          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                          UNITED STATES

                                                    v.

                           Senior Airman SHELBY L. WILLIAMS
                                   United States Air Force

                                              ACM 38454

                                             19 June 2015

         Sentence adjudged 23 May 2013 by GCM convened at Keesler Air Force
         Base, Mississippi. Military Judge: Lynn Schmidt.

         Approved Sentence: Bad-conduct discharge, confinement for 2 years, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Major Jeffrey A. Davis and Meghan
         Peters, Esquire.

         Appellate Counsel for the United States: Captain Richard J. Schrider and
         Gerald R. Bruce, Esquire.

                                                 Before

                                ALLRED, HECKER, and TELLER
                                   Appellate Military Judges

                                    OPINION OF THE COURT
         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                             under AFCCA Rule of Practice and Procedure 18.4.




HECKER, S.J., delivered the opinion of the court, in which Teller, J., joined. Allred,
C.J., filed a dissenting opinion.

       A general court-martial composed of officer and enlisted members convicted the
appellant, contrary to his plea, of rape, in violation of Article 120, UCMJ, 10 U.S.C.
§ 920. He was sentenced to a bad-conduct discharge, confinement for 2 years, and
reduction to E-1. The convening authority approved the sentence as adjudged.
       On appeal, the appellant contends (1) the military judge abused her discretion in
admitting certain evidence under Mil. R. Evid. 413, (2) the military judge erred to the
prejudice of the appellant by admitting evidence of the victim’s pregnancy and/or
miscarriage without separately analyzing the admissibility of that evidence, (3) the
evidence is legally and factually insufficient to sustain his conviction, (4) the military
judge abused her discretion by refusing to admit a prior inconsistent statement of the
alleged victim, and (5) trial counsel’s sentencing argument was improper. We find the
military judge erred in admitting certain evidence and set aside the appellant’s
conviction.

                                       Background

       The appellant met Senior Airman (SrA) SG in February 2010 via an online search
engine that SrA SG had used to look for individuals in her location who shared her
interest in anime, a form of Japanese animation. According to SrA SG, the appellant
soon told her that he loved her, and the two began a relationship shortly thereafter. They
married in June 2010. The forcible rape charge in this case stemmed from a 2 May 2010
sexual encounter between the two.

       In April 2012, several months after the couple separated, SrA SG reported to the
Air Force Office of Special Investigations that, among other allegations, the appellant had
engaged in sexual intercourse with her multiple times in 2010 while she was asleep and
without her consent. By the time of trial in May 2013, the two had a one-year-old child
together but were in the midst of a contentious divorce and custody battle.

                      Admission of Evidence under Mil. R. Evid. 413

       The military judge denied the government’s request to present evidence under
Mil. R. Evid. 404(b) that, on multiple occasions prior to and after the charged offense, the
appellant had engaged in sexual intercourse with SrA SG while she was asleep and thus
not consenting. The military judge found the members were likely to improperly use this
as propensity evidence that the appellant had engaged in this activity in the past. After
applying the balancing test of Mil. R. Evid. 403, she excluded the evidence.

       After hearing the military judge’s ruling, trial counsel asked to be further heard on
the issue, and subsequently moved to admit evidence of only one such incident pursuant
to Mil. R. Evid. 413(a), which states: “In a court-martial in which the accused is charged
with an offense of sexual assault, evidence of the accused’s commission of one or more
offenses of sexual assault is admissible and may be considered for its bearing on any
matter to which it is relevant.” Trial counsel described the incident as one where SrA SG
“was sleeping, woke up the next morning, and later in the day found sperm in her
underwear and ultimately determined that she was pregnant as a result of that. She
doesn’t remember the sexual encounter but, obviously, can put two and two together.”


                                             2                                    ACM 38454
       SrA SG had testified about this specific incident at an Article 39(a), UCMJ,
10 U.S.C. § 839(a), session held prior to the military judge’s ruling. She stated she fell
asleep in the appellant’s apartment on 7 April 2010 after the two watched a movie. She
awoke the next morning to find the appellant next to her in the bed. She got dressed and
went to her dormitory room, changed clothes, and went to work. When she returned
home after work, she noticed sperm in her underwear. She had no recollection of
engaging in sexual intercourse the prior night and described herself as a heavy sleeper;
she further testified that the appellant had worn a condom during all previous sexual
encounters. SrA SG asked the appellant whether anything had happened the previous
night, but he did not admit to engaging in sexual intercourse with her. 1 At her request, he
purchased an emergency contraceptive medication designed to prevent pregnancy
following an unprotected sexual encounter. SrA SG took the medication.

        The government also elicited testimony during the motion hearing concerning
SrA SG’s subsequent pregnancy and miscarriage. SrA SG testified that several weeks
later, she took a home pregnancy test that was positive, and that she believed this
pregnancy resulted from the 7 April 2010 encounter. She later suffered a miscarriage and
testified that her doctor told her the fetus was six weeks old when it died. She testified
that the miscarriage did not occur until a month after the fetus died. Although she
acknowledged that no medical determination had been made about why the fetus died,
she testified that she had experienced sharp uterine pains and spotting after the charged
assault on 2 May 2010, and that “the fetus could not live anymore” and died on
approximately 21 May 2010 (six weeks after the 7 April 2010 assault). In support of its
motion to admit evidence about the 7 April 2010 incident under Mil. R. Evid. 413, the
government also provided the military judge with SrA SG’s medical records from
16 and 21 June 2010, arguing SrA SG’s testimony about the pregnancy and her medical
records demonstrated the “strength of [the] proof” that the 7 April 2010 sexual assault
occurred.

       Over defense objection to any testimony by SrA SG about the 7 April 2010
incident, the military judge granted the government motion to admit that evidence to
show the appellant had a propensity to commit sexual assault. In her ruling, she
described the government’s intended evidence as:

                 [SrA SG] testified that in [sic] on or about 7 April 2010,
                 while she was sleeping, the [appellant] had sex with her while
                 she was asleep. She further testified that she had been with

1
  The government also presented testimony from another Airman who watched the movie with the couple that
evening. According to this Airman, the appellant told him the next day that Senior Airman (SrA) SG had said she
felt she had been raped, but he did not indicate when this had allegedly occurred. The Airman said the appellant
denied raping her and stated that SrA SG had not told him to stop. In his testimony, the appellant testified that he
had relayed this information to the Airman at a later time.


                                                         3                                             ACM 38454
                 the [appellant] the night of the 7th, woke up late for work on
                 the 8th, got dressed and later that day, she noticed sperm in
                 her underwear. Based on this, she came to the conclusion that
                 the [appellant] had had sex with her on the night of the 7th.
                 She testified further that she was not actually aware of the
                 sexual intercourse as she was asleep.           According to
                 documents presented during this motion, on or about 16 June
                 2010, [SrA SG] had a pre-natal follow-up appointment which
                 would indicate that she was pregnant, though there were
                 complications noted with the pregnancy and ultimately she
                 miscarried.

       The military judge granted the government’s request to admit this evidence under
Mil. R. Evid. 413. She first found the 7 April 2010 sexual encounter met the threshold
requirements for admissibility, stating “the probative value of the uncharged conduct in
this case substantially outweighs any danger of unfair prejudice and confusion of the
issues” under Mil. R. Evid. 403.2

       Following that ruling, SrA SG testified before the members. She described falling
asleep after watching a movie, finding dried sperm in her underwear, and fearing she
could become pregnant. She did not recall any sexual contact with the appellant during
the night in question. Because she did not wake up, SrA SG testified that she assumed
the appellant had sexual intercourse with her while she was asleep but did not apply
sufficient pressure to her to wake her up. She also testified about taking the emergency
birth control before discovering she was pregnant.

       In describing the charged incident, SrA SG testified that she fell asleep in the
appellant’s bed in his dormitory room and awoke to the feeling of a “huge weight”
pinning her to the bed on her stomach. She testified the appellant was “slamming” and
“forcing” his penis into her vagina while his arms and legs were on top of hers. She told
him to stop and that he was hurting her, but “he was not comprehending what [she] was
saying.” SrA SG testified that after about five minutes, she changed her words to: “Stop,
you’re hurting my arms.” At this, the appellant reacted by removing his arms, and she
was then able to push him off. SrA SG stated she “felt like [her] uterus was going to fall
out” after this incident.

       SrA SG also testified about the manner in which her pregnancy ended in greater
detail than she testified in the Article 39(a), UCMJ, session. She described having
persistent sharp pains in her uterine area immediately after this 2 May 2010 incident as
well as bleeding, which continued “until the sixth week of the pregnancy,” at which time

2
  Mil. R. Evid. 403 states relevant evidence may be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice [or] confusion of the issues.”


                                                        4                                             ACM 38454
she claimed the fetus died. She testified that the fetus died around 21 May 2010, but she
did not miscarry until 21 June 2010. She described the appearance of the miscarried fetus
in graphic terms during her testimony and stated she was “devastated” and emotionally
“very, very dead inside” afterward.

                                         Analysis

        As noted above, the military judge’s Mil. R. Evid. 413 ruling authorized trial
counsel to elicit testimony from SrA SG about the 7 April 2010 incident, the pregnancy
that allegedly resulted from that assault, and the subsequent miscarriage of the fetus. We
first address whether the military judge erred in how she addressed each of those subjects
as part of her ruling.

       Mil. R. Evid. 413(a) allows evidence of an uncharged sexual assault to be admitted
and “be considered for its bearing on any matter to which it is relevant.” This includes
demonstrating an accused’s propensity to commit the charged offenses.
See United States v. Parker, 59 M.J. 195, 198 (C.A.A.F. 2003); United States v. Wright,
53 M.J. 476, 480 (C.A.A.F. 2000). Our superior court has noted that “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). Certain procedural safeguards are required in order
to protect the accused from an unconstitutional application of Mil. R. Evid. 413.
See United States v. Schroder, 65 M.J. 49, 55 (C.A.A.F. 2007). This includes the
requirement that the military judge make “threshold findings” that (1) the accused is
charged with sexual assault; (2) the proffered evidence is evidence of his commission of
another offense of sexual assault; and (3) the evidence is relevant under Mil. R. Evid. 401
and 402. See id.; United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013).

        Once these threshold findings are made, the military judge is constitutionally
required to apply a balancing test under Mil. R. Evid. 403. Berry, 61 M.J. at 95. Mil. R.
Evid. 403 provides that “[a]lthough 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.” Although a general presumption of
admissibility is inherent in Mil. R. Evid. 413, the Constitution requires that such evidence
be subjected to a “thorough” and “careful” balancing test due to the potential for undue
prejudice that is inevitably present when dealing with propensity evidence. Solomon,
72 M.J. at 181. “Where that balancing test requires exclusion of the evidence, the
presumption of admissibility is overcome.” Id. (quoting Berry, 61 M.J. at 95 (internal
quotation marks omitted). In conducting the balancing test for Mil. R. Evid. 413
evidence, our superior court has been instructive:

              [T]he military judge should consider the following
              non-exhaustive [Wright] factors to determine whether the


                                             5                                    ACM 38454
              evidence’s probative value is substantially outweighed by the
              danger of unfair prejudice: strength of proof of the prior act
              . . .; probative weight of the evidence; potential for less
              prejudicial evidence; distraction of the factfinder; time needed
              for proof of the prior conduct; temporal proximity; frequency
              of the acts; presence or lack of intervening circumstances; and
              the relationship between the parties.

Solomon, 72 M.J. at 180. Our superior court has found error when a military judge’s
balancing under Mil. R. Evid. 403 fails to discuss and reconcile evidence that greatly
reduces the strength of the proof of the prior act. Id. at 181.

       We review a military judge’s decision to admit evidence pursuant to
Mil. R. Evid. 413 for an abuse of discretion, including her decision that it meets the
threshold requirements for such evidence and her balancing test under Mil. R. Evid. 403.
See Solomon, 72 M.J. at 179; Berry, 61 M.J. at 95. During the motion hearing, the
government elicited testimony from SrA SG about the pregnancy and miscarriage as part
of its proposed Mil. R. Evid. 413 evidence. The military judge’s subsequent ruling
authorized the admission of evidence of the 7 April 2010 incident, the pregnancy that
allegedly resulted from that assault, and the June 2010 miscarriage, all under the auspices
of Mil. R. Evid. 413. The military judge’s ruling focused, however, on the admissibility
of SrA SG’s testimony about the April 2010 incident itself. The military judge found the
three threshold requirements were met for the admission of the April 2010 incident under
Mil. R. Evid. 413. She also analyzed the Wright factors relative to the incident and
concluded the probative value of this evidence substantially outweighed any danger of
unfair prejudice and confusion of the issues in the case.

        Because the military judge did not discuss how evidence regarding the pregnancy
or miscarriage was admissible (as part of the government’s Mil. R. Evid. 413 evidence or
otherwise) or how the balancing test of Mil. R. Evid. 403 applied to that evidence, we are
left without an understanding of the military judge’s decision-making process and must
give that aspect of her decision less deference. See United States v. Flesher, 73 M.J. 303,
312 (C.A.A.F. 2014). Similarly, when factual issues are involved in the litigation of a
motion, a military judge “has a mandatory sua sponte duty to state the essential findings
on the record which support his or her ruling.” Id. (quoting United States v. Doucet,
43 M.J. 656, 659 (N.M. Ct. Crim. App. 1995)) (internal quotation marks omitted). It is
very difficult for an appellate court to determine the facts relied upon, whether the
appropriate legal standards were applied or misapplied, and whether the decision amounts
to an abuse of discretion or legal error without a proper statement of essential findings.
See id.; United States v. Acton, 38 M.J. 330, 334 (C.M.A. 1993) (holding a military judge
is not required to make special findings, but “it is difficult to defer to a decision when the
record does not reflect what the basis of the decision was”). Accordingly, we give less
deference to a military judge who fails to place sufficient evidence on the record to


                                              6                                    ACM 38454
demonstrate that she acted within the bounds of her discretion when admitting evidence.
See id. at 317.

       Given the unique facts of this case, the military judge had a duty to separately
consider, evaluate, and discuss the admissibility of the pregnancy and the miscarriage.
Cf. United States v. Diaz, 59 M.J. 79, 94 (C.A.A.F. 2003) (holding that each alleged
incident of uncharged misconduct must meet the admissibility test and the prosecution
“cannot merely lump together a series of incidents and assert that together they establish
[the accused] committed each act of abuse.”). Her admission of that evidence without
factual findings or analysis results in that decision being given considerably less
deference. When considered within the totality of the evidence presented at trial, it was
error for the military judge to allow the admission of evidence about the pregnancy and
miscarriage as part of the Mil. R. Evid. 413 evidence.3

       To be admissible, evidence must be logically relevant to a fact of consequence in
the case by making that fact “more probable or less probable.” United States v. Staton,
69 M.J. 228, 230–31 (C.A.A.F. 2010); see also Mil. R. Evid. 401. There are two
components to relevancy: “(1) probative value, the relationship between the evidence
and the proposition it is offered to prove; and (2) materiality, the relationship between the
proposition the evidence is offered to prove and the facts at issue in the case.”
United States v. James, 63 M.J. 217, 221 (C.A.A.F. 2006). Although the relevance
standard is a low one, there must be “a real and direct nexus” between the proffered
evidence and a fact or issue in the case. United States v. Sullivan, 70 M.J. 110, 115
(C.A.A.F. 2011). In her Mil. R. Evid. 413 ruling, the military judge simply found that the
government’s “proffered evidence meets the low threshold of relevance and is
admissible.”

       Having reviewed the medical records considered by the military judge prior to her
ruling about this evidence, we find that those records do not facially match SrA SG’s
claim that she became pregnant through the 7 April 2010 encounter despite having
promptly taken an emergency contraceptive designed to reduce the risk of pregnancy.
The medical records from her appointment on 16 June 2010 indicated that SrA SG had

3
 We did not apply plain error to the admission of the pregnancy and miscarriage evidence as we find the defense’s
objection to any evidence relating to the 7 April 2010 incident sufficient to constitute an objection to those aspects
of the government’s planned evidence. Regardless, we would also find plain error if we analyzed this situation
under that standard.

                  When the defense fails to object to admission of specific evidence, the issue is
                  waived, absent plain error. The plain error standard is met when an appellant
                  establishes that (1) an error was committed; (2) the error was plain, or clear, or
                  obvious; and (3) the error resulted in material prejudice to substantial rights.

United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (citations and internal quotation marks omitted). As
described above, the military judge’s admission of this evidence was error that was plain, clear and obvious, and this
error resulted in material prejudice to the appellant’s substantial rights.


                                                          7                                              ACM 38454
experienced light bleeding since her last appointment six days earlier on 10 June 2010.
Bloodwork from the 16 June 2010 appointment revealed a significant drop in the amount
of pregnancy hormone since that last appointment, while an ultrasound revealed the fetus
had not grown during that time and now had no heartbeat. Based on these test results, the
doctor concluded the fetus had died and, based on its size as of 16 June 2010, that it was
at a gestational size of approximately six weeks.4 These conclusions indicate conception
would have occurred at least several weeks after the 7 April 2010 incident and are also
inconsistent with SrA SG’s claim that the fetus died a month before the 21 June 2010
miscarriage. The records also do not support SrA SG’s testimony that her pregnancy
complications began the day of the charged assault.

       Once factually untethered from the 7 April 2010 incident, the evidence of
pregnancy would not have been logically relevant to whether sexual intercourse occurred
on that occasion, the purpose for which the government offered and used it, and its
corroborative effect on SrA SG’s testimony would have been eliminated. Similarly,
given that the miscarriage is not factually linked to the charged rape, it would not be
logically relevant to the panel’s determination of whether that rape occurred nor is it a
circumstance related to that assault.

       To the extent this evidence, when unlinked from the two sexual assaults, has some
logical relevance to the overall state of the couple’s relationship, we find it is not legally
relevant in accordance with the Mil. R. Evid. 403 balancing test. See United States v.
Barnett, 63 M.J. 388, 395 (C.A.A.F. 2006) (holding that the proper application of the
balancing test ensures the evidence is legally relevant). Mil. R. Evid. 403 provides that
“[a]lthough 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.” In determining unfair prejudice, we look to the risk that the
evidence in question, despite its probative value, might be used improperly or, in other
words, whether “some concededly relevant evidence [might] lure the factfinder into
declaring guilt on a ground different from proof specific to the offense charged.”
United States v. Collier, 67 M.J. 347, 354 (C.A.A.F. 2009) (quoting Old Chief v.
United States, 519 U.S. 172, 180 (1997)) (internal quotation marks and emphasis
omitted); United States v. Stephens, 67 M.J. 233, 236 (C.A.A.F. 2009) (“The overriding
concern of M.R.E. 403 is that evidence will be used in a way that distorts rather than aids
accurate fact finding.” (citation and internal quotation marks omitted)). Mil. R. Evid. 403
“addresses prejudice to the integrity of the trial process, not prejudice to a particular party
or witness.” Collier, 67 M.J. at 354. This potential for unfair prejudice must

4
  The medical records also indicate that SrA SG was given several options by the medical staff to address the
medical situation. Five days later, on 21 June 2010, she returned and reported that she had experienced significant
cramping and had passed blood and tissue the day before. The medical staff concluded she had spontaneously
aborted the remains of the fetus.



                                                        8                                             ACM 38454
substantially outweigh the probative value of the evidence. In conducting a review in this
context, our superior court has cautioned against speculating about prejudicial impact that
is unrelated to any specific findings of the military judge. Id. at 354–55.

       We find a substantial danger of unfair prejudice from the introduction of evidence
about the pregnancy and miscarriage. The government used the pregnancy to bolster the
credibility of SrA SG’s claim that sexual intercourse occurred on 7 April 2010 and to
corroborate her testimony about that incident. That incident then served as proof that the
appellant had a propensity to engage in sexual intercourse with SrA SG while she was
asleep, which, in turn, served as proof that the appellant committed the charged rape.
Similarly, SrA SG essentially testified that the charged rape caused her to miscarry when
she said that the violent penetration caused her to feel as if her uterus was “going to fall
out,” that she immediately began having persistent sharp pains in that area, and that she
experienced vaginal bleeding for six weeks until the fetus died. In sum, the admission of
the pregnancy and miscarriage evidence and their connection to the two assaults
subjected the appellant to tremendous prejudice as that evidence essentially (and
incorrectly) was used to prove that those two incidents occurred. This leads to the
likelihood that the panel was lured by this evidence into finding the appellant guilty on a
basis different than the actual substantive evidence presented by the government about
the 2 May 2010 incident itself. Furthermore, SrA SG’s graphic description of the
appearance of her miscarried fetus was highly inflammatory and was likely to provoke an
emotional response in the panel or otherwise tend to adversely affect the panel’s attitude
towards the appellant such that they would find him guilty on a basis other than proof of
the actual crime.

        Additionally, we also find there was a significant risk that the introduction of this
evidence had a strong tendency to confuse and mislead the panel. The admission of the
testimony about the pregnancy and miscarriage “resulted in a classic example of a
‘distracting mini-trial’” on these events. See Solomon, 72 M.J. at 181 (quoting Berry,
61 M.J. at 97). Although the military judge did instruct the panel on the permissible uses
of the April 2010 incident, no similar instruction was provided regarding the pregnancy
and miscarriage evidence.5 This allowed the introduction of the evidence to improperly

5
    The panel was instructed:

                   You heard evidence that the accused may have committed another offense of
                   sexual assault on or about 7 April 2010. The accused is not charged with this or
                   any other offense. This evidence may have no bearing on your deliberations
                   unless you first determine by a preponderance of the evidence this other
                   uncharged offense occurred. If you determine by a preponderance of the
                   evidence this other uncharged offense occurred, you may then consider the
                   evidence of that offense for its bearing on any matter to which it is relevant only
                   in relation to the offense of which the accused is charged. You may consider the
                   evidence of such other act of sexual assault for its tendency, if any, to show the
                   accused’s propensity or predisposition to engage in sexual assault. You may
                   not, however, convict the accused solely because you believe he committed this


                                                           9                                             ACM 38454
“devolve[] into exactly the sort of sidetracking of the factfinder that should be avoided.”
Solomon, 72 M.J. at 182. This is especially problematic given the lack of an adequate
factual link between this evidence and the allegations the appellant sexually assaulted
SrA SG on the two occasions.

        At trial, military judges are often compelled to conduct Mil. R. Evid. 403
balancing based upon representations by counsel and testimony during motion hearings
that may or may not accurately reflect how the evidence is ultimately presented to the
members. In this case, the military judge, after a hearing, conducted a balancing test
under Mil. R. Evid. 403, which is set out in her written ruling. With regard to the
potential for distraction of the fact-finder, she ruled “the Court does not see this evidence
as a distraction as it is one small piece of a clearly tumultuous relationship with on again /
off again sexual relations...additionally, the Court intends to give a limiting instruction as
to how this evidence may be used in [the members’] deliberations.” With regard to the
time needed to present proof of the 7 April 2010 incident, she ruled, “SrA [SG] will
already be testifying during the trial and a few questions on this issue will not take up an
extraordinary amount of time.” Appellate courts, in reviewing such determinations, have
the benefit of weighing any potential distraction based upon the way the trial actually
unfolded. See United States v. Bailey, 55 M.J. 38, 41 (C.A.A.F. 2001) (noting, in
sustaining the military judge’s Mil. R. Evid. 403 balancing, that the judge “kept the
witness’ testimony abbreviated and focused”); Berry, 61 M.J. at 97 (citing trial counsel’s
opening and closing arguments in conducting its own Mil. R. Evid. 403 balancing
concerning the possible distraction of the factfinder); Solomon, 72 M.J. at 181–82
(C.A.A.F. 2013) (overturning military judge’s assessment of the Wright factors in light of
trial counsel’s opening and closing statement, as well as the testimony before the
members). As in Berry and Solomon, the testimony in this case may have unfolded
differently than the judge anticipated and accounted for in her analysis of the Wright
factors. As in those cases, the military judge here failed to take actions during trial to
limit the improperly prejudicial effect of SrA SG’s testimony about these events, even if
that evidence was factually linked to the two sexual assaults.

       In sum, any arguable probative value of this evidence is minimal and is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, and
misleading the members as described above, especially when coupled with the lack of
instruction about how the panel was authorized to use this evidence during its
deliberations. See United States v. Walker, 42 M.J. 67, 74 (C.A.A.F. 1995) (recognizing
that a military judge’s instructions to members on the proper use of testimony could have
resolved Mil. R. Evid. 403 issues).

              other offense or solely because you believe the accused has a propensity or
              predisposition to engage in sexual assault. In other words, you cannot use this
              evidence to overcome a failure of proof in the government’s case, if you
              perceive any to exist. The accused may be convicted of an alleged offense only
              if the prosecution has proven each element beyond a reasonable doubt.


                                                    10                                          ACM 38454
       Having found error, we must now assess prejudice. “A finding or sentence of a
court-martial may not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.” Article 59(a), UCMJ,
10 U.S.C. § 859(a). The test for nonconstitutional evidentiary error, including where a
military judge abuses her discretion in admitting evidence under Mil. R. Evid. 413 or in
applying the Mil. R. Evid. 403 balancing analysis, is whether the error had a “substantial
influence on the findings.” Berry, 61 M.J. at 97 (citation and internal quotation marks
omitted); see also Flesher, 73 M.J. at 317–18; United States v. Yammine, 69 M.J. 70,
76–78 (C.A.A.F. 2010). We review that question de novo. Yammine, 69 M.J. at 78. The
government bears the burden of demonstrating that the admission of erroneous evidence
is harmless. See Flesher, 73 M.J. at 318.

       Our consideration of this issue “cannot be merely whether there was enough
[evidence] to support the result” aside from the erroneous admission of evidence.
United States v. Clark, 62 M.J. 195, 200 (C.A.A.F. 2005) (internal quotation marks
omitted). Instead, we must evaluate whether the error itself had a substantial influence on
the members’ verdict in the context of the entire case. Id.; United States v. Harrow,
65 M.J. 190, 200 (C.A.A.F. 2007). To determine whether the government has carried its
burden, we use a four-part test, weighing: “(1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the evidence in question, and
(4) the quality of the evidence in question.” Id. at 201–02 (internal quotation marks
omitted). Where we conclude the error substantially influenced the findings or if we are
“left in grave doubt” whether the findings were so influenced, we must reverse.
United States v. Pablo, 53 M.J. 356, 359 (C.A.A.F. 2000) (citation and internal quotation
marks omitted).

       Although these are four distinct factors, they all revolve in this case around one
single point—whether the appellant initiated sexual intercourse with SrA SG on
2 May 2010 while she was asleep, and then forcibly continued with that act despite her
protests. See Flesher, 73 M.J. at 318. The government’s evidence consisted primarily of
SrA SG’s testimony about that incident, as well as the earlier instance where the
appellant engaged in sexual intercourse with her while she was asleep. In contrast, the
defense put the appellant on the stand where he denied her version of events and
contended that both sexual encounters were consensual. The result was a “he said-she
said” case where the outcome largely depended on which witness the panel found more
credible. See id.; see also United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998)
(noting one of Congress’s expressed rationales for Federal Rule of Evidence 413 is the
need for corroborating evidence when an alleged rapist claims the victim consented, that
there are no witnesses other than the defendant and the alleged victim, and “this evidence
has undeniable value in bolstering the credibility of the victim”). In such a case,
“anything bolstering the credibility of one party inherently attacks the credibility of the



                                            11                                   ACM 38454
other” and thus the danger that improperly admitted evidence will improperly bolster a
witness’s testimony is significant. Id. at 317.

       Under this scenario, we find that SrA SG’s testimony about her pregnancy and
miscarriage “could have been of considerable significance in the minds of the panel
members because it seemed to corroborate and ratify [SrA SG’s] version of events.” Id.
at 318. SrA SG’s credibility was the central issue in this case, and the defense vigorously
attacked her credibility on several grounds.6 The government’s case rested almost
entirely on SrA SG and her testimony, which had significant weaknesses. In fact, trial
counsel conceded in his rebuttal argument that the panel could have reasonable doubt if
they had to rely solely on SrA SG, and almost immediately reminded the panel about the
evidence of the uncharged sexual assault as showing the appellant’s predisposition to
assault her.

       Within the context of the entire case, evidence of the pregnancy and miscarriage,
by reinforcing and bolstering SrA SG’s credibility about whether the two incidents
occurred, was qualitatively significant and material to the government’s overall weak
case.7 See Solomon, 72 M.J. at 183; United States v. Cook, 48 M.J. 236, 240 (C.A.A.F.
1998) (finding erroneous admission of evidence was not harmless where the evidence of
a sexual assault came solely from the alleged victim and where her testimony was
vigorously attacked). The government’s case was significantly strengthened by the
improperly admitted evidence. See Yammine, 69 M.J. at 78. Based on our review of the
record, we find this evidence “improperly tipped the balance of the evidence” in favor of
the government. See Berry, 61 M.J. at 98; United States v. Moss, 63 M.J. 233, 239
(C.A.A.F. 2006) (finding error where the military judge’s admissibility decision may
have affected the members’ role in determining whether a victim’s testimony is credible
and what weight to give her testimony). We are “left in grave doubt” whether the
pregnancy and miscarriage evidence “unduly weighted the scales of justice against [the]
appellant.” See United States v. Walker, 57 M.J. 174, 178 (C.A.A.F. 2002). Therefore,
after considering each of the four factors and given all the circumstances of this particular
case, we find the government has failed to demonstrate the error did not have a
substantial influence on the findings in this case. Under those circumstances, the
admission of this evidence materially prejudiced the appellant’s substantial rights.
See Yammine, 69 M.J. at 79.



6
  Four members of SrA SG’s chain of command testified that she is an untruthful person.
7
 We recognize that evidence adduced at trial included a short portion of a two hour pretext phone call in May 2012
between the appellant and SrA SG where he eventually responded “yes” when she asked if he was sorry for “raping”
her. When considered in light of the entire record (to include the appellant’s testimony that he was attempting to
placate SrA SG so he could be present for the upcoming birth of their child), the existence of this statement does not
change our conclusions that this case turns on the relative credibility of SrA SG and the appellant and that the
pregnancy/miscarriage evidence improperly tipped the credibility balance in the government’s favor. Following that
phone call, the appellant moved back in with SrA SG and was present for the birth of their child.


                                                         12                                              ACM 38454
       Because we decide this issue in the appellant’s favor and reverse, we need not
reach the other issues he raised in his appeal.8, 9

                                                   Conclusion

         The findings of guilty and the sentence are set aside. A rehearing is authorized.

ALLRED, C.J., dissenting.

        I agree with my esteemed colleagues in the majority that, pursuant to
Mil. R. Evid. 413, the military judge properly admitted evidence of the alleged
7 April 2010 sexual assault. I disagree with their conclusion that the trial judge erred in
failing to exclude evidence of the victim’s pregnancy and miscarriage.

        Trial defense counsel never objected to the evidence my colleagues find
repugnant.10 The victim’s apparent pregnancy and miscarriage were deeply woven into
the litigation of this case and were relevant to the charged offense. They had much to do
with her supposedly inconsistent behavior in remaining with her abuser, with the injuries
resulting from her violent rape, and with other pertinent issues advanced by both the
government and the defense. The evidence was in some measure graphic and emotional,
but so too is much of the evidence widely and properly admitted in modern sex assault
trials. In my view, the judge had no duty to exclude this evidence sua sponte and, if any
error did occur, it did not amount to plain error. See United States v. Maynard,
66 M.J. 242, 244 (C.A.A.F. 2008) (“When the defense fails to object to admission of
specific evidence, the issue is waived, absent plain error.”) (emphasis added).




8
   We note, however, that one of these issues related to the military judge’s refusal to admit a printout from a blog
written by SrA SG about the course of her relationship with the appellant. After SrA SG was cross-examined about
statements in the blog that were inconsistent with her testimony, one of the panel members asked to review the
entire blog and her Article 32, UCMJ, 10 U.S.C. § 832, testimony, indicating he was interested in issues related to
her credibility.
9
  Though not raised as an issue on appeal, we note that the overall delay of more than 18 months between the time of
docketing and review by this Court is facially unreasonable. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). Having considered the totality of the circumstances and the entire record, we find that the appellate delay in
this case was harmless beyond a reasonable doubt. Id. at 135-36 (reviewing claims of post-trial and appellate delay
using the four-factor analysis found in Barker v. Wingo, 407 U.S. 514, 530 (1972)). See also United States v.
Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).
10
   The majority’s conclusions that “the defense’s objection to any evidence relating to the 7 April 2010 incident [is]
sufficient to constitute an objection to those aspects of the government’s planned evidence” is a stretch with which I
cannot agree.


                                                         13                                              ACM 38454
Therefore, I respectfully dissent.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




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