Two years ago, in United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page), CAAF held that a military judge erred in admitting prior allegations of sexual misconduct by an accused (as propensity evidence under Military Rule of Evidence 413) when the accused was acquitted of the prior allegations in a prior court-martial, because the judge “failed to mention or reconcile Appellant’s important alibi evidence [involving the prior allegations] and gave little or no weight to the fact of the prior acquittal.” 72 M.J. at 180.
Last month, in a published opinion in United States v. Bridges, __ M.J. __, No. 20120714 (A. Ct. Crim. App. Jul. 27, 2015) (link to slip op.), a three-judge panel of the Army CCA grapples with similar circumstances in that:
the United States relied in merits and sentencing, in part, upon a fifteen year old allegation of rape against appellant that had been subject to trial and resulted in acquittal.
Slip op. at 2.
The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of wrongful sexual contact, forcible sodomy, and assault consummated by a battery in violation of Articles 120, 125, and 128. He was sentenced to confinement for 6 years, total forfeitures, reduction to E-1, and a dishonorable discharge.
Judge Krauss writes for the panel, providing few facts about the recent or prior allegations. However, Judge Krauss explains that the appellant was “a noncommissioned officer (NCO) who exploited his position in a Warrior Transition Battalion to seek sexual gratification from not only those suffering the trauma of wounds, his co-workers, but also from their families.” Slip op. at 2. Further, the appellant objected to the admission of the prior allegations, but:
The judge denied appellant’s motion and admitted the evidence of the prior allegation as propensity evidence, evidence of modus operandi, and evidence of absence of accident or mistake under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413 and 404(b). In his ruling, he also prohibited any reference to the previous court-martial “[t]o minimize the danger of any unfair prejudice to the accused,” but never informed or instructed the panel that appellant had been acquitted on that allegation.
Slip op. at 2 (emphasis added). I’ve added emphasis to the issue that seems to focus the CCA’s analysis, as Judge Krauss concludes:
Here, the judge failed to consider the fact that after a fair trial appellant was found not guilty of the prior charge when evaluating its probative value under Mil. R. Evid. 403. In failing to address the propriety of informing the panel of that acquittal, the judge also did not consider the danger of unfair prejudicial confusion over the extent to which a panel might consider the evidence without running an unacceptable danger of convicting or punishing appellant for a charge that resulted in appellant’s acquittal. Instead, the judge seems to have considered the only potential prejudice to appellant to be that of mentioning the prior acquittal.
Slip op. at 3.
Nevertheless, the CCA does not reverse the convictions, finding an abundance of evidence to support the findings:
As to findings, we find little trouble in resolving the question against appellant. Despite the judge leaving the panel wondering and the government’s reliance on the propensity evidence to argue “[H]ow else do we know that some of these crimes were committed? Because he’s done it before,” with underlined reference to the alleged victim of the acquitted charge, appellant essentially admitted to the acts of charged misconduct resulting in his convictions. Those admissions, in conjunction with the credible testimony of the victims describing the charged acts, convince us that the erroneous admission of the prior rape allegation, and failure to instruct the panel properly, did not substantially influence the findings.
Slip op. at 3 (emphasis added). However, the CCA finds that the sentence was affected:
[T]he government argued in findings that the panel could be confident that appellant committed the charged acts because he had done it before. In sentencing, though the government referred to three victims, trial counsel argued that appellant required severe punishment in the form of lengthy confinement because “he’s going to do it again. . . [h]e is predisposed to sexual assault. It’s wired in his identity.” Absent appropriate instruction to ensure the panel conscientiously avoided punishing appellant for the alleged crime of which he was previously acquitted, we cannot be confident that the sentence was not substantially influenced by this evidence.
Slip op. at 4. The panel reassesses the sentence, reducing the term of confinement from 6 years to 4.