CAAF will hear oral argument in the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (CAAFlog case page), on Tuesday, October 25, 2016, at 9:30 a.m. The case presents two issues involving precisely what kind of evidence of child molestation is admissible for propensity purposes under Mil. R. Evid. 414:
I. Whether the Air Force Court of Criminal Appeals committed legal error when it found that in order for conduct to constitute child molestation under Mil. R. Evid. 414, the conduct must have been an offense under the UCMJ, or federal or state law, at the time it was committed and, if offered under Mil. R. Evid. 414(d)(2)(a)-(c), that the conduct must meet the definition of an offense listed under the version of the applicable enumerated statute in effect on the day of trial.
II. Whether the Air Force Court of Criminal Appeals committed legal error when it found that the erroneous admission of two acts of indecent liberties committed by appellee on his child age daughter had a substantial influence on the members’ verdict requiring set aside of the findings and sentence.
Technical Sergeant (E-5) Fetrow was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of seven child molestation offenses. He was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge.
The charges all involved Fetrow’s two step-children (his wife’s children from a prior marriage). However, the prosecution also introduced evidence of uncharged contact involving Fetrow’s biological daughter under Mil. R. Evid. 414, which – like its federal counterpart, Fed. R. Evid. 414 – permits introduction of similar-crimes evidence in child molestation cases. The rule states:
In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.
Mil. R. Evid. 414(a). The rule limits the kinds of evidence that may be introduced, however, generally requiring that the evidence implicate a criminal statute prohibiting sexual contact with children. Mil. R. Evid. 414(d)(2) states, in part:
“Child molestation” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513), that involves:
(A) any conduct prohibited by Article 120 and committed with a child; . . .
Notably, in Executive Order 13,730 of May 20, 2016 (discussed here), the rule was expanded to also include reference to Article 120b – the new child-sex offense law enacted over four years ago. This rule change, however, occurred long after Fetrow’s trial.
The evidence involving Fetrow’s biological daughter alleged that: (1) when she was 3-4 years years old, Fetrow put her in a closet while he had sex with a woman; (2) sometime close to the first event, Fetrow touched her on the leg in a seductive manner; and (3) when she was 8-9 years old Fetrow exposed his genitals to her. Gov’t Br. at 5-6. The military judge admitted this evidence, concluding in part that it was evidence of an offense prohibited under Article 120b, and therefore was admissible under Mil. R. Evid. 414.
The Air Force Court of Criminal Appeals, however, disagreed, and reversed the findings and sentence. United States v. Fetrow, 75 M.J. 574 (A.F. Ct. Crim. App. Jan 21, 2016) (discussed here). The CCA read Mil. R. Evid. 414 as involving a two-part test:
(1) whether the conduct constitutes a punishable offense under the UCMJ, federal law, or state law when the conduct occurred; and
(2) whether the conduct is [at the time of trial] encompassed within one of the specific categories set forth in Mil. R. Evid. 414(d)(2).
75 M.J. at __, slip op. at 13 (paragraphing added). The CCA then concluded that the first and third incidents are not encompassed within the 414(d)(2) categories because Article 120 requires a sexual touching of some kind, and no such touching was alleged. A footnote, however, noted that the then-pending expansion of the rule to include Article 120b could change the analysis.
The Judge Advocate General of the Air Force then certified the case to CAAF.
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