United States v. Fetrow, 2017 CAAF LEXIS 289

Background

Appellee Justin Fetrow, an Air Force Technical Sergeant, was convicted at a general court-martial of multiple sexual offenses against children (under Article 120/80 UCMJ versions in effect 2007–2012) based primarily on victim JB’s testimony; sentence included 25 years confinement and a dishonorable discharge.
The government sought to introduce testimony from Fetrow’s biological daughter, JLF, as propensity evidence under Military Rule of Evidence (M.R.E.) 414; JLF described three uncharged incidents (a closet incident, a tent/thigh-touch incident, and a bathroom/penis-exposure incident) that occurred years earlier.
The military judge admitted all three JLF incidents under M.R.E. 414, finding each to be qualifying child-molestation offenses; Fetrow was convicted on several counts based on other victim testimony.
On appeal, the Air Force Court of Criminal Appeals held the military judge erred in admitting two of the three incidents (closet and bathroom) because they did not qualify as "other offense[s] of child molestation" under M.R.E. 414 as in effect at trial; it found Fetrow prejudiced by that error and set aside findings and sentence in part.
The Judge Advocate General certified two questions to this Court: (1) whether prior conduct must have been a crime when committed and must meet the definition of the enumerated offenses in the version of M.R.E. 414 in effect at trial; and (2) whether the erroneous admission of two incidents substantially influenced the members’ verdict.
This Court agreed with the lower court: (a) prior conduct must have been criminal when committed and must fall within the categories of M.R.E. 414(d)(2)(A)-(G) as they read at trial; and (b) the erroneous admission of the closet and bathroom incidents was not harmless and had a substantial influence on the findings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether M.R.E. 414 requires prior conduct to have been a crime when committed and to fit the version of enumerated offenses in effect at trial	The Air Force (plaintiff) argued the rule should allow admission of similar child-molestation conduct if it fits the categories regardless of whether the conduct was criminal at the time	Fetrow argued prior conduct must have been a punishable offense when committed and must match the rule’s categories as in effect at trial	Court held prior conduct must have been unlawful when committed and must fall within the specific categories of M.R.E. 414(d)(2)(A)-(G) as they read on the day of trial (two-part test)
2. Whether the erroneous admission of two JLF incidents was harmless error	Air Force argued admission was harmless given other strong evidence (JB’s testimony and convictions)	Fetrow argued the improperly admitted propensity evidence was powerful and prejudicial and the error was not harmless	Court held the error was not harmless; the two incidents had substantial influence on the members and reversal was required

Key Cases Cited

United States v. Yammine, 69 M.J. 70 (2010) (standard for admitting M.R.E. 414 evidence and review standard)
United States v. Schloff, 74 M.J. 312 (2015) (questions of rule/ statute construction reviewed de novo)
Duncan v. Walker, 533 U.S. 167 (2001) (plain language and giving effect to every clause in statutory construction)
Gustafson v. Alloyd Co., 513 U.S. 561 (1995) (avoid rendering language superfluous in construction)
United States v. Kearns, 73 M.J. 177 (2014) (ordinary meaning for rule language)
United States v. Kerr, 51 M.J. 401 (1999) (four-factor harmless-error analysis for nonconstitutional evidentiary errors)
United States v. Gunkle, 55 M.J. 26 (2001) (test for whether nonconstitutional evidentiary error had substantial influence)
United States v. Flesher, 73 M.J. 303 (2014) (government bears burden to show erroneous evidence is harmless)