United States v. Ediger ( 2010 )

UNITED STATES, Appellee
v.
Jerry J. EDIGER, Private First Class
U.S. Army, Appellant
No. 08-0757
Crim. App. No. 20060275
United States Court of Appeals for the Armed Forces
Argued October 8, 2009
Decided January 5, 2010
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Elizabeth Turner (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Matthew M. Miller, Lieutenant
Colonel Jonathan F. Potter, Major Grace M. Gallagher, and
Captain Alison L. Gregoire (on brief).
For Appellee: Captain Sarah J. Rykowski (argued); Colonel
Norman F. J. Allen III, Lieutenant Colonel Martha L. Foss, and
Major Sara M. Root (on brief); Captain Philip M. Staten.
Military Judge: Jeffery R. Nance and Mark P. Sposato
This opinion is subject to revision before final publication.
United States v. Ediger, No. 08-0757/AR
Judge ERDMANN delivered the opinion of the court.
At a contested general court-martial, Private First Class
Jerry J. Ediger was convicted of one specification of rape of a
person under the age of sixteen and two specifications of making
a false official statement. Prior to trial the Government
dismissed one specification of taking indecent liberties with a
female under the age of sixteen. Ediger was sentenced to a
dishonorable discharge and confinement for fifteen years. The
convening authority reduced the confinement to fourteen years
and eleven months but otherwise approved the sentence. The
United States Army Court of Criminal Appeals affirmed the
findings and sentence. United States v. Ediger, No. ARMY
20060275 (A. Ct. Crim. App. June 11, 2008).
“In a court-martial in which the accused is charged with an
offense of child molestation, evidence of the accused’s
commission of one or more offenses of child molestation is
admissible and may be considered for its bearing on any matter
to which it is relevant.” Military Rule of Evidence (M.R.E.)
414. We granted review of the Army Court’s decision to
determine whether the military judge erred in admitting evidence
of prior child molestation under M.R.E. 414. We find no error
and affirm the Army Court of Criminal Appeals.
2
United States v. Ediger, No. 08-0757/AR
Background
The charges against Ediger arose out of allegations made by
Ediger’s former stepdaughter, MA. Ediger first became involved
with MA’s mother when MA was eight or nine years old, and he
married her mother in 1999, when MA was twelve years old. The
first of the charged incidents took place after Ediger married
MA’s mother. MA testified that after a family trip to Walmart,
Ediger told her that she had embarrassed him and he wanted to
embarrass her in the same way. Ediger told MA to go to her
parents’ bedroom and ordered her to pull down her pants and get
on the bed. When MA refused, Ediger pulled down her pants and
told her to get on the bed on all fours facing away from him.
Ediger proceeded to sit in a chair behind MA with a pornographic
magazine and masturbate. MA testified that she felt she had to
do what Ediger said because he said he would hit her if she did
not. When MA’s mother returned home, MA told her what happened
but her mother did not make any effort to remedy the situation.
Shortly after this incident MA left her mother’s home and
moved in with her grandparents. In 2001, MA moved back in with
her mother and Ediger and she testified that it was during this
time period that Ediger raped her. MA did not tell her mother
about the rape at the time because she was scared that Ediger
would become abusive towards her and assumed her mother would
not believe her. After the rape MA again left to live with her
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grandparents. MA returned in 2005 when her mother was preparing
for major surgery. At that time MA decided to tell her mother
about Ediger’s abuse, which resulted in a criminal investigation
and the filing of the instant charges against Ediger.
The charges filed against Ediger included: the rape of MA;
indecent liberties with MA (masturbating in her presence while
looking at her with intent to gratify his sexual desires);
indecent language (orally communicating to MA “You have nice
tits,” and “I love your ass,” or words to that effect); and two
specifications of a false official statement (“I did not ever
masturbate in [MA]’s presence” or words to that effect, and “I
did not rape [MA]” or words to that effect).
M.R.E. 414 Testimony
The Government sought to introduce evidence of prior child
molestation by Ediger pursuant to M.R.E. 414 in the form of
testimony from TG. Ediger filed a motion to suppress TG’s
testimony. For purposes of the motion, the parties stipulated
that TG would testify as follows:
(1) Ediger lived with TG and her mother when TG was between
eight and eleven years old; (2) Ediger sexually abused her
in a variety of ways including fondling her and forcing her
to perform oral sex on him; (3) in one instance, Ediger
punished TG by telling her to take off her pants and
underwear and pose on her hands and knees on her bed while
he spanked her, masturbated and licked her pubic area; (4)
on another occasion, TG inadvertently walked in on Ediger
and her mother engaged in a sex act and Ediger said to her,
“you either have to leave, or you have to be a part of
this,” or words to that effect; and (5) TG reported
4
United States v. Ediger, No. 08-0757/AR
Ediger’s conduct to the police but recanted at the urging
of her mother.
In the motion to suppress, the defense urged the military
judge to “weigh[] heavily the distance in time of the
allegations, the danger of confusing the issue, and the little
probative value, if any, [TG]’s testimony will have in assisting
the Fact Finder in this case.”
First Ruling on the Motion to Suppress TG’s Testimony
The first military judge assigned to Ediger’s case,
Lieutenant Colonel (LTC) Jeffery R. Nance, denied the defense
motion to suppress TG’s testimony in a detailed ruling. Judge
Nance’s ruling analyzed TG’s testimony in light of this court’s
precedent governing the admission of evidence under M.R.E. 413
and M.R.E. 414 as set forth in United States v. Wright, 53 M.J.
476 (C.A.A.F. 2000). Specifically, Judge Nance found:
a. The events involving [TG] occurred between seven
and four years from the events for which the
accused is facing trial, alleged by [MA].
b. The events are similar to those charged. The
accused allegedly engaged in sexual acts with
young girls, of the same age at the time of the
incidents, who were not his natural daughters but
were either his step daughter [sic] or over whom
he was acting in that capacity toward. All
events occurred at residents [sic] the accused
shared with the mothers of the two girls as well
as the girls themselves. On one occasion, the
circumstances of the sexual acts are strikingly
the same. The accused is alleged by both girls
to have been forced them [sic] to pose on her
hands and knees exposing her naked lower torso to
the accused while the accused masturbated. The
other striking similarity to these two alleged
5
United States v. Ediger, No. 08-0757/AR
acts is that, apparently under the guise of
disciplining them, the accused told both girls
that they had been acting up and had embarrassed
him in public before telling them to take off
their clothes and pose on their hands and knees.
The accused also is alleged to have used threats
that the girl’s mothers would not believe them if
they told her what happened to keep the girls
quiet. All acts were forceful and coercive in
nature.
c. The frequency of the acts. The sexual acts with
these minor girls occurred infrequently with each
alleged victim but the similarity of events, the
things he told them to keep them quiet, the
scepter of physical violence used as a veiled
threat and the guise of discipline for “acting
up” or “embarrassing me in public” was remarkably
similar even to the point of the same words being
used.
d. The presence or lack of intervening
circumstances. There were none other than that
the accused moved on to a new relationship with a
different woman who also had a similarly aged
young daughter from another marriage.
e. The relationship between the parties. The
relationship between the accused and both young
girls was exactly alike. Though the accused was
not married to [TG]’s mother, he lived in the
same house, held himself out as her “Dad,”
administered discipline to her and took on the
role as “Dad” to [TG] as far as her mother was
concerned.
f. Strength of proof of the act. [TG] will testify
that these sexual acts were perpetrated upon her
by the accused. There is no other evidence
offered on these acts nor is there any
contradictory evidence offered. [TG] allegedly
reported these acts to the police but later
recanted her allegations at her mother’s request.
The court finds that the trier of fact could
conclude by a preponderance of the evidence that
these uncharged acts occurred.
6
United States v. Ediger, No. 08-0757/AR
g. Time needed for proof of the prior act. A
minimum of time will be needed since only one
witness will testify to these prior acts.
h. Distraction of the fact finder. The court will
ensure through limiting instructions and tailored
direct and cross[-]examination that there is no
mini-trial on collateral issues.
i. Potential for less prejudicial evidence. There
is not less prejudicial evidence concerning these
sexual acts that the parties have identified that
could be presented in this case.
j. Probative weight of the evidence. The probative
weight of the evidence is extremely high. The
evidence shows a clear factual pattern that the
accused used on both girls to engage in sexually
abusive conduct.
After he issued his ruling admitting the testimony of TG,
Judge Nance asked the parties to provide proposed limiting
instructions. Prior to trial Judge Nance was replaced by LTC
Mark P. Sposato, who presided over the remainder of the court-
martial.
Dismissal of Indecent Liberties Charge and Renewal of Motion to
Suppress TG’s Testimony
After Judge Nance’s ruling on the motion to suppress but
before trial, the Government moved to dismiss Specification 1 of
Charge III, the indecent liberties charge which alleged that
Ediger masturbated while looking at MA on the bed while she was
on her hands and knees. In response to the dismissal of this
charge, the defense renewed their motion to suppress TG’s
testimony, arguing that TG’s testimony had been offered in
support of the withdrawn indecent liberties specification.
7
United States v. Ediger, No. 08-0757/AR
Judge Sposato denied the motion stating, “I’ve reviewed the
ruling of Colonel Nance and I affirm his ruling under 414, the
evidence would appear to still be admissible and I conducted 403
balancing and I find, under the circumstances the evidence would
be substantially more probative than prejudicial.”1 Judge
Sposato then informed counsel that he would prepare a limiting
instruction to give to the panel following TG’s testimony. He
subsequently provided the parties with a proposed limiting
instruction, to which neither party objected.
TG’s Testimony at Court-Martial
At Ediger’s court-martial, TG testified that Ediger dated
her mother in 1995 and 1996 when TG was between the ages of nine
and eleven. She testified that during that time, Ediger spanked
and fondled her on a regular basis. TG testified that Ediger
punished her on one occasion by making her take off all her
clothes, get on a bed on all fours, and then licked and fondled
her genital area. TG also testified that Ediger forced her to
perform oral sex on him. TG specifically testified to the
following incident:
I had a nightmare, so I woke up and I was going to
mom’s room and I walked in on them having sex and I
immediately closed the door back, went back to my
1
The second military judge misstated the balancing test in
M.R.E. 403, which calls for evidence to be excluded “if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
members, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
8
United States v. Ediger, No. 08-0757/AR
room. The next day James told me that since I walked
in on them pretty much if I wanted to see what was
going on I could be a part of it.
At one point TG filed a police report but later recanted at the
urging of her mother and Ediger.
Military Judge’s Instructions to the Panel on TG’s Testimony
After TG testified, LTC Sposato read the following
instruction to the members:
You’ve heard evidence through the testimony of
[TG] that the accused may have previously committed
other offenses of child molestation. You may consider
the evidence of such other acts of child molestation
for their tendency, if any, to show the accused’s
propensity to engage in child molestation, as well as
their tendency, if any, to identify the accused as the
person that committed offenses alleged in Charges I
and III, to prove a plan or design of the accused to
molest [MA] and to determine whether the accused had a
motive to commit those offenses.
You may not, however, convict the accused merely
because you believe he committed these other offenses
or merely because you believe he has a propensity to
engage in child molestation. The prosecution’s burden
of proof to establish the accused’s guilt beyond a
reasonable doubt remains as to each and every element
of each offense charged.
When giving this instruction, Judge Sposato erroneously included
a reference to Charge III (which initially contained two
specifications: the indecent liberties specification which had
been dismissed; and an indecent language specification for which
Ediger was found not guilty) when informing the members of the
charges for which they could consider TG’s testimony. Judge
Sposato corrected this mistake when he gave the instruction a
9
United States v. Ediger, No. 08-0757/AR
second time prior to deliberations, by deleting the reference to
Charge III.
Discussion
The granted issue asks whether the military judge erred in
admitting the testimony of TG pursuant to M.R.E. 413 and M.R.E.
414.2 Ediger argues that the military judges made the following
errors in admitting TG’s testimony: Judge Sposato failed to
properly instruct the members that TG’s testimony should have
been considered only in light of the rape charge; Ediger’s
comment to TG “you either have to leave or be a part of this”
was not admissible as it does not constitute child molestation
as defined in M.R.E. 414; and neither military judge performed
an adequate analysis under M.R.E. 403.
In response, the Government argues that both military
judges provided a proper analysis when admitting TG’s testimony
in light of this court’s precedent in Wright, 53 M.J. 476. The
Government asserts that the military judges correctly evaluated
the threshold factors and Judge Sposato properly instructed the
members as to the propensity evidence. Finally, the Government
argues that even if the military judges erred, any error was
harmless given the strength of the Government’s case and the
limiting instruction given by Judge Sposato.
2
United States v. Ediger, 67 M.J. 416, 416-17 (C.A.A.F. 2009)
(order granting review).
10
United States v. Ediger, No. 08-0757/AR
A military judge’s decision to admit or exclude evidence is
reviewed for an abuse of discretion. United States v. Manns, 54
M.J. 164, 166 (C.A.A.F. 2000). Admission of evidence under
M.R.E. 414 requires a two-step analysis. First, the military
judge must make three threshold findings: (1) whether the
accused is charged with an act of child molestation as defined
by M.R.E. 414(a); (2) whether the proffered evidence is evidence
of his commission of another offense of child molestation as
defined by the rule; and (3) whether the evidence is relevant
under M.R.E. 401 and M.R.E. 402. United States v. Bare, 65 M.J.
35, 36 (C.A.A.F. 2007). Here, consideration of TG’s testimony
regarding prior acts of child molestation was triggered under
M.R.E. 414 because Ediger was charged with an offense of child
molestation in the rape of MA.
Once the three threshold factors are met, the military
judge must then apply a balancing test under M.R.E. 403.3 Id.
“The importance of careful balancing arises from the potential
for undue prejudice that is inevitably present when dealing with
propensity evidence.” United States v. James, 63 M.J. 217, 222
3
M.R.E. 403 provides:
Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time[.] Although relevant, evidence
may excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the members, or by considerations
of undue delay, waste of time, or needless presentation of
cumulative evidence.
11
United States v. Ediger, No. 08-0757/AR
(C.A.A.F. 2006). Inherent in M.R.E. 414 is a “general
presumption in favor of admission.” See United States v. Berry,
61 M.J. 91, 94-95 (C.A.A.F. 2005); United States v. Dewrell, 55
M.J. 131, 138 n.4 (C.A.A.F. 2001).
“Where a military judge properly conducts the balancing
test under Military Rule of Evidence 403, we will not overturn
his decision unless there is a clear abuse of discretion.”
United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F. 1998).
However, “[w]here the military judge is required to do a
balancing test under M.R.E. 403 and does not sufficiently
articulate his balancing on the record, his evidentiary ruling
will receive less deference from this court.” Berry, 61 M.J. at
96.
Judge Nance provided a thorough balancing test, applying
each of the Wright factors and explaining his analysis on the
record. When the defense renewed their motion to suppress TG’s
testimony after the Government dismissed the indecent liberties
specification, Judge Sposato adopted Judge Nance’s initial
ruling and noted that the evidence would still be admissible.
However, he did not explain why it was appropriate for him to
adopt Judge Nance’s ruling despite the dismissal of the indecent
liberties charge. While Judge Sposato stated that he had
conducted a M.R.E. 403 balancing test and concluded that the
evidence would be substantially more probative than prejudicial,
12
United States v. Ediger, No. 08-0757/AR
he did not explain his analysis on the record.4 Because Judge
Sposato did not record his balancing test on the record, his
ruling is given less deference than Judge Nance’s ruling, which
provided a thorough analysis of the Wright factors. Berry, 61
M.J. at 96.
Under the circumstances of this case, we find that Judge
Sposato properly adopted Judge Nance’s earlier findings
regarding the admission of TG’s testimony. Although the
Government dismissed the indecent liberties charge alleging that
Ediger masturbated in the presence of and while looking at MA,
the Government did not dismiss the corresponding false official
statement specification which charged that Ediger made a false
official statement that “I did not ever masturbate in [MA]’s
presence.” At trial, when the Government dismissed the indecent
liberties charge, Judge Sposato asked trial counsel how the
Government intended to prove the false statement specification
without the related indecent liberties specification. The
Government responded, “we can still elicit the evidence to [sic]
4
Because the charges which Ediger faced were altered with the
withdrawal of the indecent liberties specification, our review
would have benefited from a complete Wright analysis and
balancing test on the record by Judge Sposato. As stated in
James, we strongly suggest that military judges dealing with
objections to propensity evidence proffered under M.R.E. 413 and
M.R.E. 414 make a record of their application of M.R.E. 403. 63
M.J. at 222. These safeguards are especially important in light
of the fact that M.R.E. 413 and M.R.E. 414 propensity evidence
can be both highly probative and highly prejudicial at the same
time.
13
United States v. Ediger, No. 08-0757/AR
trial that the statement made in Charge II [the false official
statement charge] is false.”
Indeed, MA testified that Ediger forced her to pose naked
on a bed on all fours in front of him while he masturbated.
Therefore the same conduct raised in the dismissed charge,
alleged masturbation in front of MA, remained at issue in
Ediger’s court-martial despite the Government’s dismissal of the
indecent liberties charge. The analysis undertaken by Judge
Nance was still relevant and applicable despite the Government’s
dismissal of that charge. Under those circumstances, Judge
Sposato appropriately adopted Judge Nance’s ruling allowing for
the admission of TG’s testimony.
Judge Sposato’s instructions on TG’s Testimony
This court has stated, in regard to a military judge’s
responsibilities to properly instruct members as to the proper
use of propensity evidence, as follows:
[I]t is essential that . . . the members are
instructed that M.R.E. 414 evidence may be considered
for its bearing on an accused’s propensity to commit
the charged crime, the members must also be instructed
that the introduction of such propensity evidence does
not relieve the government of its burden of proving
every element of every offense charged. Moreover, the
factfinder may not convict on the basis of propensity
evidence alone.
United States v. Schroder, 65 M.J. 49, 56 (C.A.A.F. 2007).
Ediger argues that the members should have been instructed
that they could consider TG’s testimony solely for the rape
14
United States v. Ediger, No. 08-0757/AR
charge. He specifically argues that “[i]n the absence of being
told of this restriction, [the members] would have assumed that
they could consider TG’s testimony in determining appellant’s
guilt as to all charges.” We note that once evidence is
admitted under M.R.E. 414, that evidence “may be considered for
any matter to which it is relevant.” The members could
therefore have considered TG’s testimony in their evaluation of
any of the charges facing Ediger for which it was relevant.
M.R.E. 414.
Judge Sposato’s instruction, which he gave to the members
both after TG’s testimony and again prior to releasing the
members to deliberations, properly reflects the considerations
discussed in Schroder. He was not required to instruct the
members that the propensity evidence could be used “solely” for
the rape charge.
TG’s Testimony about Ediger’s Statement
Ediger argues that both military judges improperly admitted
TG’s testimony about Ediger’s comment after she walked in on him
and her mother having sex. Ediger claims that the statement
(“if I wanted to see what was going on I could be a part of it”)
does not fall within the definition of child molestation as that
term is defined in M.R.E. 414 and thus does not meet the second
threshold requirement for admission.
15
United States v. Ediger, No. 08-0757/AR
The second threshold requirement under M.R.E. 414 is that
the proffered evidence must be evidence of the commission of
another offense of child molestation as defined by M.R.E. 414.5
The Government argues that this statement constituted an
invitation or solicitation to participate in sexual activity.
However, we need not decide whether the statement falls within
the definition in M.R.E. 414, because even if we were to assume
that the admission of the statement was error, it was harmless
under the test for prejudice from an erroneous evidentiary
5
Under M.R.E. 414:
“child” means a person below the age of sixteen, and
“offense of child molestation” means an offense . . . that
involve[s]
(1) any sexual act or sexual contact with a child
proscribed by the Uniform Code of Military Justice,
Federal law, or the law of a State;
(2) any sexually explicit conduct with children
proscribed by the Uniform Code of Military Justice,
Federal law, or the law of a State;
(3) contact between any part of the accused’s body, or
an object controlled or held by the accused, and the
genitals or anus of a child;
(4) contact between the genitals or anus of the
accused and any part of the body of a child;
(5) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain
on a child; or
(6) an attempt or conspiracy to engage in conduct
described in paragraphs (1) through (5) of this
subdivision.
M.R.E. 414(d)(1)-(6).
16
United States v. Ediger, No. 08-0757/AR
ruling set forth in United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999) (citing United States v. Weeks, 20 M.J. 22, 25
(C.M.A. 1985)). In Kerr, we evaluated the following factors to
determine prejudice: “(1) the strength of the Government’s
case, (2) the strength of the defense case, (3) the materiality
of the evidence in question, and (4) the quality of the evidence
in question.” Id.
The Government presented a strong case against Ediger at
court-martial. In addition to the previously discussed direct
testimony from MA and TG, the Government called two witnesses
with whom Ediger had discussed his relationship with MA. A
friend of Ediger’s testified that Ediger made insinuations about
a sexual encounter with MA. A criminal investigator who
interviewed Ediger testified that Ediger told him that he
thought about MA when he masturbated and planned on pursuing a
romantic relationship with MA after he ended his relationship
with her mother. The Government also presented testimony from a
social worker and a psychologist that supported MA’s behavior as
a rape victim.
The defense case consisted of an attempt to discredit MA by
showing inconsistencies in her statements to investigators and
by trying to establish a motive to fabricate her accusations, as
well as arguing that there was no physical evidence of a sexual
17
United States v. Ediger, No. 08-0757/AR
relationship with MA. In comparison, the Government’s evidence
was considerably stronger than the defense case.
The third prong of the Kerr test evaluates the materiality
of the proffered evidence. This prong is “merely a test for
relevancy and materiality.” Weeks, 20 M.J. at 25 n.3. TG’s
testimony that Ediger told her “if I wanted to see what was
going on I could be a part of it,” is not direct evidence of the
charges against Ediger, but rather some evidence of his
propensity to commit those offenses. The fourth prong of the
Kerr test evaluates the quality of the evidence. While TG’s
testimony as to Ediger’s statement was the same quality as her
other propensity testimony, it was of “no better quality than
that which was already before the finder of fact.” United
States v. Roberson, 65 M.J. 43, 48 (C.A.A.F. 2007). In the
context of evidence presented at trial, TG’s testimony about the
statement was not “particularly significant” either in its
quality or materiality. See United States v. Dobson, 63 M.J. 1,
20 (C.A.A.F. 2006).
In weighing the four factors set forth in Kerr, we find
that Ediger did not suffer prejudice because of the admission of
the statement. We therefore find that even if the military
judge erred in admission of the statement, the error was
harmless. The additional evidence of Ediger’s statement could
18
United States v. Ediger, No. 08-0757/AR
not have tipped the scales in favor of the Government any more
than TG’s testimony already had.
Balancing and Relevancy Analysis of TG’s testimony
Ediger argues that the most significant error was Judge
Nance’s finding that the events alleged by TG were similar to
the events charged by MA. Specifically, Ediger argues that MA
alleged that she was raped whereas TG claimed that she was
forced to perform oral sex and repeatedly molested by Ediger.
Ediger claims the acts are “widely disparate.” Ediger also
argues that the only similar act referenced in TG’s stipulated
testimony at the motions hearing -- that Ediger masturbated in
front of her -- was not testified to by TG at trial. However,
contrary to Ediger’s assertions, TG did testify at trial that
Ediger masturbated in front of her on one occasion when he
ultimately forced her to perform oral sex.
Regardless, Ediger’s argument that the acts alleged must be
exactly the same is unpersuasive. This court has never required
the exact same acts of sexual molestation for the admission of
evidence under M.R.E. 414. See James, 63 M.J. at 218-20 (acts
of uncharged child molestation were “similar in their sexual
nature” although victims did not describe engaging in precisely
the same acts with the defendant); Schroder, 65 M.J. at 51-52
(evidence of other acts of molestation and sodomy admitted in
court-martial for rape and indecent acts).
19
United States v. Ediger, No. 08-0757/AR
Ediger also argues that the military judge did not properly
evaluate the temporal proximity factor in his balancing analysis
under M.R.E. 403, but simply stated the length of time between
the allegations made by MA and TG. Judge Nance’s specific
reference to the temporal proximity of the events reflects that
he factored the time difference into his analysis.6 Temporal
proximity is but one factor considered by the military judge and
we have stated “[t]he length of time between the events alone is
generally not enough to make a determination as to the
admissibility of the testimony.” Berry, 61 M.J. at 96.
Ediger also argues that the military judge did not properly
evaluate the “strength of proof” factor in his Wright analysis.
Ediger raises the fact that the alleged police report filed by
TG was not available due to the passage of time and argues that
the report could have shown whether TG’s claims were consistent.
Contrary to Ediger’s claim, this factor was specifically
addressed by Judge Nance:
There is no other evidence offered on these acts nor
is there any contradictory evidence offered. [TG]
allegedly reported these acts to the police but later
recanted her allegations at her mother’s request. The
court finds that the trier of fact could conclude by a
6
This court has concluded that incidents occurring more than
eight years prior to the charged incident were admissible in
Dewrell, 55 M.J. at 137-38. In United States v. Bailey, 55 M.J.
38, 41 (C.A.A.F. 2001), we allowed admission of evidence of
uncharged misconduct occurring approximately ten years before
the charged offense.
20
United States v. Ediger, No. 08-0757/AR
preponderance of the evidence that these uncharged
acts occurred.
We agree with Judge Nance’s conclusion and we are satisfied that
the direct testimony from TG could have convinced the panel that
Ediger committed the similar acts alleged by TG.
Conclusion
We find that TG’s testimony of prior child molestation
under M.R.E. 414 was properly admitted. Judge Nance conducted a
thorough Wright analysis and that analysis was properly adopted
by Judge Sposato. The decision of the United States Army Court
of Criminal Appeals is affirmed.
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