

   
   
   
   U.S. v. Whitner



IN THE CASE OF
UNITED STATES, Appellee
v.
Paul E. WHITNER, Sergeant
U.S. Army, Appellant
 
No. 98-0837
Crim. App. No. 9501034
 
United States Court of Appeals for the Armed
Forces
Argued March 2, 1999
Decided September 24, 1999
 

SULLIVAN, J., delivered the opinion
of the Court, in which COX, C.J., CRAWFORD, and GIERKE, JJ., joined. EFFRON,
J., filed an opinion concurring in part and in the result.

Counsel
For Appellant: Captain Scott
A. De La Vega (argued); Colonel John T. Phelps II, and Lieutenant
Colonel Adele H. Odegard (on brief); Major Holly S. G. Coffey.
For Appellee: Captain Kelly R.
Bailey (argued); Colonel Russell S. Estey and Captain Mary
E. Braisted (on brief); Lieutenant Colonel Eugene R. Milhizer.
Military Judge: Patrick K. Hargus
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge SULLIVAN delivered the opinion of the
Court.
During the Spring of 1995, appellant, an E-5,
was tried by a general court-martial composed of officer and enlisted members
at Fort Irwin, California. Contrary to his pleas, he was found guilty of
"consensual" sodomy1 and
committing indecent acts with another soldier, an E-3, in violation of
Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§
925 and 934, respectively. On June 15, 1995, he was sentenced to a bad-
conduct discharge, total forfeitures, and reduction of E-1. On November
30, 1995, the convening authority approved the sentence except for a portion
of the forfeitures. The Court of Criminal Appeals affirmed the findings
of guilty and the approved sentence in an unpublished opinion dated February
10, 1997.
On September 28, 1998, the following issue
was granted for review by this Court:



WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY ALLOWING INTO EVIDENCE PROSECUTION EXHIBITS 1, 2, AND 3B BECAUSE THESE
MATERIALS WERE IRRELEVANT TO THE CHARGED OFFENSES AND BECAUSE THEIR PROBATIVE
VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE.



We hold that the military judge did not abuse
his discretion in determining that the challenged homosexual-oriented videotape
and magazine evidence was relevant and admissible at this court-martial.
See generally United States v. Rhea, 33 MJ 413 (CMA
1991); United States v. Orsburn, 31 MJ 182 (CMA 1990), cert.
denied, 498 U.S. 1120 (1991); United States v. Mann, 26 MJ 1
(CMA), cert. denied, 488 U.S. 824 (1988); see also
United States v. Acton, 38 MJ 331 (1993), cert. denied, 510
U.S. 1112 (1994).
This was a contested case of homosexual assault
where the accused did not testify in his own behalf. Instead, his defense
focused on the alleged victims lack of credibility and the scientific
impossibility of certain portions his testimony (i.e., the sleeping-orgasm
problem). The Court of Criminal Appeals found the following facts surrounding
this trial.



The appellant was charged, inter alia, with
forcible sodomy on another male soldier. The victim testified that he awoke
in his own barracks room when the appellant was biting him on the stomach
and sucking on his penis. The appellant said "God, youre beautiful" and
fled from the room. Earlier in the evening, the appellant had invited the
victim to sleep in his room.
When questioned by military law enforcement
personnel about the incident, the appellant admitted he was bisexual, that
he enjoyed oral sex with men, and that he owned homosexual literature and
videotapes. He also stated that he found the victim attractive, but could
not remember whether he had committed the alleged assault. The statement
was admitted into evidence during the court-martial.
Following a consent search of the appellants
room, military authorities seized several sexually explicit magazines,
catalogues, and videotapes. Over repeated defense objections, the military
judge admitted a video catalog describing and depicting homosexual activity,
a videotape showing two vignettes of homosexual oral sex (one of which
was in a military setting), a pamphlet with explicit pictures and descriptions
of a videotape entitled "Major Owens," and two sexually explicit homosexual
magazines. The government offered the items into evidence under Military
Rule of Evidence 404(b) [hereinafter Mil. R. Evid.] for motive and intent.
The military judge based his ruling, in part, on design and plan.



Unpub. op. at 1-2.
The military judge in this case admitted the
challenged videotape and related materials which had been seized during
a consent search of appellants barracks room on October 22, 1994. His
ruling was over defense objection that such evidence was impermissible
character evidence, irrelevant and its probative value, if any, was substantially
outweighed by its undue prejudicial effect. He stated:



Now, with respect to the items of real evidence
seized from the accuseds room, the court finds that, within the photographic
materials, there exists the theme or depiction . . . the theme of the photographic
materials that were seized from the accuseds room is a depiction of the
nude male body and the accompanying textural written material further identifies
this material as homosexual in nature, indicating male-and-male subject
matter. Now, the video material, or the extract of the videotape which
was played in court, depicts homosexual acts between males, predominantly
performing fellatio.
The defense has objected to this evidence as
being character evidence and intermixing its objection as being 404(b)
and character. The court finds that this is not character evidence and,
as to it being covered by Military Rule of Evidence 404(b), the court finds
that this is circumstantial evidence . . . these exhibits may provide circumstantial
evidence of motive and intent on the part of the accused and are probative
on that basis.
The defense has objected that these matters
are also irrelevant. The court finds that they are relevant to show the
requisite sexual desire of the accused, which is embodied within the offense
charged or the lesser-included offenses.
The defense has moved that the evidence should
be excluded under Military Rule of Evidence 403. The court finds that its
prejudicial effect does not outweigh its probative value and, accordingly,
the exhibits are not inadmissible for the reasons urged by the defense,
and the motion is denied.
However, with regard to the video material,
the court does sustain the objection with regard to the approximate last
15 to 30 seconds of the depiction in the last vignette, which apparently
depicts the two individuals about to engage in anal intercourse. That has
nothing to do with this case, so that portion shall be redacted from the
videotape.



He reaffirmed this ruling later in the trial when
he admitted, as government evidence, a pretrial statement of appellant
acknowledging his bisexuality, more specifically admitting his prior engagement
in oral sex and his finding men sexually attractive and the alleged victim
"nice looking."
He did, however, instruct the members concerning
the proper use of this videotape evidence, as follows:



MJ: Very well, Prosecution Exhibits 1, 2,
4, and 5 for identification are received into evidence as Prosecution Exhibits
1, 2, 4, and 5.
Now, members, these will be provided to you
at the appropriate time in the trial. However, I would also want to caution
you at this time, generally . . . and I will reiterate this again at a
later point . . . that you may consider this evidence which has been admitted
for the limited purpose of its tendency, if any, to prove a motive of the
accused to engage in oral sodomy or to show a plan or design by the accused
to sodomize or indecently assault another individual, and as evidence of
its tendency, if any, to show the accuseds sexual desires in these regards.
Now, you may not consider this evidence otherwise,
for any other purpose. You cannot conclude from this evidence that the
accused is, therefore, a bad person or that he has criminal tendencies
and that he is, therefore, more likely to have committed the offenses charged.
Now, does each member understand this limiting
instruction and the limited purposes for which you may consider this evidence?
(Affirmative response from each member.)
MJ: Apparently so.



He substantially repeated this instruction when
the challenged videotape was admitted and played for the members, as well
as during final instructions.

___ ___ ___
Appellant pleaded not guilty to various sex
offenses (forcible sodomy and indecent assault) and related offenses (larceny,
housebreaking, burglary) which involved homosexual acts with a subordinate
servicemember in that servicemembers barracks room. He asserts that the
sexually explicit, homosexual-oriented, materials seized from his own room
in this same barracks were improperly admitted as evidence at his court-martial.
He argues that this evidence was not relevant to any issue in his case.
See Mil. R. Evid. 401-402, Manual for Courts-Martial, United States
(1994 edition).2 He also
argues that, assuming some relevance for this evidence, its graphic depiction
of homosexual sex unfairly exposed him to a significant danger of conviction
on the basis of the members adverse emotional reaction to it. See
Mil. R. Evid. 403. We disagree.
Our starting point in reaching this conclusion
is Mil. R. Evid. 401. It states:



Rule 401. Definition of "relevant evidence"
"Relevant evidence" means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable tha[n] it would
be without the evidence.



The military judge was initially tasked with determining
whether the prosecutions evidence of appellants homosexual videotape
and similar materials was relevant under the above rule. We review his
decision on relevance under a clear-abuse-of-discretion standard. See
Orsburn, 31 MJ at 187.
As noted above, appellant was charged with
several crimes involving homosexual conduct toward a fellow servicemember
in their barracks. These charges required the prosecution to prove beyond
a reasonable doubt that appellant had an intent to orally sodomize the
alleged victim, an intent to gratify his lust or sexual desires, and an
intent to commit indecent acts with him. See Art. 125 and paras.
64, 63, and 90, Part IV, Manual, supra (1994 edition). We have repeatedly
recognized that an accuseds possession of pornographic books, magazines,
or videos concerning a particular sex partner or sexual act, at or near
the scene of an alleged sex crime, around the time of that alleged offense
may be relevant evidence of his intent or state of mind at that time, depending
upon the circumstances of a particular case.3
See United States v. Mann, United States v. Orsburn,
and United States v. Rhea, all supra. In view of this case
law, the military judge in this case did not err in admitting the challenged
evidence to show the above-noted intents required to prove the crimes charged
in this case. See United States v. Simpson, 152 F.3d 1241,
1249 (10th Cir. 1998); contra People of Guam v. Shymanovitz,
157 F.3d 1154, 1158 n.8 (9th Cir. 1998) (discussing military
cases).
The military judge also admitted the challenged
evidence to show appellants motive for committing the charged offenses.
See generally 2 Wigmore, Evidence §§ 385-87
(Chadbourn rev. 1979). Such an evidentiary fact is circumstantial evidence
that appellant did the charged acts. Motive evidence shows the doing of
an act by a particular person by evidencing an emotional need in that person
which could have incited or stimulated that person to do that act in satisfaction
of that emotion. See United States v. Watkins, 21 MJ 224,
227 (CMA), cert. denied, 476 U.S. 1108 (1986). In our view, appellants
possession of a large number of homosexual materials in his military barracks
room on the day of the offense, including some depicting acts similar to
those particularly charged, reasonably suggests an emotional need for his
committing the charged homosexual-related misconduct, i.e., his
sexual desire for junior enlisted men. See United States v. Rhea,
supra; see generally 2 Wigmore, supra, §
399.
The military judge finally admitted the homosexual-oriented
materials to show a plan or design on appellants part to commit the charged
offenses. He reviewed the proffered tape and related materials and concluded
they depicted a plan or method to secure homosexual sex from unsuspecting
servicemembers. See generally United States v. Brannan,
18 MJ 181, 183 (CMA 1984). Materials suggesting sexual abuse of the superior-subordinate
relationship in the military environment or coercive sexual conduct in
a military-type environment rationally support this ruling. See
United States v. Miller, 46 MJ 63, 66 (1997).
The second question in this case is raised
under Mil. R. Evid. 403. It states:



Rule 403. Exclusion of relevant evidence
on grounds of prejudice, confusion, or waste of time
Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the members, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.



Appellant argued at trial and before this Court
that the challenged evidence was unduly prejudicial because it generally
inflamed the members against predatory or promiscuous homosexuals and thus
distracted them from deciding his case based on the particular evidence
before them. The military judge again was tasked with determining whether
the videotape and related materials should be excluded because of their
low probative value and their tendency to inflame the members. See
United States v. Walker, 42 MJ 67, 73-74 (1995). We review his decision
overruling an objection under this rule using a clear-abuse-of- discretion
standard. See United States v. Ruppel, 49 MJ 247, 250 (1998).
Appellant was charged with forcible sodomy
(Art. 125 and para. 51b, Part IV, Manual, supra); burglary with
intent to commit sodomy (Art. 129, UCMJ, 10 USC § 929, and para. 55b);
housebreaking with intent to commit sodomy (Art. 130, UCMJ, 10 USC §
930, and para. 56b) or indecent assault with intent to gratify his sexual
desires (Art. 134 and para. 63b) or indecent acts (Art. 134 and para. 90c).
As noted above, these provisions of military law required the prosecution
to show appellants state of mind or intent during the charged acts and
the nature of his sexual desires at those times. See Art. 51(c),
UCMJ, 10 USC § 851(c). The defenses failure to specifically contest
these intent issues did not remove the Governments burden of proof on
these elements of the offenses or render this evidence unduly prejudicial.
See Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 481
(1991) (effect of defense tactical decision not to contest); cf.
Old Chief v. United States, 519 U.S. 172, 174, 117 S. Ct. 644, 647
(1997) (effect of defense offers to stipulate on a non-intent issue). Accordingly,
the challenged evidence was proffered on important or viable issues in
this case. See Simpson, 152 F.3d at 1249 (evidence of possession
of child pornography necessary to prove required element of knowledge and
lack of mistake); cf. Shymanovitz, 157 F.3d at 1158 (evidence
of sexually explicit gay adult magazines not relevant because actual intent
in touching minors not required to be proved).
Appellant nevertheless argues that the challenged
evidence had reduced or low probative value on these issues because appellant
affirmatively relied on a consent defense and acknowledged his bisexuality.
Cf. Mann, 26 MJ 1, 4 (accuseds outright denial increased
probative value of pornographic- magazine evidence). We have reviewed the
record and conclude otherwise. The defense's primary position in this case
was that appellant could not remember what happened on the night in question
and the alleged victim was providing patently false details in his testimony
which should cause it to be rejected in its entirety (falsus in uno, falsus
in omnibus, see United States v. Baldwin, 10 USCMA 193, 27
CMR 267 (1959)). As an alternative, he conceded that the alleged victim
may have consented to oral sex with "somebody." Finally, only as a last
resort did he vaguely suggest his own consensual conduct and such equivocation
did not clearly remove the intent issues from this case. 26 MJ at 4; see
Orsburn, 31 MJ at 188 (no defense concession).
We also reject the defenses discounting of
the probative value of this evidence on grounds it was cumulative. First,
the purported cumulative evidence, i.e., appellants pretrial admissions,
were more generic in nature and undermined by appellants repeated protestations
that he was too drunk to remember his actions and intentions on the night
in question. See Old Chief, supra at 187-90, 117 S.Ct.
at 654. Second, the challenged evidence was specific in nature, particularly
with regard to context, i.e., oral sex between men in a military
or quasi-military setting. Third, the challenged evidence had a nexus to
the charged offenses: it was found in appellants room on the day in question,
a short distance from the alleged attack. We conclude that the challenged
evidence retained its high probative value in these circumstances. See
United States v. Mann, supra; see generally
Old Chief, supra at 190 (admission of prior-crimes evidence
to provide coherent "narrative" does not constitute an abuse of discretion
under Fed. R. Evid. 403).
Finally, even if the challenged pictorial evidence
was not highly probative, we conclude that its admission and display to
members did not unduly prejudice appellant. See United States
v. Abel, 469 U.S. 45 (1984). He was charged with two sexual offenses
involving force and a lack of consent on the part of his alleged victim.
Yet, despite the coercive homosexual acts portrayed in some of the challenged
materials, he was found not guilty of these charges. Cf.
Shymanovitz, supra at 1161 ("highly likely" accused found
guilty on basis of "highly inflammatory" evidence). In addition, although
appellant was found guilty of two sexual offenses not requiring force or
a lack of consent, he did not actively dispute the prosecutions overwhelming
proof of his participation in these lesser offenses. Here, there was eyewitness
testimony concerning appellants acts from the other soldier involved;
DNA evidence of the alleged victims semen on appellants shirt; and his
own pretrial statement effectively acknowledging his physical attraction
to the other soldier. See also United States v. LaChapelle,
969 F.2d 632, 638 (8th Cir. 1992). In these circumstances, and
in view of the judges repeated limiting instructions, we conclude that
appellants claim of unfair prejudice from these sexually explicit materials
is not persuasive. Orsburn, 31 MJ at 188; see also
Simpson, 152 F.3d at 1249 (nature of charges themselves brings some
risk of offending average juror but careful judicial attention can prevent
undue prejudice); United States v. Reynolds, 29 MJ 105, 110 (CMA
1989) (unfair-prejudice ruling upheld concerning uncharged sexual misconduct
admitted under Mil. R. Evid. 404(b)).
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 Consent is not an element
of a sodomy offense in violation of Article 125. See para. 51e,
Part IV, Manual for Courts-Martial, United States (1994 edition). Lack
of consent, however, does authorize a more severe punishment. Note that
the maximum punishment for forcible sodomy was substantially increased
effective December 9, 1994, see Manual, supra (1998 edition)
at A25-24, which was after this offense was committed.
2 All
Manual provisions are cited to the version applicable at trial. The 1998
version is unchanged, unless otherwise indicated.
3 This
evidence was not admitted as general character evidence. Cf. United
States v. Gagan, 43 MJ 200, 203 (1995) (use of past sexual behavior
as character evidence).
 
 
EFFRON, Judge (concurring in part and in the
result):
To the extent that the majority opinion relies
upon the admission into evidence of material that logically relates to
the specific aspects of this case (e.g., suggesting sexual abuse of the
superior-subordinate relationship or coercive sexual conduct in a military-type
environment), I concur. The remaining materials at issue, which relate
to the general sexual interests of appellant, is of questionable relevance
under Mil.R.Evid. 401 and 402, under the circumstances of this case.
I concur on the grounds that admission of such material in this case was
harmless under Mil.R.Evid. 401-403, particularly in light of the
admissible material and appellant's acknowledgement of his sexual interests.

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