(concurring in the result):
I
During the providence inquiry into the accused’s proffered pleas of guilty to charges of sodomy, indecent liberties with a child (two specifications), and lascivious acts with a child, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934, respectively, trial counsel sought to introduce the accused’s confession into evidence for use on sentencing. Defense counsel objected to the exhibit because of references therein to “suspected child abuse” which had occurred in 1973 — nine years before the accused began the conduct for which he then was being tried. The particular passage of concern was this:
In Jan 74, Angela [the accused’s stepdaughter] was taken away from us for suspected child abuse and at that time her [the accused’s wife’s] family resented me and never let me say anything but tried to break up our marriage. It took us five years to get Angela back in our home. During these five years we had two more children and she had a tubal pregnancy.
Defense counsel explained his objection in these terms:
I do object to the admission of the confession primarily because of the references within the confession to matters that occurred back in the 1973 to 1978 time frame, a suspected child abuse case where the State of Mississippi took Angela away from the family. I object to any reference in there because of the prejudicial impact. It is conduct that is not charged that would be before the jury under 404b, but also, under 403, it’s the defense contention that it is so remote in time, and it is such a different type of offense totally unrelated to the offenses for which Sergeant Martin is facing trial today, that it should be excluded, and with the exclusion of those references to the conduct in Mississippi, or the alleged conduct in Mississippi, which may refer to Sergeant Martin or somebody else in the family, or anybody, then I feel it would be prejudicial to have the confessions as a document go in with those portions masked.
However, to satisfy the prosecution’s concern that the circumstances surrounding the instant offenses be illuminated, defense counsel indicated a willingness “to stipulate to anything, and everything relating to the elements of the offenses.”
When trial counsel responded that the entire statement was admissible to show the accused’s motive, the military judge noted this problem with the evidence:
It’s a rather ambiguous statement. It doesn’t suggest who — it doesn’t even suggest that there was child abuse, let alone who might have been the perpetrator of any child abuse if there was any, but I understand defense counsel’s position. The court may infer as a result of that statement that, by the subsequent conduct of the accused, perhaps he was the perpetrator of the, quote, “suspected child abuse.”
Even more to the point, the judge queried trial counsel:
Are you suggesting that his motive lays in the fact that this child was a stepdaughter, had been in the home and perhaps, perhaps not, abused, taken from the home, then returned to the home in 1978, four years after the child was abused, and then these acts start up eight years after that in ’82, that’s when the acts of the accused were committed, apparently first started? *232Do you still think that there is some probative value?
Despite these misgivings, the military judge admitted the exhibit — including the sensitive passage — but offered to give a limiting instruction. Later, though, the judge decided not to give the instruction because he doubted that any uncharged misconduct was described and, if it were, that it involved the accused. Although defense counsel initially had asked for such an instruction, he acquiesced in the judge’s decision. Subsequently, however, the issue was highlighted by assistant trial counsel in his argument, which developed as a theme on child abuse.
II
A
Evidence of an accused’s motive goes to the likelihood that he did the act charged. For this reason, it usually is admissible in a contested case to establish guilt. In a guilty-plea case, the accused admits the act and his criminal liability for it. Therefore, no purpose is served in such a case prior to findings by evidence about motive, see Mil. R.Evid. 401, unless the military judge wishes to bolster the providence of the guilty plea by having extensive evidence of guilt in the record.
Evidence of an accused’s motive or other state of mind often serves a proper and useful function during the sentencing phase of a trial, for it may show aggravating or mitigating circumstances of the charged offenses. Cf. para. 75, Manual for Courts-Martial, United States, 1969 (Revised edition). To illustrate, in a drug-distribution case, it will help the sentencing authority to learn whether the accused distributed the drug to a friend as a favor or whether he did so as part of a large business that he operated. Accordingly, just as the Government may offer evidence of pri- or misconduct to establish motive, intent, or other state of mind where relevant to guilt or innocence, see Mil.R.Evid. 404(b), it may offer such evidence for sentencing purposes to the extent that the accused’s state of mind is an aggravating circumstance that may be considered by the sentencing authority. Cf. para. 756(4), Manual, supra. As with other evidence in aggravation, the admissibility of prior-misconduct evidence for sentencing purposes does not turn directly on whether the accused pleaded guilty or not guilty. See United States v. Vickers, 13 M.J. 403 (C.M.A.1982).
Whether the evidence of prior misconduct is offered for findings, for sentence, or for both purposes, the limitations of Mil.R.Evid. 403 apply; and the judge must weigh the probative value of the evidence against its prejudicial effect. In striking a proper balance, the presence of a guilty plea may be relevant, for the prosecutor does not need evidence of prior misconduct to help prove guilt when that guilt is admitted. On the other hand, where the accused has pleaded guilty, no possibility exists that he will be prejudiced as to findings by evidence of prior misconduct.
In a guilty-plea case, it may be premature to receive evidence of motive prior to findings, as was done in this case. However, I can discern no prejudice to an accused from the judge’s admitting it at that time and later allowing the parties to refer to this evidence in connection with sentencing.
B
Before considering whether trial counsel was entitled to use evidence of prior misconduct in order to establish Martin’s motive or state of mind for consideration on sentencing, it must be determined whether the proffered • evidence actually tended to demonstrate his motive to commit the offenses of which he pleaded guilty. At least on this record, the circumstance that, eight years before, his step-daughter (then an infant) had been taken from the family for “suspected child abuse” (by someone) casts no light on his motive to commit the crimes with which he was charged. First, the confession does not state that child abuse was found to exist. Second, although the confession permits the inference that this accused committed child abuse, it is equally *233consistent with the possibility that some other person was responsible for the abuse. Third, the prosecution laid no foundation at all for admission by showing the type of abuse involved, so as to tie it in some way to the offenses facing Martin at his court-martial. Finally, the earlier incident was remote in time and circumstance.
Indeed, from what the military judge said at trial, it appears that he, too, could not detect the relevance of this evidence, so I am not sure of the basis upon which he admitted it. Initially, as quoted earlier, the judge characterized the passage as “ambiguous” about whether any child abuse had in fact occurred and, if so, whether the accused had been the perpetrator. Later, he questioned the probative value of the statement, by reason of many of the same circumstances I have mentioned. Finally, after he had nonetheless admitted the exhibit, he decided against a limiting instruction because of “second thoughts” as to whether the language of the confession could properly be characterized as evidence of uncharged misconduct. When carefully analyzed, all three of these observations by the military judge have a common basis: the evidence was not relevant under Mil.R. Evid. 401.
C
If, somehow, the objectionable passage of the confession can be viewed as relevant, all of the factors I have identified compel a conclusion that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Accordingly, even if admissible under Mil. R.Evid. 401 and 404(b), it should have been excluded under Mil.R.Evid. 403.
D
To me, the phrasing of the certified issue seems misleading, because it implies that the Court of Military Review determined that the challenged evidence would have been admissible on the merits of a contested case, but was inadmissible for any reason in this guilty-plea case. I do not read the opinion below in this way. Instead, I believe that the Court of Military Review would subscribe to my own view that the challenged passage in the confession was inadmissible against the accused before or after findings and regardless of his plea.
If, however, the court below determined that the evidence of uncharged misconduct would have been admissible in a contested case but automatically was rendered inadmissible for sentencing purposes in this case because of the accused’s guilty pleas, then, like Judge Cox, I believe they were in error. Admissibility of such evidence is not governed by the pleas. Instead, it depends on whether the uncharged misconduct tends to establish aggravating circumstances that, however proved, would be admissible for sentencing purposes under the rules the President has prescribed for courts-martial; and, even then, the judge must perform the balancing task required by Mil.R.Evid. 403.
Ill
Although I believe the military judge erred in admitting the challenged exhibit against Martin, I perceive no lingering prejudice as to his sentence, in light of the significant reduction in the sentence ordered by the convening authority. Accordingly, I join with Judge Cox in his disposition of the case.