

   
   
   
   U.S. v. Kerr



IN THE CASE OF
UNITED STATES, Appellee
v.
Raymond D. KERR, Lieutenant Colonel
U.S. Air Force, Appellant
 
No. 98-0359
Crim. App. No. 32249
 
United States Court of Appeals for the Armed
Forces
Argued June 3, 1999
Decided September 3, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and EFFRON, JJ., joined.

Counsel
For Appellant: Allison Ruttenberg (argued);
Colonel Douglas H. Kohrt and Major Kevin P. Koehler.
For Appellee: Major Steven B. Thompson
(argued); Colonel Anthony P. Dattilo, Major Ronald A. Rodgers,
and Captain Steven D. Dubriske (on brief); Lieutenant Colonel
Michael J. Breslin.
Military Judge: J. Jeremiah Mahoney


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of members
convicted appellant, contrary to his pleas, of drunk driving; indecent
assault; and conduct unbecoming an officer by engaging in that conduct,
in violation of Articles 111, 134, and 133, Uniform Code of Military Justice,
10 USC §§ 911, 934, and 933, respectively. The adjudged and approved
sentence provides for a dismissal from the service and confinement for
6 months.
In an unpublished opinion, the Court of Criminal
Appeals dismissed the charge of indecent assault as multiplicious, because
it was included in the conviction of conduct unbecoming an officer. Unpub.
op. at 3. The court also dismissed an allegation of maltreatment from the
specification of conduct unbecoming an officer, id. at 8, but otherwise
affirmed the remaining findings and the sentence, id. at 10.
This Court granted review of the following
issues:


I
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED IN FINDING APPELLANT WAS NOT PREJUDICED BY THE MILITARY JUDGES ERROR
IN ALLOWING THE PROSECUTION TO REBUT DEFENSE EVIDENCE OF APPELLANTS GOOD
MILITARY CHARACTER WITH SPECIFIC ACTS OF PRIOR MISCONDUCT OFFERED SOLELY
TO REBUT THE CHARACTER EVIDENCE.

II
WHETHER THE ADMISSION OF THE EVIDENCE OF THE
SPECIFIC ACTS OF UNCHARGED MISCONDUCT BY THE APPELLANT HAD A PREJUDICIAL
SPILLOVER EFFECT ONTO CHARGE III, SPECIFICATION 1.

III
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED IN FINDING THE APPELLANT SUFFERED NO PREJUDICE DESPITE FINDING THE
ARTICLE 133 AND 134 CHARGES, CITING THE SAME UNDERLYING MISCONDUCT WERE
MULTIPLICIOUS.

In addition, we specified the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ALLOWING
THE PROSECUTION TO REBUT DEFENSE EVIDENCE OF APPELLANTS GOOD MILITARY
CHARACTER WITH SPECIFIC ACTS OF PRIOR MISCONDUCT OFFERED SOLELY TO REBUT
THE CHARACTER EVIDENCE, AND, IF SO, WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED IN FINDING APPELLANT WAS NOT PREJUDICED.

For the reasons set out below, we affirm.

Factual Background
Appellant, an Air Force lieutenant colonel,
commanded the Security Police Squadron at Patrick Air Force Base, Florida.
He was accused of three separate incidents of indecent assaults and conduct
unbecoming an officer. One alleged victim, CJ, was a Staff Sergeant in
the Air Force Reserve and the wife of an enlisted member of appellants
squadron. The second alleged victim was Airman First Class (A1C) PD. The
third alleged victim was a civilian employee. All three alleged victims
were members of appellants command.
Appellant was found not guilty of misconduct
with PD and the civilian employee. The issues in this appeal involve the
charges pertaining to appellants conduct with CJ.
CJ testified that she was performing active
duty with the Military Personnel Flight on May 5, 1995. She and A1C PD
worked in the same office but had not previously socialized. CJ and PD
participated in the base sports day activities.
The facts on which the court below based its
harmless-error analysis were recited in the unpublished opinion of the
court below as follows:



During a base sports day, [appellant] talked
to CJ, the wife of an airman assigned to his squadron, and placed a baseball
cap on her infant sons head. CJs husband, Airman J, had been TDY [on
temporary duty away from the base] for almost four months. CJ left the
event with her son and the baseball cap. A short time later, appellant
called her and said he was coming over. CJ told him not to come over because
the house was a mess, but he insisted. Because she was uneasy, she called
PD, the wife of another airman in the squadron. Appellant and PD arrived
at about the same time. Appellant entered the house first and went immediately
to the bathroom. On three different occasions CJ went to the bathroom in
an effort to persuade appellant to leave. In each case appellant refused
to leave. He hugged and kissed her, and fondled her breasts and vagina.
CJ testified that she was afraid to resist because he was her husbands
commander. Initially, she did not leave her house because she hoped he
would go and her infant son was sleeping in another room. Eventually, PDs
husband arrived and the security police were called. A subsequent blood
test, approximately five hours after the incident, revealed a blood alcohol
level of .092. Scientific testing also revealed the presence of saliva
on CJs breast.



Unpub. op. at 2.
The prosecution relied on the CJs testimony
to prove the indecent assault and conduct unbecoming an officer. PD circumstantially
corroborated CJs testimony. She saw appellant at CJs house. She described
CJ as having a "really puzzled look on her face" after CJs first attempt
to persuade appellant to come out of the bathroom and leave her house.
After CJ returned from trying again to persuade appellant to leave, PD
observed her crying, "very upset," with her shirt "all bunched up here
and bunched up there" and her pants unbuttoned. PD summoned her husband,
JD, who came to the house and observed CJ outside the house with PD. CJ
was crying and saying that appellant "tried to take her pants off."
JD testified that CJ's face was red, she was
"very hysterical," her shirt was pulled out, and the top buttons of her
pants were unbuttoned. JD testified that the front door was locked from
the inside, and he saw appellant running around inside, trying to hide.
JD unlocked the front door, entered the house, and confronted appellant.
JD testified that when he told appellant he was "just going to call the
cops," appellant told him, "We can handle this ourselves, why dont you
go get [CJ] and [PD]?" JD testified that appellant told him that "hes
going to look dirty even though he isnt," and he wanted to keep it between
them. JD testified, "Thats when the conversation stopped and I went and
called the cops."
The defense theory was that appellant went
to CJs house to retrieve his baseball cap, that CJ flirted with appellant
and initiated the physical touching, and that she and PD contrived the
accusation in order to get money from appellant. The flirting theory was
based on CJs admission that she put her arm around appellants waist at
the sports day activities after he put his arm around her shoulder. The
asserted financial motive was based on CJs testimony that she called her
father after the incident, that her father was angry, and that her father
suggested a civil lawsuit.
With respect to the drunk-driving charge, the
defense disputed the accuracy of the methodology in computing appellants
blood-alcohol level and produced witnesses who testified that appellant
did not appear intoxicated.
Appellant did not testify on the merits. The
defense relied on witnesses to dispute PDs and the civilian employees
allegations, and produced substantial evidence of appellants good military
character. No witnesses directly contradicted CJs testimony.
As summarized by the court below, the documents
offered by the defense "consisted of 87 character statements, 28 officer
performance evaluations, 5 medal citations, a biography, 2 promotion recommendations,
a listing of individual and unit awards received by appellants current
unit, and other items." Unpub. op. at 3. The defense argued, "The military
judge will tell you that this good military character may in and of itself
be sufficient to cause reasonable doubt." Defense counsel urged the court
members: "This man is a great commander. Dont let these baseless allegations
change that."
Granted Issue I and the Specified Issue arose
because of evidence presented by the prosecution to rebut appellants evidence
of good military character. SD testified that she and appellant, both knowing
that the other was married, began a sexual relationship in June of 1992,
slightly less than 3 years before the charged offenses, which were alleged
to have occurred in May of 1995. She worked at Kirtland Air Force Base,
New Mexico, where appellant was assigned at the time. She testified that
she called appellant and jokingly asked him if he intended to tell her
goodbye before she went on vacation. She testified that appellant came
up to her work area to say goodbye. She testified:



We hugged and we kind of gave each other
a friendly hug in the office and walked towards the door and kind of stopped
in the doorway and were facing each other and gave each other another hug.
And the next thing I knew we were kissing and then we went back in my office
and had sexual intercourse.



She testified that appellant initiated that sexual
encounter.
SD also testified that at a Christmas party
in December of 1992, appellant asked her if she "wanted to have an affair."
Although she laughed and told him "he had to be kidding," they started
an "affair" in January of 1993. SD testified, "It was mostly petting, heavy
petting and necking and masturbation and oral sex." These activities took
place in SDs office and in parked cars during the lunch hour. The "affair"
lasted 5 or 6 months. It ended because appellant was reassigned and SD
"got tired of it." SD testified that appellant returned to Kirtland AFB
on temporary duty (TDY), and they again had sexual intercourse in her office.
On cross-examination, SD admitted that she
"characterized" her sexual relationship with appellant as "rape" and "non-consensual."
She admitted that, even though she considered the June 1992 event "rape,"
she didnt call out or file a complaint; that she removed her nylons, with
appellants help, before having sexual intercourse with him; and that she
danced with him at the Christmas party in December 1992 even though he
had "raped" her.
SD also testified that part of her reason for
agreeing to the "affair" was to get revenge on appellant. Her revenge was
to make him pay for lunch.
Finally, SD admitted that around June of 1992
she was seeing a mental health therapist and that she lied to the therapist
about her "relationships with men."
The testimony of SD was admitted over defense
objection. Defense counsel conceded that SDs testimony "might meet a [Mil.
R. Evid.] 401 relevancy" test, but that it would not be admissible under
Mil. R. Evid. 403, Manual for Court-Martial, United States (1995 edition)1.
The military judge permitted the testimony.
He explained his ruling as follows:



Well, I would very much like for this court
to focus on the charges before the court; and that is my objective. On
the other hand, you have, as you were permitted to do under the rules,
introduced evidence of 22 years of military good character. The prosecution
is entitled to rebut that. This evidence would not have been admissible
on the merits of this case. If I applied the balancing test, if this were
offered strictly as [Mil. R. Evid.] 404b evidence, I would have ruled it
out, applying the balancing test. But in the face of the military good
character evidence, the balance of the scales tips in the opposite direction.
Im going to admit the testimony of the witness.



Trial counsel specifically referred to SDs testimony
in his rebuttal argument on the merits. He argued:



The defense presented to you a lot of good
military character evidence, thats true. But Id ask you to think real
carefully and real closely, is it a good military officer that also engages
in extramarital affairs? Some may think that it was a cheap shot, us bringing
in [SD], and talking to you about the extramarital affair that she had
with this accused at Kirtland Air Force Base. The purpose was to show that
these people who wrote these letters dont really know that accused. They
know an individual that was a good commander. That we cant take away the
fact that he helped his people and that he was a good officer, at least
some of the time. But they dont know this man. They dont know the true
Colonel Kerr. And thats why we brought in [SD], so that you members of
the court would know the true Colonel Kerr. Not the good military character
Colonel Kerr, but the true Colonel Kerr that also engages in extramarital
affairs.



Before the court members began deliberations on
findings, the military judge gave the following limiting instruction regarding
SDs testimony:



[SD]s testimony about the accuseds relationship
with her is to be considered only for a limited purpose. Specifically,
it was offered in rebuttal to the defense evidence concerning the accuseds
military character. Even if you find those events testified to by [SD]
occurred, you may consider them solely for their value, if any, in evaluating
the accuseds military character. You may not infer from the testimony
of [SD] that it is likely that the accused committed any of the offenses
charged in this case.



On sentencing, the military judge instructed the
members to arrive at an appropriate sentence "with due regard for the nature
of the offenses, the background of the accused, and all other evidence
presented here in court." He also instructed them to punish appellant "only
for the offenses of which he ha[d] been found guilty."

Discussion
Issues I and II: Harmless Error
Before the court below and this Court, appellant
has asserted that the military judge erred by permitting the prosecution
to rebut the defense evidence of good character with extrinsic evidence
of specific instances of misconduct. See United States v. Pruitt,
46 MJ 148, 151 (1997). The court below found that the military judge erred,
but that the error was harmless. Issues I and II challenge the lower courts
harmless-error analysis.
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. See United States
v. Weeks, 20 MJ 22, 25 (CMA 1985). We apply the same four-pronged test
for erroneous admission of government evidence as for erroneous exclusion
of defense evidence. See United States v. Giambra, 38 MJ
240, 242 (CMA 1993); United States v. Banks, 36 MJ 150, 170 (CMA
1992).
Applying this four-pronged analysis, we hold
that the court below did not err by holding that admission of extrinsic
evidence of misconduct was harmless error. See Pruitt, 46
MJ at 151. The Governments evidence of appellants misconduct with CJ
was strong. The testimony of PD, JD, and the scientific evidence of saliva
on her breast corroborated her testimony. The defense presented no evidence
to directly contradict her, relying instead on suggestion and insinuation,
and an asserted financial motive that was unsupported by any direct evidence.
The defense suggestion that CJ initiated the sexual activity was contradicted
by the evidence that she arranged to have PD present in her house while
appellant was there.
SDs testimony was material. It directly contradicted
appellants evidence of good military character and attacked the major
thrust of his defense.
The quality of the evidence was graphic, but
some of it was of questionable credibility. Although no evidence contradicted
SDs testimony that she and appellant had a 6-month affair, the credibility
of SDs assertion that she was "raped" was undermined by her admission
that she continued the "affair" for 6 months, and again had sexual intercourse
with appellant in her office when he returned to the base on TDY.
One additional factor is relevant in this case.
Any error in admitting the evidence did not involve the subject matter,
but rather the form in which it was presented. It would have been permissible
for SD to testify that, in her opinion, appellant was a deceitful, self-centered
womanizer, so long as she did not describe specific acts. The defense would
then have had to make the tactical choice of letting her opinion stand
unchallenged or to explore the factual basis for it. See Mil. R.
Evid. 405(a).
Appellant also argues that he was prejudiced
by the spillover effect of SDs testimony. He argues that the military
judges limiting instruction could not cure the spillover effect, because
SDs allegations were so similar to the charged offenses. See United
States v. Palacios, 37 MJ 366, 368 (CMA 1993).
In United States v. Southworth, 50 MJ
74, 76-78 (1999), and United States v. Curtis, 44 MJ 106, 128 (1996),
revd as to sentence on recon., 46 MJ 129 (1997), we applied a three-pronged
test to assess the danger of spillover:



(1) whether the evidence of one offense would
be admissible proof of the other;
(2) whether the military judge has provided
a proper limiting instruction; and
(3) whether the findings reflect an impermissible
crossover.



50 MJ at 76. Both Southworth and Curtis
involved issues of improper joinder, but we consider the same analysis
useful in evaluating the danger of spillover from evidence of uncharged
acts.
Applying this three-pronged test, we hold that
appellant was not prejudiced by any possible spillover effect from SDs
testimony. Applying the first prong, we note that the conduct described
by SD was sexual but dissimilar in many respects from the conduct described
by CJ. The military judge stated that he would not have admitted it under
Mil. R. Evid. 404(b).
Even though SD testified that her relationship
with appellant was nonconsensual, what she described was a 6-month mutual
"affair." On the other hand, CJ described a sexual assault. SDs relationship
with appellant was too dissimilar and too removed in time to show "motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident" under Mil. R. Evid. 404(b).2
SDs testimony did not portray appellant as
a sexual predator. Instead, she portrayed him as deceitful and self-centered.
The thrust of her testimony was to rebut the defense of good character.
SDs testimony did not suggest that appellant indiscriminately assaulted
women in his command. She suggested only that appellant cheated on his
wife and used her for his pleasure.
Turning to the second prong, the record reflects
a carefully crafted and detailed limiting instruction. The limited purpose
of SDs testimony was clearly defined by the military judge:
"rebuttal to the defense evidence concerning
the accuseds military character." ___ MJ at (9).
Turning to the third prong, the record negates
any reasonable possibility of spillover. Appellant was convicted of only
one of the three specifications of indecent assault. The two other specifications
alleged similar sexual misconduct with an enlisted woman and a female civilian
employee, but the court members found appellant not guilty of them.
On the basis of the entire record, we conclude
that appellant was not prejudiced by any error in admission of SDs testimony.

Issue III: Multiplicity
The court below considered the impact of dismissing
one of the two multiplicious offenses and concluded that "the members sentenced
appellant for his misconduct and not the number of allegations on the charge
sheet. Unpub. op. at 3. In this case it was obvious, from the virtually
identical specifications, that both specifications alleged the same act.
In our view, the court below did not abuse its discretion in determining
that appellants sentence, whether for one specification or two, would
have included at least a dismissal and the short period of confinement
adjudged. See United States v. Hawes, 51 MJ 258 (1999).

Specified Issue: Rebuttal Evidence
In light of our holding that any error in admission
of SDs testimony was harmless, we need not address the merits of this
issue.

Decision
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 All Manual provisions
are cited to the version applicable at trial. The 1998 version is unchanged,
unless otherwise indicated.
2
Mil. R. Evid. 413 took effect on June 26, 1998. See Manual for Courts-Martial,
United States (1998 edition) at A25-52. We do not decide whether SDs testimony
would have been admissible if Mil. R. Evid. 413 had been in effect at the
time of appellants court-martial. We note, however, that SD described
consensual sexual conduct, not a sexual assault, even though she insisted
that it was nonconsensual.

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