UNITED STATES, Appellee, v. Paul E. WHITNER, Sergeant, U.S. Army, Appellant.
No. 98-0837
U.S. Court of Appeals for the Armed Forces
Sept. 24, 1999
51 M.J. 457
Crim.App. No. 9501034. Argued March 2, 1999.
For Appellant: Captain Scott A. De La Vega (argued); Colonel John T. Phelps II, and Lieutenant Colonel Adele H. Odegard (on brief); Major Holly S.G. Coffey.
For Appellee: Captain Kelly R. Bailey (argued); Colonel Russell S. Estey and Captain Mary E. Braisted (on brief); Lieutenant Colonel Eugene R. Milhizer.
Judge SULLIVAN delivered the opinion of the Court.
During the Spring of 1995, appellant, an E-5, was tried by a general court-martial composed of officer and enlisted members at Fort Irwin, California. Contrary to his pleas, he was found guilty of “consensual” sodomy1 and committing indecent acts with another soldier, an E-3, in violation of Articles 125 and 134, Uniform Code of Military Justice,
On September 28, 1998, thе following issue was granted for review by this Court:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ALLOWING INTO EVIDENCE PROSECUTION EXHIBITS 1, 2, AND 3B BECAUSE THESE MATERIALS WERE IRRELEVANT TO THE CHARGED OFFENSES AND BECAUSE THEIR PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE.
We hold that the military judge did not abuse his discretion in determining that the challenged homosexual-oriented videotape and magazine evidence was relevant and admissible at this court-martial. See generally United States v. Rhea, 33 MJ 413 (CMA 1991); United States v. Orsburn, 31 MJ 182 (CMA 1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991); United States v. Mann, 26 MJ 1(CMA), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988); see also United States v. Acton, 38 MJ 330 (1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 377 (1994).
This was a contested case of homosexual assault where the accused did not testify in his own behalf. Instead, his defense focused on the alleged victim‘s lack of credibility and the scientific impossibility of certain portions his testimony (i.e., the sleeping-orgasm problem). The Court of Criminal Appeals found the following facts surrounding this trial.
The appellant was charged, inter alia, with forcible sodomy on another male soldier. The victim testified that he awoke in his own barracks room when the appellant was biting him on the stomach and sucking on his penis. The appellant said “God, you‘re beautiful” and fled from the room. Earlier in the evening, the appellant had invited the victim to sleep in his room.
When questioned by military law enforcement personnel about the incident, the appellant admitted he was bisexual, that he enjoyed oral sex with men, and that he owned homosexual literature and videotapes. He also stated that he found the victim attractive, but could not remember whether he had committed the alleged assault. The statement was admitted into evidence during the court-martial.
Following a consent search of the appellant‘s room, military authorities seized several sexually explicit magazines, catalogues, and videotapes. Over repеated defense objections, the military judge ad-
The military judge in this case admitted the challenged videotape and related materials which had been seized during a consent search of appellant‘s barracks room on October 22, 1994. His ruling was over defense objection that such evidence was impermissible character evidence, irrelevant and its probative value, if any, was substantially outweighed by its undue prejudicial effect. He stated:
Now, with respect to the items of real evidence seized from the accused‘s room, the court finds that, within the photographic materials, there exists the theme or depiction — the theme of the photographic materials that were seized from the accused‘s room is a depiction of the nude male body and the accompanying textural written material further identifies this material as homosexual in nature, indicating male-and-male subject matter. Now, the video material, or the extract of the videotape which was played in court, depicts homosexual acts between males, predominantly performing fellatio.
The defense has objected to this evidence as being character evidence and intermixing its objection as being 404(b) and character. The court finds that this is not character evidence and, as to it being covered by Military Rule of Evidencе 404(b), the court finds that this is circumstantial evidence — these exhibits may provide circumstantial evidence of motive and intent on the part of the accused and are probative on that basis.
The defense has objected that these matters are also irrelevant. The court finds that they are relevant to show the requisite sexual desire of the accused, which is еmbodied within the offense charged or the lesser-included offenses.
The defense has moved that the evidence should be excluded under Military Rule of Evidence 403. The court finds that its prejudicial effect does not outweigh its probative value and, accordingly, the exhibits are not inadmissible for the reasons urged by the defense, and the motion is denied.
However, with regard to thе video material, the court does sustain the objection with regard to the approximate last 15 to 30 seconds of the depiction in the last vignette, which apparently depicts the two individuals about to engage in anal intercourse. That has nothing to do with this case, so that portion shall be redacted from the videotape.
He reaffirmed this ruling later in the trial when he admitted, as government evidence, a pretrial statement of appellant acknowledging his bisexuality, more specifically admitting his prior engagement in oral sex and his finding men sexually attractive and the alleged victim “nice looking.”
He did, however, instruct the members concerning the proper use of this videotape evidence, as follows:
MJ: Very well, Prosеcution Exhibits 1, 2, 4, and 5 for identification are received into evidence as Prosecution Exhibits 1, 2, 4, and 5.
Now, members, these will be provided to you at the appropriate time in the trial. However, I would also want to caution you at this time, generally ... and I will reiterate this again at a later point ... that you may consider this evidence which has been admitted for the limited purpоse of its tendency, if any, to prove a motive of the accused to engage in oral sodomy or to show a plan or design by the accused to sodomize or indecently assault another individual, and as evidence of its tendency, if any, to show the accused‘s sexual desires in these regards.
Now, you may not consider this evidence otherwise, for any other purpose. You cannot conclude from this evidence that the accused is, therefore, a bad person or that he has criminal tendencies and that he is, therefore, more likely to have committed the offenses charged. Now, does each member understand this limiting instruction and the limited purposes for which you may consider this evidence?
(Affirmative response from each member.)
MJ: Apparently so.
He substantially repeated this instruction when the challenged videotape was admitted and played for the members, as well as during final instructions.
Appellant pleaded not guilty to various sex offenses (forcible sodomy and indecent assault) and related offenses (larceny, housebreaking, burglary) which involved homosexual acts with a subordinate servicemember in that servicemember‘s barraсks room. He asserts that the sexually explicit, homosexual-oriented, materials seized from his own room in this same barracks were improperly admitted as evidence at his court-martial. He argues that this evidence was not relevant to any issue in his case. See
Our starting point in reaching this conclusion is
Rule 401. Definition of “relevant evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less prоbable tha[n] it would be without the evidence.
The military judge was initially tasked with determining whether the prosecution‘s evidence of appellant‘s homosexual videotape and similar materials was relevant under the above rule. We review his decision on relevance under a clear-abuse-of-discretion standard. See Orsburn, 31 MJ at 187.
As noted above, appellant was charged with several crimes involving homosexual conduct toward a fellow servicemember in their barracks. These charges required the prosecution to prove beyond a reasonable doubt that appellant had an intent to orally sodomize the alleged victim, an intent to gratify his lust or sexual desires, and an intent to commit indecent acts with him. See Art. 125 and paras. 64, 63, and 90, Part IV, Manual, supra (1994 edition). We have repeatedly recognized that an accused‘s possession of pornographic books, magazines, or videos concerning a particular sex partner or sexual act, at or near the scene of an alleged sex crime, around the time of that alleged offense may be relevant evidencе of his intent or state of mind at that time, depending upon the circumstances of a particular case.3 See United States v. Mann, United States v. Orsburn, and United States v. Rhea, all supra. In view of this case law, the military judge in this case did not err in admitting the challenged evidence to show the above-noted intents required to prove the crimes charged in this case. See United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir.1998); contra People of Guam v. Shymanovitz, 157 F.3d 1154, 1158 n. 8 (9th Cir.1998) (discussing military cases).
The military judge also admitted the challenged evidence to show appellant‘s motive for committing the charged offenses. See generally 2 Wigmore, Evidence §§ 385-87 (Chadbourn rev.1979). Such an evidentia-
The military judge finally admitted the homosexual-oriented materials to show a plan or design on appellant‘s part to commit the charged offenses. He reviewed the proffered tape and related materials and concluded they depicted a plan or method to secure homosexual sex from unsuspecting servicemembers. See generally United States v. Brannan, 18 MJ 181, 183 (CMA 1984). Materials suggesting sexual abuse of the superior-subordinate relationship in the military environment or coercive sexual conduct in a military-type environment rationally support this ruling. See United States v. Miller, 46 MJ 63, 66 (1997).
The second question in this case is raised under
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Appellant argued at trial and before this Court that the challenged evidence was unduly prejudicial because it generally inflamed the members against predatory or promiscuous homosexuals and thus distracted them from deciding his case based on the particular evidence before them. The military judge again was tasked with determining whether the videotape and related materials should be excluded because оf their low probative value and their tendency to inflame the members. See United States v. Walker, 42 MJ 67, 73-74 (1995). We review his decision overruling an objection under this rule using a clear-abuse-of-discretion standard. See United States v. Ruppel, 49 MJ 247, 250 (1998).
Appellant was charged with forcible sodomy (Art. 125 and para. 51b, Part IV, Manual, supra); burglary with intent to commit sodomy (Art. 129, UCMJ,
Appellant nevertheless argues that the challenged evidence had reduced or low probative value on these issues because appellant affirmatively relied on a consent defense and acknowledged his bisexuality. Cf.
We also reject the defense‘s discounting of the probative value of this evidence on grounds it was cumulative. First, the purported cumulative evidence, i.e., appellant‘s pretrial admissions, were more generic in nature and undermined by appellant‘s repeated protestatiоns that he was too drunk to remember his actions and intentions on the night in question. See Old Chief, supra at 187-90, 117 S.Ct. at 654. Second, the challenged evidence was specific in nature, particularly with regard to context, i.e., oral sex between men in a military or quasi-military setting. Third, the challenged evidence had a nexus to the charged offenses: it was found in appellant‘s room on the day in question, a short distance from the alleged attack. We conclude that the challenged evidence retained its high probative value in these circumstances. See United States v. Mann, supra; see generally Old Chief, supra at 190, 117 S.Ct. 644 (admission of prior-crimes evidence to provide coherent “narrative” does not constitute an abuse of discretion under
Finally, even if the challenged pictorial evidence was not highly probative, we conclude that its admission and display to members did not unduly prejudice appellant. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). He was charged with two sexual offenses involving force and a lack of consent on the part of his alleged victim. Yet, despite the coercive homosexual acts portrayed in some of the challenged materials, he was found not guilty оf these charges. Cf. Shymanovitz, supra at 1161 (“highly likely” accused found guilty on basis of “highly inflammatory” evidence). In addition, although appellant was found guilty of two sexual offenses not requiring force or a lack of consent, he did not actively dispute the prosecution‘s overwhelming proof of his participation in these lesser offenses. Here, there was eyewitness testimony concerning аppellant‘s acts from the other soldier involved; DNA evidence of the alleged victim‘s semen on appellant‘s shirt; and his own pretrial statement effectively acknowledging his physical attraction to the other soldier. See also United States v. LaChapelle, 969 F.2d 632, 638 (8th Cir.1992). In these circumstances, and in view of the judge‘s repeated limiting instructions, we conclude that aрpellant‘s claim of unfair prejudice from these sexually explicit materials is not persuasive. Orsburn, 31 MJ at 188; see also Simpson, 152 F.3d at 1249 (nature of charges themselves brings some risk of offending average juror but careful judicial attention can prevent undue prejudice); United States v. Reynolds, 29 MJ 105, 110 (CMA 1989) (unfair-prejudice ruling upheld concerning uncharged sexual misconduct admitted under
The decision of the United States Army Court of Criminal Appeals is affirmed.
EFFRON, Judge (concurring in part and in the result):
To the extent that the majority opinion relies upon the admission into evidence of material that logically relates to the specific aspects of this case (e.g., suggesting sexual abuse of the superior-subordinate relationship or coercive sexual conduct in a military-type environment), I concur. The remaining materials at issue, which relate to the general sexual interests of appellant, are of questionable relevance under