                       UNITED STATES, Appellee

                                    v.

                  James E. BARE Jr., Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 06-0911

                         Crim. App. No. 35863

       United States Court of Appeals for the Armed Forces

                      Argued February 28, 2007

                         Decided May 4, 2007

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

                                 Counsel


For Appellant: Major John N. Page III (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).

Military Judge:   Lance B. Sigmon


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bare Jr., No. 06-0911/AF


       Judge BAKER delivered the opinion of the Court.

       Appellant was tried by general court-martial composed of

officer and enlisted members.   He was convicted, contrary to his

pleas, of sodomy with a child under twelve and indecent

liberties with a child, in violation of Articles 125 and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934

(2000).   Appellant pleaded guilty by exceptions to one

specification of indecent acts with a child in violation of

Article 134, UCMJ, but was found guilty as charged.      The

adjudged and approved sentence included a dishonorable

discharge, confinement for forty years and reduction to grade

E-1.   The United States Air Force Court of Criminal Appeals

affirmed.   United States v. Bare, 63 M.J. 707 (A.F. Ct. Crim.

App. 2006).

       We granted review of the following issue:

       WHETHER, IN LIGHT OF UNITED STATES V. BERRY, 61 M.J.
       91 (C.A.A.F. 2005) AND UNITED STATES V. MCDONALD, 59
       M.J. 426 (C.A.A.F. 2004), EVIDENCE OF UNCHARGED SEXUAL
       ACTS BETWEEN APPELLANT, WHEN HE WAS AN ADOLESCENT, AND
       HIS SISTER WAS IMPROPERLY ADMITTED AND MATERIALLY
       PREJUDICED APPELLANT.

       Finding no error in the admission of the uncharged

misconduct in this case, we affirm.

                           BACKGROUND

       At the time of trial, Appellant was a thirty-four-year-old

staff sergeant (E-5) with thirteen years of active service.     The


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charges against him stemmed from acts committed against his

daughter, RB, over the course of several years.   Appellant was

charged with one specification of sodomy with a child under

twelve on divers occasions, and one specification of sodomy with

a child between twelve and sixteen years.   The members acquitted

Appellant of the latter specification.   The indecent acts

specification alleged that Appellant molested RB “by rubbing his

penis against her body, by having her place her hands upon and

fondle his genitalia, and by placing his hands upon and fondling

her breasts, buttocks, and genitalia.”   Appellant pleaded guilty

by exceptions to this specification, excepting the words “divers

occasions,” “by rubbing his penis against her body,” and

“buttocks and genitalia” (i.e., admitting only that he had

touched her breasts while she touched his penis).   An indecent

liberties specification alleged that Appellant had RB wear

women’s lingerie and watched her urinate with intent to gratify

his sexual desires.

     Although RB was the only victim included in the charged

offenses, two other victims of uncharged misconduct, KB and TA,

also testified on the merits.   TA, Appellant’s stepdaughter,

testified that Appellant had touched her breasts, legs, and back

when she was about eleven years old.   KB, Appellant’s sister,

testified that Appellant had molested her on a number of

occasions from when she was about eight until she was about

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eleven years old.   Appellant was about eight years older than

KB, making him between sixteen and nineteen years old when the

alleged acts occurred.   At trial, Appellant did not contest the

admissibility of TA’s testimony, but argued that KB’s testimony

should have been excluded under Military Rules of Evidence

(M.R.E.) 414 and 403.

                            DISCUSSION

     M.R.E. 414(a) provides that “[i]n a court-martial in which

the accused is charged with an offense of child molestation,

evidence of the accused’s commission of one or more offenses of

child molestation is admissible and may be considered for its

bearing on any matter to which it is relevant.”

     Before admitting evidence of other sexual acts under M.R.E.

414, the military judge must make three threshold findings:    (1)

that the accused is charged with an act of child molestation as

defined by M.R.E. 414(a); (2) that the proffered evidence is

evidence of his commission of another offense of child

molestation as defined by the Rule; and (3) the evidence is

relevant under M.R.E. 401 and M.R.E. 402.   United States v.

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

findings before admitting evidence under M.R.E. 413); United

States v. Dewrell, 55 M.J. 131, 138 n.4 (C.A.A.F. 2001) (“As

Rules 413 and 414 are essentially the same in substance, the

analysis for proper admission of evidence under either should be

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the same.”).   The military judge must also conduct a M.R.E. 403

balancing analysis, to which the following nonexhaustive list of

factors is relevant:   “[s]trength of proof of prior act --

conviction versus gossip; probative weight of evidence;

potential for less prejudicial evidence; distraction of

factfinder; and time needed for proof of prior conduct. . . .

temporal proximity; frequency of the acts; presence or lack of

intervening circumstances; and relationship between the

parties.”   Wright, 53 M.J. at 482 (citations omitted).

       Appellant does not contest that the evidence satisfies the

three threshold requirements for admitting M.R.E. 414 evidence,

but argues that the military judge erred in conducting the

required M.R.E. 403 analysis.   Appellant analogizes the facts of

his case to those in United States v. Berry.    61 M.J. 91

(C.A.A.F. 2005).    In Berry, the appellant was charged with

committing forcible sodomy with an adult man in his home.      Id.

at 92.   The government moved to admit evidence pursuant to

M.R.E. 413 showing that when Berry was thirteen years old, he

had talked a six-year-old boy into committing oral sodomy with

him.   Id. at 93.   The military judge admitted this evidence,

accepting the government’s argument that it was relevant and

probative under M.R.E. 413 to prove Berry’s “propensity to

sexually assault those who are in a position of vulnerability.”

Id. at 93, 94.

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     We reversed, concluding that the military judge was

entitled to less deference on his ruling than was ordinarily due

under the abuse of discretion standard because he failed to

conduct a thorough M.R.E. 403 balancing test.    Id. at 96.    We

noted that the military judge omitted discussion of four of the

factors identified in Wright.    Id.   The omissions concerned the

factors tending to weigh against admission, including the

unfairly prejudicial effect of evidence that identified Berry as

a “child molester” in a case in which he was not charged with

child molestation, and the limited probative value of uncharged

misconduct that allegedly occurred when Berry was clearly a

minor.   Id. at 96-98.   In particular, the Court noted that

“[d]uring the eight years between the two incidents Berry grew

from a child of thirteen to an adult of twenty-one. . . .

[T]here is no evidence suggesting that Berry’s mens rea at

twenty-one was the same as it was when he was a child of

thirteen.”   Id. at 96-97.   Consequently, we concluded that the

military judge erred in admitting the evidence.    Id. at 97.

     In applying M.R.E. 403 to evidence otherwise admissible

under M.R.E. 414 we apply an approach balancing numerous

factors.   No one factor is controlling, although in a given case

it could be.   Further, as noted in Berry:




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     when projecting on a child the mens rea of an adult or
     extrapolating an adult mens rea from the acts of a
     child, military judges must take care to meaningfully
     analyze   the   different   phases  of   the   accused’s
     development   rather   than   treat  those   phases   as
     unaffected by time, experience, and maturity.

61 M.J. at 97.

Appellant argues that, as in Berry, the military judge failed to

give adequate consideration to his young age at the time the

uncharged misconduct with KB occurred.   As a result, he argues

that the military judge’s ruling is entitled to less deference

before this Court and should be found to be erroneous.

     Applying this framework to Appellant’s case, like the lower

court, we are persuaded the facts are distinguishable from those

in Berry in several significant respects.   First, unlike in

Berry, the military judge conducted a meaningful M.R.E. 403

balancing analysis which considered factors weighing both

against and in favor of admission of the evidence.   Also, unlike

Berry, Appellant was charged with an offense of child

molestation, rather than a sexual assault on an adult.

Appellant was also older than Berry at the time the uncharged

misconduct occurred.   Significantly, the conduct occurred while

Appellant was an adult as well as an adolescent.   KB testified

that the molestation continued until the time Appellant moved

out of the family home to get married and join the Air Force.

By contrast, “[t]here was no evidence introduced to show that


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Berry engaged in similar acts between the time he was thirteen

and the time of the [charged] incident with SGT T eight years

later.”   Berry, 61 M.J. at 96-97.    Finally, the alleged

incidents with KB were not a one-time event, but occurred

regularly for a period of about two or three years.    All of

these factors make KB’s testimony both more probative and less

unfairly prejudicial than the testimony admitted in Berry.      As

such, the military judge did not abuse his discretion in

admitting evidence of uncharged misconduct pursuant to M.R.E.

414.

       Having concluded that the evidence of acts with KB was

properly before the members under M.R.E. 414, we need not

address Appellant’s remaining contention that it was error to

admit the same acts to prove common plan or intent under M.R.E.

404(b).   M.R.E. 414 was “intended to provide for more liberal

admissibility of character evidence in criminal cases of child

molestation where the accused has committed a prior act of

sexual assault or child molestation.”    Manual for Courts-

Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-37 (2005 ed.).    Consequently, even if

the military judge erred in determining that the evidence was

relevant to one of the narrower purposes permitted by M.R.E.

404(b), any such error was harmless.



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                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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