UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                       CAMPANELLA, SALUSSOLIA, and FLEMING
                              Appellate Military Judges

                            UNITED STATES, Appellant
                                          v.
                          Specialist RICKY R. RODRIGUEZ
                            United States Army, Appellee

                                   ARMY MISC 20170528

                Headquarters, Fires Center of Excellence and Fort Sill
                          J. Harper Cook, Military Judge
          Lieutenant Colonel Philip M. Staten, Acting Staff Judge Advocate


For Appellant: Colonel Tania M. Martin, JA; Captain Samuel E. Landes, JA; Captain
Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on brief); Colonel Tania M.
Martin, JA; Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on
brief in response to specified issues).

For Appellee: Colonel Mary J. Bradley, JA; Major Brendan R. Cronin, JA; Captain
Patrick G. Hoffman, JA (on brief and brief in response to specified issues).


                                         13 March 2018

                 -------------------------------------------------------------------
                  SUMMARY DISPOSITION AND ACTION ON APPEAL
                    BY THE UNITED STATES FILED PURSUANT TO
                 ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                 -------------------------------------------------------------------

SALUSSOLIA, Judge:

    In this case, we consider an appeal by the United States, under Article 62,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2012).

     Appellee stands charged with sexual assault and abusive sexual contact in
violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012 & Supp. 2017). In broad
terms, the government alleges that on or about 7 June 2016, appellee committed
sexual acts by touching the breast, over the clothing, of Ms. BB and digitally
penetrating her vulva with his finger. Ms. BB states she was awake the entire time
he committed these acts and did not consent. At trial, the government seeks to
introduce evidence of uncharged misconduct pursuant to Military Rules of Evidence
(Mil. R. Evid.) 412(b) and 404(b). The evidence of uncharged misconduct includes
RODRIGUEZ—ARMY MISC 20170528

a digital photograph obtained from appellee’s cell phone. * The photograph depicted
appellee allegedly touching Ms. BB’s exposed breast while she slept on or about 5
June 2016.

     At trial, appellee moved the court to suppress the photograph alleging the
search of appellant’s phone was unlawful. The military judge granted appellee’s
motion to suppress. The government filed a timely appeal with this court pursuant
to Article 62(a)(1)(B), UCMJ, contending the military judge abused his discretion in
excluding the photograph.

     Pursuant to Article 62(a)(1)(B), UCMJ, the court will determine it has
jurisdiction where two threshold jurisdictional requirements are met. We must be
satisfied that: 1) the military judge’s ruling was a ruling excluding evidence; and 2)
the evidence excluded is substantial proof of a fact material in the proceeding.
United States v. Jacobsen, 

, 85 (C.A.A.F. 2017).

       Having considered the record and briefs submitted by the parties, we hold we
lack jurisdiction to consider the government’s appeal. Although, the first threshold
jurisdictional requirement has been met because the military judge’s decision to
grant appellee’s motion to suppress constitutes a ruling excluding evidence under
Article 62(a)(1)(B), UCMJ, the second requirement has not been met.

     The government argues that the second threshold requirement has been met.
First, the government asserts the excluded photograph is vital to the government’s
case because it explains other evidence of uncharged misconduct. The evidence of
other uncharged misconduct consists of conclusions contained in a DNA report.
Second, the government asserts the requirement has been met because the
photograph is substantial proof establishing Ms. BB did not consent to the charged
misconduct. We disagree.

     The conclusions in the DNA report evidencing uncharged misconduct are not a
material fact to the charged misconduct. Thus, even assuming the photograph
corroborates the report, it is not substantial proof of a material fact. As to the
government’s second basis, while Ms. BB’s consent is at issue in this case and
arguably a material fact as it pertains to the charged misconduct, the photograph is
not substantial proof of this material fact because the photograph evidences alleged
misconduct occurring two days prior and under very different circumstances.



*
 The government also seeks to introduce portions of a DNA report evidencing
semen from appellee on Ms. BB’s undergarment and testimony of Ms. BB, both of
which the government believes evidences uncharged misconduct occurring on or
about 5 June 2016.
                                        2
RODRIGUEZ—ARMY MISC 20170528

     Because the second threshold jurisdictional requirement has not been satisfied,
we lack jurisdiction to consider this appeal. Accordingly, the appeal by the United
States under Article 62, UCMJ is DENIED. The stay in the proceedings, effective 2
October 2017, of appellee’s court-martial at Fort Sill, Oklahoma is lifted and the
court-martial is permitted to proceed. See Rule for Courts-Martial 908(c)(3).

      Senior Judge CAMPANELLA and Judge FLEMING concur.
                                      FOR
                                      FORTHE
                                          THECOURT:
                                              COURT:

.

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




                                          3