CAAF decided the certified Air Force case of United States v. Fetrow, 76 M.J. 181, No. 16-0500/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Reviewing the Air Force CCA’s determination of when evidence of uncharged alleged child molestation is admissible under Mil. R. Evid. 414, CAAF agrees with the CCA’s determination that such evidence must (1) constitute an offense under the UCMJ, federal law, or state law when the uncharged allegation occurred, and (2) be within the categories set forth in the version of M.R.E. 414(d)(2)(A)-(G) in effect at the time of trial. CAAF affirms the Air Force CCA’s decision that reversed child molestation convictions and a sentence that included confinement for 25 years.

Judge Sparks writes for a unanimous court.

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). But the prosecution also introduced evidence of three uncharged allegations 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. That 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 uncharged allegations that may be introduced, however, with a requirement that the evidence implicate a criminal statute prohibiting sexual contact with children. It 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; . . .

Mil. R. Evid. 414(d)(2). 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 at the end of 2011. But that rule change occurred long after Fetrow’s trial.

Even though the Rule did not reference Article 120b at the time of Fetrow’s trial, the military judge found that the three uncharged acts were admissible in part because they were offenses under Article 120b. The Air Force CCA found that this was error. The CCA also stated a two-part test for admissibility of evidence under Mil. R. Evid. 414:

[(1)] the conduct must have been a UCMJ offense, a federal crime or a state crime when the conduct occurred. . . . [and (2) it] must also involve conduct listed in the current version of Mil. R. Evid. 414(d)(2)(A)—(G).

United States v. Fetrow, 75 M.J. 574, 581 (A.F. Ct. Crim. App. Jan 21, 2016) (emphasis omitted). The CCA then concluded that one of the three uncharged acts was admissible (because it constituted an offense under Article 120), but that Fetrow was prejudiced by the admission of the other two, and so it set aside the findings and authorized a rehearing.

The Judge Advocate General of the Air Force then certified two issues to CAAF:

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.

Just Sparks’ opinion answers both of these issues in the negative, affirming the CCA’s opinion in its entirety.

On the first issue – challenging the CCA’s two-part test for admission under Mil. R. Evid. 414 – Judge Sparks is succinct:

We agree with the lower court’s reasonable conclusion that the prior conduct must have been against the law at the time it occurred. Otherwise, it would been lawful conduct and thus, not “a crime” or “an offense punishable.”

We also agree with the lower court that the similar crimes must involve conduct listed in the version of M.R.E. 414 in effect at the time of trial. The current version of M.R.E. 414 is always the President’s most recent determination of what criminal conduct is potentially relevant for propensity purposes in child molestation cases. Section (d)(2)(A)-(G) of M.R.E. 414 provides an exclusive list of conduct and the similar crimes evidence must fall within those categories.

Slip op. at 6-7.

On the second issue – whether the improper admission of two uncharged allegations prejudiced Fetrow’s substantial rights – Judge Sparks is equally direct:

[W]e note that evidence erroneously admitted under M.R.E. 414 is unlike most evidentiary error. The very nature of propensity evidence is to permit the trier of fact to infer that since the accused has acted previously in a certain fashion, he was inclined to have acted in conformity with that conduct with respect to the charged offenses. When such evidence is erroneously admitted, the result is that evidence of bad character has been improperly admitted against the accused. . . . . Whatever one might be inclined to infer about Appellee from the charged offenses, the potential inferences raised by this erroneously admitted evidence were improper.

Slip op. at 10.

CAAF’s decision leaves intact the CCA’s authorization of a rehearing, which “is a continuation of the former proceeding.” United States v. Beatty, 25 MJ 311, 314 (1987). But it’s unlikely that the prosecution will be allowed to use the new version of Mil. R. Evid. 414 at any such rehearing. Executive Order 13,730 included the limitation that:

Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the effective date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.

(emphases added).

Case Links:
AFCCA’s opinion (75 M.J. 574)
Blog post: A significant Mil. R. Evid. 414 decision
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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