CAAF decided United States v. Solomon, No. 13-0025/MC, 72 M.J. 176 (CAAFlog case page) (link to slip op.), on May 8, 2013, finding that the military judge erred in admitting evidence of prior sexual misconduct by the accused (for which he was tried in a separate general court-martial and acquitted) under Military Rule of Evidence 413, reversing the NMCCA, and setting aside the findings of guilty to the sexual assault charge.

Judge Stucky writes for a unanimous court.

The Appellant was convicted, by a general court-martial composed of members with enlisted representation, of numerous offenses, some in accordance with and some contrary to his pleas. Relevant to this appeal, the Appellant was convicted of abusive sexual contact in violation of Article 120, based on an encounter with his roommate, Lance Corporal (LCpl) [K]. LCpl K testified that on the morning of December 17, 2010, after falling asleep clothed in his barracks room bed, he woke up to find his pants and boxer shorts down by his ankles and Appellant lying in between his knees. LCpl K testified that Appellant rubbed his genitals against LCpl K’s, then jumped into his own bed where LCpl K confronted him.

Despite this compelling evidence of guilt, the prosecution also presented evidence of prior acts of sexual misconduct, pursuant to M.R.E. 413 which provides that:

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

M.R.E. 413(a). Prior to this case, the Appellant was tried by a separate court-martial for alleged sexual assaults of two other Marines, LCpls [B] and [R]. He was acquitted of those assaults, and evidence at that trial showed that he had an alibi: The Appellant was arrested for driving under the influence at a location 45 minutes away from the place where he allegedly assaulted LCpls B and R at the same time that LCpls B and R claimed he assaulted them. Nevertheless, the military judge allowed the Government to present the testimony of LCpls B and R at the subject court-martial, where they testified about the incident involving them (again, of which the Appellant was acquitted), finding their testimony admissible under both M.R.E. 404(b) and M.R.E. 413. LCpls B and R  testified, LCpl K testified, the Trial Counsel then made potentially improper argument in the findings phase of the court-martial, and the Appellant was convicted of sexual offenses involving LCpl K.

The NMCCA reviewed the case, including the MRE 413 and the improper argument issues, and affirmed the findings of guilty of the sexual offense specifications.  CAAF then granted review of two issues:

I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?

II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

The court answers the first question in the affirmative, and does not reach the second question.

Judge Stucky’s discussion begins by noting that prior to trial, the Appellant moved to suppress evidence of prior incidents of sexual misconduct under MRE 413 and MRE 404(b). The military judge held a hearing and granted the Appellant’s suppression motion for two other incidents, but denied it for a third (the incident involving LCpls B and R). Reviewing this ruling and the CCA’s decision affirming it, Judge Stucky observes that:

Noting that the military judge did not explicitly reconcile Appellant’s alibi evidence with LCpl B’s and LCpl R’s testimony, the CCA determined that “[i]t is implicit in his findings of fact that the military judge concluded that the appellant entered the female Marines’ room earlier than they recall and was apprehended subsequently,” and the CCA “decline[d] to disturb the factual findings of the judge on the grounds that they are unsupported by the record or clearly erroneous.”

Solomon, slip op. at 7 (quoting Solomon, 2012 CCA LEXIS 291, at *12–*13, 2012 WL 3106790, at *4). Appellate courts review “a military judge’s decision to admit evidence for an abuse of discretion.” Slip op. at 7.Moreover, “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Slip op. at 7-8. And even more importantly,

M.R.E. 413(a) provides that in a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant. This court has noted that inherent in M.R.E. 413 is a general presumption in favor of admission.

Slip op. at 8 (marks and citation omitted) (emphasis added). Buried in all this deference and permissiveness are three “threshold requirements for admitting evidence of similar offenses in sexual assault cases under M.R.E. 413: (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under M.R.E. 401 and M.R.E. 402.” Slip op. at 8 (citation omitted). And then the military judge must also balance the probative value of the evidence against the danger of unfair prejudice under M.R.E. 403. But, despite these thresholds and balances, the permissiveness and presumptions abound, because “when a military judge articulates his properly conducted M.R.E. 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion.” Slip op. at 9.

So, with a strict standard of review, a presumption in favor of admission, and articulated findings on the record, how does CAAF unanimously reverse the trial judge’s decision admitting the evidence of the Appellant’s prior misconduct involving LCpls B and R?

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Opinion here.  United States v. Solomon, __ M.J. __, No. 13-0025/MC (C.A.A.F. May 8, 2013).  Judge Stucky wrote for a unanimous court, holding that the military judge abused his discretion by admitting evidence under Military Rule of Evidence 413.

CAAF will hear oral argument in United States v. Solomon, No. 13-0025/MC, on Wednesday, March 20, 2013, at the U.S. Naval Academy, Annapolis, MD, as part of Project Outreach. The issues before the court are:

I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?

II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

“At trial, Appellant’s roommate, Lance Corporal [K], testified that on the morning of December 17, 2010, after falling asleep clothed in his barracks room bed, he woke up to find his pants and boxer shorts down by his ankles and Appellant lying in between his knees. LCpl K claimed Appellant rubbed his genitals against LCpl K’s, then jumped into his own bed where LCpl K confronted him. After taking Appellant’s cell phone, LCpl K claimed he saw three photographs of his own genitals on the phone. LCpl K then reported the incident to the barracks duty officer.” App. Br. at 3 (citations to record omitted).

The Appellant was previously tried for alleged sexual assaults on two other Marines, LCpls [B] and [R]. He was acquitted of those assaults, likely because “evidence at trial showed Appellant was arrested for driving under the influence at a location 45 minutes away from the place where he allegedly assaulted LCpls [B] and R at the very time that LCpls [B] and [R] claimed he assaulted them.” App. Br. at 4. Nevertheless, the military judge allowed the Government to present the testimony of LCpls [B] and [R] at this trial, finding their testimony admissible under both M.R.E. 404(b) and M.R.E. 413.

M.R.E. 404 is the general prohibition on admission of evidence of a person’s character for the purpose of proving that the person acted in conformity with their character on a particular occasion (i.e., propensity evidence). However, M.R.E. 404(b) explains that evidence of a person’s other actions is admissible for non-character purposes, such as to prove motive, knowledge, or plan. Additionally, M.R.E. 413 creates an exception to the general prohibition of M.R.E. 404 in that:

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

During closing argument, the Trial Counsel made statements vouching for the believability of LCpls [B] and [R], such as “they were believable,” “we should believe [them],” and “what they said was true.” App. Br. at 6. The Trial Counsel also characterized the defense theory of the case as “smoke and mirrors,” and said it was “absolutely, absolutely, absolutely ridiculous,” and also “absolutely preposterous.” Id.

The Appellant was convicted contrary to his pleas by a general court-martial composed of members with enlisted representation of abusive sexual contact, indecent conduct, drunk and disorderly conduct, and obstruction of justice in violation of Articles 120 and 134. He was also convicted pursuant to his pleas of violating a lawful order and wrongful use of a controlled substance in violation of Articles 92 and 112a. The convening authority approved the adjudged sentence of confinement for six years, reduction to pay grade E-1, total forfeitures and a dishonorable discharge.

The NMCCA reviewed the case for three assignments of error: the two questions before CAAF, and a third error in the failure to allege a terminal element in the drunk and disorderly and obstruction of justice charges. Applying Humphries, the CCA found error in the failure to allege the terminal element, and set aside these convictions. The CCA then reassessed the sentence and reduced the confinement from six years to four years. I’ve fallen behind on tracking this issue, but this might be the first instance of a CCA granting meaningful relief under Humphries.

The CCA found no error in admitting the prior allegations under M.R.E. 413 (while noting that if it was error under 413, the evidence could not be saved by 404(b), since the members were not instructed on the limited uses of evidence under 404(b)). Additionally, the CCA acknowledged that the trial counsel used “injudicious language,” but found that even assuming the argument was improper, it did not amount to plain and obvious error (as there was no objection from the defense). But a dissenting opinion by Judge Beal takes the opposite view (disclaimer: just last week I tried a case as co-counsel with the now-retired Judge Beal).

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CAAF today granted review of these issues in a Marine Corps case:

I.   IN A CASE INVOLVING SEXUAL MISCONDUCT COMMITTED AGAINST A MALE VICTIM, THE MILITARY JUDGE ADMITTED EXTENSIVE EVIDENCE UNDER M.R.E. 404(b) AND M.R.E. 413 THAT RELATED TO APPELLANT’S PREVIOUS ACQUITTAL FOR SEXUAL MISCONDUCT  COMMITTED AGAINST TWO FEMALES, DESPITE ALIBI EVIDENCE THAT CONTRADICTED HIS INVOLVEMENT IN THE SEXUAL MISCONDUCT WITH THEM.  DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN ADMITTING THE PRIOR SEXUAL MISCONDUCT EVIDENCE?

II.  DURING THE TRIAL COUNSEL’S CLOSING AND REBUTTAL ARGUMENT, HE EXPRESSED PERSONAL OPINIONS ON THE EVIDENCE, VOUCHED FOR THE VERACITY OF THE GOVERNMENT WITNESSES, RIDICULED THE DEFENSE’S CASE THEORY, ARGUED FACTS NOT IN EVIDENCE, AND CLAIMED THAT THE DEFENSE CROSS-EXAMINATIONS WERE DISINGENUOUS.  DID HIS IMPROPER CONDUCT CONSTITUTE PROSECUTORIAL MISCONDUCT AND DID IT MATERIALLY PREJUDICE APPELLANT’S SUBSTANTIAL RIGHTS?

United States v. Solomon, __ M.J. __, No. 13-0025/MC (C.A.A.F. Nov. 29, 2012).  NMCCA’s unpublished decision in the case is available here.