United States v. Goodin

UNITED STATES, Appellee
v.
Ernest D. GOODIN Jr., Staff Sergeant
U.S. Air Force, Appellant
No. 08-0355
Crim. App. No. 36266
United States Court of Appeals for the Armed Forces
Argued November 17, 2008
Decided January 21, 2009
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Michael A. Burnat (argued); Major
Shannon A. Bennett and Captain Anthony D. Ortiz (on brief).
For Appellee: Major Brendon K. Tukey (argued); Colonel Gerald
R. Bruce and Major Jeremy S. Weber (on brief).
Military Judge: Kevin P. Koehler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Goodin, No. 08-0355/AF
Chief Judge EFFRON delivered the opinion of the Court.
Appellant was charged with three violations of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000):
(1) possession of visual depictions of minors engaging in
sexually explicit conduct; (2) committing an indecent act upon
his eleven-year-old stepdaughter while his wife was out of town;
(3) and committing an indecent act of a sexual nature with his
wife. A general court-martial consisting of a military judge
sitting alone convicted Appellant, contrary to his pleas, of the
specifications charging commission of an indecent act upon his
stepdaughter and possession of child pornography. The court-
martial found Appellant not guilty of committing an indecent act
with his wife. The sentence adjudged by the court-martial
included a dishonorable discharge, confinement for forty-eight
months, and reduction to E-1. The convening authority approved
the sentence, and the United States Air Force Court of Criminal
Appeals affirmed. United States v. Goodin, No. ACM 36266, 2007
CCA LEXIS 550, 2007 WL 4459150 (A.F. Ct. Crim. App. Dec. 19,
2007) (unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS
WITH HIS WIFE.
For the reasons set forth below, we affirm.
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I. BACKGROUND
Prior to trial on the merits, Appellant filed a motion in
limine asking the military judge to restrict the type of
evidence that could be offered by the Government regarding
Appellant’s sexual activities with his wife. The motion did not
seek to exclude evidence of the charged indecent act with
Appellant’s wife, but argued that evidence of Appellant’s other
sexual activities with her was inadmissible on the grounds that
such evidence was more prejudicial than probative in violation
of Military Rule of Evidence (M.R.E.) 403. Appellant did not
ask the military judge to exclude the evidence on the grounds
that the evidence was subject to the marital privilege under
M.R.E. 504, or that admission of the evidence would otherwise
implicate constitutionally protected marital activities.
The military judge informed the parties that he would defer
ruling on Appellant’s motion because it was not yet apparent
what specific evidence the Government would attempt to admit.
He further advised defense counsel that counsel could object to
any particular item of evidence at the time the Government
offered it for admission.
During the Government’s case in chief, Appellant’s wife
testified without objection to the circumstances of the charged
indecent act in which she was involved. The military judge
sustained Appellant’s objection when the Government asked
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Appellant’s wife whether Appellant ever performed the generic
sexual act with her that he was charged with committing upon his
stepdaughter.
Over defense objection, the military judge permitted
Appellant’s wife to testify as to the following matters: that
Appellant desired multiple sexual acts on a daily basis; that
Appellant indicated to her that he was attracted to young girls;
that she saw Appellant with pornographic magazines which,
although not containing child pornography, featured women who
were “not very developed”; that Appellant told her he needed
visual stimulation for sexual satisfaction; that she and
Appellant had videotaped their sexual activities to assist
Appellant in self-gratification; and that Appellant told her he
was concerned that he would not be able to satisfy himself
sexually if she took the video recorder when she went out of
town.
Appellant contended that the foregoing testimony was either
not relevant under M.R.E. 401 or that it involved impermissible
propensity evidence under M.R.E. 404(b). M.R.E. 401 provides
that relevant evidence “means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” M.R.E. 404(b) excludes
“[e]vidence of other crimes, wrongs, or acts” offered solely “to
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prove the character of a person in order to show action in
conformity therewith.” Such evidence may still be introduced
under M.R.E. 404(b) if it is offered for another purpose, such
as “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
In response to Appellant’s objections, the Government
maintained that the evidence was relevant and admissible to show
Appellant’s motive and intent in support of the theory that
Appellant turned to his stepdaughter to fulfill his sexual
desires while his wife was out of town. The military judge
admitted the testimony.
After considering the balance of the evidence offered by
the prosecution and the defense, as well as the arguments of
counsel, the military judge convicted Appellant of possessing
child pornography and committing an indecent act with his
stepdaughter. The military judge acquitted Appellant of
committing an indecent act with his wife. On appeal, Appellant
asserts that the military judge erred in admitting the testimony
over his objection and that the error was prejudicial.
II. DISCUSSION
We review a military judge’s decision to admit evidence for
an abuse of discretion. United States v. Thompson, 63 M.J. 228,
230 (C.A.A.F. 2006). In the event of an erroneous admission of
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evidence, we evaluate claims of prejudice by weighing four
factors: “(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. We apply the same four-pronged test for erroneous
admission of government evidence as for erroneous exclusion of
defense evidence.” United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999) (citations omitted); see also Article 59(a),
UCMJ, 10 U.S.C. § 859(a) (2000) (“A finding or sentence of a
court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.”).
In the present case, we need not determine whether the
admission of any of the testimony at issue constituted error.
Even if the testimony was admitted in error, a matter that we do
not decide in the present case, the impact of the testimony was
harmless under the four-part test for prejudice set forth in
Kerr.
With respect to the first and second factors, the strength
of the parties’ cases, we note that the Government presented
substantial evidence in support of its prosecution of Appellant.
The Government introduced ninety-five images of child
pornography found on Appellant’s computer. Fifty-seven of these
images were of known children in the National Center for Missing
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and Exploited Children’s database, and two were of known
children in the FBI database. Ten pages of child pornography
websites that Appellant actually visited also were admitted into
evidence. The Office of Special Investigations (OSI) computer
forensics examiner who recovered the child pornography files
from Appellant’s computer testified as to how she recovered
those files. Appellant’s stepdaughter testified concerning the
indecent act Appellant performed with her, and two DVDs of
interviews she had with OSI investigators were admitted into
evidence. The Government also produced a forensic psychiatrist
who testified as to the likelihood that the alleged incident
occurred.
The defense case, on the other hand, was not particularly
strong. Appellant’s defense strategy consisted primarily of
counsel’s cross-examination of the Government’s witnesses, yet
counsel was unable to identify any significant contradictions or
gaps in the witnesses’ testimony. The sole defense witness,
Appellant’s wife, also served as a Government witness. She
testified that, during the course of the OSI investigation, her
daughter recanted the accusation against Appellant when
confronted with the possibility of having to take a polygraph
examination herself. Appellant’s wife also explained her
daughter’s possible motivation for fabricating the indecent act.
The Government, however, was able to rehabilitate the
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stepdaughter’s credibility through its cross-examination of
Appellant’s wife and the testimony of its forensic psychiatrist.
With respect to the third factor, the materiality of the
admitted evidence, the wife’s testimony provided the foundation
for the Government’s theory that Appellant would commit an
indecent act with his stepdaughter because of his particular
sexual needs. The quality of the testimony, the final factor in
the Kerr analysis, was adequate to support the truth of the
matters stated. Appellant’s wife was the only person involved
in this case, other than Appellant, who had insight into
Appellant’s sexual interests.
After consideration of each of the four Kerr factors --
particularly the strength of the Government’s case and the
marginal nature of the defense case –- we find it unlikely that
the wife’s disputed testimony substantially influenced the
factfinder. Even if the testimony was admitted in error, a
matter that we do not decide in the present case, any such error
was harmless and did not materially prejudice the substantial
rights of Appellant. See Article 59(a), UCMJ.
III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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