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****CORRECTED COPY - DESTROY ALL OTHERS****
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
,_,__n`._,_,...____`v.__.._________.___ ________._._____ _.,_
Airman First Class JAMES M. KERNS
United States Air Force
ACM 38793
_ M.J. _
PUBLISHED oPINIoN oF THE CoURT
22 Septemb~er 2016`
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Sentence adjudged 4 Decernber 2014 by GCM convened at Seymour-
Johnson Air Force Base, North Carolina. Military Judge: Wendy L.
Sherman.
Approved sentence: Dishonorable discharge, confinement for 4 years,
_ total forfeiture of pay and allowances, and reduction to E-l.
Appellate C'ounsel for Appellant: Major Mich`ael A. Schrarna.
Appellate Counsel for the United States: Colonel Laura J. Megan-
Posch; Maj or Jererny D. Gehman; Maj or Meredith L. Steer; and Gerald
R. Bruce, Esquire.
Before
SANTORO, SPERANZA, and HARDING
Appellate Military Judges
PUBLISHED OPINION OF THE COURT
SANTORO_, Judge:
Officer members sitting as a general court-martial convicted Appellant, contrary to
his pleas, of violating a no-contact order on divers occasions, striking his Wife With his iist,
strangling her vvith a phone charger cable and his hands, throwing her to the ground,
slamming her head into the iloor, pulling her-hair, covering her mouth With his hands,
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forcing her legs apart, killing her cat, and threatening that he would burn down their home,
in violation of Articles 92, 128, and 134, UCl\/IJ, 10 U.S.C. §§ 892, 928, 934. Appellant
was found not guilty of three specifications of rape, two specifications of sexual assault
(charged as alternatives to the rape specifications), two specifications of aggravated assault,
one specification of Simple assault, and an additional specification of communicating
`“"_‘" _ _’ "another'threatto SK._Th'e"'adjudged"and‘approved sentence was"a‘dishonorable'discharg g "'_ ""“_‘ “"
confinement for four years, total forfeiture of pay and allowances, and reduction to E-l.
Appellant raises six assignments of err`or: (l) the staff judge advocate erred in the
post-trial recommendation to the convening authority; (2) the sentence is inappropriately
severe; (3) the findings of` guilty are factually insufficient; (4) the military judge erred in 1
denying the motion to suppress Appellant’s statements to investigators; (5) the court-
martial lacked subject-matter jurisdiction over an Article 134, UCMJ, offense; and (6) the
military judge erroneously denied a motion to sever. We find that the military judge abused .
her discretion in denying Appellant’s motion to suppress ; the court-martial had jurisdiction
over the Article 134, UCMJ, offense at'issue; and the military judge did not err in denying _
the motion to sever. The remaining assignments of error are rendered moot by our L
resolution of the suppression issue.
Background
Appellant joined the Air Force in December 2012. Five months later~, in May 2013,
he and SK married after having dated for approximately two weeks. Appellant, SK, and
SK’s infant daughter moved into base housing shortly thereafter.
Later in 2013, SK learned that Appellant had been frequenting online dating sites
and exchanging e-mails with women she did not know. SK suggested divorce. Appellant
became angry and told SK that divorce “was not an option.”'
Their relationship continued to deteriorate. On 14 December 2013, Appellant and
SK argued about the location of a cellular telephone SK testified that Appellant blocked
her from leaving their bedroom, threw her onto the bed, slammed her head against the wall,
and repeatedly punched her in the torso. A houseguest who was present during the
altercation called 9-l-l. Military and civilian law enforcement responded Civilian police
arrested Appellant and SK, both of whom spent three days in jail. Civilian prosecutors ‘
filed criminal charges against both individuals but later dropped all charges t
The relationship between Appellant and SK improved for a short time but ultimately
devolved into acrimony. SK testified that on one occasion after returning home from
visiting a friend, she lay in bed next to Appellant watching a movie when, without warning,
he grabbed and choked her with his hands and then with a cellular telephone charging
cable. He then grabbed SK by the hair, slammed her face into the floor, and shoved her j
into a closet. When SK tried to flee, Appellant grabbed her and prevented her from leaving.
2 _ ACM 38793
Appellant also grabbed a knife, put it to his throat, and told SK he was going to kill himself.
SK testified that she was able to stop the assault by convincing Appellant that she loved
him and wanted to have sex with him.
SK reported the assault the following day, which led to Appellant’s first interview
sergeant and, later, his commander issued “no-contact” orders directing Appellant not to
communicate with SK.
Appellant was ordered to live in the dormitory so SK and her daughter could remain
in their home. SK, however, decided to take her daughter to Kentucky where they had
family. Appellant repeatedly contacted SK by telephone and text message and sent her
flowers, apologizing for his behavior and asking if they could “work things out.”
l When SK returned from Kentucky, she found Appellant waiting for her at their
home. He had placed a mattress on the living room floor and made a display of several
items from their wedding, including photographs and SK’s wedding dress. An argument
quickly ensued. Appellant told SK that after she left for Kentucky, he broke her eight-
week old kitten’s legs, snapped its neck “to put it out of its misery,” and threw it in the
trash. SK’s tears at hearing this further enraged Appellant, who choked her and covered
her mouth. ` »
As the argument progressed, Appellant told SK he wanted to have sex with her. She
testified that although she said “no,” Appellant forced her legs apart and lay on her,
' Eventually she allowed him to have sex with her, but when the sex ended quickly,
Appellant became angrier. He went to the garage and returned with a container of gasoline,
which he placed on the kitchen floor. He told SK he was going to set her and the house,
with her infant daughter in it, on fire. Appellant eventually left the residence and SK
reported the incident to law enforcement later that day.
Pursuant to Mil. R. Evid. 413, the Govemment offered testimony from AG. AG
attended high school with Appellant and testified that when she was 14 or 15 years old,
Appellant repeatedly raped and forcibly sodomized her during what was, at other times, a
consensual sexual relationship AG also testified that during one of the rapes, Appellant
physically restrained her with zip ties. AG reported the assaults to civilian law
enforcement She said the police talked her out of going forward with the case.
Additional facts necessary to resolve the assignments lof error are included below.
Dem`al of Motz'on to Suppress
Appellant argues that the military judge erred when she denied his motion to
v suppress statements he made to investigators We review a military judge’s denial of a
3 ACM 3 8793
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