United States v. Barnett , 2006 CAAF LEXIS 1052 ( 2006 )

UNITED STATES, Appellee
v.
Ronald H. BARNETT Jr., Sergeant
U.S. Marine Corps, Appellant
No. 05-0322
Crim. App. No. 9901313
United States Court of Appeals for the Armed Forces
Argued April 18, 2006
Decided August 9, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Rolando R. Sanchez, USMC (argued).
For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief);
Lieutenant Kathleen Helmann, JAGC, USNR.
Military Judge: R. L. Rogers
THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION.
United States v. Barnett Jr., No. 05-0322/MC
Judge BAKER delivered the opinion of the Court.
Appellant was tried by general court-martial before officer
and enlisted members. Contrary to his pleas, he was convicted
of two specifications of violating a lawful general order, three
specifications of maltreatment, one specification of making a
false official statement, four specifications of indecent
assault and one specification of indecent acts1 in violation of
Articles 92, 93, 107 and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 892, 893, 907, 934 (2000). Appellant was
acquitted of two specifications of violating a lawful general
order, one specification of maltreatment, one specification of
making a false statement and one specification of indecent
assault in violation of Articles 92, 93 and 134, UCMJ. The
adjudged and approved sentence included a bad-conduct discharge,
confinement for two years, forfeiture of all pay and allowances,
and reduction to grade E-1.
The United States Navy-Marine Corps Court of Criminal
Appeals set aside the guilty findings under Charge I (two
specifications of violating a general order) and the guilty
findings under Charge II (three specifications of maltreatment
of subordinates) as an unreasonable multiplication of charges.
1
Appellant was originally charged with indecent assault under
this specification. Appellant was acquitted of this offense,
but found guilty of the lesser included offense of indecent
acts.
2
United States v. Barnett Jr., No. 05-0322/MC
United States v. Barnett, No. NMCCA 9901313, 2004 CCA LEXIS 285,
at *15, 2004 WL 3015292, at *5 (N-M. Ct. Crim. App. Dec. 30,
2004) (unpublished). Aside from this error, the lower court
found no further errors and affirmed, finding the approved
sentence appropriate under United States v. Sales, 22 M.J. 305,
307-08 (C.M.A. 1986). 2004 CCA Lexis 285, at *27, 2004 WL
3015292 at *10. We granted review of the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE
MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY ADMITTING
EVIDENCE OF UNCHARGED MISCONDUCT IN VIOLATION OF MILITARY
RULE OF EVIDENCE 404(b) OVER DEFENSE OBJECTION.
We hold that the military judge abused his discretion when
he admitted the evidence of uncharged misconduct over defense
objection. However, we further hold that Appellant suffered no
material prejudice to his substantial rights as a result of this
error. Therefore, we affirm.
BACKGROUND
Appellant, a twenty-nine-year-old sergeant in the Marine
Corps at the time of his court-martial, was a member of
Headquarters and Service Battalion, Marine Corps Base, Quantico,
Virginia. At the time of the alleged offenses, Appellant was
serving as an instructor at Aberdeen Proving Ground (APG),
Maryland. The charges in Appellant’s case stemmed from alleged
incidents of unwanted physical and verbal advances by Appellant
toward four female Army trainees at APG, Private (PVT) SD, PVT
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United States v. Barnett Jr., No. 05-0322/MC
SK, Private First Class (PFC) LT, and PFC BL, in the fall of
1997.
Prior to trial, defense counsel moved to suppress
Appellant’s statements on November 21, 1997, to special agents
from the Naval Criminal Investigative Service (NCIS).
Specifically, the defense sought to suppress a written statement
made by Appellant detailing his physical encounters with PVT SK,
PVT SD, and PFC LT. According to Appellant’s written statement,
he and the three trainees kissed, but it was voluntary and
willing on their part. The military judge denied Appellant’s
motion to suppress. At trial, Appellant proceeded on a theory
that the physical interactions between Appellant and the four
trainees were in fact consensual, in accordance with his written
statement to NCIS.
During pretrial motions, the Government sought to introduce
the testimony of RB, a former Marine Lance Corporal, who was
stationed with Appellant at Twentynine Palms, California, in the
spring of 1994. In addition to her testimony, the Government
also sought to introduce a Discrimination/Sexual Harassment
Incident Report as part of Appellant’s service record book. The
two-page report detailed the investigation of RB’s allegations
and the actions taken against Appellant as a result. The
Government offered both pieces of evidence under Military Rule
of Evidence (M.R.E.) 404(b).
4
United States v. Barnett Jr., No. 05-0322/MC
During a session pursuant to Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2000), prior to trial, the trial counsel and the
military judge had the following exchange on the admissibility
of RB’s testimony:
MJ: What is -- how is it that this [sic]
relevant? What does [RB] have to say about what
happened in 1994, how is [sic] relevant to the
offenses in this case?
TC: Okay, sir. First, on the accused’s intent,
we’ve got offenses that have to do with the
intent of the accused and these will [sic] talk
about, we believe, this evidence will allow the
members to see the accused’s intent, what the
case law that I’ve cited talks about as a
predatory intent on the part of the accused. We
have not -- well, we’ve got a few theories, sir.
This is not by any chance the mantra that is
exactly in the -- common plan, scheme, intent,
motive. This is -- we’ve got three purposes,
we’re offering it, and first is the intent,
second is to defeat the accused’s claim that the
acts were consensual, and third to show the
accused’s plan, if you will, to sexually harass,
dominate and touch subordinate females that he’s
able to separate from the pack, if you will.
And, admittedly the third and the first may merge
at some point, but the evidence itself will give
the members a picture of the accused’s intent.
And intent is relevant in this case.
MJ: Okay. You focus on the intent. You believe
that this evidence would be relevant on the issue
of intent as it relates to the indecent assault
specification?
TC: That’s correct, sir. We believe that and we
believe also when you talk about the plan of the
accused that that encompasses the sexual
harassment and maltreatment aspects that were
charged with it. And that’s why I say at some
point they may merge, but certainly we do believe
it impacts on his intent to gratify his sexual
5
United States v. Barnett Jr., No. 05-0322/MC
desire. The acts that [RB] will testify, the
statements that he made, the repeated nature of
the statements, the complete ignorance of [his]
comments, please stop, leave me alone, just the
complete roll over and you’ll see how that and
what has happened in the instance with these four
victims, how that segues and we’ll be able to
show the members the intent of the accused here.
It gives them a picture of it and we believe it
is necessary for the government’s case, it’s
relevant, material, and it’s permissible.
In response, defense counsel objected to the introduction of
RB’s testimony on multiple grounds:
DC: I would ask how the government is going to
link up [RB]’s testimony with Sergeant Barnett’s
intent? He’s made -- Major Bowe has made some
general propositions but there’s a total lack of
specificity here as to how whatever she says is
going to prove either intent, plan, or defeat the
claim of consent to Sergeant Barnett. I would
state that these things are so temporally removed
that there is no logical nexus in either times,
place, or space between what happened in 1994 and
what happened in 1997. . . . I believe what
you’re going to hear is no allegations of an
indecent assault by [RB] at all. Basically they
are the nature of repeated comments. She’s going
to say that she told him to stop a bunch of times
and he didn’t, whereas the allegations from
Aberdeen once told to stop, Sergeant Barnett
apparently did stop. In Aberdeen the allegations
involved being [sic] one on one contact, being
alone and trying to ensure that they’re alone and
in a closed space. Whereas, [RB] is going to say
whenever one instance of touching occurred,
occurred [sic] with a couple of other Marines in
the room. There was no actual one on one contact
with him, just a series of phone calls and
comments . . . .
That being said . . . this is definitely
going to fail the 403 legal relevancy test,
definitely a substantial risk of unfair prejudice
6
United States v. Barnett Jr., No. 05-0322/MC
to the accused, confusion of the issues, and a
great propensity to mislead the members, sir.
During another session pursuant to Article 39(a), UCMJ, the
military judge ruled on the Government’s motion to admit RB’s
testimony and the incident report:
MJ: Gentlemen, the defense of mistake of fact
has an essential part, whether it’s mistake of
fact as to a specific intent offense or a general
intent offense, that the accused’s mistake of
fact as to consent, that’s the mistake of fact at
issue in this case, was honestly held, that he
truly believed it that is, that in this case PFC
[LT], [PVT SD], [PVT SK] and PFC [BL] consented
to his touchings and comments . . . . The
testimony of [RB] is relevant in that it shows
that on a prior occasion that the accused was
informed in what appear to be very clear terms
that his conduct wasn’t welcomed, and, hence, not
consented to under similar circumstances. Hence,
it’s relevant in this proceeding. . . . I noted
that they are relevant given the defense posture
and the evidence which has been introduced in
support of that posture. I will give a
cautionary instruction to the members on the use
of the evidence and, hence, I’m convinced that
with that instruction being provided to the
members both now and during -- or prior to their
deliberations that the probative value of this
evidence is not substantially outweighed by its
prejudicial impact.
. . . .
The page 11 entry and the incident report
which was provided to me for consideration on
this matter in the Article 39(a) session
previously, and which I have considered herein,
are not admitted and will not be admitted
pursuant to this. I find that their prejudicial
impact to admit at this time the page 11 entry
would be cumulative and that at this time that
its introduction would be substantially more
prejudicial than probative.
7
United States v. Barnett Jr., No. 05-0322/MC
Before RB was brought before the members to testify, the
military judge gave the following limiting instruction at the
defense counsel’s request:
MJ: Evidence that the accused may have made
sexually provocative comments to [RB] and may
have touched her in a purportedly provocative
manner may be considered by you for the limited
purpose of its tendency, if any, to rebut the
contention of the defense evidence that the
accused’s participation in the offenses of
indecent assault under Charge IV with [PVT SD],
[PFC LT], and [PVT SK], and the offenses of
maltreatment in the specifications under Charge
II with [PVT SD] and [PFC LT], [PVT SK], and [PFC
BL] as the result of mistake on the accused’s
part as to consent on the part of the persons who
were in Charge II and IV, which are before you,
the object of the accused’s alleged sexual
touchings and/or comments. 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 criminal tendencies and
that he therefore committed the offenses which
are charged and which are before the court.
The military judge repeated this instruction at the close of
RB’s testimony.
During the prosecution’s case, all four of the complaining
witnesses testified against Appellant. Although each of the
trainee’s testimony differed, three of the four trainees
described a physical encounter with Appellant that included
kissing and fondling. The fourth trainee testified that
Appellant mentioned wanting to kiss her during class one morning
8
United States v. Barnett Jr., No. 05-0322/MC
and also attempted to tickle her on another occasion. None of
the trainees testified that she told Appellant to stop.
RB testified that, while serving as the maintenance company
clerk at Twentynine Palms in 1994, she and Appellant “had to
communicate on a daily basis” for administrative reasons. RB
stated that she began receiving phone calls from Appellant that
“started out on a business matter” but would then change. When
asked to elaborate on this change, RB offered the following:
“The tone of his voice would change. He started making comments
[that] I had a sexy voice, things of that nature. He would
whisper comments to me over the phone.” When asked what
specific comments Appellant made, RB stated that “[t]here [were]
several comments ranging from, you have a sexy voice, you should
have married a man like me, not your husband. He made a comment
that he wanted to know what it was like to have sex with a white
pregnant woman. I was pregnant at the time.” RB testified that
in addition to Appellant’s frequent phone calls, he also made
similar comments to her in-person, although “[v]ery few times.”
The only physical contact RB testified to was Appellant rubbing
his arm on her arm while they were both seated in Appellant’s
office at his computer.
On the issue of consent, trial counsel and RB had the
following exchange:
9
United States v. Barnett Jr., No. 05-0322/MC
Q: Now, when Sergeant Barnett made these
comments to you over the phone, what would you
say to him?
A: On several occasions I asked him to stop.
Q: Okay.
A: Stop calling and hang up the phone.
Q: When you would tell him to stop, stop -- give
us an idea of what you would say to him? Would
you simply say stop or did you make a comment,
what would it be?
A: I started out just by saying, you know, you
don’t need to be saying these things. Then it
started being like you need to stop making these
comments.
Q: And when you would make your comment like
that, you need to stop or stop making these
comments, would Sergeant Barnett respond at all?
A: No, sir, he did not.
Q: And on occasion would more sexual comments
follow?
A: Yes.
Q: And then you said you had to hang up the
phone?
A: Yes.
During closing arguments, trial counsel summarized the import of
RB’s testimony:
Is the accused aware of what he is doing? Is he
aware of what he is doing, or is this a mistake?
Is he aware of what he is doing? Ask yourself
that. And when you’re thinking about that, and
you’re thinking about the four victims in this
case, think about [RB]. Think about what
happened to her three years before these events.
10
United States v. Barnett Jr., No. 05-0322/MC
She told you how she was sexually harassed by the
accused. Not anything like these privates, not
anything like these privates. Touched, the
comments, “You shouldn’t have married him, you
should have married a guy like me.”
She says no. Why is this important? Why is
that important, “She says no”? Because it
doesn’t matter. She tells you she says no. She
has to hang up on him. She has to hang up on him
a number of times. Sometimes he comes and visits
her and he says it, and she can’t hang up. You
get a picture of what these privates were going
to go through.
Trial defense counsel, by contrast, reiterated Appellant’s
mistake of fact defense:
The military judge is going to instruct you,
mistake of fact is a defense to indecent assault,
sexual harassment, mistreatment. What was going
on through Sergeant Barnett’s mind? It doesn’t
even have to be reasonable for indecent assault.
No matter how unreasonable, as long as he
perceived there was consent -- and you see that
in his statement -- and you saw that from the
testimony of these girls, that they said no and
he kept going and they didn’t do anything, they
said nothing, he kept going. You know, a
reasonable person would consider that to be
consent.
Following closing arguments, the military judge instructed
the members on the mistake of fact defense and repeated his
earlier limiting instruction with regard to RB’s testimony.
On review, the lower court applied the three-part test set
forth in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.
1989), to determine whether RB’s testimony should have been
admitted under M.R.E. 404(b). Barnett, 2004 CCA LEXIS 285, at
11
United States v. Barnett Jr., No. 05-0322/MC
*3-*4, 2004 WL 3015292, at *1-*2. The lower court concluded
that the evidence had been properly admitted and that the
military judge did not abuse his discretion. 2004 CCA LEXIS
285, at *6-*7, 2004 WL 3015292 at *2.
First, the finder of fact could reasonably
conclude that the acts RB complained of did occur
and that the appellant is the person who
committed those acts. . . . Second, the
appellant’s commission of the prior acts is
probative of whether he believed the victims
consented to his physical contact. Consent was a
material issue raised by the appellant in his own
defense. Third, while the relevant evidence was
prejudicial to the appellant, the danger of
unfair prejudice did not substantially outweigh
its probative value. The military judge gave a
cautionary instruction immediately before and
after RB’s testimony and again before
deliberations on findings.
2004 CCA LEXIS 285, at *6, 2004 WL 3015292, at *2 (footnote
omitted).
On appeal to this Court, Appellant argues that the military
judge abused his discretion when he allowed RB to testify.
According to Appellant, RB’s testimony fails all three of the
prongs in Reynolds. Specifically, Appellant argues that RB’s
testimony was not probative of Appellant’s mistake of fact
defense “because her allegations constituted completely
different facts and circumstances.” With regard to the third
prong, Appellant argues that the probative value of RB’s
testimony did not outweigh its prejudicial value. “[RB]’s
testimony only created a picture of Appellant’s propensity to
12
United States v. Barnett Jr., No. 05-0322/MC
engage in inappropriate behavior. The unfair prejudicial effect
of [RB]’s testimony included that Appellant was obsessive and
possessed uncommon sexual fetishes.”
In response, the Government argues that the military judge
did not abuse his discretion and that he properly applied the
three-prong test in Reynolds. The Government further asserts
that, even if the military judge did err, there was no material
prejudice to Appellant’s substantial rights. In support of this
conclusion, the Government summarizes the evidence in this case,
and reiterates the strength of the Government’s case at trial.
DISCUSSION
“A military judge’s decision to admit or exclude evidence
is reviewed under an abuse of discretion standard.” United
States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (citing
United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000),
overruled on other grounds by United States v. Inong, 58 M.J.
460, 464 (C.A.A.F. 2003)). “[A] military judge abuses his
discretion if his findings of fact are clearly erroneous or his
conclusions of law are incorrect.” United States v. Ayala, 43
M.J. 296, 298 (C.A.A.F. 1995).
M.R.E. 404(b)2 provides, in relevant part:
2
Although M.R.E. 413 permits evidence of similar crimes in
sexual assault cases, we do not decide whether the evidence in
this case would have been admissible under M.R.E. 413 for two
reasons. First, M.R.E. 413 was not in effect at the time of
13
United States v. Barnett Jr., No. 05-0322/MC
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident . . . .
As noted, this Court in Reynolds established a three-part
test to determine the admissibility of uncharged misconduct
under M.R.E. 404(b):
1. Does the evidence reasonably support a finding by
the court members that appellant committed prior
crimes, wrongs or acts?
2. What “fact . . . of consequence” is made “more” or
“less probable” by the existence of this evidence?
3. Is the “probative value . . . substantially
outweighed by the danger of unfair prejudice”?
29 M.J. at 109 (citations omitted). The evidence at issue must
fulfill all three prongs to be admissible. Id. “The first and
second prongs address the logical relevance of the evidence.”
McDonald, 59 M.J. at 429; M.R.E. 401; M.R.E. 402; see also
Huddleston v. United States, 485 U.S. 681, 686-87, 689 (1988).
“The third prong ensures that the evidence is legally, as well
as logically, relevant.” McDonald, 59 M.J. at 429; M.R.E. 403;
see also Huddleston, 485 U.S. at 687-88.
Here, as detailed above, trial counsel offered three
Appellant’s court-martial. See United States v. Morrison, 52
M.J. 117, 121 n.4 (C.A.A.F. 1999). Second, Appellant’s
uncharged misconduct does not qualify as sexual assault under
M.R.E. 413.
14
United States v. Barnett Jr., No. 05-0322/MC
theories to support admission of the uncharged misconduct
evidence, including intent,3 plan,4 and to rebut Appellant’s
mistake of fact defense. Despite defense counsel’s objection,
the military judge admitted the evidence as relevant to rebut
Appellant’s claim that the four trainees consented to his
advances. Specifically, as noted previously, the military judge
stated that RB’s testimony was “relevant in that it shows that
on a prior occasion . . . the accused was informed in what
appear to be very clear terms that his conduct wasn’t welcomed,
and, hence, not consented to under similar circumstances.”
Resolution of the issue in this case centers around the
second and third prongs of Reynolds. The first question in this
case is one of logical relevance -- whether the factual
dissimilarities between the offenses charged at trial and the
3
As noted, trial counsel offered the following explanation when
pressed by the military judge on the theory of intent:
[C]ertainly we do believe that it impacts on his intent to
gratify his sexual desire. The acts that [RB] will
testify, the statements that he made, the repeated nature
of the statements, the complete ignorance of [his]
comments, please stop, leave me alone, just the complete
roll over and you’ll see how that and what has happened in
the instance with these four victims, how that segues and
we’ll be able to show the members the intent of the accused
here.
4
As noted, trial counsel offered the following explanation on
the theory of plan: “[A]nd third to show the accused’s plan, if
you will, to sexually harass, dominate and touch subordinate
females that he’s able to separate from the pack . . . .”
15
United States v. Barnett Jr., No. 05-0322/MC
prior uncharged misconduct were so great such that the military
judge abused his discretion when he allowed RB to testify. The
second question in this case, assuming the prior uncharged
misconduct was logically relevant, is one of legal relevance --
whether any unfair prejudice created by the evidence outweighed
its probative value. We address these two questions in turn.
Logical relevance
The military judge’s ruling to admit the evidence was
premised on two related implicit findings, first, that because
RB did not consent to his actions, Appellant should have known
that the four trainees also did not consent, and, second, that
Appellant should have known because the circumstances were
similar in nature.
With regard to the first implicit finding, consent, as a
legal matter, and in the context of adult relations, is a fact-
specific inquiry that must be made on a case-by-case basis. See
United States v. Hibbard, 58 M.J. 71, 75-76 (C.A.A.F. 2003); see
Manual for Courts-Martial, United States pt. IV, para.
45.b.(1)(b) (2005 ed.) (MCM). In this case, the facts are such
that consent, or lack thereof, cannot be determined with
reference to the prior uncharged misconduct. With RB, Appellant
engaged in escalating verbal harassment of a coworker, resulting
in RB explicitly telling Appellant to stop calling her and to
stop making inappropriate comments. By contrast, with the four
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United States v. Barnett Jr., No. 05-0322/MC
trainees, Appellant engaged in largely continuous physical
harassment of subordinates in a teaching environment where he
was never explicitly told to stop. Regardless of whether
Appellant should have known that his advances toward subordinate
female trainees were inappropriate, RB’s requests that Appellant
stop calling her and stop making sexual comments does not show
that Appellant could not have mistakenly believed that any of
the four trainees consented to his later actions.
With regard to the second implicit finding, there are
significant factual differences between the circumstances RB
described and those the four trainees described, aside from
those noted above. In Morrison, this Court conducted a six-part
analysis of prior uncharged misconduct to determine
admissibility under M.R.E. 404(b) where the accused was charged
with multiple specifications of child molestation. 52 M.J. at
122-23. Citing United States v. Munoz, 32 M.J. 359, 363 (C.M.A.
1991), this Court identified the following as relevant to its
analysis: (1) the “[r]elationship between victims and
appellant”; (2) the “[a]ges of the victims”; (3) the “[n]ature
of the acts”; (4) the “[s]itus of the acts”; (5) the
“[c]ircumstances of the acts”; and (6) the “[t]ime span.” Id.All but the second criterion is relevant to this case. We
examine these criteria in turn.
Relationship between the victims and appellant: Unlike the
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United States v. Barnett Jr., No. 05-0322/MC
four trainees, who were students under Appellant’s supervision,
RB testified that she had only an administrative relationship
with Appellant in which she was not subject to his supervision.
Nature of the acts: RB testified that the only physical
contact she had with Appellant was when he rubbed his arm
against hers while they were both seated at the computer in his
office. By contrast, three of the four trainees testified to
repeated overt sexual acts that included kissing and fondling.
The fourth trainee testified that Appellant mentioned wanting to
kiss her during class one morning and also attempted to tickle
her on another occasion.
Situs of the acts: RB testified that Appellant made
inappropriate comments toward her over the telephone and also
in-person when he would stop by her office. The one incident of
touching occurred in Appellant’s office. By contrast,
Appellant’s statements to the four trainees were always in-
person. Furthermore, Appellant’s comments and actions did not
occur in an office setting, but rather, in the context of his
teaching duties, in a tank, for example, or in a classroom.
Circumstances of the acts: In this case, as in Morrison,
there is no common theme. 52 M.J. at 123. While there are
multiple, notable similarities between the circumstances of
Appellant’s acts towards the four trainees, as compared to the
circumstances of Appellant’s largely verbal conduct toward RB,
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United States v. Barnett Jr., No. 05-0322/MC
the similarities are few.
Time span: The charges against Appellant stem from
incidents occurring in late October 1997 through early November
1997. By contrast, RB testified that her encounters with
Appellant were from April 1994 until August of 1994.
In sum, the evidence of Appellant’s prior uncharged
misconduct with RB had only marginal logical relevance to the
present charged conduct. Despite trial counsel’s arguments to
the contrary, RB’s explicit instructions to Appellant to stop
are not probative of whether Appellant reasonably could have
mistaken the four trainees’ silence as consent. Furthermore,
the evidence is only marginally relevant under either of the
other two theories trial counsel offered -- intent and plan.
During trial counsel’s lengthy proffer to the military judge, he
argued that RB’s testimony would be probative of Appellant’s
“predatory intent” and also “to show the accused’s plan . . . to
sexually harass, dominate and touch subordinate females that
he[] [was] able to separate from the pack . . . .” However,
both of these alternative bases for admissibility are weak. As
in Morrison, “[t]he charged acts were so overtly sexual that
motive and intent were not in issue.” 52 M.J. at 123. In
addition, Appellant’s actions toward RB, and the context in
which they occurred, do not tend to show a common plan. RB was
not a subordinate female to Appellant in the same way that the
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United States v. Barnett Jr., No. 05-0322/MC
trainees were. As noted, Appellant and RB had a purely
administrative, as opposed to an instructive, relationship. In
addition, there was no “pack” from which Appellant could
separate RB.
Legal relevance
Even assuming the evidence of Appellant’s prior uncharged
misconduct was logically relevant, to be admissible, it must
still pass the test of legal relevance under the third prong of
Reynolds. Recently, in United States v. Berry, this Court
outlined the following criteria for testing legal relevance:
In conducting the M.R.E. 403 balancing test a military
judge should consider the following factors: the strength
of the proof of the prior act; the probative weight of the
evidence; the potential to present less prejudicial
evidence; the possible distraction of the fact-finder; the
time needed to prove the prior conduct; the temporal
proximity of the prior event; the frequency of the acts;
the presence of any intervening circumstances; and the
relationship between the parties.
61 M.J. 91, 95-96 (C.A.A.F. 2005) (citing United States v.
Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)).
In his ruling on the defense motion, the military judge did
not conduct the balancing inquiry under M.R.E. 403 on the
record. See id. at 96 (“Where 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.”). Instead, the
military judge stated the following: “I’m convinced that with
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United States v. Barnett Jr., No. 05-0322/MC
that instruction being provided to the members both now and
during -- or prior to their deliberations that the probative
value of this evidence is not substantially outweighed by its
prejudicial impact.”
As defense counsel argued at trial, RB’s testimony carried
a “substantial risk of unfair prejudice” to Appellant including
“confusion of the issues, and a great propensity to mislead.”
Both of these statements are true. The issue in this case was
whether the four trainees consented to Appellant’s actions.
RB’s testimony was, at best, marginally probative on this point.
Furthermore, in order to challenge RB’s credibility, the defense
called various witnesses to rebut her claims and also to refute
what she claimed reporting at the time of the incident. Just as
importantly, RB’s testimony raised the specter of unfair
prejudice in two ways. First, RB’s testimony portrayed
Appellant to the members as not just a noncommissioned officer
who abused his authority over trainees, but as a sergeant who
made advances toward the Marine wife of another Marine. Second,
some of Appellant’s comments included racial overtones. RB
testified that a “few times” Appellant told her that “he wanted
to know what it was like to have sex with a white pregnant
woman.”
In light of the marginal relevance of RB’s testimony, we
conclude that the danger of unfair prejudice from these aspects
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United States v. Barnett Jr., No. 05-0322/MC
of RB’s testimony substantially outweighed the probative value
of the evidence. In this context, the military judge’s limiting
instruction could not eliminate the unfair prejudice created by
RB’s testimony in light of its low probative value coupled with
the nature of the prejudice. Cf. United States v. Owens, 21
M.J. 117, 124 (C.M.A. 1985) (finding a limiting instruction that
restricted members’ consideration to an issue on which prior act
evidence had “considerable probative value” substantially
reduced evidence’s “prejudicial tendencies”).
For the above reasons, even assuming the evidence was
logically relevant, the military judge erred when he found that
the danger of unfair prejudice did not substantially outweigh
its probative value. M.R.E. 403. Therefore, the evidence in
this case fails to fulfill not only the second, but also the
third prong of Reynolds.
Prejudice
Having determined that the military judge abused his
discretion, we must now determine whether this error resulted in
material prejudice to Appellant’s substantial rights. Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2000). “We evaluate prejudice
from an erroneous evidentiary ruling by weighing (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.” United States
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United States v. Barnett Jr., No. 05-0322/MC
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)).
Here, the Government’s case, aside from RB’s testimony and
the two-page incident report, was strong. All four of the
complainants testified and there were similarities between their
respective rendition of events. There is nothing in the record
to indicate that these four individuals were not credible
witnesses. The defense, by contrast, did not present a
compelling case. The crux of Appellant’s defense was that he
reasonably believed that the four trainees consented to his
actions. However, all four denied that the encounters were
consensual and each recounted some type of nonverbal
manifestation of their unwillingness to be touched by Appellant.5
Finally, the evidence involving RB, even if relevant, was of
marginal importance given the difference in contexts. As stated
above, the events involving RB happened almost three years
earlier. In addition, the defense brought in two witnesses to
rebut RB’s version of events. For these reasons, we hold that
the erroneous admission of RB’s testimony was harmless error.
5
PVT SD testified that she pulled her legs together when
Appellant touched her legs and pubic area and pushed his hand
away when Appellant rubbed her breast. PFC BL testified that
she elbowed Appellant out of the way when he tried to tickle
her. PFC LT testified that she pushed Appellant away twice when
he kissed her. PVT SK testified that she pulled away when
Appellant kissed her.
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United States v. Barnett Jr., No. 05-0322/MC
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
24