                       UNITED STATES, Appellee


                                     v.


                 Napolean BAILEY, Master Sergeant
                    U. S. Air Force, Appellant


                               No. 00-0306

                         Crim. App. No. 32898


    United States Court of Appeals for the Armed Forces

                       Argued January 9, 2001

                       Decided May 22, 2001

CRAWFORD, C.J., delivered the opinion of the Court, in
which SULLIVAN, GIERKE, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant: Frank J. Spinner (argued); Colonel James R.
Wise, Lieutenant Colonel Timothy W. Murphy, and Captain
Patrick J. Dolan (on brief); Captain Bryan A. Bonner.

For Appellee: Captain Christopher A. Santoro (argued);
Colonel Anthony P. Dattilo, Major Lance B. Sigmon, and
Captain Christa S. Cothrel (on brief); Major Jennifer R.
Rider.

Military Judge:      Willard L. Pope


  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bailey, No. 00-0306/AF


       Chief Judge CRAWFORD delivered the opinion of the

Court.

       Appellant was convicted at a general court-martial of

rape, forcible sodomy (2 specifications), aggravated

assault, assault and battery (3 specifications), making a

false official statement, kidnapping, communicating threats

(2 specifications), obstructing justice (2 specifications),

disorderly conduct, and unlawful entry, in violation of

Articles 120, 125, 128, 107, and 134, Uniform Code of

Military Justice, 10 USC §§ 920, 925, 928, 907, and 934,

respectively.    The officer and enlisted members of the

court sentenced him to a dishonorable discharge,

confinement for 30 years, total forfeitures, reduction to

airman basic, and a reprimand.     The convening authority

approved that sentence.    On December 16, 1999, the Court of

Criminal Appeals rejected appellant’s seven assignments of

error and affirmed the convictions and the sentence.       52 MJ

786.    On August 17, 2000, we granted review of the

following issues:

       I. WHETHER MILITARY RULE OF EVIDENCE 413 IS
       CONSTITUTIONAL ON ITS FACE AND/OR AS APPLIED
       IN THIS CASE, IN THAT APPELLANT WAS DENIED DUE
       PROCESS OF LAW.

       II. WHETHER MILITARY RULE OF EVIDENCE 413 IS
       CONSTITUTIONAL AS APPLIED IN THIS CASE, IN THAT
       APPELLANT WAS DENIED EQUAL PROTECTION OF THE LAW.



                               2
United States v. Bailey, No. 00-0306/AF


     III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
     UNDER MILITARY RULE OF EVIDENCE 403 WHEN HE HELD
     EVIDENCE ADMISSIBLE UNDER MILITARY RULE OF EVIDENCE
     413.

     As to Issues I and II, we hold adversely to the claims

of appellant based on our decision in United States v.

Wright, 53 MJ 476, decided on August 31, 2000.

     Thus, we will only address Issue III:    we hold that

the judge did not abuse his discretion in admitting the

evidence.

                            FACTS

     Among other offenses, appellant was charged with

raping F on December 4, 1995, and committing forcible

sodomy with F between March 1 and June 1, 1996.    Appellant

was acquitted of the rape charge but convicted of the

sodomy charge.   He was also convicted of raping and

forcibly sodomizing J on September 5, 1996.

     The Government used evidence that appellant forcibly

anally sodomized W (who was married to appellant from

November 1984 until 1990 –- but separated from him in March

1988), and also forcibly anally sodomized E in 1991 or 1992

as propensity evidence that he forcibly anally sodomized F

and J.   In order to counter the testimony of W and E,

defense counsel called K, who testified that she and

appellant maintained a consensual sexual relationship



                              3
United States v. Bailey, No. 00-0306/AF


without any physical, emotional, or sexual abuse toward her

within the same period of time that the charges for which

appellant was tried and convicted arose.    Appellant did not

testify at trial, although an exculpatory statement that he

made to civilian police was admitted into evidence.

     The Government’s theory of the case was that appellant

engaged in a number of relationships with various victims.

These relationships began with appellant establishing a

friendly relationship with the victim.    As the relationship

progressed, appellant would exercise greater degrees of

control and power over these women.    Appellant gained

control by alienating them from their family and friends,

asking them to do certain things regarding their

appearance, and watching and controlling their movement

(almost to the point of stalking them).    Appellant’s mode

of control then progressed to the use of threatening

language and behavior.    He used weapons when making his

threats.    Eventually the threatening behavior turned into

actual physical assaults which involved slapping, punching,

hitting, and throwing his victims against walls and other

objects.    Finally, it culminated with forcible rape and

sodomy.    In short, the Government’s theory was that

appellant groomed the women in his life to accept

physically and sexually abusive conduct.


                               4
United States v. Bailey, No. 00-0306/AF


     The defense theory of the case was that all the

“victims” were mature women and, while some of the conduct

between appellant and these women could be considered

rough, everything was either consensual or didn’t happen.

     Prior to trial, defense counsel asked the judge to

declare Mil.R.Evid. 413, Manual for Courts-Martial, United

States (2000 ed.), unconstitutional; and if he found it to

be constitutional, to preclude the testimony of W and E

after performing the Mil.R.Evid. 403 balancing test.     Based

on proffers from both counsel as to what various witnesses

would say, the military judge ruled that W and E could

testify concerning the prior acts of forcible sodomy

committed upon them by appellant.

     After trial counsel presented 27 witnesses related to

the offenses with which appellant was charged, defense

counsel asked the military judge to reconsider his ruling

regarding admissibility of testimony from W and E.    The

military judge again announced that he had done the

Mil.R.Evid. 403 balancing test and determined that the

probative value of the testimony outweighed its prejudicial

effect.

     W testified that she met appellant in 1981 when she

was 21 and he was 25.   They married in November 1984.

Shortly after their first year of marriage, there was a


                              5
United States v. Bailey, No. 00-0306/AF


physical altercation over the lack of salad dressing for

dinner.    Appellant became angry and hit his wife across the

face, breaking her glasses and bruising her eye.    After

this incident, the physical abuse escalated and included

grabbing her throat, pushing her up against a wall, pinning

her on the floor, punching her, and one instance of kicking

her.    W testified that in their third year of marriage,

there was one instance of forced anal sex.    W testified

that she had had consensual anal intercourse with the

accused only one time before the forcible incident and that

had occurred when she “first visited him” at McChord Air

Force Base, Washington.    W left appellant in March 1988,

divorced him in 1990, and had no further communication with

him.    Trial defense counsel did not cross-examine W.

Throughout her brief testimony, the judge sustained defense

objections and narrowed her testimony considerably.

       E testified that she met appellant in 1991 or 92

through her work.    Her job was delivery driver for a local

company restocking vending machines in a secure area at

Fairchild AFB, Washington.    In order to get into the secure

area, she had to be escorted, and her escort was appellant.

E testified that when they first began their relationship,

appellant was “charming,” but he later became “controlling

and manipulative.”    She and appellant developed a sexual


                               6
United States v. Bailey, No. 00-0306/AF


relationship within 1 or 2 months after their meeting.

During this sexual relationship, they had anal intercourse

two or three times.    E did not consent to any of this.      She

told appellant not to have anal sexual intercourse with her

but he ignored her and did it anyway.

    During cross-examination, E testified that her

relationship with appellant lasted maybe 6 months.        E

acknowledged that the incidents involving anal sex with

appellant occurred “in the middle of [their] relationship.”

E had consensual sex with appellant both prior to and

subsequent to that nonconsensual anal intercourse.

     To counter the testimony of W and E, the defense

presented K.   She testified that she met appellant in the

spring of 1995, continued their friendship through the

summer, and began an intimate relationship with him in late

fall or early winter of 1995.       K left the Spokane,

Washington, area in July 1996 because of a job transfer to

Denver, Colorado.   She said that, during her relationship

with appellant, there was no physical, emotional, or sexual

abuse.   He never forced her to do anything sexual or

otherwise against her will.

                           Discussion

     Issue III asks whether the military judge abused his

discretion.    This Court has held that for evidence to be


                                7
United States v. Bailey, No. 00-0306/AF


admitted, it must be both logically (Mil.R.Evid. 401 and

402) and legally (Mil.R.Evid. 403) relevant at trial.       See,

e.g., United States v. Griffin, 50 MJ 278, 283 (1999);

United States v. Simmons, 48 MJ 193, 196 (1998).      Thus,

while the evidence may be logically relevant, it may be

excluded under Mil.R.Evid. 403 as not being legally

relevant.   Drafters’ Analysis of Mil.R.Evid. 401, 402, 403,

Manual, supra at A22-33 to A22-34.      In Wright, 53 MJ at

482, this Court set out non-exclusive factors to be

included in any balancing test.     Although the military

judge in this case did not have the benefit of the Wright

opinion, he did apply the following factors:

            [P]roximity...; its similarity to the charged
            event; the rate of frequency of the other acts;
            ... surrounding circumstances; ... relevant
            intervening events; and ... other relevant
            similarities or differences.

     Applying the Wright factors (plus two), we hold that

they are supported by the record as stated below and

substantiate the judge’s Mil.R.Evid. 403 determination:

            (1)   Temporal proximity.   The events involving E

     occurred about 3 1/2 years before the charged

     offenses; the anal sodomization of his wife occurred

     about a decade before the first offense with which

     appellant was charged occurred;




                                8
United States v. Bailey, No. 00-0306/AF


          (2)    Similarity to the event charged.

     Appellant’s modus operandi was to charm women, groom

     them to be his “servants,” and then force them to have

     anal sex.

          (3)    Frequency of the acts.   Anal intercourse

     occurred infrequently with each victim, but the

     similarity of events and grooming of his women prior

     to the sodomy was remarkably similar.

          (4)    The presence or lack of intervening

     circumstances.   There were none.

          (5)    The relationship between the parties.   The

     relationship between appellant and the women, as far

     as the forcible sodomy goes, was exactly alike.     In

     only one instance was there a difference; he forced

     his wife as opposed to his girlfriend to engage in

     anal sodomy.

          (6)    Strength of proof of the act.   Appellant did

     not contest that the sodomy occurred.    Even though he

     did not testify, the defense theory was that any

     sexual acts that occurred between appellant and the

     victims were purely consensual.

          (7)    Time needed for proof of the prior act. A

     minimum amount of time was needed.     The military judge

     kept the witness’ testimony abbreviated and focused.


                               9
United States v. Bailey, No. 00-0306/AF


     To ensure the evidence was properly considered by the

     court members, the military judge gave limiting

     instructions to the court members which ensured that

     they understood the very limited reasons for which he

     had admitted the testimony of W and E.

           (8)    Distraction to the factfinder.   We conclude

     that it is unlikely that the evidence would result in

     a distracting mini-trial on a collateral issue.

           (9)    Potential for less prejudicial evidence.

     There was no less prejudicial evidence concerning the

     act of anal intercourse that could have been presented

     in this case.

           (10)    Probative weight of the evidence.

     Probative weight was extremely high.    The evidence

     showed a clear factual pattern that appellant forced

     women to engage in physically and sexually abusive

     conduct.

     Based on the balancing test applied by the judge and the

limiting instructions, we hold that the judge did not abuse

his discretion in admitting the evidence under Mil.R.Evid. 403

and 413.   We review a military judge’s evidentiary rulings for

an abuse of discretion.     However, when the judge does not

articulate the balancing analysis on the record, we give the

evidentiary ruling less deference than we do where, as in this


                                10
United States v. Bailey, No. 00-0306/AF


case, the balancing analysis is fully articulated on the

record.   United States v. Manns, 54 MJ 164, 166 (2000).

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                11
