In a published decision in United States v. Barnes, __ M.J. __, 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.
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