United States v. Bender

Opinion of the Court

COX, Judge:

This case requires us to consider whether the military judge erred when he admitted prior uncharged misconduct into evidence against appellant. Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984. Appellant was charged with committing indecent acts upon his 10-year-old daughter. The alleged acts included fondling her breasts and vagina. To meet its burden of proof, the Government not only had to prove that the acts occurred but also “[t]hat the accused committed the act with intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both____” Para. 87b(1)(d), Part IV, Manual, supra; see Art. 134, Uniform Code of Military Justice, 10 USC § 934.

In furtherance of its case, the Government introduced two contested pieces of evidence. First, the Government sought to introduce an earlier confession by the accused wherein 3 years prior to the charged offenses, he confessed to having performed indecent acts upon his daughter, including sodomy. Second, the Government sought to introduce the live testimony of another young girl, Melissa, who would testify that appellant had fondled her on numerous pri- or occasions. The military judge ruled that most of the confession and the testimony would be allowed. He redacted the references to oral sodomy from the confession. It is the testimony of Melissa that gives rise to the issue on appeal before us.

Regarding Melissa’s testimony, the military judge ruled as follows:

It [Melissa’s statement] has some bearing as to the accused’s intent to satisfy his sexual desires when he committed the charged offenses. But, more importantly, it has a bearing on the motive and the common method, plan, or scheme____ Melissa[‘s] [last name deleted] testimony also would supposedly establish that the accused maintained a perverse sexual desire for young girls. The testimony would also establish that the accused had the sexual desire and acted upon it even after he had confessed to CID that he had molested his daughter for 4 or 5 years. More importantly, her testimony would establish that the accused had this sexual desire for young girls near the time of the charged crime. As to the common plan, method, or scheme, in the 1984 confession, the accused admitted he repeatedly abused his daughter over a period of 4 or 5 years beginning when she was 1 or 2 years old____ Melissa ... will testify to acts that are virtually identical to the charged acts, and committed in a way that is virtually identical to the way described by the victim. Further, it is admissible under Military Rule of Evidence 404(b), citing United States v. Cuellar, 27 MJ 50, Court of Military Appeals case of 1988, because it tends to establish the victim’s credibility, which is, I understand in this case is to be an issue.

The Court of Military Review affirmed the findings and sentence. 30 MJ 815 (1990). In so doing, that court undertook the three-step analysis that we formulated in United States v. Reynolds, 29 MJ 105, 109 (CMA 1989), and reached the following conclusions: First, that the evidence reasonably supported a finding that appellant had committed the prior acts upon Melissa. Second, that the evidence was being offered for a proper purpose under Mil.R.Evid. 404(b); specifically, the Court of Military Review concluded “that the military judge properly allowed the admission of this evidence on the issue of intent under Mil.R.Evid. 404(b).” Also, it concluded that “consideration of this evidence with regard to motive does not appear to be improper.” 30 MJ at 820. Lastly, it implicitly concluded that the probative value of the evidence outweighed any undue prejudice. Mil.R.Evid. 403.

We have carefully reviewed the evidence and appellant’s arguments and conclude that the decision of the Court of Military Review was correct. See also United States v. Munoz, 32 MJ 359 (CMA 1991); United States v. Mann, 26 MJ 1 (CMA), cert. denied, 488 U.S. 824,109 S.Ct. 72,102 L.Ed.2d 49 (1988). Indeed, we can add nothing to the well-considered opinion below that would further advance the law or provide any clearer understanding of these murky issues.

The decision of the United States Army Court of Military Review is affirmed.