

   
   
   
   U.S. v. Burns



UNITED STATES, Appellee
v.
Michael J. BURNS, Airman Basic
U.S. Air Force, Appellant
 
No. 99-0474
Crim. App. No. 32841
 
United States Court of Appeals for the Armed
Forces
Argued December 8, 1999
Decided May 18, 2000
The Court delivered a Per Curiam opinion.
SULLIVAN, J., filed an opinion concurring in part and in the result.

Counsel
For Appellant: Major Thomas R. Uiselt
(argued); Colonel
Jeanne M. Rueth (on brief); Colonel
Theodore J. Fink and Lieutenant Colonel Ray T. Blank, Jr.
For Appellee: Major Bryan T. Wheeler
(argued); Colonel
Anthony P. Dattilo, Lieutenant Colonel
Ronald A. Rodgers, and Lieutenant Colonel William B. Smith,
USAFR (on brief); Major J. Robert Cantrall.
Military Judge: Keith L. Roberts
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

PER CURIAM
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of conspiring
to commit rape and committing indecent acts, in violation of Articles 81
and 134, Uniform Code of Military Justice, 10 USC §§ 881 and
934, respectively. He was sentenced to a bad-conduct discharge, confinement
for 12 months, and total forfeitures. The convening authority approved
the bad-conduct discharge but exercised clemency by reducing the length
of confinement to 160 days and the period of forfeitures to 5 months. The
Court of Criminal Appeals affirmed the findings and sentence.
On appellants petition, we granted review
of the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT BY ADMITTING, OVER DEFENSE OBJECTION, A CONDOM FOUND
UNDER APPELLANTS BED.

We hold that the military judge did not err in
admitting this evidence.

STATEMENT OF FACTS
On July 6, 1996, CK, a female airman, attended
a party at appellant's apartment. Appellant had rented the two-room (living
room and bedroom) apartment days earlier in
anticipation of the arrival of his wife and
young daughter. CK testified that she did not know appellant well, as she
had never spoken to him before and had seen him only in basic training.
Appellant apparently thought of CK on more intimate terms; Airman Crawford,
a friend of appellant, testified that appellant had told him he wanted
to have sex with CK. CK thought that this party was going to be a friendly
gathering, but as the night wore on and the partygoers began drinking more
and more alcohol, things went awry.
The partygoers consumed large amounts of beer
and liquor, so much, in fact, that one airman named Goldwire vomited and
had to be put in the bedroom. There was testimony that the young airmen
at the party, including CK, were playing drinking games, bantering back
and forth, and dancing for hours. As the party began to die down, there
were only four people left at the apartment: CK, appellant, Goldwire, and
another airman named Merritt. CK testified that she felt comfortable with
these airmen and was having fun at the party. After several hours of drinking,
CK, Merritt, and appellant all fell asleep on the couch in the living room,
while Goldwire remained passed out in the bedroom.
When CK awoke, she found herself naked in the
bedroom with Goldwire on top of her, his penis penetrating her vagina.
She heard other voices in the room and began struggling. She heard Goldwire
tell someone to hold her down and suddenly her wrists were pinned above
her head. She struggled until Goldwire and whoever was holding her wrists
let her go. She raced into the living room, grabbing whatever clothes she
could find on her way out of the bedroom. When she got into the living
room of this two-room apartment, she saw no one there. After leaving the
apartment, she was picked up by two people driving by who noticed something
was wrong and took her back to base.
As CK was attempting to leave, Airman Crawford
was returning to the apartment to drive the partygoers back to base.1
He testified that when he went into the apartment, Goldwire was outside
trying to prevent CK from leaving, Merritt was cleaning the apartment,
and appellant was on the couch in the living room pretending to be asleep.
Appellants apartment was searched by law enforcement
on July 7, 1996. The bed sheets were found in a closet, and an unopened
condom was found and photographed at the head of the bed on the floor.
Later that same morning, appellant was interviewed by Special Agent (SA)
Franklin. Appellant gave a sworn statement in which he admitted that while
CK was asleep on the couch, he and Merritt had undressed her and molested
her: "When we woke up me (sic) and Merritt got the idea to take off her
pants.... The only thing me and Merritt did was take off her pants and
underwear and play with her breasts." The statement also makes it clear
that appellant was present while Goldwire had intercourse with CK.
The Government offered into evidence a photograph
of the unopened condom package found in the bedroom, arguing that "the
existence of this kind of sexual paraphernalia ... in the apartment, is
relevant.... It helps to show the existence of a conspiracy with regard
to the activity of rape...." The defense objected on the grounds of relevance
and also argued that the condom was prejudicial. The military judge reserved
his ruling on the admissibility until a future time when trial counsel
had called witnesses to lay a proper foundation for the evidence.
The Government called SA Ware, who conducted
the search of the apartment, and appellants first sergeant, who testified
that appellant had moved into the apartment only a few days before the
rape. After the testimony of these two witnesses, the military judge admitted
the photograph of the condom over defenses renewed relevance objection.
On appeal, appellant argues that the admission
of the condom was erroneous because there was no evidence to connect it
to appellant or any agreement involving appellant. In the absence of some
link to appellant, the defense argues that the admission of the condom
was unduly prejudicial. Additionally, the defense contends that this evidence
was prejudicial because the Government, in closing argument, exacerbated
the impact of the evidence by mentioning the condom. We find these arguments
unpersuasive for the reasons discussed below.

DISCUSSION
Relevant evidence is that which has "any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence." Mil.R.Evid. 401, Manual for Courts-Martial, United States (1995
ed.).2 "All relevant evidence
is admissible, except as otherwise provided.... Mil.R.Evid. 402. Relevant
evidence is necessary if not cumulative and it "contribute[s] to a party's
presentation of the case in some positive way on a matter in issue." United
States v. Abrams, 50 MJ 361, 362 (1999); RCM 703(f)(1), Discussion,
Manual, supra.
The lower court found the condom to be relevant
in order to show a conspiracy to have sexual intercourse with CK, and as
corroboration of CK's assertions that the rape occurred in the bedroom.
We agree. The photo of the condom was both logically and legally relevant.
See
Mil.R.Evid. 401 and 402. Furthermore, the probative value of this evidence
was not substantially outweighed by any danger of unfair prejudice. Mil.R.Evid.
403.
The photograph of the unopened condom presents
a backdrop that is probative of what happened. It is not the type of evidence
that would invoke passions or lead to an erroneous finding. The evidence
of the condom need not be linked directly to appellant. This was a conspiracy
prosecution, and it was enough that the condom was reasonably linked to
one of the co-conspirators in the bedroom that night. It was up to the
jury to decide what inferences, if any, to draw from this prosecution exhibit,
in light of all of evidence considered in context.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Airman Crawford
corroborated the victims testimony by testifying that when he left the
party there were only four people in the apartment -- appellant, CK, Goldwire,
and Merritt -- and when he returned, the same four people were there.
2
All Manual provisions are cited to the version in effect at the time of
trial. The 1998 version is unchanged, unless otherwise indicated.


SULLIVAN, Judge (concurring in part and in
the result):
The victim alleged that she was raped by A1C
G while being held down by an unseen person in appellant's bedroom. Appellant
asserted in a pretrial statement that he only watched the alleged victim
have consensual sex with A1C G on appellant's living room couch and not
in his bedroom. The police discovery of an unopened condom under appellant's
bed was "res gestae" evidence, which might corroborate the
alleged victim's testimony at least as to the location of the alleged act
of sexual intercourse. United States v. Kloock, 652 F.2d 492, 495
(5th Cir. 1981); see Beeler v. State, 374 S.W.
2d 237, 239 (Tex.Crim. App. 1964). This clearly was relevant evidence within
the meaning of Mil. R. Evid. 401.
In addition, I am not persuaded that proof
of presence of the unopened condom also shows a conspiracy or is relevant
to proof of a charge of conspiracy to rape. The Court of Criminal Appeals
rationale on this point is total speculation, but I see no substantial
prejudice in its proffered use for this purpose. Art. 59(a), UCMJ, 10 USC
§ 859(a). Accordingly, I would affirm.


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