In a published decision in United States v. Barnes, 74 M.J. 692, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (link to slip op.), a three-judge panel of the Army CCA addresses the appropriateness of a M.R.E. 413 instruction to the members that allowed them to use the two charged offenses of rape (one in 2006, the other in 2009, and each involving a separate alleged victim) as propensity evidence to prove that the appellant committed those same rapes.
Specifically, the military judge instructed the members that:
Evidence that the accused committed the sexual assault alleged in each specification and charge may have no bearing on your deliberations in relation to the other specifications and charge, unless you first determine, by a preponderance of the evidence that it is more likely than not the offense alleged in one of these specifications occurred. For example, if you determine by a preponderance of the evidence, the offense alleged in one of the specifications occurred, even if you were not convinced beyond a reasonable doubt that the accused is guilty of that offense, you may nonetheless then consider the evidence of that offense for its bearing on any matter to which it is relevant in relation to the other charge.
Slip op. at 4-5. Then, in closing arguments, the trial (Government) counsel argued:
[L]ighting does strike twice and the accused is proof positive of it. . . . The accused struck again in 2009. It even started out in the same place, Fort Huachuca, Arizona, the accused is TDY. He had gotten away with it the first time. No charges have been pressed yet. So he thought, “hey this is a pretty good gig. I can go have sex whenever I want. Take it from an unsuspecting woman. They didn’t catch me three years ago.”
Slip op. at 5 (quoting record). And in rebuttal argument, the trial counsel elaborated:
I ask that you pay careful attention to all of the instructions in their entirety, not just certain portions of them, and know that the accused’s propensity to commit these offenses can be evaluated if you find he has at least committed the offense by [a] preponderance of the evidence standard. . . . The defense would like you to believe that the rape in 2009 and the rape in 2006 were so different, but yet, they are so similar. Each time the accused took what he wanted, when he wanted, without the consent of the other parties, of the victim. Each time. They are actually very similar.
Slip op. at 6 (quoting record) (marks in original). The appellant was convicted of both rapes and sentenced to confinement for 15 years, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority reduced the confinement to 14 years and 9 months, but otherwise approved the sentence.
The Army CCA considers this instruction, and specifically the fact that the military judge failed to apply the factors identified in United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000), including the test for relevance (M.R.E. 401) and for probative value (M.R.E. 403). In an opinion authored by Judge Tellitocci, the CCA affirms the findings and sentence.
Judge Tellitocci’s analysis begins by highlighting that:
In most reported cases, Mil. R. Evid. 413 is used by the prosecution to introduce evidence of uncharged misconduct in an attempt to establish the accused’s propensity to commit sexual assaults.
Slip op. at 7 (emphasis in original). However:
In the instant case, no evidence of uncharged misconduct was admitted. To the contrary, the only admitted evidence of sexual assault offenses committed by appellant was directly related to one or the other of the charged rapes. See United States v. Schroder, 65 M.J. 49, 52 (C.A.A.F. 2007) (evidence of both charged and uncharged sexual misconduct used as other acts evidence to prove charged offenses).
Slip op. at 8. And so, as a threshold matter, Judge Tellitocci finds “no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the ‘similar crime’ is also a charged offense.” Slip op. at 8-9.
But the CCA must cross another threshold: “is this a Mil. R. Evid. 413 case? When faced with a similar situation, the C.A.A.F., in United States v. Burton, determined that it was not. 67 M.J. 150, 153 (C.A.A.F. 2009).” Slip op. at 9. The trial counsel in Burton argued propensity in a manner similar to the trial counsel in this case, but the military judge in Burton did not give the members any instruction regarding the use of propensity evidence and CAAF concluded that:
As the Government did not offer the evidence under M.R.E. 413, it did not follow the steps required by M.R.E. 413. Therefore, it may not a posteriori justify its closing argument based on what it might have done.
67 M.J. at 153. Judge Tellitocci distinguishes this case from Burton because:
here the propensity issue was not belatedly raised by government counsel during closing argument. Rather, propensity was first raised by the government during an Article 39(a), UCMJ, session when the government expressed a desire to argue it during their closing. Then, during the instructions discussion with the parties, the military judge discussed the purpose behind Mil. R. Evid. 413 with the parties and determined that it was proper to give the instruction from the Benchbook with respect to the charged sexual offenses.
Slip op. at 10. And so the CCA finds that:
Application of Mil. R. Evid. 413 here is not a post hoc attempt to rationalize trial counsel’s argument. As it is clear that the military judge and the parties understood that Mil. R. Evid. 413 and propensity evidence were at issue – unlike Burton – this is indeed a Mil. R. Evid. 413 case.
The government’s propensity argument was a permissible use of Mil. R. Evid. 413’s exception allowing evidence of similar crimes in sexual assault cases. The error here is that the military judge did not make the predicate findings on the record regarding the permissibility of any inference of propensity to be drawn from evidence that was also properly admitted as proof of charged misconduct.
Slip op. at 10. The CCA then applies the Wright factors to conclude that “the argument by trial counsel was not error,” and that “any error in the form of the instruction inured to the benefit of appellant and was, therefore, harmless beyond a reasonable doubt.” Slip op. at 14.