IN THE CASE OF
UNITED STATES, Appellee
v.
Bartholomew M. BERRY, Sergeant
No. 04-0240
Crim. App. No. 20000960
Argued
Decided
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.
Counsel
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.
After
entering a guilty plea to the lesser included offense of sodomy,
Sergeant (SGT)
Bartholomew M. Berry was tried by a general court-martial on a number
of
offenses. Berry was convicted of the greater offense of
committing sodomy
by force and without consent, making a false official statement,
committing an
indecent act with another, and fraternization, in violation of Articles
125,
107, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
907, 925,
934 (2000), respectively.
The sole
issue before this court involves the admission of evidence of a prior
sexual
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.
BACKGROUND
In
SGT T
testified to a different version of events. He stated that he
felt very
dizzy and very sick when they left the bar and that he threw up a
number of
times when they got back to Berry’s residence. After lying on
The
next thing he
remembered was that
In
addition to the
two conflicting accounts of the evening, LS
testified at trial over the objections of
The
prosecution
sought to have LS’s testimony admitted under M.R.E. 413, stating that
“it is
relevant to Sergeant
The military judge
denied
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, 6[]years 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.
In
both his
opening and closing statements, trial counsel referred to Berry’s acts
with LS
and reminded the members that the encounter could be considered
relevant
“because [
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.
On
appeal before
this court,
DISCUSSION
The
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
3. The
evidence is relevant under [M.R.E.] 401 and 402.
Wright, 53 M.J. at 482.
As
the military
judge noted, the first and second threshold requirements were met
because
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.”
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
show
that
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.
The
incident with LS occurred only once, eight years prior to Berry’s
encounter
with SGT T, when
In United
States v. McDonald, 59 M.J. 426 (C.A.A.F. 2004), we evaluated
whether
evidence of sexual acts that occurred twenty years prior to the charged
act,
when the defendant was thirteen, was erroneously admitted for the
purpose of
showing intent or a common plan under M.R.E. 404(b). We concluded
that
the evidence was not relevant under that rule, and in so doing we noted
the
absence of “evidence of that 13-year-old adolescent’s mental and
emotional
state, sufficient to permit meaningful comparison with Appellant’s
state of
mind as an adult 20 years later.”
During the
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
of
Mind/States if Development, 14 Stan. L. &
Pol’y Rev.
143, 152-53 (2003) (footnotes omitted). When projecting on
a child
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
different
phases of the accused’s development rather than treat those phases as
being
unaffected by time, experience, and maturity. Where a military
judge
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
must be
supported in the record by competent evidence. Consequently the
passage
of eight years in this case constitutes a notable intervening
circumstance
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.
The
prosecution’s opening statement did not begin with a reference to the
facts of
the present case but rather with a reference to the earlier incident:
“[I]n 1992, the accused was a 13-year old living in
In his
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.
Prejudice
“A
finding or
sentence of court-martial may not be held incorrect on the ground of an
error
of law unless the error materially prejudices the substantial rights of
the
accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a)
(2000).
For a nonconstitutional error such as this one, the Government has the
burden
of demonstrating that “the error did not have a substantial influence
on the
findings.” United States v. McCollum, 58 M.J. 323, 342
(C.A.A.F.
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)).
The
central question with regard to this specification was whether SGT T
had in
fact consented to the sodomy or whether
LS’s
testimony added the first-hand account by a fifteen-year-old boy that
he was
sodomized at the age of six by
Finding
that
DECISION
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
considered by
the military judge is whether it would have been possible to admit, for
the
same purpose, evidence that was less prejudicial than LS’s
testimony. The
defense argued on appeal before the Court of Criminal Appeals and
before this
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.
To
be legally
relevant, evidence must first be logically relevant. If
Appellant’s
childhood sexual act is not legally relevant to show his propensity to
commit
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.
Conceding
that the
military judge did not cite propensity as the “fact” to which this
evidence was
relevant, the majority then concludes that “[f]rom strictly a
propensity viewpoint,
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.
In addition
to the concerns we expressed in McDonald, we have also
recognized that,
even absent the complicating factors of puberty and adolescence,
“[e]ven an
individual with certain characteristics may have internal
self-monitoring which
may or may not cause them to act similarly in various
situations.”
While I
agree that M.R.E. 413 has significantly reduced the analytical
importance of
temporal proximity between the charged acts and prior, similar acts
introduced
under that rule, I cannot agree that the rule creates a bypass around
M.R.E.
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
that:
“We have previously stated that this rule supersedes Rule 404's
prohibition
against character evidence, allowing testimony of prior bad acts in
sexual
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.
2 Of course, mens rea and
character are not congruent concepts, but in the context of this
evidence and
the purpose for which it was offered, the two are logically
indistinguishable.
3 “Propensity evidence” is a
form of character evidence. See 2 Stephen A. Salzburg et
al., Federal
Rules of Evidence Manual § 413.02[2] (8th ed. 2001).
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”).
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