concurring in result.
I agree that there was jurisdiction to try this case by court-martial and that the uncharged misconduct was improperly admitted. I cannot agree, however, that the three sexually oriented magazines were admissible.
An inherent difficulty in dealing with sexual topics in legal opinions is that in our culture sexual topics are generally considered to be private. Discussion of sex is only partly emerging from the taboos and inhibitions that kept the subject from being considered fully and honestly in the past. The moral overtones associated with sexual topics may make it difficult for court-martial panels to be guided only by legal considerations when they are deliberating on a sex offense.
The magazines involved in this case should be admissible only if they can be related to the charged offenses. R.C.M. 402. The military judge admitted them as some indication that the appellant’s intent in abusing his children was to satisfy his own lust and sexual desire. In my opinion they demonstrate only that the appellant was interested in sexual topics, and not that he had a preference for sexual activities with children.
Two of the publications involved in this case could be described as “girlie magazines.” They present women in startling and crude poses. Because of this, there may be a tendency to dismiss those who possess them as perverted and capable of any bad sexual act. This same faulty logic would be used to argue that possession of car magazines would support a proof of intent to steal a car. Evidence rules governing admissibility are designed to protect against this type of loose connection between the evidence and the charges. See *681Mil.R.Evid. 403 and 404. Despite their overall crude contents, these magazines contain no pictures or articles which appear to be aimed at arousing prurient interest in activities with children. In fact, to state, as both the trial judge and the majority have, that the models are teenagers seems to be a kind exaggeration. Many of them appear to be significantly older than that. In any case, they are not grade school children, as was the victim in this case. Many of the pictures in these magazines are of adult women using sex aids similar to the one the appellant used on his daughter. This should not render the magazines admissible any more than pictures showing guns should, by themselves, render a magazine admissible on a murder charge.
The other publication is a sex education manual. It treats its subject in a frank and almost confrontational way that may offend some readers. It does not show or suggest to me, however, any of the illegal acts with children of which the appellant is charged.
All these publications were found hidden in the appellant’s toolbox along with the items the appellant used to abuse his daughter. This secrecy does not enhance their relevance. It is obvious the appellant wanted to keep the magazines private. It is impossible to determine much more about the appellant’s purpose for having the magazines. It takes more than mere position to make an item relevant, it must relate in some way to the charges being tried. MiLR.Evid. 401.
Like the majority, I turn to United States v. Woodyard, 16 M.J. 715 (A.F.C.M.R.1983) for guidance. Unlike the majority, I conclude that it was the direct relationship between the homosexual materials Woodyard was found with and the attempted homosexual assault with which he was charged that rendered the materials admissible. I do not find that same congruence between this appellant’s charges and the magazines which are the subject of this appeal. I would find them inadmissible as being irrelevant, however, since the other evidence of the appellant's guilt was so extensive, I would find the error harmless and affirm.