UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                       BURTON, CELTNIEKS, and SCHASBERGER
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                 Lieutenant Colonel CHRISTOPHER D. WOOD
                         United States Army, Appellant

                                   ARMY 20160465

              Headquarters, U.S. Army Aviation Center of Excellence
                     Christopher T. Fredrikson, Military Judge
            Lieutenant Colonel Andras M. Marton, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Lieutenant Christopher
D. Carrier, JA (on brief); Major Todd W. Simpson, JA; Captain Cody D. Cheek, JA;
Lieutenant Colonel Tiffany M. Pond, JA; Lieutenant Christopher D. Carrier, JA (on
reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin L. Fenwick, JA;
Captain Joshua Banister, JA (on brief).

                                    28 August 2018
                               --------------------------------
                               SUMMARY DISPOSITION
                               --------------------------------

BURTON, Senior Judge:

       A military judge does not abuse his discretion by not abating a proceeding
when the evidence is NOT of such central importance to an issue that it is essential
to a fair trial and there is an adequate substitute for the evidence.

       A military judge sitting as a general court-marital convicted appellant
contrary to his pleas, of one specification of attempting to commit a lewd act upon a
child who had attained the age of 12, but had not attained the age of 16, by
intentionally communicating indecent language, in violation of Article 80, Uniform
Code of Military Justice, 10 U.S.C. §880 (2012)[UCMJ]. Appellant was acquitted of
one specification of attempting to commit a sexual act upon a minor in violation of
Article 80, UCMJ, one specification of conduct unbecoming an officer and
gentlemen in violation of Article 133, UCMJ, and one specification of the
WOOD—ARMY 20160465

assimilated federal offense of child enticement, in violation of Article 134, UCMJ. 1
The military judge sentenced appellant to a dismissal and confinement for ten
months. The convening authority approved the sentence as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, one of which merits discussion, but no relief.
Appellant personally raised several matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), some of which overlap the assigned errors, but none of
which merit relief.

                                  BACKGROUND

       On 30 June 2014, Investigator (INV) JG of the Internet Crimes Against
Children (ICAC) taskforce for the Daleville Police Department posted an
advertisement on Craigslist as part of his official duties. Appellant responded to
INV JG’s advertisement and identified himself as “Chris.” Investigator JG
identified himself as “Brandi.” After exchanging some messages on Craigslist,
appellant and “Brandi” agreed to communicate by text message; appellant provided
“Brandi” his cell phone number and “Brandi” provided the number to an undercover
police cellphone.

       Appellant and “Brandi” exchanged several text messages between 30 June
2014 and 3 July 2014. When appellant asked “Brandi” to send a photo of herself,
INV JG sent appellant a photo of a twenty-one-year-old woman who worked as a
dispatcher at the Daleville Police Department. After receiving the picture, appellant
replied, “Your lips look really kissable though. We might be better off just making
out lol.” “Brandi” responded, “I drive now when I have a ride lol but not suppose to
got permit that’s y I’m waiting on bday. Lol big 16.” Later, appellant and “Brandi,”
discussed meeting. Appellant, after suggesting a ride on his motorcycle, hanging out
at the pool, or going fishing, told “Brandi” “Well we can have some fun too ;)” and
“I do love giving oral. It’s like a fetish lol.” Later “Brandi” told appellant, “Ok

1
 After arraignment but before pleas, the convening authority dismissed: two
specifications under Article 92, UCMJ, which alleged violations of a regulation in
dealings with a recruit; twenty-two specifications under Article 133, UCMJ, which
alleged, inter alia, soliciting what he believed to be a fifteen-year-old girl to
perform sexual acts with her, improper conduct with a recruit, sending nude
photographs and videos to a warrant officer, various improprieties in placing and
responding to advertisements on Craigslist, improper sexual contact with various
women not his wife; and one specification under Article 134, UCMJ, alleging
adultery. In addition, the military judge dismissed one specification each under
Articles 133 and 134, UCMJ.




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kewl…I might can get a ride if not u can get me. Lol sry don’t have a car have to
borrow one getting one thou 4 my 16 th b day in September from grandparents in
S.C. Sry sucks 2 b me.” “Brandi” asked appellant, “Ever been with a young gurl”
like me b 4.” In further discussions about what they would do when meeting,
appellant sent the following messages: “Ride my tongue and cum on my face”;
“Then I slide you down on top of my hard cock”; “Ride me until you start to cum
again and jump back on my face”. These messages formed the basis for the charge
of which appellant was convicted.

      Appellant was apprehended when he attempted to meet “Brandi” on 3 July
2014. Investigator JG testified to his conversation with appellant at the time of the
apprehension:

                     When I took [appellant] and we stepped off to the
             side, I said “What is it that you need?” [Appellant] looked
             at me and said “Don’t you think you’re being a little
             ridiculous.” And I said “Enlighten me, what’s
             ridiculous?” [Appellant] said “Do you see anything wrong
             with taking a 15 year old to eat and for a motorcycle
             ride?” My response to [appellant] at that time was “Yeah,
             I see everything wrong with it, especially after you “ and I
             held up the phone “texted me all of these nice sexual
             things that you would like to do when you thought I was a
             15-year-old. I wouldn’t take my 15-year-old niece out to
             eat or for a motorcycle ride. So yes, I do have a problem
             with it, and yes you’re under arrest.”

       After appellant’s arrest, INV JG took screenshots of the messages from the
police iPhone that he was using to communicate with appellant. According to INV
JG, it was the department’s practice to take screenshots of the messages, store them
on a computer disk and then reset the phone to factory settings so that phone could
be used in other investigations. These screenshots were admitted at trial. The
police iPhone, however, was not available at trial.

      Two of appellant’s close friends testified that the phone number that INV JG
was communicating with belonged to appellant.

      At trial the defense filed several motions to exclude evidence. The military
judge suppressed the physical extraction of evidence from appellant’s phone and any
derivative evidence of such extraction. Defense counsel also moved to abate the
proceedings on the grounds that the screenshots from the police iPhone were not an
adequate substitute for iPhone itself. The military judge denied this motion.




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                                LAW AND DISCUSSION

       Appellant asserts on appeal that the military judge erred by failing to abate
the proceedings on the basis that the actual iPhone used by INV JG was restored to
factory settings, the phone was either broken or lost before a forensic exam could be
conducted, and, more importantly, before the defense ever had a chance to review
the iPhone or its contents. 2 We disagree.

       “A military judge’s failure to abate proceeding is reviewed for an abuse of
discretion.” United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F. 2015)
(citing United States v. Ivey, 55 M.J. 251, 256 (C.A.A.F. 2001)). An abuse of
discretion occurs when a court’s findings of fact are clearly erroneous or the
decision is influenced by an erroneous view of the law. United States v. Lubich, 72
M.J. 170, 173 (C.A.A.F. 2013). On a motion to abate, the defense bears the burden
of persuasion on any factual issue, the resolution of which is necessary to decide the
motion. Rule for Court-Martial [R.C.M.] 905(c)(2)(A).

         Rule for Courts-Martial (R.C.M.) 703(f)(2) provides, in pertinent part:

               a party is not entitled to the production of evidence which
               is destroyed, lost, or otherwise not subject to compulsory
               process. However, if 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.

Constitutional due process protections of this kind require an appellant to prove
bad faith on the part of the government. Arizona v. Youngblood, 488 U.S. 51, 58
(1988). The Court of Appeals for the Armed Forces (CAAF), however, has held
that “R.C.M. 703(f)(2) is an additional protection the President granted to
servicemembers whose lost or destroyed evidence fall within the rule’s criteria.”
Simmermacher, 74 M.J. at 201. Bad faith need not be proven.

       When seeking abatement because evidence was destroyed, the defense must
show: 1) the evidence is of such central importance to an issue that it is essential to
a fair trial; 2) there is no adequate substitute for the evidence; and 3) the defense
was not at fault for the evidence being destroyed. R.C.M. 703(f)(2). Abatement of

2
    Both parties stipulated at trial the evidence sought by the defense was destroyed.



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the proceedings is only a remedy when all three criteria of the above rule are
satisfied. Simmermacher, 74 M.J. at 201 fn. 5.

      As an initial matter, we do not find the military judge’s findings of fact were
clearly erroneous. The military judge found INV JG took screenshots of the text
messages on the police iPhone covering the period 30 June through 3 July 2014, and
that the data from the iPhone was destroyed. Messages from this same period of
time were recovered from appellant’s phone; however, these messages were
suppressed. Though suppressed, the defense relied on the messages to show the
military judge that four messages contained on appellant’s phone were not in the
messages taken from the police iPhone. The military judge found these
discrepancies were likely the result of carrier delays in sending and receiving of the
messages, accidental deletion by INV JG, and/or INV JG’s failure to capture all of
the messages when capturing the screenshots from the police iPhone. In rendering
these findings, the military judge had the benefit of INV JG’s testimony, which
included extensive cross-examination by defense counsel as to INV JG’s
investigation of appellant, handling of the police iPhone, and other matters which
bore upon his credibility.

       The true issue becomes whether or not the screenshots of messages recovered
from the police iPhone instead of the messages recovered from appellant’s phone are
of central importance. Examining the military judge’s legal conclusions, we agree
that the actual police iPhone was not of such central importance that it was essential
to a fair trial. The text messages are evidence of communication between “Brandi”
and the appellant. The only evidence available, minus the suppressed extraction
from appellant’s phone, are the screenshots from the police iPhone and INV JG’s
testimony. There is no way to conduct an analysis of the metadata about the origin
and timing of the messages. However there is testimony as to when the messages
were sent and received as well as screenshots of the messages. Investigator JG
testified that the communications occurred between 30 June 2014 and 3 July 2014
and that he captured screenshots of the messages on 3 July 2014, the date of
appellant’s apprehension.

      During the motions hearing the following four messages from the information
suppressed from appellant’s phone were argued as being missing from the images
captured from the police iPhone: “No sir u wish u had dis little ass not me”; “u
wish”; “when?” and “when”. These four messages were not offered into evidence by
appellant at trial to establish a defense and appellant has not shown how these
missing messages are of central importance to this case. In other words, even
though the military judge suppressed the images from appellant’s phone, this did not
prevent defense counsel from nonetheless using the information to support a defense
of some sort at trial. Assuming arguendo that the defense is alleging that other
messages are missing or that these are not the actual messages exchanged between
appellant and “Brandi,” there was no evidence presented to buttress these positions.



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       Assuming that the text messages between appellant and “Brandi” were of
central importance, we also agree with the military judge that an adequate substitute
for the police iPhone existed. Whether an adequate substitute exists for destroyed
evidence depends upon the purpose of the evidence. In Simmermacher, the CAAF
found no reasonable substitute existed because the appellant was “challenging
whether the government's urinalysis test result was in fact correct and whether there
had been any adulterations to or misidentifications of the sample.” Simmermacher,
74 M.J. at 202. Because the urine sample was the sole source of evidence for the
government’s allegations, a laboratory report could not effectuate this purpose
without the sample. Id. When determining whether an adequate substitute is
available, a military judge has broad discretion. Simmermacher, 74 M.J. at 202.
Though the police iPhone that was used by INV JG was not available, images of the
text messages sent to and received from that phone were available. The government
presented testimony that the number used to communicate with “Brandi” belonged to
appellant. Finally, INV JG testified and was subject to cross-examination
concerning his investigation, including his less-than exemplary method of capturing
the text messages with appellant. 3

       Based on the facts of this case, we conclude the military judge did not abuse
his discretion by failing to abate the proceedings.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge CELTNIEKS and Judge SCHASBERGER concur.


                                       FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




3
 While not relevant to our analysis, we reject the government’s suggestion that
appellant had a role in the destruction of the evidence.



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