United States v. Franklin

SULLIVAN, Chief Judge

(concurring in part and in the result):

As for the majority’s second holding concerning erroneous admission of testimony as to the uncharged sexual assault on DR, I disagree in part. Some reason was given *319by the military judge for admission of this testimony, namely to show appellant’s modus operandi when he was sexually rejected. Moreover, the challenged evidence was minimally relevant for this purpose. See Mil.R.Evid. 401 and 402, Manual for Courts-Martial, United States, 1984. No abuse of discretion under Mil.R.Evid. 404(b) occurred in such a context. See United States v. Spata, 34 MJ 284, 286 (CMA 1992). However, the military judge’s decision to admit this single-incident evidence violated Mil.R.Evid. 403, since it clearly did not possess great probative value on this point. Cf. United States v. Watkins, 21 MJ 224 (CMA) (seven prior incidents evidenced), cert. denied, 476 U.S. 1108, 106 S.Ct. 1956, 90 L.Ed.2d 364 (1986).

In any event, I agree that any error in admission of this evidence was harmless in view of the other evidence in this case. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).