In United States v. Jackson, No. 38244 (A.F.Ct.Crim.App. Mar. 19, 2014) (link to unpub. op.), the Air Force CCA affirms the admission of propensity evidence of the appellant’s commission of a prior sexual offense under Military Rule of Evidence 413. The case involved allegations that the appellant sexually assaulted two sleeping women (each of whom awoke to the assault). MRE 413 permits the admission of evidence of other sexual assaults in such a case, and the following evidence about an encounter with a third woman (for which the appellant was not charged) was admitted:

Ms. SG testified that she and her husband, who was active duty at the time, were married in March 2011. In June 2011, she and her husband were experiencing marital difficulties, so her husband moved in with the appellant. Ms. SG’s husband worked with the appellant in Security Forces, and she also worked for the squadron as a civilian armed security officer.

According to Ms. SG, on 15 June 2011, at approximately 0030, she received a call from the appellant who described to her a dream he had the night before. He said that in the dream he came over to her house, snuck in through her window, and climbed into bed with her. He then said, “You can imagine what happened after that,” implying that they engaged in sexual activity. Ms. SG did not take the appellant seriously and replied, “Yeah, whatever,” and quickly ended the conversation.

Later that night, after Ms. SG went to bed, she was awoken by what she thought was her husband crawling into bed with her. She thought it was her husband because he had contacted her earlier, indicating he was going to sleep at her house that night. While Ms. SG was lying on her stomach, the person wrapped his arms around her entire body as if trying to become intimate with her. When she rolled over, she realized it was not her husband, but in the darkness she did not know who it was. She grabbed the person’s throat and started choking him. She yelled, “What the hell are you doing in my house? Get the hell out of my house!” The person replied, “But you feel so good,” and “Just pretend that I’m your husband.” After hearing his voice, Ms. SG realized it was the appellant. She then more firmly told him to leave. The appellant left the bedroom and started to walk down the hallway. However, he returned to the room, leaned over the bed, and whispered to her that he had forgotten his shoes. He then finally left her house.

Ms. SG testified that during this event she was not certain if the appellant touched her breasts or genitals. As she was lying on her stomach, he did not touch anything on her front side; he only touched her back side. Ms. SG claimed she and the appellant had never engaged in any sexual relations, she was not interested in him romantically, and she had not invited the appellant to her home on 15 June 2011.

In addition to Ms. SG’s testimony, the Government submitted Facebook conversations between Ms. SG and the appellant where he discussed his desire to have sex with her.

Slip op. at 7-8.

The issue before the CCA was whether the military judge erred in admitting this evidence. The appellant asserted that “the alleged touching of Ms. SG does not constitute a sexual act or contact, as defined in Mil. R. Evid. 413. Further, the appellant claims there was insufficient evidence of an attempted sexual contact or act without Ms. SG’s consent.” Slip op. at 9.

But what makes this case really interesting is the two ways the military judge found the evidence admissible.

First, the judge concluded:

Based on his prior overtures, to include the sexual advances over Facebook and the phone call about the dream, the accused’s actions in entering the house uninvited, crawling into her bed and placing his arms around Ms. [SG] were a substantial step and a direct movement toward the commission of an offense of sexual assault. Specifically, there is sufficient evidence to support a finding by a preponderance of the evidence that at the time, the accused intended to fulfill the dream he had earlier related of having sex with a sleeping Ms. [SG] and is therefore guilty of Attempted Aggravated Sexual Assault.

Slip op. at 8 (quoting the trial ruling) (emphasis added). This conclusion is debatable, but the CCA found that “the Government presented sufficient evidence showing by a preponderance of the evidence that the appellant committed an attempted aggravated sexual assault on Ms. SG.” Slip op. at 9.

However, the military judge also concluded:

Alternatively, although there is no evidence the accused touched Ms. [SG’s] “genitalia, anus, groin, breast, inner thigh or buttocks of another person,” there is evidence that the accused touched her with intent to gratify his sexual desires, as evidenced by his response, “you feel so good,” when Ms. [SG] asked him to stop. Thus, the conduct would not have necessarily amounted to abusive sexual conduct at the time but under Article 120[, UCMJ,] as implemented on 28 June 2012, this conduct would amount to Abusive Sexual Contact. Thus, as of the date of trial, the accused’s conduct with Ms. [SG] amounts to sexual contact proscribed by the UCMJ and is an offense of sexual assault under [Mil. R. Evid.] 413.

Slip op. at 8 (quoting the trial ruling) (emphasis added). The significant issue here is the definition of “sexual contact,” with three possibilities: The definition in the text of M.R.E. 413 (in effect at the time of trial), the definition in Article 120(t)(2) (2006) (in effect at the time of the alleged contact with SG), and the definition in Article 120(g)(2) (2012) (in effect at the time of trial). The military judge used the definition of sexual contact from the version of Article 120 in effect at the time of trial, not the definition from the Rule (that is the same as the definition from the version of Article 120 at the time of the alleged contact).

M.R.E. 413 permits admission of other “offenses of sexual assault.” The rule defines this term as:

(d) For purposes of this rule, “offenses of sexual assault” 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, without consent, proscribed by the Uniform Code of Military Justice, Federal law, or the law of a State;

Further, the rule defines “sexual contact” as:

(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 buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

I’m not aware of a case directly on point, but in the context of M.R.E. 414 (addressing the same issue but in the context of child molestation), CAAF has said of similar language defining relevant terms:

This definition provides an exclusive list of offenses that qualify as offenses of child molestation.

United States v. Yammine, 69 M.J. 70, 75 (C.A.A.F. 2010) (quoting United States v. Schroder, 65 M.J. 49, 53 (C.A.A.F.2007)) (marks and signals omitted) (emphasis in original). So it’s not enough that the appellant’s encounter with SG may have been conduct proscribed by the UCMJ; it must also include sexual contact as defined by MRE 413 itself.

Because of this, I think the military judge clearly erred when he adopted the definition of sexual contact in the version of Article 120 enacted after the appellant’s encounter with SG. Only the definition of sexual contact in the rule itself (that mirrors the definition in effect at the time of the encounter) applies. Accordingly, for the purposes of MRE 413, the appellant did not commit a completed sexual contact.

Of course, this is mooted by the judge’s finding (also affirmed by the CCA) that the appellant committed an attempt sufficient to trigger the rule.

6 Responses to “An interesting M.R.E. 413 ruling from the AFCCA”

  1. RKincaid3 says:

    Actually, ZS, I hear you,  But I have to say that I agree with the AFCCA that there is a critical distinction between the defintions for elements of an offense to be charged against an accused and the defintions for what evidence of past conduct may be admissible at trial against an accused in support of a charged offense under 413. 
    It is one thing to charge a person with an offense under a statute in effect at the time the offense was committed.  It is another thing entirely to admit evidence of past conduct under 413 when the conduct at issue is defined differently under 413 than the past definition of the underlying offense.  Even as sort of a defense hack myself, I don’t see this outcome as unreasonable or improper given that the definitions in each article are so different and the articles serve such different purposes.
    Now, whether there should even be a Rule 413 is another matter–it is an exception that generally swallows the rule that because one behaved one way in the past doesn’t not prove that they behaved that same way on the date of the charged offense—and yes, I understand that statistically, with sex crimes and child molestation/pornography crimes, there is a tremendously high recidivism rate–allegedly up to 100% depending upon the offense.  But it is congress’s job to weigh the credibility of those statistics and enact rules accordingly.  And they did that with both 412 and 413.  And we have Rule 413 and the outcome in this supports the reasons for having rule 413.
    And no, I don’t see this as judicial legislating or judicial distinction-drawing without a substantive difference.  This is attempting to apply the congressional rules consistent with the intent of congress–and when Congress drafts two different definitions for use in two different statutes, well, provided there are no constitutional infirmities, the judge should uphold the legislative intent–even when that legislative intent is unwise or simply inane.

  2. Zachary D Spilman says:

    You lost me there RKincaid3. I think this is a simple misapplication of M.R.E. 413. 

    An important note not emphasized in the post: The Military Rules of Evidence were was changed in 2013 to eliminate this issue (PDF of the new MRE). M.R.E. 413 now permits admission of, e.g., “any conduct prohibited by Article 120,” and it no longer includes its own definitions of sexual act and sexual contact.

    But Jackson was tried before the change (the CCA’s opinion says the sentence was adjudged in September 2012). So the old MRE 413 applied. That rule allowed admission of “any sexual act or sexual contact…,” but those terms had specific definitions just for the purpose of the rule (including a definition for sexual contact that was more narrow than the definition in Article 120 (2012) that was used by the judge).

    The judge’s action of looking to the punitive article to determine if the evidence was admissible under MRE 413 is (presumably) proper under the current rule, but not under the rule in effect at the time of this trial.

  3. stewie says:

    Agreed Zach.  Yammine is clear that you look to 413.  It’s moot now as the offenses in the new 413 (even though the changes were not supposed to be substantive) are much broader than what’s in the UCMJ, but prior the offenses in the old 413 were narrower.

  4. RKincaid3 says:

    Well, ZS, on the one hand, I concur with you.  The new rules do reflect the change you discuss.  And another rule of statutory construction is that a change to a statute actually effectuates a “change.”  So the presumption would be that the most recent change to a statute actually effectuated a change to the meaning and effect of the prior statute. 
    But on the other hand, there is another argument that has been discussed here in this forum…a tool of construction which holds that a statutory change merely occurs to reflect common practice (ratification of judicial action by the legislature), which in essence means that the statutory amendment didn’t really effectuate a change to the meaning and effect of the statute but only reflects a change in the words of the statute. 
    If we get lost in this discussion, it is understandable given the mess that is statutory interpretation.  Check out the following interesting perspectives on the problems with the dilemma being disscussed:  did a statutory change really reflect a change? 

    And most telling, a rather dated article, but no less relevant today given that the tools of statutory construction haven’t changed, check out:
    So, it will be interesting to see how the CAAF rules, if they take the case.

  5. stewie says:

    The MREs are not a statute, but done by the President so not sure the concepts you are talking about apply.  It certainly doesn’t rise to any constitutional level like interpreting a statute would.

  6. RKincaid3 says:

    No, construing the meaning and applicability of a statute or a rule made pursuant to statutory grant of authority to make a rule, the issue for the courts is the same–what was meant by the words chosen by the drafter and how to apply them to effectuate the purpose of the statute or rule.  So I am unsure about why you just drew a distinction between how one interprets either a rule or a statute.  It truly is a distinction without a difference, in my opinion.