United States v. Simpson , 56 M.J. 462 ( 2002 )

UNITED STATES, Appellee
v.
Charles W. SIMPSON, Specialist
U.S. Army, Appellant
No. 01-0047
Crim. App. No. 9700925
United States Court of Appeals for the Armed Forces
Argued December 11, 2001
Decided June 3, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J.,
joined.
Counsel
For Appellant: Joseph W. Kastl (argued); Colonel Adele H.
Odegard, Lieutenant Colonel David A. Mayfield, Major Jonathan F.
Potter, and Captain Sean S. Park (on brief); Captain David S.
Hurt.
For Appellee: Captain Karen J. Borgerding (argued); Major Daniel
G. Brookhart and Major Paul T. Cygnarowicz (on brief); Colonel
Steven T. Salata.
Military Judges: Linda K. Webster, Paul L. Johnston, and
Robert F. Holland
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Simpson, No. 01-0047/AR
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted by a general
court-martial consisting of officer and enlisted members of
indecently assaulting Private First Class (PFC) BW on April 2,
1993; attempting to rape AB on November 18, 1995; obstructing
justice by attempting to persuade AB not to report him for rape;
and forcible sodomy of PFC TR on August 3, 1996. The members
sentenced him to a dishonorable discharge, confinement for
twenty years, total forfeitures, and reduction to E-1. The
convening authority approved the sentence, and the Army Court of
Criminal Appeals affirmed.
We granted review of two issues:
I. WHETHER A DANGEROUS SPILLOVER EFFECT PREJUDICED
APPELLANT WHEN CHARGES INVOLVING THREE SEPARATE
WOMEN IN THREE SEPARATE INCIDENTS WERE MERGED AT
A SINGLE COURT-MARTIAL.
II. WHETHER APPELLANT’S CONVICTION OF ATTEMPTED RAPE
SHOULD BE SET ASIDE BECAUSE THE MILITARY JUDGE
COMMITTED PLAIN ERROR WHEN HE IMPROPERLY GAVE
INSTRUCTIONS TO THE PANEL MEMBERS USING A STATEMENT
NOT INTRODUCED INTO EVIDENCE.
For the reasons set out below, we affirm.
FACTS
On April 29, 1996, charges were preferred against appellant
alleging he indecently assaulted PFC BW, and that he raped and
committed adultery with AB, a civilian, then obstructed justice
by trying to dissuade her from reporting the rape. He was also
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charged with indecently assaulting another woman, but this
charge was later dismissed. On July 15, 1996, a session was
held under Article 39(a), UCMJ, 10 USC § 839(a), and following
arraignment, the case was set for trial on September 19, 1996.
However, after PFC TR reported appellant’s criminal misconduct,
the initial charges were withdrawn and new charges preferred.
The new charges included offenses previously referred to trial,
as well as the allegation that appellant committed forcible
sodomy with PFC TR on August 3, 1996.
The indecent assaults against all the victims had a
familiar pattern. The indecent assault of PFC BW took place
after appellant, his friend PFC Ellis, and the victim -- who was
a good friend of both Ellis and appellant -- spent the night
drinking and the victim became intoxicated, sick, and unable to
move without help. The sodomy with PFC TR occurred after TR
became “really drunk,” sick, and immobile. After TR was put to
bed by a friend, appellant, who was on staff duty, entered the
room improperly. Despite PFC TR’s protestations and attempts to
physically push him away, he removed her underwear and performed
oral sex.
The events leading to the charges of rape and adultery with
AB on November 18, 1995, are generally not in dispute. On the
evening in question, appellant, whom AB knew as “Bug” for three
years, and PFC Ellis visited AB and her two children. AB’s
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husband was deployed at the time. Also present were the two
children of KT, AB’s friend, who lived across the street.
After a night of drinking, PFC Ellis left the apartment at
11:00 p.m. AB and appellant talked for ten or fifteen minutes,
at which time AB informed appellant that she was tired and was
going to bed. After putting on her night clothes, she
discovered that one of her toddlers had vomited. Appellant
helped AB change the child’s bed sheets. After using the
bathroom at about 12:30 a.m., AB passed out on the hallway
floor. The next thing she remembered was appellant helping her
into bed and later remembered KT picking up her two children at
about 1:15 a.m. She next remembered waking up when her daughter
cried, and at that time she “felt something in [her] vagina --
penis went in and out.” Appellant got out of the victim’s bed
and took the crying daughter a juice bottle. Appellant then
returned to the victim’s bed and pulled her underwear down
again. AB responded “no” to appellant’s invitation for sex.
Shortly thereafter, appellant left the apartment, at which point
AB called KT and informed her that she had been raped by “Bug.”
Prior to the Government’s case-in-chief, trial defense
counsel moved to sever the charges, arguing that trying all
these different sexual offenses together would unduly prejudice
appellant. The military judge denied this motion but stated
that he would give an “appropriate anti-crossover instruction.”
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During the Government’s case-in-chief, trial defense
counsel cross-examined AB and asked: “[D]o you recall telling
the CID agent that, ‘the next thing I remember was feeling Bug’s
penis on my butt.’ Do you remember that?” AB responded: “That
was the -- after he come back from the bathroom. But the first
time when my daughter woke up, his penis was in my vagina.”
AB’s statement to CID was never offered as substantive evidence.
While instructing the members on the rape charge and its
lesser offenses, the military judge instructed the members that
the first element of the offense of attempted rape was “that the
accused did a certain act; that is, he pressed his penis against
[B’s] -- I should say [AB’s] body[.]” Later on, without
objection from either trial or defense counsel, the military
judge, sua sponte, gave a spillover instruction, cautioning the
members to keep the evidence of each offense separate, and
informing them that they could use the evidence of the earlier
offenses, if the members believed such offenses occurred, for
the limited purpose of showing appellant’s plan or design to
take advantage sexually of women who were under the influence of
alcohol. To make sure that the members understood this
instruction, he repeated it.
DISCUSSION
Appellant argues the military judge’s refusal to sever the
charges caused a manifest injustice by making three unreliable
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witnesses more credible. He also argues the military judge
committed plain error when he used a statement that was never
placed in evidence in order to fashion an instruction on
attempted rape.
The military judge did not abuse his discretion when he
denied appellant’s motion to sever the charges in this case.
The military justice system encourages the joinder of all known
offenses at one trial (RCM 601(e)(2), Manual for Courts-Martial,
United States (2000 ed.)*, and permits a motion for “[s]everance
of offenses ... only to prevent manifest injustice.” RCM
906(b)(10). “In general, ‘an abuse of discretion will be found
only where the defendant is able to show that the denial of a
severance caused him actual prejudice in that it prevented him
from receiving a fair trial; it is not enough that separate
trials may have provided him with a better opportunity for an
acquittal.’” United States v. Duncan, 53 M.J. 494, 497-98 (2000),
quoting United States v. Alexander, 135 F.3d 470, 477 (7th
Cir.), cert. denied, 525 U.S. 855 (1998).
To determine whether a military judge has failed to prevent
a manifest injustice and denied an appellant a fair trial, we
apply the three-prong test found in United States v. Southworth,
50 M.J. 74, 76 (1999). In so doing, we find no abuse of
*
All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
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discretion in the military judge’s ruling that appellant would
receive a fair trial on all the charges. The first Southworth
factor asks “whether the evidence of one offense would be
admissible proof of the other.” Id. We find no error in the
military judge allowing the members to decide whether the
offenses occurring earliest in time could be used for the
limited purpose of demonstrating appellant’s tendency to take
advantage sexually of women who were intoxicated or under the
influence of alcohol. Evidence of such a pattern of conduct was
admissible under Mil.R.Evid. 404(b), Manual, supra, which
permits evidence of “other crimes, wrongs or acts” to prove
facts other than a person’s character. Since the evidence was
probative of a material issue other than character, and was
offered for some purpose other than to demonstrate appellant’s
propensity or predisposition to commit crime, it was admissible.
See United States v. Castillo, 29 M.J. 145, 150 (CMA 1989); see
also Huddleston v. United States, 485 U.S. 681, 687-89 (1988);
United States v. Tanksley, 54 M.J. 169, 175-76 (2000).
The second prong of the Southworth test asks “whether the
military judge has provided a proper limiting instruction.” 50
M.J. at 76. Following the trial counsel’s compartmentalized
presentation of evidence relating to each of the victims, the
military judge’s instructions were crystal clear: members were
instructed to keep evidence of each offense separate; that the
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burden was on the prosecution to prove each and every element of
each offense beyond a reasonable doubt; and that proof of guilt
of one offense created no inference that appellant was guilty of
any other offense. The military judge then provided the
following limiting instruction:
Now, despite my instruction to you that you may
not infer that the accused is guilty of one offense
because his guilt may have been proven on another
offense, and that you must keep the evidence with
respect to each offense separate, there is, however,
some evidence that has been presented with respect to
some of the alleged incidents--which may also be
considered for a limited purpose with respect to other
of the incidents. More specifically, you may consider
evidence concerning the circumstances under which the
earliest in chronological order incident allegedly
happened--namely, the April ’93 incident allegedly
involving [BW], or the second chronologically of the
alleged incidents--namely, the November ’95 alleged
incident with [AB], or both of them with respect to
the last of the charged offense--namely, the August
’96 incident with [TR] -- for this limited purpose and
this limited purpose only: You may consider evidence
of the earlier event if you believe it happened, and
the circumstances of the earlier event as you find
them for the limited purpose of their tendency, if at
all, to prove a plan or design on the part of the
accused to take advantage sexually of women who are
under the effect of alcohol. Listen to me carefully
again.
You may consider the evidence from earlier
transactions for the limited purpose of its tendency,
if any, to prove a plan or design on the part of the
accused to take advantage sexually of women who are
under the effect of alcohol in regard to the later of
the incidents.... You’re specifically advised that
you may not consider this evidence for any other
purpose and you may not conclude or infer from the
evidence that there are allegations against the
accused from three different women, that the accused
is necessarily a bad person or has criminal
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tendencies, and he therefore, committed one or more of
the offenses. And further, you may not consider from
the fact that there are allegations from three
different witnesses about three different
transactions, that that makes it any more or less
likely that any of the three women are credible as
witnesses.
Finally, in light of the military judge’s instructions and
the evidence of record, we conclude that the findings do not
“reflect an impermissible crossover.” 50 M.J. at 76; see Duncan,
supra; United States v. Foster, 40 M.J. 140 (CMA 1994); United
States v. Curry, 31 M.J. 359 (CMA 1990). Accordingly, the
military judge did not abuse his discretion in denying
appellant’s motion for a severance.
“The propriety of the instructions given by a military
judge is reviewed de novo.” United States v. Quintanilla, 56 M.J.
37, 83 (2001); United States v. Grier, 53 M.J. 30, 34 (2000);
United States v. Maxwell, 45 M.J. 406, 425 (1996). A failure to
object to an instruction prior to commencement of deliberations
waives the objection in the absence of plain error. RCM 920(f);
Grier, supra. The burden is on appellant to establish plain
error. We find no plain error in the judge’s instruction.
After instructing the members on the elements of rape, the
military judge then advised them that the offense of attempted
rape, in violation of Article 80, UCMJ, 10 USC § 880, was a
lesser-included offense of Charge 1 and its specification,
alleging the rape of AB. He instructed the members that in
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order to find appellant guilty of attempted rape, they had to be
convinced by legal and competent evidence, beyond a reasonable
doubt, of four elements:
The first element is that on or about 18 November
’95, at Fort Drum, New York, that the accused did
a certain act; that is, he pressed his penis
against [B’s] –- I should say [AB’s] body[.]
Appellant now attacks the military judge’s instruction as
improper on two fronts. First, he alleges that the offense of
attempted rape was not reasonably raised by the evidence.
Citing United States v. Griffin, 50 M.J. 480 (1999), he argues
that any instruction on this lesser-included offense was
improper. Contending that the sole issue surrounding the rape
accusation was consent, not penetration, appellant argues that
penetration became an issue only when the military judge
improperly used AB’s statement to CID as substantive evidence in
his instruction. We disagree.
During his closing argument, defense counsel attacked both
the lack-of-penetration and lack-of-consent issues. At the
outset of defense counsel’s closing argument, he asserted that
the physical evidence failed to show whether or not appellant
and AB had any sexual contact. Later, referring to his cross-
examination of AB, defense counsel argued that the statement
provided by AB to investigators soon after the incident was more
accurate than her in-court testimony and should, therefore, be
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believed. In asking the court members to find a lack of
penetration, defense counsel argued: “Well, on cross-
examination, it was brought out that, ‘Well, I then felt Bug’s
penis on my butt.’... Penis on the butt is not penetration.”
Accordingly, while an instruction that incorporates evidence not
admitted at trial may constitute error, in the absence of an
objection, and given trial defense counsel’s use of that
evidence in his closing argument, we conclude there was no plain
error.
Appellant contends that his defense counsel asked AB the
question concerning her statement to CID shortly after the
offense occurred solely to impeach her. Such cross-examination,
he argues, did not amount to the introduction of substantive
evidence that would give rise to a lesser-included-offense
instruction. See United States v. Taylor, 44 M.J. 475, 479
(1996)(“When a witness’ prior inconsistent statement is offered
for impeachment, it is not being offered for its truth.”).
However, to ensure that the answers given may only be used for
impeachment purposes, the defense must request a specific
instruction under Mil.R.Evid. 105. The failure to request such
an instruction constitutes a waiver absent plain error. Here,
the defense made no such request.
Furthermore, there is evidence independent of AB’s
statement to CID that permitted, if not required, the military
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judge to give an instruction on the lesser-included offense of
attempted rape. AB’s response to the trial defense counsel’s
question concerning her statement to CID and “feeling Bug’s
penis on [her] butt” was explained as follows: “That was the –-
after he come back from the bathroom. But the first time when
my daughter woke up, his penis was in my vagina.” (Emphasis
added.) With the testimony in this posture, an attempted rape
instruction was proper. See Sansone v. United States, 380 U.S.
343, 350 (1965)(“A lesser-included offense instruction is ...
proper where the charged greater offense requires the jury to
find a disputed factual element which is not required for
conviction of the lesser-included offense.”); Griffin, supra.
Accordingly, if there was any error in the military judge’s
instructing the members that the first element of the offense of
attempted rape was that appellant “pressed his penis against
AB’s body,” it was certainly not plain error. See Estelle v.
McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141,
147 (1973)(an instruction should be considered in context of
record of trial and instructions as a whole, not judged in
“artificial isolation”).
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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