UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BROOKHART, SCHASBERGER, and LEVIN
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Staff Sergeant MICHAEL L. ESSARY JR.
United States Army, Appellant

ARMY 20170556

Headquarters, Fort Bliss
Michael S. Devine, Military Judge
Lieutenant Colonel Larry W. Downend, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Julie L. Borchers,
JA; Major Zachary A. Szilagyi, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Virginia Tinsley, JA; Captain Brian Jones, JA (on brief).

9 August 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LEVIN, Judge:

A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of adultery, in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934 [UCMJ] . An enlisted panel
sitting as a general court-martial convicted appellant, contrary to his pleas, of one
specification of willfully disobeying a superior commissioned officer, one
specification of sexual assault, and one specification of wrongful appropriation, in
violation of Articles 90, 120, and 121, UCMJ, respectively. The panel acquitted
appellant of one specification of sexual assault and one specification of larceny,
ESSARY—ARMY 20170556

charged in violation of Articles 120 and 121, UCMJ.! The panel sentenced appellant
to be discharged from the service with a dishonorable discharge, confinement for
three years, forfeiture of all pay and allowances, and to be reduced to the grade of E-
1. The convening authority approved the findings and sentence as adjudged.

This case comes before us for review under Article 66, UCMJ. Appellant
raises one assignment of error which warrants discussion but no relief.” For the
reasons below, we find that the military judge did not abuse his discretion in
permitting the government to offer evidence of appellant’s prior sexual misconduct
pursuant to Military Rule of Evidence (Mil. R. Evid.) 413.

BACKGROUND

In May 2016, appellant and Staff Sergeant (SSG) RK met at Fort Leonard
Wood, Missouri, after having communicated through an online dating application.
During the course of their relationship, which lasted until in or about August 2016,
the two engaged in consensual sexual intercourse several times. On one occasion,
however, appellant anally assaulted SSG RK. While engaging in consensual vaginal
intercourse, appellant withdrew his penis and penetrated SSG RK’s anus.
Appellant’s conduct occurred after the two soldiers had previously discussed anal
sex, and SSG RK had voiced her unwillingness to engage in such an act. After
appellant penetrated SSG RK’s anus, SSG told him “no” several times. Appellant
refused to stop and in fact became more aggressive during the assault.

During his earlier marriage to Ms. LPB, which lasted from 2003 until 2007,
appellant forced Ms. LPB to engage in anal sex on numerous occasions.
Notwithstanding her unwillingness to participate, expressed through tears and
protestations, appellant used his strength to hold her down when she tried to push
him away.

The government did not charge appellant with committing sexual misconduct
against Ms. LPB. Instead, the government sought to admit the sexual misconduct
against Ms. LPB at appellant’s court-martial pursuant to Mil. R. Evid. 413. Over
defense objection, the military judge permitted the government to elicit testimony
from Ms. LPB related to appellant’s anal sexual assaults of her. The military
judge’s Mil. R. Evid. 413 ruling is the basis for appellant’s assignment of error.

 

' Prior to findings, the military judge, pursuant to Rule for Courts-Martial (R.C.M.)
917, entered a finding of not guilty for one specification of wearing unauthorized
insignia, charged in violation of Article 134, UCMJ.

2 After considering the matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we find they are without merit.
ESSARY—ARMY 20170556
LAW AND DISCUSSION
A, Uncharged Propensity Evidence

The appellant argues the military judge erred when admitting uncharged
propensity evidence under Mil. R. Evid. 413. We disagree.

1. Admissibility of Uncharged Misconduct

Four Military Rules of Evidence generally govern the relevance and
admissibility of evidence of uncharged misconduct. First, “[e]vidence 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 action.” Mil. R.
Evid. 401. Relevant evidence is then “admissible unless any of the following
provides otherwise: (1) the United States Constitution as it applies 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). “Irrelevant evidence is not
admissible.” Mil. R. Evid. 402(b). Next, the “military judge may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
members, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Mil. R. Evid. 403. Finally, while evidence “of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character,” “[t]his evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Mil. R. Evid. 404(b).

2. Mil. R. Evid. 413

Military Rule of Evidence 413 creates an exception to Mil. R. Evid. 404(b)’s
general prohibition against the use of an accused’s propensity to commit crimes.
Specifically, Mil. R. Evid. 413 permits the military judge to admit evidence that the
accused committed “one or more offenses of sexual assault” and that evidence “may
be considered on any matter to which it is relevant.” Mil. R. Evid. 413(a).
“Inherent in [Mil. R. Evid.] 413 is a general presumption in favor of admission.”
United States v. Berry, 61 M.J. 91, 94-95 (C.A.A.F. 2005) (citations omitted).

3. Mil. R. Evid. 413 Threshold Requirements

Before admitting evidence under Mil. R. Evid. 413, three initial threshold
requirements must be met: “1) the accused [is] charged with an offense of sexual
assault; 2) the proffered evidence [is] evidence of the accused’s commission of
another offense of sexual assault; and 3) the evidence [is] relevant under [Mil. R.
ESSARY—ARMY 20170556

Evid.] 401 and [Mil. R. Evid.] 402.” United States v. Solomon, 72 M.J..176, 179
(C.A.A.F. 2013) (citing Berry, 61 M.J. at 95; United States v. Wright, 53 M.J. 476,
482 (C.A.A.F. 2000)). For the second prong, the military judge must “conclude that
the members could find by a preponderance of the evidence that the offenses
occurred.” Id.

We review a military judge’s decision regarding Mil. R. Evid. 413 for an
abuse of discretion. Solomon, 72 M.J. at 179. “The abuse of discretion standard is a
strict one, calling for more than a mere difference of opinion. The challenged action
must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United
States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (citations and internal quotation
marks omitted).

Here, the military judge found the threshold requirements were met both on
the record and in his detailed written ruling.’ Regarding the first prong, there is no
question that appellant was charged with two specifications of sexual assault.
Appellant has conceded as much in this appeal. With respect to the second prong,
the military judge correctly determined that the panel could find, by preponderance
of the evidence, that appellant committed the sexual offense of forcible sodomy
against Ms. LPB. As discussed in greater detail below, Ms. LPB initially stated to
law enforcement officials that the acts were consensual “as she was trying to be a
good submissive wife.” However, Ms. LPB further explained that she had never
wanted to engage in anal sex, told appellant to stop when he sodomized her, and he
became more aggressive when she tried to get him to cease. These facts taken
together are sufficient for the military judge to have determined that a panel could
find by a preponderance of the evidence that these sexual offenses occurred. See
Solomon, 72 M.J. at 179 (citing Wright, 53 M.J. at 483). As for the third prong, the
military judge correctly concluded that the evidence of forcible sodomy against Ms.
LPB was relevant under Mil. R. Evid. 401 and 402.

Thus, the military judge correctly concluded the evidence met all three Mil.
R. Evid. 413 threshold requirements.

4. Mil. R. Evid. 403 Balancing Test and the Wright/Berry Factors

Once the evidence meets the three threshold requirements under Mil. R. Evid.
413, “the military judge is constitutionally required to also apply a balancing test
under [Mil. R. Evid.] 403” to determine whether the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice. Solomon, 72 M.J. at
179-80 (citing Berry, 61 M.J. at 95). When conducting this balancing test, “the
military judge should consider the following non-exhaustive factors:” (1) strength of

 

> The military judge included his nineteen-page factual findings as Appellate Exhibit
XXXVII (sealed).
ESSARY—ARMY 20170556

proof of the prior act; (2) probative weight of the evidence; (3) potential for less
prejudicial evidence; (4) distraction of the factfinder; (5) time needed for proof of
the prior conduct; (6) temporal proximity; (7) frequency of the acts; (8) presence or
lack of intervening circumstances; and (9) the relationship between the parties. Id.
at 180 (citing Wright, 53 M.J. at 482).

If the “balancing test requires exclusion of the evidence, the presumption of
admissibility [that is inherent within Mil. R. Evid. 413] is overcome.” Berry, 61
M.J. at 95 (citing Wright, 53 M.J. at 482-83). “When a military judge articulates his
properly conducted [Mil. R. Evid.] 403 balancing test on the record, the decision
will not be overturned absent a clear abuse of discretion.” Solomon, 72 M.J. at 180
(citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)).

The military judge properly considered all of the following factors and
correctly determined that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice.

a. Strength of Proof of the Prior Act

In his written findings addressing the first Wright factor, the military judge
determined that:

[W]hen taken in context of the totality of her two detailed
interviews with CID which were, undoubtedly quite
embarrassing to participate in, it is plainly apparent that
the conduct of the Accused towards Ms. [LPB]
constitute[d] sexual assaults/forcible sodomy. During the
anal penetration, she told the Accused to stop, cried
throughout every assault, and ended up bleeding from her
anus as a result of at least one assault. The former spouse
... does not seem to have any motive to lie regarding
these matters as she is not seeking divorce or custody
benefits, and she was not looking to report these past
offenses. She only came forward with this report when
contacted by CID agents as part of their investigation into
the charged offenses in this case. Had she been bitter,
vengeful, or spiteful, she could have brought these reports
forward at any time in the last decade. [Ms. LPB’s]
testimony is detailed in both the conduct of the Accused
and the dialogue between them relating to the acts. Her
statements have many hallmarks of reliability including
their consistency, lack of motive to fabricate, reasonable
statements explaining her actions, the lack of
minimization of her own conduct, and detailed admissions
ESSARY—ARMY 20170556

regarding embarrassing details of her intimate life with
her former husband. All of that shared on two occasions
with agents she does not know and with no apparent
benefit to her for providing such information and enduring
such painful memories that she would, undoubtedly,
preferred not to have been called upon to relive.

For all of the reasons stated by the military judge above, we find that this
factor weighed heavily in favor of admission of the evidence.

b. Probative Weight of the Evidence

In addressing the probative weight of the evidence, the military judge stated
that the evidence was probative “of the accused’s propensity to commit... the
offense of forcible sodomy.” He concluded this evidence was particularly strong for
the following reasons: The acts involving SSG RK and Ms. LPB were remarkably
similar; in both cases, the appellant was in serious romantic relationships with the
victims; the acts occurred shortly after the relationships began; the forcible sodomy
took place along with acts of consensual vaginal sex; and that both victims told
appellant to stop, and yet he persisted. Finally, the military judge correctly
concluded that “[i]n both cases, the Accused minimized his assaultive behavior after
the fact with dismissive comments to the alleged victims.”

We agree with the military judge’s assessment of the probative value of this
evidence. The conduct during these incidents involving SSG RK and Ms. LPB was
strikingly similar, making the evidence highly probative, but not unfairly
prejudicial. This type of evidence is exactly what Mil. R. Evid. 413 was intended to
admit.

c. Potential for Less Prejudicial Evidence; Distraction of the Factfinder;
Time Needed for Proof of the Prior Conduct

Like the first two Wright factors above, we agree with the military judge’s
conclusion that there was no less prejudicial evidence available. Like the military
judge, we find distraction to the factfinder and time needed to prove the prior
conduct to be linked because the primary consideration for both was Ms. LPB’s
testimony only, which, as the judge correctly anticipated, was uncomplicated and not
particularly lengthy. The military judge also noted that a limiting instruction,
discussed below, would further clarify the proper use of the evidence.

This factor weighed in favor of admission of the evidence.
ESSARY—ARMY 20170556

d. Temporal Proximity of the Prior Act; Presence or a Lack of Intervening _
Circumstances

Concerning these Wright factors, the military judge’s written findings noted
that the appellant, who was between 29-33 years old when married to Ms. LPB and
42 years of age at the time of his relationship with SSG RK, was well into his adult
years with a presumably fully-formed cognitive and emotional skill set. Both Ms.
LPB and SSG RK were also mature adults at the time of the offenses. See Berry, 61
M.J. at 96 (“Where a defendant was an adult at the time he committed the prior
sexual assault, [the United States Court of Appeals for the Armed Forces] has found
incidents occurring more than eight years prior to the charged incident to be relevant
under [Mil. R. Evid.] 413”) (citations omitted).

The military judge also found that despite the gap of time between the events,
there were no intervening circumstances that would diminish the probative value of
the evidence.

Again, we agree that this factor weighed in favor of admission.

e. Frequency of the Acts

The military judge found that the proffered evidence included numerous acts
of sexual assaults by anal penetration of Ms. LPB over a four-year period.

This factor also weighs in favor of admission of the uncharged misconduct.
Jf. Relationship Between the Parties
The military judge correctly determined that the victims were similar; at the
time of the offenses, SSG RK was the appellant’s adult girlfriend and Ms. LPB was
the appellant’s wife.
This factor also weighs in favor of admission.
In total, we find that the military judge properly conducted the Mil. R. Evid.
403 balancing test and neither erred nor abused his discretion by admitting the prior
uncharged sexual offenses. His measured analysis on the record and in his written
ruling was reasonable and not clearly erroneous.
B. The Military Judge’s Instruction
Once evidence is admitted pursuant to Mil. R. Evid. 413, the panel members

must be given appropriate instructions. United States v. Dacosta, 63 M.J. 575, 582-
83 (Army Ct. Crim. App. 2006). In Dacosta, this court placed a duty on military
ESSARY—ARMY 20170556

judges to provide specific guidance to. panel members. /d. The military judge in
this case provided the following instructions:

You have heard evidence that the accused may have committed other sexual
offenses, specifically sexual assault by anal sodomy of his ex-wife, Ms.
[LPB]. The accused is not charged with these offenses. You may consider
the evidence of these other offenses with regard to Specification 2 of Charge
II, and to Specification 2 of Charge II only.

For this specification you may consider such evidence for its bearing on any
matter to which it is relevant, to include its tendency, if any, to show the
accused’s propensity to engage in sexual offenses. However, evidence of
another sexual offense on its own is not sufficient to prove the accused guilty
of a charged offense. You may not convict the accused solely because you
believe he committed another sexual offense or offenses, or solely because
you believe the accused has a propensity to engage in sexual offenses. Bear
in mind that the government has the burden of prove that the accused
committed each of the elements of each charged offense.

The military judge’s instructions were clear and proper. See United States v.
Rogers, 587 F. 3d 816, 822 (7th Cir. 2009) (“Congress has said that in a criminal
trial for an offense of sexual assault, it is not improper to draw the inference that the
defendant committed this sexual offense because he has the propensity to do so.”).

CONCLUSION
For the reasons stated above, we find the military judge did not abuse his
discretion in admitting appellant’s sexual misconduct against Ms. LPB.

Accordingly, the findings and sentence are correct in law and fact and are therefore
AFFIRMED.

Judge BROOKHART and Judge SCHASBERGER concur.

FOR THE COURT:

MAEBCOLM H.S IRES,
Clerk of Court
