*1 STATES, Appellee, UNITED MORRISON, Sergeant, D. Master
Thomas Army, Appellant.
U.S.
No. 98-0617.
Crim.App. No. 9600461. Appeals for
U.S. Court of
the Armed Forces.
Argued Jan. 1999. Sept.
Decided
118
GIERKE, J., opinion delivered the Court, COX, C.J., EFFRON, J., in which and joined. SULLIVAN, J., dissenting filed CRAWFORD, opinion, J., joined. which Appellant: Captain For John Einst- C. (argued); II, man Phelps, Colonel John T. Odegard, Lieutenant Colonel Adele H. and (on brief); Major A Nepper Leslie Lieuten- Captain ant Colonel Michael L. Walters and Dirk Gifford. (ar- Appellee: Captain
For A. Troy Smith gued); Estey, Colonel Russell S. Lieutenant Milhizer, Eugene R. Lyle Colonel Major (on brief); D. Captain Jentzer Steven H. Levin.
Judge opinion GIERKE delivered the the Court. gеneral composed
A court-martial offi- appellant, cer contrary members convicted pleas, specification of 1 of assault consum- by battery age mated on a child under the years, specifications committing and 2 acts, indecent in violation Articles 128 and Justice, Military Uniform Code of 934, respectively. §§ USC In accor- guilty pleas, appellant dance with his also specifications larceny was convicted 3of specifiсations and 8 wrongfully disposing property, of stolen in violation of Articles 134, UCMJ, §§ USC respectively. adjudged approved provides sentence for a dis- dishonorable charge, years, confinement for 10 total forfei- tures, and reduction the lowest enlisted grade. Appeals af- Court Criminal findings un- firmed the and sentence an opinion. published issues, battery “by consummated of assault review of four granted This Court inappropriate manner.” granted touching [MR] on the first we this case resolve issue:1 specifica- charged with two Appellant was JUDGE THE MILITARY WHETHER committing acts with indecent tions BY AD- HIS DISCRETION ABUSED *3 fondling with her his niece. He was INFLAMMATORY HIGHLY MITTING breasts, in fingers her placing his thighs and MIS- OF UNCHARGED TESTIMONY “French-kissing” her. The of- vagina, and APPELLANT’S CONDUCT FROM to have been committed fenses THE FRE- REGARDING DAUGHTER years January when was in QUENT SEXUAL ABUSE IMPOSED old. AN 8-YEAR BY APPELLANT OVER
PERIOD. happened the offenses LL testified that below, family grandpar- at her gathering a during reverse. the reasons set out we For She, sister, appellant, her
ents’ house. on Background daughters slept Factuаl appellant’s three all floor, not there were living room because committing an charged with everyone. The area was enough beds for MR, a daughter indecent act with slept cramped,” appellant next “pretty friend, family by touching vagina her wearing long nightshirt and LL. LL September 1 and Novem- between occasion that, during LL testified 16,1994. underwear. years when she MR was ber leg, put on her night, appellant his hand January in of 1996. MR testi- testified late visiting appellant’s uр nightshirt, while she was in fied that it under her moved home, put un- appellant his hand inside her put his Then he hand touched her breasts. derpants vagina. and touched her underpants finger in her and stuck his her vagina. appellant asked LL testified theory MR was The defense was that jeans her, my off?” glad I took “Wasn’t and influenced adults to fabricate coached against appellant. The de- her accusation morning, appel- next LL testified that the a number fense established оf inconsistencies her, you “Are mad at me?” lant asked She previous support To in MR’s statements. that, later respond. did not She testified theory' that adults who were biased appellant’s along day, riding in car while MR, appellant the defense against influenced daughters, appellant’s with her sister and that MR’s mother was introduced evidence control appellant [her] her “not to let sex told relationship appel- engaged a lesbian life.” February rela- lant’s wife until tionship appellant’s terminated when wife de- that, they re- LL testified further when begin living with clined to leave him and house, grandparents’ appellant to the turned MR’s mother. lay if he could on the floor with asked her her. again orally her if he could sodomize found court members she did not know what She testified that committing an indecent act with guilty of meant, MR, guilty but she said “no.” but of the lesser-included offense granted OF LIEUTENANT COLONEL as FOR CAUSE 1. The other issues are follows: RETHERFORD, WHO EXPRESSED DISAP- ABUSED WHETHER THE MILITARY JUDGE ACQUITTAL OF A OVER THE POINTMENT APPEL- HIS DISCRETION BY PROHIBITING WITH THE SAME OF- SOLDIER CHARGED FROM PRESENTING ONE OF HIS LANT A AS APPELLANT IN PREVIOUS FENSES VIABLE TO THE PANEL: FEW DEFENSES COURT-MARTIAL. TWO THAT THERE EXISTED POSSIBLE THE TRIAL DEFENSE COUN- WHETHER OF THE SEXUAL ABUSE OF SOURCES ASSIS- SEL PROVIDED INEFFECTIVE HIS AND THAT FATHER, HIMSELF AND TO APPELLANT BY NOT PRE- TANCE ALLEGATIONS ARE NOT INCONSIS- LL’S EVIDENCE OF APPELLANT’S SENTING FROM ONLY TENT WITH ACTUAL ABUSE RESTITUTION ON SENTENCING. OF THE TWO RELATIVES. ONE granted first issue Because we resolve the THE MILITARY JUDGE ERRED WHETHER favor, we do not resolve these issues. DEFENSE CHALLENGE BY DENYING THE appellant’s that, Finally, Third, said, LL testified after Ias the nature of the acts grandfather ap- and her drinking, had been positions They are similar. involve pellant drunk and about to fall on the accused’s authority young girls. adult over forward, children. up As he fell held him she They approxi- involve instances hands, with her and he leaned forward and mately age. Although the same [AM]’s any- “French-kissed” her. She did not tell testimony indicates that it occurred initial- one she because was too embarrassed. She [old], ly years when she was 6 it that she did not reveal old, continued until she was 12 or 13 being behavior until she was treated approximate age which is the atof least gynecologist gynecolo- for an infection. The one of the victims in this case. gist sexually asked her if she was active or I find proffered abused, sexually had been and at that time *4 government can be considered [AM] apрellant she accused abusing her. Based by the members of the court for limited testimony, appellant on LL’s was convicted purpose, motive, any, if to show show committing indecent acts with her. is, scheme; continuing plan or that to show AM, Appellant’s daughter, natural also tes- Sergeant that Master had an Morrison tified that she sexually by had been abused unnatural sexual desire for appellant. Appellant with age near the the victims this case and any involving offеnses AM. satisfy that order to those sexual de- sires, authority testimony at he would use his AM’s the Article 822 adult over investi- gation young girls to beginning described molest them. numerous acts when she ending was “around six” and short- Third, that had opportunity he or ly after 13th birthday. her AM testified that ability that; to do and appellant helped tampon her insert her first Fourth, purposes, any, for its if limited taught her how to kiss. She recalled to show a lack of mistake. oral performing appellant ger- sex on “in the Finаlly, military judge announced that he housing man bathroom.” She testified that applied had “the balancing test” and appellant rubbing she remembered geni- his that concluded value AM’s against tals hers tickling and his mustache substantially outweighed was “not legs places.” her and “other danger prejudice, of unfair confusion considering motion in limine After issues, or misleading the members reviewing AM’s at the Article the court.” investigation, made the years AM was at the time of trial. following findings of fact and conclusions of She testified that when she was between law: old, years appellant taught and 6 her how to First, the fact finder could find kiss, put her vagina, fingers fondled preponderance of the evidence that vagina. in her She testified that he “French alleged occurred; misconduct her, reciprocated. kissed” and she Second, alleged the acts in this case are that, years when testified she was many respects similar in to those about old, appellant performed oral sex on her and testify. They which [AM] would tend to then kissed unusual, her and fondled her. She de-
demonstrate an unnatural sexual appellant scribed another occasion when took Sergeant fascination Master Morrison per- her into his bathroom and told her young girls. towards nature of form acts are oral sex on him. She testified that They touching, similar. she involve fondling, public places: often in remembered the feel of his in the mustaсhe when her, case, performed instance of the in this oral sex on and that he victim penetrated in a people; digitally room with other in- her “a lot.” She testified [AM], appellant stance of in one in a Ger- told her she was instance “so house, [her]”, tight,” public-type man bath all of a nature. like be “he would inside § Justice, 2. Uniform Code of 10 USC Military surprised that he was Appellant testified saving her for hus- [her] “he was
and that after allegations. He testified that put by LL’s aрpellant then testified that band.” She divorce, for a he asked his wife top genital her of him and rubbed her on area with his. hitting me at one just starts all this stuff nonstop. And it was just It time. increasingly grew that she AM testified allegation, and had to after allegation conduct uncomfortable commander, keep going to the battalion that, birthday, before her 13th at some time every week. commander almost company However, stop, him to he did. she asked “[v]ery that his wife becаme He testified that, was 15 she when she also He testi- he filed for divorce. hostile” after old, up her came behind every- threatened to take fied that “[s]he’s washing she dishes and caressed while thing cherished.” I have ever “right in punched him her buttocks. She laughed. plexus,” solar Discussion testimony, the of AM’s At the conclusion 404(a), Manual for Courts- MiLR.Evid. members as
military judge instructed the (1995 ed.),3 Martial, out sets follows: person’s of a general rule: “Evidence by you may considered *5 This evidence be person’s a of a character is character or trait very purpose, it’s for its for a limited purpose proving for the not admissible purpose purpose the limited limited —for conformity person therewith acted that the type any, if some tendency, to establish its This has particular a occasion.” Court on of an unnatural fascination the accused of un- consistently that evidence stated young a case for or to establish this solе- may not be introduced charged bad acts design. a plan a or or It motive or scheme propensity has a ly to show that accused tendency, any, if may also be for its used charged. type See to commit crimes of the gratify his sexual [to to establish an intent Miller, 63, (1997); 65 v. 46 MJ United States desires]____ may or It also be used lust Castillo, 145, 150 States v. 29 MJ United tendency, a any, if rebut defense for to Hicks, (CMA 1989); 24 States v. MJ United part of accident on the of the accused. (CMA 1987); 3, Rappa- v. 7 (CMA 1986). 445, port, 22 MJ 447 defense, Appellant in his but limit- testified allegations the testimony ed his to direct 404(b) excep- sets out several MiLR.Evid. concerning LL. He that he awak- testified 404(a). prohibition in Mil.R.Evid. tions to pulling during night to find LL on ened crimes, wrongs, It állows other “[e]vidence right pressing his arm hand and his hand including “proof purposes, or acts” for other He to her chest. testified that his hand was intent, motive, preparation, opportunity, nightshirt. He withdrew his outside her identity, or absence of mis- plan, knowledge, whisperеd right to isn’t hand and “This take or accident.”4 doing. your you’re You need to talk to what Reynolds, v. 29 MJ In United States 13 at mother.” LL was or 14 (CMA 105, 1989), adopted a this Court 109 that, they Appellant while time. determining admissibility three-part test for car, to riding in he told words 404(b): Mil.R.Evid. offered under of evidence effect, you in going get is trouble. “Sex to, know, (1) control you reasonably sup- be in more You need the evidence Whether drinking ports finding by yourself.” admitted a the court members crimes, prior evening, but he denied сommitted homemade wine acts; wrongs, or kissing LL. appellant’s at the time of court-martial. provisions to the version effect
3. Manual are cited All appellant’s applicable trial. The 1998 version Accordingly, at whether the evi- we do not decide unchanged, unless otherwise indicated. is under would have been admissible dence at issue Mil.R.Evid. 414. permits of similar 4. 414 Mil.R.Evid. cases, but it crimes in child molestation 122
(2) Whether the evidence makes a “fact signature marking as the оffense ‘the ” consequence” probable; or more less handiwork of accused.’ United States Gamble, (CMA (3) 1988) (in- 298, v. MJ Whether the value of the evi- omitted). substantially dence is ternal citations outweighed danger prejudice of unfair under Mil. military judge’s ruling
R.Evid. 403. Where admissibility factfinding, of evidence includes prong Proof of the first is if satisfied we will not overturn the findings fact proven by preponderance the conduct is unless are erroneous. United the evidence. See Huddleston v. United (1995). Ayala, States, 681, 690, U.S. S.Ct. Where, case, as in this (1988). prong L.Ed.2d 771 The first is not at determines that the evidence is admissible issue this case. If AM’s 404(b) under Mil.R.Evid. and Mil.R.Evid. believed, prong the first is satisfied. 403, we will not except reverse for a “clear Turning to the prong, second the “fact of Miller, abuse discretion.” See atMJ consequence” that prob- is made more or less evidence, able trial counsel offered the motive, intent, plan, oppor- show analysis Our of AM’s leads us to tunity or ability, and lack of mistake. The following conclusions: military judge ruled that the evidence was Relationship between appel- victims and motive, plan scheme, admissible or show only lant The common all element is that ability opportunity, and lack of mistake. three girls. victims were AM was appellate Government counsel assert that the daughter; natural LL was his prove evidence was also admissible to intent niece; MR was unrelated. operandi. and modus operandi Mоdus *6 litigated not admissibility as a basis of at the Ages the victims: AM testified that the of court-martial. years abuse started when she was 4-6 Munoz, In United States v. 32 MJ 363 and years continued until she was 13 old. (CMA 1991), upheld this Court the admission LL testified 14 years that she was old when uncharged of evidence of sexual misconduct the acts occurred. MR would have been 8 scheme, plan though show a or even there years old only when the act occurred. The 12-year gap was a uncharged between thе common a range ages element is broad of charged misconduct and the misconduct. from 4-14. This Court noted that common “[t]he factors Appellant Nature the charged acts: of victim, age were the of the situs the fondling, kissing,” digital “French and offenses, the surrounding circumstances their LL, penetration indecently touching and commission, fondling and the nature of the MR. range AM testified to a broad of sexual misconduct.” Our decision in Munoz was acts, ranging kissing fondling from consistent with in our earlier decision United cunnilingus and LL fellatio. AM and both (CMA Braman, them, kissing” accused of “French 1984), uncharged where we held that acts private in but described a act her home charged “must be almost identical to the drunken, public LL described a act. plan acts” to as be admissible evidence of a or scheme. v. Rappoport, Cf. Situs the acts: AM described conduct in (evidence supra “disparate acts” of illicit^ privacy pub- LL the of her home. dеscribed drug sex and abuse was inadmissible because lic conduct outside the home. MR described it propensity, plan). showed not appellant’s conduct in home with other chil- nearby. regard, military dren In this the
Where is offered to show judge’s finding of all charged fact that the operandi, modus “high there must be a de uncharged “public” gree acts were similarity between the extrinsic of testimony charged fense and the erroneous. AM’s the offense.” The simi was that fel- larity private great must be so that it is “like latio in a occurred the bathroom her of motive on the issues was minimal home, as German bathhouse public a not military judge found that and intent. judge. by military found the sexual appellant’s “unnatural showed the acts no There is the acts: Circumstances of military the girls.” What for desire the kiss- AM testified that common theme. ie., evidence, propensity judge found home, family in fondling occurred the ing pedo- toward tendencies appellant hаd that priva- sodomy in the occurred and the acts philia. alleged cy or bedroom bathroom. children while several acts with occurred Likewise, ability opportunity living in a sleeping together and adults were question no There was not in issue. were touching as the MR described room. abili opportunity and had the that children occurring in a bedroom while other readily admitted He the acts. ty commit room. but were the house another it. acts span: AM the Time nоt issue. Lack of mistake was trial, the stopped years about 10 before mistake or accident. not assert did LL. the acts described before allegation, appellant respect to LL’s With gap to admissibili- While this time is not fatal with his arm awakened admitted ty, probative it the value to show lessens LL initiated asserted that but he around plan from or scheme. This case different the act. incidents, Munoz, though 12 where the even years apart, kinds of both involved samе Assuming deciding without family committed home acts of AM’s value minimal daughters, where with his two accused satisfy sufficient to issue of intent is on the approximately same daughters were it we hold that prong Reynolds, second by their fa- age they were victimized when prong prejudicial fails the third because ther. outweighed pro impact of AM’s by AM The offenses described bative value. We conclude that acts described of far serious than more sufficiently to the AM are similar daugh appellant’s natural AM was fenses. plan charged acts Like to show scheme. niece, more a much ter. LL was wise, degree high do not have the Appellant and MR were relative. distant similarity required operandi. to show modus *7 unrelated. isolated LL and MR described disparate All sexual that the record shows is incestuous, long- an incidents. described ages young girls varying of under acts with pen kissing, digital pattern fondling, of term circumstances. various etration, virtually eunnilingus, and fellatio — reject argu- Because we the Government’s except vaginal every act intercourse. sexual ment the was admissible to we a mil Notwithstanding give the deference operandi, decide show modus we need not Mil.R.Evid. itary judge balancing on under military judge’s the rul- sustaining whether 403, the hold that we would ing operandi on the of modus basis his abused discretion. theory process, violate since that was not due Riley, v. litigated at trial. See United States Decision (1999). 410, Army the decision of The Appeals is reversed with admis of Criminal Turning to the other bases for Court guilty of the respect findings to the sibility and re asserted the Government specifications the sen- judge, military Charge we conclude lied on respect to the It with tendency to show tence. is affirmed had some the evidence intent, remaining guilty. The case findings were not but these issues motive and Judge overtly Advocate General charged returned to The acts were so contested. Army of Crimi- in the for remand to Court and intent were not sexual that motive may court either dismiss hap Appeals. the acts nal That was whether issue. issue Charge and reas- Thus, specifications and its pened. value on sess sentence the basis remain- LL long-standing as an outlet for these ing findings guilty; may Whitner, it supra authorize a See desires. at 460-61. It rehearing. operation also indicated a method of entail-
ing
exploitation
posi-
deliberate
of his adult
authority
accomplish
tion of
his desired
SULLIVAN, Judge,
whom
with
gratification.
sexual
v.
United States Meac-
CRAWFORD, Judge, joins (dissenting):
ham,
(10th Cir.1997).
115 F.3d
charged
placing
with
his Finally,
repeatedly
the military judge
8-year-old
hand inside the underwear of
MR
warned the members that
could
(the
friend)
daughter
family
aof
close
appellant
use the evidence to show
had a
touching
vagina
her
with an intent
satisfy
probably
bad character and therefore
com-
his lust. He
charged
was also
with putting
charged
mitted the
offenses. United States
thighs
his hand on the
breast
13-
Cir.1990).
848, (9th
Hadley,
v.
F.2d
(his niece)
year-old
putting
LL
his fin-
disagree
majority’s
with the
selective
ger
vagina
inside her
satisfy
with intent to
discounting of the relevance of this un-
Finally,
charged
his lust.
put-
charged-misconduct evidence for these Mil.
tongue
ting his
inside the mouth of LL -with
404(b) purposes.
majority
R.Evid.
fo-
Thus,
satisfy
prosecu-
intent to
his lust.
difference,
on
cuses
distinctions without a
tion
particularly required by
law1 to
ie.,
father instead of
uncle or head of
prove appellant’s
passiоns
sexual desires or
household, appellant’s
visited
home as crime
part
as an essential
of this child sexual abuse
house,
situs instead of a relative’s
and minor
Whitner,
case. See United
v.
51 M.J.
age differentials at various
(1999) (fact
times of the mis-
disputed
that element not
view,
In my
conduct.
these
nei-
distinctions
prosecution’s
does not remove
burden of
singularly
support
ther
nor together
a deter-
proof),
McGuire,
citing
Estelle
502 U.S.
mination of irrelevance. See Mil.R.Evid. 401
475,116
(1991).
112 S.Ct.
L.Ed.2d 385
tendеncy
(any
to make existence of fact of
Moreover, both MR and LL testified that
consequence
probable
probable).
more
or less
charged
Ap-
committed the
acts.
pellant
Turning to
question,
the Mil.R.Evid. 403
also testified but
committing
denied
portion
concerning
AM’s
charged
say, however,
offenses. He did
sodomy
call,
that he
oral
is a much closer
night by
put-
was awakened one
but one
chest,
properly
which is
ting his arm to
entrusted
the trial
her
which he immedi-
hеr,
judge.
Johnson,
See United States v.
ately stopped
MJ
right.”
and told
“This isn’t
(1998) (no
467, 475
Obviously,
abuse of discretion in
whether
committed the
admitting prior sexual
misconduct evidence
acts was the critical issue in this
given
where Mil.R.Evid. 403
Consequently,
question
case.
a sexual
“thoughtful
part
consideration
the military
motive
for such acts
assumed
judge”).
heightened probative
The defense asked the military
value in these one-on-
*8
judge
credibility
one
excise certain
from
contests. See
genеrally Unit-
(CMA
Mann,
1988).
1,
engaged
that she and
ed
v.
26
consensual
States
MJ
3
sodomy.
oral
grant
request
He did not
this
appellant’s daughter,
because he concluded that the
val-
AM,
repeatedly sexually
that he
abused her
ue of
substantially
this evidence was not
ages
from the
of 4 to 13
demonstrat-
outweighed by
prejudicial impact,
its
assum-
ed his “unusual”
desire
sexual
for
ing proper limiting
given.
instructions were
alleged
such as the
victims in this
Johnson,
case.
precise
See United States v.
question
132
before us is whether
(9th Cir.1997).
1279,
addition,
military
F.3d
1282
In
judge
abused his discretion
determining
this evidence established a motive for the
that this
was not un-
doing
charged
against
sexual acts
fairly
“unduly” prejudicial.
MR
See generally
87b(l)(d),
1.
IV,
Para.
Part
§
Manual
for Courts-
Code of
Justice,
form
USC
Military
(1995 ed.);
Martial, United
Art. 134,
States
Uni-
Abel,
45,
fondling
penetration, were similar
digital
105 S.Ct.
United States v.
U.S.
(1984).
words,
465,
properly
In other
evidenced in
charged