               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        KENDALL R. JONES
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201300349
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 15 May 2013.
Military Judge: Maj Nicholas Martz, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: CDR R.D. Evans, JAGC, USN.
For Appellee: Maj David Roberts, USMC; LT Ann Dingle, JAGC,
USN.

                             31 March 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of making a
false official statement, aggravated sexual assault, and
adultery, in violation of Articles 107, 120 and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 807, 920 and 934. The
military judge sentenced the appellant to five years’
confinement, reduction to pay grade E-1, total forfeitures, and
a dishonorable discharge. The convening authority (CA) approved
the sentence as adjudged except for the adjudged forfeitures,
which were disapproved in accordance with a pretrial agreement
(PTA). Additionally, in accordance with the PTA, the CA
suspended all confinement in excess of forty-two months and
waived automatic forfeitures for six months from the date of his
action, provided that the appellant created and maintained an
allotment to his wife.

     The appellant’s sole assignment of error is that he
suffered prejudice because the military judge’s order to
sequester the Government’s sentencing witnesses from the
appellant’s providence inquiry is not adequately reflected in
the record of trial. We disagree.

     After careful consideration of the record of trial, the
appellant's assignment of error, the pleadings of the parties
and the declaration of trial counsel, we conclude that the
findings and the sentence are correct in law and fact and that
no error materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                         Background

   Pursuant to a PTA, the appellant agreed to plead guilty to an
aggravated sexual assault where the victim had passed out and
was unconscious due to excessive alcohol consumption, and had
little recollection of the events that occurred before or during
the assault. Her husband was away on pre-deployment training,
but she called him the next day, describing her injuries and
conveying that she suspected that it was the appellant who
sexually assaulted her. The Government called both the victim
and her husband as witnesses in aggravation at trial to testify
as to victim impact.

   Prior to the providence inquiry, trial counsel made a motion
to allow the victim and her husband to remain in the courtroom
for the remainder of the proceedings. Trial defense counsel
(TDC) objected, arguing that their presence during the
providence inquiry would materially affect their sentencing
testimony. TDC further claimed that the witnesses’ respective
testimony would also be affected if they were exposed to each
other’s sentencing testimony.

   Upon hearing argument from both sides, the military judge
determined that the testimony of both the victim and her husband

                                2
“may very well be materially affected by what they hear from the
accused” 1 and ruled that: 1) both witnesses be excluded from
hearing the providence inquiry; and 2) the husband be excluded
from hearing his wife’s testimony during the presentencing phase
of the court-martial. 2

     After the military judge issued his sequestration ruling,
the court recessed for three minutes before going back on the
record, at which time the appellant entered pleas, and the
military judge conducted the providence inquiry. From this
point in the record, until the victim is called to testify,
there is no indication from the record as to whether she or her
husband were or were not present in the courtroom during the
providence inquiry. Nor is there any point in the record during
the providence inquiry where trial counsel, the TDC, or the
military judge made any mention that either witness remained in
the court-room contrary to his ruling. However, a post-trial
declaration from the trial counsel indicates that neither
witness was present for the providence inquiry after trial
counsel non-verbally directed both witnesses to depart the
courtroom “either shortly before or shortly after the accused
was sworn.” 3 At the conclusion of the providence inquiry, there
was a brief recess, followed by a review of Part I of the PTA on
the record. Just prior to the beginning of Government’s
sentencing case the record of trial notes that that “[the
witnesses exited the courtroom.]” 4 Soon thereafter, the victim
was called to testify, while her husband remained outside of the
courtroom until he was called.

                                 Discussion

     When requested, a military judge shall exclude witnesses
from the courtroom “so that they cannot hear the testimony of
other witnesses.” MILITARY RULE OF EVIDENCE 615, MANUAL FOR COURTS-



1
    Record at 118.
2
  The appellant claims that only the first part of the military judge’s
sequestration order was not followed. He does not dispute that the witnesses
complied with the judge’s ruling that the husband be excluded from the
courtroom during his wife’s testimony. Record at 158, 180. Appellant’s Brief
of 12 Nov 2013 at 6.
3
  Government Motion to Attach of 16 Jan 2014, Post-Trial Declaration of Trial
Counsel dtd 15 Jan 2014.
4
    Record of Trial at 158.
                                      3
MARTIAL, UNITED STATES (2012 ed.). The purpose of this
sequestration rule is to prevent witnesses from shaping their
testimony to match another’s and to discourage fabrication and
collusion. United States v. Lofton, 69 M.J. 386, 391 (C.A.A.F.
2011). Assuming arguendo that the military judge’s
sequestration order was proper, 5 we are not convinced that it was
violated. Trial counsel’s post-trial declaration, which remains
unrebutted by the appellant, further convinces this court that
the order was followed.

     Even assuming arguendo that both witnesses had remained in
the courtroom for the providence inquiry, we find no prejudice.
In order to prove prejudice under this rule, the appellant must
prove that “the witness's testimony was affected by the trial
proceedings that the witness heard.” United States v.
Quintanilla, 63 M.J. 29, 38 (C.A.A.F. 2006).

     Here, the victim did not discuss details of the crime
during her testimony and maintained, as she had throughout the
proceedings, that she had no memory of the night in question. 6
Likewise, her husband’s testimony was limited to describing the
impact of the sexual assault on their lives and their marriage. 7
Clearly, their testimony was limited to victim impact, and was
in no way affected by their assumed “presence” in the courtroom
during the appellant’s providence inquiry. Even assuming the
military judge’s sequestration order was not followed, we find
no prejudice.




5
  In 2002, the President amended MIL. R. EVID. 615 to extend to victims
at court-martial the same statutory rights as victims in federal criminal
cases, including the general right to be present at court proceedings
relating to the offense. See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Analysis of MIL. R. EVID. 615, App. 22, at A22-51. For purposes of this rule,
the term “victim” includes those persons “defined as victims in 42 U.S.C. §
10607(e)(2), which means ‘a person that has suffered direct physical,
emotional, or pecuniary harm as a result of the commission of a crime. . .’”
Id. quoting 42 U.S.C. § 10607(e)(2). Thus both the victim of the sexual
assault in this case and her husband were entitled to remain in the courtroom
during the providence inquiry.
6
    Record of Trial at 162.
7
    Record of Trial at 180-86.
                                        4
                           Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




                                5
