United States v. Quichocho ( 2016 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201500297
_________________________
UNITED STATES OF AMERICA
Appellee
v.
JEFFREY J. QUICHOCHO
Petty Officer First Class (E-6), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Major Michael Libretto, USMC.
For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
For Appellee: Lieutenant Taurean K. Brown, JAGC, USN;
Lieutenant James M. Belforti, JAGC, USN.
_________________________
Decided 29 November 2016
_________________________
Before P ALMER , M ARKS , and H UTCHISON , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
PALMER, Chief Judge:
At a general court-martial, a military judge convicted the appellant,
pursuant to his pleas, of seven specifications of violating a general order by
wrongfully engaging in sexual harassment and two specifications of assault
consummated by a battery in violation of Articles 92 and 128, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 928 (2012). The military
judge convicted the appellant, contrary to his plea, of one specification of
sexual assault in violation of Article 120, UCMJ, 10 U.S.C. § 920. The
convening authority approved the adjudged sentence of four years’
confinement, reduction to pay-grade E-1, and a dishonorable discharge.
The appellant raises three assignments of error:1 (1) that the evidence
was factually insufficient to sustain the appellant’s conviction for sexual
assault; (2) that the appellant’s trial defense counsel (TDC) were ineffective;
and (3) that the military judge improperly admitted evidence of other charged
sexual misconduct.2 After considering the alleged errors, we are satisfied that
the findings and sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the appellant occurred.
Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
Between May 2013 and August 2014, the appellant variously sexually
harassed seven subordinate female Sailors on divers occasions by making
repeated and unwelcome comments, gestures (to include exposing his penis
and scrotum), and contact of a sexual nature in the workplace at Naval Air
Station (NAS) Whidbey Island and Sheikh Isa Air Base, Bahrain. Between
January 2014 and August 2014, the appellant caused bodily harm to a
subordinate, female Sailor by rubbing her breast, over her clothes, with his
shoulder. And, between June 2013 and December 2013, the appellant caused
bodily harm to a subordinate, female Sailor by grabbing her buttocks, over
her clothes, with his hands.3
On 16 May 2014, the appellant, a married 38-year-old petty officer first
class; the victim, Petty Officer Second Class (PO2) CW; and several other
Sailors traveled on official temporary duty orders to San Diego as part of a
squadron detachment. After concluding the day’s travel, unloading aircraft
cargo, and setting up their work stations, the group purchased snacks and
alcohol and then checked into their on-base hotel. The appellant and PO2 CW
were, by happenstance, billeted in immediately adjacent rooms on the second
deck. They had been assigned to the same unit since August 2013 and had
previously socialized in group settings with co-workers, but were not
romantically involved. At approximately 1700, during an unplanned
encounter while both were smoking outside their rooms, they discussed
getting together for drinks. The appellant offered PO2 CW a beer, which they
retrieved from his room, but she only drank a small amount. At
approximately 1730, both went to PO2 CW’s room, where they snacked on
1 We have reordered the assignments of error raised in the appellant’s brief.
2 Raised as a summary assignment of error pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
3 The appellant’s sexual harassment and assault offenses were fully supported by
his statements made during the providence inquiry and the stipulation of fact.
Prosecution Exhibit (PE) 1.
2
chips and salsa and she drank vodka mixed with juice. The appellant told
PO2 CW he had an “open marriage” in which his wife allowed him to have
extra-marital affairs. In response, PO2 CW told him she “would never do
anything with [him].”4 At approximately 2000, PO2 CW told the appellant to
leave her room because she had a computer video-chat “Skype-date” with
another friend.
After the date, which lasted about an hour, PO2 CW invited the appellant
back to her room. At some point, the appellant offered to take PO2 CW
shopping for underwear at Victoria’s Secret on the condition that he could see
her wearing the undergarments. PO2 CW declined, telling the appellant, “no,
I don’t need any help shopping for my underwear, and that would be weird.”5
After PO2 CW mentioned that her back hurt as a result of unloading cargo,
the appellant stated he was a professional masseur and offered to give her a
back massage at some future time. He explained that on a previous
deployment he had given a massage to a woman who then fell asleep and that
he left without disturbing her.
The appellant then tried to convince PO2 CW to take suggestive
photographs of herself and offered to take the photographs. She declined but
did not otherwise object to the discussion topic. At approximately midnight,
she told the appellant she was tired, and he departed. PO2 CW changed into
her pajamas, which consisted of yoga pants, a sports bra, and a T-shirt. She
then spoke with a friend on the telephone until approximately 0130. Upon
hanging up she noticed the appellant had sent her three text messages and a
Facebook message offering to give her a massage that would be “strictly
pro[fessional].”6 PO2 CW told the appellant she was “about 5 minutes away
from passing out” but accepted the offer.7 At this point, PO2 CW had
consumed four drinks over the course of the evening. She described herself as
being buzzed and “not sober.”
The appellant returned and began to massage PO2 CW’s back as she lay
face down on the living room couch. Realizing her sports bra was in the way,
and having experienced professional massages in the past, PO2 CW removed
her bra while keeping her shirt on and without exposing her breasts. After
several minutes, the appellant suggested moving to the bed in order to
massage both sides of her back. PO2 CW agreed, and they moved to the
bedroom where the appellant continued to massage her back using lotion.
4 Record at 129.
5 Id. at 132.
6 PE 3 at 1.
7 Record at 141.
3
After several minutes the appellant said he needed to sit on her buttocks to
give a proper massage, and PO2 CW agreed. PO2 CW remembers the
appellant asking her if she ever had a “butt massage,” to which she “hazily
replied no,” and then she fell asleep.8
Several minutes later PO2 CW groggily awoke to find herself lying naked
on her back and the appellant digitally penetrating her vagina with his
fingers and stimulating her with his other hand. Although she told the
appellant to stop, he continued while shushing her. She then said, “no stop”
and the appellant slowly removed his fingers, covered her chest and waist
area with towels, and then, still fully dressed, walked out of the room.9
PO2 CW did not immediately report the assault, stating she did not want
to draw attention to herself or risk being pulled from the Coronado
detachment. Several months later, however, she reported it—first to her unit
Sexual Assault Response Coordinator and then, on 21 August 2014, to the
Naval Criminal Investigative Service.
II. DISCUSSION
A. Factual sufficiency
The appellant argues the evidence supporting his conviction was factually
insufficient10 because 1) PO2 CW’s testimony strongly indicates the sexual
acts were consensual, and 2) PO2 CW had a strong motive to fabricate her
sexual assault allegation. We disagree.
We review questions of factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency
is “whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses,” we are
convinced of the accused’s guilt beyond a reasonable doubt. United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting this unique appellate
role, we take “a fresh, impartial look at the evidence,” applying “neither a
presumption of innocence nor a presumption of guilt” to “make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” Washington, 57 M.J. at
8 Id. at 145.
9 Id. at 147-48, 191-92.
10 Although the appellant styles this assignment of error as one based on factual
and legal sufficiency, he does not analyze or challenge legal sufficiency in the body of
his pleadings. The government, therefore, believed the appellant conceded legal
sufficiency. Answer on Behalf of the Appellee of 13 May 2016 at 26 n. 5. The
appellant did not contest this assertion in his Reply Brief. Accordingly, we find that
legal sufficiency is not adequately raised and thus do not address it.
4
399. Proof beyond a reasonable doubt does not mean, however, that the
evidence must be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N-M. Ct. Crim. App. 2001).
A conviction for this sexual assault offense requires proof beyond a
reasonable doubt of two elements: (1) that the appellant committed a sexual
act upon PO2 CW by digitally penetrating her vagina, and (2) that the
appellant knew or reasonably should have known that PO2 CW was asleep.11
The appellant argues the sexual acts were consensual or that he had a
reasonable mistake of fact as to consent. He points to the overall
circumstances, in which PO2 CW invited him to her dimly lit hotel room and
consented to the late night massage while she lay face down on her bed. He
further argues the implausibility of PO2 CW not waking up as he rolled her
on her back, removed all her clothes, and inserted his fingers in her vagina.
Finally, he argues that his compliance, after she twice told him to stop,
indicated her initial consent or his belief in her consent.
Additionally, the appellant asserts PO2 CW did not report the assault
until after the appellant’s wife confronted her about the infidelity. Realizing
he did not have “an open marriage” as he had led her to believe, the appellant
claims PO2 CW was afraid of getting in the middle of his marital discord, was
worried that his wife was angry, and was concerned about negative impacts
on her career.12 The appellant argues that these motives, combined with PO2
CW’s potentially exaggerated claims of her parasomnia history (see Section II
B, infra), should cause reasonable doubt as to the veracity of PO2 CW’s
testimony.
Our assessment of the evidence leaves us convinced beyond a reasonable
doubt of the appellant’s guilt.
First, PO2 CW’s testimony was direct and unequivocal. She testified that
she was asleep during the assault and did not consent to the appellant’s
actions. Her stated trust in the appellant was based largely on his assurances
that he was a professional masseur who would not take advantage of a
sleeping woman. PO2 CW told the appellant she was exhausted and with
good reason: she had been awake since 0500 the previous day, spent most of
11 MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 45(b)(2).
Although originally charged as the appellant penetrating PO2 CW’s vagina and
rectum while she was asleep or unconscious, before announcing findings the military
judge dismissed the words “and rectum” and excepted the words “or unconscious.”
12 Appellant’s Brief and Assignment of Error of 12 Feb 2016 at 23-24; Record at
200.
5
the day working, and had consumed a significant amount of alcohol. She
explained she was a very sound sleeper who often slept through her alarm
and other loud noises.13
Second, PO2 CW’s testimony was corroborated, in part, by PO2 JMW,
who was assigned to the same detachment. PO2 JMW testified that the
appellant claimed, during a conversation between the two of them, that he
had sex with PO2 CW. Later, during August 2014, the appellant phoned PO2
JMW and, sounding panicked, said there was going to be an investigation,
and that he did not have sex with PO2 CW, but that “he was giving her a
massage and his hand slipped.”14 PO2 CW’s testimony was further
corroborated by PO3 AF, a friend of both PO2 CW and the appellant. PO3 AF
testified that during August or September 2014, the appellant asked her to
tell PO2 CW that he “apologize[d] for anything that might have happened.”15
Under the circumstances of this case, we find the appellant’s apology
evidences a consciousness of guilt. See United States v. Reeves, No. 33946,
unpublished op., 2001 CCA LEXIS 226, at *17 (A.F. Ct. Crim. App. 9 Aug
2001). Further, the appellant asked PO3 AF to instruct PO2 CW to tell his
wife that “he had flipped [PO2 CW] over, and his fingers slipped inside[.]”16
We find the appellant’s statement implies—consistent with PO2 CW’s
testimony—that she did not turn herself over. And we find it unlikely that
his fingers could inadvertently slip into her vagina.
Third, pursuant to MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 413,
SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.)
the military judge properly considered evidence of other instances of the
appellant’s sexual contact against subordinate, female Sailors within the
appellant’s command (see Section II C, infra).
Finally, PO2 CW’s testimony was credible. The appellant’s concern that
she reported the sexual assault because she had been contacted by the
appellant’s wife overlooks the fact that PO2 CW was thinking about reporting
before the appellant’s wife called and texted her.17 Moreover, although PO2
CW testified that she was worried about the appellant’s wife and did not
want to get in the middle of their marriage, the wife’s phone message was not
13 Id. at 184.
14 Id. at 211-13, 216.
15 Id. at 226 and 228-29.
16 Id. at 230.
17 Id. at 206 and PE 4 at 1. PE 4 is PO2 CW’s phone-call history showing a
telephone call from the NAS Whidbey Island Sexual Response Coordinator occurring
two days before the appellant’s wife called her.
6
threatening or hostile, and thus, in our view, was unlikely to prompt PO2 CW
to make false allegations against the appellant.18
After weighing all the evidence in the record of trial and making
allowances for not having personally observed the witnesses, we are
convinced beyond a reasonable doubt of the appellant’s guilt.
B. Ineffective assistance of counsel
During the weekend prior to the appellant’s Monday court-martial, the
TDC and assistant TDC were provided their first opportunity to interview
PO2 CW. During this interview, conducted in the presence of PO2 CW’s
victim legal counsel (VLC), PO2 CW stated that she experienced a one-time
episode of sleepwalking during the fall of 2009 while attending college. She
stated she thought she had overslept and missed an exam only to discover
that she had actually taken and passed it.
The appellant argues his TDC were ineffective for failing to consult a
medical expert about PO2 CW’s claim that she suffered from parasomnia,
and that failure prejudiced his ability to undermine PO2 CW’s credibility and
assert a mistake-of-fact as to consent defense. We disagree.
We review claims of ineffective assistance of counsel de novo. United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015). The appellant must clear “a
high bar” to prevail on such a claim. Id. at 371. He must show: (1) that his
counsel’s performance was deficient, and (2) that, but for his counsel’s
deficient performance, there is a reasonable probability that the result of the
proceeding would have been different. Id. (citing Strickland v. Washington,
466 U.S. 668, 688, 694 (1984)).
The first prong requires the appellant to show that counsel’s performance
fell below an objective standard of reasonableness, indicating that counsel
was not functioning within the meaning of the Sixth Amendment. United
States v. Terlep, 57 M.J. 344, 349 (C.A.A.F. 2002). Our review of counsel’s
performance is highly deferential and is buttressed by a strong presumption
that counsel provided adequate representation. United States v. Garcia, 59
M.J. 447, 450 (C.A.A.F. 2004). The second prong requires a showing of
prejudice resulting from counsel’s deficient performance. Strickland, 466 U.S.
at 687. Such prejudice must be “so serious as to deprive [the appellant] of a
fair trial,” producing “a trial whose result is unreliable.” United States v.
18 Id. at 199. PO2 CW described the phone message as saying that the appellant’s
wife would appreciate hearing from her, that she was not blaming PO2 CW for
anything, and that she “actually wanted to say thank you [to PO2 CW] for being the
better person.”
7
Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001) (citation and internal quotation
marks omitted). The appropriate test for this prejudice is “whether there is a
reasonable probability that, but for counsel’s error, there would have been a
different result.” United States v. Quick, 59 M.J. 383, 386-87 (C.A.A.F. 2004)
(citation omitted).
We find the appellant has not met his burden of demonstrating that his
two TDC were ineffective.
The appellant’s assistant TDC, who conducted PO2 CW’s pretrial
interview and cross-examined her at trial, explained via a court-ordered
affidavit that PO2 CW told her she had a parasomnia event when she passed
a college exam while sleepwalking and that she talks in her sleep. The
assistant TDC discussed the issue with the TDC,19 and they decided that this
information did not alter the defense theory of the case—that the victim
consented and then later fabricated her non-consent. In reaching this
decision, the assistant TDC took into account that the sleep-walking incident
occurred several years earlier; it was a one-time event; PO2 CW’s friends and
roommates never reported her sleep-walking; she had never been diagnosed
with parasomnia; and her medical records contained no reference to
sleepwalking.
Additionally, the assistant TDC explained that she learned during trial
advocacy training on parasomnia that without a sleep study—to which she
did not believe PO2 CW’s VLC would consent—a parasomnia expert probably
would not be able to conclude PO2 CW was even prone to such episodes. She
was also aware that in cases in which parasomnia was raised as a viable
defense, a robust sleep walking history, supported by objective witnesses, was
required—evidence which did not exist in the appellant’s case.
Lastly, the assistant TDC recognized a need to quickly litigate the case.
There were seven other victims of offenses to which the appellant was
pleading guilty, and thereby securing a pretrial agreement’s protections. By
the date of trial the government only had a few victim impact statements,
and even those were “not as powerful as they could have been had the VLC’s
[sic] or trial counsel been given more time . . . [the lead TDC] and I firmly
believed that [had they sought a continuance] more time would only have
inured to the benefit of the government . . . .”20
19 Although the TDC does not recall discussing sleep-walking with the assistant
TDC, he does believe they talked about the victim’s statements. TDC Affidavit of 29
Mar 2016 at 5.
20 Assistant TDC Affidavit at 6. Other than disagreements over the efficacy of an
expert’s ability to assist the defense, there are no significant relevant factual
disputes between the appellant’s pleadings and the two TDCs’ affidavits.
8
For these reasons, the TDC and assistant TDC opted against seeking a
continuance in order to obtain expert assistance or an expert witness.
Instead, they cross-examined the victim about sleepwalking and then relied
upon that history to argue consent and mistake-of-fact as to consent.
In assessing the claim of ineffective assistance, “[w]e do not look at the
success of a trial theory or tactical decision, but whether counsel made an
objectively reasonable choice in strategy from the alternatives available at
the time.” United States v. Williams, No. 200202264, 2005 CCA LEXIS 320,
at *3, unpublished op. (N-M. Ct. Crim. App. 19 Oct 2005) (citing Dewrell, 55
M.J. at 136). Here, we find the decision to forego a continuance and the
potential for expert assistance was an objectively reasonable strategic choice.
The trial defense team consciously balanced the potential benefits of
pursuing a tenuous parasomnia-consent defense versus seeking the best
possible sentence for their client. That tactical decision to focus on
minimizing the appellant’s risk at sentencing was ostensibly validated when
the military judge imposed two less years’ confinement than the pretrial
agreement’s confinement cap. Given our deferential review of counsel’s
performance and strong presumption of adequate representation, we are
unable to conclude that the trial defense team’s representation “fell below an
objective standard of reasonableness.” Akbar, 74 M.J. at 386 (citations and
internal quotation marks omitted). See also Garcia, 59 M.J. at 450.
Even if we assumed the TDC and assistant TDC’s performance was
deficient, we are not convinced “there is a reasonable probability that, but for
counsel’s error, there would have been a different result.” Quick, 59 M.J. at
386-87 (citation omitted). Here the fact-finder, a military judge, heard the
victim’s description of her single-episode sleepwalking history and was thus
able to give it the weight he deemed appropriate—along with considerations
of the victim’s overall testimony, the appellant’s attempted apology, and the
admission that he “flipped her over [and] his fingers slipped inside[.]”21 We
are unpersuaded that a different verdict would have possibly resulted with a
defense expert consultant or witness.
C. Admission of evidence of similar crimes
At trial, the appellant stipulated and pleaded guilty to sexually harassing
and assaulting several subordinate, female Sailors. His pretrial agreement
preserved his right to challenge the admissibility of that misconduct under
MIL. R. EVID. 404(b) and 413. Exercising that right, he filed a timely motion
to oppose the admission of the offenses to which he had pleaded guilty as
Accordingly, we find no requirement for additional fact-finding on this issue. See
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
21 Record at 230.
9
similar crimes propensity evidence, arguing they were “not factually or
legally related to the proffered government evidence”22 of the contested
specification. The appellant now argues the military judge erred in finding
the probative value of the evidence outweighed the danger of unfair
prejudice. We disagree.
We review “a military judge’s decision to admit evidence for an abuse of
discretion.” United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citing
United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010)). “‘The abuse of
discretion standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.’” United States v. White, 69 M.J. 236, 239
(C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010)).
MIL. R. EVID. 413(a) provides, “[i]n a court-martial proceeding for a sexual
offense, the military judge may admit evidence that the accused committed
any other sexual offense. This evidence may be considered on any matter to
which it is relevant.” Thus, “inherent in [MIL. R. EVID.] 413 is a general
presumption in favor of admission.” United States v. Berry, 61 M.J. 91, 95
(C.A.A.F. 2005) (citation omitted).
The “three threshold requirements” for admitting evidence of similar
offenses in sexual assault cases under MIL. R. EVID. 413 include: (1) the
accused must be charged with an offense of sexual assault; (2) the proffered
evidence must be evidence of the accused’s commission of another offense of
sexual assault; and (3) the evidence must be relevant under MIL. R. EVID. 401
and 402. United States v. Bass, 74 M.J. 806, 815 (N-M. Ct. Crim. App. 2015)
(citing United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)). In order to
meet the second requirement, the military judge must conclude that the
members “could find by [a] preponderance of the evidence that the offenses
occurred.” Wright, 53 M.J. at 483 (citing Huddleston v. United States, 485
U.S. 681, 689-90 (1988)).
Once the threshold requirements are met, “the military judge is
constitutionally required to also apply a balancing test under [MIL. R. EVID.]
403.” Solomon, 72 M.J. at 179-80 (citing Berry, 61 M.J. at 95). In conducting
the MIL. R. EVID. 403 balancing test, “the military judge should consider the
following non-exhaustive factors . . .”:
strength of proof of the prior act (i.e., conviction versus gossip);
probative weight of the evidence; potential for less prejudicial
evidence; distraction of the factfinder; time needed for proof of
22 Appellate Exhibit V at 1.
10
the prior conduct; temporal proximity; frequency of the acts;
presence or lack of intervening circumstances; and the
relationship between the parties.
Id. at 180 (citation omitted). “When a military judge articulates his properly
conducted [MIL. R. EVID.] 403 balancing test on the record, the decision will
not be overturned absent a clear abuse of discretion.” Id. (citing United States
v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)).
In this case, the first threshold requirement for admitting evidence of
similar offenses under MIL. R. EVID. 413 is not disputed. Specification 1 of
Charge II alleged the appellant committed a sexual assault offense.
Regarding the second threshold requirement, the military judge carefully
parsed the stipulation of fact and found sufficient evidence to meet the
required preponderance standard that the offenses occurred. In particular, he
found that the appellant committed sexual contact, as defined in Article 120,
UCMJ, when he variously touched the breasts, buttocks, or thigh of six
subordinate Sailors.23 The appellant stipulated that each contact with each
victim was “unwelcomed . . . physical contact [that was] sexual in nature.”24
Regarding the third threshold requirement, the military judge correctly
concluded that MIL. R. EVID. 413 permitted the use of adjudicated sexual
assault offenses to prove propensity to commit like crimes, and thus found
the evidence of similar crimes to be relevant under MIL. R. EVID. 401 and
402. See United States v. Hills, 75 M.J. 350, 354 (C.A.A.F. 2016) (confirming
that “an offense to which an accused has pleaded guilty or been found guilty
can be admitted and considered under [MIL. R. EVID.] 413 to show propensity
to commit the sexual assaults to which he pleaded not guilty”). He further
found the evidence potentially relevant to show lack of mistake and intent.
Having satisfied the threshold requirements, the military judge conducted
the required balancing test under MIL. R. EVID. 403 to determine whether the
probative value of the evidence was outweighed by the risk of unfair
prejudice to the appellant. Addressing the non-exhaustive Solomon factors,
the military judge found:
(1) Given that the proof of the prior acts was based on a stipulation of
fact agreed to by both parties, the evidence was very strong;
23 Sexual contact is defined as “(A) touching, or causing another person to touch,
either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person, with an intent to abuse, humiliate, or degrade any person;
or (B) any touching, or causing another person to touch, either directly or through
the clothing, any body part of any person, if done with an intent to arouse or gratify
the sexual desire of any person.” MCM, Part IV. ¶45(g)(2).
24 PE 1 at 2-6.
11
(2) Although noting the more serious nature of the contested charge, the
military judge considered the similarities between the sexual contact of
several other female subordinates and that involving PO2 CW. Specifically,
he found they all involved nonconsensual sexual contacts against junior,
female Sailors the appellant knew from work, and which occurred either in
the workplace or while deployed or on temporary duty. As such, he found the
probative weight of the evidence to be high;
(3) The form of the evidence—a stipulation of fact—reduced any
prejudicial impact and also significantly minimized fact finder distraction ;25
(4) Considering the frequent nature of the other offenses and that they all
occurred in the same 15-month period as the contested sexual assault charge,
the military judge found there were no intervening circumstances that tended
to minimize the probative value of the evidence; and
(5) Noting the relationship between the parties, the military judge found
them to be very similar, in that all were junior Sailors with whom the
appellant worked.
After balancing these factors, the military judge concluded that “the
similarities are such that the probative value of the propensity evidence is
not substantially outweighed by the danger of unfair prejudice.”26
We agree. The military judge carefully considered all the Solomon factors
and, in so doing, found each factor militated in favor of admission. Further,
the military judge made clear that he would only consider the evidence of
sexual offenses, specifically instances of actual sexual contact, and that he
would not consider for any purpose the verbal comments and gestures that
were part of many of the stipulated sexual harassment offenses. Accordingly,
we easily conclude the military judge did not abuse his discretion when
admitting the specific propensity evidence identified in his ruling.
III. CONCLUSION
The findings and the sentence as approved by the convening authority are
affirmed.
Senior Judge MARKS and Judge HUTCHISON concur.
For the Court
R.H. TROIDL
Clerk of Court
25Because the military judge was the finder of fact, we are further convinced the
admitted propensity evidence was not a distraction.
26 Record at 34.
12