United States v. Staff Sergeant JEFFERY G. BARNES, JR.
2015 CCA LEXIS 194
| A.C.C.A. | 2015Background
- Appellant (SSG Jeffery G. Barnes, Jr.) was convicted at general court-martial of two rapes (one in 2006, one in 2009) and sentenced to a dishonorable discharge, ~14 years 9 months confinement, forfeitures, and reduction to E‑1.
- Both incidents occurred while appellant was TDY at Fort Huachuca; victims testified to nonconsensual sexual intercourse (one victim’s vaginal swabs yielded appellant’s DNA).
- During a pretrial Article 39(a) session the government indicated it might argue propensity under Mil. R. Evid. 413 based on the two charged offenses; parties and judge agreed to address any 413 instruction after the merits evidence.
- No uncharged-other-acts evidence was admitted; the only evidence of other sexual assaults were the two charged offenses themselves.
- At instructions, the military judge gave a Benchbook-based instruction allowing consideration of one charged offense for its bearing on the other (including propensity), but also included language denying any inference of guilt from one offense to another; the judge did not place a full on‑the‑record Wright/403 balancing analysis.
- Government argued propensity in closing; defense objected to the form of the instruction. On appeal the Army CCA affirmed, finding the 413-based argument allowable, the judge should have made specific findings on the record but the instruction error was harmless (and in parts was more favorable to appellant).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mil. R. Evid. 413 could be used to argue propensity based on one charged sexual offense to infer propensity for another charged offense where no uncharged‑act evidence was admitted and the judge did not make on‑record Wright/403 findings | Government: 413 permits consideration of similar sexual‑assault evidence for any relevant bearing (including propensity); prosecutor may argue propensity based on the two charged incidents | Barnes: Judge abused discretion by giving a 413/propensity instruction because no evidence was admitted "for 413 purposes," and the judge did not perform the required on‑record relevance/probative balancing | Court: This is a Mil. R. Evid. 413 situation (parties and judge contemplated propensity). The judge should have made predicate findings on the record, but the record supports admissibility and probative value outweighs unfair prejudice; instruction flaws favored appellant and error was harmless beyond a reasonable doubt; convictions affirmed. |
Key Cases Cited
- United States v. Wright, 53 M.J. 476 (C.A.A.F.) (articulates threshold findings and Wright factors for 413/403 analysis)
- United States v. Berry, 61 M.J. 91 (C.A.A.F.) (discusses 413 presumption of admissibility and 403 balancing)
- United States v. Dewrell, 55 M.J. 131 (C.A.A.F.) (constitutional requirement that 413 evidence undergo thorough 403 balancing)
- United States v. Solomon, 72 M.J. 176 (C.A.A.F.) (summarizes Wright threshold and necessity of 403 balancing)
- United States v. Dacosta, 63 M.J. 575 (Army Ct. Crim. App.) (model instruction and protections when propensity evidence presented)
- United States v. Burton, 67 M.J. 150 (C.A.A.F.) (distinguishes cases where counsel’s closing improperly raised propensity absent 413 procedures)
- Chapman v. California, 386 U.S. 18 (constitutional harmless‑error standard for federal constitutional error)
- Estelle v. McGuire, 502 U.S. 62 (instructive standard on reasonable likelihood jury applied instruction unconstitutionally)
- United States v. Rogers, 587 F.3d 816 (noting Congress permits drawing propensity inferences in sexual‑assault trials)