

   
   
   
   U.S. v. Smith



IN THE CASE OF
UNITED STATES, Appellee
v.
Ryan A. SMITH, Airman First Class
U.S. Air Force, Appellant
 
No. 99-0288
Crim. App. No. S29464
 
United States Court of Appeals for the Armed
Forces
Argued October 19, 1999
Decided March 14, 2000
SULLIVAN, J., delivered the opinion of
the Court, in which CRAWFORD, C.J., GIERKE and EFFRON, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: Captain Patience E. Schermer
(argued); Colonel Theodore J. Fink (on brief); Colonel Douglas
H. Kohrt and Lieutenant Colonel Jeanne M. Rueth.
For Appellee: Major Bryan T. Wheeler
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald
A. Rodgers (on brief).
Military Judge: James A. Young, III
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
Judge SULLIVAN delivered the opinion of the
Court.
During August of 1997, appellant was tried
by a special court-martial composed of officer members at RAF Mildenhall,
United Kingdom. Contrary to his pleas, he was found guilty of making a
false official statement and larceny, in violation of Articles 107 and
121, Uniform Code of Military Justice, 10 USC §§ 907 and 921.
He was sentenced to a bad-conduct discharge, confinement for 6 months,
and reduction to airman basic. On September 11, 1997, the convening authority
approved the sentence, and the Court of Criminal Appeals affirmed on November
24, 1998.
Review was granted in this case on April 7,
1999. Appellate defense counsel asked:



WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
AND ERRED BY ADMITTING SUBSTANTIALLY PREJUDICIAL EVIDENCE OF UNCHARGED
WRONGS OF THE ACCUSED UNDER MILITARY RULES OF EVIDENCE 404(b) AND 403.



We hold that the military judge did not abuse
his discretion in admitting evidence of a telephone-bill-payment incident
involving appellant and his roommate to show his motive for committing
the charged theft from a different airman. See United States
v. Feldman, 788 F.2d 544, 556-57 (9th Cir. 1986); see
generally United States v. Mitchell, 172 F.3d 1104, 1107-10
(9th Cir. 1999).
Appellant was charged with stealing money in
excess of $100.00 from a fellow servicemember, Airman First Class Michael
Fryling, between February 1 and May 20, 1997. He made a pretrial motion
to prohibit the Government from evidencing "the alleged loss of money"
in his and Airman Giznik's room during the period noted above, which had
been placed in his custody by Airman Giznik for payment of their phone
bill. He requested suppression of this evidence because it suggested "uncharged
misconduct," i.e., that he stole or wrongfully appropriated
money from Airman Giznik or that he failed to pay his just debt to the
telephone company. The prosecution, in a written pretrial response, opposed
this motion on the basis that this evidence did not show uncharged misconduct
under Mil. R. Evid. 404(b),1
but rather, appellant's temporary failure to account for nonpayment of
the telephone bill and for the previously entrusted funds on the day of
the alleged theft. It also asserted that evidence of appellant's possession
of money on the day of the alleged theft and the amount thereof was clearly
probative in this larceny case.
The record before us states the following in
this regard:



DC (Patterson): Thank you, sir. I would note
at the outset that the defense is not challenging Airman Giznik's testimony,
at least as we understand it would be elicited in its entirety. If he is
competent to testify as to the financial state of Airman Smith, then we
will not contest that and we can examine that on cross-examination. But
we do, as noted in my motion, wish to exclude certain testimony, specifically
that relating to the alleged loss of money in Airman Fryling's -- excuse
me, Airman Giznik's and Airman Smith's room at the time.

* * *
As stated in our motion, I believe that
testimony is tantamount to uncharged misconduct. Although the Government
states, "We're not going to ask him if he actually stole the money," they
walk around it pretty close saying, "We're going to basically elicit testimony
that Airman Giznik gave money to Airman Smith, that he left for awhile,
he came back, asked for the money, Airman Smith supposedly didn't have
it, and therefore, suggested he had to go somewhere to get the money."
The only way that testimony is relevant from
any point of view is if, in fact, the money was missing; and therefore,
it would be evidence that Airman Smith did something unlawful with the
money. He's not charged with theft from Airman Giznik. He's only charged
with theft from Airman Fryling. So to suggest this is providing some kind
of motive or opportunity, is, in effect, uncharged misconduct because
it tends to prove -- it's pure character evidence. It tends to prove that
because he's a thief in one regard, he must be a thief to Airman Fryling.



(Emphasis added.)
The military judge questioned defense counsel
as follows about his argument that this evidence was offered for impermissible
character purposes:



MJ: It seems to me what the Government
is alleging is that if this, in fact, took place, it represents a motive
as to why he might want to steal something. I believe 404(b) -- the
first exception to 404(b) is to prove motive. What does 404(b) say?
DC(Patterson): Your Honor, there are certainly
certain exceptions for uncharged misconduct for other purposes, but you
would also have to get past the relevancy barrier. In this case, the evidence
of some kind of unlawful taking is virtually nonexistent. It's all through
inference, in which case it creates a substantial danger of unfair prejudice
suggesting that he's a thief when really there's virtually no evidence
of it. It's simply the fact that he says he wanted the money and Airman
Smith did not have it immediately. He has no way of saying what he did
with it or where it went; but it's only relevant from their point of view
if it's missing. If it was not missing, then it has no impact. So it would
be therefore unfairly prejudicial because it's a very vague allegation.
MJ: Military Rule of Evidence 404(b) says that
evidence of other crimes, wrongs, or acts is not admissible to prove the
character of the person in order to show action [in] conformity therewith.
It may, however, be admissible for other purposes such as proof of motive.
The Government alleges this is proving a motive, I believe. Isn't that
what they're alleging?
DC(Patterson): That is my understanding,
but it would still have to be relevant. In this case, the charge is theft
and this is another alleged type of theft which, in the minds of the members,
could be given undue weight as being able to prove, "Well, if he did it
on this one occasion, then he must have done it on these other occasions."



(Emphasis added.)
The military judge then ruled the evidence
concerning the telephone bill was admissible as motive evidence. He said:



MJ: The relevancy barrier is that's the motive.
All right, as Captain Patterson stated, counsel for both sides did provide
me with Xerox copies of the motion in limine and the Government's response
-- or actually they were faxed to my office. I did review them, and
I've reviewed 404(b). I've reviewed the evidence contained in here.
Now, if this is, in fact, what the evidence is going to go to, then
I believe it does go to prove motive.
Under Military Rule of Evidence 403, I balanced
and I believe the probative value of the evidence is not substantially
outweighed by the possibility of prejudice to the accused. Therefore, your
motion, at least at this time, is denied. If you see something at a later
time that you want to bring to my attention, you may do so.



(Emphasis added.)
Airman Giznik later took the stand and provided
the following testimony, as summarized by the Government in its response
to the defense motion:



Amn Giznik [testified] that at approximately
0900 on 9 April 1997, the Accused could not account for the fact the
Accused had failed to pay their £180 dorm room phone bill, even
though Amn Giznik had given him money for that purpose, that the Accused
could not account for Amn Giznik's £90, that the Accused told Amn
Giznik he would get the money later, and that the Accused produced the
money later that afternoon. Amn Giznik [testified] he accompanied Amn Michael
Fryling to check his mail on 5 May 1997, that Amn Fryling received his
April Keesler Federal Credit Union checking account statement that day,
that Amn Fryling noticed unauthorized ATM withdrawals on his statement,
and that there was an unauthorized £200 ($332) ATM withdrawal
made against Amn Fryling's account o[n] the afternoon of 9 April 1997,
shortly before the Accused produced the missing £180 for the phone
bill.



(Emphasis added.)
Finally, the military judge instructed the
members as to the limited use of this testimony as motive evidence. He
said in his findings instruction:



Evidence that the accused may have misappropriated
Airman First Class Giznik's money to pay British Telecom may be
considered by you for the limited purpose of its tendency, if any, to prove
the accused's motive in taking money from Airman First Class Fryling.
You may not consider this evidence for any other purpose, and you may not
conclude from this evidence that the accused is a bad person or has criminal
tendencies and that he therefore committed the offenses charged.



(Emphasis added.)

___ ___ ___
As noted above, defense counsel made a pretrial
motion in limine to suppress any testimony from a government
witness, Airman Giznik, concerning a telephone-bill-payment incident with
appellant, his roommate. He averred that Airman Giznik would testify that
appellant was holding his phone bill money; that he did not pay that phone
bill; and that appellant could not immediately locate that money when Airman
Giznik asked for it on April 9, 1997. Defense counsel objected to such
evidence as being tantamount to uncharged misconduct and unfairly prejudicial
under Mil. R. Evid. 404(b) and 403. He argued that this evidence provided
an inference that appellant "stole or wrongfully appropriated . . . money
belonging to [Airman Giznik]" and "failed to pay just debts."
We note that Airman Giznik's testimony was
not offered by the prosecution to show any unlawful conduct by appellant,
or his poor character and that he acted in conformity with that character
by committing the charged offense. On the contrary, it offered this evidence
to show appellant's financial acts around the time of theft and as part
of the res gestae.2
In addition, we note that the military judge did not admit this testimony
to show appellant's bad character or for impermissible character purposes.
Finally, the military judge expressly instructed the members that they
could not consider evidence of a possible misappropriation of money by
appellant for character purposes.3
See Mil. R. Evid. 404(b).
Nevertheless, the military judge did give an
instruction that evidence of a possible "misappropriation" of Airman Giznik's
money by appellant could be considered for
the limited purpose of proving his "motive" for committing the charged
offenses. See generally United States v. Levitt, 35
MJ 114, 119 (CMA 1992); United States v. Wray, 9 MJ 361 (CMA 1980);
cf. United States v. Brawner, 32 F.3d 602, 605 (D.C. Cir.
1994) (duty of judge upon request to give limiting instruction concerning
evidence of uncharged misconduct). Appellant asserts "the military judge
abused his discretion by admitting the uncharged misconduct evidence about
the chain of events regarding the telephone bill based upon his
own theory of motive under Mil. R. Evid. 404(b)." Final Brief at 16
(emphasis added). Although we do not necessarily agree with the military
judge's implied characterization of this evidence as uncharged misconduct
evidence,4 we will so
assume for purposes of this appeal and address appellant's claim. See
generally Huddleston v. United States, 485 U.S. 681, 687-88
(1988); United States v. Levitt, 35 MJ 108, 112-13 (CMA 1992).
Appellant first argues that the military judge
abused his discretion because "[o]n his own, disregarding the prosecution's
inadequate and vague offer and virtually cross-examining trial defense
counsel, [he] identified the telephone bill chain of events as Mil. R.
Evid. 404(b) evidence and categorized it as relevant and admissible motive
evidence." Final Brief at 17. He generally cites United States v. Merriweather,
78 F.3d 1070, 1075 (6th Cir. 1996), for the proposition that
the Government bears the burden of identifying a non-character purpose
when it offers evidence suggesting uncharged misconduct for admission in
a criminal trial. See United States v. Kendall, 766 F.2d
1426, 1436 (10th Cir. 1985).
We agree with the Sixth Circuit that "[u]pon
objection by the defendant, the proponent of the evidence, usually the
Government, should be required to identify the specific purpose
or purposes for which the Government offers the evidence of other crimes,
wrongs, or acts." Merriweather, supra at 1076. Moreover,
we also agree with that appellate court that "[b]y so requiring, we do
not mandate hypertechnicality." Id. Here, it is not clear why the
military judge did not admit this evidence in accordance with the Government's
pretrial proffer (to show appellant's possession of different sums of money
on the date of the charged larceny offense). Nevertheless, in our view,
trial counsel satisfactorily identified motive as a specific alternative
basis for admission of the challenged evidence at this court-martial. See
generally United States v. Brannan, 18 MJ 181, 185 (CMA 1984).
In this regard, we note that trial defense
counsel acknowledged in his written pretrial motion in limine
that the Government intended to introduce this evidence for the limited
purpose of showing "motive." Moreover, although trial counsel in his written
response to this motion sought to admit the challenged evidence for a purpose
related to motive (i.e., circumstantial corroboration by showing
possession of different amounts of money on day of theft), he did not reject
the theory of admissibility previously attributed to him by the defense.
See Mitchell, 172 F.3d at 1108-10 (contrasting motive evidence
and abrupt-change-in-financial-circumstance evidence in a larceny case).
Finally, trial counsel made no objection when the military judge, with
agreement of defense counsel, made clear his understanding of the Government's
particular purpose in introducing this evidence if the members found, in
fact, that appellant misappropriated his roommate's money.
Appellant similarly argues that the military
judge disqualified himself by sua sponte admitting the challenged
evidence for a purpose not proffered by the prosecution. He argues that
the military judge's ruling unfairly injected the judge into the proceedings
on behalf of the prosecution and to the detriment of the defense. He cites
United States v. Butler, 13 USCMA 260, 265, 32 CMR 260, 265 (1962)
("Certainly [the law officer] cannot be censured for refraining from injecting
himself into the proceedings by propounding theories of his own for either
party."), and asks this Court to reverse his conviction on this basis.
Again, we note our disagreement with appellant
that the evidentiary theory relied on by the trial judge for admission
of the challenged evidence was a judicial creation. In addition, we note
that Article 39(a)(4), UCMJ, 10 USC § 839(a)(4), and Mil. R. Evid.
104(a) contemplate that the military judge determine the admissibility
of evidence, which includes reasonable assessment of a partys position
in a particular case. Accordingly, while we agree that the military judge
should not be trying the prosecution's case, we simply do not agree that
occurred in this case. See United States v. Cooper, 51 MJ
247 (1999).
Changing tack, appellant next asserts that
the testimony of Airman Giznik was improperly admitted under Mil. R. Evid.
404(b) to show motive, in view of the three-prong test this Court articulated
in United States v. Robles-Ramos, 47 MJ 474 (1998). He first argues
that his purported misappropriation of Airman Giznik's money was not proven
by a preponderance of the evidence. Our standard of review is whether sufficient
evidence was admitted so the members could find by a preponderance of the
evidence that the misconduct occurred. Id. at 476, citing United
States v. Mirandes-Gonzalez, 26 MJ 411, 414 (CMA 1988); see
generally Huddleston, 485 U.S. at 690.
Admittedly, there was no direct evidence that
appellant misappropriated Airman Giznik's telephone money. There was, however,
circumstantial evidence that appellant may have wrongfully appropriated
the money entrusted to him to pay this bill. It was shown that the telephone
service had been terminated; that appellant had not paid the bill as promised;
that he could not produce the previously entrusted money on demand and
could not immediately account for its whereabouts; and that finally, he
later produced the money and his own share of the bill without adequate
explanation. On the basis of this evidence, we conclude that a factfinder
might reasonably find that appellant temporarily appropriated Airman Giznik's
money for his own purposes rather than paying the telephone bill as promised.
United States v. Robles-Ramos, supra; see United
States v. Hale, 28 MJ 310, 311 (CMA 1989)(evidence of wrongful appropriation
of a rental car).
Appellant's second argument under Robles-Ramos
is that his purported misappropriation of Airman Giznik's telephone bill
money still was not shown to be relevant to a "fact of consequence" in
his trial for stealing money from Airman Fryling. See Robles-Ramos,
supra at 476; see generally United States v. Reynolds,
29 MJ 105, 109 (CMA 1989). He states that this evidence "went toward no
specified element of the crimes charged." Final Brief at 18. Appellant
did not admit that he withdrew money from Airman Fryling's account on April
9, 1997, and the military judge ruled that evidence appellant had financial
difficulties was probative of a motive on his part to commit this larceny.5
This is black letter law in larceny cases. See 1A Wigmore, Evidence
§ 117 at 1696 (Tillers rev. 1983); 2 Wigmore, Evidence §
392 at 430 (Chadbourn rev. 1979). Even trial defense counsel conceded this
point at trial. See generally United States v. McMahon, 938
F.2d 1501, 1507-08 (1st Cir. 1991).
A question remains, however, as to how evidence
of appellant's purported wrongful appropriation of Airman Giznik's telephone
payment was relevant to show his financial difficulties leading to the
charged theft. We think that was obvious. This evidence showed the extraordinary
degree of financial pressure that was applied to appellant on the actual
day of the alleged theft from Airman Fryling. If he failed to produce the
money entrusted to him by his roommate, Airman Giznik could expose him
to command embarrassment, if not criminal prosecution, for his misuse of
a fellow soldier's money. See 2 Wigmore, Evidence §
392 at 432 n.6; Feldman, 788 F.2d at 556-57; see generally
Mitchell, 172 F.3d at 1109 (evidence showed that defendant in Feldman
was being "squeezed," not just that he would be better off with more money).
Accordingly, we conclude this possible "uncharged wrongs" evidence was
highly relevant to establish appellant's timely and unique motivation for
committing the charged larceny. See 1A Wigmore, Evidence
§ 117, supra (discussing proof of emotion in a person likely
leading to an act by that person).
Appellant's third argument under Robles-Ramos
is that Airman Giznik's testimony suggesting possible misappropriation
by appellant was inadmissible under Mil. R. Evid. 403. See United
States v. Reynolds, supra. He argues that "the probative value
of the evidence [was] substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the members." He particularly
faults the trial judge for providing "no real analysis anywhere on Mil.
R. Evid. 403, just conclusory statements." In addition, he contends that
this evidence was not necessary to show appellant's poor financial condition
and that its sole effect was to "paint Appellant[] as a thief and a liar."
Final Brief at 19-20.
In addressing these complaints, we initially
note that the decision to admit or exclude evidence under Mil. R. Evid.
403 is imparted to the sound discretion of the trial judge. See
United States v. Whitner, 51 MJ 457, 461-62 (1999). An explanation
of his ruling on the record is preferred, but we have not required such
an explanation as a predicate for our review. See United States
v. Bins, 43 MJ 79, 85-86 (1995). In either event, we review the record
of trial for a clear abuse of discretion by the trial judge. Id.
Here, we see no such abuse in the admission of Airman Giznik's telephone-bill-payment
testimony.
In this regard, we initially note our disagreement
with appellate defense counsel's assertion that it was "unclear what issue
the [challenged] evidence would be used to prove." Final Brief at 19. The
military judge ruled and instructed the members that any evidence of a
possible misappropriation could only be used for "its tendency, if any,
to prove the accused's motive in taking money from Airman First Class Fryling."
See Mil. R. Evid. 104(a) (military judge determines admissibility
of evidence questions). We also disagree with counsel that this evidence
had low probative value because other evidence would show appellant's poor
financial condition. This evidence had great probative value because it
revealed the true extent of appellant's financial desperation on the day
of the alleged theft, i.e., an immediate pressure, far beyond simple
insolvency. See Mitchell, supra at 1109, citing United
States v. Feldman, supra. Lastly, we disagree that this evidence
"had" to be used by the members as propensity evidence. It might have,
but the military judge carefully instructed the members that it could not
be used for this purpose. See Whitner, supra at 462
(limiting instructions precluding impermissible character use of evidence
are proper consideration in Mil. R. Evid. 403 ruling); cf. United
States v. Johnson, 27 F.3d 1186, 1193-94 (6th Cir. 1994)
(multiple instructions given which were contradictory).
In conclusion, appellant's core complaint in
this case is that he was found guilty of stealing more than $100.00 from
Airman Fryling because the prosecution was allowed to introduce evidence
suggesting a possible prior misappropriation of Airman Giznik's money.
We note, however, that the prosecution also evidenced approximately 22
unauthorized withdrawals over a 4-month period from Airman Frylings ATM
account, amounting to more than $1,000.00. Airman Fryling further testified
that he did not give appellant his ATM card, his pin number, or permission
to withdraw funds from his account. Finally, appellant, in a pretrial statement,
admitted making numerous withdrawals from Airman Fryling's account during
this period but asserted that he was inexplicably given carte blanche authority
from the alleged victim to do so. In these circumstances, we seriously
doubt that even the erroneous admission of the challenged evidence under
the stringent conditions directed by the military judge substantially prejudiced
appellant.6 Whitner,
supra at 462 (other evidence in case coupled with appropriate limiting
instructions may negate any prejudice from an erroneous Mil. R. Evid. 403
ruling).
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Manual for Courts-Martial,
United States (1995 ed.). All Manual provisions are cited to the version
in effect at the time of trial. The 1998 version is unchanged, unless otherwise
indicated.
2 This
evidence was admissible as evidence of an abrupt change in financial circumstances
at the time of the theft offense. See 1A Wigmore, Evidence
§ 154 at 1764 (Tillers rev. 1983); 2 Wigmore, Evidence §
392 at 433 n.8 (Chadbourn rev. 1979); United States v. Jackson,
882 F.2d 1444, 1450 (9th Cir. 1989)(res gestae
evidence); United States v. Kloock, 652 F.2d 492, 495 (5th
Cir. 1981) (complete the story of the crime).
3 The
military judge did not find as fact that appellant committed the averred
misconduct, nor do we. See Art. 67, UCMJ, 10 USC § 867.
4 Courts
have split on whether circumstantial or indirect evidence of misconduct
is subject to the requirements of uncharged misconduct rules like Mil.
R. Evid. 404(b). See Edward J. Imwinkelried, Uncharged Misconduct
Evidence §2:16 at 84 (Revised ed. 1999). We need not decide that
question today because even if circumstantial evidence is subject to this
rule, as indicated in the military judge's ruling, appellant does not prevail.
5 Appellant
did not particularly admit to withdrawal of funds from Airman Fryling's
account on April 9, 1997, nor was there photographic evidence of his use
of the ATM on that date. Accordingly, there were material issues in this
case whether Airman Fryling's money was stolen on that date and whether
appellant did it.
6 Neither
trial counsel nor defense counsel referred to this evidence or the judge's
ruling in their closing arguments.

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