With a published decision in United States v. Robertson, __ M.J. __, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (link to slip op.), a three-judge panel of the Air Force CCA affirms the appellant’s conviction of one specification of abusive sexual contact in violation of Article 120, for which he was sentenced to reduction to E-3 and a bad-conduct discharge, rejecting assignments of error based on alleged member misconduct affecting deliberations and the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413.
Staff Sergeant (E-5) Robertson was charged with four sexual offenses all related to an encounter with another Staff Sergeant. The members found him not guilty of the three more-serious allegations, and convicted him of abusive sexual contact by touching the alleged victim’s buttocks and breasts without her consent. Slip op. at 6. Robertson testified in his own defense and admitted to the touching, but he claimed it was consensual. Slip op. at 4. The alleged victim, however, testified that all of the contact – including allegations of rape of which Robertson was acquitted – was nonconsensual, that she told him to stop, and that she resisted. Slip op. at 3-4.
The members were instructed that they could use evidence that Robertson committed the three more-serious offenses as proof of Robertson’s “propensity or predisposition to engage in a sexual offense.” Slip op. at 14 (quoting instructions). The defense did not object to the instruction.
After the members convicted Robertson, one of the members told the baliff “that another member had something in his – or her because he did not identify who it was – past that should have been disclosed that swung the vote in favor of conviction.” Slip op. at 6 (quoting military judge’s summary of the baliff’s disclosure). The military judge questioned the member, and the defense moved for a mistrial and also sought to re-open voir dire. The military judge, however, concluded that the general prohibition against inquiring into member deliberations in Mil. R. Evid. 606(b) prevented further inquiry, and denied the defense motion for a mistrial and request for voir dire.
The CCA finds that the military judge’s Mil. R. Evid. 606(b) ruling was correct, and that the erroneous propensity instruction was harmless “under the particular circumstances of this case.” Slip op. at 16.
The finding of harmlessness in the improper propensity instruction is somewhat noteworthy. Writing for the panel, Senior Judge Johnson observes:
In this case, all of the charged offenses arose from a single incident involving Appellant and a single victim, SSgt AO. Each of the specifications was based on SSgt AO’s account of Appellant’s actions between the time he awoke her on the bed in her room at Kadena AB and the time a few minutes later when she told him to leave and locked herself in the bathroom. The acts she described were discrete alleged offenses, but were all part of the same sexual encounter. Such a situation is less suggestive of a predisposition or propensity to commit sexual assault than a case involving multiple alleged victims or multiple incidents over a period of time. In this regard, it is telling that senior trial counsel’s argument to the members on findings made no reference to the military judge’s Mil. R. Evid. 413 instructions, nor did he argue Appellant had a propensity or predisposition. It is also significant this case did not involve evidence of uncharged, “proper” Mil. R. Evid. 413 evidence that would suggest a predisposition or propensity on Appellant’s part. Simply put, notwithstanding the military judge’s erroneous instruction, this was a case about a single incident, not about a propensity on Appellant’s part to commit sexual offenses.
Slip op. at 16. I think the observation that a single alleged criminal encounter is relatively weak evidence of a propensity to commit such acts is solid, and the fact that the prosecution didn’t argue propensity is a relevant consideration. But both are fairly-technical legal considerations that I doubt are apparent to the average person. Instead, I think the average member is more likely to misuse propensity evidence because of the general rule that evidence of bad character “is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 476 (1948).
Furthermore, Senior Judge Johnson’s description of the facts of this case are remarkably similar to CAAF’s discussion of the facts of Hills:
Because the events happened within a two-hour period, the conduct had little probative value in demonstrating propensity. The [Army] court held that because of the evidence’s low probative value, “the risk of unfair prejudice does not have to be high to substantially outweigh the probative value.” However, the ACCA determined that the military judge’s conclusion under the M.R.E. 403 balancing test did not have a substantial influence on the findings and that, therefore, it need not decide whether there was an abuse of discretion. The ACCA concluded that there was no prejudice because the evidence used to prove the abusive sexual contact specification, which Appellant was convicted of, was stronger than the evidence involving the two sexual assault specifications, and that all of the evidence was already before the panel. It also held that there was no prejudice because the propensity issue only arose during the military judge’s instructions, and neither party discussed propensity in their closing arguments.
United States v. Hills, 75 M.J. 350, 353 (C.A.A.F. 2016) (CAAFlog case page) (citations to ACCA’s opinion omitted). Let’s count the obvious similarities:
- Both cases involve multiple charges arising out of a single encounter;
- Both cases involve convictions of only a single specification;
- Both convictions are of the least-severe charged offense;
- Both convictions involved the strongest evidence; and
- The prosecution didn’t argue propensity in either case.
Senior Judge Johnson’s analysis also includes this observation:
The members acquitted Appellant of three of the four specifications, including all of the acts Appellant specifically denied had occurred at all—the penetration of SSgt AO’s vagina by Appellant’s fingers and penis, and the placing of her hand on his penis. They convicted Appellant of the act that his own testimony partially confirmed—the touching of her breasts and buttocks.
Slip op. at 16. This strongly suggests that the members believed Robertson and disbelieved the alleged victim (and the relatively-light sentence provides additional support for this conclusion). Nevertheless, Robertson was convicted.
“A panel is presumed to understand and follow the instructions of the military judge absent competent evidence to the contrary.” United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001) (citing United States v. Loving, 41 M.J. 213, 235 (C.A.A.F. 1994)). In Robertson, those instructions included that evidence of the charged offenses could be used as evidence of Robertson’s propensity to commit the charged offenses. Not only was that instruction improper, but it gave undue weight to evidence that trained legal minds recognize is “less suggestive of a predisposition” under the circumstances of this case, slip op. at 16, but that the law recognizes has a dangerous potential to “overpersuade,” 335 U.S. at 476.
Senior Judge Johnson doesn’t say whether the defense argued the propensity issue. But assuming that propensity wasn’t argued at all, and considering the factors that suggest that the members believed Robertson and disbelieved the alleged victim, it’s easy to think that the CCA got this one wrong and the erroneous propensity instruction did affect the findings.