UNITED STATES, Appellee
MCDONALD, Mess Management
Specialist First Class
Crim. App. No. 200000635
CRAWFORD, C.J., delivered the opinion of the Court, in which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR (argued).
For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR (argued); Colonel Michael E. Finnie, USMC (on brief); Commander R. P. Taishoff, JAGC, USN, and Lieutenant Ross W. Weiland, JAGC, USNR.
Military Judge: R. J. Kreichelt
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief Judge CRAWFORD delivered the opinion of the Court.
to his pleas, Appellant was
convicted of two specifications of committing indecent liberties with a
one specification of indecent language toward the child, and one
of soliciting sex with a child, in violation of Article 134, Uniform
Military Justice, 10 U.S.C. § 934 (2000).
The convening authority approved the sentence of a dishonorable
discharge, five years’ confinement, and reduction to the lowest
grade. The Court of Criminal Appeals
affirmed the findings and sentence.
I. WHETHER THE LOWER COURT ERRED BY FINDING EVIDENCE OF UNCHARGED ACTS THAT APPELLANT ALLEGEDLY COMMITTED OVER TWENTY YEARS BEFORE TRIAL, WHEN HE WAS A CHILD, WAS ADMISSIBLE UNDER MILITARY RULE OF EVIDENCE 404(B) OVER DEFENSE OBJECTION.
II. WHETHER ADDITIONAL CHARGE I, WRONGFULLY SOLICITING A FEMALE UNDER SIXTEEN YEARS OF AGE AND NOT APPELLANT’S WIFE TO HAVE SEXUAL INTERCOURSE WITH HIM, SHOULD BE DISMISSED FOR FAILURE TO STATE AN OFFENSE.
We hold that the lower court erred by upholding the trial judge’s admission of evidence of uncharged acts of misconduct committed over 20 years before the trial, and therefore need not address Issue II.
According to the charges, Appellant began making sexual advances toward his adopted daughter, TM, when she was 12 years old. He gave her condoms and took pictures of her while she was taking a bath. Additionally, he gave her a story he downloaded from the Internet entitled, “Daddy and Me.” The story described sexual relations between a father and daughter. Later, Appellant gave TM a letter saying, “You’re beautiful,” “I want to be your first sexual experience,” and “Wouldn’t it be better if it was with someone who loved you and wouldn’t tell anybody . . . [or] would call you a whore afterwards . . . .” When he gave this to his daughter, she started crying. He immediately took it, ripped it up, and threw it away.
Appellant’s wife testified that she found a “story” called “Daddy and Me” in the children’s bathroom. The story described a sexual relationship between a father and his young daughter. When the daughter in the story began to reach puberty, her father became attracted to her. The daughter began asking her father about sex and became curious about engaging in sexual activity with him.
Appellant’s wife stopped reading the story because she became angry and then went to talk to Appellant. Appellant admitted to her that he was reading the story, but claimed that he accidentally left it in TM’s bathroom. Appellant’s wife said she was inclined to believe TM, who had told her that Appellant had purposefully placed the story where TM would see it.
In addition to admitting testimony regarding the story “Daddy and Me,” and the evidence concerning the condoms and picture-taking, the judge also admitted evidence that Appellant engaged in sexual contact with his stepsister, KM, 20 years before the trial while both were adolescents.
KM, who was 29 years old at the time of trial, testified about what happened when she was eight years old and Appellant was 13 years old. Sometimes Appellant would enter her room and expose himself, or come in touching himself. On some occasions, Appellant and KM were left alone in the house. He brought pornographic magazines with him, read them, and allowed her to see them, one of which included an illustrated story about a fairy masturbating a man. This conduct led to KM masturbating Appellant. Appellant also asked to see her body on several occasions. On one such occasion she complied, and Appellant attempted to insert his finger into her vagina, but she moved away.
Appellant was charged with photographing TM while she was taking a shower and providing TM with condoms. The charges alleged that these acts were done with the intent to gratify his sexual desires. The prosecutor offered KM’s testimony to show intent, plan, and scheme regarding his offenses with TM. See Military Rule of Evidence 404(b)[hereinafter M.R.E.]. The defense objected, but the judge overruled the objection, finding the evidence was probative of Appellant’s intent and plan.
Later, the judge instructed the members that KM’s testimony could only be considered on the issues of plan or design, or intent, as to Charge I specification 1, photographing TM while she was taking a shower, and specification 2, providing condoms to TM.
Appellant now argues that the uncharged acts do not show a plan. Appellant further contends that the uncharged acts are not probative of Appellant’s intent, because the acts were committed 20 years ago, are not similar to the charged acts, and were committed when he was only a child. Appellant also asserts that even if the evidence was found to be relevant, the probative value of the evidence is substantially outweighed by its prejudicial nature. Based upon these concerns, Appellant argues that the uncharged acts were introduced only to establish his propensity for similar acts, not for a valid purpose under M.R.E. 404(b). The Government counters by arguing that the acts are admissible to show a plan or design by Appellant. Moreover, the Government also argues, and the lower court held, that even if there was error in admitting the evidence, it was harmless. The evidence of guilt included Appellant’s written pretrial statement, his oral admissions to his wife and mother, and TM’s testimony corroborated in part by Dr. True and TM’s brother. The defense presented no evidence.
This case concerns evidence of uncharged misconduct, or “other acts” evidence, and the application of the “relevance rules of evidence.” M.R.E.s 401, 403, and 404(b). These rules are virtually identical to the Federal Rules of Evidence [hereinafter Fed.R.Evid.]. M.R.E. 401 provides that to be admitted, evidence must be logically relevant, by tending “to make the existence of any fact . . . more probable or less probable than it would be without the evidence.” This Court has discussed at length the admission of “other acts” evidence under M.R.E. 404(b), just as the Supreme Court has discussed the federal analog, Fed.R.Evid. 404(b). Over the years, we have relied upon the three-part test in United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989), which has the following elements:
1. Does the evidence reasonably support a finding by the court members 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?
3. Is the “probative value . . . substantially outweighed by the danger of unfair prejudice”?
first prong of the Reynolds test
tracks the Supreme Court’s holding in Huddleston that “Rule
404(b). . . evidence is relevant only if the
jury can reasonably
conclude that the act occurred and that the defendant was the actor.”
the third prong of Reynolds
mirrors Huddleston’s discussion of the danger of undue
which the Supreme Court stated, “The House made clear that the version
404(b) which became law was intended to ‘place greater emphasis on
admissibility than did the final Court version.’” 485
The Senate echoed this theme: “[T]he use of
the discretionary word ‘may’ with respect to
the admissibility of evidence of crimes, wrongs, or other acts is not intended to confer any arbitrary discretion on the trial judge.” Thus, Congress was not nearly so concerned with the potential prejudicial effect of Rule 404(b) evidence as it was with ensuring that restrictions would not be placed on the admission of such evidence.
military judge found, and the court
below agreed, that the evidence was logically relevant both as to
and “intent.” McDonald, 57 M.J. at 755-56. We
disagree. Applying the second prong of Reynolds,
we hold that the evidence of Appellant’s uncharged acts was not
logically relevant to show either a common plan or Appellant’s intent. See, e.g., United States v. Humpherys, 57 M.J. 83, 90-91 (C.A.A.F. 2002)(noting that the moving party must satisfy all
for the evidence to be admissible). A
military judge’s decision to admit or exclude evidence is reviewed
abuse of discretion standard.
A. The Common Plan Theory
Reynolds’ second prong, the common plan analysis considers
uncharged acts in question establish a “plan” of which the charged act
additional manifestation, or whether the acts merely share some common
B. The Intent Theory
to intent, we consider whether Appellant’s state of mind in the
both the charged and uncharged acts was sufficiently similar to make
evidence of the prior acts relevant on the intent element of the
offenses. Tanksley, 54
M.J. at 176-77;
C. Effect of the Error
concluded that the military judge abused his discretion in admitting
evidence of Appellant’s uncharged acts, we hold that this error was
and therefore merits reversal. Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2000) (“A finding or sentence of
may not be held incorrect on the ground of an error law unless the
materially prejudices the substantial rights of the accused.”). In evaluating whether erroneous admission of
government evidence is harmless, this Court uses a four part test,
(1) the strength of the Government’s case, (2) the strength of the
case, (3) the materiality of the evidence in question, and (4) the
the evidence in question.”
Government had a strong case that Appellant had taken the photographs
TM the condoms; however, under both specifications 1 and 2 of Charge I,
was required to prove beyond a reasonable doubt that Appellant had
photographs and given TM the condoms “with the intent to . . . gratify
sexual desires.” Manual for
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing is authorized.
1 Manual for