For Appellant: Major Stephen P. Kelly (argued); Lieutenant
Colonel Jeanne M. Rueth and Captain Tishlyn Taylor (on brief); Lieutenant Colonel Ray T. Blank, Jr.

For Appellee: Captain James C. Fraser (argued); Colonel
Anthony P. Dattilo, Lieutenant Colonel Ronald A. Rodgers,
and Captain Mitchel Neurock, USAFR (on brief); Captain Steven D. Dubriske.

Military Judge: John J. Powers
 
 

 
Chief Judge CRAWFORD announced the judgment of the Court and delivered an opinion in which Senior Judge COX joined.

Appellant was tried by a general court-martial from March 26 to 29, 1997, at Kadena Air Base, Japan. He was convicted in accordance with his pleas, of indecent assault on Airman First Class (A1C) P in October 1996; and contrary to his pleas, of indecent assault¹ on A1C D in April 1996; housebreaking² of the dormitory room of A1C P in October 1996; and assault consummated by a battery³ on A1C D in August 1996, in violation of Articles 134, 130, and 128, Uniform Code of Military Justice, 10 USC §§ 934, 930, and 928, respectively. A panel composed of officer members sentenced him to a bad-conduct discharge, confinement for 6 months, 3 months’ hard labor without confinement, and reduction to the grade of E-3. The convening authority approved the sentence except for hard labor without confinement exceeding one month. The Court of Criminal Appeals affirmed the findings and sentence. 48 MJ 896 (1998). We review the following issues:

The constitutionality of a statute is a question of law; therefore, the standard of review is de novo. United States v. Brown, 25 F.3d 307, 308 (6^th Cir. 1994). Appellant claims that Mil. R. Evid. 413 violates both the Due Process and Equal Protection Clauses of the United States Constitution. With regard to his due process claim, appellant argues that the historical proscription against use of propensity evidence has created a "fundamental" right against admission of such evidence. As to the equal protection claim, appellant argues that the standard to be applied is strict scrutiny and that the Government is unable to show a compelling interest in its differing treatment of sexual offenders versus others who engage in criminal activity. The Government disagrees.

In this case the Government sought to use evidence pertaining to the indecent assault on A1C P in October 1996 as propensity evidence to prove that appellant also indecently assaulted A1C D in April 1996. Trial defense counsel conceded that evidence of the assault on A1C P would properly come in under Mil.R.Evid. 404(b) to prove intent with respect to the charge of housebreaking of AlC P’s dormitory room. The defense made a motion in limine, however, to protest admission of such evidence to prove propensity and to request that the military judge "preclud[e] trial counsel and any Government witness from testifying about, mentioning or otherwise alluding to the proffered evidence."

Trial counsel asserted that the propensity evidence was admissible in order to prove the accused’s intent to sexually assault A1C P after breaking into her room. Noting that the members would already know of the assault by virtue of appellant’s guilty plea to that assault, trial counsel reasoned that "Rule 403 should not exclude the evidence because it’s going to be in front of the members anyway, hence any prejudicial impact is going to be there, no matter what."

Trial counsel supported its admission to prove propensity under Rule 413, noting the misconduct evidence was charged, so it was not subject to Mil.R.Evid. 404(b).

The military judge determined that the alleged assault against A1C P could be admitted for the purpose of demonstrating appellant’s propensity to commit similar sex offenses as charged. The following findings of fact and law were made:

Prior to Rule 413,⁴ character evidence could be presented by means of opinion or reputation evidence. The then-Rules of Evidence specifically precluded character evidence as circumstantial proof of conduct. However, Congress approved Fed. R. Evid. 413-415 as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Title XXXII, § 320935(a). Rule 413(a) reads:

Speaking on the House floor, Congresswoman Susan Molinari stated: "The new rules will supersede in sex offense cases the restrictive aspects of Federal Rule of Evidence 404(b)." Contrasted to Rule 404(b)’s "general prohibition" against propensity evidence, "the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing ‘on any matter to which it is relevant.’" See Fed.R.Evid. 413(a).

Thus, the legislative history shows that Rule 413 not only creates an exception to Rule 404(b)’s general prohibition against the use of a defendant’s propensity to commit crimes but also it is subject to Rule 403.

While some argue that character evidence may be overestimated by jurors,⁵ the new rules allow the public to accept jury verdicts and controls to some extent the legitimacy and acceptability of acquittals in criminal cases. Jack B. Weinstein, Some Difficulties in Devising Rules for Determining Truth in Judicial Trials, 66 Colum. L. Rev. 223, 225-27 (1966); David P. Bryden and Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 Minn. L. Rev. 529, 543 (1994); cf. Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harv. L. Rev. 1357, 1368 (1985)(arguing that the need "to promote public acceptance of verdicts" can better explain many evidentiary rules). This fear does not apply equally to the military because panel members are selected based on their "age, education, training, experience, length of service, and judicial temperament." Art. 25(d)(2), UCMJ, 10 USC § 825(d)(2).

Just as the Supreme Court has recognized, the judiciary is not a rulemaking body. The new Rules reflect a political decision that there should be a greater range of admissible evidence in criminal and civil actions involving specific sexual assault crimes. The scientific community is divided on the question of recidivism for sexual offenders. Some have found a rate of recidivism is very high for sexual offenders⁶ while some have found the rate lower for rapists than for burglars, drug offenders, or robbers.⁷ Even with this decision, Congress enacted the Rules. Thus, unless these Rules are unconstitutional, we are bound by the Rules.

Appellant makes a facial challenge to the Rule and challenges it as applied. The presumption is that a rule of evidence is constitutional unless lack of constitutionality is clearly and unmistakably shown. National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998) ("Facial invalidation ‘is, manifestly, strong medicine’ that ‘has been employed by the Court sparingly and only as a last resort.’"); United States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."). Appellant must show that Rule 413 "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37, 43-45 (1996) (examining historical practices on due process challenges). The question is whether "this type of evidence [Rule 413] is so extremely unfair that its admission violates ‘fundamental conceptions of justice.’" Dowling v. United States, 493 U.S. 342, 352, 353 (1990)(evidence of acquittal admissible because the evidence was "at least circumstantially valuable in proving petitioner’s guilt").

The Supreme Court has "defined the category of infractions that violate ‘fundamental fairness’ very narrowly." Id. at 352. As the Court explained:

As noted by the Supreme Court, we must recognize, as reinforced in United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261 (1998), that the President has the ultimate authority for the enactment of the Rules of Evidence that this Court determines satisfy the Constitution.

The Federal courts examining the new rules have uniformly upheld the rules while emphasizing the importance of a Rule 403 balancing test. United States v. Mound, 149 F.3d 799, 800 (8^th Cir. 1998) ("In considering evidence offered under Rules 413, 414, and 415, a trial court must still apply Rule 403, though in such a way as ‘to allow [the new rules their] intended effect.’"), cert. denied, 525 U.S. 1089 (1999); United States v. Castillo, 140 F.3d 874, 882 (10^th Cir. 1998) (the "Rule 403 balancing test applies to evidence admitted under Rule 414"); United States v. Larson, 112 F.3d 600, 604-05 (2^d Cir. 1997)("We view Rule 403 analysis in connection with evidence offered under Rule 414 to be consistent with Congress’s intent...."); United States v. Lawrence, 1999 U.S. App. LEXIS 16967 at 5 (6^th Cir. 1999)("Rule 403...is applicable in the Rule 414 context"). But the courts of appeals do not require the trial judge to make specific findings of fact as to Rules 403 and 413. See, e.g., Castillo, 140 F.3d at 884 (The "district court need not make detailed factual findings in support of its Rule 403 determination. However, ‘[b]ecause of the sensitive nature of the balancing test in these cases, it will be particularly important for a district court to fully evaluate the proffered Rule 413 ... evidence and make a clear record of the reasoning behind its findings.’"). The Rule 403 balancing test should be applied "[i]n light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible[.]" United States v. LeCompte, 131 F.3d 767, 769 (8^th Cir. 1997).

In LeCompte, the Court held on government appeal that it was reversible error to exclude evidence of prior acts of child molestation. The incidents were separated by 8 years and the trial judge excluded the evidence. On appeal the Court reversed, stating that "we think the District Court erred in its assessment that the probative value of [the] testimony was substantially outweighed by the danger of unfair prejudice." Id. at 769. The prior charged acts were substantially similar, and the lapse of time was less significant than might have appeared. As to the danger of unfair prejudice and propensity evidence, "it is precisely such holdings as that [by the District Court] that Congress intended to overrule." Id. at 770.

Before admitting evidence under Rule 413, three threshold findings are required:

l. The accused is charged with an offense of sexual assault -- Mil.R.Evid. 413(a);

2. "[T]he evidence proffered is ‘evidence of the defendant’s commission of another offense of ... sexual assault’"; and

3. The evidence is relevant under Rules 401 and 402. United States v. Guardia, 135 F.3d 1326, 1328 (10^th Cir. 1998).

Additionally, the Court must apply a balancing test under Rule 403. Some of the factors to be examined when conducting a balancing test are as follows:

Mr. David J. Karp, a drafter of the Rules, has stated: "It is not expected, however, that evidence admissible pursuant to proposed Rules 413-15 would often be excluded on the basis of Rule 403. Rather, the effect of the new rules is to put evidence of uncharged offenses in sexual assault ... cases on the same footing as other types of evidence that are not subject to a special exclusionary rule. The presumption is in favor of admission." 70 Chicago-Kent L. Rev. 15, 19 (1994).⁸ "The rule excluding uncharged misconduct is contrary to the trend in evidence law towards free proof." 78 Minn. L. Rev. at 561. Additionally, "[j]urists and scholars alike increasingly have agreed ... that technical rules of evidence designed to prevent factfinders from making mistakes are, at best, more trouble than they are worth." Id.; William L. Twining, Theories of Evidence: Bentham and Wigmore (1985)(describing advocacy of free proof and its current impact).

In addition to the Rule 403 balancing test, the rules also protect (1) by limiting the uncharged misconduct to serious offenses; (2) by requiring the evidence to meet the relevance requirements of Rules 401-402 and enforced through Rule 104(b); (3) by requiring the judge to conclude that the jury could find by preponderance of the evidence

that the offenses occurred, Huddleston v. United States, 485 U.S. 681, 689-90 (1988); and (4) by the notice requirement in Rule 413(b) which ensures that admission of the evidence does not threaten the presumption of innocence.

We next consider the challenge to Rule 413 under the Equal Protection Clause. At trial the defense only raised a due process challenge in the pleadings, but the judge did not rule on any constitutional claim. However, both the due process and the equal protection challenges were presented to the Court of Criminal Appeals. Thus, the constitutional challenge based on equal protection is properly before us. See Taylor v. Illinois, 484 U.S. 400, 406 n.9 (1988).

We conclude that the reasoning in Mound, 149 F.3d at 801 and Castillo, 140 F.3d at 883 provides ample justification for rejecting the equal protection claim and we do so now.

This is the type of case in which this evidence was designed to be admitted. The victim was too traumatized, intimidated, and humiliated to file a complaint in the first instance. It was not until AlC P filed her complaint that AlC D followed with hers. As the Supreme Court observed in Huddleston: "[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts." 485 U.S. at 691.

The direct evidence in this case came from the testimony of A1C D subject to examination by both sides and the members. This evidence formed the basis for the charges against the appellant. The incidents were recent and detailed. As with A1C P, A1C D was a contemporary of the appellant and worked closely together in the dental clinic. There is no question as to the identity of appellant. A1C D’s failure to report and her maintaining of normal relationship with appellant until after the incident with A1C P was put in context by the testimony of Dr. Greene. Additionally, the interrelatedness of the evidence concerning A1C D and A1C P did not consume more time than otherwise needed for this trial because such evidence was needed to prove the charges.

We hold that the Rule is constitutional and that the judge did not abuse his discretion in admitting the evidence concerning A1C D.

A1C D testified that she was sexually abused by her stepfather and that her mother refused to report the allegation. A1C D stated as a result of that experience she was reluctant to report sexual abuse. Normally, she dealt with abuse by pretending it really didn’t happen.

Defense counsel highlighted on cross-examination that A1C D initially failed to report the sexual attack on April 26, 1996, even though she had previously reported an unrelated incident of sexual harassment. Likewise, it was brought out that A1C D enjoyed a normal interaction with appellant. Her failure to report and relationship with appellant were brought out to show that her actions were inconsistent with the alleged sexual assault.

After this cross-examination, Dr. Greene testified that the victim’s reactions were "consistent" with other victims of child abuse. Because of her prior abuse, "she reported what we call ‘emotional anesthesia’ or an ability, a decreased emotional reactivity, decreased involvement in her emotional life." The prior abuse had an impact upon her "affective presentation." Dr. Greene explained: "Very often, when people have been exposed to traumatic events in their lives, especially children and adolescents, what you’ll find is a tendency to manage or attempt to better manage their negative emotions by not dealing with them."

Dr. Greene also testified as to the impact on the victim from her mother’s failure to take action. Her mother’s reaction to her stepfather and the victim’s allegations at that time led her to distrust other individuals. Rather than testifying about rape victims in general, Dr. Greene testified to the reactions of the victim who had been subject to child abuse. Her reaction was not necessarily common, but it "certainly [was] not unexpected."

Dr. Greene was well aware of his role. When the defense tried to open the door by asking him if her responses were "consistent with the possibility that rape occurred. Isn’t that what you were testifying about?," Dr. Greene responded, "I think that for me to do that [respond as indicated], I would be usurping the responsibility of the jury." The judge told counsel that Dr. Greene could not testify "about credibility" but he could "testify concerning patterns of consistency between the traits of victims and compare those with patterns in the victim’s story...." When there was a possibility of inadmissible testimony, the judge stepped in to exclude inadmissible evidence. Under the circumstances of this case we hold that Dr. Greene did not impermissibly bolster the credibility of A1C D.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

FOOTNOTES:

¹ As a lesser-included offense of rape.

² He pleaded guilty to the lesser-included offense of unlawful entry.

³ As a lesser-included offense of indecent assault.

⁴ Both the Federal Rule and the Military Rule are virtually the same.

⁵ This rule has resulted in a substantial amount of commentary, much of it favorable towards the Rule. Roger C. Park, David P. Leonard & Steven H. Goldberg, Evidence Law 150 n. 96 (1998).

⁶ Joseph A. Aluise, Evidence of Prior Sexual Misconduct in Sexual Assault and Child Molestation Proceedings: Did Congress Err in Passing Federal Rules of Evidence 413, 414, and 415?, 14 J.L. & Pol. 153 (1998).

⁷See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 Minn. L. Rev. 529, 572 (1994) (citing statistics from the Department of Justice).

⁸ Ms. Molinari said that Mr. Karp’s article "provided a detailed account of the views of the legislative sponsors and the administration concerning the proposed reform, and should also be considered an authoritative part of its legislative history." 140 Cong. Rec. H8991.

SULLIVAN, J. (concurring in part and in the result):

I would hold that Fed. R. Evid. 413, as incorporated by Mil. R. Evid. 1102, was applicable to appellant’s court-martial in March of 1997 and it was constitutional. See United States v. Enjady, 134 F.3d 1427, 1430 (10^th Cir. 1998) (holding that Fed. R. Evid. 413 is facially constitutional because Fed. R. Evid. 403 balancing test applies), citing Dowling v. United States, 493 U.S. 342, 352-53 (1990); accord United States v. Castillo, 140 F.3d 874, 881-83 (10^th Cir. 1998). However, I agree with Judge Gierke in his view that evidence of conduct that occurs after the charged offense but before the trial is objectionable under Mil. R. Evid. 403. See United States v. Matthews, No.99-0487, ___ MJ ___, ___ ( ) (Sullivan, J., concurring in the result). ^* Nevertheless, I would find no plain error here. See Article 59(a), UCMJ, 10 USC § 859(a).

FOOTNOTE:

^* My concurrence in Matthews, which rested on Mil. R. Evid. 403's protection against undue prejudice, is legally distinct from other cases in which this Court has dealt with such evidence on grounds other than undue prejudice. E.g., United States v. Caniete, 28 MJ 426, 427-28 (1989); United States v. Dorsey, 38 MJ 244, 247 (1993); United States v. Colon-Angueira, 16 MJ 20, 25 (1983), citing J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 399 (3d ed. 1940).

EFFRON, Judge (concurring in part and in the result):

I agree with the principal opinion's treatment of Issue I.

Issue II, as framed by appellant, is a facial challenge to Rule 413. I agree that the constitutionality of Rule 413 may be sustained by applying "the safeguards embodied in Rule 403[.]" United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998); see also id. (setting forth specific factors that must be considered under Rule 403 in a sexual assault case); and United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998) (although the trial court is not required to make detailed findings of fact under Rule 403, it is important that the court "fully evaluate the proffered Rule 413 evidence and make a clear record of the reasoning behind its findings").

GIERKE, Judge (concurring in part and dissenting in part):

I agree with the majority’s decision regarding Issue I. I disagree with its decision on Issue II.

At the outset, I decline to join the majority’s advocacy of "free proof." ___ MJ at (16). Our charter is to interpret and apply Rule 413, not to justify the wisdom of its promulgation.

I disagree with the majority’s conclusion that this case "is the type of case in which this evidence was designed to be admitted." ___ MJ at (17). I have grave doubts about the admissibility of the indecent assault on A1C P to prove the offenses against A1C D. The indecent assault on A1C P occurred on October 18, 1996, well after the offenses against A1C D. The offenses against A1C D were alleged to have occurred on April 26, 1996, 6 months before the indecent assault on A1C P, and during August 1996, 2 months before the indecent assault on A1C P.

While Rule 413 does not specifically set out a temporal requirement, legislative and scholarly commentators strongly suggest that an offense offered as evidence of propensity must precede the offense that the evidence is offered to prove. A week after the evidentiary changes were adopted, Senator Robert Dole, a co-sponsor of the changes, described them on the Senate floor as "establishing a general presumption that evidence of past similar offenses in sexual assault and child molestation cases is admissible at trial." 140 Cong. Rec. S.12990 (daily ed. September 20, 1994) (emphasis added); see also S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 616-18 (4^th ed. 1997), referring repeatedly to "history of similar misconduct," "past similar transgressions," "past sexual offense evidence," "and "past sexual offenses." In the absence of persuasive federal authority to the contrary, I conclude that Rule 413 does not authorize admission of evidence of sexual offenses committed after the charged offense. Accordingly, I would hold that the evidence was not admissible as propensity evidence under Rule 413.

Turning to the issue of prejudice, I am not convinced that the error was harmless. At trial the defense conceded that the evidence of appellant’s indecent assault on A1C P was admissible under Mil. R. Evid. 404(b), to prove his intent with respect to the alleged housebreaking. The defense, however, contested admission of the evidence as propensity evidence under Rule 413. After the military judge overruled the defense objections, he compounded the error by permitting trial counsel to argue propensity and instructing the members on the use of the evidence to show propensity.

The credibility of A1C D’s testimony was seriously undermined at trial. The court members did not believe her testimony entirely, as evidenced by their findings. They found appellant not guilty of raping A1C D (Charge I and its specification) but guilty only of indecent assault, and not guilty of an indecent assault (specification 1 of Charge III) on A1C D, but guilty only of an assault and battery. Under these circumstances, I have "grave doubt" whether the error was harmless. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248 (1946). Accordingly, I would set aside the findings of guilty of indecent assault (Charge I and its specification) and assault and battery (specification 1 of Charge III), and authorize a rehearing on those offenses and the sentence.

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