Opinion of the Court
A gеneral court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of willfully disobeying а superior commissioned officer, false official statement (2 specifications), aggravated assault, and assault consummated by a battery, in violation of Articles 90, 107, and 128, Uniform Code of Military Justice, 10 USC §§ 890, 907, and 928, respectively. He was sentenced to a bad-conduct discharge, confinement fоr 6 years, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Criminal Appeals affirmed in an unpublished opinion.
We granted review of the following issues:
I. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING EVIDENCE OF PRIOR DOMESTIC ABUSE AS UNCHARGED MISCONDUCT.
II. WHETHER THE MILITARY JUDGE ERRED BY ALLOWING TRIAL COUNSEL TO IMPROPERLY ARGUE FACTS NOT IN EVIDENCE OVER DEFENSE OBJECTION.
For the reasons stated below, we affirm.
I. Facts
The Court of Criminal Appeals summarized the evidence as follows:
[A]ppellant shot his wife with a pistol, thereby inflicting serious arm and abdominal injuries. All further facts were fogged by the substantially different stories told by the victim, Mrs. Delia Robles-Ramos, before and during the trial, and by her admitted collusion with and lying for the appellant.
Unpub. op. at 2.
Appellant defended against the assault charges on the theory that the shooting was accidental. Although the descriptions of the events offered by appellant and his wife changed from time to time, as implied in the passage quoted above, all of the vеrsions had the two physically struggling over the weapon when it discharged. At one point in her testimony, appellant’s wife even testified that it was she, not appellant, who had introduced the gun into their argument. The Government, however, produced substantial physical and other evidence to negаte the theory of accidental discharge.
Trial counsel had been given permission by the military judge to treat appellant’s wife as a hostile witness. During his redirect examination, trial counsel was permitted, over defense objection, to ask her about a prior physical altercation between her and appellant, for the purpose of negating the defense of accident. See Mil.R.Evid. 404(b), Manual for Courts-Martial, United States (1995 ed.).
Q. Mrs. Robles, isn’t it true that near the end of August or September time frame, that you were severely beaten by the accused?
A. No. I wouldn’t say severely beaten.
Q. Did Columbus Police Department intervene?
A. Yes.
Q. And was First Sergeant Green notified?
A. Yes.
Q. What would — how would you characterize the beating?
A. There were a few slaps on both parts. That was basically it.
During his closing argument prior to sentencing deliberations, trial counsel contended that Mrs. Robles’ changing stories could bе explained by the fact that, as a victim of an assault with a dangerous weapon, she likely was afraid of retribution — and, inferentially,
II. Discussion of Issue I
Mil.R.Evid. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in сonformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident____
(Emphasis added.)
We have applied a three-part test to determine whether uncharged misconduct is admissible. See United States v. Loving,
First, the evidence must reasonably tend to prove that the accused committed thе uncharged crime, wrong, or act. United States v. Mirandes-Gonzalez,
Mrs. Robles, herself, admitted the prior domestic physical altercation. Since trial counsel’s question did not constitute evidence, the only evidence of the nature of thаt altercation was Mrs. Robles’ description of it and certain corroborative objective evidence. In this context, the prior act in question involved “a few slaps on both parts” that resulted in a response by the local police department and involvement of appеllant’s command. Mrs. Robles’ testimony satisfied this first prong as to that evidence.
Second, the evidence must make some fact of consequencе more or less probable. United States v. Ferguson,
Finally, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. Mil.R.Evid. 403. Evidence that appellant had exchanged “a few slaps” with his wife tended to prove аn atmosphere in which physical violence existed and tended to diminish the likelihood that any such violence was an accident. On the other hаnd, there was little likelihood of unfair prejudice from evidence of “a few slaps” and an uncontroverted denial that it had amounted to a severe beating.
Accordingly, applying the standard three-part test, we conclude that the military judge did not abuse his discretion in admitting the challenged evidence of a prior domestic altercation to negate appellant’s affirmative defense of accident.
III. Discussion of Issue II
Closing arguments by cоunsel are limited “to evidence in the record and to such fair inferences as may be drawn therefrom.”
Under these circumstances, trial counsel drew a reasonable inference from the fact that Mrs. Robles had been the victim of aggravated assault, arguing that she was afraid of either further violence from appellant or losing his financial support upon conviction and imprisonment. Counsel offered this for consideration by the members, who could agree or not, in terms of whether to draw the inferences from the variations among her versions of the event.
Furthermore, trial counsel noted in his argument that the members should “draw [their] own conclusions from the facts.” The military judge instructed the members that the remarks by counsel were argument, not evidence. Accordingly, there was no risk that the members accorded inappropriate weight to the remarks.
IV. Decision
The decision of the United States Army Court of Criminal Appeals is affirmed.
Chief Judge COX and Judges SULLIVAN, CRAWFORD, and GIERKE concur.
Notes
. Alternatively, the evidence was offered and admitted under the same rule as relevant to appellant’s intent. However, the Government does not advance that theory in this Court.
. See United States v. Loving,