              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                          Misc. Dkt. No. 2016-12

                         ________________________

                           UNITED STATES
                                 Appellant
                                      v.

                          Brian L. WALTERS
              Staff Sergeant (E-5), U.S. Air Force, Appellee
                         ________________________

      Appeal by the United States Pursuant to Article 62, UCMJ
                         Decided 12 January 2017
                         ________________________

Military Judge: Patricia A. Gruen.
GCM convened at Joint Base Pearl Harbor-Hickam, Hawaii.
For Appellant: Major Mary Ellen Payne, USAF (argued); Colonel Kath-
erine E. Oler, USAF; and Gerald R. Bruce, Esquire.
For Appellee: Major Lauren A. Shure, USAF (argued), and Lieutenant
Colonel Nicholas W. McCue, USAF.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge JOHNSON joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

SPERANZA, Judge:

   The United States brings this appeal under Article 62, UCMJ, 10 U.S.C. §
862, asserting that the military judge abused her discretion by excluding evi-
dence offered pursuant to Military Rule of Evidence (Mil. R. Evid.) 413. We
agree and grant the Government’s appeal.
               United States v. Walters, Misc. Dkt. No. 2016-12

                                I. BACKGROUND

    Appellee is charged with one specification of abusive sexual contact by
causing bodily harm, in violation of Article 120, UCMJ, 10 U.S.C. § 920, for
allegedly touching Staff Sergeant (SSgt) RM’s pubic area with his hand with
an intent to gratify his sexual desire. Prior to trial and pursuant to Mil. R.
Evid. 413, trial counsel provided trial defense counsel notice of the Govern-
ment’s intent to offer evidence that Appellee committed another sexual offense
upon Ms. JC. Trial defense counsel promptly moved for appropriate relief, ask-
ing the military judge to suppress evidence related to Ms. JC’s allegations be-
cause it involved “charged” misconduct prohibited by United States v. Hills, 75
M.J. 350 (C.A.A.F. 2016), failed to meet the threshold requirements estab-
lished by the Court of Appeals for the Armed Forces (CAAF) in United States
v. Wright, 53 M.J. 476 (C.A.A.F. 2000), and failed the balancing test required
by Mil. R. Evid. 403. The Government opposed the motion and offered Ms. JC’s
written statement to the Honolulu Police Department to support its position.
The Government also invited the military judge to consider SSgt RM’s recorded
interview with the Air Force Office of Special Investigations (AFOSI).

    Following the convening of the general court-martial, the parties litigated
several motions, to include the motion for appropriate relief seeking exclusion
of evidence under Mil. R. Evid. 413. In support of their written submissions on
this matter, the parties offered additional evidence, including witness testi-
mony. After presentation of evidence and argument by counsel, the military
judge, on the record, discussed her findings of fact with the parties before
granting the Defense motion. The military judge documented her oral ruling
in a written ruling. Subsequently, the Government served timely notice of ap-
peal and the case was docketed with this court.

                II. JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction to hear this appeal under Article 62(a)(1)(B), UCMJ,
10 U.S.C. § 862(a)(1)(B), which authorizes the Government to appeal “[a]n or-
der or ruling which excludes evidence that is substantial proof of a fact mate-
rial in the proceeding” in a court-martial where a punitive discharge may be
adjudged.

    A military judge’s decision to admit evidence is reviewed for an abuse of
discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). The
military judge’s findings of fact are reviewed for clear error, but her conclusions
of law are reviewed de novo. United States v. Keefauver, 74 M.J. 230, 233
(C.A.A.F. 2015). An abuse of discretion occurs if the military judge’s decision
“is influenced by an erroneous view of the law.” United States v. Cowgill, 68
M.J. 388, 390 (C.A.A.F. 2010) (quoting United States v. Quintanilla, 63 M.J.
29, 35 (C.A.A.F. 2006)) (emphasis added).

    Because this issue is before us pursuant to a Government appeal, we may
act only with respect to matters of law. Article 62(b), UCMJ. We may not make

                                        2
               United States v. Walters, Misc. Dkt. No. 2016-12

findings of fact, as we are limited to determining whether the military judge’s
factual findings are clearly erroneous or unsupported by the record. United
States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995). We also review the evidence
in the light most favorable to the prevailing party. United States v. Wicks, 74
M.J. 93, 98 (C.A.A.F. 2014). “When a court is limited to reviewing matters of
law, the question is not whether a reviewing court might disagree with the
trial court’s findings, but whether those findings are ‘fairly supported by the
record.’” United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004) (quoting
United States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985)).

    Mil. R. Evid. 413 is an exception to the ordinary rule that evidence of un-
charged misconduct or prior convictions is generally inadmissible and may not
be used to show an accused’s propensity or predisposition to commit charged
conduct. See Mil. R. Evid. 404(b); United States v. Berry, 61 M.J. 91, 95
(C.A.A.F. 2005); Wright, 53 M.J. at 480. The Rule provides that “[i]n a court-
martial proceeding for a sexual offense, the military judge may admit evidence
that the accused committed any other sexual offense. The evidence may be con-
sidered on any matter to which it is relevant.” Mil. R. Evid. 413(a). This in-
cludes using evidence of either a prior sexual offense conviction or uncharged
sexual offenses to prove that an accused has a propensity to commit a sexual
offense. Hills, 75 M.J. at 354 (citing United States v. James, 63 M.J. 217, 220–
22 (C.A.A.F. 2006)).

    The meaning and scope of Mil. R. Evid. 413 is a question of law that we
review de novo. LRM v. Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013). We first
review de novo the meaning and scope of Mil. R. Evid. 413 to determine
whether the military judge’s exclusion of the conduct under Mil. R. Evid. 413
was guided by erroneous legal conclusions before determining whether the mil-
itary judge abused her discretion in excluding Mil. R. Evid. 413 evidence as
propensity evidence. Hills, 75 M.J. at 354 (citing Koon v. United States, 518
U.S. 81, 100 (1996)); see United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F.
2009).

    In pertinent part, the military judge concluded the following: the CAAF’s
decision in Hills precluded admission of the evidence offered in this case be-
cause “[t]he ‘uncharged misconduct’ is actually charged misconduct, it is just
that the other charged acts that the Government seeks to admit are pending
trial in a civilian criminal court, as opposed to being charged in this military
court-martial;” the offered evidence was not logically relevant under Mil. R.
Evid. 401 and 402, thus failing the third threshold finding for admissibility as
required by Wright; and the evidence failed the Mil. R. Evid. 403 balancing test
because “[t]his type of evidence is highly prejudicial and certainly more preju-
dicial than probative.” We find each of these conclusions was guided and influ-
enced by the military judge’s erroneous view of the law; thus, she abused her
discretion in excluding the offered evidence. See Cowgill, 68 M.J. at 390; Clay-
ton, 67 M.J. at 286.



                                       3
               United States v. Walters, Misc. Dkt. No. 2016-12

               III. APPLICATION OF UNITED STATES V. HILLS

    In Hills, the CAAF held that because evidence of charged sexual miscon-
duct “was already admissible in order to prove the offenses at issue, the appli-
cation of [Mil. R. Evid.] 413—a rule of admissibility for evidence that would
otherwise not be admissible—was error.” 75 M.J. at 352. The CAAF explained
that “[n]either the text of [Mil. R. Evid.] 413 nor the legislative history of its
federal counterpart suggests that the rule was intended to permit the govern-
ment to show propensity by relying on the very acts the government needs to
prove beyond a reasonable doubt in the same case.” Id. (emphasis added). It
seemed obvious to the CAAF “that it is impermissible to utilize [Mil. R. Evid.]
413 to show that charged conduct demonstrates an accused’s propensity to
commit . . . the charged conduct.” Id. at 353. Moreover, the court found that
the standard findings instructions on the proper use of Mil. R. Evid. 413 evi-
dence of charged offenses “both undermined the presumption of innocence and
created a tangible risk that Appellant was convicted based on evidence that
did not establish his guilt beyond a reasonable doubt.” Id. at 352.

   SSgt RM alleged that while at a bar, the drunken Appellee grabbed her
hand and placed it on his genitals; followed her into the bathroom; pushed her
against the side of the stall and tried to kiss her, while she repeatedly said “no”
and “stop it;” put his hand up her underwear, touching her pubic area; and only
stopped when a bar employee entered the bathroom and told Appellee to leave.

    Approximately six months after SSgt RM’s allegations and less than four
months after charges related to those allegations were preferred, Ms. JC al-
leged that Appellee touched her without consent. Specifically, Ms. JC claimed
the following: As she drove Appellee’s girlfriend and the drunken Appellee
home, Appellee’s girlfriend sat in the passenger’s seat with her head resting on
the dashboard, apparently sleeping, while Appellee sat in a backseat behind
Ms. JC. Appellee began to massage Ms. JC’s shoulders. She pushed his hands
away. Appellee persisted and moved his hands closer to her chest area. She
told Appellee to “stop” and again pushed his hands away. Appellee told her to
“relax,” reached underneath her bikini top, and massaged her breasts with
both of his hands. She again told him to “stop,” and Appellee told her “relax”
and proceeded to “grope” her breasts again. Appellee did not stop touching Ms.
JC until his girlfriend looked over.

    That same evening, Ms. JC provided a written statement to Honolulu Po-
lice. On the form, the Honolulu Police classified the offense as a sexual assault.
Appellee was arrested for this conduct and was scheduled to be arraigned in
Hawaii state court.

    The military judge acknowledged that the conduct offered pursuant to Mil.
R. Evid. 413 was “not charged in the case at bar.” Nevertheless, she found that
Hills’ prohibition against permitting the Government to show propensity by
relying on the very acts the Government needs to prove beyond a reasonable



                                        4
               United States v. Walters, Misc. Dkt. No. 2016-12

doubt in the same case applied in Appellee’s case. The military judge con-
cluded, “In this case, the evidence the Government seeks to admit is actually
charged conduct and a presumption of innocence has attached to the Accused
with respect to that charged conduct as it is an allegation that is yet to be
proved.”

    However, no offense related to Ms. JC’s allegations is before Appellee’s
court-martial. The offense is pending before a court in a separate jurisdiction
and that court will independently render its verdict, if any. The conduct offered
by the Government pursuant Mil. R. Evid. 413 is not conduct the Government
has to prove beyond a reasonable doubt in the same case. See Hills, 75 M.J. at
352. This plainly is not an offense on which the factfinder in Appellee’s court-
martial has to deliberate. See id. at 354 (citing Wright, 53 M.J. at 479). Accord-
ingly, the CAAF’s attendant concerns about Appellee’s presumption of inno-
cence being undermined by the Government’s use of evidence admitted to prove
charged offenses in the same case are not implicated here.

    Mil. R. Evid. 413 evidence of an offense charged in another jurisdiction, but
not charged in the case at bar, is not precluded by Hills. The conduct is not
charged in the same case and evidence of this uncharged conduct would not
already be admissible at the court-martial. See Hills, 75 M.J. at 355. However,
such evidence of uncharged conduct may be properly admitted under Mil. R.
Evid. 413. Thus, the military judge abused her discretion by erroneously find-
ing the evidence of Appellee’s uncharged sexual offenses upon Ms. JC offered
pursuant to Mil. R. Evid. 413 at Appellee’s court-martial was “actually charged
misconduct” as contemplated and prohibited by Hills. Moreover, this erroneous
view of the law influenced her subsequent analysis and decisions under Wright
and Mil. R. Evid. 403.

          IV. WRIGHT’S THRESHOLD FINDINGS FOR ADMISSIBILITY

    In Wright, the CAAF required military judges to make the following three
threshold findings before admitting evidence under Mil. R. Evid. 413: (1) The
accused is charged with an offense of sexual assault; (2) The evidence proffered
is evidence of his commission of another offense of sexual assault; and (3) The
evidence is relevant under Mil. R. Evid. 401 and Mil. R. Evid. 402. 53 M.J. at
482.

    Mil. R. Evid. 401 establishes the test for relevance. Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the ac-
tion. Mil. R. Evid. 401.

    Under Mil. R. Evid. 402, “[r]elevant evidence is admissible unless any of
the following provides otherwise: (1) the United States Constitution as it ap-
plies to members of the Armed Forces; (2) a federal statute applicable to trial
by courts-martial; (3) these rules; or (4) this Manual.” Mil. R. Evid. 402(a)(1)-
(4). “Irrelevant evidence is not admissible.” Mil. R. Evid. 402(b).

                                        5
               United States v. Walters, Misc. Dkt. No. 2016-12

    After concluding Hills prohibited admission of the evidence offered by the
Government under Mil. R. Evid. 413, the military judge nonetheless made her
threshold findings under Wright. The military judge found that Appellee was
charged with an offense of sexual assault and that the proffered evidence al-
leging Appellee touched Ms. JC’s breasts without her consent was evidence of
Appellee’s commission of another sexual assault. However, the military judge
determined that the proffered evidence was not relevant under Mil. R. Evid.
401 and 402. She concluded that “[w]hether the evidence is relevant under
[Mil. R. Evid.] 401 and [Mil. R. Evid.] 402 is where the Hills findings seem to
interface and potentially conflict with the Wright case.” Consequently, the mil-
itary judge reasoned:

       If the evidence the Government seeks to admit in this court-mar-
       tial is charged misconduct, but not charged in the case at bar,
       then the unproven allegation of a completely separate alleged
       unproven incident regarding a completely separate set of facts
       and alleged victim is arguably not relevant to the conduct at is-
       sue in this court-martial.

    We find no conflict between the CAAF’s holdings in Hills and Wright. Any
conflict between these two binding decisions was created by the military
judge’s erroneous assessment of what constitutes “charged” conduct under
Hills. The military judge’s misapplication of Hills influenced her decision to
find seemingly archetypal propensity evidence under Mil. R. Evid. 413 logically
irrelevant and, therefore, inadmissible under Mil. R. Evid. 401 and Mil. R.
Evid. 402, despite its relevancy being “all but mandated.” See United States v.
Dewrell, 52 M.J. 601, 608 (A.F. Ct. Crim. App. 1999) (“The first issue for any
item of evidence is relevance. See Mil. R. Evid. 401, 402. As prior dicta on this
issue have intimated, in view of the language Congress used in Rules 413 and
414, relevancy is all but mandated.”). Moreover, evidence of “an unproven al-
legation of a completely separate alleged unproven incident regarding a com-
pletely separate set of facts and alleged victim” is the type of evidence Mil. R.
Evid. 413 inarguably deems logically relevant in sexual offense cases. Accord-
ingly, the military judge’s determination that evidence of Appellee’s alleged
sexual offenses against Ms. JC failed the third threshold finding of Wright—
relevance under Mil. R. Evid. 401 and Mil. R. Evid. 402—was guided by an
erroneous view of the law.

                   V. MIL. R. EVID. 403 BALANCING TEST

    Although the military judge found that the proffered evidence failed the
third threshold finding for admissibility under Wright, she still conducted the
required Mil. R. Evid. 403 balancing test.

    Once the evidence meets the threshold requirements in Wright, the mili-
tary judge must apply the balancing test of Mil. R. Evid. 403 under which the
evidence may be excluded if its “probative value is substantially outweighed


                                       6
               United States v. Walters, Misc. Dkt. No. 2016-12

by the danger of unfair prejudice, confusion of the issues, or misleading the
members.” Berry, 61 M.J. at 95 (citing Mil. R. Evid. 403). In conducting the
balancing test under Mil. R. Evid. 403, the military judge should consider the
following factors:

       [T]he 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.

Id. (citing Wright, 53 M.J. at 482).

    “No one factor is controlling, although in a given case it could be.” United
States v. Bare, 65 M.J. 35, 37 (C.A.A.F. 2007). However, the Mil. R. Evid. 403
balancing test “should be applied ‘in light of the strong legislative judgement
that evidence of prior sexual offenses should ordinarily be admissible[.]’”
Wright, 53 M.J. at 482 (citing United States v. LeCompte, 131 F.3d 767, 769
(8th Cir. 1997)). It is not expected that evidence admissible pursuant to Mil. R.
Evid. 413 would often be excluded on the basis of Mil. R. Evid. 403. See id.
(citing David J. Karp, Symposium on the Admission of Prior Offense Evidence
in Sexual Assault Cases: Evidence of Propensity and Probability in Sex Offense
Cases and Other Cases, 70 CHICAGO-KENT L. REV. 15, 19 (1994)). “The pre-
sumption is in favor of admission.” Id.

    The military judge cited each factor announced in Wright, but only briefly
addressed half of them in conducting her balancing test—the strength of proof
of the prior act, the probative weight of the evidence, the relationship between
the parties, and the possibility of distraction to the factfinder. Moreover, the
military judge’s balancing, based on minimal findings related to some of the
Wright factors, was influenced by her prior, erroneous legal conclusions. She
found, “This type of evidence is highly prejudicial and certainly more prejudicial
than probative.” (Emphasis added). Plainly, the military judge failed to
properly weigh the probative value of evidence that is presumptively relevant
and admissible when she began her balancing test under the opposite pre-
sumptions. Put another way, the proffered Mil. R. Evid. 413 evidence in this
case was weighed on a defective scale upon which it registered little to no pro-
bative value. On the military judge’s scale, the evidence was presumptively
inadmissible “charged” misconduct under Hills and, thus, not even logically
relevant as propensity evidence when she weighed it. We are mindful of the
discretion given to a military judge when she conducts her Mil. R. Evid. 403
balancing test on the record; however, the military judge’s erroneous view of
the law permeated her decisions and improperly tipped the Mil. R. Evid. 403
scale in this case. Accordingly, the military judge abused her discretion.




                                        7
               United States v. Walters, Misc. Dkt. No. 2016-12

                              VI. CONCLUSION

    The military judge’s ruling to grant the defense motion for appropriate re-
lief and exclude evidence offered under Mil. R. Evid. 413 is vacated, and the
record will be returned to the military judge for action consistent with this
opinion. Accordingly, the appeal of the United States under Article 62, UCMJ,
is hereby GRANTED.



                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




                                      8
