Document Info

DocketNumber: 06-0657-AF

Judges: Baker, Effron, Erd-Mann, Stucky, Ryan

Filed Date: 5/31/2007

Status: Precedential

Modified Date: 11/9/2024

  •                        UNITED STATES, Appellee
    v.
    Paul H. SCHRODER, Chief Master Sergeant
    U.S. Air Force, Appellant
    No. 06-0657
    Crim. App. No. 35855
    United States Court of Appeals for the Armed Forces
    Argued February 6, 2007
    Decided May 31, 2007
    BAKER, J., delivered the opinion of the Court, in which EFFRON,
    C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
    Counsel
    For Appellant: Mary T. Hall, Esq. (argued); Major John N. Page
    III (on brief); Major Sandra K. Whittington.
    For Appellee: Major Kimani R. Eason (argued); Colonel Gerald R.
    Bruce and Major Matthew S. Ward (on brief); Lieutenant Colonel
    Robert V. Combs.
    Military Judge:   Kevin P. Koehler
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Schroder, No. 06-0657/AF
    Judge BAKER delivered the opinion of the Court.
    Appellant was tried by a general court-martial composed of
    officer and enlisted members.   Contrary to his pleas, he was
    convicted of one specification of rape of a child under sixteen
    and one specification of indecent acts1 in violation of Articles
    120 and 134, Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. §§ 920
    , 934 (2000).   The adjudged sentence included a
    dishonorable discharge, confinement for ten years, forfeiture of
    all pay and allowances, and reduction to E-4.   The convening
    authority approved the sentence as adjudged.    The United States
    Air Force Court of Criminal Appeals affirmed.   United States v.
    Schroder, No. ACM 35855 (A.F. Ct. Crim. App. Mar. 31, 2006).
    On Appellant’s petition, we granted review of the following
    issues:
    WHETHER THE MILITARY JUDGE ERRED IN ADMITTING
    EVIDENCE OF ALLEGED SEXUAL MOLESTATION ACTS BY
    APPELLANT INVOLVING [SC] AND [JR] AND FAILED TO
    ADEQUATELY INSTRUCT THE PANEL ON HOW TO USE SUCH
    EVIDENCE.
    WHETHER THE TRIAL COUNSEL IMPROPERLY ENGAGED IN
    INFLAMMATORY, IRRELEVANT, AND PREJUDICIAL
    COMMENTS DURING ARGUMENT BY URGING THE MEMBERS
    DURING THE MERITS AND SENTENCING TO RENDER
    JUSTICE NOT ONLY FOR THE ALLEGED VICTIMS OF THE
    CHARGED OFFENSES BUT FOR AN ALLEGED VICTIM OF
    UNCHARGED MISCONDUCT AS WELL.
    1
    Appellant was charged with indecent acts with a child under
    sixteen, Manual for Courts-Martial, United States pt. IV, para.
    87 (2002 ed.) (MCM), but convicted of the lesser offense of
    “indecent acts with another.” MCM pt. IV, para. 90.
    2
    United States v. Schroder, No. 06-0657/AF
    Finding no error prejudicial to the substantial rights of
    Appellant, we affirm.
    Background
    Appellant was accused of raping his then twelve-year-old
    daughter, JPR, in 1987, and of committing indecent acts with his
    twelve-year-old neighbor, SRS, in 2001.    The indecent acts with
    SRS, which were alleged in a single specification, included
    “having her sit on his lap, placing his hand upon her leg,
    placing his hand upon her buttocks, placing his hand upon her
    groin area, kissing her on the neck, and grabbing her buttocks
    and pulling her toward his groin.”
    Before trial, the Government moved to admit evidence of
    other acts of child molestation pursuant to Military Rule of
    Evidence (M.R.E.) 414 and M.R.E. 404(b).    This evidence included
    testimony by Appellant’s stepdaughter, SJS, that Appellant had
    molested her in 1981 when she was nine years old.   The evidence
    also included testimony by JPR that Appellant had committed
    other acts of molestation and sodomy with her in 1987.
    The military judge ruled that the uncharged acts of
    molestation with SJS and JPR were admissible under M.R.E. 414 to
    prove that Appellant had raped JPR.   He further determined that
    the uncharged acts with SJS and JPR, as well as the charged rape
    of JPR, were admissible under M.R.E. 414 in order to prove that
    Appellant had committed indecent acts with SRS.
    3
    United States v. Schroder, No. 06-0657/AF
    Issue I -- The M.R.E. 414 Evidence
    M.R.E. 414(a) provides that “[i]n 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.”
    Before admitting evidence of other acts of child
    molestation under M.R.E. 414, the military judge must make three
    threshold findings:   (1) that the accused is charged with an act
    of child molestation as defined by M.R.E. 414(a); (2) that the
    proffered evidence is evidence of his commission of another
    offense of child molestation; and (3) that the evidence is
    relevant under M.R.E. 401 and M.R.E. 402.      United States v.
    Wright, 
    53 M.J. 476
    , 482 (C.A.A.F. 2000) (requiring threshold
    findings before admitting evidence under M.R.E. 413); United
    States v. Dewrell, 
    55 M.J. 131
    , 138 n.4 (C.A.A.F. 2001) (“[a]s
    Rules 413 and 414 are essentially the same in substance, the
    analysis for proper admission of evidence under either should be
    the same”).   The military judge must also conduct a M.R.E. 403
    balancing analysis, applying among other factors those
    identified in Wright, including:       “[s]trength of proof of prior
    act -- conviction versus gossip; probative weight of evidence;
    potential for less prejudicial evidence; distraction of
    factfinder; and time needed for proof of prior conduct. . . .
    4
    United States v. Schroder, No. 06-0657/AF
    temporal proximity; frequency of the acts; presence or lack of
    intervening circumstances; and relationship between the
    parties.”    53 M.J. at 482 (citations omitted).
    Before this Court, Appellant argues that of the five acts
    charged under the specification, two of the acts -- “placing his
    hand upon her leg” and “kissing her on the neck” -- did not
    satisfy M.R.E. 414’s definition of an “offense of child
    molestation.”    In particular, they did not fall within the
    Rule’s definition of “sexual act” or “sexual contact.”      As a
    result, the military judge erred when he admitted the uncharged
    acts with SJS and JPR to prove the single specification of
    indecent acts with SRS, without further qualification.
    M.R.E. 414(d)-(g) defines an “offense of child molestation”
    in detail:
    (d) For purposes of this rule . . .
    ‘offense of child molestation’ means an offense
    punishable under the Uniform Code of Military
    Justice, or a crime under Federal law or the law
    of a State that involved --
    (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
    5
    United States v. Schroder, No. 06-0657/AF
    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.
    (e) For purposes of this rule, the term
    ‘sexual act’ means:
    (1) contact between the penis and the
    vulva or the penis and the anus, and for
    purposes of this rule, contact occurs upon
    penetration, however slight, of the penis
    into the vulva or anus;
    (2) contact between the mouth and the
    penis, the mouth and the vulva, or the mouth
    and the anus;
    (3) the penetration, however slight,
    of the anal or genital opening of another by
    a hand or finger or by any object, with an
    intent to abuse, humiliate, harass, degrade,
    or arouse, or gratify the sexual desire of
    any person; or
    (4) the intentional touching, not
    through the clothing, of the genitalia of
    another person who has not attained the age
    of 16 years, with an intent to abuse,
    humiliate, harass, degrade, or arouse or
    gratify the sexual desire of any person.
    (f) For purposes of this rule, the term
    “sexual contact” means the intentional touching,
    either directly or through clothing, of the
    genitalia, anus, groin, breast, inner thigh, or
    6
    United States v. Schroder, No. 06-0657/AF
    buttocks of any person with an intent to abuse,
    humiliate, harass, degrade, or arouse or gratify
    the sexual desire of any person.
    (g) For purposes of this rule, the term
    “sexually explicit conduct” means actual or
    simulated:
    (1) sexual intercourse, including
    genital-genital, oral-genital, anal-genital,
    or oral-anal, whether between person of the
    same or opposite sex;
    (2)   bestiality;
    (3)   masturbation;
    (4)   sadistic or masochistic abuse; or
    (5) lascivious exhibition of the
    genitals or pubic area of any person.
    This definition provides an exclusive list of offenses that
    qualify as “offense[s] of child molestation.”   Thus, it does not
    give the military judge the discretion to admit uncharged
    misconduct in every case in which the accused has allegedly
    committed indecent acts or indecent liberties with a child as
    those offenses are defined by MCM pt. IV, para. 87.      The charged
    acts must fall within the specific definition of an “offense of
    child molestation” set out in M.R.E. 414.
    Appellant is correct that the acts of “placing his hand
    upon [SRS’s] leg” and “kissing her on the neck,” are not within
    the Rule’s definitions for “sexual act” or “sexual contact.”     In
    contrast, the intentional touching of the “inner thigh” with
    intent to gratify the sexual desires is included as an act of
    7
    United States v. Schroder, No. 06-0657/AF
    “sexual contact” under M.R.E. 414(f), which in turn is included
    in the definition of “offense of child molestation” in M.R.E.
    414(d)(1).    Neither the record nor the specification indicates
    that Appellant touched SRS’s inner thigh.    Further, there is
    nothing in M.R.E. 414’s definition of “offense of child
    molestation” similar to the alleged act of kissing SRS on the
    neck.    As a result, had these acts been charged in separate
    specifications, other acts of child molestation would not be
    admissible under M.R.E. 414 to prove that they occurred.
    However, in this case, these acts were charged in a single
    specification that included factual allegations that fit the
    M.R.E. 414(f) definition of “sexual contact,” including “placing
    his hand upon [SRS]’s buttocks, placing his hand upon her groin
    area . . . and grabbing her buttocks.”    Consequently, the
    specification alleged “an offense of child molestation.”
    Having determined that the indecent acts charge alleged an
    offense of child molestation under M.R.E. 414, we consider
    whether the military judge abused his discretion in admitting
    other acts evidence under M.R.E. 414 to prove the charged
    offenses.    Wright, 53 M.J. at 483.   The military judge made the
    required threshold findings and conducted a lengthy on-record
    M.R.E. 403 balancing analysis.    As the military judge correctly
    noted, there was direct evidence in the form of eyewitness
    testimony by JPR and SJS that Appellant had committed the other
    8
    United States v. Schroder, No. 06-0657/AF
    acts of child molestation, there were no significant intervening
    circumstances between the charged and uncharged acts, and with
    all three girls, Appellant had abused his position as a “father
    figure” to take advantage of each of the victims.2   Thus, as a
    threshold matter, we conclude that the military judge did not
    err in admitting evidence of uncharged misconduct with SJS and
    JPR.   We next address Appellant’s argument that the military
    judge nonetheless erred in instructing the members on the use of
    this evidence.
    “The question of whether a jury was properly instructed
    [is] a question of law, and thus, our review is de novo.”
    United States v. Maxwell, 
    45 M.J. 406
    , 424 (C.A.A.F. 1996)
    (citing United States v. Snow, 
    82 F.3d 935
    , 938-39 (10th Cir.
    1996)).3
    2
    Appellant also takes issue with the military judge’s
    application of the Huddleston v. United States, 
    485 U.S. 681
    ,
    690 (1988) standard, pointing out that the military judge stated
    only that he found that “members could reasonably find” and not
    that “the jury could reasonably find . . . by a preponderance of
    the evidence” that the other acts had occurred. However, as the
    recitation of part of the standard made clear, the military
    judge was aware of his duty to act as a gatekeeper, and the
    omission of the “preponderance of the evidence” part of the
    standard is not in and of itself sufficient to rebut the
    presumption that the military judge knew and applied the law
    correctly. See United States v. Raya, 
    45 M.J. 251
    , 253
    (C.A.A.F. 1996). With eyewitness testimony regarding each of
    the alleged acts, the military judge did not abuse his
    discretion in this regard.
    3
    The defense requested an instruction limiting the members’ use
    of uncharged misconduct evidence to the purposes permitted by
    9
    United States v. Schroder, No. 06-0657/AF
    The military judge gave the following instruction on the
    use of uncharged misconduct evidence:
    Each offense must stand on its own and you must
    keep the evidence of each offense separate. The
    burden is on the prosecution to prove each and every
    element of each offense beyond a reasonable doubt. As
    a general rule, proof of one offense carries with it
    no inference that the accused is guilty of another
    offense. However, you may consider the similarities
    in the testimony of [SJS] and [JPR] concerning any
    alleged offensive touching with regard to the charged
    offense of rape. And you may consider the
    similarities in the testimony of [SRS], [SJS], and
    [JPR] concerning any alleged offensive touching with
    regard to the offense of indecent acts with a child.
    This was the extent of the military judge’s instructions
    regarding the use of SJS’s and JPR’s testimony admitted under
    M.R.E. 414.
    Two instructional questions are presented.   First, was the
    military judge required to disaggregate the instruction with
    respect to the three acts within the charge that qualified as
    molestation and the two acts that did not?   Second, and in any
    event, did the military judge err in his instruction as to how
    the members could consider the M.R.E. 414 evidence?
    M.R.E. 404(b). The defense request also included an instruction
    that “[y]ou may not conclude the accused is a bad person and has
    criminal tendencies and therefore convict him on that basis
    alone.” We apply the abuse of discretion standard to a military
    judge’s decision on whether to give a tailored instruction
    requested by the defense. United States v. Damatta-Olivera, 
    37 M.J. 474
    , 478 (C.M.A. 1993). However, since the issue presented
    concerns the accuracy of the statement of law contained in the
    instructions given, and not solely the failure to give a
    requested tailored instruction, we apply the de novo standard of
    review.
    10
    United States v. Schroder, No. 06-0657/AF
    The first question is addressed through reference to the
    Rule itself.    M.R.E. 414(a) provides that evidence of other acts
    of child molestation is admissible “[i]n a court martial in
    which the accused is charged with an offense of child
    molestation.”   The Rule does not limit the use of that evidence
    to qualifying acts within a specification, but rather to prove
    the specification itself.   Congress could have expressly limited
    the Rule’s application to specific acts, but it did not do so.
    This conclusion is consistent with the legal policy that informs
    M.R.E. 403.    If the military judge were to disaggregate the
    instructions, as Appellant urges, providing a separate
    instruction for each act alleged in a single specification,
    there is potential for increased confusion among members.    Such
    a rule might also encourage the government to charge multiple
    offenses in separate specifications in order to avoid such
    confusion and streamline the presentation of evidence, even
    where the interests of justice are better served by charging
    multiple acts in a single specification.    Thus, the military
    judge was not required to give an instruction distinguishing
    between the acts that met the definition of “offense of child
    molestation” in M.R.E. 414 and those that did not.
    Appellant next argues that the military judge erred by not
    instructing the jury that “[e]vidence of other crimes, wrongs,
    or acts is not admissible to prove the character of a person in
    11
    United States v. Schroder, No. 06-0657/AF
    order to show action in conformity therewith” in accordance with
    Appellant’s request.   M.R.E. 414, like its counterpart Fed. R.
    Evid. 414, was “intended to provide for more liberal
    admissibility of character evidence in criminal cases of child
    molestation where the accused has committed a prior act of
    sexual assault or child molestation.”   MCM, Analysis of the
    Military Rules of Evidence app. 22 at A22-37.   At the same time,
    there is an inherent tension between the Rule and traditional
    concerns regarding convictions based on “bad character”
    evidence.   Such evidence has long been regarded as having the
    tendency to relieve the government of its constitutional burden
    to prove every element of the charged offense beyond a
    reasonable doubt.   Thus, the Judicial Conference of the United
    States noted in response to the proposed federal rules:
    [T]he new rules, which are not supported by empirical
    evidence, could diminish significantly the protections
    that have safeguarded persons accused in criminal
    cases and parties in civil cases against undue
    prejudice. These protections form a fundamental part
    of American jurisprudence and have evolved under long-
    standing rules and case law. A significant concern
    identified by the committee was the danger of
    convicting a criminal defendant for past, as opposed
    to charged, behavior or for being a bad person.
    Judicial Conference of the United States, Report of the Judicial
    Conference on the Admission of Character Evidence in Certain
    Sexual Misconduct Cases, 
    159 F.R.D. 51
    , 52 (1995).
    12
    United States v. Schroder, No. 06-0657/AF
    As recognized in Wright, procedural safeguards are required
    to protect the accused from unconstitutional application of
    M.R.E. 413 and M.R.E. 414.   These safeguards include the
    requirement that the military judge make “threshold findings”
    that the evidence is relevant under M.R.E. 401 and M.R.E. 402;
    the military judge’s application of M.R.E. 403; the military
    judge’s preliminary application of the Huddleston standard; and
    the requirement that the government give prior notice of its
    intent to use M.R.E. 413(b) or M.R.E. 414 evidence.   Wright, 53
    M.J. at 483.   The safeguards also include the requirement of
    proper instructions.
    In this case, the military judge’s instructions fell short.
    The military judge correctly instructed the members that “[t]he
    burden is on the prosecution to prove each and every element of
    each offense beyond a reasonable doubt.   As a general rule,
    proof of one offense carries with it no inference that the
    accused is guilty of another offense.”    Nonetheless, the
    military judge qualified this statement by informing the members
    that they may “[h]owever . . . consider the similarities in the
    testimony” of the three alleged victims concerning the alleged
    rape and indecent acts.   On its own, the instruction was
    susceptible to unconstitutional interpretation:   that the
    members were permitted to conclude that the presence of
    “similarities” between the charged and uncharged misconduct
    13
    United States v. Schroder, No. 06-0657/AF
    were, standing alone, sufficient evidence to convict Appellant
    of the charged offenses.
    The Military Judges Benchbook suggests that where an
    instruction on propensity evidence is given, the members should
    also be instructed that:
    You may not, however, convict the accused of one
    offense merely because you believe (he)(she) committed
    (this)(these) other offense(s) or merely because you
    believe (he)(she) has a propensity to commit (sexual
    assault)(child molestation). Each offense must stand
    on its own and proof of one offense carries no
    inference that the accused is guilty of any other
    offense. In other words, proof of one (sexual
    assault)(act of child molestation) creates no
    inference that the accused is guilty of any other
    (sexual assault)(act of child molestation). However,
    it may demonstrate that the accused has a propensity
    to commit that type of offense. 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.
    Dep’t of the Army, Pamphlet 27-9, Legal Services, Military
    Judges Benchbook ch. 7, para. 7-13-1 (2002).4
    The United States Court of Appeals for the Tenth Circuit,
    quoting the district court’s instruction to the jury, approved a
    4
    We note too the United States Army Court of Criminal Appeals’
    recent decision that held that in cases where the military judge
    instructs that “propensity” is a proper use of M.R.E. 413
    evidence, the military judge is also required to give the
    Benchbook instruction or other similar instruction that the
    members “may not convict the accused solely because they may
    believe the accused committed other sexual assault offenses or
    has a propensity or predisposition to commit sexual assault
    offenses” and “may not use Rule 413 evidence as substitute
    evidence to support findings of guilty or to overcome a failure
    of proof in the government’s case, if any.” United States v.
    Dacosta, 
    63 M.J. 575
    , 583 (A. Ct. Crim. App. 2006).
    14
    United States v. Schroder, No. 06-0657/AF
    different formulation in United States v. McHorse, 
    179 F.3d 889
    ,
    903 (10th Cir. 1999):
    In a criminal case in which the defendant is accused
    of . . . an offense of child molestation, evidence of
    the defendant’s commission of another offense or
    offenses of child molestation is admissible and may be
    considered for its bearing on any matter to which it
    is relevant. However, evidence of a prior offense on
    its own is not sufficient to prove the defendant
    guilty of the crimes charged in the indictment. Bear
    in mind as you consider this evidence at all times the
    government has the burden of proving that the
    defendant committed each of the elements of the
    offense charged in the indictment. I remind you that
    the defendant is not on trial for any act, conduct, or
    offense not charged in the indictment.
    Although the law does not mandate a formulaic instruction,
    it is essential that where, as here, 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.
    The Government argues that the military judge did not err
    because he modeled his instruction on the instruction quoted in
    Dewrell, 55 M.J. at 138.   Dewrell was charged with raping a
    young girl, but was acquitted of rape and found guilty of
    indecent acts with a different girl.   Id. at 132.   In our
    15
    United States v. Schroder, No. 06-0657/AF
    analysis addressing the admissibility of M.R.E. 413 and M.R.E.
    414 evidence, we noted that the military judge gave an
    instruction stating that “you may consider any similarities in
    the testimony of Ms. [P, A,] and Specialist [C] concerning
    masturbation with regard to the Specification of Charge II
    [rape].”   Id.   However, the sufficiency of this instruction was
    not at issue, and it is not clear whether any prejudice could
    have resulted because Dewrell was acquitted of the offense on
    which the members were instructed to “consider [the]
    similarities.”   Id.    As a result, this Court cited, but did not
    analyze or validate the instruction, and the Government’s
    reliance on Dewrell is misplaced.
    Prejudice
    Having found error in the instructions, we must determine
    whether the error resulted in material prejudice to a
    substantial right of the accused.      “Because there are
    constitutional dimensions at play, [Appellant’s] claims must be
    tested for prejudice under the standard of harmless beyond a
    reasonable doubt.”     United States v. Wolford, 
    62 M.J. 418
    , 420
    (C.A.A.F. 2006).
    The members acquitted Appellant of indecent acts with a
    child.   MCM pt. IV, para. 87.b. defines indecent acts with a
    child as having the following elements:     (a) the accused
    committed a certain act upon or with the body of a person; (b)
    16
    United States v. Schroder, No. 06-0657/AF
    that the person was under sixteen years of age and not the
    spouse of the accused; (c) that the act of the accused was
    indecent; (d) that the accused committed the act with intent to
    arouse, appeal to or gratify the lust, passions, or sexual
    desires of the accused, the victim, or both; and (e) such
    conduct was prejudicial to good order and discipline and/or
    service discrediting.   In contrast, MCM pt. IV, para. 90.b.
    defines the offense of indecent acts with another as having the
    following elements:   (a) the accused committed a certain
    wrongful act with a certain person; (b) that the act was
    indecent; and (c) that it was conduct prejudicial to good order
    and/or service discrediting.   The military judge accordingly
    instructed the members on the offense of indecent acts with
    another as a lesser included offense of indecent acts with a
    child.   Appellant contested this charge on the ground that he
    did not intend sexual gratification with SRS, not on the theory
    that he did not know or mistook her age.    The finding of guilty
    only of the lesser included offense of indecent acts with
    another, which lacks the element of specific intent which
    Appellant disputed at trial, suggests that the members were not
    swayed to convict on this count by the instructional error
    regarding the use of propensity evidence.   Based on the members’
    finding of guilty only on the lesser included offense of
    indecent acts, the totality of the instructions provided by the
    17
    United States v. Schroder, No. 06-0657/AF
    military judge, and the detailed and credible nature of SRS’s
    testimony, we are convinced beyond reasonable doubt that the
    error did not contribute to Appellant’s conviction.   United
    States v. Kreutzer, 
    61 M.J. 293
    , 298 (C.A.A.F. 2005).
    With respect to the rape of JPR, as discussed above, the
    military judge properly admitted the testimony by SJS that
    Appellant had committed other offenses of child molestation
    about six years earlier.   In addition to the eyewitness
    testimony regarding charged and uncharged misconduct, the
    Government’s evidence included several statements by Appellant
    to various law enforcement agencies.   Appellant’s statements
    included an admission that he had “patted the side of [JPR’s]
    breasts,” and corroborated details of JPR’s testimony regarding
    the day the rape occurred.   Given the strength of the
    Government’s case, we are also convinced that this finding was
    not swayed by the incorrect instruction.
    Issue II -- Improper Argument
    Trial counsel began his closing argument on the merits
    stating:
    Stolen Innocence, Justice Past Due.
    We indicated that to you at the beginning of this
    trial, and the evidence certainly has played out
    exactly as we indicated to you.
    This case details events lasting 20 years, three
    different girls, one common ground, that this man who
    18
    United States v. Schroder, No. 06-0657/AF
    sits in this courtroom today raped, molested,
    committed indecent acts with each of them.
    After asking the members to set aside disbelief that an accused
    who “wears the same uniform and has for some time” could commit
    “unspeakable things,” trial counsel asked the members to “put
    that aside and evaluate the facts fairly.   We owe that much to
    those three young girls.”    Trial counsel returned to his theme
    again near the end of the argument, stating “[t]his is somebody
    we should be able to trust, but it happened and it happened
    again and again and again.   20 years.   Three girls.   One common
    theme.”   Throughout his argument, trial counsel displayed a
    slide show.   The first and last slides contained a photograph of
    the three alleged victims.   In the photographs, JPR and SJS were
    pictured as young girls.    The slide also contained the heading
    “STOLEN INNOCENCE, JUSTICE PAST DUE.”    At the end of his
    rebuttal argument on findings, trial counsel again made
    reference to the slide, stating “Don’t forget about the victims.
    Don’t forget about [SJS], [JPR], and [SRS as] they appear on
    that picture.   The pictures are silent, but their silence
    screams for justice.”
    In closing arguments on sentencing, assistant trial counsel
    again displayed the slide depicting the three girls with the
    same heading “STOLEN INNOCENCE, JUSTICE PAST DUE.”      Assistant
    trial counsel referred to the uncharged acts with SJS indirectly
    19
    United States v. Schroder, No. 06-0657/AF
    by stating that Appellant “used his position as a father,
    stepfather, and a father figure to abuse young girls”; and by
    again showing the slide of the three girls and stating:     “Look
    at those girls.   That is why we are here today.    They deserve
    justice.   They have been waiting for years for justice.    They
    scream for justice.   Members, make sure your sentence delivers
    justice to those girls . . . .”
    Defense counsel did not object to this line of argument or
    to the slides.    As a consequence, we review the argument of
    trial counsel for plain error.    Rule for Courts-Martial (R.C.M.)
    919(c); United States v. Haney, 
    64 M.J. 101
    , 105 (C.A.A.F.
    2006).
    As this Court has often stated, “the trial counsel is at
    liberty to strike hard, but not foul, blows.”     United States v.
    Baer, 
    53 M.J. 235
    , 237 (C.A.A.F. 2000).     To that end, the R.C.M.
    and our case law provide that it is error for trial counsel to
    make arguments that “unduly . . . inflame the passions or
    prejudices of the court members.”      United States v. Clifton, 
    15 M.J. 26
    , 30 (C.M.A. 1983); R.C.M. 919(b) Discussion.     An accused
    is supposed to be tried and sentenced as an individual on the
    basis of the offense(s) charged and the legally and logically
    relevant evidence presented.   Thus, trial counsel is also
    prohibited from injecting into argument irrelevant matters, such
    as personal opinions and facts not in evidence.     United States
    20
    United States v. Schroder, No. 06-0657/AF
    v. Fletcher, 
    62 M.J. 175
    , 180 (C.A.A.F. 2005); R.C.M. 919(b)
    Discussion.
    Appellant argues that trial counsels’ argument constituted
    plain error because it exhorted the members to “administer
    justice for the purported victim of uncharged misconduct as well
    as for the victims of the charged offenses.”   In response, the
    Government argues that trial counsels’ argument did not
    constitute an inappropriate reference to the victim of uncharged
    misconduct, or if it did, any error was harmless.
    On the one hand, M.R.E. 414(a) provides that evidence of
    uncharged misconduct may be considered for “any matter to which
    it is relevant.”   On the other hand, as noted above, there is a
    risk with propensity evidence that an accused may be convicted
    and sentenced based on uncharged conduct and not the acts for
    which he is on trial.   As a result, where M.R.E. 414 evidence is
    admitted there is a need for procedural safeguards to delimit
    the use of such evidence.   One such safeguard is to ensure that
    trial counsel does not use such evidence to unduly inflame the
    members.   The M.R.E. 414 safeguards could be undermined if trial
    counsel’s comments were permitted to range outside the realm of
    legally “relevant matters” and express a sense of outrage and
    injustice regarding the victims of uncharged misconduct.
    In the present case, trial counsels’ appeal to render
    justice for SJS, as reflected in their arguments and the
    21
    United States v. Schroder, No. 06-0657/AF
    parallel use of her photograph with those of JPR and SRS, was
    error.   Trial counsels’ presentation invited members to convict
    and punish Appellant for his uncharged misconduct, as opposed to
    using that misconduct to inform their judgments regarding the
    charged conduct.   The error was also plain and obvious.
    Appellant was not charged with offenses against SJS.   Thus, as a
    matter of law, not morality, the court was not convened to
    render justice to SJS.
    However, Appellant has not met his burden of establishing
    plain error.   United States v. Hardison, 
    64 M.J. 279
    , 281
    (C.A.A.F. 2007).   Improper argument does not require reversal
    unless “the trial counsel’s comments, taken as a whole, were so
    damaging that we cannot be confident that the members convicted
    the appellant on the basis of the evidence alone.”   Fletcher, 
    62 M.J. at 184
    .   In both closing and sentencing argument, trial
    counsels’ inappropriate allusions to SJS were limited to the
    passages quoted above.   Trial counsel otherwise stayed within
    the range of appropriate comment throughout a lengthy findings
    argument and rebuttal, covering forty and sixteen pages in the
    record of trial, respectively, and a sentencing argument that
    covered twelve pages in the record of trial.   Moreover, the
    Government’s case was strong.   Among other things, the evidence
    regarding SJS was already graphically and appropriately before
    the members.   These factors suggest that it was the evidence and
    22
    United States v. Schroder, No. 06-0657/AF
    not trial counsel’s isolated comments that caused the members to
    return a guilty verdict.
    On sentencing, the Government asked for twenty-to-twenty-
    five years of confinement in a case where Appellant was exposed
    to a life sentence.   The members adjudicated a sentence of ten
    years of confinement and a dishonorable discharge in a case
    where the accused was convicted of raping his daughter and
    committing indecent acts with another young girl.   This suggests
    that the members were not inflamed by trial counsel’s argument
    and instead reached an independent judgment on sentencing.
    Based on these factors we are confident that the improper
    portion of trial counsel’s argument did not sway the findings or
    the sentence.
    Decision
    The decision of the United States Air Force Court of
    Criminal Appeals is affirmed.
    23