                       UNITED STATES, Appellee

                                    v.

                   Ronald H. BARNETT Jr., Sergeant
                     U.S. Marine Corps, Appellant

                              No. 05-0322
                       Crim. App. No. 9901313

       United States Court of Appeals for the Armed Forces

                        Argued April 18, 2006

                       Decided August 9, 2006

BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.

                                 Counsel


For Appellant:    Captain Rolando R. Sanchez, USMC (argued).


For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief);
Lieutenant Kathleen Helmann, JAGC, USNR.



Military Judge:   R. L. Rogers



          THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION.
United States v. Barnett Jr., No. 05-0322/MC


    Judge BAKER delivered the opinion of the Court.

    Appellant was tried by general court-martial before officer

and enlisted members.   Contrary to his pleas, he was convicted

of two specifications of violating a lawful general order, three

specifications of maltreatment, one specification of making a

false official statement, four specifications of indecent

assault and one specification of indecent acts1 in violation of

Articles 92, 93, 107 and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 892, 893, 907, 934 (2000).   Appellant was

acquitted of two specifications of violating a lawful general

order, one specification of maltreatment, one specification of

making a false statement and one specification of indecent

assault in violation of Articles 92, 93 and 134, UCMJ.   The

adjudged and approved sentence included a bad-conduct discharge,

confinement for two years, forfeiture of all pay and allowances,

and reduction to grade E-1.

     The United States Navy-Marine Corps Court of Criminal

Appeals set aside the guilty findings under Charge I (two

specifications of violating a general order) and the guilty

findings under Charge II (three specifications of maltreatment

of subordinates) as an unreasonable multiplication of charges.


1
  Appellant was originally charged with indecent assault under
this specification. Appellant was acquitted of this offense,
but found guilty of the lesser included offense of indecent
acts.


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United States v. Barnett Jr., No. 05-0322/MC


United States v. Barnett, No. NMCCA 9901313, 2004 CCA LEXIS 285,

at *15, 2004 WL 3015292, at *5 (N-M. Ct. Crim. App. Dec. 30,

2004) (unpublished).    Aside from this error, the lower court

found no further errors and affirmed, finding the approved

sentence appropriate under United States v. Sales, 22 M.J. 305,

307-08 (C.M.A. 1986).   2004 CCA Lexis 285, at *27, 2004 WL

3015292 at *10.   We granted review of the following issue:

     WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE
     MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY ADMITTING
     EVIDENCE OF UNCHARGED MISCONDUCT IN VIOLATION OF MILITARY
     RULE OF EVIDENCE 404(b) OVER DEFENSE OBJECTION.

     We hold that the military judge abused his discretion when

he admitted the evidence of uncharged misconduct over defense

objection.   However, we further hold that Appellant suffered no

material prejudice to his substantial rights as a result of this

error.   Therefore, we affirm.

                             BACKGROUND

     Appellant, a twenty-nine-year-old sergeant in the Marine

Corps at the time of his court-martial, was a member of

Headquarters and Service Battalion, Marine Corps Base, Quantico,

Virginia.    At the time of the alleged offenses, Appellant was

serving as an instructor at Aberdeen Proving Ground (APG),

Maryland.    The charges in Appellant’s case stemmed from alleged

incidents of unwanted physical and verbal advances by Appellant

toward four female Army trainees at APG, Private (PVT) SD, PVT



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United States v. Barnett Jr., No. 05-0322/MC


SK, Private First Class (PFC) LT, and PFC BL, in the fall of

1997.

        Prior to trial, defense counsel moved to suppress

Appellant’s statements on November 21, 1997, to special agents

from the Naval Criminal Investigative Service (NCIS).

Specifically, the defense sought to suppress a written statement

made by Appellant detailing his physical encounters with PVT SK,

PVT SD, and PFC LT.    According to Appellant’s written statement,

he and the three trainees kissed, but it was voluntary and

willing on their part.    The military judge denied Appellant’s

motion to suppress.    At trial, Appellant proceeded on a theory

that the physical interactions between Appellant and the four

trainees were in fact consensual, in accordance with his written

statement to NCIS.

        During pretrial motions, the Government sought to introduce

the testimony of RB, a former Marine Lance Corporal, who was

stationed with Appellant at Twentynine Palms, California, in the

spring of 1994.    In addition to her testimony, the Government

also sought to introduce a Discrimination/Sexual Harassment

Incident Report as part of Appellant’s service record book.    The

two-page report detailed the investigation of RB’s allegations

and the actions taken against Appellant as a result.    The

Government offered both pieces of evidence under Military Rule

of Evidence (M.R.E.) 404(b).


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United States v. Barnett Jr., No. 05-0322/MC


     During a session pursuant to Article 39(a), UCMJ, 10 U.S.C.

§ 839(a) (2000), prior to trial, the trial counsel and the

military judge had the following exchange on the admissibility

of RB’s testimony:

          MJ: What is -- how is it that this [sic]
          relevant? What does [RB] have to say about what
          happened in 1994, how is [sic] relevant to the
          offenses in this case?

          TC: Okay, sir. First, on the accused’s intent,
          we’ve got offenses that have to do with the
          intent of the accused and these will [sic] talk
          about, we believe, this evidence will allow the
          members to see the accused’s intent, what the
          case law that I’ve cited talks about as a
          predatory intent on the part of the accused. We
          have not -- well, we’ve got a few theories, sir.
          This is not by any chance the mantra that is
          exactly in the -- common plan, scheme, intent,
          motive. This is -- we’ve got three purposes,
          we’re offering it, and first is the intent,
          second is to defeat the accused’s claim that the
          acts were consensual, and third to show the
          accused’s plan, if you will, to sexually harass,
          dominate and touch subordinate females that he’s
          able to separate from the pack, if you will.
          And, admittedly the third and the first may merge
          at some point, but the evidence itself will give
          the members a picture of the accused’s intent.
          And intent is relevant in this case.

          MJ: Okay. You focus on the intent. You believe
          that this evidence would be relevant on the issue
          of intent as it relates to the indecent assault
          specification?

          TC: That’s correct, sir. We believe that and we
          believe also when you talk about the plan of the
          accused that that encompasses the sexual
          harassment and maltreatment aspects that were
          charged with it. And that’s why I say at some
          point they may merge, but certainly we do believe
          it impacts on his intent to gratify his sexual


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United States v. Barnett Jr., No. 05-0322/MC


          desire. The acts that [RB] will testify, the
          statements that he made, the repeated nature of
          the statements, the complete ignorance of [his]
          comments, please stop, leave me alone, just the
          complete roll over and you’ll see how that and
          what has happened in the instance with these four
          victims, how that segues and we’ll be able to
          show the members the intent of the accused here.
          It gives them a picture of it and we believe it
          is necessary for the government’s case, it’s
          relevant, material, and it’s permissible.

In response, defense counsel objected to the introduction of

RB’s testimony on multiple grounds:

          DC: I would ask how the government is going to
          link up [RB]’s testimony with Sergeant Barnett’s
          intent? He’s made -- Major Bowe has made some
          general propositions but there’s a total lack of
          specificity here as to how whatever she says is
          going to prove either intent, plan, or defeat the
          claim of consent to Sergeant Barnett. I would
          state that these things are so temporally removed
          that there is no logical nexus in either times,
          place, or space between what happened in 1994 and
          what happened in 1997. . . . I believe what
          you’re going to hear is no allegations of an
          indecent assault by [RB] at all. Basically they
          are the nature of repeated comments. She’s going
          to say that she told him to stop a bunch of times
          and he didn’t, whereas the allegations from
          Aberdeen once told to stop, Sergeant Barnett
          apparently did stop. In Aberdeen the allegations
          involved being [sic] one on one contact, being
          alone and trying to ensure that they’re alone and
          in a closed space. Whereas, [RB] is going to say
          whenever one instance of touching occurred,
          occurred [sic] with a couple of other Marines in
          the room. There was no actual one on one contact
          with him, just a series of phone calls and
          comments . . . .

               That being said . . . this is definitely
          going to fail the 403 legal relevancy test,
          definitely a substantial risk of unfair prejudice



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United States v. Barnett Jr., No. 05-0322/MC


          to the accused, confusion of the issues, and a
          great propensity to mislead the members, sir.

During another session pursuant to Article 39(a), UCMJ, the

military judge ruled on the Government’s motion to admit RB’s

testimony and the incident report:

          MJ: Gentlemen, the defense of mistake of fact
          has an essential part, whether it’s mistake of
          fact as to a specific intent offense or a general
          intent offense, that the accused’s mistake of
          fact as to consent, that’s the mistake of fact at
          issue in this case, was honestly held, that he
          truly believed it that is, that in this case PFC
          [LT], [PVT SD], [PVT SK] and PFC [BL] consented
          to his touchings and comments . . . . The
          testimony of [RB] is relevant in that it shows
          that on a prior occasion that the accused was
          informed in what appear to be very clear terms
          that his conduct wasn’t welcomed, and, hence, not
          consented to under similar circumstances. Hence,
          it’s relevant in this proceeding. . . . I noted
          that they are relevant given the defense posture
          and the evidence which has been introduced in
          support of that posture. I will give a
          cautionary instruction to the members on the use
          of the evidence and, hence, I’m convinced that
          with that instruction being provided to the
          members both now and during -- or prior to their
          deliberations that the probative value of this
          evidence is not substantially outweighed by its
          prejudicial impact.

               . . . .

               The page 11 entry and the incident report
          which was provided to me for consideration on
          this matter in the Article 39(a) session
          previously, and which I have considered herein,
          are not admitted and will not be admitted
          pursuant to this. I find that their prejudicial
          impact to admit at this time the page 11 entry
          would be cumulative and that at this time that
          its introduction would be substantially more
          prejudicial than probative.


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United States v. Barnett Jr., No. 05-0322/MC



Before RB was brought before the members to testify, the

military judge gave the following limiting instruction at the

defense counsel’s request:

          MJ: Evidence that the accused may have made
          sexually provocative comments to [RB] and may
          have touched her in a purportedly provocative
          manner may be considered by you for the limited
          purpose of its tendency, if any, to rebut the
          contention of the defense evidence that the
          accused’s participation in the offenses of
          indecent assault under Charge IV with [PVT SD],
          [PFC LT], and [PVT SK], and the offenses of
          maltreatment in the specifications under Charge
          II with [PVT SD] and [PFC LT], [PVT SK], and [PFC
          BL] as the result of mistake on the accused’s
          part as to consent on the part of the persons who
          were in Charge II and IV, which are before you,
          the object of the accused’s alleged sexual
          touchings and/or comments. 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 which
          are charged and which are before the court.

The military judge repeated this instruction at the close of

RB’s testimony.

     During the prosecution’s case, all four of the complaining

witnesses testified against Appellant.   Although each of the

trainee’s testimony differed, three of the four trainees

described a physical encounter with Appellant that included

kissing and fondling.   The fourth trainee testified that

Appellant mentioned wanting to kiss her during class one morning




                              8
United States v. Barnett Jr., No. 05-0322/MC


and also attempted to tickle her on another occasion.   None of

the trainees testified that she told Appellant to stop.

     RB testified that, while serving as the maintenance company

clerk at Twentynine Palms in 1994, she and Appellant “had to

communicate on a daily basis” for administrative reasons.    RB

stated that she began receiving phone calls from Appellant that

“started out on a business matter” but would then change.    When

asked to elaborate on this change, RB offered the following:

“The tone of his voice would change.   He started making comments

[that] I had a sexy voice, things of that nature.   He would

whisper comments to me over the phone.”   When asked what

specific comments Appellant made, RB stated that “[t]here [were]

several comments ranging from, you have a sexy voice, you should

have married a man like me, not your husband.    He made a comment

that he wanted to know what it was like to have sex with a white

pregnant woman.   I was pregnant at the time.”   RB testified that

in addition to Appellant’s frequent phone calls, he also made

similar comments to her in-person, although “[v]ery few times.”

The only physical contact RB testified to was Appellant rubbing

his arm on her arm while they were both seated in Appellant’s

office at his computer.

     On the issue of consent, trial counsel and RB had the

following exchange:




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United States v. Barnett Jr., No. 05-0322/MC


          Q: Now, when Sergeant Barnett made these
          comments to you over the phone, what would you
          say to him?

          A:   On several occasions I asked him to stop.

          Q:   Okay.

          A:   Stop calling and hang up the phone.

          Q: When you would tell him to stop, stop -- give
          us an idea of what you would say to him? Would
          you simply say stop or did you make a comment,
          what would it be?

          A: I started out just by saying, you know, you
          don’t need to be saying these things. Then it
          started being like you need to stop making these
          comments.

          Q: And when you would make your comment like
          that, you need to stop or stop making these
          comments, would Sergeant Barnett respond at all?

          A:   No, sir, he did not.

          Q: And on occasion would more sexual comments
          follow?

          A:   Yes.

          Q: And then you said you had to hang up the
          phone?

          A:   Yes.

During closing arguments, trial counsel summarized the import of

RB’s testimony:

          Is the accused aware of what he is doing? Is he
          aware of what he is doing, or is this a mistake?
          Is he aware of what he is doing? Ask yourself
          that. And when you’re thinking about that, and
          you’re thinking about the four victims in this
          case, think about [RB]. Think about what
          happened to her three years before these events.


                              10
United States v. Barnett Jr., No. 05-0322/MC


          She told you how she was sexually harassed by the
          accused. Not anything like these privates, not
          anything like these privates. Touched, the
          comments, “You shouldn’t have married him, you
          should have married a guy like me.”

               She says no. Why is this important? Why is
          that important, “She says no”? Because it
          doesn’t matter. She tells you she says no. She
          has to hang up on him. She has to hang up on him
          a number of times. Sometimes he comes and visits
          her and he says it, and she can’t hang up. You
          get a picture of what these privates were going
          to go through.

Trial defense counsel, by contrast, reiterated Appellant’s

mistake of fact defense:

          The military judge is going to instruct you,
          mistake of fact is a defense to indecent assault,
          sexual harassment, mistreatment. What was going
          on through Sergeant Barnett’s mind? It doesn’t
          even have to be reasonable for indecent assault.
          No matter how unreasonable, as long as he
          perceived there was consent -- and you see that
          in his statement -- and you saw that from the
          testimony of these girls, that they said no and
          he kept going and they didn’t do anything, they
          said nothing, he kept going. You know, a
          reasonable person would consider that to be
          consent.

     Following closing arguments, the military judge instructed

the members on the mistake of fact defense and repeated his

earlier limiting instruction with regard to RB’s testimony.

     On review, the lower court applied the three-part test set

forth in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.

1989), to determine whether RB’s testimony should have been

admitted under M.R.E. 404(b).    Barnett, 2004 CCA LEXIS 285, at



                                11
United States v. Barnett Jr., No. 05-0322/MC


*3-*4, 2004 WL 3015292, at *1-*2.   The lower court concluded

that the evidence had been properly admitted and that the

military judge did not abuse his discretion.   2004 CCA LEXIS

285, at *6-*7, 2004 WL 3015292 at *2.

            First, the finder of fact could reasonably
            conclude that the acts RB complained of did occur
            and that the appellant is the person who
            committed those acts. . . . Second, the
            appellant’s commission of the prior acts is
            probative of whether he believed the victims
            consented to his physical contact. Consent was a
            material issue raised by the appellant in his own
            defense. Third, while the relevant evidence was
            prejudicial to the appellant, the danger of
            unfair prejudice did not substantially outweigh
            its probative value. The military judge gave a
            cautionary instruction immediately before and
            after RB’s testimony and again before
            deliberations on findings.

2004 CCA LEXIS 285, at *6, 2004 WL 3015292, at *2 (footnote

omitted).

     On appeal to this Court, Appellant argues that the military

judge abused his discretion when he allowed RB to testify.

According to Appellant, RB’s testimony fails all three of the

prongs in Reynolds.    Specifically, Appellant argues that RB’s

testimony was not probative of Appellant’s mistake of fact

defense “because her allegations constituted completely

different facts and circumstances.”   With regard to the third

prong, Appellant argues that the probative value of RB’s

testimony did not outweigh its prejudicial value.   “[RB]’s

testimony only created a picture of Appellant’s propensity to


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United States v. Barnett Jr., No. 05-0322/MC


engage in inappropriate behavior.    The unfair prejudicial effect

of [RB]’s testimony included that Appellant was obsessive and

possessed uncommon sexual fetishes.”

     In response, the Government argues that the military judge

did not abuse his discretion and that he properly applied the

three-prong test in Reynolds.    The Government further asserts

that, even if the military judge did err, there was no material

prejudice to Appellant’s substantial rights.   In support of this

conclusion, the Government summarizes the evidence in this case,

and reiterates the strength of the Government’s case at trial.

                             DISCUSSION

     “A military judge’s decision to admit or exclude evidence

is reviewed under an abuse of discretion standard.”   United

States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (citing

United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000),

overruled on other grounds by United States v. Inong, 58 M.J.

460, 464 (C.A.A.F. 2003)).   “[A] military judge abuses his

discretion if his findings of fact are clearly erroneous or his

conclusions of law are incorrect.”   United States v. Ayala, 43

M.J. 296, 298 (C.A.A.F. 1995).

     M.R.E. 404(b)2 provides, in relevant part:


2
  Although M.R.E. 413 permits evidence of similar crimes in
sexual assault cases, we do not decide whether the evidence in
this case would have been admissible under M.R.E. 413 for two
reasons. First, M.R.E. 413 was not in effect at the time of


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United States v. Barnett Jr., No. 05-0322/MC


     Evidence of other crimes, wrongs, or acts is not
     admissible to prove the character of a person in order
     to show action in conformity therewith. It may,
     however, be admissible for other purposes, such as
     proof of motive, opportunity, intent, preparation,
     plan, knowledge, identity, or absence of mistake or
     accident . . . .

     As noted, this Court in Reynolds established a three-part

test to determine the admissibility of uncharged misconduct

under M.R.E. 404(b):

     1. Does the evidence reasonably support a finding by
     the court members that appellant committed prior
     crimes, wrongs or acts?

     2. What “fact . . . of consequence” is made “more” or
     “less probable” by the existence of this evidence?

     3. Is the “probative value . . . substantially
     outweighed by the danger of unfair prejudice”?

29 M.J. at 109 (citations omitted).   The evidence at issue must

fulfill all three prongs to be admissible.   Id.   “The first and

second prongs address the logical relevance of the evidence.”

McDonald, 59 M.J. at 429; M.R.E. 401; M.R.E. 402; see also

Huddleston v. United States, 485 U.S. 681, 686-87, 689 (1988).

“The third prong ensures that the evidence is legally, as well

as logically, relevant.”   McDonald, 59 M.J. at 429; M.R.E. 403;

see also Huddleston, 485 U.S. at 687-88.

     Here, as detailed above, trial counsel offered three



Appellant’s court-martial. See United States v. Morrison, 52
M.J. 117, 121 n.4 (C.A.A.F. 1999). Second, Appellant’s
uncharged misconduct does not qualify as sexual assault under
M.R.E. 413.


                              14
United States v. Barnett Jr., No. 05-0322/MC


theories to support admission of the uncharged misconduct

evidence, including intent,3 plan,4 and to rebut Appellant’s

mistake of fact defense.   Despite defense counsel’s objection,

the military judge admitted the evidence as relevant to rebut

Appellant’s claim that the four trainees consented to his

advances.   Specifically, as noted previously, the military judge

stated that RB’s testimony was “relevant in that it shows that

on a prior occasion . . . the accused was informed in what

appear to be very clear terms that his conduct wasn’t welcomed,

and, hence, not consented to under similar circumstances.”

     Resolution of the issue in this case centers around the

second and third prongs of Reynolds.   The first question in this

case is one of logical relevance -- whether the factual

dissimilarities between the offenses charged at trial and the




3
  As noted, trial counsel offered the following explanation when
pressed by the military judge on the theory of intent:

     [C]ertainly we do believe that it impacts on his intent to
     gratify his sexual desire. The acts that [RB] will
     testify, the statements that he made, the repeated nature
     of the statements, the complete ignorance of [his]
     comments, please stop, leave me alone, just the complete
     roll over and you’ll see how that and what has happened in
     the instance with these four victims, how that segues and
     we’ll be able to show the members the intent of the accused
     here.
4
  As noted, trial counsel offered the following explanation on
the theory of plan: “[A]nd third to show the accused’s plan, if
you will, to sexually harass, dominate and touch subordinate
females that he’s able to separate from the pack . . . .”


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United States v. Barnett Jr., No. 05-0322/MC


prior uncharged misconduct were so great such that the military

judge abused his discretion when he allowed RB to testify.    The

second question in this case, assuming the prior uncharged

misconduct was logically relevant, is one of legal relevance --

whether any unfair prejudice created by the evidence outweighed

its probative value.   We address these two questions in turn.

                         Logical relevance

     The military judge’s ruling to admit the evidence was

premised on two related implicit findings, first, that because

RB did not consent to his actions, Appellant should have known

that the four trainees also did not consent, and, second, that

Appellant should have known because the circumstances were

similar in nature.

     With regard to the first implicit finding, consent, as a

legal matter, and in the context of adult relations, is a fact-

specific inquiry that must be made on a case-by-case basis.   See

United States v. Hibbard, 58 M.J. 71, 75-76 (C.A.A.F. 2003); see

Manual for Courts-Martial, United States pt. IV, para.

45.b.(1)(b) (2005 ed.) (MCM).    In this case, the facts are such

that consent, or lack thereof, cannot be determined with

reference to the prior uncharged misconduct.   With RB, Appellant

engaged in escalating verbal harassment of a coworker, resulting

in RB explicitly telling Appellant to stop calling her and to

stop making inappropriate comments.   By contrast, with the four


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United States v. Barnett Jr., No. 05-0322/MC


trainees, Appellant engaged in largely continuous physical

harassment of subordinates in a teaching environment where he

was never explicitly told to stop.   Regardless of whether

Appellant should have known that his advances toward subordinate

female trainees were inappropriate, RB’s requests that Appellant

stop calling her and stop making sexual comments does not show

that Appellant could not have mistakenly believed that any of

the four trainees consented to his later actions.

     With regard to the second implicit finding, there are

significant factual differences between the circumstances RB

described and those the four trainees described, aside from

those noted above.   In Morrison, this Court conducted a six-part

analysis of prior uncharged misconduct to determine

admissibility under M.R.E. 404(b) where the accused was charged

with multiple specifications of child molestation.    52 M.J. at

122-23.   Citing United States v. Munoz, 32 M.J. 359, 363 (C.M.A.

1991), this Court identified the following as relevant to its

analysis:   (1) the “[r]elationship between victims and

appellant”; (2) the “[a]ges of the victims”; (3) the “[n]ature

of the acts”; (4) the “[s]itus of the acts”; (5) the

“[c]ircumstances of the acts”; and (6) the “[t]ime span.”       Id.

All but the second criterion is relevant to this case.     We

examine these criteria in turn.

     Relationship between the victims and appellant:      Unlike the


                              17
United States v. Barnett Jr., No. 05-0322/MC


four trainees, who were students under Appellant’s supervision,

RB testified that she had only an administrative relationship

with Appellant in which she was not subject to his supervision.

     Nature of the acts:     RB testified that the only physical

contact she had with Appellant was when he rubbed his arm

against hers while they were both seated at the computer in his

office.   By contrast, three of the four trainees testified to

repeated overt sexual acts that included kissing and fondling.

The fourth trainee testified that Appellant mentioned wanting to

kiss her during class one morning and also attempted to tickle

her on another occasion.

     Situs of the acts:     RB testified that Appellant made

inappropriate comments toward her over the telephone and also

in-person when he would stop by her office.     The one incident of

touching occurred in Appellant’s office.     By contrast,

Appellant’s statements to the four trainees were always in-

person.   Furthermore, Appellant’s comments and actions did not

occur in an office setting, but rather, in the context of his

teaching duties, in a tank, for example, or in a classroom.

     Circumstances of the acts:      In this case, as in Morrison,

there is no common theme.    52 M.J. at 123.   While there are

multiple, notable similarities between the circumstances of

Appellant’s acts towards the four trainees, as compared to the

circumstances of Appellant’s largely verbal conduct toward RB,


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United States v. Barnett Jr., No. 05-0322/MC


the similarities are few.

        Time span:   The charges against Appellant stem from

incidents occurring in late October 1997 through early November

1997.    By contrast, RB testified that her encounters with

Appellant were from April 1994 until August of 1994.

        In sum, the evidence of Appellant’s prior uncharged

misconduct with RB had only marginal logical relevance to the

present charged conduct.     Despite trial counsel’s arguments to

the contrary, RB’s explicit instructions to Appellant to stop

are not probative of whether Appellant reasonably could have

mistaken the four trainees’ silence as consent.     Furthermore,

the evidence is only marginally relevant under either of the

other two theories trial counsel offered -- intent and plan.

During trial counsel’s lengthy proffer to the military judge, he

argued that RB’s testimony would be probative of Appellant’s

“predatory intent” and also “to show the accused’s plan . . . to

sexually harass, dominate and touch subordinate females that

he[] [was] able to separate from the pack . . . .”     However,

both of these alternative bases for admissibility are weak.       As

in Morrison, “[t]he charged acts were so overtly sexual that

motive and intent were not in issue.”     52 M.J. at 123.   In

addition, Appellant’s actions toward RB, and the context in

which they occurred, do not tend to show a common plan.        RB was

not a subordinate female to Appellant in the same way that the


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United States v. Barnett Jr., No. 05-0322/MC


trainees were.   As noted, Appellant and RB had a purely

administrative, as opposed to an instructive, relationship.    In

addition, there was no “pack” from which Appellant could

separate RB.

                          Legal relevance

     Even assuming the evidence of Appellant’s prior uncharged

misconduct was logically relevant, to be admissible, it must

still pass the test of legal relevance under the third prong of

Reynolds.   Recently, in United States v. Berry, this Court

outlined the following criteria for testing legal relevance:

     In conducting the M.R.E. 403 balancing test a military
     judge should consider the following factors: the strength
     of the proof of the prior act; the probative weight of the
     evidence; the potential to present less prejudicial
     evidence; the possible distraction of the fact-finder; the
     time needed to prove the prior conduct; the temporal
     proximity of the prior event; the frequency of the acts;
     the presence of any intervening circumstances; and the
     relationship between the parties.

61 M.J. 91, 95-96 (C.A.A.F. 2005) (citing United States v.

Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)).

     In his ruling on the defense motion, the military judge did

not conduct the balancing inquiry under M.R.E. 403 on the

record.   See id. at 96 (“Where the military judge is required to

do a balancing test under M.R.E. 403 and does not sufficiently

articulate his balancing on the record, his evidentiary ruling

will receive less deference from this court.”).   Instead, the

military judge stated the following:   “I’m convinced that with


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United States v. Barnett Jr., No. 05-0322/MC


that instruction being provided to the members both now and

during -- or prior to their deliberations that the probative

value of this evidence is not substantially outweighed by its

prejudicial impact.”

     As defense counsel argued at trial, RB’s testimony carried

a “substantial risk of unfair prejudice” to Appellant including

“confusion of the issues, and a great propensity to mislead.”

Both of these statements are true.   The issue in this case was

whether the four trainees consented to Appellant’s actions.

RB’s testimony was, at best, marginally probative on this point.

Furthermore, in order to challenge RB’s credibility, the defense

called various witnesses to rebut her claims and also to refute

what she claimed reporting at the time of the incident.    Just as

importantly, RB’s testimony raised the specter of unfair

prejudice in two ways.   First, RB’s testimony portrayed

Appellant to the members as not just a noncommissioned officer

who abused his authority over trainees, but as a sergeant who

made advances toward the Marine wife of another Marine.    Second,

some of Appellant’s comments included racial overtones.    RB

testified that a “few times” Appellant told her that “he wanted

to know what it was like to have sex with a white pregnant

woman.”

     In light of the marginal relevance of RB’s testimony, we

conclude that the danger of unfair prejudice from these aspects


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United States v. Barnett Jr., No. 05-0322/MC


of RB’s testimony substantially outweighed the probative value

of the evidence.   In this context, the military judge’s limiting

instruction could not eliminate the unfair prejudice created by

RB’s testimony in light of its low probative value coupled with

the nature of the prejudice.    Cf. United States v. Owens, 21

M.J. 117, 124 (C.M.A. 1985) (finding a limiting instruction that

restricted members’ consideration to an issue on which prior act

evidence had “considerable probative value” substantially

reduced evidence’s “prejudicial tendencies”).

     For the above reasons, even assuming the evidence was

logically relevant, the military judge erred when he found that

the danger of unfair prejudice did not substantially outweigh

its probative value.   M.R.E. 403.   Therefore, the evidence in

this case fails to fulfill not only the second, but also the

third prong of Reynolds.

                               Prejudice

     Having determined that the military judge abused his

discretion, we must now determine whether this error resulted in

material prejudice to Appellant’s substantial rights.   Article

59(a), UCMJ, 10 U.S.C. § 859(a) (2000).    “We evaluate prejudice

from an erroneous evidentiary ruling by weighing (1) the

strength of the Government’s case, (2) the strength of the

defense case, (3) the materiality of the evidence in question,

and (4) the quality of the evidence in question.”   United States


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United States v. Barnett Jr., No. 05-0322/MC


v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citing United States

v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)).

     Here, the Government’s case, aside from RB’s testimony and

the two-page incident report, was strong.     All four of the

complainants testified and there were similarities between their

respective rendition of events.      There is nothing in the record

to indicate that these four individuals were not credible

witnesses.   The defense, by contrast, did not present a

compelling case.   The crux of Appellant’s defense was that he

reasonably believed that the four trainees consented to his

actions.   However, all four denied that the encounters were

consensual and each recounted some type of nonverbal

manifestation of their unwillingness to be touched by Appellant.5

Finally, the evidence involving RB, even if relevant, was of

marginal importance given the difference in contexts.     As stated

above, the events involving RB happened almost three years

earlier.   In addition, the defense brought in two witnesses to

rebut RB’s version of events.    For these reasons, we hold that

the erroneous admission of RB’s testimony was harmless error.



5
  PVT SD testified that she pulled her legs together when
Appellant touched her legs and pubic area and pushed his hand
away when Appellant rubbed her breast. PFC BL testified that
she elbowed Appellant out of the way when he tried to tickle
her. PFC LT testified that she pushed Appellant away twice when
he kissed her. PVT SK testified that she pulled away when
Appellant kissed her.


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United States v. Barnett Jr., No. 05-0322/MC


                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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