule change. Third, and relatedly, Appellant has identified no way in which
the rule change has particularly impacted him to his detriment that is distinct
from the impact it will have on other accused individuals in the future. Put
another way, Appellant has not demonstrated any compelling reason why his


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                  United States v. Morales, No. ACM 39018


trial should have proceeded differently than any other court-martial conducted
after the effective date of the rule change. Under these circumstances, we do
not find the military judge abused his discretion by applying the “new” version
of Mil. R. Evid. 513 in effect at the time Appellant filed his motion and at the
time of his court-martial. Cf. United States v. Roberts, 75 M.J. 696, 700 (N-M.
Ct. Crim. App. 2016) (EO 13,696 revisions to Mil. R. Evid. 404 “clearly and
indisputably apply to trials in which the appellant was arraigned on or after
17 June 2015”).
       b. The effect of the removal of Mil. R. Evid. 513(d)(8) on Appel-
       lant’s constitutional rights
    Appellant contends “the President’s removal of the ‘constitutionally re-
quired’ exception violated Appellant’s constitutional rights and was a nullity.”
He cites United States v. Scheffer, 523 U.S. 303, 308 (1998), for the proposition
that “the exclusion of evidence [is] unconstitutionally arbitrary or dispropor-
tionate . . . where it has infringed upon a weighty interest of the accused.” Ap-
pellant asserts the exclusion of constitutionally-required evidence in favor of a
psychotherapist-patient privilege violates these principles.
    In a sense, Appellant is tilting at legal windmills here. A rule of evidence
cannot dictate the scope of the Constitution, and the absence of a “constitution-
ally-required” exception does not render a rule of evidence unconstitutional—
the Constitution applies in any event. As our sister court recently observed:
       If the Constitution demands the “admission or disclosure” of oth-
       erwise privileged communications, the deletion of Mil. R. Evid.
       513(d)(8) does not limit the Constitution’s reach into the rule.
       Put differently, the Constitution is no more or less applicable to
       a rule of evidence because it happens to be specifically men-
       tioned in the Military Rules of Evidence. . . . Accordingly, the
       reach of the constitutional exception is the same today as it was
       prior to the deletion of the constitutional exception . . . .
LK v. Acosta, 76 M.J. 611, 615 (A. Ct. Crim. App. 2017). Therefore, although
the removal of Mil. R. Evid. 513(d)(8) impacts the operation of the Rule, it is
not unconstitutional because the scope of the Constitution is unaffected.
    However, in another sense, Appellant’s concern is understandable. The mil-
itary judge’s written ruling appears to rely on Jaffee for the proposition that
constitutional concerns will not pierce the psychotherapist-patient privilege of
Mil. R. Evid. 513. See Jaffee, 518 U.S. at 17 (“Making the promise of confiden-
tiality contingent upon a trial judge’s later evaluation of the relative im-
portance of the patient’s interest in privacy and the evidentiary need for dis-
closure would eviscerate the effectiveness of the privilege.”). We doubt the



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                   United States v. Morales, No. ACM 39018


Court’s decision in Jaffee, a civil case, stands for the proposition that in a crim-
inal trial an accused’s constitutional rights must yield to a military rule of ev-
idence that includes seven other specific exceptions. See id. at 18 (“Because
this is the first case in which we have recognized a psychotherapist privilege,
it is neither necessary nor feasible to delineate its full contours in a way that
would ‘govern all conceivable future questions in this area.’”) (citation omitted).
However, it is unnecessary for us to further address the point because, for rea-
sons explained below, the military judge’s refusal to order production of the
requested records or to conduct in camera review was not an abuse of discre-
tion.
       c. The effect of YM’s voluntary disclosure of the records of one
       mental health consultation on her Mil. R. Evid. 513 privilege
   In his reply to the Government’s answer to his assignment of errors, Appel-
lant contends for the first time that YM waived her privilege by producing
three pages of her mental health records before trial, which the Government
shared with the Defense and which were introduced at trial as a Defense ex-
hibit. This exhibit appears to comprise the complete record of one consultation
with a civilian mental health counselor in June 2010. Appellant cites Mil. R.
Evid. 510, which provides in part:
       A person upon whom these rules confer a privilege against dis-
       closure of a confidential matter or communication waives the
       privilege if the person . . . voluntarily discloses or consents to
       disclosure of any significant part of the matter or communication
       under such circumstances that it would be inappropriate to al-
       low the claim of privilege.
Mil. R. Evid. 510(a). Because Appellant did not assert this claim of waiver at
trial, we test it under the plain error standard on appeal. See United States v.
Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (to prevail under a plain error analysis,
an appellant must show (1) there was an error; (2) the error was plain and
obvious; and (3) the error materially prejudiced a substantial right).
    We find no error, plain or otherwise. Mil. R. Evid. 513 entitled YM “to re-
fuse to disclose and to prevent any other person from disclosing a confidential
communication made between the patient and a psychotherapist . . . .” Mil. R.
Evid. 513(a) (emphasis added). Thus the patient may elect to invoke the privi-
lege with respect to one such confidential communication, but not another. Mil.
R. Evid. 510(a) provides a caveat that if the patient discloses or consents to
disclose a significant part of one such communication, she will be considered to
have waived it with respect to all of that particular communication if retaining
the privilege with respect to the rest of that communication would be inappro-




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                  United States v. Morales, No. ACM 39018


priate under the circumstances. However, it appears from the record the De-
fense obtained the entirety of the particular consultation that YM elected to
disclose.
    Appellant cites United States v. Jasper, 72 M.J. 276, 281 (C.A.A.F. 2013),
for support. We are not persuaded. In Jasper, the United States Court of Ap-
peals for the Armed Forces (CAAF) applied Mil. R. Evid. 510(a) to hold that
the alleged victim’s affirmative consent to the disclosure of a communication
covered by the Mil. R. Evid. 503 privilege for communications to clergy pre-
vented her from later invoking the privilege with regard to the same specific
information previously disclosed. Id. The CAAF found permitting invocation of
the privilege would be inappropriate even though the alleged victim was una-
ware of the privilege when she originally consented to disclosure. Id. Although
Jasper involved the application of Mil. R. Evid. 510(a), the essential issue was
quite different than in the instant case. The CAAF did not hold that consent to
disclosure of one communication required disclosure of a different communica-
tion; rather, it held that, under the circumstances, prior consent to disclose a
communication to trial counsel waived the privilege with respect to that same
communication at trial. Thus, it does not support Appellant’s position here.
       d. Appellant’s failure to offer a specific factual basis for disclos-
       ing YM’s mental health records under Mil. R. Evid. 513, regard-
       less of the continued applicability of the Constitution
    In United States v. Chisum, 75 M.J. 943, 948–49 (A.F. Ct. Crim. App. 2016),
rev. granted, 76 M.J. 264 (C.A.A.F. 2017), this court found the military judge
abused his discretion by failing to perform an in camera review of the mental
health records of two prosecution witnesses. Chisum was tried under the “old”
version of Mil. R. Evid. 513, before EO 13,696 came into effect and removed the
“constitutionally-required” exception enumerated at Mil. R. Evid. 513(d)(8).
We found, under the circumstances of that case, the appellant had presented
“specific facts to demonstrate a reasonable likelihood that the records contain
relevant, non-cumulative information, necessary to confront a witness in cross-
examination.” Id. at 948. However, after reviewing the records in question, we
further concluded the appellant was not prejudiced by the error. Id. at 952.
Our superior court has since granted review. Chisum, 76 M.J. 264. 10




10Specifically, the CAAF granted review of the following issue: “WHETHER THE MIL-
ITARY JUDGE’S FAILURE TO CONDUCT AN IN CAMERA REVIEW OF AND
FAILURE TO DISCLOSE THE MENTAL HEALTH RECORDS OF AB AK AND AB
CR DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONT THE SOLE WIT-
NESSES AGAINST HIM IN VIOLATION OF THE SIXTH AMENDMENT TO THE
CONSTITUTION.” Chisum, 76 M.J. 264.


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                    United States v. Morales, No. ACM 39018


     Although we have not previously addressed the requirements for in camera
review under the current version of Mil. R. Evid. 513, our sister courts have
published opinions reflecting significantly different approaches to the inter-
play between a patient’s privilege under the “new” rule and an accused’s rights
under the Constitution. In Acosta, the United States Army Court of Criminal
Appeals addressed the current status of the “constitutional” exception to Mil.
R. Evid. 513 in the context of a patient’s petition for extraordinary relief chal-
lenging a military judge’s order directing the Government to produce mental
health records for in camera review. 76 M.J. at 614–16. As quoted above, the
court found the deletion of Mil. R. Evid. 513(d)(8) had no impact on the Consti-
tution’s application to the rule. Id. at 615. The court then distinguished consti-
tutional rights to pretrial disclosure of information from rights to admit infor-
mation at trial. Id. Finding the former and not the latter were implicated in
this situation, the court then analyzed the accused’s constitutional right to dis-
covery under Brady and its progeny. Id. at 615–16. Referring to its previous
decision in United States v. Shorts, 76 M.J. 523, 531–32 (A. Ct. Crim. App.
2017), the court held “[m]ental health records located in military or civilian
healthcare facilities that have not been made part of the investigation are not
‘in the possession of the prosecution’ and therefore cannot be ‘Brady evidence.’”
Acosta, 76 M.J. at 616 (emphasis in original). 11
    The United States Navy-Marine Corps Court of Criminal Appeals adopted
a very different approach in J.M. v. Payton-O’Brien, 2017 CCA LEXIS 424 (N-
M. Ct. Crim. App. 2017). There the court granted a patient’s petition challeng-
ing a military judge’s order that her mental health records be produced and
disclosed, notwithstanding the deletion of Mil. R. Evid. 513(d)(8), because the
accused’s constitutional rights required it. Id. at *1–5. The court found the in-
tent of Congress and the President that the privilege be absolute, outside of
the enumerated exceptions, to be “clear-cut.” Id. at *11–12. The court stated:
“any application of the former Mil. R. Evid. 513(d)(8) constitutional exception
by the military judge was improper. Adopting the military judge’s rationale
would force us to ignore the plain language of the rule, the obvious intent of
both Congress and the President, and binding precedent.” Id. at *14. Yet, the
court continued, “we may not allow the privilege to prevail over the Constitu-
tion.” Id. The court stated, “noble goals and notable policy concerns cannot
trump the [accused’s] right to ‘a meaningful opportunity to present a complete
defense.’” Id. at *17 (quoting Holmes v. South Carolina, 547 U.S. 319, 324
(2006)). The court continued:



11The court went on to analyze whether disclosure was required under the exception
for child abuse or neglect enumerated at Mil. R. Evid. 513(d)(2), a claim Appellant has
not raised before us in his appeal.


                                          13
                   United States v. Morales, No. ACM 39018


       It is impossible to define all of the situations in which the privi-
       lege’s purpose would infringe upon an accused’s weighty inter-
       ests, like due process and confrontation. However, courts have
       allowed discovery of privileged information in the following ar-
       eas: (1) recantation or other contradictory conduct by the alleged
       victim; (2) evidence of behavioral, mental, or emotional difficul-
       ties of the alleged victim; and (3) the alleged victim’s inability to
       accurately perceive, remember, and relate events.
       This non-exhaustive list illustrates situations in which the pri-
       vacy rights of the victim may yield to the constitutional rights of
       the accused. In these scenarios, serious concerns may be raised
       regarding witness credibility—which is of paramount im-
       portance—and may very well be case-dispositive.
Id. at *17–18 (footnotes omitted). The court then described the procedure mil-
itary judges should follow to carefully delineate the extent to which a patient
has elected to invoke the privilege, and to craft judicial remedies—such as
striking or precluding testimony, dismissing charges, abating proceedings, or
declaring a mistrial—to protect such weighty interests of the accused as might
be threatened by the invocation of the privilege in the particular case. Id. at
18–25.
    Acosta and Payton-O’Brien, then, present very different approaches to rec-
onciling an accused’s constitutional rights with the current Mil. R. Evid. 513.
Chisum, although decided under the prior version of the rule, may be read to
represent a third approach. Notably, in Chisum we did not explicitly rely on or
refer to Mil. R. Evid. 513(d)(8) in concluding the appellant’s constitutional
rights required piercing the patient’s privilege at least to the extent of securing
the records in question for in camera review. Chisum, 75 M.J. at 948. Chisum
may be read, in contrast to Acosta and Payton-O’Brien, for the proposition that
an accused’s constitutional rights with regard to mental health records that
have not been made part of the accused’s investigation may override a patient’s
non-disclosure privilege under Mil. R. Evid. 513 so as to require in camera re-
view, irrespective of the existence of an enumerated exception. Again, we note
the CAAF has taken Chisum for review.
    In such an unsettled area of the law, it behooves us to tread lightly. In the
interests of judicial economy and in fairness to the parties before us today, we
are well-advised to decide the issue based on what is clear, and leave questions
that do not require decision for another day. In this case, what is clear is that
the Defense failed to present the military judge with a specific factual basis
demonstrating a reasonable likelihood that the records would yield infor-
mation constitutionally required to be admitted or disclosed. See Mil. R. Evid.
513(e)(3)(a). The Defense provided no detail with respect to the anticipated

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                   United States v. Morales, No. ACM 39018


contents of YM’s mental health records in its 8 July 2015 motion to compel,
which was amalgamated with its motion to compel production of numerous
other items it sought in pretrial discovery. During the hearing on the Mil. R.
Evid. 513 motion, trial defense counsel frankly conceded he had “no way of
knowing” and could “merely speculate” as to the contents of the records. The
military judge then denied the motion. We cannot say he abused his discretion
in doing so in the total absence of any specific showing.
    The subsequent 26 July 2015 “Motion Related to Inapplicability of [EO]
13696 to Defense Motion to Compel IAW [Mil. R. Evid.] 513,” while primarily
focused on the alleged inapplicability of the change to Mil. R. Evid. 513 to Ap-
pellant’s court-martial, offered slightly more in terms of what the Defense be-
lieved might be in YM’s mental health records. The Defense proposed:
       It is further reasonable to conclude that records of such counsel-
       ing sessions . . . would contain information related to the charged
       events (and perhaps events related to [AU, the father of YM’s
       son by a previous relationship]), to include the alleged victim’s
       reactions. The counseling records could plausibly be expected to
       contain her recollections of statements made (or perhaps not
       made) by [Appellant].
    However, the motion continued: “Naturally the Defense can only speculate
as to the contents of these counseling records. Simply stated ‘we cannot know
what we have not seen.’” As described above, the military judge focused his
ruling on this motion on rejecting Appellant’s contentions that both the change
to Mil. R. Evid. 513 and its application to his court-martial were unconstitu-
tional, but to the extent he declined to revisit his previous denial of the motion
to compel we find no abuse of discretion on so anemic a showing.
    Therefore, even if we presume (without holding) that the constitutional in-
terests of an accused articulated in Chisum continue to apply despite the re-
daction of Mil. R. Evid. 513(d)(8), we find the Defense did not make the requi-
site showing of the kind this court found to exist in Chisum that warranted in
camera review. 75 M.J. at 948–49. Thus, Appellant is entitled to no relief.
B. Legal and Factual Sufficiency
    We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). Our assessment of legal and factual sufficiency is limited to
the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993).
   The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United

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                   United States v. Morales, No. ACM 39018


States v. Turner, 25 M.J. 324 (C.M.A. 1987); see also United States v. Hum-
pherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The “reasonable doubt” standard does
not require that the evidence be free from conflict. United States v. Lips, 22
M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency,
we are bound to draw every reasonable inference from the evidence of record
in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, im-
partial look at the evidence,” applying “neither a presumption of innocence nor
a presumption of guilt” to “make [our] own independent determination as to
whether the evidence constitutes proof of each required element beyond a rea-
sonable doubt.” Washington, 57 M.J. at 399.
    As the military judge instructed the court members, Appellant’s conviction
for aggravated assault in October 2010 required the Prosecution to prove the
following elements beyond a reasonable doubt: (1) that within the state of Mar-
yland, between on or about 1 October 2010 and on or about 12 October 2010,
Appellant did bodily harm to YM; (2) that Appellant did so by a certain force
by stomping on her right hand with his foot; (3) that the bodily harm was done
with unlawful force or violence; and (4) that the force was used in a manner
likely to produce grievous bodily harm. Manual for Courts-Martial, United
States (2012 ed.) (MCM), pt. IV, ¶ 54.b.(4)(a). “Grievous bodily harm” includes
“fractured or dislocated bones.” MCM, pt. IV, ¶ 54.c.(4)(a)(iii). Appellant’s con-
victions for assault consummated by battery in November 2011 in Maryland
and December 2013 in Virginia required the Prosecution to prove the following
elements: (1) that at the location and on the dates alleged, Appellant did bodily
harm to YM; (2) that Appellant did so by striking YM in the manner alleged;
and (3) that the bodily harm was done with unlawful force or violence. MCM,
pt. IV, ¶ 54.b.(2)(a).
    YM provided testimony establishing each of the required elements. In ad-
dition, her testimony regarding the October 2010 aggravated assault was sup-
ported by the testimony of two doctors and medical records documenting her
broken finger, as well as by photographs YM took of the bruises on her body.
Similarly, the Government introduced photographs YM took of the bruises Ap-
pellant’s assaults left on her arm in November 2011 and her foot in December
2013. YM’s testimony was further supported by the testimony of Appellant’s
sister, who confirmed YM called Appellant’s mother after the November 2011
assault, and who personally spoke with YM who was “crying a lot” and told her


                                       16
                  United States v. Morales, No. ACM 39018


Appellant physically abused her. In addition, the Government introduced the
testimony of one of YM’s friends, who stated YM began informing her of the
abuse before YM’s daughter was born, and who saw photos of YM’s injuries.
    Before us, Appellant returns to several themes he argued at trial. He em-
phasizes YM’s physically abusive prior relationship with AU, which ended in
2008 before YM met Appellant. Appellant emphasizes that AU still lived in the
Alexandria, Virginia area and remained in contact with YM due to the joint
custody of YM and AU’s son. However, we find no support for Appellant’s as-
sertion that AU rather than Appellant was the likely source of YM’s injuries,
or that she used these injuries to falsely accuse Appellant. Similarly, we find
unpersuasive Appellant’s contention that YM “never alleged” Appellant
abused her until after they split and engaged in a custody battle over their
daughter. The medical testimony and records, the photographs, the testimony
of Appellant’s own sister and of YM’s friend, and even the three-page mental
health record introduced as a Defense exhibit all tend to show the assaults and
injuries were real and that YM told others Appellant was hurting her long be-
fore they separated. These and other arguments put forward by Appellant fail
to significantly undermine the evidence supporting his convictions.
    Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” Barner, 56 M.J. at 134, the evidence was legally sufficient to
support Appellant’s convictions beyond a reasonable doubt. Moreover, having
weighed the evidence in the record of trial and having made allowances for not
having personally observed the witnesses, we are convinced of Appellant’s guilt
beyond a reasonable doubt. See Turner, 25 M.J. at 325. Appellant’s conviction
is therefore also factually sufficient.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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