In a published decision in United States v. Fetrow, 75 M.J. 574, No. 38631 (A.F. Ct. Crim. App. Jan 21, 2016) (link to slip op.), a three-judge panel of the Air Force CCA interprets Mil. R. Evid. 414 (which permits admission of evidence of uncharged similar crimes in child molestation cases) to find that it was improperly applied by the military judge. As a result, the CCA reverses the appellant’s convictions for sexual assault of his step-daughters, for which he was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Mil. R. Evid. 414 begins:

(a) Permitted Uses. 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

The rule also provides a definition of child molestation that includes:

(2) “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; . . .

Mil. R. Evid. 414(d)(2).

The appellant in Fetrow was accused of sexually assaulting his two stepdaughters. One of the stepdaughters recanted prior to trial, however the appellant was convicted of assaulting both girls based in part upon the testimony of the other stepdaughter. In addition to the testimony of the stepdaughter, the military judge allowed the prosecution to introduce the testimony of the appellant’s 17-year-old biological daughter regarding three unrelated events: (1) when she was 3-4 years years old, the appellant put her in a closet while he had sex with a woman; (2) sometime close to the first event, the appellant touched her on the upper thigh; and (3) a time that she saw the appellant’s penis. Ruling on the admissibility of these three unrelated events, the military judge found that:

there was sufficient evidence for the finder of fact to conclude that Appellant committed the alleged conduct and that such conduct constituted “sexual abuse of a child in violation of Article 120 and 120b” based on the versions of those offenses in effect on the day of trial. The military judge also concluded that the first and third incidents would constitute an indecent exposure under the pre-1 October 2007 version of Article 134, and the second incident would constitute an indecent act with a child under the pre-1 October 2007 version of Article 134. He thus found them all to be similar crimes of child molestation admissible under Mil. R. Evid. 414.

Slip op. at 10. The CCA finds this analysis flawed for two reasons. First, the CCA finds that “the offense of ‘sexual abuse of a child’ is not a violation of Article 120” but rather is a violation of Article 120b which is a separate statute. Slip op. at 11. Second, the CCA find that only Article 120 is incorporated into Mil. R. Evid. 414, while Articles 120a, 120b, and 120c are not. Slip op. at 11. The CCA explains:

To interpret the rule’s reference to Article 120 more broadly than written, so that it also incorporates Article 120a, Article 120b, and Article 120c, would result in a counter-intuitive and an unprecedented expansion of what constitutes “similar crime” evidence in child molestation cases. For example, such a reading would convert a non-sexual stalking offense involving a child under Article 120a into a potential “similar crime” under Mil. R. Evid. 414. If the President’s intent was to significantly expand what types of conduct can be considered for admission for these purposes in the military, or to further differentiate the military rule from the federal rule, one would expect that it would be done explicitly and clearly.

Slip op. at 12. Applying this to the facts of the case, the CCA finds that only the second incident was admissible under Mil. R. Evid. 414, concluding that it could constitute abusive sexual contact in violation of Article 120(d). Further, the CCA finds that the improper admission of the other two incidents was prejudicial in part due to the emphasis placed on them by the trial counsel:

In the prosecution’s opening statement, trial counsel highlighted Appellant’s two purported indecent exposures to his biological daughter to apparently suggest that Appellant’s desires and criminal misdeeds pre-dated the allegations in this trial. In fact, approximately a quarter of trial counsel’s opening statement was devoted to the uncharged conduct involving Appellant’s biological daughter. In addition, during closing argument, trial counsel began their argument with the Mil. R. Evid. 414 incidents and argued that these types of incidents progressed to the allegations involving JB and JH. This propensity evidence was clearly a critical piece of the Government’s case.

Slip op. at. 15. The CCA authorizes a rehearing.

9 Responses to “A significant Mil. R. Evid. 414 (similar crimes in child molestation cases) decision from the Air Force CCA”

  1. Ed says:

    I’ll bet a weeks draw this case gets certified.

  2. The Silver Fox says:

    Of course it should get certified.  The prejudice analysis is flawed–no discussion of 404(b)?

  3. Zachary D Spilman says:

    404 (b) doesn’t permit propensity evidence and so it can’t eliminate the prejudice in this case.

  4. The Silver Fox says:

    If it was properly before the members and instructed via 404(b), it should factor into the prejudice analysis.    

  5. The Silver Fox says:

    Especially in the case of a nonconstitutional error. 

  6. stewie says:

    In what manner would propensity evidence, which is barred by 404(b), be allowed in under 404(b)??
    If it’s allowed in under 404(b) then it isn’t propensity evidence.

  7. RY says:

    I get that 404(b) is usually an alternate theory of admissibility for the Gov’t but it isn’t some kind of lesser included evidentiary rule. In this case, even if it were admissible under some prong of 404(b), the prejudice was in how it was used and argued.  That cannot be vitiated by an alternate theory that specifically disavows its use as propensity evidence.  

  8. The Silver Fox says:

    Looking at U.S. v. Wright, 53 M.J. 476 (C.A.A.F. 2000)–in the context of Mil. R. Evid. 413–it appears you gentlemen may be right.  I stand corrected.
    My assumption was that 404(b) was an alternate theory of admissibility in this case, so even if it was not admitted under Mil. R. Evid. 414, it was still admissible under 404(b) to show intent.  While you certainly cannot argue propensity under 404(b), the question in my mind was whether the accused could be prejudiced when TC would still have been allowed to argue the evidence showed the accused’s intent.  But Wright says the accused is still prejudiced since, as you all have pointed out, you cannot put the propensity genie back into the bottle once the argument is made by TC.  

  9. The Silver Fox says:

    Apologies again.  I was mistakenly reading the dissent in Wright.  I take back my hasty concession.  If 404(b) motive/intent evidence was offered (and I believe it was), then the analysis is:  would you still get the conviction if the evidence was properly admitted under 404(b)?  If yes, no prejudice.  If no, then reversal.  There may be no prejudice if the members would still see the same emotional witness testify about 404(b) evidence.