United States v. McDonald , 2004 CAAF LEXIS 437 ( 2004 )

UNITED STATES, Appellee
v.
Brian C. MCDONALD, Mess Management
Specialist First Class
U.S. Navy, Appellant
No. 03-0211
Crim. App. No. 200000635
United States Court of Appeals for the Armed Forces
Argued November 19, 2003
Decided May 5, 2004
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR
(argued).
For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR (argued);
Colonel Michael E. Finnie, USMC (on brief); Commander R. P.
Taishoff, JAGC, USN, and Lieutenant Ross W. Weiland, JAGC, USNR.
Military Judge: R. J. Kreichelt
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. McDonald, No. 03-0211/NA
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted of two
specifications of committing indecent liberties with a child,
one specification of indecent language toward the child, and one
specification of soliciting sex with a child, in violation of
Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934(2000). The convening authority approved the sentence of a
dishonorable discharge, five years’ confinement, and reduction
to the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence. United States v. McDonald,
57 M.J. 747 (N-M. Ct. Crim. App. 2002). We granted review of
the following issues:
I. WHETHER THE LOWER COURT ERRED BY FINDING EVIDENCE
OF UNCHARGED ACTS THAT APPELLANT ALLEGEDLY
COMMITTED OVER TWENTY YEARS BEFORE TRIAL, WHEN HE
WAS A CHILD, WAS ADMISSIBLE UNDER MILITARY RULE
OF EVIDENCE 404(B) OVER DEFENSE OBJECTION.
II. WHETHER ADDITIONAL CHARGE I, WRONGFULLY
SOLICITING A FEMALE UNDER SIXTEEN YEARS OF AGE
AND NOT APPELLANT’S WIFE TO HAVE SEXUAL
INTERCOURSE WITH HIM, SHOULD BE DISMISSED FOR
FAILURE TO STATE AN OFFENSE.
We hold that the lower court erred by upholding the trial
judge’s admission of evidence of uncharged acts of misconduct
committed over 20 years before the trial, and therefore need not
address Issue II.
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United States v. McDonald, No. 03-0211/NA
FACTS
According to the charges, Appellant began making sexual
advances toward his adopted daughter, TM, when she was 12 years
old. He gave her condoms and took pictures of her while she was
taking a bath. Additionally, he gave her a story he downloaded
from the Internet entitled, “Daddy and Me.” The story described
sexual relations between a father and daughter. Later,
Appellant gave TM a letter saying, “You’re beautiful,” “I want
to be your first sexual experience,” and “Wouldn’t it be better
if it was with someone who loved you and wouldn’t tell anybody
. . . [or] would call you a whore afterwards . . . .” When he
gave this to his daughter, she started crying. He immediately
took it, ripped it up, and threw it away.
Appellant’s wife testified that she found a “story” called
“Daddy and Me” in the children’s bathroom. The story described
a sexual relationship between a father and his young daughter.
When the daughter in the story began to reach puberty, her
father became attracted to her. The daughter began asking her
father about sex and became curious about engaging in sexual
activity with him.
Appellant’s wife stopped reading the story because she
became angry and then went to talk to Appellant. Appellant
admitted to her that he was reading the story, but claimed that
he accidentally left it in TM’s bathroom. Appellant’s wife said
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United States v. McDonald, No. 03-0211/NA
she was inclined to believe TM, who had told her that Appellant
had purposefully placed the story where TM would see it.
In addition to admitting testimony regarding the story
“Daddy and Me,” and the evidence concerning the condoms and
picture-taking, the judge also admitted evidence that Appellant
engaged in sexual contact with his stepsister, KM, 20 years
before the trial while both were adolescents.
KM, who was 29 years old at the time of trial, testified
about what happened when she was eight years old and Appellant
was 13 years old. Sometimes Appellant would enter her room and
expose himself, or come in touching himself. On some occasions,
Appellant and KM were left alone in the house. He brought
pornographic magazines with him, read them, and allowed her to
see them, one of which included an illustrated story about a
fairy masturbating a man. This conduct led to KM masturbating
Appellant. Appellant also asked to see her body on several
occasions. On one such occasion she complied, and Appellant
attempted to insert his finger into her vagina, but she moved
away.
Appellant was charged with photographing TM while she was
taking a shower and providing TM with condoms. The charges
alleged that these acts were done with the intent to gratify his
sexual desires. The prosecutor offered KM’s testimony to show
intent, plan, and scheme regarding his offenses with TM. See
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United States v. McDonald, No. 03-0211/NA
Military Rule of Evidence 404(b)[hereinafter M.R.E.]. The
defense objected, but the judge overruled the objection, finding
the evidence was probative of Appellant’s intent and plan.
Later, the judge instructed the members that KM’s testimony
could only be considered on the issues of plan or design, or
intent, as to Charge I specification 1, photographing TM while
she was taking a shower, and specification 2, providing condoms
to TM.
Appellant now argues that the uncharged acts do not show a
plan. Appellant further contends that the uncharged acts are
not probative of Appellant’s intent, because the acts were
committed 20 years ago, are not similar to the charged acts, and
were committed when he was only a child. Appellant also asserts
that even if the evidence was found to be relevant, the
probative value of the evidence is substantially outweighed by
its prejudicial nature. Based upon these concerns, Appellant
argues that the uncharged acts were introduced only to establish
his propensity for similar acts, not for a valid purpose under
M.R.E. 404(b). The Government counters by arguing that the acts
are admissible to show a plan or design by Appellant. Moreover,
the Government also argues, and the lower court held, that even
if there was error in admitting the evidence, it was harmless.
The evidence of guilt included Appellant’s written pretrial
statement, his oral admissions to his wife and mother, and TM’s
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United States v. McDonald, No. 03-0211/NA
testimony corroborated in part by Dr. True and TM’s brother.
The defense presented no evidence.
DISCUSSION
This case concerns evidence of uncharged misconduct, or
“other acts” evidence, and the application of the “relevance
rules of evidence.” M.R.E.s 401, 403, and 404(b). These rules
are virtually identical to the Federal Rules of Evidence
[hereinafter Fed.R.Evid.]. M.R.E. 401 provides that to be
admitted, evidence must be logically relevant, by tending “to
make the existence of any fact . . . more probable or less
probable than it would be without the evidence.” This Court has
discussed at length the admission of “other acts” evidence under
M.R.E. 404(b), just as the Supreme Court has discussed the
federal analog, Fed.R.Evid. 404(b). Over the years, we have
relied upon the three-part test in United States v. Reynolds, 29
M.J. 105 (C.M.A. 1989), which has the following elements:
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”?
Id. at 109 (citations omitted). This three-prong test is
consistent with Huddleston v. United States, 485 U.S. 6816
United States v. McDonald, No. 03-0211/NA
(1988). The first and second prongs address the logical
relevance of the evidence.1
The first prong of the Reynolds test tracks the Supreme
Court’s holding in Huddleston that “Rule 404(b). . . evidence is
relevant only if the jury can reasonably conclude that the act
occurred and that the defendant was the actor.” Id. at 689.
The second prong of Reynolds derives from the Supreme
Court’s conclusion that “[t]he threshold inquiry a court must
make before admitting similar acts evidence under Rule 404(b) is
whether that evidence is probative of a material issue other
than character.” Id. at 686. The Supreme Court went on to
recognize that Fed.R.Evid. 401 and 402 (like M.R.E. 401 and 402)
“establish the broad principle that relevant evidence --
evidence that makes the existence of any fact at issue more or
less probable -- is admissible unless the Rules provide
otherwise.” Id. at 687.
Finally, the third prong of Reynolds mirrors Huddleston’s
discussion of the danger of undue prejudice, in which the
Supreme Court stated, “The House made clear that the version of
Rule 404(b) which became law was intended to ‘place greater
emphasis on admissibility than did the final Court version.’”
1
Manual for Courts-Martial, United States (2002 ed.), Analysis
of the Military Rules of Evidence A22-33.
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United States v. McDonald, No. 03-0211/NA
485 U.S. at 688 (citations omitted). The Supreme Court
continued:
The Senate echoed this theme: “[T]he use of
the discretionary word ‘may’ with respect to
the admissibility of evidence of crimes, wrongs,
or other acts is not intended to confer any
arbitrary discretion on the trial judge.” Thus,
Congress was not nearly so concerned with the
potential prejudicial effect of Rule 404(b)
evidence as it was with ensuring that
restrictions would not be placed on the admission
of such evidence.
Id. at 688-89 (citations omitted). The third prong ensures that
the evidence is legally, as well as logically, relevant. As the
Court stated: “Rule 403 allows the trial judge to exclude
relevant evidence if, among other things, ’its probative value
is substantially outweighed by the danger of unfair prejudice.’”
Id. at 687. Once the judge determines the evidence to be
logically relevant, the judge “may exclude it only on the basis
of those considerations set forth in Rule 403 . . . .” Id. at
688.
The military judge found, and the court below agreed, that
the evidence was logically relevant both as to “common plan” and
“intent.” McDonald, 57 M.J. at 755-56. We disagree. Applying
the second prong of Reynolds, we hold that the evidence of
Appellant’s uncharged acts was not logically relevant to show
either a common plan or Appellant’s intent. See, e.g., United
States v. Humpherys, 57 M.J. 83, 90-91 (C.A.A.F. 2002)(noting
that the moving party must satisfy all three prongs for the
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United States v. McDonald, No. 03-0211/NA
evidence to be admissible). A military judge’s decision to
admit or exclude evidence is reviewed under an abuse of
discretion standard. United States v. Tanksley, 54 M.J. 169,
175 (C.A.A.F. 2000). We will not overturn a military judge’s
evidentiary decision unless that decision was “arbitrary,
fanciful, clearly unreasonable,” or “clearly erroneous.” United
States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)(citations
omitted). A military “judge abuses his discretion if his
findings of fact are clearly erroneous or his conclusions of law
are incorrect.” Humpherys, 57 M.J. at 90 (citing United States
v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). Because the
admission of the uncharged acts evidence was clearly erroneous
under Reynolds, the military judge abused his discretion. We
further hold that the judges’ error was prejudicial to
Appellant, and therefore merits reversal.
A. The Common Plan Theory
Under Reynolds’ second prong, the common plan analysis
considers whether the uncharged acts in question establish a
“plan” of which the charged act is an additional manifestation,
or whether the acts merely share some common elements. United
States v. Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999); United
States v. Munoz, 32 M.J. 359, 363-64 (C.M.A. 1991). The
question as applied to the facts of this case, is whether the
uncharged acts evidence shows that Appellant had a plan to
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United States v. McDonald, No. 03-0211/NA
commit indecent acts that manifested itself on two occasions:
first, when Appellant was 13 years old with his stepsister, and
second, 20 years later, with his adopted daughter. In answering
such a question, we have examined the following factors: the
relationship between victims and the appellant; ages of the
victims; nature of the acts; situs of the acts; circumstances of
the acts; and time span. Morrison, 52 M.J. at 122-23. Viewing
the facts of this case under that framework, we conclude that
the military judge abused his discretion in admitting the
uncharged acts to establish a common plan. Indeed, the
uncharged acts in this case are extremely dissimilar to the
charged offenses: Appellant was 13 years of age at the time of
the uncharged acts, rather than a 33-year-old adult; the
uncharged acts were committed in the home of his stepsister,
where he was visiting, while the charged acts occurred where he
was the head of the household; the uncharged acts were with a
stepsister who was about five years younger, rather than with a
young stepchild under his parental control, who was about 20
years younger.
B. The Intent Theory
As to intent, we consider whether Appellant’s state of mind
in the commission of both the charged and uncharged acts was
sufficiently similar to make the evidence of the prior acts
relevant on the intent element of the charged offenses.
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United States v. McDonald, No. 03-0211/NA
Tanksley, 54 M.J. at 176-77; United States v. Rappaport, 22 M.J.
445, 447 (C.M.A. 1986). In this case, Appellant was a 13-year-
old child at the time of the uncharged acts, and a 33-year-old
married adult at the time of the charged acts. Absent evidence
of that 13-year-old adolescent’s mental and emotional state,
sufficient to permit meaningful comparison with Appellant’s
state of mind as an adult 20 years later, the military judge’s
determination of relevance on the issue of intent was fanciful
and clearly unreasonable.
C. Effect of the Error
Having concluded that the military judge abused his
discretion in admitting the evidence of Appellant’s uncharged
acts, we hold that this error was prejudicial and therefore
merits reversal. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000)
(“A finding or sentence of court-martial may not be held
incorrect on the ground of an error law unless the error
materially prejudices the substantial rights of the accused.”).
In evaluating whether erroneous admission of government evidence
is harmless, this Court uses a four part test, “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
v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999). After applying this
test, we cannot be confident that the findings of the court-
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martial were not substantially influenced by the improperly
admitted evidence of the Appellant’s childhood conduct.
The Government had a strong case that Appellant had taken
the photographs and given TM the condoms; however, under both
specifications 1 and 2 of Charge I, the Government was required
to prove beyond a reasonable doubt that Appellant had taken the
photographs and given TM the condoms “with the intent to . . .
gratify [his] sexual desires.” Manual for Courts-Martial,
United States (2002 ed.), Part IV, para. 87.b.(2)(e). The
Government’s evidence on this element, particularly with respect
to the photographs, was not strong. The defense presented no
evidence. In this posture, irrelevant and highly inflammatory
evidence of Appellant’s childhood exposure, masturbation, and
attempted digital penetration with an 8-year-old girl, 20 years
ago, could not help but be powerful, persuasive, and confusing.
Munoz, 32 M.J. at 364; United States v. Mann, 26 M.J. 1, 5
(C.M.A. 1988). Under these circumstances, the childhood acts of
Appellant were not only irrelevant, but indistinguishable from
propensity evidence, and could only have harmed Appellant in the
eyes of the members. Cf. United States v. Holmes, 39 M.J. 176(C.M.A. 1994).
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The findings and the sentence
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are set aside. The record of trial is returned to the Judge
Advocate General of the Navy. A rehearing is authorized.
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