IN THE CASE OF
UNITED STATES, Appellee
Bartholomew M. BERRY, Sergeant
Crim. App. No. 20000960
ERDMANN, J., delivered the opinion of the court, in which GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., filed a separate opinion concurring in the result.
For Appellant: Captain Charles A. Kuhfahl Jr. (argued); Colonel Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Sean S. Park (on brief); Colonel Mark Cremin.
For Appellee: Captain Michael D. Wallace (argued); Colonel Steven T. Salata and Major Natalie A. Kolb (on brief).
Military Judge: William T. Barto
This opinion is subject to editorial correction before final publication.
Judge ERDMANN delivered the opinion of the court.
entering a guilty plea to the lesser included offense of sodomy,
Bartholomew M. Berry was tried by a general court-martial on a number
offenses. Berry was convicted of the greater offense of
by force and without consent, making a false official statement,
indecent act with another, and fraternization, in violation of Articles
107, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
934 (2000), respectively.
issue before this court involves the admission of evidence of a prior
assault under Military Rule of Evidence (M.R.E.) 413. At trial,
We granted review of the Army court’s decision to determine whether the military judge erred in admitting LS’s testimony under M.R.E. 413. We find that although the testimony was relevant, the military judge erred in admitting it because he failed to do an adequate balancing test under M.R.E. 403 and that under a proper M.R.E. 403 balancing test, the testimony was inadmissible. We also find the error to be prejudicial.
testified to a different version of events. He stated that he
dizzy and very sick when they left the bar and that he threw up a
times when they got back to Berry’s residence. After lying on
next thing he
remembered was that
addition to the
two conflicting accounts of the evening, LS
testified at trial over the objections of
sought to have LS’s testimony admitted under M.R.E. 413, stating that
relevant to Sergeant
The military judge
The accused is charged with an offense of sexual assault . . . . The proffered evidence is evidence that the accused committed another act of or offense of sexual assault, and the evidence is relevant, under Military Rule of Evidence 401 and 402. The proffered evidence involves conduct that occurred over eight years ago.
The proffered evidence is similar to the charged misconduct because it involves taking advantage of a vulnerable victim. [LS] was, approximately, 6years old at the time of the alleged sexual assault by the accused, who, despite his own youth, is considered by the court to have acted upon someone of tender years who was unable to consent at the time.
[SGT T] was also, apparently, vulnerable in that he was apparently unconscious or sleep [sic], or experiencing periods of partial consciousness, based on the government’s proffered [sic] at the time of the alleged assault by the accused.
Both offenses involve homosexual fellatio performed by the accused on another; and this proffered evidence involves only a single act, potentially, established by a single witness. As such, the defense motion to exclude the testimony of [LS] is denied.
opening and closing statements, trial counsel referred to Berry’s acts
and reminded the members that the encounter could be considered
The Army court affirmed the ruling of the military judge that LS’s testimony was relevant under M.R.E. 401 and 402. Although the military judge did not articulate an M.R.E. 403 balancing test on the record, the Army court found that the military judge had conducted a balancing test. That conclusion was based on the factual findings made by the military judge and the arguments raised by the trial counsel regarding the factors that must be considered in an M.R.E. 403 balancing test. Because it found that the military judge had conducted the required balancing test, the Army court reviewed his ruling for abuse of discretion and found that he had not abused his discretion in admitting the testimony of LS under M.R.E. 413.
granted issue1 asks
whether the military judge erred in
admitting evidence of uncharged sexual acts between
M.R.E. 413 Threshold Requirements
This court has held that to admit evidence under M.R.E. 413, three threshold determinations must be made:
1. The accused is charged with an offense of sexual assault – [M.R.E.] 413(a);
2. “The evidence proffered is ‘evidence of the defendant’s commission of another offense of . . . sexual assault’”; and
evidence is relevant under [M.R.E.] 401 and 402.
Wright, 53 M.J. at 482.
judge noted, the first and second threshold requirements were met
evidence under M.R.E. 401 is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of
more probable or less probable than it would be without the evidence.”
The military judge found that “[t]he proffered evidence is
similar to the
charged misconduct because it involves taking advantage of a vulnerable
victim.” From strictly a propensity viewpoint, the evidence does
M.R.E. 403 Balancing Test
Once the evidence meets these threshold requirements, a military judge must apply the balancing test of M.R.E. 403 under which the testimony may be excluded if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members.” M.R.E. 403. In conducting the M.R.E. 403 balancing test a military judge should consider the following factors: the strength of the proof of the prior act; the probative weight of the evidence; the potential to present less prejudicial evidence; the possible distraction of the fact-finder; the time needed to prove the prior conduct; the temporal proximity of the prior event; the frequency of the acts; the presence of any intervening circumstances; and the relationship between the parties. Wright, 53 M.J. at 482.
The military judge made minimal findings relating to the Wright factors and did not articulate any balancing of those factors on the record. Where the military judge is required to do a balancing test under M.R.E. 403 and does not sufficiently articulate his balancing on the record, his evidentiary ruling will receive less deference from this court. See Dewrell, 55 M.J. at 138 (citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)); United States v. Bailey, 55 M.J. 38, 41 (C.A.A.F. 2000) (citing Manns, 54 M.J. at 166).
The Wright elements addressed by the military judge tend to support admission of the testimony: the proof of the prior similar act was strong because it involved the testimony of the only witness who had first-hand knowledge about the event; there was only one prior act which, as noted, could be established by a single witness and would not take an inordinate amount of time; and the act occurred eight years ago between acquaintances where the victim was in a vulnerable position.
The military judge failed to address the relevant remaining Wright factors:3 the probative weight of the evidence, the frequency of the acts, the temporal proximity of the prior act and the presence of intervening circumstances, and the distraction of the fact-finder.
While the military judge noted that the prior incident occurred eight years earlier where the victim was in a vulnerable position, he failed to analyze further the circumstances of the two incidents with regard to the probative weight of the previous incident. The incident with LS occurred outside during the day between children, while the incident with SGT T occurred at night in private quarters between two adults after an evening of drinking.
incident with LS occurred only once, eight years prior to Berry’s
with SGT T, when
States v. McDonald, 59 M.J. 426 (C.A.A.F. 2004), we evaluated
evidence of sexual acts that occurred twenty years prior to the charged
when the defendant was thirteen, was erroneously admitted for the
showing intent or a common plan under M.R.E. 404(b). We concluded
the evidence was not relevant under that rule, and in so doing we noted
absence of “evidence of that 13-year-old adolescent’s mental and
state, sufficient to permit meaningful comparison with Appellant’s
mind as an adult 20 years later.”
eight years between the two incidents
Between the ages of twelve and seventeen, adolescents undergo a critical period of transition during which they experience rapid transformations in emotional, intellectual, physical, and social capacities. Even older adolescents, whose raw intellectual capacities may rival those of adults, have less experience on which to draw in making and evaluating choices. In short, adolescents are not simply miniature adults.
Kim Taylor-Thompson, States
Mind/States if Development, 14 Stan. L. &
143, 152-53 (2003) (footnotes omitted). When projecting on
the mens rea of an adult or extrapolating an adult mens rea from the
acts of a
child, military judges must take care to meaningfully analyze the
phases of the accused’s development rather than treat those phases as
unaffected by time, experience, and maturity. Where a military
finds that the prior “sexual assault” acts of a child or adolescent are
probative to an act later committed as an adult, such a determination
supported in the record by competent evidence. Consequently the
of eight years in this case constitutes a notable intervening
between the two events at issue when coupled with
We then turn to another of the Wright factors not addressed by the military judge -- the possible distraction of the fact-finder that could result from admission of the testimony. In Bailey we noted that the danger considered by this factor is that admission of the evidence may “result in a distracting mini-trial on a collateral issue.” Bailey, 55 M.J. at 41.
prosecution’s opening statement did not begin with a reference to the
the present case but rather with a reference to the earlier incident:
“[I]n 1992, the accused was a 13-year old living in
closing statement the prosecutor reminded the members that
Under these circumstances it is evident that a “distracting mini-trial” on the collateral issue of the LS incident resulted from the admission of LS’s testimony and the prosecution’s pointed references. The emphasis on “a neighborhood child,” “a little boy,” and “a six year-old boy” all characterized Berry in the eyes of the members as a child molester, one of the most unsympathetic characterizations that can be made.
Considering the already limited probative value of LS’s testimony, that value clearly was outweighed by the danger that the members were distracted from considering his testimony for its proper purpose. Applying the appropriate deference to the ruling of the military judge, we find that LS’s testimony fails the M.R.E. 403 balancing test and that the military judge’s decision to admit LS’s testimony was in error.
sentence of court-martial may not be held incorrect on the ground of an
of law unless the error materially prejudices the substantial rights of
accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a)
For a nonconstitutional error such as this one, the Government has the
of demonstrating that “the error did not have a substantial influence
findings.” United States v. McCollum, 58 M.J. 323, 342
2003); see also
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. See McDonald, 59 M.J. at 430 (citing United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)).
central question with regard to this specification was whether SGT T
fact consented to the sodomy or whether
testimony added the first-hand account by a fifteen-year-old boy that
sodomized at the age of six by
The decision of the United States Army Court of Criminal Appeals is reversed. That part of the finding of the specification of Charge II stating “by force and without the consent of the said Sergeant [T]” and the sentence are set aside. The remainder of the specification of Charge II and the remaining findings of guilty are affirmed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on the affected finding and sentence is authorized. If a rehearing on the affected finding is deemed impracticable, a rehearing may be held on the sentence alone.
1 WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF UNCHARGED HOMOSEXUAL ACTS BETWEEN APPELLANT WHEN HE WAS THIRTEEN YEARS OLD, AND A SIX-YEAR-OLD BOY, EIGHT YEARS BEFORE THE CHARGED OFFENSE OF FORCIBLE SODOMY WITH AN ADULT SOLDIER.
2 M.R.E. 413 was adopted from F.R.E. 413, and the analysis of M.R.E. 413 in the Manual for Courts-Martial, United States (2002 ed.)(MCM), references the legislative history of F.R.E. 413 regarding congressional intent for the rule. MCM, Analysis of the Military Rules of Evidence A22-37.
3 We note that one of those factors not
the military judge is whether it would have been possible to admit, for
same purpose, evidence that was less prejudicial than LS’s
defense argued on appeal before the Court of Criminal Appeals and
court that a statement by
CRAWFORD, Judge (concurring in the result).
I agree that the military judge abused his discretion by conducting a flawed analysis under Military Rule of Evidence (M.R.E.) 403, and would reverse on that ground. However, I cannot join in the majority’s reasoning because the judge also abused his discretion by determining evidence of Appellant’s childhood act to be logically relevant under M.R.E. 401.
relevant, evidence must first be logically relevant. If
childhood sexual act is not legally relevant to show his propensity to
similar acts as an adult because “there is no evidence suggesting that
Relevant evidence under M.R.E. 401 is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In this case, the military judge found that “[t]he proffered evidence is similar to the charged misconduct because it involves taking advantage of a vulnerable victim.” Without elaboration, the majority accepts that similarity of conduct as sufficient to establish logical relevance. Given the facts of this case, however, and considering the purpose for which the evidence was offered, logical relevance requires more.
The Government offered Appellant’s childhood act under M.R.E. 413, which permits introduction of so-called “propensity evidence,” i.e., “[t]he rule permits the prosecution to use evidence of the accused's uncharged past sexual assaults for the purpose of demonstrating his propensity to commit the charged offenses.” United States v. Parker, 59 M.J. 195, 198 (C.A.A.F. 2003)(citation and internal quotation marks omitted). The military judge denied the defense’s motion to exclude LS’s testimony and instructed the members that they may consider LS’s testimony “for the purpose of its tendency, if any, to show that the accused has a propensity to commit nonconsensual sexual acts against vulnerable persons.” To be logically relevant to this purpose, the evidence must have some “tendency to make the existence of” appellant’s propensity “more probable . . . than it would be without the evidence.” M.R.E. 401. As we recognized in United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000), M.R.E. 413 opens with a reminder that, while generally admissible, evidence must first be “relevant”:
In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
M.R.E. 413(a)(emphasis added);1 Wright, 53 M.J. at 480.
military judge did not cite propensity as the “fact” to which this
relevant, the majority then concludes that “[f]rom strictly a
the evidence does show that
The military judge found, and the court below agreed, that the evidence was logically relevant both as to “common plan” and “intent.” 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.
59 M.J. at 429-30 (internal citation omitted).
Because M.R.E. 413, as employed in this case, demands logical relevance to a character trait –- propensity to commit sexual acts with vulnerable persons –– I would again conclude that evidence of sexual acts that occurred when the defendant was thirteen is not logically relevant to prove character or cognition of that child as an adult, absent “evidence of that 13-year-old adolescent’s mental and emotional state, sufficient to permit meaningful comparison with Appellant’s character as an adult.” McDonald, 59 M.J. at 430. While Appellant’s case presents a gap of only eight years between the acts, as opposed to the twenty years in McDonald, those intervening years share the same evidentiary deficiency: failure to account for the effects of puberty and adolescence on either cognitive development or character. In McDonald, we required the appellant to establish the logical relevance of a thirteen-year-old’s “mental and emotional state” to the state of mind of that child as an adult. In this case, we examine the logical relevance of a thirteen-year-old’s acts to the “propensity” of that child as an adult to engage in similar acts. I recognize that there is no meaningful distinction between the relevance we required in McDonald and the relevance we should require here.
Happenstance vs. character and state of mind. In our practice, as in the federal district courts, the undertaking of an act is frequently relevant in and of itself, without regard to the state of mind of the actor in performing the act. See, e.g., M.R.E. 304 (confessions and admissions), M.R.E. 321 (eyewitness identification), and M.R.E. 406 (habit and routine). In the course of a trial, innumerable other contexts arise in which proof of an act is relevant merely to show that the act occurred (e.g., facts establishing nonvolitional elements of offenses). In other contexts, relevance requires that happenstance be paired with a specific purpose (e.g., M.R.E. 608(b)(evidence of prior conduct must be probative of truthfulness or untruthfulness); M.R.E. 801(d)(1)(B)(prior consistent statement must precede motive to fabricate).
Character or state of mind evidence. When intent, plan, purpose, or character are involved -- when the fact made more or less probable is a quality of cognition -- mere happenstance may not be sufficient to establish logical relevance. McDonald, 59 M.J. at 430; United States v. Humpherys, 57 M.J. 83, 89-90 (C.A.A.F. 2002); United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000); United States v. Matthews, 53 M.J. 465, 473 (C.A.A.F. 2000). M.R.E. 413 and 414 freed prosecutors from the restraints of M.R.E. 404(b) and for the first time permitted evidence of an accused’s past acts to demonstrate the propensity of the accused to commit other such acts. Although “propensity” has been defined in slightly differing terms by various sources, the common theme is the focus on “nature” as the source of the inclination,5 reinforcing the classification of such evidence as “character evidence.” In short, the evidence is offered to show that the character or nature of the accused is such that he or she is predisposed to commit the charged offense, based on similar conduct undertaken by the accused in the past. As I see it, in the context of any comparative “state of mind” or character evidence, there is a roughly graduated scale -- with mere unity of identity at one end and absolute identity of cognitive state at the other -- along which such evidence will generally fall. While I agree that mere unity of identity may be sufficient to establish relevance when reasonable identity of cognitive state can be assumed (as in the acts of most adults), I do not believe we should apply that assumption to bridge the frequently vast chasm of puberty and adolescence. With this in mind, I believe our logic in McDonald must control our examination of this even more powerful evidence.
As the majority notes, children are not miniature adults. Evidence that an accused possessed some cognitive characteristic at age twenty-one might logically be presumed relevant to whether the accused had that same characteristic at age twenty-nine; however, consistent with our logic in McDonald, I cannot agree that evidence of a cognitive characteristic at age thirteen can be assumed to be logically relevant to whether the accused had that same cognitive characteristic at age twenty-one.
For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.
Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 American Psychologist 1009, 1014 (2003). Professors Steinberg and Scott also note that:
studies of criminal careers indicate that the vast majority of adolescents who engage in criminal or delinquent behavior desist from crime as they mature into adulthood (Farrington, 1986). Thus the criminal choices of typical young offenders differ from those of adults not only because the choice, qua choice, is deficient as the product of immature judgment, but also because the adolescent’s criminal act does not express the actor’s bad character.
to the concerns we expressed in McDonald, we have also
even absent the complicating factors of puberty and adolescence,
individual with certain characteristics may have internal
may or may not cause them to act similarly in various
agree that M.R.E. 413 has significantly reduced the analytical
temporal proximity between the charged acts and prior, similar acts
under that rule, I cannot agree that the rule creates a bypass around
401 and 402 or creates a “happenstance equals relevance”
equation. Discussing Fed. R. Evid.
413, which uses
language similar to that of M.R.E. 413, the Eighth Circuit noted
“We have previously stated that this rule supersedes Rule 404's
against character evidence, allowing testimony of prior bad acts in
assault cases, provided that it is relevant.”
This is not to say here, nor did we so hold in McDonald, that the acts of a child cannot be relevant to determination of the state of mind of that child as an adult. 59 M.J. at 430. Rather, in this arena of great potential probity and great potential prejudice, we must follow the rule and require that threshold relevance to the specified “fact” be demonstrated with the same level of scrutiny we would apply to any other evidence offered for any other purpose. Expressed another way, we should not be so confident in the crucible of M.R.E. 403 that we assume, for purposes of M.R.E. 413, that happenstance equals relevance. This is particularly so, given that in Wright we emphasized the importance of M.R.E. 401 and 402, and in McDonald we denounced the assumption that happenstance equals relevance with regard to similar evidence offered under M.R.E. 404(b). Because I am not convinced that the military judge made that critical comparison in this case, I cannot express confidence in the lower court’s conclusion that there was no abuse of discretion in this quarter.
1 We noted in Wright that M.R.E. 413 and Fed. R. Evid. 413 “are virtually the same.” Wright, 53 M.J. at 480 n.4. Accordingly, analysis of Fed. R. Evid. 413 also illuminates M.R.E. 413. In a discussion of Fed. R. Evid. 413, two scholars commented:
The evidence permitted is broadly defined as any act that would be either a state or federal crime related to either sexual assault or child molestation. The limitations appear to be only relevance and the requirement that the prosecution provide fifteen days notice of its intent to use evidence pursuant to these rules.” 1 Barbara E. Bergman and Nancy Hollander, Wharton’s Criminal Evidence (15th ed. 1997)(footnotes omitted)(commenting on the nearly identical text of Fed. R. Evid. 413 and 414).
§ 4.42 at 458-59.
4 Although McDonald addressed M.R.E. 404(b), the concept of legal and logical relevance runs through the military evidentiary rules, including M.R.E. 401, 402, 403, 404(b), 413, and 14, along with the other § IV rules.
5 Webster’s Third New International Dictionary of the English Language (1961)(“a natural inclination”). See, e.g., Merriam Webster’s Collegiate Dictionary (11th ed. 2003)(defining propensity as “an often intense natural inclination or preference); Webster’s New Word College Dictionary (4th ed. 1999)(propensity is a natural inclination or tendency”).