                        UNITED STATES, Appellee

                                    v.

                  Timothy J. STATON, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 10-0237

                         Crim. App. No. 37356

       United States Court of Appeals for the Armed Forces

                       Argued October 5, 2010

                      Decided December 1, 2010

BAKER, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY and RYAN, JJ., joined. EFFRON, C.J., filed a separate
opinion concurring in the result.

                                 Counsel

For Appellant: William E. Cassara, Esq. (argued); Captain
Andrew J. Unsicker (on brief); Major Michael A. Burnat and Major
Shannon A. Bennett.

For Appellee: Captain Joseph J. Kubler (argued); Gerald Bruce,
Esq. (on brief); Colonel Don M. Christensen and Lieutenant
Colonel Jeremy S. Weber.

Military Judge:   Grant L. Kratz




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Staton, No. 10-0237/AF


     Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of members convicted

Appellant, contrary to his pleas, of eight specifications of

assault consummated by battery upon a child under sixteen years,

in violation of Article 128, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 928 (2006).    The adjudged and approved

sentence included confinement for three years, reduction to pay

grade E-1, and a bad-conduct discharge.

     On review, the United States Air Force Court of Criminal

Appeals affirmed.1

     We granted review of the following issue:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN
     ADMITTING EVIDENCE THAT APPELLANT MAY HAVE ATTEMPTED
     TO KILL OR INJURE THE ORIGINAL TRIAL COUNSEL.

                              BACKGROUND

     Appellant and Kari Staton were in a relationship for five

years and married for four.    Some time after they were married

Kari Staton’s six-year-old son from a previous marriage, CJ,

came to live with them.   In Kari Staton’s opinion, CJ was not

“an easy child to deal with.”    Appellant would punish CJ when he

got into trouble.    About six months after CJ moved in, the

punishment became physical.




1
  United States v. Staton, 68 M.J. 569, 575 (A.F. Ct. Crim. App.
2009).

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United States v. Staton, No. 10-0237/AF


     Each of the specifications of Appellant’s charge correlate

to different implements Appellant used on CJ in what he termed

physical “discipline,” ranging from a fist, to a flyswatter, a

golf club, a wire coat hanger, a weight-lifting belt, a leather

belt, and a battle dress uniform belt.    In July 2007, Appellant

grabbed CJ (then eleven years old) by the throat, raised him

several inches off the ground and slammed his head hard enough

to leave a “groove” in the wall.

     On August 2, 2007, Appellant stated to a mental health

therapist, Calyn Crow, that he had on many occasions struck CJ

with a belt and had recently banged his head into a wall.     The

next day, Lynn Merrit-Ford, the program director of a local

social services department, left a voice mail to inform

Appellant that an investigation was underway.

     Captain (Capt) Stephanie Gilmore was the Chief of Military

Justice at the Space Wing legal office at Buckley Air Force

Base, Colorado.   She had represented the Government at two

Article 32, UCMJ, 10 U.S.C. § 832 (2006), hearings involving

Appellant.   She had also seen Appellant a number of times around

the base.    On the morning of May 28, 2008, Capt Gilmore parked

in the commissary parking lot before a wing run.   As she walked

toward the gym, she saw a car approach her driving quickly and

“could see through the front windshield of the car . . . that it

was Staff Sergeant Tim Staton.”    The car “did not . . . slow


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United States v. Staton, No. 10-0237/AF


down,” was “heading towards [Capt Gilmore],” and “swerved at the

last minute to miss [Capt Gilmore].”   Capt Gilmore reported the

incident and was reassigned from her role as trial counsel in

the case.   Appellant received a letter of reprimand for the

incident.

     Prior to trial, the defense filed a motion in limine under

Military Rules of Evidence (M.R.E.) 403 and 404(b) to preclude

the Government from offering evidence involving the vehicle

incident as prior uncharged misconduct or as rebuttal to any

good military character evidence the defense might introduce.

In the motion, the defense stated that “SSgt Staton’s alleged

conduct while driving does not relate to the present charges.

Nor does the alleged conduct fall into any of the other

enumerated [M.R.E. 404(b)] exceptions.”   The Government

responded during argument on the motion that “taking steps to

intimidate [trial counsel] to prevent the court-martial from

going forward is analogous [to witness intimidation] and shows

that he has consciousness of guilt, he doesn’t want the

proceeding to continue, or he wants to at least to interfere

[sic] with the smooth operation of those proceedings by making

intimidating acts.”

     In written findings of fact and conclusions of law the

military judge concluded that “[e]vidence of intimidation of

witnesses or members of the prosecution is evidence which tends


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United States v. Staton, No. 10-0237/AF


to show consciousness of guilt on the part of the accused as

discussed in United States v. Cook [48 M.J. 64 (C.A.A.F.

1998)].”   With respect to balancing under M.R.E. 403, the

military judge concluded, “Any danger of unfair prejudice is

minimal and can be addressed with a tailored instruction.”

       Appellant was subsequently tried before a general court-

martial for eight specifications of assault committed by battery

upon a child.   The Government’s case included photographs of the

dent in the wall, as well as testimony from Calyn Crow (the

mental health therapist to whom SSgt. Staton self-reported);

Lynn Merrit-Ford, a social services program director, who spoke

to Appellant after he spoke with Ms. Crow; Pamela Wamhoff, a

family advocacy officer assigned to Appellant’s case; Kari

Staton (Appellant’s former wife); CJ; and Capt Gilmore.     Capt

Gilmore testified that on May 28, 2008, Appellant drove his car

at her while she was in a parking lot, attempting to intimidate

her.   Appellant disputes the admission of Capt Gilmore’s

testimony as evidence of uncharged misconduct.

       Appellant claimed that while the incidents with his stepson

CJ took place, they fell within the parental discipline defense.

Appellant was found guilty of all specifications.

                              DISCUSSION

       This Court reviews the military judge’s evidentiary rulings

for an abuse of discretion.    United States v. McCollum, 58 M.J.


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United States v. Staton, No. 10-0237/AF


323, 335 (C.A.A.F. 2003).      We review the admissibility of

uncharged misconduct under M.R.E. 404(b) using the three-part

test articulated in United States v. Reynolds:

     1. Does the evidence reasonably support a
     finding by the court members that appellant
     committed prior crimes, wrongs or acts?

     2. What “fact . . . of consequence” is made
     “more” or “less probable” by the existence of
     this evidence?

     3. Is the “probative value . . . substantially
     outweighed by the danger of unfair prejudice”?

29 M.J. 105, 109 (C.M.A. 1989) (ellipses in original) (citations

omitted).

     Evidence of uncharged misconduct is impermissible for the

purpose of showing a predisposition toward crime or criminal

character.2   However, uncharged misconduct can be admitted for

“other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”3   M.R.E. 404(b).    In Cook, this Court concluded that


2
  See, e.g., United States v. Diaz, 59 M.J. 79, 94 (C.A.A.F.
2003) (military judge abused his discretion in admitting
evidence of other injuries appellant allegedly inflicted on his
daughter in an effort to establish that he killed his daughter);
United States v. Rhodes, 61 M.J. 445, 453 (C.A.A.F. 2005)
(military judge abused his discretion in admitting evidence of a
meeting between a key government witness and appellant to show
appellant’s consciousness of guilt).
3
  The Government also asserts that Appellant opened the door to
character evidence because the defense called three military
character witnesses at trial. We disagree. The prosecutor
intimidation evidence was introduced before Appellant’s good

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United States v. Staton, No. 10-0237/AF


one of the “other purposes” for which uncharged misconduct may

be admissible is evidence of “consciousness of guilt.”      48 M.J.

at 66.

     The parties agree that Reynolds provides the proper

framework to review for error in this case.      They also agree

that prong one of the test is satisfied because the members

could reasonably conclude that the incident occurred.      However,

the parties do not agree as to whether the incident in question

reflects consciousness of guilt.       Further, to the extent it

does, the parties do not agree whether the probative value of

such an evidentiary inference was outweighed by the danger of

unfair prejudice.   This Court’s analysis, thus, turns on prongs

two and three of the Reynolds test.

     Prong two of the test asks whether the evidence makes a

“fact [that is] of consequence” in the case “more probable or

less probable.”   This is a question of logical relevance.     See

M.R.E. 401.

     The Government contends, as the military judge concluded,

that the behavior of intimidating a prosecutor is indicative of

“consciousness of guilt” and analogous to instances of witness

intimidation.   Appellant disputes the comparison to witness

intimidation, arguing that where witness intimidation could



military character evidence, therefore it is not properly
rebuttal evidence.

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United States v. Staton, No. 10-0237/AF


prevent someone from testifying, prosecutor intimidation would

have no corresponding favorable outcome.4    Moreover, Appellant

proffers, the act of driving aggressively toward Capt Gilmore

could be an expression of frustration with being wrongly

accused, rather than a reflection of consciousness of guilt.

     It is well established that witness intimidation is

relevant evidence to demonstrate consciousness of guilt.      Cook,

48 M.J. at 66.5   However, courts have not had as many occasions

to address the subject of prosecution intimidation.    Both

parties cite United States v. Copeland, 321 F.3d 582 (6th Cir.

2003), in support of their arguments; it is the only federal

case the parties cite on point.

     In Copeland, the issue centered on the admission of

jailhouse statements by two defendants, who were overheard by a

third inmate, discussing “their intention to pay someone $500 to

‘get,’ that is, harm, the Assistant United States Attorney”

handling their case.   Id. at 597.    The Sixth Circuit concluded,



4
  Appellant asserts “it is unreasonable to conclude that the
absence of an attorney would stop a trial from beginning.”
5
  See also United States v. Gatto, 995 F.2d 449, 454 (3d Cir.
1993) (jurors may note threats or intimidation of witnesses);
United States v. Mickens, 926 F.2d 1323, 1328-29 (2d Cir. 1991)
(defendant’s hand gesture in the shape of a gun may be
considered by jury); United States v. Maddox, 944 F.2d 1223,
1230 (6th Cir. 1991) (jurors may consider defendant’s alleged
mouthing of the words “you’re dead”).



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United States v. Staton, No. 10-0237/AF


first on the question of spoliation,6 that “there was no evidence

in the record that suggests that the removal of [the prosecutor]

would have had a significant effect upon the government’s

success at trial.”    Id. at 598.     Thus, the statements did not

indicate the defendants’ intention to destroy evidence and such

threats did not per se constitute evidence of spoliation.      Id.

As to consciousness of guilt, the court concluded the statements

were probative, “but the lack of specificity linking the

statements to the charged conduct permits only a weak

inference.”     Id. at 598.

     Appellant cites Copeland for the proposition that threats

against prosecutors are less probative than threats against

witnesses, if probative at all.      The Government cites Copeland

for its ultimate conclusion that “the statements . . . possess

some probative value as to the defendants’ consciousness of

guilt.”   Id.

     We conclude that both in concept and in the circumstances

of this case, the evidence of prosecutor intimidation raises an

inference from which a factfinder could reasonably infer

consciousness of guilt.       While Copeland qualitatively

distinguished witness intimidation from prosecutor intimidation

on the rationale that the prosecutor intimidation at issue did

6
  Spoliation, used here and in Copeland, refers to “[t]he
intentional destruction, mutilation, alteration, or concealment
of evidence.” Black’s Law Dictionary 1531 (9th ed. 2009).

                                     9
United States v. Staton, No. 10-0237/AF

not involve spoliation of evidence, we believe the real question

is not one of analogy to witnesses, but one of consequence.    If

an accused seeks to intimidate a prosecutor handling his case,

is such an act probative of consciousness of guilt?

     This question may be informed by the sort of cost-benefit

analysis that Appellant urges this Court to consider (and which

features prominently in Copeland), which is, what would the

accused gain from doing this?   But that question presumes the

issue to be solely a matter of spoliation.   Conduct, as courts

well know, is not always driven by the rational cost-benefit

analysis of the probable effects of one’s behavior.   To the

contrary, human nature sometimes prompts persons to strike out

at those who seek to reveal misconduct or expose illegal acts.

This might be done in anger, frustration, fear, an effort to

deter or all four reasons at once.7   Whether such an inference is

well founded in context is for the factfinder to decide.   That

is also why the third prong of the Reynolds test in such cases

as in this case requires careful contextual analysis.

7
  The Copeland court states, “[t]here are many conceivable
reasons why a defendant awaiting trial would threaten to harm
the prosecutor, including simple frustration with being wrongly
accused.” 321 F.3d at 598. The Copeland court provides no
empirical data or evidence for this statement and we do not
adopt it as part of our analysis. However, we do note that the
military judge contemplated such a possibility when considering
Appellant’s motion: in addressing trial counsel he asked, in
reference to a frustrated innocent accused as opposed to a
frustrated guilty accused, “[W]ith respect to consciousness of
guilt, how do I differentiate between these two people?”

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United States v. Staton, No. 10-0237/AF

     The third prong of the Reynolds test requires a weighing of

probative value and the danger of unfair prejudice; if the

probative value is “substantially outweighed” by the danger of

unfair prejudice, then the evidence should be excluded.   The

general risk, of course, is that members will treat evidence of

uncharged acts as character evidence and use it to infer that an

accused has acted in character, and thus convict.   That risk was

heightened in this case because the Government argued to the

members that Appellant’s conduct was driven by anger and a

volatile personality.

     Thus, on the one hand, the members might have taken the

evidence of Appellant’s aggression toward the trial counsel and

extract from that the impermissible character-driven conclusion

that he was a violent person and therefore guilty of the charged

offense.

     On the other hand, the military judge was cognizant of this

concern.   He gave the parties ample opportunity to argue their

positions and he reached his conclusions of law following a

deliberate application of the Reynolds test on the record.      And

while another judge might not characterize “[a]ny danger of

unfair prejudice” as “minimal,” as the military judge did in

this case, we do agree with the military judge that in this case




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United States v. Staton, No. 10-0237/AF

the risk was addressed with a detailed and “tailored instruction

regarding appropriate use of this information.”8

     In short, the military judge did not apply the wrong law or

erroneously reach facts.   His limiting instruction and

statements on the record demonstrate knowledge and correct

application of the law.    In view of our analysis above, the

military judge did not abuse his discretion in admitting

evidence of Appellant’s uncharged misconduct.

                             CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




8
  See the text of the military judge’s instruction which appears
in the Appendix to this opinion.

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United States v. Staton, No. 10-0237/AF

                            APPENDIX

The military judge’s limiting instruction stated:

       You may consider the evidence regarding the accused
       driving towards Captain Gilmore for the limited
       purpose of its tendency, if any, to indicate an
       intent to intimidate the prosecution in this case
       and therefore as evidence of consciousness of guilt.
       You may consider this evidence only under the
       following circumstances: First, you may not
       consider the evidence at all unless you believe it
       was the accused driving the vehicle in question.
       Second, you may only consider this evidence if you
       believe it indicates an intent by the accused to
       intimidate the prosecution in his case and that was
       thus evidence of consciousness of guilt.

       You may not consider this evidence for any other
       purpose, and you may not conclude from this evidence
       that the accused is a bad person, or has general
       criminal tendencies and that he therefore committed
       the offenses charged. Each offense must stand on
       its own and you must keep the evidence of each
       offense separate. The prosecution’s burden of proof
       to establish the accused’s guilt beyond a reasonable
       doubt remains as to each and every element of each
       offense charged.




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United States v. Staton, No. 10-0237/AF


     EFFRON, Chief Judge (concurring in the result):

     The military judge in the present case permitted the

prosecution to rely on an uncharged offense to prove that

Appellant committed charged, but unrelated, child abuse

offenses.    Although uncharged misconduct may be used to prove

consciousness of guilt in certain circumstances, including cases

involving a prosecutor as the victim, the Government in the

present case did not establish the requisite factual or legal

predicate.   For the reasons set forth below, I respectfully

disagree with the majority’s decision to uphold the military

judge’s ruling that the uncharged misconduct was admissible in

this case.   I would affirm the decision below on the narrower

ground that the military judge’s error was not prejudicial under

the circumstances of this case.

The automobile incident

     The charges against Appellant alleged various instances of

assaulting his stepson, a minor child.    The Government sought to

introduce evidence of an unrelated incident involving an

automobile driven by Appellant.   During a hearing on the

admissibility of this evidence, the Government presented

testimony from an officer regarding an incident that occurred

while the officer was serving as trial counsel in Appellant’s

case during an earlier stage of the proceedings.
United States v. Staton, No. 10-0237/AF


     The officer testified that as she was walking across a

parking lot, she “noticed that there was a car coming from the

south end of the parking lot at quite a high rate of speed,”

which she estimated to be twenty miles per hour.   At first, she

did not recognize the driver, but then she saw through the front

windshield that Appellant was driving the car.

     According to the officer, Appellant looked at her and

continued to drive towards her.   As the car got closer, she

“stopped because I saw that the car was heading towards me, and

didn’t appear to be slowing down to let me cross the street.”

She then “slowed down and started to back up.”   She testified

that the car approached to within three to five yards of her and

swerved at the last minute to miss her.

     The officer subsequently reported the incident.    Appellant

received a letter of reprimand, and the Government removed the

officer from further participation in the case as trial counsel

in view of her status as a potential witness.

     At the conclusion of her testimony, the military judge

asked the witness:   “What did you take all of this to mean?”

The witness made four points in response.   First, “I took it to

mean that he had an opportunity, he saw me in the parking lot,

he -- I’m certain has some anger towards me.”    Second, “I know

he has anger towards the legal office in general with regards to

this court-martial.”   Third, “And I think he started driving his


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United States v. Staton, No. 10-0237/AF


car at me to intimidate me or to make some sort of showing of

power or intimidation.”   Fourth, “I do not believe he was

attempting to hit me with his car.”

     The Government did not present any further evidence.       The

military judge ruled that the evidence was admissible to show

consciousness of guilt.   In his findings of fact, the military

judge stated that the officer “took the accused’s actions as an

attempt to intimidate her, as Trial Counsel, and I find that a

reasonable fact-finder could also find the actions to be

evidence of an intent to intimidate Trial Counsel, and thus is

evidence of consciousness of guilt.”

     At trial, the officer’s testimony was consistent with her

testimony at the motion hearing.       The Government did not put

forth any further evidence regarding the incident, including

evidence as to how, if at all, the incident could have affected

the trial of the underlying assault charges.

The relationship between anger and consciousness of guilt

     The Government has a variety of means to punish and deter

misconduct towards a prosecuting officer, including prosecution

under the Uniform Code of Military Justice (UCMJ), as well as

nonjudicial and administrative measures.      When such misconduct

is not the subject of charges in a pending case, the act of

uncharged misconduct may be admissible in a criminal prosecution

under Military Rule of Evidence (M.R.E.) 404(b) when the act


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United States v. Staton, No. 10-0237/AF


demonstrates a fact of consequence to the case, such as an act

or statement by the accused demonstrating consciousness of guilt

-- but only if the evidence meets the criteria set forth in

United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).      The

Reynolds criteria must be applied with care to ensure that the

evidence is not used to convict the accused by showing “a

propensity to commit the charged or other crimes.”   Steven A.

Saltzburg et al., 1 Military Rules of Evidence Manual § 404.02

[10][c], at 4-91 (6th ed. 2006).

     The issue before us primarily involves the second prong of

the Reynolds test -- the requirement that the prosecution

demonstrate that the evidence of uncharged misconduct makes a

fact of consequence more or less probable.   United States v.

Harrow, 65 M.J. 190, 202 (C.A.A.F. 2007).    In the present case,

the prosecuting officer testified as to her belief that

Appellant was angry at both her and the legal office.   She

testified that he swerved a car close to her, and she further

testified that she did not believe he was attempting to hit her.

She speculated that he carried out this act “to intimidate [her]

or to make some sort of showing of power or intimidation.”    The

Government elicited no specific information as to the actual or

potential impact on the ability of the prosecution to introduce

evidence, exercise discretion, or otherwise take action with

respect to a fact of consequence in the case.


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United States v. Staton, No. 10-0237/AF


     An act of uncharged misconduct motivated by the anger of an

accused towards a prosecuting official does not prove that the

accused committed the charged offenses in a pending trial.

Given the stress of a prosecution in which reputation, career,

family relationships, and extended confinement are at stake, it

would not be unusual for an accused person to harbor negative

feelings towards those viewed as responsible for his or her

predicament, including feelings of anger.   A person who believes

he or she is innocent and wrongfully prosecuted may well harbor

deep feelings of anger and resentment.    Likewise, a person may

recognize his or her responsibility for the conduct at issue but

may nonetheless feel great anger over what he or she views as

overcharging or a selective prosecution.

     To prove that the act of anger makes a fact of consequence

-- consciousness of guilt -- more or less probable under

Reynolds, the Government must demonstrate a connection between

the act of anger and the potential impact of the act on matters

connected to the determination of guilt, such as the

availability of evidence or exercise of prosecutorial

discretion.   In the present case, the Government did not

demonstrate a relationship between Appellant’s act of swerving

the vehicle and the availability of evidence, the exercise of

prosecutorial discretion, or any other matter that would

establish the probability of a fact of consequence in the case.


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United States v. Staton, No. 10-0237/AF


     The responsibility for ensuring that such evidence meets

the Reynolds criteria rests in the first instance with the

military judge, not the court-martial panel.   In the absence of

a link between the act and the consequences for the prosecution

of the case, the military judge erred by permitting the

prosecution to elicit the testimony about the uncharged

misconduct as evidence of Appellant’s consciousness of guilt.

     The evidence also should have been excluded under the third

prong of Reynolds, which balances the probative value of the

evidence against the danger of unfair prejudice.   See Harrow, 65

M.J. at 202.   Here, the low probative value of the uncharged

misconduct evidence was outweighed by the danger of unfair

prejudice.   The Government, in addressing the merits of the

assault charges, specifically contended that the charged

assaults resulted from Appellant’s violent and volatile

personality.   The evidence of Appellant’s uncharged misconduct

in the automobile incident unnecessarily raised the risk that

the members might infer that Appellant had a violent and

volatile personality, and that the charged assaults were in

conformity with these personality traits.   Under these

circumstances, the risk of prejudice far outweighed any

probative value.   To the extent that the military judge

addressed these considerations in his instructions, that factor

would bear on an assessment of whether the erroneous admission


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United States v. Staton, No. 10-0237/AF


of the evidence constituted prejudicial error, not on the

question of whether the military judge should have excluded the

evidence from any consideration by the members.

     For the foregoing reasons, I respectfully disagree with the

majority’s conclusion that the military judge did not abuse his

discretion in admitting the evidence of uncharged misconduct.   I

concur in the result, however, in view of the test for prejudice

under Article 59(a), UCMJ, 10 U.S.C. 859(a) (2006).   See United

States v. Baumann, 54 M.J. 100, 105 (C.A.A.F. 2000) (holding

that the government must show that the erroneous admission of

evidence under M.R.E. 404(b) did not materially prejudice the

substantial rights of the appellant).   The Government had

substantial evidence in support of Appellant’s guilt, including

Appellant’s own confessional statements and the testimony of the

victim and the victim’s mother.   Considering the severity of the

injuries to his stepson, Appellant’s parental discipline defense

was fairly weak.   Accordingly, I concur in the majority’s

decision to affirm the findings and sentence.




                                  7
