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

                              No. ACM 38935
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Kenrick J. DOUGLAS
             Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary


                           Decided 15 June 2017
                         ________________________

Military Judge: Christopher M. Schumann (arraignment); Wendy L.
Sherman.
Approved sentence: Bad-conduct discharge, confinement for 7 months,
and reduction to E-1. Sentence adjudged 15 July 2015 by GCM con-
vened at Cannon Air Force Base, New Mexico.
For Appellant: Captain Patricia Encarnación-Miranda, USAF.
For Appellee: Major Cara J. Condit, USAF; Major Amanda L.K. Lina-
res, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military Judges.
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge HARDING joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
C. BROWN, Judge:
   A general court-martial consisting of officer members convicted Appellant,
contrary to his pleas, of one specification of conspiracy to commit aggravated
                      United States v. Douglas, No. ACM 38935


assault with a dangerous weapon, three specifications of aggravated assault
with a dangerous weapon, 1 and one specification of negligent discharge of a
firearm, in violation of Articles 81, 128, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 881, 928, 934. The members acquitted Appel-
lant of one specification of attempted murder and one specification of con-
spiracy to commit robbery, in violation of Articles 80 and 81, UCMJ, 10
U.S.C. §§ 880, 881. The members sentenced Appellant to a bad-conduct dis-
charge, confinement for seven months, reduction to E-1, and a reprimand.
The convening authority disapproved the reprimand, but otherwise approved
the adjudged sentence.
    On appeal, Appellant raises the following assignments of error: (1) the ev-
idence is factually insufficient to sustain his negligent discharge of a firearm
conviction; (2) the evidence is factually insufficient to sustain his remaining
convictions; 2 (3) the offense of aggravated assault with a dangerous weapon
by offer as a lesser included offense (LIO) of attempted robbery under Specifi-
cation 3 of Charge I is unconstitutionally multiplicious with the offense of ag-
gravated assault with a dangerous weapon under Charge III; (4) the conven-
ing authority improperly applied Article 25, UCMJ, 10 U.S.C. § 825, when he
selected the panel members for Appellant’s court-martial; (5) the military
judge erred by failing to dismiss the case despite violations of Appellant’s due
process, Rule for Courts-Martial (R.C.M.) 703, and Article 46, UCMJ, 10
U.S.C. § 846, rights; (6) plain error occurred during the findings argument
when trial counsel argued hearsay improperly; 3 and (7) the reasonable doubt
instruction the military judge gave to the members was erroneous. 4 Finding


1 In Specifications 2 and 3 of Charge I, the members acquitted Appellant of the great-
er offense of attempted robbery in violation of Article 80, UCMJ, but found him guilty
of the lesser included offense (LIO) of assault with a dangerous weapon in violation of
Article 128, UCMJ. The military judge also dismissed Specification 2 of Charge III
alleging assault with a dangerous weapon in violation of Article 128, UCMJ, after
finding it to be an LIO of Specification 2 of Charge I, attempted robbery, in violation
of Article 80, UCMJ.
2   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3 Raised pursuant to Grostefon, 12 M.J. 431. Having considered Appellant’s argu-
ments, we summarily reject them as they do not require additional analysis or war-
rant relief. See United States v. Matias, 25 M.J. 356 (C.M.A. 1987).
4 Raised pursuant to Grostefon, 12 M.J. 431. Appellant did not object to this instruc-
tion at trial. We thus summarily reject this assignment of error pursuant to United
States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (finding no plain error where a military
judge provided the same instruction without defense objection).




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                  United States v. Douglas, No. ACM 38935


no error that prejudiced a material right of Appellant, we affirm the findings
and sentence.

                               I. BACKGROUND
    Appellant, his close friend JJ, and Appellant’s then-girlfriend JR attended
a series of parties at private residences in Clovis, New Mexico, over the
course of New Year’s Eve, 31 December 2012, into early morning New Year’s
Day, 1 January 2013. At the last party the group attended, JR and another
woman got into an altercation and JR was asked to leave the party by RR.
JR, not wanting to leave, then got into an argument with RR on the porch of
the house. In the presence of Appellant and JJ, RR told Appellant to “come
get your bitch before she starts more problems.” Appellant told RR not to re-
fer to JR as a “bitch.” RR replied that “[s]he’s not even your girl, she’s
f*cking my best friend,” referring to TF. TF and HG, who were also leaving
the party, overheard RR comment that his “homey [TF]” had sex with JR.
    TF got into a car with HG and they drove off together. Shortly thereafter,
HG noticed a gray or white car following them, so he pulled over and both HG
and TF got out of the car. At this point, two individuals approached them
from the other car. The individuals were wearing “hoodies” and had their fac-
es partially obscured by bandanas. Both individuals were carrying handguns
which they pointed at TF and HG. One individual, later identified as JJ, said
“give us your wallets and cell phones.” The other individual, later identified
as Appellant, pointed his weapon at TF and HG while asking them, which
one of you is [“T”]? TF replied he was [“T.”] Appellant then pointed his gun at
TF and asked, “did you f*ck my girl?” TF answered “so this is what it’s really
about,” and JJ hit TF in the head with his gun causing the gun to discharge.
Appellant then also struck TF in the head with his gun and the gun dis-
charged. Appellant again asked TF if he had “f*cked his girl.” TF then “made
a move” to get Appellant’s gun, the gun discharged, and TF sustained a gun-
shot to his arm. TF placed his injured arm behind his back and said, “Nah
man, I didn’t f*ck your girl.” Appellant replied “that’s all I need to know” and
he and JJ returned to their vehicle and drove off. While the altercation was
occurring, both TF and HG noticed JR was present at the scene.
    HG drove TF to the hospital where they both were interviewed by the
Clovis Police Department. The Clovis Police department recovered one shell
casing from the scene of the shooting and a ballistics expert identified the
shell as being shot from JJ’s “Glock” handgun. Appellant and JR both testi-
fied they left the party with JJ and went straight to the on-base residence of
JJ’s girlfriend, Senior Airman (SrA) KF.




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                  United States v. Douglas, No. ACM 38935


                               II. DISCUSSION
A. Factual Sufficiency
   We review issues of factual 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 factual sufficiency is limited to the evidence pro-
duced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
    When evaluating factual sufficiency, the test is “whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, [we are] convinced of the [appellant]’s guilt
beyond a reasonable doubt.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000); United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting
this unique appellate role, we take “a fresh, impartial 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 con-
stitutes proof of each required element beyond a reasonable doubt.” Washing-
ton, 57 M.J. at 399.
   1. Factual Sufficiency for Negligent Discharge of a Firearm
    Using similar arguments to those made at trial, Appellant asserts the ev-
idence is factually insufficient to support his conviction for negligent dis-
charge of a firearm. Appellant claims the victims’ identification of him and JJ
as assailants was the result of suggestion by law enforcement, there was no
evidence that his gun was fired at the scene of the shooting, no witness actu-
ally identified Appellant at the scene, and the Government presented scant
evidence concerning the service discrediting element of the offense.
    To sustain a conviction for this offense, the Prosecution was required to
prove: (1) that Appellant discharged a firearm; (2) that such discharge was
caused by Appellant’s negligence; and (3) that, under the circumstances, Ap-
pellant’s conduct was of a nature to bring discredit upon the armed forces.
Manual for Courts-Martial, United States (MCM), pt. IV, ¶ 80b (2012).
    The evidence supporting the conviction came from the testimony of TF
and HG, who testified that both Appellant and JJ were carrying handguns
when they attempted to rob TF and HG and both Appellant and JJ hit TF
with their guns at different times during the incident. Each time Appellant
and JJ “pistol whipped” TF, their guns discharged. While neither victim testi-
fied they were “100 percent” sure Appellant was one of the individuals who
hit TF in the head with a handgun causing the gun to discharge, HG identi-
fied JR at the party and at the shooting scene, heard the offensive remark
made by RR to JR at the party, saw Appellant and JJ with JR when the re-
mark was made, and identified the car Appellant was driving. HG further
explained how JR’s presence at the scene confirmed it was Appellant and JJ

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                  United States v. Douglas, No. ACM 38935


who followed them from the party and assaulted TF after asking him about
having sex with JR. HG detailed Appellant and JJ pointing handguns at him
and TF, JJ asking them for their wallets, and both men striking TF in the
head with their pistols with the pistols discharging each time.
    Similarly, TF testified that the men pointed their weapons at him and
HG, asked for their wallets, and both men, the “Hispanic and black man” hit
him in the head with their pistols causing the guns to discharge each time.
TF stated that once he was asked about having sex with JR and saw JR at
the scene, he immediately put two and two together to identify Appellant as
the person who pistol whipped and shot him. TF stated he knew JR through
his sister and had seen her at the party with Appellant and a “Hispanic gen-
tleman.”
    The victim’s testimony was supported by RR who detailed his interaction
with JR at the party and described the statement he made about JR having
sex with TF. The statement was made in the presence of Appellant and JJ
with HG and TF standing in close proximity. Appellant confirmed he drove a
vehicle of a similar color and size as the one described by the victims. He also
testified he owned a Glock handgun which he signed out of the base armory
prior to New Year’s evening and returned to the armory the day after the al-
leged shooting. Both Appellant’s and JJ’s Glock handguns were seized from
the armory and introduced at trial. Ballistics testing confirmed a shell found
at the shooting scene was fired from JJ’s handgun.
    Finally, Ms. RC, who lived near the shooting site, testified that she heard
three to five shots fired in the early morning of 1 January 2013, and that if
an Air Force member was negligently firing a weapon on a residential street
it would negatively impact her view of the Air Force.
    The evidence presented at trial met all of the elements of the offense. Re-
garding the service discrediting element, there is no requirement that the
Government show actual damage to the reputation of the military. United
States v. Mead, 63 M.J. 724, 728 (A.F. Ct. Crim. App. 2006); cf. United States
v. Hartwig, 39 M.J. 125, 130 (C.M.A. 1994) (holding that in the context of Ar-
ticle 133, UCMJ, 10 U.S.C. § 933, the prosecution need not prove actual dam-
age to the reputation of the military). Rather, the test is whether Appellant’s
offense had a “tendency” to bring discredit upon the service. United States v.
Saunders, 59 M.J. 1, 11 (C.A.A.F. 2003); Hartwig, 39 M.J. at 130. The trier of
fact must determine beyond a reasonable doubt that the conduct alleged ac-
tually occurred and must also evaluate the nature of the conduct and deter-
mine beyond a reasonable doubt that Appellant’s conduct would tend to bring
the service into disrepute. See Saunders, 59 M.J. at 11. In this case, there is
no doubt Appellant’s conduct had a “tendency” to bring discredit upon the
service. Having reviewed the entire record of trial and making allowances for

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                  United States v. Douglas, No. ACM 38935


not personally observing the witnesses, we are convinced of Appellant’s guilt
beyond a reasonable doubt.
   2. Factual Sufficiency for Remaining Offenses
    Appellant, pursuant to Grostefon, 12 M.J. 431, also challenges the factual
sufficiency of his remaining convictions: assault of TF and HG with a danger-
ous weapon by offer when Appellant pointed his gun at each prior to JJ ask-
ing the victims for their wallets; assault with a dangerous weapon by striking
TF in the head with a loaded firearm; and conspiracy to commit aggravated
assault against HG. The evidence supporting these convictions came from the
testimony of TF and HG. Their testimony was supported by other witness
testimony and both documentary and physical evidence as detailed above.
For the aggravated assault convictions, no further analysis is required: the
evidence presented at trial met all of the elements and, having reviewed the
entire record of trial and making allowances for not personally observing the
witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
    Regarding the final specification—conspiracy with JJ to commit aggra-
vated assault—to sustain a conviction for this offense, the Prosecution was
required to prove: (1) that Appellant entered into an agreement with JJ to
commit aggravated assault, an offense under the UCMJ; and (2) that, while
the agreement continued to exist, and while Appellant remained a party to
the agreement, Appellant performed the overt act alleged, that is, Appellant
pointed a loaded firearm at HG, for the purpose of bringing about the object
of the agreement.
   The elements of aggravated assault with a dangerous weapon are as fol-
lows: (1) that Appellant attempted or offered to do bodily harm to HG; (2)
that Appellant did so with a certain weapon by pointing a loaded firearm at
HG; (3) that the attempt or offer was done with unlawful force or violence; (4)
that the weapon was used in a manner likely to produce death or grievous
bodily harm; and (5) that the weapon was a loaded firearm. MCM, pt. IV, ¶
54b(4)(a).
   The military judge also correctly advised the members that:
       proof that the offense of aggravated assault actually occurred is
       not required. However, it must be proved beyond a reasonable
       doubt that the agreement included every element of the offense
       of aggravated assault. The agreement in a conspiracy does not
       have to be in any particular form or expressed in formal words.
       It is sufficient if the minds of the parties reach a common un-
       derstanding to accomplish the object of the conspiracy, and this
       may be proved by the conduct of the parties. The agreement



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                  United States v. Douglas, No. ACM 38935


       does not have to express the manner in which the conspiracy is
       to be carried out or what part each conspirator is to play.
    While the Government did not present direct evidence of an agreement
between Appellant and JJ to commit aggravated assault, it used the previ-
ously-mentioned testimony as circumstantial evidence of the required agree-
ment and that it remained in place at the time Appellant pointed his weapon
at HG. Both victims testified that they were followed by a vehicle and that
when the vehicle stopped, two men, later identified as Appellant and JJ, got
out wearing bandanas and hoodies. The men acted in concert, brandishing
firearms at the victims and eventually pistol whipping and shooting TF. The
short temporal proximity between the comment being made to JR at the par-
ty and the assault coupled with evidence that Appellant and JJ dressed alike
and acted in tandem during the assault provided strong circumstantial evi-
dence that Appellant and JJ had made an agreement that remained in effect
to assault HG with a dangerous weapon. Having reviewed the entire record of
trial and making allowances for not personally observing the witnesses, we
are convinced of Appellant’s guilt beyond a reasonable doubt.
B. Multiplicity
    In Specification 3 of Charge I, Appellant was charged with attempted
robbery of TF, in violation of Article 80, UCMJ. Appellant was acquitted of
attempted robbery, but found guilty of the LIO of aggravated assault with a
dangerous weapon by offer, by putting TF in fear with a firearm. The mem-
bers also found Appellant guilty of aggravated assault with a dangerous
weapon in Specification 1 of Charge III for striking TF in the head with a
loaded firearm.
    On appeal, Appellant for the first time contends his conviction for the LIO
in Specification 3 of Charge I is unconstitutionally multiplicious with Charge
III. He asserts the evidence presented demonstrates he could not have struck
TF with the gun without first pointing it at him. We disagree.
    We review multiplicity issues de novo. United States v. Anderson, 68 M.J.
378, 385 (C.A.A.F. 2010); United States v. Roderick, 62 M.J. 425, 431
(C.A.A.F. 2006). When not objected to at trial, an appellant is only entitled to
relief if the specifications are facially duplicative. United States v. Lloyd, 46
M.J. 19, 20 (C.A.A.F. 1997). Whether two offenses are facially duplicative is a
question of law that is reviewed de novo. United States v. Pauling, 60 M.J. 91,
94 (C.A.A.F. 2004). Two offenses are not facially duplicative if each “requires
proof of a fact which the other does not.” United States v. Hudson, 59 M.J.
357, 359 (C.A.A.F. 2004) (quoting Blockburger v. United States, 284 U.S. 299,
304 (1932)). Rather than constituting “a literal application of the elements
test,” determining whether two specifications are facially duplicative involves


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                  United States v. Douglas, No. ACM 38935


a realistic comparison of the two offenses to determine whether one is ration-
ally derivative of the other. Hudson, 59 M.J. at 359 (citing United States v.
Foster, 40 M.J. 140, 146 (C.M.A. 1994)).
    Each of these assault specifications deals with factually different acts.
The LIO of Specification 3, Charge I addresses Appellant’s conduct in point-
ing a loaded gun at TF prior to JJ asking TF and HG for their wallets;
Charge III addresses Appellant’s conduct in later striking TF in the head
with a loaded firearm when asking if TF had slept with Appellant’s girl-
friend. Since each of the offenses requires the proof of a fact that the other
does not, i.e., the LIO requires proof that Appellant pointed his weapon at TF
and Charge III requires proof that Appellant struck TF on the head with a
loaded firearm, the charges are not facially duplicative. Hudson, 59 M.J. at
359.
C. Panel Member Selection
    During the referral process, the convening authority was presented 16
members to consider for service on Appellant’s general court-martial. Of the
16 members, one was African American. The convening authority ultimately
selected 12 officers for service on Appellant’s court: 10 Caucasian, one Asian-
American, and one Caucasian of Hispanic descent. After receiving the final
convening order, trial defense counsel sent a memorandum to the convening
on behalf of Appellant, who is African American, and requested the convening
authority select a “diverse” panel. Despite the written request, the convening
authority did not change the composition of the panel. At trial, defense coun-
sel made a motion for a “diverse” panel, the Government did not formally re-
spond, but instead noted there were no changes to the selected panel, and the
military judge denied the motion. Appellant now asserts the military judge
abused her discretion by incorrectly applying the law to defense counsel’s mo-
tion. Appellant avers that his counsel made a prima facie case of discrimina-
tion and thus the burden should have shifted to the Government to present
evidence explaining the exclusion of a complete class of eligible members.
United States v. Gooch, 69 M.J. 353, 359 (C.A.A.F. 2011); United States v.
Santiago-Davila, 26 M.J. 380, 391-392 (C.M.A. 1988). In light of the alleged
error, Appellant asks this court to remand his case for a new trial.
    Whether a panel is properly selected is a question of law we review de no-
vo. United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). The defense
shoulders the initial burden of establishing the improper exclusion of quali-
fied personnel from the selection process. United States v. Roland, 50 M.J. 66,
69 (C.A.A.F. 1999). Once the defense establishes such exclusion, the govern-
ment must show by competent evidence that no impropriety occurred when
selecting Appellant's court-martial members. United States v. Kirkland, 53



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                  United States v. Douglas, No. ACM 38935


M.J. 22 (C.A.A.F. 2000). We are bound by the military judge’s findings of fact
unless they are clearly erroneous. Dowty, 60 M.J. at 171.
    As a matter of due process, an accused has a constitutional right, as well
as a regulatory right, to a fair and impartial panel. United States v. Downing,
56 M.J. 419, 421 (C.A.A.F. 2002) (quoting United States v. Wiesen, 56 M.J.
172, 174 (C.A.A.F. 2001)). These rights are upheld through application of se-
lection criteria contained in Article 25, UCMJ, as well as the use of peremp-
tory and causal challenges during voir dire. Gooch, 69 M.J. at 357.
   Pursuant to Article 25(d)(2), UCMJ, when convening a court-martial, the
convening authority shall detail as members thereof such members of the
armed forces as, in his or her opinion, are best qualified for the duty by rea-
son of age, education, training, experience, length of service, and judicial
temperament.
    The operation of Article 25, UCMJ, is further informed by case law. As a
starting point, three principles should inform the screening of service mem-
bers for court-martial service: (1) we will not tolerate an improper motive to
pack the member pool; (2) systemic exclusion of otherwise qualified potential
members based on an impermissible variable such as rank, race, or gender is
improper; and (3) this court will be deferential to good faith attempts to be
inclusive and to require representativeness so that court-martial service is
open to all segments of the military community. Dowty, 60 M.J. at 171. The
legality of the exclusion of a specific group from courts-martial hinges on the
presence or absence of specific intent. United States v. McClain, 22 M.J. 124,
130 (C.M.A. 1986) (citing Castaneda v. Partida, 430 U.S. 482 (1977)). Military
appellate courts have long held that discrimination in the selection of court
members on the basis of improper criteria threatens the integrity of the mili-
tary justice system. McClain, 22 M.J. at 132 (citing United States v. Daigle, 1
M.J. 139, 140 (C.M.A. 1975)).
    Exclusion of members on the grounds of race has long been considered
improper in the selection of court-members. See United States v. Crawford, 35
C.M.R. 3, 13 (C.M.A. 1964). However, a military accused does not have a “per
se” right to a cross-sectional representation of the military community on his
panel. See Duren v. Missouri, 439 U.S. 357 (1979). Neither the Constitution of
the United States nor the UCMJ requires that every economic, racial, or eth-
nic class, or persons of all military grades be appointed to a military jury. On
the contrary, the law provides only that significant and identifiable groups
may not be systematically excluded from the jury selection process. United
States v. Credit, 2 M.J. 631, 638 (A.F.C.M.R. 1976), rev’d on other grounds
(citing Swain v. Alabama, 380 U.S. 202 (1965); Crawford, 35 C.M.R. 3)).




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                   United States v. Douglas, No. ACM 38935


    Here, the record shows an absence of evidence of purposeful discrimina-
tion on the part of the convening authority. Trial defense counsel attempted
to demonstrate discriminatory practices by asserting:
       The convening authority was given 16 data sheets of people
       who were available and qualified to serve on this court-martial
       panel. One of those individuals was African American out of
       the 16 that were submitted. And he was not selected. We don’t
       know why, but we feel like more African Americans should
       have been given an opportunity to serve. I’ll also just note that
       while the government, for whatever reason, did not choose to
       submit any more African Americans to the convening authori-
       ty, they did choose to submit the security forces commander on
       this base as a qualified member to serve on this panel. So, that
       being said, we just do not feel like the African American offic-
       ers at this base haven’t [sic] been given the opportunity to
       serve. And had they been given to the convening authority for
       his selection, it’s more likely that he would have been able to
       select an African American, at least one, to serve on this panel.
    In her ruling on the motion, the military judge noted that Article 25,
UCMJ, requires a convening authority to detail members “who are best quali-
fied for the duty by reason of age, education, training, experience, length of
service, and judicial temperament.” She also found there was “no evidence
the convening authority had systematically excluded members of race.” She
further found no indication that the exclusion of sole African American nomi-
nee was not based upon Article 25 criteria as opposed to “some other unto-
ward motive.” We find no abuse of discretion in the military judge’s findings
of fact or application of law. The Appellant has not made a prima facie case of
discrimination; thus, we decline to grant relief.
D. Alleged Due Process Violations
    Appellant asserts the military judge erred by failing to dismiss his case as
a result of violations of his constitutional due process, R.C.M. 703 and Article
46, UCMJ rights. Appellant alleges that delay in the law enforcement inves-
tigation, loss of or failure to preserve evidence, and the lack of equal access of
evidence prejudiced him at trial, depriving him of the possibility of receiving
a fair trial. We disagree.
   This court reviews a military judge’s ruling on a motion to dismiss for an
abuse of discretion. United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).
An abuse of discretion occurs when a court’s findings of fact are clearly erro-
neous 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). “The abuse of discretion


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                   United States v. Douglas, No. ACM 38935


standard is a strict one, calling for more than a mere difference of opinion.
The challenged action must be arbitrary, fanciful, clearly unreasonable, or
clearly erroneous.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (in-
ternal citations and quotations omitted).
   Article 46(a), UCMJ, provides: “The counsel for the Government, the
counsel for the accused, and the court-martial shall have equal opportunity to
obtain witnesses and other evidence in accordance with such regulations as
the President may prescribe.”
    To establish a violation of Article 46 due to lost or destroyed evidence, an
accused must satisfy the test announced in California v. Trombetta, 467 U.S.
479 (1984). See United States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986) (noting
the Trombetta test satisfies both constitutional and military standards of due
process and is applicable to trial by courts-martial). The test articulated in
Trombetta, and further refined in Arizona v. Youngblood, 488 U.S. 51, 58
(1988), provides that the destruction of, or failure to preserve, potentially ex-
culpatory evidence does not entitle an accused to relief on due process
grounds unless: (1) the evidence possesses an exculpatory value that was ap-
parent before it was destroyed; (2) it is of such a nature that the accused
would be unable to obtain comparable evidence by other reasonably available
means; and (3) the Government acted in bad faith when it lost or destroyed
such evidence. United States v. Terry, 66 M.J. 514, 517 (A.F. Ct. Crim. App.
2008). If “material exculpatory evidence” is lost, as opposed to merely “poten-
tially useful” evidence, the requirement to demonstrate that the Government
acted in bad faith does not apply. Illinois v. Fisher, 540 U.S. 544, 547–48
(2004).
    R.C.M. 703(f)(1) states: “Each party is entitled to the production of evi-
dence which is relevant and necessary.” R.C.M. 703(f)(2) states that despite
the broad rule in R.C.M. 703(f)(1), “a party is not entitled to the production of
evidence which is destroyed, lost, or otherwise not subject to compulsory pro-
cess.” However, it continues, 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 substi-
tute 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 proceed-
ings, unless the unavailability of the evidence is the fault of or could have
been prevented by the requesting party. R.C.M. 703(f)(2) does not require the
accused to demonstrate bad faith on the part of the Government, something
an accused may have to demonstrate to obtain relief under Article 46, UCMJ,
or the Constitution. Terry, 66 M.J. at 518. R.C.M. 703 therefore represents
“the President going even further than the Constitution and the Uniform
Code in providing a safeguard for military personnel.” United States v. Ma-
nuel, 43 M.J. 282, 288 (C.A.A.F. 1995).


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                     United States v. Douglas, No. ACM 38935


    The Fifth Amendment 5 provides that “no person shall be deprived of life,
liberty, or property, without Due Process of law.” The Fifth Amendment Due
Process Clause affords criminal defendants, among other rights, protection
against egregious trial delays. United States v. Lovasco, 431 U.S. 783 (1977);
United States v. Vogan, 35 M.J. 32, 34 (C.M.A. 1992). The Court of Appeals
for the Armed Forces applies a two-prong test for determining whether delays
constitute a Fifth Amendment violation. First, Appellant must show preju-
dice, e.g., “the actual loss of a witness, as well as the substance of their testi-
mony,” or the loss of physical evidence; and second, there must be “proof to
show an egregious or intentional, tactical delay.” United States v. Reed, 41
M.J. 449, 452 (C.A.A.F. 2000) (citing United States v. Tousant, 619 F.2d 810,
814 (9th Cir. 1980); United States v. Dennis, 625 F.2d 782, 794 (8th Cir.
1980); United States v. Comosona, 614 F.2d 695, 697 (10th Cir. 1980)). The
Due Process Clause also requires that law enforcement preserve potentially
useful evidence. However, in order to prevail on a Due Process claim, a crimi-
nal defendant must show the failure to preserve was the result of bad faith.
    Prior to ruling on the Defense motion to dismiss, the military judge made
detailed findings of fact and individually addressed each piece of evidence the
defense contested. Appellant alleges law enforcement failed to promptly in-
terview witness, to take necessary crime scene photos, to obtain social media
evidence from TF’s mother, to preserve evidence from the crime scene for po-
tential DNA testing, to take adequate photographs of TF’s injuries, and did
not record one of their interviews with JR. Appellant does not argue the mili-
tary judge’s findings concerning the evidence were erroneous. Instead, he
continues to allege the delay in the investigation affected the witnesses’
memories significantly and claims the Government’s failure to preserve or
obtain evidence coupled with the law enforcement’s failure to preserve the
witnesses’ memories deprived him of challenging the witnesses’ testimony at
trial. However, as the military judge noted in her findings, the witnesses
were interviewed by local law enforcement on the night of the shooting and
re-interviewed by Air Force Office of Special Investigations personnel eight
months later after the Air Force obtained jurisdiction in the case. More im-
portantly, Appellant has failed to demonstrate the “unavailable evidence”
was exculpatory or that its unavailability was caused by bad faith on the part
of the Government, a necessity for him to prevail under Article 46 or the Due
Process Clause. At trial, defense counsel conceded any lost evidence was not
due to intentional misconduct or bad faith on the part of authorities. Appel-



5   U.S. CONST. amend. V.




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                  United States v. Douglas, No. ACM 38935


lant’s repeated claims of “sloppy police work” do not equate to a showing of
bad faith.
    Turning to an analysis under R.C.M. 703(f)(2), the Defense similarly fails
to articulate any apparent exculpatory value for the alleged unavailable evi-
dence. Specifically, Appellant asserts the lack of DNA testing of the gun Ap-
pellant allegedly struck TF in the head with made it impossible for him to
have a fair trial as he was prevented from arguing the absence of DNA to
show TF was never hit with the gun. Appellant’s argument assumes the blow
to TF’s head would leave DNA on the weapon and his counsel conceded at
trial that this evidence was not necessarily exculpatory.
    Appellant makes similar arguments concerning the necessity of crime
scene photos, arguing they are required to show the officers were at the cor-
rect crime scene and to eliminate the possibility that the victims were as-
saulted at a different location. This argument ignores the victim’s consistent
description of where the assault took place and once again fails to show how
the evidence would be exculpatory as opposed to inculpatory. Appellant
makes like claims about the failure of law enforcement to collect HG’s cloth-
ing on the night of the shooting so the clothes could be examined for blood,
the failure of law enforcement to preserve texts from TF’s mother who at-
tempted to find her son’s assailant using social media, and the absence of
photos of TF’s head to show injuries from the assault or powder burns from
the gun discharging near his head. In each case, defense counsel asserted the
possible relevance of the evidence, at times arguing the evidence was poten-
tial impeachment material, while also arguing it was “possibly” exculpatory.
However, the defense counsel failed to show that any piece of evidence they
lacked was truly exculpatory or essential to a fair trial. We find no abuse of
discretion in the military judge’s denial of the defense motion to dismiss
based on the Due Process Clause, Article 46, or R.C.M. 703 violations.

                              III. 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).




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                    United States v. Douglas, No. ACM 38935


    Accordingly, the findings and the sentence are AFFIRMED. 6


                   FOR THE COURT



                   KURT J. BRUBAKER
                   Clerk of the Court




6 We note both the Report of Result of Trial and Court-Martial Order (CMO) fail to
reflect Appellant’s plea of not guilty to Specification 2 of Charge III, for assault with
a dangerous weapon in violation of Article 128, UCMJ, and the military judge’s sub-
sequent dismissal of this specification prior to panel deliberations because it was an
LIO of Specification 2 of Charge I, attempted robbery, in violation of Article 80,
UCMJ. Appellant was not prejudiced by this oversight; however, we direct promulga-
tion of a new CMO to accurately reflect the pleas and later dismissal of this specifica-
tion.




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