United States v. Wilson ( 2024 )

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Michael L. WILSON, Staff Sergeant
United States Army, Appellant
No. 23-0225
Crim. App. No. 20210276
Argued January 17, 2024—Decided May 23, 2024
Military Judge: G. Bret Batdorff
For Appellant: Major Robert D. Luyties (argued);
Colonel Philip M. Staten, Lieutenant Colonel Au-
tumn R. Porter, Captain Tumentugs D. Armstrong,
and Michael Nanchanatt (law student) (on brief);
Major Mitchell D. Herniak.
For Appellee: Captain Patrick S. Barr (argued);
Colonel Christopher B. Burgess and Major Kalin P.
Schlueter (on brief).
Chief Judge OHLSON delivered the opinion of the
Court, in which Judge SPARKS joined, except as to
Parts II.B.1.c. and II.B.2., Judge MAGGS joined,
except as to Part II.B.1., and Judge HARDY joined.
Judge SPARKS filed a separate opinion, concurring
in part and in the judgment. Judge MAGGS filed a
separate opinion, concurring in part and in the
judgment. 1
1 Although Judge Johnson recused herself prior to oral argu-
ment, we have a quorum to decide this case. C.A.A.F. R. 6(a).
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
Chief Judge OHLSON delivered the opinion of the
Court except as to II.B.1.c.
In this case where Appellant was charged with sexual
offenses involving two young girls, we conclude that the
military judge did not abuse his discretion when he ruled
that Appellant’s journal—which contained graphic descrip-
tions of sexual acts between children and adults—was ad-
missible under Military Rule of Evidence (M.R.E.) 404(b)
as proof of motive and intent regarding the charged of-
fenses. In terms of his subsequent M.R.E. 403 analysis, we
conclude that the military judge did not abuse his discre-
tion when he ruled that the probative value of the journal
entries was not substantially outweighed by the danger of
unfair prejudice on the ground of motive. However, we con-
clude that he did abuse his discretion when he ruled that
the probative value of the journal entries was not substan-
tially outweighed by the danger of unfair prejudice on the
ground of intent. Nevertheless, we conclude that this evi-
dentiary error did not have a substantial influence on the
findings or sentence in this case. Accordingly, we affirm the
decision of the United States Army Court of Criminal Ap-
peals (CCA).
I. Background
The evidence adduced at trial demonstrated that Appel-
lant repeatedly sexually abused his biological daughter,
EW, over the course of many years, beginning when she
was five years old. Appellant penetrated his daughter
orally and anally with his penis. He also committed other
nonpenetrative sexual acts, such as touching her breasts,
buttocks, and genital area. Although EW briefly recanted
her later allegations about this sexual abuse, the Govern-
ment introduced evidence of a voice message in which EW
confided in a friend that her mother was pressuring her to
falsely recant. Moreover, the Government admitted into ev-
idence the mother’s federal conviction for witness tamper-
ing in this matter. Separately, Appellant had sexual inter-
course with a twelve-year-old neighbor girl, SB.
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United States v. Wilson, No. 23-0225/AR
Opinion of the Court
In the course of investigating this case, law enforcement
officers conducted a search of Appellant’s house and found
“a ‘leather bound journal’ [in] a nightstand near the bed in
the home’s master bedroom.” 2 The military judge found:
“The journal contained handwritten, graphic, and highly
sexualized stories. Some stories included prose involving
sexual behavior between adults. Other stories included
prose involving sexual behavior between an adult and a
child.” The journal was dedicated to “Lori,” which is the
name of Appellant’s wife. In a custodial interview with law
enforcement officers, Appellant “acknowledged and admit-
ted that the journal belonged to and was written by him.”
The military judge in this case described the relevant
journal entries as follows:
One story describes a sexual act between a neigh-
borhood child and an adult man in the neighbor-
hood. The man in the story is named “Mr. Wilson.”
Another story describes sexual acts within a fam-
ily, including the sexual assault of a minor girl by
her older sibling. The third story takes place in
Afghanistan and centers on Afghan parents who
teach their virgin daughter how to have sex, in-
cluding anal sex, with an American Soldier. In the
story, the child engages in (a) sex with her father
in order to prepare her for sex with the American
Soldier, and (b) vaginal and anal sex with the
American Soldier, who is a doctor. [Per his Soldier
Record Brief, the Accused earned a GT score of
131, is a 68W Combat Medic, and his most recent
“duty title” is “Health Care Sergeant” . . . .] . . . .
During the story, her parents inform their daugh-
ter that what she will do with the American
2 In his written ruling, the military judge referred to Appel-
lant’s notebook—which contained graphic handwritten descrip-
tions about sexual acts between children and adults—as a “jour-
nal.” In their briefs before this Court, both Appellant’s counsel
and Government counsel similarly use the word “journal.” Brief
for Appellant at 4, United States v. Wilson, No. 23-0225
(C.A.A.F. Nov. 20, 2023); Brief for Appellee at 4, United States
v. Wilson, No. 23-0225 (C.A.A.F. Dec. 19, 2023). Therefore, for
the sake of consistency and clarity, we use the same term.
3
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
Soldier is “illegal” in “his country.” [During her
child forensic interview, Miss EW stated that the
Accused shared that “in Japan . . . little girls
could get married to adults because it’s legal [in
Japan] . . . and once married they could do what
they wanted to them,” or words to that effect]. At
one point, the story switches to first person by the
doctor. This story ends with the Doctor giving the
child a gift, a necklace. [The Accused allegedly
gave Miss SB a bracelet.]
(Bracketed sentences and third and fourth set of ellipses in
original.)
In the course of Appellant’s court-martial, the military
judge issued a pretrial order setting the deadlines for vari-
ous events, including an October 26, 2020, deadline for the
Government to give notice about any M.R.E. 404(b) evi-
dence it intended to introduce at trial. The Government
generally complied with this deadline, but it notably did
not list Appellant’s journal in its M.R.E. 404(b) notice.
However, the Government filed a November 16, 2020, mo-
tion to pre-admit the journal under M.R.E. 401 and 402 “as
direct evidence of [Appellant’s] intent to engage in sexual
behaviors with minors.” The defense opposed the motion
because “the evidence . . . is irrelevant, improper, and prej-
udicial pursuant to M.R.E.s 402, 403, and 404b.” (Empha-
sis added.) The defense asked the military judge to either
sustain its objection or reserve its ruling until the trial.
At a November 30, 2020, Article 39(a), Uniform Code of
Military Justice (UCMJ), 3 session on the Government’s
motion, trial counsel initially took the position that the
notebook was “a statement of the accused” and did “not be-
lieve it [was] 404(b).” Counsel further explained that “it
[was] relevant as direct evidence of the [Appellant’s] intent
to engage in sexual acts with—.” However, before counsel
could finish the sentence the military judge interjected,
“Hold on, isn’t that 404(b)? One of the 404(b) purposes spe-
cifically listed therein is to prove intent, right?” Eventually,
the trial counsel stated: “[T]he government would concede
3 10 U.S.C. § 839(a) (2018).
4
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Opinion of the Court
that this can be considered 404(b), while that’s not initially
how we were evaluating it.” In response, the defense ar-
gued that “the government has [not] established sufficient
connection between an amorphous intent regarding what’s
contained on these pages, and any of the named victims in
this case.”
In a later written exchange with the military judge and
the parties, the Government stated that it sought to intro-
duce the stories from the journal on the grounds of both
motive and intent. And on May 10, 2021, the military judge
ruled: “[T]he defense’s 402, 403 and 404(b) objections to the
three journal entries are overruled. The government must,
of course, still lay the foundation and overcome any other
evidentiary hurdles for the journal evidence during trial.”
In an undated written ruling, the military judge provided
a detailed analysis of his decision.
At trial, a panel with enlisted representation sitting as
a general court-martial convicted Appellant, contrary to
his pleas, of three specifications of rape of a child, three
specifications of sexual abuse of a child, and one specifica-
tion of sexual assault of a child in violation of Article 120b,
UCMJ, 10 U.S.C. § 920b (2012 & 2018). Appellant elected
to have the military judge sentence him, which resulted in
a dishonorable discharge, confinement to two life sentences
with the possibility of parole plus twenty additional years,
and reduction to the grade of E-l. The convening authority
approved the findings and sentence as adjudged. Subse-
quently, the military judge entered judgment.
At the CCA, the Government “concede[d] certain lan-
guage should be excepted from multiple specifications,” but
otherwise disputed Appellant’s assignments of error.
United States v. Wilson, No. ARMY 20210276, 2023 CCA
LEXIS 234, at *1, 2023 WL 3815238, at *1 (A. Ct. Crim.
App. May 31, 2023) (summary disposition) (unpublished).
The CCA agreed with the Government’s concession but
held that Appellant was not otherwise entitled to relief. Id.
at *1-2, 2023 WL 3815238, at *1. The CCA affirmed the
findings of guilty, as excepted, and upon reassessment, the
CCA affirmed the adjudged sentence. Id. at *8 & n.7, 2023
5
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
WL 3815238, at *4 & n.7. This Court then granted review
on the issue of whether the military judge committed prej-
udicial error by admitting Appellant’s journal under
M.R.E. 404(b).
II. Discussion
In his briefs, Appellant makes three primary argu-
ments. One of those arguments is, in essence, that the mil-
itary judge abandoned his neutral role in the proceedings
when he purportedly became the proponent of admitting
the journal into evidence and coached the trial counsel
about the best way to achieve that goal. We conclude, how-
ever, that this assertion lies outside the scope of the
granted issue and we decline to discuss it further. Accord-
ingly, we will turn our attention to the two remaining ar-
guments in Appellant’s briefs.
A. Proper Notice
Appellant first avers that the Government did not com-
ply with the requirements of M.R.E. 404(b) when trial
counsel failed to provide the defense with proper notice be-
fore seeking the admission of the journal at trial. Appellant
is correct that the Government failed to comply with the
deadline imposed by the military judge’s scheduling order.
That scheduling order required the Government to provide
notice by October 2020 of any M.R.E. 404(b) evidence that
the prosecution intended to offer at trial, but trial counsel
did not raise the prospect of seeking the admission of Ap-
pellant’s journal until November 2020. We note, however,
that the rules do not require the Government to provide
notice based on the timing imposed by a military judge’s
scheduling order. Rather, M.R.E. 404(b)(2)(A)-(B) simply
states that “before trial” the Government must provide the
defense with “reasonable notice of the general nature of
any [M.R.E. 404(b)] evidence that the prosecution intends
to offer at trial.” 4 (Emphasis added.)
4 If the prosecution provides notice during trial, the evidence
still may be admissible “if the military judge, for good cause,
excuses [the] lack of pre-trial notice.” M.R.E. 404(b)(2)(B).
6
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
In cases such as this one where the notice provided to
the defense does not violate due process concerns, it is not
the role of this Court to police compliance with a military
judge’s scheduling order. Instead, it lies within the sound
discretion of the military judge to do so. On appeal, it then
is the proper role of this Court to focus on the government’s
compliance with the provisions of the applicable rules. And
upon engaging in this analysis in the instant case, we con-
clude that, consistent with the requirements of M.R.E.
404(b), the Government “before trial” provided the defense
with “reasonable notice” of the evidence it sought to intro-
duce during the court-martial.
We reach this conclusion for two reasons. To begin with,
it was approximately six months before trial that the Gov-
ernment filed the motion to admit the journal. We concede
that, as Appellant points out, the Government initially did
not specifically argue that the journal was admissible un-
der M.R.E. 404(b). Rather, trial counsel’s stated basis for
seeking the admission of the journal was that it would pro-
vide the panel members with “direct evidence of [Appel-
lant’s] intent to engage in sexual behavior with minors” un-
der M.R.E. 401, 402, and 403. However, we note that
“intent” is a basis for the admission of evidence under
M.R.E. 404(b). Moreover, in response to the Government’s
motion, the defense specifically argued to the military
judge that the journal was not admissible under M.R.E.
404(b), thereby implicitly acknowledging that this M.R.E.
404(b) issue was on the table. And importantly, during lit-
igation of the motion, the military judge pointed out that
the trial counsel’s reason for seeking admission of the jour-
nal—that it demonstrated Appellant’s “intent” when he
committed the acts with the victims—implicated M.R.E.
404(b), and then trial counsel conceded this point. We
therefore conclude that the Government complied with
M.R.E. 404(b) because the defense was given reasonable
Because in the instant case the Government provided proper
notice before trial, the military judge did not need to make a
“good cause” determination.
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Opinion of the Court
notice before trial that the Government intended to seek
the admission of the journal.
Second, contrary to an argument seemingly made by
Appellant in his brief, we conclude that the military judge’s
denial of the Government’s motion to pre-admit the journal
did not vitiate the notice provided to the defense. Appellant
asserts that because the military judge in November did
not grant the Government’s motion to pre-admit the jour-
nal but instead took a wait-and-see approach in regard to
its admissibility based on whether the Government could
eventually lay a proper foundation, Appellant’s counsel
were left not knowing how best to prepare a defense. How-
ever, M.R.E. 404(b)’s notice requirement does not require a
military judge to rule on the government’s motion before
trial, and from November 2020 onward the defense was on
notice that the Government intended to seek the admission
of the journal at trial. In fact, in an email to expert wit-
nesses before trial, the defense counsel wrote: “I anticipate
the Government will attempt to utilize [the journal stories]
to show our client’s intent.” Moreover, trial defense counsel
argued as follows regarding this evidentiary issue:
[T]he defense’s position is that the government
failed to establish the foundation today for the
court to rule on the admissibility of the enclosures,
so should this court not exclude the evidence, the
defense would ask that the court reserve its ruling
on the admissibility of the evidence until trial,
when a proper foundation could possibly be laid by
the government.
Under these circumstances, there is no basis for this Court
to conclude that the Government violated the notice re-
quirement contained in M.R.E. 404(b).
B. Admission of the Journal
Appellant’s other main argument is that we should hold
that the military judge erred when he ruled that the jour-
nal was admissible under M.R.E. 404(b) and M.R.E. 403.
Although Appellant raises a number of valid points in the
course of his argument, we conclude there is an insufficient
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Opinion of the Court
basis for this Court to grant his requested relief of setting
aside his convictions and sentence.
M.R.E. 404(b)(1)-(2) provides that “[e]vidence of a crime,
wrong, or other act . . . . may be admissible for another pur-
pose, such as proving motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, absence of mistake, or lack
of accident.” If a military judge determines that the prof-
fered evidence is properly admissible under M.R.E. 404(b),
he or she then must conduct a M.R.E. 403 balancing test
and exclude this otherwise admissible evidence “if its pro-
bative value is substantially outweighed by a danger
of . . . unfair prejudice.” This balancing test serves as a
means of guarding against “[t]he general risk . . . that
members will treat evidence of uncharged acts as character
evidence and use it to infer that an accused has acted in
character, and thus convict.” United States v. Staton, 69
M.J. 228, 232 (C.A.A.F. 2010).
When the defense challenges on appeal a military
judge’s decision to admit M.R.E. 404(b) evidence at trial,
this Court reviews the military judge’s evidentiary ruling
for an abuse of discretion. United States v. Hyppolite, 79
M.J. 161, 164 (C.A.A.F. 2019). Military judges abuse their
discretion (1) if the findings of fact upon which they predi-
cate their ruling are not supported by the evidence of rec-
ord; (2) if they use incorrect legal principles; or (3) if their
application of the correct legal principles to the facts is
clearly unreasonable. United States v. Ellis, 68 M.J. 341,
344 (C.A.A.F. 2010). As this Court observed in United
States v. Gore, “[T]he abuse of discretion standard of review
recognizes that a judge has a wide range of choices and will
not be reversed so long as the decision remains within that
range.” 60 M.J. 178, 187 (C.A.A.F. 2004).
We conduct our assessment of the military judge’s deci-
sion to admit evidence under M.R.E. 404(b) using the
three-part test enunciated in United States v. Reynolds, 29
M.J. 105 (C.M.A. 1989). Specifically, Reynolds asks:
(1) does the evidence reasonably support a finding that ap-
pellant committed a specific act; (2) does evidence of this
act make a fact of consequence more or less probable; and
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United States v. Wilson, No. 23-0225/AR
Opinion of the Court
(3) is the probative value of the evidence of this act sub-
stantially outweighed by the danger of unfair prejudice? Id.
at 109. “The second prong mirrors the relevance concerns
reflected under M.R.E. 401 and M.R.E. 402, while the third
prong reflects the concerns ordinarily handled under
M.R.E. 403.” United States v. Yammine, 69 M.J. 70, 77
(C.A.A.F. 2010). 5
If the admitted evidence fails to meet any of the factors
laid out in Reynolds, the military judge will have erred. 29
M.J. at 109. This Court must then assess the prejudice, if
any, resulting from that error. Yammine, 69 M.J. at 78.
Prejudice from erroneous evidentiary rulings is reviewed
de novo. United States v. Bowen, 76 M.J. 83, 87 (C.A.A.F.
2017). For nonconstitutional evidentiary errors, the Gov-
ernment has the burden of demonstrating that the error
“did not have a substantial influence on the findings.” Id.(internal quotation marks omitted) (quoting United States
v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)).
1. The Reynolds Factors
We now address each of the three Reynolds factors as
they apply to the instant case. Before doing so, however, it
is important to note that the military judge provided an
admirably detailed written analysis in this case. As a
consequence, the military judge’s ruling is entitled to full
deference by this Court under the abuse of discretion
standard. See United States v. St. Jean, 83 M.J. 109, 113-14
(C.A.A.F. 2023).
a. Reynolds Factor #1: Whether the evidence reasonably
supports that the appellant committed the acts at issue
“The standard required to meet this first prong is low.”
United States v. Thompson, 63 M.J. 228, 230 (C.A.A.F.
2006). And in the instant case, the military judge properly
determined that the evidence reasonably supported a
5 Appellant argues that because using the journal stories im-
plicates the First Amendment, we need to apply an enhanced
analysis to evaluate the admissibility the stories. However, Ap-
pellant cites no binding authority for this point.
10
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Opinion of the Court
finding that Appellant wrote the journal entries that were
at issue. Not only did law enforcement officers discover the
journal in Appellant’s bedroom, Appellant admitted that
the journal “belonged to [him] and was written by him.”
Therefore, the evidence in the record reasonably supports
the military judge’s conclusion that Appellant “committed
the act[]” of authoring the journal entries that were prof-
fered by the Government under M.R.E. 404(b).
b. Reynolds Factor #2: Whether a fact of consequence is
made more probable by the existence of this evidence
The military judge admitted the journals on three of the
grounds listed under M.R.E. 404(b)(2): motive, intent, and
lack of mistake. However, because the military judge did
not instruct the panel on lack of mistake, we need not dis-
cuss that ground. Instead, we will focus on the other two
grounds under which the military judge said the journals
were admissible: motive and intent.
i. Motive
The military judge first reasoned that the journal en-
tries were admissible under M.R.E. 404(b) because they
demonstrated that Appellant had a motive to commit the
charged misconduct. Specifically, the military judge ruled
that the stories written by Appellant showed that sexual
acts between adults and children are what sexually stimu-
lated Appellant. The military judge explained that there
was strong evidence of motive because the journal, which
was “semen-stained,” was found beside the marital bed and
the characters and circumstances of the stories “describing
explicit sexual activities between children and adults”
shared similarities with Appellant’s conduct. For example,
(1) in one story, Appellant gave the adult character his last
name, “Mr. Wilson”; (2) in another story the adult charac-
ter was a soldier and a doctor while Appellant was a soldier
and combat medic; and (3) Appellant’s stories depicted in-
cestuous relationships, and he committed sexual acts on
his daughter. These factors caused the military judge to
conclude that “the three stories constitute non-propensity
evidence of the [accused’s] motive to engage in all of the
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Opinion of the Court
charged offenses.” As shown below, this analysis by the
military judge is supported by our case law.
In United States v. Whitner, 51 M.J. 457 (C.A.A.F.
1999), the appellant was charged with forcible sodomy on
another male soldier. The military judge admitted into ev-
idence pornographic material depicting homosexual con-
duct that had been in the appellant’s possession at the time
of the alleged assault. Id. at 459. In affirming the appel-
lant’s conviction, we held as follows: “Motive evidence
shows the doing of an act by a particular person by evidenc-
ing an emotional need in that person which could have in-
cited or stimulated that person to do that act in satisfaction
of that emotion.” Id. at 461.
Another case, United States v. Rhea, 33 M.J. 413(C.M.A. 1991), is particularly on point with the instant
case, both in terms of the facts and in terms of the legal
issues presented. Therefore, it is worth quoting that case
at length:
In United States v. Mann, . . . this Court was
faced with a case which, on its relevant facts, was
strangely like the one now before us. There, as
here, the accused was charged with committing
indecent acts and sodomy on his minor daughter;
there, as here, the accused, in part, denied the
acts had occurred at all; there, as here, the chal-
lenged evidence in part consisted of books depict-
ing pornographic sexual acts between adults and
children. “Consequently,” there, as here, “appel-
lant’s sexual interests with regard to young girls
. . . was a material issue for the members to re-
solve. . . .”
....
. . . . We concluded there—and we conclude
here—that the accused’s books which were found
at the crime scene and indicate a unique sexual
interest precisely like that reflected in the
charged acts “could reasonably be viewed as re-
flecting or tending to reflect his sexual desires
during the charged acts” [and thus were admissi-
ble under M.R.E. 404(b) to demonstrate motive].
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Id. at 422-23 (second alteration in original) (citations
omitted).
The Rhea decision also expressly rejected the conten-
tion “that ‘motive’ evidence is not relevant—and, thus, not
admissible—when the accused flatly denies the alleged
acts.” Id. at 422.
Consistent with Whitner and Rhea, as well as with a
number of other cases, 6 we hold that the military judge did
not abuse his discretion when he ruled that Appellant’s
journal entries satisfied the second prong of the Reynolds
test regarding motive. In reaching this holding, we under-
score one point: When conducting an M.R.E. 404(b) analy-
sis, a military judge must always be on guard against the
wolf of propensity that comes dressed in the sheep’s cloth-
ing of motive. United States v. McCallum, 584 F.3d 471,
477 (2d Cir. 2009) (describing evidence improperly admit-
ted under Fed. R. of Evid. 404(b) as “propensity evidence in
sheep’s clothing”). As we stated in United States v. Hogan:
“[O]ne of the most basic precepts of American
6 See, e.g., Yammine, 69 M.J. at 78 (noting that this Court
has “upheld the admissibility of ‘possession of pornographic
books, magazines, or videos concerning a particular partner or
sexual act, at or near the scene of an alleged sex crime, around
the time of that alleged offense,’ as probative of intent or motive
to commit a similar sex act with a similar partner under M.R.E.
404(b)” (quoting Whitner, 51 M.J. at 460)); United States v.
Ingram, 846 F. App’x 374, 379 (6th Cir. 2021) (“courts have
recognized the permissible use of pornography when it is similar
to the charged sexual offenses”); United States v. Torrez, 869
F.3d 291, 301 (4th Cir. 2017) (holding no abuse of discretion
when the trial judge admitted “evidence of pornographic videos
showing violence against women who were sleeping,
unconscious, or restrained” as evidence of modus operandi,
motive, and intent); United States v. Lee, 701 F. App’x 175, 182
(3d Cir. 2017) (holding that sexually explicit stories that the
appellant wrote were admissible to prove motive, intent, or
plan); United States v. Layne, 43 F.3d 127, 133-34 (5th Cir. 1995)
(finding no abuse of discretion when the trial court admitted two
pornographic magazines found in the appellant’s home as
“relevant to showing that [the appellant] had a knowing interest
in the child pornography”).
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Opinion of the Court
jurisprudence [is] that an accused must be convicted based
on evidence of the crime before the court, not on evidence
of a general criminal disposition.” 20 M.J. 71, 73 (C.M.A.
1985). In the instant case, we are convinced that the mili-
tary judge was mindful of this concern and properly distin-
guished between propensity evidence and motive evidence,
and that he correctly ruled that the journal entries were
admissible under M.R.E. 404(b) on the ground of motive.
ii. Intent
The military judge also ruled that the journal entries
were admissible at trial under M.R.E. 404(b) because they
demonstrated Appellant’s intent when he committed his
acts upon the child victims. Specifically, the military judge
ruled that:
[T]he three journal entries and the alleged of-
fenses share several striking similarities; includ-
ing, but not limited to: sex between an adult male
and minor female who live in the same neighbor-
hood, sex between older males and younger fe-
males who are members of the same family, and
sex between an American male Soldier in the med-
ical profession and a minor female. . . . [A] journal
author’s state of mind when writing graphic and
detailed stories regarding sex between children
and adults may possess a sufficiently similar state
of mind during the commission of the alleged of-
fenses to make the evidence of the prior acts rele-
vant on his intent during the commission of the
offenses.
This ruling by the military judge is supported by some
of this Court’s precedent. For example, in the Whitner case
cited above, we held that “depending upon the circum-
stances of a particular case,” an accused’s possession of por-
nographic material depicting a particular sex act may be
admissible under M.R.E. 404(b) as evidence “of his intent
or state of mind” at the time of the offense. 51 M.J. at 460.
We reached a similar conclusion in United States v. Ors-
burn, 31 M.J. 182 (C.M.A. 1990). There, the appellant was
accused of sexually assaulting his young daughter. Id. at
183. This Court held that the military judge did not abuse
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Opinion of the Court
his discretion when he admitted into evidence for “intent”
purposes pornographic books “dealing with sex with chil-
dren or young girls” that were “found at the situs of the
alleged sexual offenses, around the time of these offenses,
and in an area under at least partial control of appellant”
and that had titles such as “Degraded, Delighted Daugh-
ter,” “Chained Youth: Girls In Bondage,” and “The Whore
Makers.” Id. at 183, 187.
We acknowledge that our decision in a different case,
United States v. Morrison, 52 M.J. 117 (C.A.A.F. 1999),
may have muddied the waters. In Morrison, the appellant
was charged with sexually abusing the nine-year-old
daughter of a family friend. Id. at 119. At trial, the military
judge admitted evidence that the appellant previously had
sexually abused his own daughter over an eight-year pe-
riod, starting when the daughter was between four and six
years old. Id. at 120. One of the multiple grounds cited by
the military judge for admitting the evidence was “intent.”
See id. at 121. On appeal, the Morrison court said that the
evidence had “some tendency” to show intent, but also said
that “[t]he charged acts were so overtly sexual that motive
and intent were not in issue” and concluded that the prof-
fered evidence was not admissible under the third prong of
Reynolds. Id. at 123.
To the extent Morrison may be viewed as standing for
the proposition that (a) intent is not “in issue” in those
sexual assault cases where the underlying conduct,
standing alone, is overtly sexual in nature, and (b) under
such circumstances “intent evidence” automatically fails to
survive a M.R.E. 403 analysis or to meet the second prong
of the Reynolds test, that conclusion is not supported by our
other case law. In a series of precedents over the years this
Court has held that intent is always at issue in a criminal
case—even when the defense chooses not to contest it. For
example, in United States v. Harrow, this Court held that
“evidence of intent . . . may be admitted regardless of
whether a defendant argues lack of intent because every
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United States v. Wilson, No. 23-0225/AR
Opinion of the Court
element of a crime must be proven by the prosecution.” 7 65
M.J. 190, 202 (C.A.A.F. 2007) (emphasis added) (citing
Estelle v. McGuire, 502 U.S. 62, 69 (1991)). And in United
States v. Mann, 26 M.J. 1, 4 (C.M.A. 1988), our predecessor
court stated that the appellant’s intent in committing the
sexual acts “had become a necessary and contested issue”
in the case by virtue of the appellant’s not guilty pleas and
trial testimony. Moreover, as noted above, Morrison itself
states that—even under the facts of that specific case
where the charged acts were “overtly sexual”—the
proffered M.R.E. 404(b) still had “some tendency” to show
intent. 52 M.J. at 123.
In light of these considerations, we believe the best
reading of Morrison is that in seeking to address and re-
solve in a concise manner the multiple reasons offered by
the government for admitting the daughter’s testimony un-
der M.R.E. 404(b), the Court in its explanation conflated
the second prong of Reynolds with the third prong of Reyn-
olds. See Morrison, 52 M.J. at 123. We want to emphasize
that this is not an analytical approach that we adopt or
condone. Prong two of the Reynolds test presents a binary
question: Does M.R.E. 404(b) evidence make a fact of con-
sequence more probable? If the answer is no, the evidence
is inadmissible under M.R.E. 404(b). If, however, the an-
swer is yes, then and only then will this Court or a service
court move on to prong three of the Reynolds test to assess
the probative value and prejudicial effect of that evidence.
In the instant case we conclude that, consistent with the
requirements of the second prong of Reynolds, the journal
entries at issue had at least some tendency to show intent
in regard to the conduct with which Appellant was charged.
This is especially true in regard to the nonpenetrative of-
fenses, such as when Appellant touched the buttocks of his
7 We further note that from a practical perspective, the Gov-
ernment may have no idea whether the defense will choose to
contest the issue of intent until the defense rests its case, which
would be too late for the Government to introduce evidence on
this point.
16
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
young daughter. Therefore, we conclude that the military
judge did not abuse his discretion when he reached the
same conclusion. Indeed, even if we were to view the pene-
trative acts in isolation, and even if we were to read Morri-
son as saying that the journal entries were inadmissible
under the second prong of Reynolds, the rift with cases
such as Harrow, Whitner, and Mann would remain. Under
this scenario, our Court would have “dealt inconclusively”
with this aspect of the law, and the military judge could not
have abused his discretion because it cannot be said that
he misunderstood the law or that his ruling was outside the
range of reasonable choices. Harrow, 65 M.J. at 202; Gore
60 M.J. at 187.
c. Reynolds Factor #3: Whether the probative value of
the evidence was substantially outweighed by
the danger of unfair prejudice 8
Under M.R.E. 404(b), motive evidence and intent
evidence are distinct from one another and the
government’s purpose in seeking to introduce such
evidence is similarly distinct. Motive evidence is used to
demonstrate that the accused committed the criminal acts
with which he is charged; intent evidence is used to
demonstrate the accused’s state of mind when he
committed those acts. This distinction may have
consequences when a military judge conducts his or her
M.R.E. 403 analysis and when this Court conducts its
analysis of the third prong in Reynolds. Specifically, the
probative value and/or the prejudicial effect of the same
evidence at the same trial may vary significantly based on
whether that evidence is being examined on “motive”
8 Although Appellant challenges other aspects of the military
judge’s M.R.E. 403 analysis beyond its analysis of unfair preju-
dice (such as by arguing the military judge ignored this Court’s
“waste of time precedent” in his ruling), we conclude that the
military judge did not abuse his discretion regarding any of
these additional considerations raised by Appellant.
17
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
grounds or on “intent” grounds. Therefore, it is appropriate
in this case to examine each of these bases separately. 9
i. Motive
Probative Value vs. Prejudicial Effect
Here, Appellant’s defense at trial was that the testi-
mony of the two child victims was insufficiently credible to
prove that Appellant was guilty. In other words, a primary
issue in contention during the court-martial was whether
Appellant actually committed the conduct which the vic-
tims alleged. Thus, based on the facts of this case, it was
not an abuse of discretion for the military judge to conclude
that the journal entries were highly probative because
“[k]nowingly writing stories containing the content in the
three journal entries constitutes some circumstantial evi-
dence from which a reasonable factfinder could reasonably
find that, at the time of the alleged offenses, [Appel-
lant] . . . had a motive to commit the offenses alleged on the
charge sheet.”
In determining the prejudicial effect of admitting the
journal in this case, we underscore the repugnant nature
9 We do not believe this approach “unnecessarily compli-
cates” things. United States v. Wilson, __ M.J. __, __ (1) (C.A.A.F.
2024) (Sparks, J., concurring in part and concurring in the judg-
ment). Rather, it clarifies our legal analysis. We again empha-
size that intent and motive have distinct purposes at trial, and
thus the probative value and prejudicial effect of the evidence
may diverge based on the reason for its admission. Therefore,
each ground of admissibility should be evaluated separately.
Otherwise, cases may arise where evidence is properly admissi-
ble for only a single purpose under M.R.E. 404(b)(2) after ana-
lyzing the third Reynolds factor, but the military judge improp-
erly instructs the panel members that the evidence can also be
considered for a host of other reasons under M.R.E. 404(b)(2).
Absent a separate analysis of the probative value and prejudicial
effect of the evidence under each M.R.E. 404(b)(2) purpose in-
structed upon by the military judge, this Court would not be able
to discern under which basis the evidence was properly admit-
ted, and as a result, could not fully assess whether the military
judge’s error materially prejudiced the substantial rights of the
accused.
18
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
of the entries and the likely negative effect they could have
had on the panel members. Indeed, in balancing the proba-
tive value and prejudicial effect of admitting into evidence
Appellant’s journal, we may have reached a different as-
sessment than the military judge did. However, that point
is irrelevant because we are not conducting a de novo re-
view of this issue. Rather, we are engaging in an abuse of
discretion analysis. And this Court must exercise “ ‘great
restraint’ ” when it comes to concluding that a military
judge abused his or her discretion in the course of balanc-
ing the probative value and prejudicial effect of a piece of
evidence. United States v. Humpherys, 57 M.J. 83, 91
(C.A.A.F. 2002) (quoting United States v. Harris, 46 MJ
221, 225 (C.A.A.F. 1997)). Accordingly, in the instant case,
we decline to disturb the military judge’s decision to admit
Appellant’s journal as motive evidence.
ii. Intent
Probative Value vs. Prejudicial Effect
As noted above, under Reynolds factor number 2 Appel-
lant’s intent was placed at issue by virtue of his pleas of not
guilty. However, by their very nature, the penetrative acts
which Appellant was accused of committing with EW and
SB overwhelmingly demonstrated Appellant’s intent (i.e.,
his intent to satisfy his sexual desires) if he actually com-
mitted those acts. As a consequence, under the circum-
stances of this case the journal had very limited probative
value under Reynolds factor number 3 in terms of proving
Appellant’s intent for the penetrative offenses. Even with
the nonpenetrative offenses, the panel members already
had ample evidence in front of them demonstrating Appel-
lant’s intent when he touched his young daughter’s breasts,
buttocks, and genital area. Therefore, we once again con-
clude that the journal had limited probative value on this
point.
In terms of the prejudicial effect of the journal, the en-
tries contained therein were highly inflammatory. As noted
above, they described in graphic detail the sexual abuse
and exploitation of young females by adults. The panel
19
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
members presumably were repulsed by the notion that Ap-
pellant was the type of person who would author these
types of stories, and thus there was the very real risk that
the panel members would improperly conflate Appellant’s
moral culpability for writing these entries with his crimi-
nal responsibility for committing the charged offenses. As
noted above, this Court has observed that there is a “gen-
eral risk . . . that members will treat evidence of uncharged
acts as character evidence and use it to infer that an ac-
cused has acted in character, and thus convict.” Staton, 69
M.J. at 232.
Because Appellant’s journal had little probative value
on the issue of intent, this factor must be accorded little
weight in the course of conducting the balancing test under
M.R.E. 403 and the third prong of Reynolds. Further, be-
cause Appellant’s journal had the potential to pose a high
risk of prejudice, this factor must be accorded great weight
during the balancing test. Therefore, although a high
standard of appellate review applies here, we conclude that
the military judge abused his discretion when he admitted
the journal into evidence on the ground of intent for those
offenses involving penetration. Thus, we must move onto a
prejudice analysis.
2. Prejudice
In assessing prejudice, we underscore that the military
judge in this case conducted an in-depth analysis of the is-
sues, made no clearly erroneous factual findings, was not
influenced by an erroneous view of the law, did not abuse
his discretion when he determined that the prejudicial ef-
fect of the motive evidence did not outweigh its probative
value, and gave the panel members a sufficient limiting in-
struction. We simply conclude that he abused his discretion
when he determined that the probative value of the intent
evidence was not substantially outweighed by its prejudi-
cial impact. It is through this narrow aperture that we
must assess the prejudice to Appellant.
In United States v. Acton, 38 M.J. 330, 334 (C.M.A.
1993), our Court determined that “[a]ny prejudicial impact
20
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
based on the shocking nature of the evidence was dimin-
ished by the fact [that] the same conduct was already be-
fore the court members” for other, proper purposes. We
adopt the same reasoning here. The graphic and disturbing
sexual acts that were described in Appellant’s journal were
of the same nature as the graphic and disturbing sexual
acts that the child victims in this case described to the
panel members. And importantly, the journal itself was
properly before the panel members for their consideration
as motive evidence.
Our conclusion that the prejudicial effect of the military
judge’s erroneous evidentiary ruling was minimal is
bolstered by the fact that he gave the panel members a
limiting instruction. 10 This instruction correctly explained
to the panel members that they could not use Appellant’s
journal for propensity purposes. Specifically, the military
judge stated: “You may not consider this evidence for any
other purpose, and you may not conclude from this
evidence that the accused is a bad person or has general
criminal tendencies and that he therefore committed any
of the charged offenses.” We recognize, of course, that the
military judge erroneously instructed the panel members
that the journal could be used as evidence of both motive
and intent. However, as explained above, the military
judge did not abuse his discretion when he concluded that
the journal satisfied the second Reynolds prong for intent
because the stories at issue were indeed logically relevant
on this point. As also explained above, the journal was
already properly before the panel members on the ground
of motive. We therefore conclude that the prejudicial effect
of the military judge’s admission of the journal on intent
grounds was negligible.
10 To the extent Appellant now complains about the ade-
quacy of the military judge’s limiting instruction, we note that
trial defense counsel expressed no similar concerns during the
court-martial. Rather, the defense acquiesced in the language of
the instruction when it was proposed and given. Therefore, this
issue has been waived on appeal. See United States v. Davis, 79
M.J. 329, 331 (C.A.A.F. 2020).
21
United States v. Wilson, No. 23-0225/AR
Opinion of the Court
Under these circumstances, we cannot conclude that
the improperly admitted “intent” evidence had a “substan-
tial influence” on the findings and sentence in this case.
Bowen, 76 M.J. at 87.
III. Conclusion
We affirm the judgment of the United States Army
Court of Criminal Appeals.
22
United States v. Wilson, No. 23-0225/AR
Judge SPARKS, concurring in part and in the
judgment.
I join the judgment of the Court. I also join Parts I, II.A.,
II.B.1.a., II.B.1.b., and III of Chief Judge Ohlson’s opinion.
However, I cannot join Parts II.B.1.c. and II.B.2. of Chief
Judge Ohlson’s analysis.
I. The Third Reynolds Prong
I believe Chief Judge Ohlson unnecessarily complicates
the third prong of the Reynolds analysis by separately
weighing the probative value of motive and intent against
the danger of unfair prejudice. In discussing the third
prong of the Reynolds analysis, Chief Judge Ohlson states
that “the probative value and/or the prejudicial effect of the
same evidence at the same trial may vary significantly
based on whether that evidence is being examined on ‘mo-
tive’ grounds or on ‘intent’ grounds. Therefore, it is appro-
priate in this case to examine each of these bases sepa-
rately.” United States v. Wilson, __ M.J. __, __ (17-18)
(C.A.A.F. 2024). I am concerned that this approach to the
third prong of the Reynolds analysis is inapposite to our
precedent and may lead to confusion in the future.
The third prong of the Reynolds analysis requires this
Court to determine whether the probative value of the evi-
dence is substantially outweighed by the danger of unfair
prejudice. United States v. Reynolds, 29 M.J. 105, 109
(C.M.A. 1989). I agree with Chief Judge Ohlson that Appel-
lant’s journal has at least some probative value of both mo-
tive and intent. In my view, it is the combined probative
value of motive and intent that we must weigh against the
danger of unfair prejudice when deciding whether the jour-
nal was admissible. To my knowledge, none of our prior de-
cisions applying Reynolds have applied the third prong as
Chief Judge Ohlson does here, nor did the military judge in
this case do so. See, e.g., United States v. Barnett, 63 M.J.
388, 394-97 (C.A.A.F. 2006) (Court did not break third
prong of Reynolds analysis into subcategories); see also
United States v. Whitner, 51 M.J. 457, 461-62 (C.A.A.F.
1999) (Court analyzed the probative value of the evidence
against the potential for unfair prejudice without breaking
apart the probative value of intent and the probative value
United States v. Wilson, No. 23-0225/AR
Judge SPARKS, concurring in part
of motive); United States v. Johnson, 49 M.J. 467, 474-75
(C.A.A.F. 1998) (Court did not break down third prong of
Reynolds analysis despite Military Rule of Evidence
(M.R.E.) 404(b) evidence being admitted for negation of ac-
cident and a common scheme or plan); United States v.
Ruppel, 49 M.J. 247, 250-51 (C.A.A.F. 1998) (M.R.E. 404(b)
evidence admitted for plan or design and intent purposes.
Court did not break down third Reynolds prong into sub-
parts); United States v. Miller, 46 M.J. 63, 66 (C.A.A.F.
1997) (M.R.E. 404(b) evidence was admitted to show
scheme or common plan and intent. Court did not break
down third Reynolds prong into subparts).
Chief Judge Ohlson warns:
Absent a separate analysis of the probative value
and prejudicial effect of the evidence under each
M.R.E. 404(b)(2) purpose instructed upon by the
military judge, this Court would not be able to
discern under which basis the evidence was
properly admitted, and as a result, could not fully
assess whether the military judge’s error
materially prejudiced the substantial rights of the
accused.
Wilson, __ M.J. at __ (18 n.9). However, the second prong
of the Reynolds analysis already requires that military
judges determine the logical relevance of the evidence to
prove something other than propensity. Reynolds, 29 M.J.
at 109; see also M.R.E. 404(b)(2) (evidence of another crime,
wrong, or act, may be used to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident”). Because the second Reynolds
prong requires military judges to make findings of logical
relevance, it would already be error for a military judge to
allow members to consider the evidence for any purpose for
which is it not logically relevant.
To conclude, as Chief Judge Ohlson does, that military
judges must weigh the probative value of the same evi-
dence at the same trial against the danger of unfair preju-
dice multiple times, based on what that evidence is being
offered to prove, easily leads to irrational results. We need
look no further than the instant case to see how this ap-
proach to the third Reynolds prong is problematic. In this
2
United States v. Wilson, No. 23-0225/AR
Judge SPARKS, concurring in part
case, Chief Judge Ohlson concludes that Appellant’s jour-
nal had at least some tendency to show his intent (logical
relevance). Wilson, __ M.J. at __ (16-17). It is without dis-
pute that M.R.E. 404(b) evidence may be used to prove in-
tent. M.R.E. 404(b)(2). Chief Judge Ohlson determines that
the probative value of the journal to prove motive alone
outweighed the danger of any unfair prejudice from admit-
ting the journal and therefore concludes that the journal
was properly admitted as M.R.E. 404(b) evidence of Appel-
lant’s motive. Wilson, __ M.J. at __ (18-19). However, be-
cause Chief Judge Ohlson insists on weighing intent and
motive separately under the third Reynolds prong, he con-
cludes that it was error for the military judge to allow the
members to consider properly admitted M.R.E. 404(b) evi-
dence (the journal) for a permitted M.R.E. 404(b) purpose
(proving intent). It is no surprise that Chief Judge Ohlson
concludes this “error” to be harmless.
Because I think it unnecessary to separately weigh the
probative value of motive and intent against the danger of
unfair prejudice, I conclude that the military judge did not
abuse his discretion when he ruled that the probative value
of Appellant’s journal—proving his motive and intent—
was not substantially outweighed by the danger of unfair
prejudice. Because I ultimately conclude the military judge
did not abuse his discretion, I do not find it necessary to
conduct a prejudice analysis.
II. Conclusion
I concur in the Court’s judgment affirming the judg-
ment of the United States Army Court of Criminal Appeals.
3
United States v. Wilson, No. 23-0225/AR
Judge MAGGS, concurring in part and in the judgment.
I concur in Chief Judge Ohlson’s opinion except for Part
II.B.1. In Part II.A., Chief Judge Ohlson concludes that the
Government did not violate the notice requirement con-
tained in Military Rule of Evidence (M.R.E.) 404(b). I agree
with this reasoning. In Part II.B., Chief Judge Ohlson
reaches two conclusions. The first, in Part II.B.1., is that
the military judge abused his discretion under M.R.E. 403
when he admitted excerpts from Appellant’s journal into
evidence. The second, in Part II.B.2., is that admitting the
evidence did not prejudice Appellant because the evidence
did not substantially influence the findings or the sentence.
I join Part II.B.2. because, even assuming that the military
judge abused his discretion in admitting the journal ex-
cerpts into evidence under M.R.E. 403, I agree with the
conclusion that the error did not materially prejudice Ap-
pellant. I do not join Part II.B.1. because, given the well-
reasoned determination that admitting the journal ex-
cerpts ultimately had only “negligible” consequences in this
case, it is unnecessary to decide the complicated question
of whether the military judge underestimated the “poten-
tial” risk of admitting them.
I concur in the judgment affirming the judgment of the
United States Army Court of Criminal Appeals.