For Appellant: Captain Patience E. Schermer (argued); Colonel Theodore J. Fink (on brief); Colonel Douglas H. Kohrt and Lieutenant Colonel Jeanne M. Rueth.

For Appellee: Major Bryan T. Wheeler (argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers (on brief).

Military Judge: James A. Young, III
 

Judge SULLIVAN delivered the opinion of the Court.

During August of 1997, appellant was tried by a special court-martial composed of officer members at RAF Mildenhall, United Kingdom. Contrary to his pleas, he was found guilty of making a false official statement and larceny, in violation of Articles 107 and 121, Uniform Code of Military Justice, 10 USC §§ 907 and 921. He was sentenced to a bad-conduct discharge, confinement for 6 months, and reduction to airman basic. On September 11, 1997, the convening authority approved the sentence, and the Court of Criminal Appeals affirmed on November 24, 1998.

Review was granted in this case on April 7, 1999. Appellate defense counsel asked:

Appellant was charged with stealing money in excess of $100.00 from a fellow servicemember, Airman First Class Michael Fryling, between February 1 and May 20, 1997. He made a pretrial motion to prohibit the Government from evidencing "the alleged loss of money" in his and Airman Giznik's room during the period noted above, which had been placed in his custody by Airman Giznik for payment of their phone bill. He requested suppression of this evidence because it suggested "uncharged misconduct," i.e., that he stole or wrongfully appropriated money from Airman Giznik or that he failed to pay his just debt to the telephone company. The prosecution, in a written pretrial response, opposed this motion on the basis that this evidence did not show uncharged misconduct under Mil. R. Evid. 404(b),¹ but rather, appellant's temporary failure to account for nonpayment of the telephone bill and for the previously entrusted funds on the day of the alleged theft. It also asserted that evidence of appellant's possession of money on the day of the alleged theft and the amount thereof was clearly probative in this larceny case.

The record before us states the following in this regard:

The military judge questioned defense counsel as follows about his argument that this evidence was offered for impermissible character purposes:

The military judge then ruled the evidence concerning the telephone bill was admissible as motive evidence. He said:

Airman Giznik later took the stand and provided the following testimony, as summarized by the Government in its response to the defense motion:

Finally, the military judge instructed the members as to the limited use of this testimony as motive evidence. He said in his findings instruction:

As noted above, defense counsel made a pretrial motion in limine to suppress any testimony from a government witness, Airman Giznik, concerning a telephone-bill-payment incident with appellant, his roommate. He averred that Airman Giznik would testify that appellant was holding his phone bill money; that he did not pay that phone bill; and that appellant could not immediately locate that money when Airman Giznik asked for it on April 9, 1997. Defense counsel objected to such evidence as being tantamount to uncharged misconduct and unfairly prejudicial under Mil. R. Evid. 404(b) and 403. He argued that this evidence provided an inference that appellant "stole or wrongfully appropriated . . . money belonging to [Airman Giznik]" and "failed to pay just debts."

We note that Airman Giznik's testimony was not offered by the prosecution to show any unlawful conduct by appellant, or his poor character and that he acted in conformity with that character by committing the charged offense. On the contrary, it offered this evidence to show appellant's financial acts around the time of theft and as part of the res gestae.² In addition, we note that the military judge did not admit this testimony to show appellant's bad character or for impermissible character purposes. Finally, the military judge expressly instructed the members that they could not consider evidence of a possible misappropriation of money by appellant for character purposes.³ See Mil. R. Evid. 404(b).

Nevertheless, the military judge did give an instruction that evidence of a possible "misappropriation" of Airman Giznik's
money by appellant could be considered for the limited purpose of proving his "motive" for committing the charged offenses. See generally United States v. Levitt, 35 MJ 114, 119 (CMA 1992); United States v. Wray, 9 MJ 361 (CMA 1980); cf. United States v. Brawner, 32 F.3d 602, 605 (D.C. Cir. 1994) (duty of judge upon request to give limiting instruction concerning evidence of uncharged misconduct). Appellant asserts "the military judge abused his discretion by admitting the uncharged misconduct evidence about the chain of events regarding the telephone bill based upon his own theory of motive under Mil. R. Evid. 404(b)." Final Brief at 16 (emphasis added). Although we do not necessarily agree with the military judge's implied characterization of this evidence as uncharged misconduct evidence,⁴ we will so assume for purposes of this appeal and address appellant's claim. See generally Huddleston v. United States, 485 U.S. 681, 687-88 (1988); United States v. Levitt, 35 MJ 108, 112-13 (CMA 1992).

Appellant first argues that the military judge abused his discretion because "[o]n his own, disregarding the prosecution's inadequate and vague offer and virtually cross-examining trial defense counsel, [he] identified the telephone bill chain of events as Mil. R. Evid. 404(b) evidence and categorized it as relevant and admissible motive evidence." Final Brief at 17. He generally cites United States v. Merriweather, 78 F.3d 1070, 1075 (6^th Cir. 1996), for the proposition that the Government bears the burden of identifying a non-character purpose when it offers evidence suggesting uncharged misconduct for admission in a criminal trial. See United States v. Kendall, 766 F.2d 1426, 1436 (10^th Cir. 1985).

We agree with the Sixth Circuit that "[u]pon objection by the defendant, the proponent of the evidence, usually the Government, should be required to identify the specific purpose or purposes for which the Government offers the evidence of ‘other crimes, wrongs, or acts.’" Merriweather, supra at 1076. Moreover, we also agree with that appellate court that "[b]y so requiring, we do not mandate hypertechnicality." Id. Here, it is not clear why the military judge did not admit this evidence in accordance with the Government's pretrial proffer (to show appellant's possession of different sums of money on the date of the charged larceny offense). Nevertheless, in our view, trial counsel satisfactorily identified motive as a specific alternative basis for admission of the challenged evidence at this court-martial. See generally United States v. Brannan, 18 MJ 181, 185 (CMA 1984).

In this regard, we note that trial defense counsel acknowledged in his written pretrial motion in limine that the Government intended to introduce this evidence for the limited purpose of showing "motive." Moreover, although trial counsel in his written response to this motion sought to admit the challenged evidence for a purpose related to motive (i.e., circumstantial corroboration by showing possession of different amounts of money on day of theft), he did not reject the theory of admissibility previously attributed to him by the defense. See Mitchell, 172 F.3d at 1108-10 (contrasting motive evidence and abrupt-change-in-financial-circumstance evidence in a larceny case). Finally, trial counsel made no objection when the military judge, with agreement of defense counsel, made clear his understanding of the Government's particular purpose in introducing this evidence if the members found, in fact, that appellant misappropriated his roommate's money.

Appellant similarly argues that the military judge disqualified himself by sua sponte admitting the challenged evidence for a purpose not proffered by the prosecution. He argues that the military judge's ruling unfairly injected the judge into the proceedings on behalf of the prosecution and to the detriment of the defense. He cites United States v. Butler, 13 USCMA 260, 265, 32 CMR 260, 265 (1962) ("Certainly [the law officer] cannot be censured for refraining from injecting himself into the proceedings by propounding theories of his own for either party."), and asks this Court to reverse his conviction on this basis.

Again, we note our disagreement with appellant that the evidentiary theory relied on by the trial judge for admission of the challenged evidence was a judicial creation. In addition, we note that Article 39(a)(4), UCMJ, 10 USC § 839(a)(4), and Mil. R. Evid. 104(a) contemplate that the military judge determine the admissibility of evidence, which includes reasonable assessment of a party’s position in a particular case. Accordingly, while we agree that the military judge should not be trying the prosecution's case, we simply do not agree that occurred in this case. See United States v. Cooper, 51 MJ 247 (1999).

Changing tack, appellant next asserts that the testimony of Airman Giznik was improperly admitted under Mil. R. Evid. 404(b) to show motive, in view of the three-prong test this Court articulated in United States v. Robles-Ramos, 47 MJ 474 (1998). He first argues that his purported misappropriation of Airman Giznik's money was not proven by a preponderance of the evidence. Our standard of review is whether sufficient evidence was admitted so the members could find by a preponderance of the evidence that the misconduct occurred. Id. at 476, citing United States v. Mirandes-Gonzalez, 26 MJ 411, 414 (CMA 1988); see generally Huddleston, 485 U.S. at 690.

Admittedly, there was no direct evidence that appellant misappropriated Airman Giznik's telephone money. There was, however, circumstantial evidence that appellant may have wrongfully appropriated the money entrusted to him to pay this bill. It was shown that the telephone service had been terminated; that appellant had not paid the bill as promised; that he could not produce the previously entrusted money on demand and could not immediately account for its whereabouts; and that finally, he later produced the money and his own share of the bill without adequate explanation. On the basis of this evidence, we conclude that a factfinder might reasonably find that appellant temporarily appropriated Airman Giznik's money for his own purposes rather than paying the telephone bill as promised. United States v. Robles-Ramos, supra; see United States v. Hale, 28 MJ 310, 311 (CMA 1989)(evidence of wrongful appropriation of a rental car).

Appellant's second argument under Robles-Ramos is that his purported misappropriation of Airman Giznik's telephone bill money still was not shown to be relevant to a "fact of consequence" in his trial for stealing money from Airman Fryling. See Robles-Ramos, supra at 476; see generally United States v. Reynolds, 29 MJ 105, 109 (CMA 1989). He states that this evidence "went toward no specified element of the crimes charged." Final Brief at 18. Appellant did not admit that he withdrew money from Airman Fryling's account on April 9, 1997, and the military judge ruled that evidence appellant had financial difficulties was probative of a motive on his part to commit this larceny.⁵ This is black letter law in larceny cases. See 1A Wigmore, Evidence § 117 at 1696 (Tillers rev. 1983); 2 Wigmore, Evidence § 392 at 430 (Chadbourn rev. 1979). Even trial defense counsel conceded this point at trial. See generally United States v. McMahon, 938 F.2d 1501, 1507-08 (1^st Cir. 1991).

A question remains, however, as to how evidence of appellant's purported wrongful appropriation of Airman Giznik's telephone payment was relevant to show his financial difficulties leading to the charged theft. We think that was obvious. This evidence showed the extraordinary degree of financial pressure that was applied to appellant on the actual day of the alleged theft from Airman Fryling. If he failed to produce the money entrusted to him by his roommate, Airman Giznik could expose him to command embarrassment, if not criminal prosecution, for his misuse of a fellow soldier's money. See 2 Wigmore, Evidence § 392 at 432 n.6; Feldman, 788 F.2d at 556-57; see generally Mitchell, 172 F.3d at 1109 (evidence showed that defendant in Feldman was being "squeezed," not just that he would be better off with more money). Accordingly, we conclude this possible "uncharged wrongs" evidence was highly relevant to establish appellant's timely and unique motivation for committing the charged larceny. See 1A Wigmore, Evidence § 117, supra (discussing proof of emotion in a person likely leading to an act by that person).

Appellant's third argument under Robles-Ramos is that Airman Giznik's testimony suggesting possible misappropriation by appellant was inadmissible under Mil. R. Evid. 403. See United States v. Reynolds, supra. He argues that "the probative value of the evidence [was] substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members." He particularly faults the trial judge for providing "no real analysis anywhere on Mil. R. Evid. 403, just conclusory statements." In addition, he contends that this evidence was not necessary to show appellant's poor financial condition and that its sole effect was to "paint Appellant[] as a thief and a liar." Final Brief at 19-20.

In addressing these complaints, we initially note that the decision to admit or exclude evidence under Mil. R. Evid. 403 is imparted to the sound discretion of the trial judge. See United States v. Whitner, 51 MJ 457, 461-62 (1999). An explanation of his ruling on the record is preferred, but we have not required such an explanation as a predicate for our review. See United States v. Bins, 43 MJ 79, 85-86 (1995). In either event, we review the record of trial for a clear abuse of discretion by the trial judge. Id. Here, we see no such abuse in the admission of Airman Giznik's telephone-bill-payment testimony.

In this regard, we initially note our disagreement with appellate defense counsel's assertion that it was "unclear what issue the [challenged] evidence would be used to prove." Final Brief at 19. The military judge ruled and instructed the members that any evidence of a possible misappropriation could only be used for "its tendency, if any, to prove the accused's motive in taking money from Airman First Class Fryling." See Mil. R. Evid. 104(a) (military judge determines admissibility of evidence questions). We also disagree with counsel that this evidence had low probative value because other evidence would show appellant's poor financial condition. This evidence had great probative value because it revealed the true extent of appellant's financial desperation on the day of the alleged theft, i.e., an immediate pressure, far beyond simple insolvency. See Mitchell, supra at 1109, citing United States v. Feldman, supra. Lastly, we disagree that this evidence "had" to be used by the members as propensity evidence. It might have, but the military judge carefully instructed the members that it could not be used for this purpose. See Whitner, supra at 462 (limiting instructions precluding impermissible character use of evidence are proper consideration in Mil. R. Evid. 403 ruling); cf. United States v. Johnson, 27 F.3d 1186, 1193-94 (6^th Cir. 1994) (multiple instructions given which were contradictory).

In conclusion, appellant's core complaint in this case is that he was found guilty of stealing more than $100.00 from Airman Fryling because the prosecution was allowed to introduce evidence suggesting a possible prior misappropriation of Airman Giznik's money. We note, however, that the prosecution also evidenced approximately 22 unauthorized withdrawals over a 4-month period from Airman Fryling’s ATM account, amounting to more than $1,000.00. Airman Fryling further testified that he did not give appellant his ATM card, his pin number, or permission to withdraw funds from his account. Finally, appellant, in a pretrial statement, admitted making numerous withdrawals from Airman Fryling's account during this period but asserted that he was inexplicably given carte blanche authority from the alleged victim to do so. In these circumstances, we seriously doubt that even the erroneous admission of the challenged evidence under the stringent conditions directed by the military judge substantially prejudiced appellant.⁶ Whitner, supra at 462 (other evidence in case coupled with appropriate limiting instructions may negate any prejudice from an erroneous Mil. R. Evid. 403 ruling).

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

FOOTNOTES:

1 Manual for Courts-Martial, United States (1995 ed.). All Manual provisions are cited to the version in effect at the time of trial. The 1998 version is unchanged, unless otherwise indicated.

2 This evidence was admissible as evidence of an abrupt change in financial circumstances at the time of the theft offense. See 1A Wigmore, Evidence § 154 at 1764 (Tillers rev. 1983); 2 Wigmore, Evidence § 392 at 433 n.8 (Chadbourn rev. 1979); United States v. Jackson, 882 F.2d 1444, 1450 (9^th Cir. 1989)(res gestae evidence); United States v. Kloock, 652 F.2d 492, 495 (5^th Cir. 1981) (complete the story of the crime).

3 The military judge did not find as fact that appellant committed the averred misconduct, nor do we. See Art. 67, UCMJ, 10 USC § 867.

4 Courts have split on whether circumstantial or indirect evidence of misconduct is subject to the requirements of uncharged misconduct rules like Mil. R. Evid. 404(b). See Edward J. Imwinkelried, Uncharged Misconduct Evidence §2:16 at 84 (Revised ed. 1999). We need not decide that question today because even if circumstantial evidence is subject to this rule, as indicated in the military judge's ruling, appellant does not prevail.

5 Appellant did not particularly admit to withdrawal of funds from Airman Fryling's account on April 9, 1997, nor was there photographic evidence of his use of the ATM on that date. Accordingly, there were material issues in this case whether Airman Fryling's money was stolen on that date and whether appellant did it.

6 Neither trial counsel nor defense counsel referred to this evidence or the judge's ruling in their closing arguments.