United States v. Henry

STATES, Appellee, UNITED HENRY, Sergeant,

Keith U.S.

Army, Appellant.

No. 98-1023.

Crim.App. No. 9402015. Appeals

U.S. Court of

the Armed Forces.

Argued Oct. 1999.

Decided June

CRAWFORD, C.J., opinion delivered the Court, SULLIVAN JJ., GIERKE, COX, S.J., joined. EF- FRON, J., a dissenting opinion. filed Appellant: Captain Cipri- For Marc D.A. (on (argued); Odegard ano Colonel Adele H. brief); Major A. Nepper, Major Leslie Scott Morris, Major B. Jonathan F. Potter. For Appellee: Captain Katherine M. (argued); Estep, Kane Colonel Russell S. Milhizer, Eugene R. Lieutenant Colonel 109 (on in brief); pornographic with him” Cap- Mary E. “watch Captain Braisted quarters. government their Brookhart. tain Daniel G. statements, agents got CID Based on SR’s authorization, appellant’s well as command as Judge delivered the Chief CRAWFORD consent, quarters his to search written opinion the Court. of No videos contain- “pornographic material.” pleas, appellant con- Contrary to his was ing pornography Agents found. did were adultery, in of rape of and violation victed (Prosecu- magazine find and a Hustler seize 134, Mili- Articles 120 and Uniform Code of 44), High and one issue of tion Exhibits 43 Justice, tary §§ Offi- 10 920 and 934. USC (Pros. 45), Society Ex. Time three Leisure him to a cer and enlisted members sentenced (Pros. 41), catalogs Exs. 39 thru Products for 25 discharge, dishonorable confinement (Pros. 42), catalog Ex. all and one Globe sales pay per years, of month forfeiture $427.20 an opportunity the reader of which afforded months, E-l. and to Private reduction sexually videotapes. purchase explicit convening authority approved the sen- Appellant charged raping with SR on was Appeals af- tence. The Court of Criminal 6, 1994, sodomy committing August forcible unpublished opinion. firmed in an 1994, August June 1992 and with SR between Court, appellant Before this contends assaulting indecently SR between June by military judge his abused discretion 1994, adultery August committing with and objection, admitting, sex- over defense seven 6, assaulting August and his wife on SR on ually prosecution explicit exhibits because August 7. charges for which none were relevant to the trial, objected At to the intro- the defense appellant standing trial. the second through duction of Exhibits 39 45 on issue, granted appellant his maintains that 402, 401, relevancy. of See basis Mil.R.Evid. and, thus, incap- incomplete record of trial is 403, Courts-Martial, and Manual for 66, UCMJ, of able review under Article (1998 ed.). hearing Hen- After Mrs. 866, §USC because five of these aforemen- ry’s testimony effect there missing, tioned are in or in exhibits whole mag- pornographic as Hustler materials such part, from record. hearing quarters, in well as SR azine their against appellant. resolve We both issues say that had watched recant and she not sexually

pornographic movies or looked at FACTS stepfather, explicit magazines with her in judge admitted the seven exhibits SR, 15-year-old daughter Pilar of question. 1994, 6, Henry, August told her on mother appellant, stepfather, raped her her had (three pages Exhibit de- Prosecution day. Appellant earlier that had left SR by picting pornographic Lei- videos offered get bicycle their re- home Products) in the sure Time was included Instead, paired. appellant SR to a drove entirety. Photographs in its trial Mainz, Germany, wooded area near forced depicting front Ex- covers Prosecution car, her into her the back ordered 40, 42, included. hibits 45 were also clothing. her then Appellant remove magazine The actual front and back covers raped stepdaughter. his (August Exhibit Prosecution 1993 edition magazine) of Hustler included in the August On both and her mother SR photograph and Exhibit 44 is a gave In- sworn statements at the Criminal page August Hustler 3 of the 1993 issue of (CID) vestigation During Command office. magazine. interview, the course of SR informed in agents argument had been as- case was held be- Oral saulting pre- sodomizing during her fore this on October 1999. On-No- Court years. young response in- in vious victim also vember agent recently, by fail- prejudiced formed the CID assertion that he was more 40, 41, Wiesbaden, living while had SR ure include Prosecution Exhibits 42, 44, trial, entirety, Additionally, in their in the rec- refuted her SR earli- ord, appellee we ordered these watching any por- to submit er denied complete eopies/back exhibits identical is- nographic appellant. movie with She also sues to the Affidavits Court. submitted pornographic testified that there were no appellee through show that Exhibits 40 the home because her mother destroyed by were the Wiesbaden office CID permit would not such the material house. following appellant’s court-martial. posture, With the evidence in this Prosecu- produced Government has a back issue of through tion Exhibits 39 were 45 relevant to Thus, the magazine entirety. Hustler its testimony rebut in-court SR’s and to show we complete maga- have a issue of the one pretrial that her was more truth- comprised zine that both Exhib- Prosecution testimony. ful on this issue than in-court her Appellee its 43 and 44 at trial. has been Appellant’s intent was a contested issue produce unable to copies alternative of the only probative which not enhanced the value other exhibits. 39-45, justi of Prosecution Exhibits but also fied their admission. See Mil.R.Evid. 403.

DISCUSSION Mann, (CMA), See United States v. 26 MJ 1 denied, 824, 72, cert. 488 109 U.S. S.Ct. rulings evidentiary We review of a (1988). L.Ed.2d 49 hold that military discretion, We the evi judge for abuse of dence was also it rulings overturn relevant because had a only judge’s these if the tendency prove to findings clearly appellant plan that a of fact are or had erroneous “his by daughter accept decision is an to his influenced view of condition to his sexual erroneous Sullivan, and, thus, the law.” satisfy United States v. 42 MJ advances his sexual desires. 360, (1995); Owens, Acton, 330, United States v. 51 See States United v. (1999). (CMA give MJ 204 Appellant 1993); Palmer, asks us United v. States (AFCMR judge minimal (CMA deference in case 1989), this ajfd, MJ 929 33 MJ 7 because any he did not articulate 1991); basis generally see United States v. Hens ruling his on the that (2000). indicate he ley, 52 MJ 391 conducting balancing was analysis re evidence, light charges, In of the quired by Mil.R.Evid. 403. recantation, young judge’s decision admit Prosecution Exhibits 39 below, court Like the we find no through 45 was neither nor erroneous unrea- by admitting abuse of discretion Prosecution by sonable nor influenced an erroneous view through Exhibits Appellant 45. was Finally, of the law. we note charged indecently assaulting step with his indecently assaulting was not convicted of his daughter 2-year period. over a In its at daughter. acquittal This demonstrates that tempt prove appellant guilty of indecent the court members were not inflammed assault, the Government had to show that the material, sexually explicit admission alleged acts were done “with intent carefully weighed evidence of gratify each sexual lust or desires of the ac 63b(2), Manual, prior returning guilty findings offense IV, cused.” Para. Part su pra. rape adultery against appellant. in location found a purported where the indecent assaults were issue, granted The second whether magazine

to have occurred. The Hustler incomplete, record trial is is one August was dated High Society and the presents question magazine a which law this Court had a date of October requirement will de Both review novo. The that a period during dates fall within the complete substantially trial be charged indecently with assaulting uphold validity in order stepdaughter. of verbatim of a his Possession jurisdic such material be evidence of verbatim record sentence one of could sexual alleged. proportion desires tional be See Mil.R.Evid. cannot waived. See 402; Whitner, (CMA 401 and v. Gray, United v. United States 7 MJ 296 (1999). 1979); Whitney, MJ States v. USCMA

Ill ad Exhibits 39-45 Prosecution 1974 WL 13848 48 CMR appel showing substantially purpose for the are mitted of trial not Records sexually explicit literature support possessed a lant incomplete or are cannot verbatim por he order discharge quarters from which could punitive a his that includes sentence the victim. to show to nographic RCM in excess of months. or confinement vir 1103(b)(2)(B),Manual, which advertises Prosecution Exhibit supra. video, is tually every sexual act on type of entirety A a rec substantial omission renders in the record incorporated in its incomplete presump trial issue of Appellee ord of raises has submitted a back trial. prejudice magazine must August tion of Government of Hustler 1993 edition McCullah, 11 reviewing magazine, MJ rebut. United States to this Court. (CMA 1981); Gray, v. 43 and United States Prosecution Exhibits apparent is Boxdale, no magazine. v. supra; parts United USCMA the same On States 44 are of WL 14729 Exhibit 44 pages 47 CMR than 20 in Prosecution less advertised, of trial sexually explicit omissions from a record Insubstantial there are to presumption prejudice many pages raise of forms do not a of contained and those Accordingly, as a ordering affect record’s characterization the material. facilitate exhibits, complete one. Pros remaining the the omission of 40, 41, are insub ecution Exhibits and 45 have unre omissions included Substantial this of trial from record stantial omissions the corded sidebar conferences that involved completeness. do not its and affect (United Gray, of v. admission evidence States concerning Army mem supra) argument and court of the United The decision States Sturdivant, (United challenges Appeals ber States v. is of Criminal affirmed. Court (CMA 1976)). In v. 1 MJ United States McCullah, found letter of dis supra, we the EFFRON, Judge (dissenting): in a check honor worthless case appar- catalogs four to show rea to a substantial Two used mens be sexually Army Ap ently containing explicit material omission. The Court of Criminal appellant’s videotape during seized a search of peals has found the omission of a showing flying during triggered the quarters the accused Desert Shield/Storm, sexually during played ex- the sometimes which was admitted trial, sentencing portion quarters. her in plicit videotapes of a substantial for their be (United Seal, investigators videotapes v. found no such omission States 38 MJ (ACMR 1993)). Similarly, during the search. United States (2000), Stoffer, 53 v. MJ 26 we concluded magazines and prosecution offered the defense a the absence of three exhibits was trial, theory catalogs on evidence substantial omission.* publications advertise- contained sexually explicit video- ordering the ab- Insubstantial omissions include ments photographic prop- tapes, which would tend corroborate the sence exhibits of stolen (United Carmans, had ex- erty v. 9 MJ victim’s statement States (ACMR military 1980)), given posed members her to similar material. The a flier to the Johnson, (United judge publications into evidence MJ 1017 admitted the States v. (ACMR 1991)), objection, but did not articulate a court member’s written over defense (United Baker, factors under question v. 21 MJ 618 on the record the considered States (ACMR judge 1985)), (requiring military personnel an Mil.R.Evid. 403 accused’s (United against probative Harper, v. 25 MJ 895 to balance the value record States (ACMR 1988)). prejudice). See risk of unfair * videotapes, Stoffer, mitigation relating explicit In of the none extenuation By is neither a in the of trial. the absence of four similar exhibits exhibits included record contrast, prejudicial appel- appellant’s now nor of trial is substantial omission light right his convic- missing prosecution a full and fair review of four exhibits. In lant's 39, 43, Exhibits tion. material found in Prosecution (CMA 105, 109 1989) (the Reynolds, the material. Publications that treat chil- balancing test under Mil.R.Evid. 403 is the dren and degrading sexual matter a prong of three-part third test for deter exploitative carry potential manner mining admissibility uncharged miscon having prejudicial impact on a court-mar- 404(b)). duct under Mil.R.Evid. tial, particularly involving in a charges ease The record of trial appel- that reached the case, of sexual abuse of a minor. In such a only late courts contained one exhibits military judge essential that the articulate entirety, at issue in its Prosecution Exhibit probative factors used to balance the Otherwise, only the record contained value of against such evidence the risk of front and back covers of Prosecution Exhibit prejudice unfair under Mil.R.Evid. 403. photographs of the front covers of so, military judge Where the has failed to do 40, 41, 42, Prosecution Exhibits and 45. appellate may a lower court nonetheless re- response to this Court’s produce order to view the evidence and conduct its own bal- exhibits, missing the Government stated that ancing. If judge fails to ensure those destroyed by exhibits were the local that the evidence at issue is included in the CID office after court-martial. record, however, possible properly it is not The Government was able to locate and file a weigh prejudicial impact back “evidence” issue of Prosecution Exhibit but it has copies been unable to that is not described in locate the record with the other suffi- publications that had been introduced at tri- particularity. cient Because the Government al. has been unable to reconstruct the necessary is to set aside the trial results impact explicit material on return likely depend rehearing. court-martial the record for a on both See Unit- the nature charges and the nature of Stoffer, ed States v. 53 MJ 26

Case Details

Case Name: United States v. Henry

Court Name: Court of Appeals for the Armed Forces

Date Published: Jun 21, 2000

Citation: 53 M.J. 108

Docket Number: 98-1023/AR

Court Abbreviation: C.A.A.F.