                         UNITED STATES, Appellee

                                         v.

               Ernest D. GOODIN Jr., Staff Sergeant
                     U.S. Air Force, Appellant

                                  No. 08-0355
                           Crim. App. No. 36266

       United States Court of Appeals for the Armed Forces

                        Argued November 17, 2008

                        Decided January 21, 2009

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


                                     Counsel


For Appellant: Captain Michael A. Burnat (argued); Major
Shannon A. Bennett and Captain Anthony D. Ortiz (on brief).


For Appellee: Major Brendon K. Tukey (argued); Colonel Gerald
R. Bruce and Major Jeremy S. Weber (on brief).



Military Judge:    Kevin P. Koehler




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Goodin, No. 08-0355/AF


        Chief Judge EFFRON delivered the opinion of the Court.

        Appellant was charged with three violations of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000):

(1) possession of visual depictions of minors engaging in

sexually explicit conduct; (2) committing an indecent act upon

his eleven-year-old stepdaughter while his wife was out of town;

(3) and committing an indecent act of a sexual nature with his

wife.    A general court-martial consisting of a military judge

sitting alone convicted Appellant, contrary to his pleas, of the

specifications charging commission of an indecent act upon his

stepdaughter and possession of child pornography.       The court-

martial found Appellant not guilty of committing an indecent act

with his wife.    The sentence adjudged by the court-martial

included a dishonorable discharge, confinement for forty-eight

months, and reduction to E-1.     The convening authority approved

the sentence, and the United States Air Force Court of Criminal

Appeals affirmed.    United States v. Goodin, No. ACM 36266, 2007

CCA LEXIS 550, 2007 WL 4459150 (A.F. Ct. Crim. App. Dec. 19,

2007) (unpublished).

        On Appellant’s petition, we granted review of the following

issue:

        WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
        EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS
        WITH HIS WIFE.

For the reasons set forth below, we affirm.


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                            I.   BACKGROUND

     Prior to trial on the merits, Appellant filed a motion in

limine asking the military judge to restrict the type of

evidence that could be offered by the Government regarding

Appellant’s sexual activities with his wife.      The motion did not

seek to exclude evidence of the charged indecent act with

Appellant’s wife, but argued that evidence of Appellant’s other

sexual activities with her was inadmissible on the grounds that

such evidence was more prejudicial than probative in violation

of Military Rule of Evidence (M.R.E.) 403.      Appellant did not

ask the military judge to exclude the evidence on the grounds

that the evidence was subject to the marital privilege under

M.R.E. 504, or that admission of the evidence would otherwise

implicate constitutionally protected marital activities.

     The military judge informed the parties that he would defer

ruling on Appellant’s motion because it was not yet apparent

what specific evidence the Government would attempt to admit.

He further advised defense counsel that counsel could object to

any particular item of evidence at the time the Government

offered it for admission.

     During the Government’s case in chief, Appellant’s wife

testified without objection to the circumstances of the charged

indecent act in which she was involved.       The military judge

sustained Appellant’s objection when the Government asked


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Appellant’s wife whether Appellant ever performed the generic

sexual act with her that he was charged with committing upon his

stepdaughter.

        Over defense objection, the military judge permitted

Appellant’s wife to testify as to the following matters:       that

Appellant desired multiple sexual acts on a daily basis; that

Appellant indicated to her that he was attracted to young girls;

that she saw Appellant with pornographic magazines which,

although not containing child pornography, featured women who

were “not very developed”; that Appellant told her he needed

visual stimulation for sexual satisfaction; that she and

Appellant had videotaped their sexual activities to assist

Appellant in self-gratification; and that Appellant told her he

was concerned that he would not be able to satisfy himself

sexually if she took the video recorder when she went out of

town.

        Appellant contended that the foregoing testimony was either

not relevant under M.R.E. 401 or that it involved impermissible

propensity evidence under M.R.E. 404(b).    M.R.E. 401 provides

that relevant evidence “means evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.”     M.R.E. 404(b) excludes

“[e]vidence of other crimes, wrongs, or acts” offered solely “to


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prove the character of a person in order to show action in

conformity therewith.”    Such evidence may still be introduced

under M.R.E. 404(b) if it is offered for another purpose, such

as “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

     In response to Appellant’s objections, the Government

maintained that the evidence was relevant and admissible to show

Appellant’s motive and intent in support of the theory that

Appellant turned to his stepdaughter to fulfill his sexual

desires while his wife was out of town.       The military judge

admitted the testimony.

     After considering the balance of the evidence offered by

the prosecution and the defense, as well as the arguments of

counsel, the military judge convicted Appellant of possessing

child pornography and committing an indecent act with his

stepdaughter.   The military judge acquitted Appellant of

committing an indecent act with his wife.      On appeal, Appellant

asserts that the military judge erred in admitting the testimony

over his objection and that the error was prejudicial.



                           II.   DISCUSSION

     We review a military judge’s decision to admit evidence for

an abuse of discretion.   United States v. Thompson, 63 M.J. 228,

230 (C.A.A.F. 2006).   In the event of an erroneous admission of


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evidence, we evaluate claims of prejudice by weighing four

factors:    “(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.   We apply the same four-pronged test for erroneous

admission of government evidence as for erroneous exclusion of

defense evidence.”   United States v. Kerr, 51 M.J. 401, 405

(C.A.A.F. 1999) (citations omitted); see also Article 59(a),

UCMJ, 10 U.S.C. § 859(a) (2000) (“A finding or sentence of a

court-martial may not be held incorrect on the ground of an

error of law unless the error materially prejudices the

substantial rights of the accused.”).

     In the present case, we need not determine whether the

admission of any of the testimony at issue constituted error.

Even if the testimony was admitted in error, a matter that we do

not decide in the present case, the impact of the testimony was

harmless under the four-part test for prejudice set forth in

Kerr.

     With respect to the first and second factors, the strength

of the parties’ cases, we note that the Government presented

substantial evidence in support of its prosecution of Appellant.

The Government introduced ninety-five images of child

pornography found on Appellant’s computer.   Fifty-seven of these

images were of known children in the National Center for Missing


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and Exploited Children’s database, and two were of known

children in the FBI database.   Ten pages of child pornography

websites that Appellant actually visited also were admitted into

evidence.   The Office of Special Investigations (OSI) computer

forensics examiner who recovered the child pornography files

from Appellant’s computer testified as to how she recovered

those files.   Appellant’s stepdaughter testified concerning the

indecent act Appellant performed with her, and two DVDs of

interviews she had with OSI investigators were admitted into

evidence.   The Government also produced a forensic psychiatrist

who testified as to the likelihood that the alleged incident

occurred.

     The defense case, on the other hand, was not particularly

strong.   Appellant’s defense strategy consisted primarily of

counsel’s cross-examination of the Government’s witnesses, yet

counsel was unable to identify any significant contradictions or

gaps in the witnesses’ testimony.    The sole defense witness,

Appellant’s wife, also served as a Government witness.    She

testified that, during the course of the OSI investigation, her

daughter recanted the accusation against Appellant when

confronted with the possibility of having to take a polygraph

examination herself.   Appellant’s wife also explained her

daughter’s possible motivation for fabricating the indecent act.

The Government, however, was able to rehabilitate the


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stepdaughter’s credibility through its cross-examination of

Appellant’s wife and the testimony of its forensic psychiatrist.

     With respect to the third factor, the materiality of the

admitted evidence, the wife’s testimony provided the foundation

for the Government’s theory that Appellant would commit an

indecent act with his stepdaughter because of his particular

sexual needs.   The quality of the testimony, the final factor in

the Kerr analysis, was adequate to support the truth of the

matters stated.   Appellant’s wife was the only person involved

in this case, other than Appellant, who had insight into

Appellant’s sexual interests.

     After consideration of each of the four Kerr factors --

particularly the strength of the Government’s case and the

marginal nature of the defense case –- we find it unlikely that

the wife’s disputed testimony substantially influenced the

factfinder.   Even if the testimony was admitted in error, a

matter that we do not decide in the present case, any such error

was harmless and did not materially prejudice the substantial

rights of Appellant.   See Article 59(a), UCMJ.



                          III.   DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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