

   
   
   
   U.S. v. Morrison



IN THE CASE OF
UNITED STATES, Appellee
v.
Thomas D. MORRISON, Master Sergeant
U.S. Army, Appellant
 
No. 98-0617
Crim. App. No. 9600461
 
United States Court of Appeals for the Armed
Forces
Argued January 14, 1999
Decided September 30, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and EFFRON, J., joined. SULLIVAN, J., filed
a dissenting opinion, in which CRAWFORD, J., joined.

Counsel
For Appellant: Captain John C. Einstman
(argued); Colonel John T. Phelps, II, Lieutenant Colonel Adele
H. Odegard, and Major Leslie A. Nepper (on brief); Lieutenant
Colonel Michael L. Walters and Captain Dirk Gifford.
For Appellee: Captain Troy A. Smith
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer, and Major Lyle D. Jentzer (on brief); Captain
Steven H. Levin.
Military Judge: Richard J. Hough
 
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
members convicted appellant, contrary to his pleas, of 1 specification
of assault consummated by battery on a child under the age of 16 years,
and 2 specifications of committing indecent acts, in violation of Articles
128 and 134, Uniform Code of Military Justice, 10 USC §§ 928
and 934, respectively. In accordance with his guilty pleas, appellant also
was convicted of 3 specifications of larceny and 8 specifications of wrongfully
disposing of stolen property, in violation of Articles 121 and 134, UCMJ,
10 USC §§ 921 and 934, respectively. The adjudged and approved
sentence provides for a dishonorable discharge, confinement for 10 years,
total forfeitures, and reduction to the lowest enlisted grade. The Court
of Criminal Appeals affirmed the findings and sentence in an unpublished
opinion.
This Court granted review of four issues, and
we resolve this case on the first granted issue:1

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY ADMITTING HIGHLY INFLAMMATORY TESTIMONY OF UNCHARGED MISCONDUCT FROM
APPELLANTS DAUGHTER REGARDING THE FREQUENT SEXUAL ABUSE IMPOSED BY APPELLANT
OVER AN 8-YEAR PERIOD.

For the reasons set out below, we reverse.

Factual Background
Appellant was charged with committing an indecent
act with MR, the daughter of a family friend, by touching her vagina on
1 occasion between September 1 and November 16, 1994. MR was 9 years old
when she testified in late January of 1996. MR testified that while she
was visiting in appellants home, appellant put his hand inside her underpants
and touched her vagina.
The defense theory was that MR was coached
and influenced by adults to fabricate her accusation against appellant.
The defense established a number of inconsistencies in MRs previous statements.
To support the theory that adults who were biased against appellant influenced
MR, the defense introduced evidence that MRs mother was engaged in a lesbian
relationship with appellants wife until February of 1994. The relationship
terminated when appellants wife declined to leave him and begin living
with MRs mother.
The court members found appellant not guilty
of committing an indecent act with MR, but guilty of the lesser-included
offense of assault consummated by a battery "by touching [MR] in an inappropriate
manner."
Appellant was charged with two specifications
of committing indecent acts with LL, his niece. He was charged with fondling
her thighs and breasts, placing his fingers in her vagina, and "French-kissing"
her. The offenses were alleged to have been committed in January of 1993,
when LL was 14 years old.
LL testified that the offenses happened during
a family gathering at her grandparents house. She, her sister, appellant,
and appellants three daughters all slept on the living room floor, because
there were not enough beds for everyone. The area was "pretty cramped,"
and appellant slept next to LL. LL was wearing a long nightshirt and underwear.
LL testified that, during the night, appellant put his hand on her leg,
moved it up under her nightshirt, and touched her breasts. Then he put
his hand in her underpants and stuck his finger in her vagina. LL testified
that appellant asked her, "Wasnt I glad I took my jeans off?"
LL testified that the next morning, appellant
asked her, "Are you mad at me?" She did not respond. She testified that,
later in the day, while riding in appellants car along with her sister
and appellants daughters, appellant told her "not to let sex control [her]
life."
LL testified further that, when they returned
to the grandparents house, appellant asked her if he could lay on the
floor with her again and if he could orally sodomize her. She testified
that she did not know what he meant, but she said "no."
Finally, LL testified that, after appellant
and her grandfather had been drinking, appellant was drunk and about to
fall on the children. As he fell forward, she held him up with her hands,
and he leaned forward and "French-kissed" her. She did not tell anyone
because she was too embarrassed. She testified that she did not reveal
appellants behavior until she was being treated by a gynecologist for
an infection. The gynecologist asked her if she was sexually active or
had been sexually abused, and at that time she accused appellant of abusing
her. Based on LLs testimony, appellant was convicted of committing indecent
acts with her.
Appellants natural daughter, AM, also testified
that she had been sexually abused by appellant. Appellant was not charged
with any offenses involving AM.
AMs testimony at the Article 322
investigation described numerous acts beginning when she was "around six"
and ending shortly after her 13th birthday. AM testified that
appellant helped her insert her first tampon and taught her how to kiss.
She recalled performing oral sex on appellant "in the german housing bathroom."
She testified that she remembered appellant rubbing his genitals against
hers and his mustache tickling her legs and "other places."
After considering a motion in limine
and reviewing AMs testimony at the Article 32 investigation, the military
judge made the following findings of fact and conclusions of law:

First, the fact finder could find by a preponderance
of the evidence that the alleged misconduct occurred;
Second, the acts alleged in this case are similar
in many respects to those about which [AM] would testify. They tend to
demonstrate an unusual, unnatural sexual fascination by Master Sergeant
Morrison towards young girls. The nature of the acts are similar. They
involve touching, fondling, often in public places: in the instance of
the alleged victim in this case, in a room with other people; in the instance
of [AM], in one instance in a German bath house, all of a public-type nature.
Third, as I said, the nature of the acts are
similar. They involve positions of the accuseds adult authority over young
girls. They involve instances of girls of approximately the same age. Although
[AM]s testimony indicates that it occurred initially when she was 6 years
[old], that it continued until she was 12 or 13 years old, which is the
approximate age of at least one of the victims in this case.
I find that the testimony proffered by the
government of [AM] can be considered by the members of the court for its
limited purpose, if any, to show motive, to show continuing plan or scheme;
that is, to show that Master Sergeant Morrison had an unnatural sexual
desire for young girls near the age of the victims in this case and that
in order to satisfy those sexual desires, he would use his adult authority
over young girls to molest them.
Third, that he had an opportunity or ability
to do that; and
Fourth, for its limited purposes, if any, to
show a lack of mistake.

Finally, the military judge announced that he
had applied "the 403 balancing test" and concluded that the probative value
of AMs testimony was "not substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the members of the court."
AM was 23 years old at the time of trial. She
testified that when she was between 4 and 6 years old, appellant taught
her how to kiss, fondled her vagina, and put his fingers in her vagina.
She testified that he "French kissed" her, and she reciprocated.
AM testified that, when she was 12 years old,
appellant performed oral sex on her and then kissed her and fondled her.
She described another occasion when appellant took her into his bathroom
and told her to perform oral sex on him. She testified that she remembered
the feel of his mustache when he performed oral sex on her, and that he
digitally penetrated her "a lot." She testified that appellant told her
that she was "so tight," that "he would like to be inside [her]", and that
"he was saving her for [her] husband." She testified that appellant then
put her on top of him and rubbed her genital area with his.
AM testified that she grew increasingly uncomfortable
with appellants conduct and that, at some time before her 13th
birthday, she asked him to stop, and he did. However, she also testified
that, when she was 15 or 16 years old, appellant came up behind her while
she was washing dishes and caressed her buttocks. She punched him "right
in the solar plexus," and appellant laughed.
At the conclusion of AMs testimony, the military
judge instructed the members as follows:

This evidence may be considered by you for
a very limited purpose, and its for its limited purpose -- for the limited
purpose of its tendency, if any, to establish some type of an unnatural
fascination by the accused in this case for young girls or to establish
a motive or a plan or a scheme or design. It may also be used for its tendency,
if any, to establish an intent [to gratify his sexual lust or desires].
. . . It may also be used for its tendency, if any, to rebut a defense
of accident on the part of the accused.

Appellant testified in his defense, but limited
his direct testimony to the allegations concerning LL. He testified that
he awakened during the night to find LL pulling on his right arm and hand
and pressing his hand to her chest. He testified that his hand was outside
her nightshirt. He withdrew his hand and whispered to LL, "This isnt right
what youre doing. You need to talk to your mother." LL was 13 or 14 years
old at the time. Appellant testified that, while they were riding in his
car, he told LL words to the effect, "Sex is going to get you in trouble.
You need to, you know, be in more control of yourself." Appellant admitted
drinking homemade wine that evening, but he denied kissing LL.
Appellant testified that he was surprised by
LLs allegations. He testified that after he asked his wife for a divorce,

all this stuff just starts hitting me at
one time. It just was nonstop. And it was allegation after allegation,
and I had to keep going to the battalion commander, company commander almost
every week.

He testified that his wife became "[v]ery hostile"
after he filed for divorce. He testified that "[s]hes threatened to take
everything I have ever cherished."

Discussion
Mil. R. Evid. 404(a), Manual for Courts-Martial,
United States (1995 ed.),3
sets out the general rule: "Evidence of a persons character or a trait
of a persons character is not admissible for the purpose of proving that
the person acted in conformity therewith on a particular occasion." This
Court has consistently stated that evidence of uncharged bad acts may not
be introduced solely to show that an accused has a propensity to commit
crimes of the type charged. See United States v. Miller,
46 MJ 63, 65 (1997); United States v. Castillo, 29 MJ 145, 150 (CMA
1989); United States v. Hicks, 24 MJ 3, 7 (CMA 1987); United
States v. Rappaport, 22 MJ 445, 447 (CMA 1986).
Mil. R. Evid. 404(b) sets out several exceptions
to the prohibition in Mil. R. Evid. 404(a). It allows "[e]vidence of other
crimes, wrongs, or acts" for other purposes, including "proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident."4
In United States v. Reynolds, 29 MJ
105, 109 (CMA 1989), this Court adopted a three-part test for determining
admissibility of evidence offered under Mil. R. Evid. 404(b):

(1) Whether the evidence reasonably supports
a finding by the court members that appellant committed the prior crimes,
wrongs, or acts;
(2) Whether the evidence makes a "fact of consequence"
more or less probable; and
(3) Whether the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice under Mil.
R. Evid. 403.

Proof of the first prong is satisfied if the conduct
is proven by a preponderance of the evidence. See Huddleston
v. United States, 485 U.S. 681, 690 (1988). The first prong is not
at issue in this case. If AMs testimony is believed, the first prong is
satisfied.
Turning to the second prong, the "fact of consequence"
that is made more or less probable by the evidence, trial counsel offered
the evidence to show motive, intent, plan, opportunity or ability, and
lack of mistake. The military judge ruled that the evidence was admissible
to show motive, plan or scheme, ability or opportunity, and lack of mistake.
Government appellate counsel assert that the evidence was also admissible
to prove intent and modus operandi. Modus operandi was not litigated as
a basis of admissibility at the court-martial.
In United States v. Munoz, 32 MJ 359,
363 (CMA 1991), this Court upheld the admission of evidence of uncharged
sexual misconduct to show a plan or scheme, even though there was a 12-year
gap between the uncharged misconduct and the charged misconduct. This Court
noted that "[t]he common factors were the age of the victim, the situs
of the offenses, the circumstances surrounding their commission, and the
fondling nature of the misconduct." Our decision in Munoz was consistent
with our earlier decision in United States v. Brannan, 18 MJ 181,
183 (CMA 1984), where we held that uncharged acts "must be almost identical
to the charged acts" to be admissible as evidence of a plan or scheme.
Cf. United States v. Rappaport, supra (evidence of
"disparate acts" of illicit sex and drug abuse was inadmissible because
it showed propensity, not plan).
Where evidence is offered to show modus operandi,
there must be a "high degree of similarity between the extrinsic offense
and the charged offense." The similarity must be so great that it is "like
a signature marking the offense as the handiwork of the accused." United
States v. Gamble, 27 MJ 298, 305 (CMA 1988) (internal citations omitted).
Where a military judges ruling on admissibility
of evidence includes factfinding, we will not overturn the findings of
fact unless there are clearly erroneous. United States v. Ayala,
43 MJ 296, 298 (1995). Where, as in this case, the military judge determines
that the evidence is admissible under Mil. R. Evid. 404(b) and Mil. R.
Evid. 403, we will not reverse except for a "clear abuse of discretion."
See Miller, 46 MJ at 65.
Our analysis of AMs testimony leads us to
the following conclusions:
Relationship between victims and appellant:
The only common element is that all three victims were young girls. AM
was appellants natural daughter; LL was his niece; MR was unrelated.
Ages of the victims: AM testified that
the abuse started when she was 4-6 years old and continued until she was
13 years old. LL testified that she was 14 years old when the acts occurred.
MR would have been 8 years old when the act occurred. The only common element
is a broad range of ages from 4-14.
Nature of the acts: Appellant was charged
with fondling, "French kissing," and digital penetration of LL, and indecently
touching MR. AM testified to a broad range of sexual acts, ranging from
kissing and fondling to cunnilingus and fellatio. AM and LL both accused
appellant of "French kissing" them, but AM described a private act in her
home and LL described a drunken, public act.
Situs of the acts: AM described conduct
in the privacy of her home. LL described public conduct outside the home.
MR described conduct in appellants home with other children nearby. In
this regard, the military judges finding of fact that all the charged
and uncharged acts were "public" was clearly erroneous. AMs testimony
was that the fellatio occurred in the private bathroom of her home, not
a public German bathhouse as found by the military judge.
Circumstances of the acts: There is
no common theme. AM testified that the kissing and fondling occurred in
the family home, and the acts of sodomy occurred in the privacy of a bedroom
or bathroom. The alleged acts with LL occurred while several children and
adults were sleeping together in a living room. MR described the alleged
touching as occurring in a bedroom while other children were in the house
but in another room.
Time span: AM testified that the acts
stopped about 10 years before the trial, 8 years before the acts described
by LL. While this time gap is not fatal to admissibility, it lessens the
probative value to show a plan or scheme. This case is different from Munoz,
where the incidents, even though 12 years apart, both involved the same
kinds of acts committed in the family home by the accused with his two
daughters, and where the daughters were approximately the same age when
they were victimized by their father.
We conclude that the acts described by AM are
not sufficiently similar to the charged acts to show plan or scheme. Likewise,
they do not have the high degree of similarity required to show modus
operandi. All that the record shows is disparate sexual acts with young
girls of varying ages under various circumstances.
Because we reject the Governments argument
that the evidence was admissible to show modus operandi, we need
not decide whether sustaining the military judges ruling on the basis
of modus operandi would violate due process, since that theory was
not litigated at trial. See United States v. Riley, 50 MJ
410, 416 (1999).
Turning to the other bases for admissibility
asserted by the Government and relied on by the military judge, we conclude
that the evidence had some tendency to show motive and intent, but these
issues were not contested. The charged acts were so overtly sexual that
motive and intent were not in issue. The issue was whether the acts happened.
Thus, the probative value of the evidence was minimal on the issues of
motive and intent. The military judge found that the acts showed appellants
"unnatural sexual desire for young girls." What the military judge found
was propensity evidence, i.e., that appellant had tendencies toward
pedophilia.
Likewise, ability and opportunity were not
in issue. There was no question that appellant had the opportunity and
ability to commit the acts. He readily admitted it.
Lack of mistake was not in issue. Appellant
did not assert mistake or accident. With respect to LLs allegation, appellant
admitted that he awakened with his arm around LL, but he asserted that
LL initiated the act.
Assuming without deciding that the minimal
probative value of AMs testimony on the issue of intent is sufficient
to satisfy the second prong of Reynolds, we hold that it fails the
third prong because the prejudicial impact of AMs testimony outweighed
its probative value. The offenses described by AM were far more serious
than the charged offenses. AM was appellants natural daughter. LL was
appellants niece, a much more distant relative. Appellant and MR were
unrelated. LL and MR described isolated incidents. AM described
an incestuous, long-term pattern of fondling, kissing, digital penetration,
cunnilingus, and fellatio -- virtually every sexual act except vaginal
intercourse. Notwithstanding the deference we give a military judge on
balancing under Mil. R. Evid. 403, we hold that the military judge clearly
abused his discretion.

Decision
The decision of the United States Army Court
of Criminal Appeals is reversed with respect to the findings of guilty
of the Charge and its specifications and the sentence. It is affirmed with
respect to the remaining findings of guilty. The case is returned to the
Judge Advocate General of the Army for remand to the Court of Criminal
Appeals. That court may either dismiss the Charge and its specifications
and reassess the sentence on the basis of the remaining findings of guilty;
or it may authorize a rehearing.
FOOTNOTES:
1 The other granted
issues are as follows:

WHETHER THE MILITARY JUDGE
ABUSED HIS DISCRETION BY PROHIBITING APPELLANT FROM PRESENTING ONE OF HIS
FEW VIABLE DEFENSES TO THE PANEL: THAT THERE EXISTED TWO POSSIBLE SOURCES
OF THE SEXUAL ABUSE OF LL, HIMSELF AND HIS FATHER, AND THAT LLS ALLEGATIONS
ARE NOT INCONSISTENT WITH ACTUAL ABUSE FROM ONLY ONE OF THE TWO RELATIVES.
WHETHER THE MILITARY JUDGE ERRED
BY DENYING THE DEFENSE CHALLENGE FOR CAUSE OF LIEUTENANT COLONEL RETHERFORD,
WHO EXPRESSED DISAPPOINTMENT OVER THE ACQUITTAL OF A SOLDIER CHARGED WITH
THE SAME OFFENSES AS APPELLANT IN A PREVIOUS COURT-MARTIAL.
WHETHER THE TRIAL DEFENSE COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE TO APPELLANT BY NOT PRESENTING EVIDENCE
OF APPELLANTS RESTITUTION ON SENTENCING.

Because we resolve the first granted
issue in appellants favor, we do not resolve these issues.
2
Uniform Code of Military Justice, 10 USC § 832.
3
All Manual provisions are cited to the version applicable at appellants
trial. The 1998 version is unchanged, unless otherwise indicated.
4
Mil. R. Evid. 414 permits evidence of similar crimes in child molestation
cases, but it was not in effect at the time of appellants court-martial.
Accordingly, we do not decide whether the evidence at issue would have
been admissible under Mil. R. Evid. 414.
 
 
SULLIVAN, Judge, with whom CRAWFORD, Judge,
joins (dissenting):
Appellant was charged with placing his hand
inside the underwear of 8-year-old MR (the daughter of a close family friend)
and touching her vagina with an intent to satisfy his lust. He was also
charged with putting his hand on the thighs and breast of 13-year-old LL
(his niece) and putting his finger inside her vagina with intent to satisfy
his lust. Finally, he was charged with putting his tongue inside the mouth
of LL with intent to satisfy his lust. Thus, the prosecution was particularly
required by law1 to prove
appellants sexual desires or passions as an essential part of this child
sexual abuse case. See United States v. Whitner, No. 98-0837,
___ MJ (11) (1999) (fact that element not disputed does not remove
prosecutions burden of proof), citing Estelle v. McGuire, 502 U.S.
62 (1991).
Moreover, both MR and LL testified that appellant
committed the charged acts. Appellant also testified but denied committing
the charged offenses. He did say, however, that he was awakened one night
by LL putting his arm to her chest, which he immediately stopped and told
her, "This isn't right." Obviously, whether appellant committed the charged
acts was the critical issue in this case. Consequently, evidence of a sexual
motive on his part for such acts assumed a heightened probative value in
these one-on-one credibility contests. See generally United
States v. Mann, 26 MJ 1, 3 (CMA 1988).
The testimony of appellants daughter, AM,
that he repeatedly sexually abused her from the ages of 4 to 13 clearly
demonstrated his "unusual" sexual desire for young girls such as the alleged
victims in this case. See United States v. Johnson, 132 F.3d
1279, 1282 (9th Cir. 1997). In addition, this evidence established
a motive for the doing of charged sexual acts against MR and LL as an outlet
for these long-standing desires. See Whitner, supra
at (9). It also indicated a method of operation entailing deliberate
exploitation of his adult position of authority to accomplish his desired
sexual gratification. United States v. Meachum, 115 F.3d 1488, 1495
(10th Cir. 1997). Finally, the military judge repeatedly warned
the members that they could not use the evidence to show appellant had
a bad character and therefore probably committed the charged offenses.
United States v. Hadley, 918 F.2d 848, (9th Cir. 1990).
I disagree with the majoritys selective discounting
of the relevance of this uncharged-misconduct evidence for these Mil. R.
Evid. 404(b) purposes. The majority focuses on distinctions without a difference,
i.e., father instead of an uncle or head of visited household, appellants
home as crime situs instead of a relatives house, and minor age differentials
at various times of the misconduct. In my view, these distinctions neither
singularly nor together support a determination of irrelevance. See
Mil. R. Evid. 401 (any tendency to make existence of fact of consequence
more probable or less probable).
Turning to the Mil. R. Evid. 403 question,
that portion of AMs testimony concerning oral sodomy is a much closer
call, but one which is properly entrusted to the trial judge. See
United States v. Johnson, 49 MJ 467, 475 (1998) (no abuse of discretion
in admitting prior sexual misconduct evidence where Mil. R. Evid. 403 question
given "thoughtful consideration by the military judge"). The defense asked
the military judge to excise certain testimony from AM that she and appellant
engaged in consensual oral sodomy. He did not grant this request because
he concluded that the probative value of this evidence was not substantially
outweighed by its prejudicial impact, assuming proper limiting instructions
were given.
The precise question before us is whether the
military judge abused his discretion in determining that this evidence
was not unfairly or "unduly" prejudicial. See generally United
States v. Abel, 469 U.S. 45 (1984). In other words, did the judge clearly
err in finding no genuine and disproportionate risk that the members would
be so inflamed by this evidence that they would ignore other evidence in
this case and convict appellant simply on the basis of the uncharged misconduct.
See United States v. Van Metre, 150 F.3d 339, 351 (4th
Cir. 1998). I would find no clear error by the trial judge in this regard
and avoid the temptation to decide this issue de novo.
Oral sodomy between a father and daughter,
consensual or not, is obviously outrageous. Yet, evidence of such conduct
was not necessarily unduly inflammatory in the context of this case. The
charged misconduct in part was similarly egregious, i.e., digital
penetration of a child visitor by an adult head of household. Cf.
United States v. Munoz, 32 MJ 359, 365 (CMA 1991) (fondling alone
charged). Moreover, other acts of sexual misconduct by appellant on AM,
such as fondling and digital penetration, were similar to those charged
and properly evidenced in this case. In these circumstances, the military
judge could reasonably conclude that there was little chance that appellant
would be convicted of sexual crimes against MR and LL, simply because appellants
daughter was also permitted to testify that appellant committed
oral sodomy upon her. See generally United States v. Van
Metre, supra; Johnson, 132 F.2d at 1283-84.
In conclusion, I still might vote to reverse
this case on the basis of the trial judges rulings excluding evidence
that LL and her mother were sexually abused by LLs grandfather (appellants
father). See generally United States v. Pagel, 45
MJ 64, 70 (1996) (Sullivan, J., concurring in the result). However, the
military judge allowed defense counsel to cross-examine the alleged victim
concerning its proposed-transferred intent defense and he declined. Accordingly,
I would vote to affirm this case.
FOOTNOTE:
1 Para. 87b(1)(d),
Part IV, Manual for Courts-Martial, United States (1995 ed.); Art. 134,
Uniform Code of Military Justice, 10 USC § 934.

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