United States v. Axe ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
KING, LAWRENCE, and STEWART
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Steve G. AXE III
Fire Controlman First Class, U.S. Navy
Appellant
No. 201900009
Decided: 27 July 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Shane E. Johnson
Sentence adjudged 12 September 2018 by a general court-martial con-
vened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of of-
ficer members. Sentence approved by the convening authority: reduc-
tion to E-1, confinement for 60 months, and a dishonorable discharge.
For Appellant:
Lieutenant Commander Kevin Larson, JAGC, USN
For Appellee:
Lieutenant Joshua C. Fiveson, JAGC, USN
Lieutenant Commander Timothy C. Ceder, JAGC, USN
Senior Judge KING delivered the opinion of the Court, in which Judge
LAWRENCE and Judge STEWART joined.
United States v. Axe, NMCCA No. 201900009
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
________________________
KING, Senior Judge:
Appellant was convicted, contrary to his pleas, of one specification of at-
tempted sexual assault of a child and two specifications of attempted sexual
abuse of a child, in violation of Article 80, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. § 80 (2012), for communicating indecent language to, and
arranging to meet and have sex with a fictitious individual named “Sarah.”
Appellant believed Sarah to be a 14-year-old female, but the individual with
whom Appellant communicated was in fact an online persona portrayed by a
special agent of the Air Force Office of Special Investigations [AFOSI].
Appellant asserts four assignments of error [AOE], renumbered as fol-
lows: 1 (1) the military judge abused his discretion when he denied in part a
Defense motion to compel an expert consultant in forensic psychology; (2) the
military judge abused his discretion when he denied a Defense motion to
suppress a statement by Appellant under Military Rule of Evidence [Mil. R.
Evid.] 404(b); (3) trial defense counsel [TDC] was ineffective for waiving a
potential defense of entrapment; and (4) Appellant’s convictions are not legal-
ly or factually sufficient because the special agent with whom Appellant
communicated did not provide an age or gender in the chat application profile
used to communicate with Appellant, and sent him images that were in fact
of adults. We have carefully considered AOEs (3) and (4) and find them to be
without merit. See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987),
cert. denied, 485 U.S. 968 (1988). We address AOEs (1) and (2), find no abuse
of discretion, and affirm.
I. BACKGROUND
As part of AFOSI’s proactive efforts to combat Internet-based crimes
against children, Special Agent [SA] JT set up a fictitious online persona
named Sarah and posted a message on an Internet-based mobile messaging
application. The initial post from SA JT included an image of pink sneakers
1 AOEs 2-4 are raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
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Opinion of the Court
with a text overlay reading “[s]o 14 and stuck on base . . . what is there 2
do.” 2 Appellant responded to the post and numerous conversations took place
between SA JT and Appellant in both the original and another web-based
chat program over approximately three days. SA JT identified himself as
Sarah to Appellant, told Appellant “she” lived with her parents onboard Joint
Base Pearl Harbor-Hickam, and on numerous occasions expressed that she
was 14 years old. 3 On the second day of their conversation, their communica-
tions became more sexual in nature, and Appellant sent Sarah a fully nude
picture of himself. Appellant also asked Sarah if she was a virgin, “what [she
has] done,” and whether she liked various sexual acts. 4 On several occasions
the two discussed the need to keep their communications and relationship
“secret.” 5
Sarah asked Appellant if he had ever met “any other girls like me be-
fore[?]” Appellant replied “one.” 6 The following exchange then took place after
the conversation again became sexual in nature: 7
Appellant: I know a girl that LOVES gagging. . . . She’s my hero,
lol.
Sarah: OMG
Sarah: is that the girl that was my age?
Appellant: no, the girl your age became a pretty freaky girl. God I
miss her sometimes
Sarah: lol well I am not there yet sorry maybe after time
Appellant: hopefully! Only time will tell! 8
2 Pros. Ex. 1 at 1.
3 Pros. Ex. 2.
4 Id. at 7.
5 Id. at 2, 4, 10.
6 Pros. Ex. 3 at 2.
7 At this point in the conversation, Appellant asked Sarah if she watched pornog-
raphy, claimed that there was a lot that he could “teach her,” that “someone who has
sex a lot is probably someone who enjoys having fun and isn’t afraid of what others
think,” and graphically stated that he was willing to discuss with her various sexual
acts. Pros. Ex. 3 at 4-6.
8 Id. at 6-7.
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Eventually, Appellant and Sarah arranged to meet in Appellant’s truck at
a Hickam-area park near Sarah’s home. When Appellant arrived at the des-
ignated location with condoms and takeout food specific to Sarah’s request,
he was promptly apprehended by AFOSI.
Appellant was charged with one specification of attempted sexual assault
of a child for attempting to commit a sexual act upon Sarah, a person he
believed to be a child who had attained the age of 12 years, but had not at-
tained the age of 16 years, and two specifications of attempted sexual abuse
of a child, for attempting to commit lewd acts upon Sarah by communicating
indecent language to Sarah and sending her the aforementioned photograph.
Prior to trial, Appellant requested that the convening authority appoint a
particular forensic psychologist, Dr. S, as an expert consultant to evaluate
the merits of the Government’s case and the Appellant’s risk of recidivism. 9
The convening authority granted 20 hours of consultation with a different
forensic psychologist, Dr. A, but limited that consultation to Appellant’s risk
of recidivism. 10 At trial, Appellant moved to compel the appointment of Dr. S,
and to expand the permitted purposes of the consultation to those initially
requested, arguing that he needed Dr. S to pursue the viability of a defense
centered on the fact that Appellant engaged in a “dominant-daddy/little-girl”
fetish lifestyle. Appellant stated in his motion that “[t]here are many facts in
the evidence that raise questions as to [Appellant’s] mindset regarding sexu-
ality both in terms of the charged offenses and generally.” 11 Those facts in-
cluded that, in addition to Appellant’s communications with Sarah, he used a
fetish website for dating and told AFOSI agents that he texted Sarah because
he “has issues.” 12 TDC explained that he did not have the requisite back-
ground in psychology or human sexuality sufficient to analyze these facts, or
how they might be utilized on the merits or at sentencing. Appellant also
suggested that Dr. S. was needed to explore whether “the progression of
events in this case is typical or atypical of a pedophile,” to assess whether
Appellant was merely “posturing” when he made comments to Sarah suggest-
ing a prior relationship with an underage female, and to “analyze” Appel-
lant’s use of an online platform used to connect individuals sharing common
9 Appellate Exhibit [App. Ex.] V.
10 Id. at 21.
11 Id. at 3.
12 Id. at 5-6.
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fetishes. 13 In both his written motion and at the hearing, TDC suggested that
Dr. A was inadequate to help Appellant navigate these factual issues for
reasons discussed below. 14
Finally, Appellant moved to suppress certain statements made to Sarah
regarding a relationship Appellant ostensibly had with a separate similarly-
aged minor female. The military judge granted in part and denied in part
both motions. The military judge denied Appellant’s request for the appoint-
ment of Dr. S, but expanded the authorized purposes of consultation with
Dr. A to include consultation on the merits. 15 He also denied Appellant’s
motion to suppress insofar as his statements were relevant under Mil. R.
Evid. 404(b), but precluded the Government from introducing the same
statements as evidence of propensity under Mil. R. Evid. 414.
II. DISCUSSION
A. Appellant’s Right to Expert Assistance
1. Standard of Review
We review a military judge’s decision regarding expert assistance for an
abuse of discretion. United States v. Short, 50 M.J. 370, 373 (C.A.A.F. 1999).
An abuse of discretion occurs when a military judge renders findings of fact
that are clearly erroneous, influenced by an erroneous view of the law, or
outside the “range of choices reasonably arising from the applicable facts and
law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008); United States
v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010). 16
13 Id.14 Id. at 7.
15 App. Ex. XLVII.
16 Appellant cites United States v. McAllister, 64 M.J. 248 (C.A.A.F. 2007) for a
broad proposition that erroneous denial of expert assistance is constitutional error,
and thus, in the event error is found, a heightened standard of review for prejudice
must be applied. Appellant’s Brief at 15. However, not all denial of expert assistance
is constitutional in nature. Only where such denial prevents an accused from exercis-
ing his right to present a defense will we find such error to be “constitutional.” Id. at
251 (citations omitted). Such was not the case here, where Appellant was provided
competent expert assistance.
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2. Pretrial Expert Assistance
Appellant asserts that the military judge abused his discretion by approv-
ing Dr. A as an “adequate substitute” for Appellant’s preferred expert, Dr. S.
He argues that Dr. A did not possess similar qualifications as Dr. S, would
not testify to the same conclusions as Dr. S, and that Dr. S. harbored a bias
or conflict of interest that precluded his participation in Appellant’s defense.
The Government responds that Appellant waived any challenge to Dr. A and,
in any event, he was an adequate substitute for Dr. S. We decline to extend
waiver here and conclude that Dr. A was more than capable of assisting
Appellant in “adequately preparing for trial”—the only analysis relevant to
assessing the adequacy of an expert consultant. 17 United States v. True, 28
M.J. 1057, 1061 (N-M. Ct. Crim. App. 1989).
In support of their respective arguments, both parties cite a series of opin-
ions dealing with expert witnesses. See, e.g., United States v. Van Horn, 26
M.J. 434, 437 (C.M.R. 1988) (request for an expert witness in toxicology);
United States v. Robinson, 43 M.J. 501 (A.F. Ct. Crim. App. 1995) (defense
sentencing witness); United States v. Robinson, 24 M.J. 649, 652 (N-M. Ct.
Crim. App. 1987) (competing expert witnesses); United States v. Delgado, No.
200800346, 2009 CCA LEXIS 116 (N-M. Ct. Crim. App. May 8, 2009) (unpub.
op.) (disposing of an appellant’s motion for an expert witness based on the
timeliness of the motion). We acknowledge some opacity in the case law gov-
erning expert consultants and expert witnesses and the parties’ responses
highlight the need for a reminder that they are indeed separate concepts. As
we have stated, “the legal standards pertaining to a request for an expert
witness . . . [are] a far cry from a request for an investigative assistant, de-
spite their common source.” True, 28 M.J. at 1061 (that common source being
Ake v. Oklahoma, 470 U.S. 68 (1985), and Rule for Courts-Martial [R.C.M.]
17 Where a military judge invites an accused to renew a request for an expert af-
ter its denial, a failure to do so may result in waiver. United States v. Gunkle, 55 M.J.
26, 32 (C.A.A.F. 2001). We also remind counsel that they do not necessarily shield
themselves from waiver or forfeiture through the act of filing a motion and litigating
an issue. United States v. Cardreon, 52 M.J. 213 (C.A.A.F. 1999). However, we de-
cline to extend waiver here where the military judge’s decision was based less on a
future contingency that renders a motion truly “premature” (e.g., how evidence might
come out at trial) and more on a simple lack of evidence at the time Appellant’s
motion was ruled upon. See Gunkle, 55 M.J. at 31. Here, while the military judge
invited Appellant to renew his request upon a demonstration of “good cause,” the
ruling was sufficiently definitive based on the information before the military judge
at the time for us to address the merits of the ruling. Record [R.] at 160, 165-67.
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Opinion of the Court
703(d)). In seeking pretrial expert assistance, Appellant here is on a “far
different journey” than one seeking expert testimony. Id. (explaining how
assistance in trial preparation is different than assistance in countering a
proposed adverse government witness).
Contrary to Appellant’s argument, the law governing pretrial expert as-
sistance does not require a tit-for-tat comparison of the professional qualifica-
tions of Doctors A and S. Nor must the trial court consider divergences in
speculative testimony between expert consultants. This is so because the
government is not required to employ the expert consultant of Appellant’s
choosing, nor one with precisely equivalent professional qualifications as any
defense-requested expert. Short, 50 M.J. 373; True, 28 M.J. at 1061; see also
United States v. Tharpe, 38 M.J. 8, 14 n. 4 (C.M.A. 1993) (discussing appel-
late expert assistance, and noting that “only in the extraordinary case” would
a military judge require that a particular expert be appointed). The stand-
ards set forth in cases like Robinson, on which Appellant relies, and wherein
the focus is on expert witnesses, are inapplicable when assessing the adequa-
cy of government-funded expert consultants. True, 28 M.J. at 1060-61.
Instead, the requirement that the government provide for expert consul-
tation stems from the Due Process demand that an accused be given the
“basic tools” necessary to present a defense. Short, 50 M.J. at 373; United
States v. Garries, 22 M.J. 288 (C.M.A. 1986). This right to expert assistance is
triggered upon a demonstration of both necessity, and that denial of expert
assistance would “result in a fundamentally unfair trial.” United States v.
Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008) (citations omitted); United States
v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994) (setting forth a three-part test for
necessity). A “mere possibility” that an expert could provide assistance is not
enough to demonstrate necessity. Freeman, 65 M.J. at 458 (citations omitted).
But once necessity is established, the government is required to provide an
accused with an expert who can provide “competent assistance” to counsel in
exploring those issues requiring expertise. Short, 50 M.J. at 373 (citing Gar-
ries, 22 M.J. at 290-91); see also True, 28 M.J. 1062 (couching the standard as
whether the government-funded expert is sufficient to assist the accused in
preparing for trial). In that “competent assistance” is the relevant inquiry, it
is the rare case where comparison between qualified expert consultants
would be relevant. See generally United States v. Warner, 62 M.J. 114, 120
(C.A.A.F. 2005) (by availing itself of the pretrial assistance of the preeminent
expert in shaken baby syndrome, while providing the defense with an expert
consultant with far inferior credentials in the field, the government violated
Article 46, UCMJ).
A different standard applies to expert witnesses. There, the focus is on the
testimony of the witness and the standards set forth in R.C.M. 703 govern.
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When the testimony of an expert is both relevant and necessary to an ac-
cused’s defense, the government is required to provide either the expert re-
quested, or an “adequate substitute.” Rule for Courts-Martial [R.C.M.]
703(d)(2)(i); United States v. Pomarleau, 57 M.J. 351, 359 (C.A.A.F. 2002).
This rule gives effect to the letter and spirit of Article 46, UCMJ, 10 U.S.C.
§ 846 (“[i]n a case referred for trial by court-martial, the trial counsel, defense
counsel, and the court-martial shall have equal opportunity to obtain wit-
nesses and other evidence”); see also United States v. Van Horn, 26 M.J. 434,
436 (C.M.A. 1988). When an accused requests a particular expert witness,
their qualifications when compared to any substitute witness may then be
relevant given the fact that the witness’ credibility is typically at issue. Simi-
larly, were the government-offered substitute unwilling to testify to the same
conclusions as the defense-requested expert, the argument could be made
that the accused is deprived of his Sixth Amendment right to compulsory
process for witnesses “in his favor.” Robinson, 24 M.J. at 652. Accordingly, in
order for a substitute expert witness to be “adequate” under R.C.M. 703(d),
they must “possess similar professional qualifications” and be willing to
testify to the same “conclusions and opinions” as the defense-requested ex-
pert witness. Robinson, 24 M.J. at 652 (citing Ake v. Oklahoma, 470 U.S. 68(1985)).
Turning to the military judge’s decision, we assume arguendo that Appel-
lant demonstrated the necessity for expert assistance to explore his theory
that Appellant’s “dominant-daddy/little-girl” fetish lifestyle impacted his
perception of Sarah’s age. 18 The next question is whether Dr. A was capable
of providing that assistance. A board-certified forensic psychologist with
decades of experience in that field, Dr. A has published in his field many
times over, has testified in numerous criminal cases, and testified during a
pretrial hearing in the instant case with competence on the issues requiring
expertise. He also clearly articulated the various psychological tests that he
would perform on Appellant as part of his evaluation.
18 Appellant asserts that the Government conceded necessity at trial. Appellant’s
Brief at 16. However, the record indicates that while the Government agreed that
Appellant required expertise with regards to his risk of recidivism, no such conces-
sion was made with regards to issues on the merits of Appellant’s defense. App. Ex.
VI at 3-7. In any event, the Government does not challenge on appeal that expert
assistance on the merits was necessary.
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TDC attempted to demonstrate Dr. A’s inadequacy by contrasting him
with his chosen expert. 19 However, given that neither expert had been pre-
sented with any evidence from the case, there was simply no reason for the
military judge to believe that any difference between Dr. A and Dr. S should
lead to a conclusion that Dr. A could not provide competent assistance. In
fact, TDC’s actions following the partial denial of his motion suggest he was
satisfied with the outcome of which Appellant complains on appeal. After the
military judge explained that TDC had leave to renew his motion to compel
Dr. S after availing himself of Dr. A’s judicially-expanded services, TDC
never revisited the issue. 20 If TDC believed Dr. A to be inadequate after
consulting with him, he had ample opportunity to address the shortcomings
of his original motion to compel, but chose to instead include Dr. A on his
merits witness list. 21 While he did not call Dr. A to testify during the findings
portion of the trial, he did call him to discuss recidivism at sentencing. The
military judge’s findings of fact were supported by the evidence; he employed
the correct legal principles; and his application of those principles to the facts
was reasonable. Ellis, 68 M.J. at 344. We find no abuse of discretion.
B. Military Rule of Evidence 404(b)
Appellant next asserts that the military judge abused his discretion by
permitting the Government to introduce communications between Appellant
and Sarah regarding another sexual relationship involving Appellant and a
19 Appellant also argues that Dr. A was somehow biased against the Defense or
harbored a conflict of interest vis-à-vis his responsibility to become a member of the
Defense team bound by rules of confidentiality simply because his son was facing
legal issues of his own. Dr. A testified that he “bend[s] over backwards” to avoid even
the appearance of impartiality in his professional work and we find no merit in this
component of Appellant’s argument. R. at 132. The instant matter is a far cry from
situations in which we have considered bias in a government-funded expert, and
those cases were analyzed in the context of the expert witness. See United States v.
Ndanyi, 45 M.J. 315 (C.A.A.F. 1996) (declining to find that a substitute expert har-
bored impermissible bias because the expert was employed by the government). We
also note that the military judge ensured that—were Dr. A to become a witness—the
Government would not attempt to cross-examine him regarding his son’s legal con-
cerns.
20 R. at 165-67.
21 App. Ex. XXI. Appellant listed four witnesses on his first witness list. He speci-
fied that two would testify at sentencing as character witnesses. Dr. A was not one of
those two, suggesting that Appellant was prepared to use his testimony in his case in
chief despite ultimately not doing so.
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Opinion of the Court
female “like [Sarah].” The military judge permitted the evidence under Mil.
R. Evid. 404(b) as evidence tending to demonstrate intent, plan, knowledge,
and in the event an entrapment defense was raised, predisposition.
Mil. R. Evid. 404(b) permits the admission of evidence of other crimes,
wrongs, or acts so long as that evidence is relevant for a purpose other than
to prove propensity. See United States v. McDonald, 59 M.J. 426, 429
(C.A.A.F. 2004). The Court of Appeals for the Armed Forces established a
three-part test to determine the admissibility of such evidence under Mil. R.
Evid. 404(b); the proffered evidence must satisfy all three prongs to be admis-
sible: (1) “Does the evidence reasonably support a finding by the court mem-
bers that appellant committed prior crimes, wrongs, or acts;” (2) “What fact
. . . of consequence is made more or less probable by the existence of this
evidence;” and (3) “Is the probative value . . . substantially outweighed by the
danger of unfair prejudice?” United States v. Reynolds, 29 M.J. 105, 109
(C.M.A. 1989) (citations and internal quotation marks omitted).
“The first two prongs address the logical relevance of the evidence” while
the third prong “ensures that the evidence is legally . . . relevant.” McDonald,
59 M.J. at 429. The first prong of the Reynolds test asks us to determine if
the members could reasonably conclude that the “other act” occurred and that
the accused was the actor. Id; see also United States v. Dorsey, 38 M.J. 244,
246 (C.M.A. 1993) (“the standard for meeting [prong one] is quite low”). The
second prong can be said to ask whether the evidence sought is “probative of
a material issue other than character.” Id. (quoting Huddleston v. United
States, 485 U.S. 681, 686 (1988)). The third prong encapsulates the require-
ments of Mil. R. Evid. 403. With regard to this third prong, we note that a
military judge “enjoys wide discretion” in applying Mil. R. Evid. 403. United
States v. Tyndale, 56 M.J. 209, 215 (C.A.A.F. 2001) (citations omitted). Where
a military judge undertakes a Mil. R. Evid. 403 analysis, and states his rea-
soning for admitting a given piece of evidence, we will only reverse for a
“clear abuse of discretion.” Id. (citations omitted).
Appellant suggests that because the evidence does not establish with
greater certainty that he sexually assaulted a minor, there was no indication
of his age at the time of the prior act, and that his reference to another girl
was merely an “off-hand comment,” the evidence fails all three prongs of
Reynolds. 22 We disagree. Appellant’s own words that he had previously met
another girl “like [Sarah]” and that “the girl your age became pretty freaky”
were made during a graphic sexual discussion in which Appellant described
22 Appellant’s Brief at 30.
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sexual acts that he and Sarah might try, including “gagging,” “choking,” and
“anal.” 23 With this context in mind, the members could reasonably conclude
that the other act at issue occurred. Because the admissibility of an “other
act” under Mil. R. Evid. 404(b) does not depend on the criminality of that act,
any question regarding Appellant’s age at the time of that other act is less
consequential. On the other hand, under Mil. R. Evid. 414, where the act in
question must be a “prior offense of child molestation”—that is, a crime pun-
ishable under the UCMJ, other federal, or state law—Appellant’s age at the
time of any prior sexual activity with a girl “like Sarah” is far more rele-
vant. 24
We also agree with the military judge’s conclusions regarding prongs two
and three of Reynolds. Appellant claims that the lack of detail surrounding
the messages at issue deprive them of probative value as to his intent to have
sex with Sarah. However, in addition to their value to prove intent, these
messages demonstrate Appellant’s plan to normalize the sexual activity he
described in his conversation with Sarah, and tend to show that Appellant
had a clear knowledge of Sarah’s age. The messages are highly probative of
these relevant facts at issue and their probative value was not substantially
outweighed by any danger of unfair prejudice, especially in light of the mili-
tary judge’s limiting instruction. 25 The military judge properly applied and
articulated the Reynolds test, his logic was sound, he provided the members
with an appropriate limiting instruction, and thus we find no abuse of discre-
tion.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we find the approved findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights occurred.
23 Pros. Ex. 3 at 5-6.
24 Though the military judge concluded that the evidence would have supported
the members reasonably concluding that a prior act of child molestation occurred, he
ultimately found that the probative value of the messages as evidence of propensity
was outweighed by the danger of unfair prejudice.
25 R. at 641. The military judge instructed the members that they may consider
evidence that Appellant engaged in a prior sexual relationship with a 14-year-old girl
only for its tendency, if any, to prove plan, knowledge, or intent. He instructed the
members that they may not consider the evidence for any other purpose, including
propensity.
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UCMJ arts. 59, 66. The findings and sentence as approved by the convening
authority are AFFIRMED. 26
Judge LAWRENCE and Judge STEWART concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
26 We note that this decision is issued 17 days after the Moreno III date of 10 July
2020. In assessing whether the total processing time violated Appellant’s Due Pro-
cess right to speedy review of his court-martial, we consider the four factors the
Court of Appeals for the Armed Forces identified in United States v. Moreno, 63 M.J.
129 (C.A.A.F. 2006): (1) the length of delay; (2) the reasons for the delay; (3) the
Appellant’s assertion of his right to a timely review; and (4) prejudice to the appel-
lant. The length of the delay is small and was attributable in part to the authoring
judge’s temporary reassignment outside the continental United States for 45 days.
Appellant remains in confinement, has not asserted his right to a timely review, and
we assess that he has not been prejudiced by this delay. Therefore, we find no viola-
tion of Appellant’s Due Process rights.
12