UNITED
STATES, Appellee
v.
Brian C.
MCDONALD, Mess Management
Specialist
First Class
No.
03-0211
Crim. App.
No.
200000635
Argued
Decided
CRAWFORD, C.J., delivered the opinion of
the Court, in which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
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.
Contrary
to his pleas, Appellant was
convicted of two specifications of committing indecent liberties with a
child,
one specification of indecent language toward the child, and one
specification
of soliciting sex with a child, in violation of Article 134, Uniform
Code of
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
enlisted
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.
FACTS
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.
DISCUSSION
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”?
The
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.”
Finally,
the third prong of Reynolds
mirrors Huddleston’s discussion of the danger of undue
prejudice, in
which the Supreme Court stated, “The House made clear that the version
of Rule
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.
The
military judge found, and the court
below agreed, that the evidence was logically relevant both as to
“common plan”
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
three prongs
for the evidence to be admissible). A
military judge’s decision to admit or exclude evidence is reviewed
under an
abuse of discretion standard.
A. The Common
Plan Theory
Under
Reynolds’ second prong, the common plan analysis considers
whether the
uncharged acts in question establish a “plan” of which the charged act
is an
additional manifestation, or whether the acts merely share some common
elements.
B. The Intent
Theory
As
to intent, we consider whether Appellant’s state of mind in the
commission of
both the charged and uncharged acts was sufficiently similar to make
the
evidence of the prior acts relevant on the intent element of the
charged
offenses. Tanksley, 54
M.J. at 176-77;
C. Effect of
the Error
Having
concluded that the military judge abused his discretion in admitting
the
evidence of Appellant’s uncharged acts, we hold that this error was
prejudicial
and therefore merits reversal. Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2000) (“A finding or sentence of
court-martial
may not be held incorrect on the ground of an error law unless the
error
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,
“weighing:
(1) the strength of the Government’s case, (2) the strength of the
defense
case, (3) the materiality of the evidence in question, and (4) the
quality of
the evidence in question.”
The
Government had a strong case that Appellant had taken the photographs
and given
TM the condoms; however, under both specifications 1 and 2 of Charge I,
the Government
was required to prove beyond a reasonable doubt that Appellant had
taken the
photographs and given TM the condoms “with the intent to . . . gratify
[his]
sexual desires.” Manual for
Courts-Martial,
DECISION
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
Courts-Martial,