                          UNITED STATES, Appellee

                                        v.

                     Charles W. SIMPSON, Specialist
                          U.S. Army, Appellant

                                  No. 01-0047

                          Crim. App. No. 9700925


       United States Court of Appeals for the Armed Forces

                       Argued December 11, 2001

                       Decided June 3, 2002

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J.,
joined.

                                    Counsel

For Appellant: Joseph W. Kastl (argued); Colonel Adele H.
Odegard, Lieutenant Colonel David A. Mayfield, Major Jonathan F.
Potter, and Captain Sean S. Park (on brief); Captain David S.
Hurt.

For Appellee: Captain Karen J. Borgerding (argued); Major Daniel
G. Brookhart and Major Paul T. Cygnarowicz (on brief); Colonel
Steven T. Salata.

Military Judges:      Linda K. Webster, Paul L. Johnston, and
                      Robert F. Holland


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Simpson, No. 01-0047/AR


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, appellant was convicted by a general

court-martial consisting of officer and enlisted members of

indecently assaulting Private First Class (PFC) BW on April 2,

1993; attempting to rape AB on November 18, 1995; obstructing

justice by attempting to persuade AB not to report him for rape;

and forcible sodomy of PFC TR on August 3, 1996.   The members

sentenced him to a dishonorable discharge, confinement for

twenty years, total forfeitures, and reduction to E-1.   The

convening authority approved the sentence, and the Army Court of

Criminal Appeals affirmed.

     We granted review of two issues:

          I. WHETHER A DANGEROUS SPILLOVER EFFECT PREJUDICED
          APPELLANT WHEN CHARGES INVOLVING THREE SEPARATE
          WOMEN IN THREE SEPARATE INCIDENTS WERE MERGED AT
          A SINGLE COURT-MARTIAL.

          II. WHETHER APPELLANT’S CONVICTION OF ATTEMPTED RAPE
          SHOULD BE SET ASIDE BECAUSE THE MILITARY JUDGE
          COMMITTED PLAIN ERROR WHEN HE IMPROPERLY GAVE
          INSTRUCTIONS TO THE PANEL MEMBERS USING A STATEMENT
          NOT INTRODUCED INTO EVIDENCE.

For the reasons set out below, we affirm.

                              FACTS

     On April 29, 1996, charges were preferred against appellant

alleging he indecently assaulted PFC BW, and that he raped and

committed adultery with AB, a civilian, then obstructed justice

by trying to dissuade her from reporting the rape.   He was also



                                2
United States v. Simpson, No. 01-0047/AR


charged with indecently assaulting another woman, but this

charge was later dismissed.    On July 15, 1996, a session was

held under Article 39(a), UCMJ, 10 USC § 839(a), and following

arraignment, the case was set for trial on September 19, 1996.

However, after PFC TR reported appellant’s criminal misconduct,

the initial charges were withdrawn and new charges preferred.

The new charges included offenses previously referred to trial,

as well as the allegation that appellant committed forcible

sodomy with PFC TR on August 3, 1996.

     The indecent assaults against all the victims had a

familiar pattern.    The indecent assault of PFC BW took place

after appellant, his friend PFC Ellis, and the victim -- who was

a good friend of both Ellis and appellant -- spent the night

drinking and the victim became intoxicated, sick, and unable to

move without help.    The sodomy with PFC TR occurred after TR

became “really drunk,” sick, and immobile.    After TR was put to

bed by a friend, appellant, who was on staff duty, entered the

room improperly.    Despite PFC TR’s protestations and attempts to

physically push him away, he removed her underwear and performed

oral sex.

     The events leading to the charges of rape and adultery with

AB on November 18, 1995, are generally not in dispute.    On the

evening in question, appellant, whom AB knew as “Bug” for three

years, and PFC Ellis visited AB and her two children.    AB’s


                                  3
United States v. Simpson, No. 01-0047/AR


husband was deployed at the time.    Also present were the two

children of KT, AB’s friend, who lived across the street.

     After a night of drinking, PFC Ellis left the apartment at

11:00 p.m.   AB and appellant talked for ten or fifteen minutes,

at which time AB informed appellant that she was tired and was

going to bed.   After putting on her night clothes, she

discovered that one of her toddlers had vomited.    Appellant

helped AB change the child’s bed sheets.    After using the

bathroom at about 12:30 a.m., AB passed out on the hallway

floor.   The next thing she remembered was appellant helping her

into bed and later remembered KT picking up her two children at

about 1:15 a.m.   She next remembered waking up when her daughter

cried, and at that time she “felt something in [her] vagina --

penis went in and out.”   Appellant got out of the victim’s bed

and took the crying daughter a juice bottle.    Appellant then

returned to the victim’s bed and pulled her underwear down

again.   AB responded “no” to appellant’s invitation for sex.

Shortly thereafter, appellant left the apartment, at which point

AB called KT and informed her that she had been raped by “Bug.”

     Prior to the Government’s case-in-chief, trial defense

counsel moved to sever the charges, arguing that trying all

these different sexual offenses together would unduly prejudice

appellant.   The military judge denied this motion but stated

that he would give an “appropriate anti-crossover instruction.”


                                 4
United States v. Simpson, No. 01-0047/AR


     During the Government’s case-in-chief, trial defense

counsel cross-examined AB and asked:    “[D]o you recall telling

the CID agent that, ‘the next thing I remember was feeling Bug’s

penis on my butt.’   Do you remember that?”   AB responded:   “That

was the -- after he come back from the bathroom.    But the first

time when my daughter woke up, his penis was in my vagina.”

AB’s statement to CID was never offered as substantive evidence.

     While instructing the members on the rape charge and its

lesser offenses, the military judge instructed the members that

the first element of the offense of attempted rape was “that the

accused did a certain act; that is, he pressed his penis against

[B’s] -- I should say [AB’s] body[.]”    Later on, without

objection from either trial or defense counsel, the military

judge, sua sponte, gave a spillover instruction, cautioning the

members to keep the evidence of each offense separate, and

informing them that they could use the evidence of the earlier

offenses, if the members believed such offenses occurred, for

the limited purpose of showing appellant’s plan or design to

take advantage sexually of women who were under the influence of

alcohol.   To make sure that the members understood this

instruction, he repeated it.

                               DISCUSSION

     Appellant argues the military judge’s refusal to sever the

charges caused a manifest injustice by making three unreliable


                                 5
United States v. Simpson, No. 01-0047/AR


witnesses more credible.       He also argues the military judge

committed plain error when he used a statement that was never

placed in evidence in order to fashion an instruction on

attempted rape.

      The military judge did not abuse his discretion when he

denied appellant’s motion to sever the charges in this case.

The military justice system encourages the joinder of all known

offenses at one trial (RCM 601(e)(2), Manual for Courts-Martial,

United States (2000 ed.)*, and permits a motion for “[s]everance

of offenses ... only to prevent manifest injustice.”             RCM

906(b)(10).    “In general, ‘an abuse of discretion will be found

only where the defendant is able to show that the denial of a

severance caused him actual prejudice in that it prevented him

from receiving a fair trial; it is not enough that separate

trials may have provided him with a better opportunity for an

acquittal.’”    United States v. Duncan, 53 MJ 494, 497-98 (2000),

quoting United States v. Alexander, 135 F.3d 470, 477 (7th

Cir.), cert. denied, 525 U.S. 855 (1998).

      To determine whether a military judge has failed to prevent

a manifest injustice and denied an appellant a fair trial, we

apply the three-prong test found in United States v. Southworth,

50 MJ 74, 76 (1999).      In so doing, we find no abuse of


*
  All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.



                                      6
United States v. Simpson, No. 01-0047/AR


discretion in the military judge’s ruling that appellant would

receive a fair trial on all the charges.    The first Southworth

factor asks “whether the evidence of one offense would be

admissible proof of the other.”   Id.   We find no error in the

military judge allowing the members to decide whether the

offenses occurring earliest in time could be used for the

limited purpose of demonstrating appellant’s tendency to take

advantage sexually of women who were intoxicated or under the

influence of alcohol.   Evidence of such a pattern of conduct was

admissible under Mil.R.Evid. 404(b), Manual, supra, which

permits evidence of “other crimes, wrongs or acts” to prove

facts other than a person’s character.    Since the evidence was

probative of a material issue other than character, and was

offered for some purpose other than to demonstrate appellant’s

propensity or predisposition to commit crime, it was admissible.

See United States v. Castillo, 29 MJ 145, 150 (CMA 1989); see

also Huddleston v. United States, 485 U.S. 681, 687-89 (1988);

United States v. Tanksley, 54 MJ 169, 175-76 (2000).

     The second prong of the Southworth test asks “whether the

military judge has provided a proper limiting instruction.”    50

MJ at 76.   Following the trial counsel’s compartmentalized

presentation of evidence relating to each of the victims, the

military judge’s instructions were crystal clear:    members were

instructed to keep evidence of each offense separate; that the


                                  7
United States v. Simpson, No. 01-0047/AR


burden was on the prosecution to prove each and every element of

each offense beyond a reasonable doubt; and that proof of guilt

of one offense created no inference that appellant was guilty of

any other offense.   The military judge then provided the

following limiting instruction:

          Now, despite my instruction to you that you may
     not infer that the accused is guilty of one offense
     because his guilt may have been proven on another
     offense, and that you must keep the evidence with
     respect to each offense separate, there is, however,
     some evidence that has been presented with respect to
     some of the alleged incidents--which may also be
     considered for a limited purpose with respect to other
     of the incidents. More specifically, you may consider
     evidence concerning the circumstances under which the
     earliest in chronological order incident allegedly
     happened--namely, the April ’93 incident allegedly
     involving [BW], or the second chronologically of the
     alleged incidents--namely, the November ’95 alleged
     incident with [AB], or both of them with respect to
     the last of the charged offense--namely, the August
     ’96 incident with [TR] -- for this limited purpose and
     this limited purpose only: You may consider evidence
     of the earlier event if you believe it happened, and
     the circumstances of the earlier event as you find
     them for the limited purpose of their tendency, if at
     all, to prove a plan or design on the part of the
     accused to take advantage sexually of women who are
     under the effect of alcohol. Listen to me carefully
     again.

          You may consider the evidence from earlier
     transactions for the limited purpose of its tendency,
     if any, to prove a plan or design on the part of the
     accused to take advantage sexually of women who are
     under the effect of alcohol in regard to the later of
     the incidents.... You’re specifically advised that
     you may not consider this evidence for any other
     purpose and you may not conclude or infer from the
     evidence that there are allegations against the
     accused from three different women, that the accused
     is necessarily a bad person or has criminal


                                  8
United States v. Simpson, No. 01-0047/AR


     tendencies, and he therefore, committed one or more of
     the offenses. And further, you may not consider from
     the fact that there are allegations from three
     different witnesses about three different
     transactions, that that makes it any more or less
     likely that any of the three women are credible as
     witnesses.

     Finally, in light of the military judge’s instructions and

the evidence of record, we conclude that the findings do not

“reflect an impermissible crossover.”    50 MJ at 76; see Duncan,

supra; United States v. Foster, 40 MJ 140 (CMA 1994); United

States v. Curry, 31 MJ 359 (CMA 1990).   Accordingly, the

military judge did not abuse his discretion in denying

appellant’s motion for a severance.

     “The propriety of the instructions given by a military

judge is reviewed de novo.”   United States v. Quintanilla, 56 MJ

37, 83 (2001); United States v. Grier, 53 MJ 30, 34 (2000);

United States v. Maxwell, 45 MJ 406, 425 (1996).   A failure to

object to an instruction prior to commencement of deliberations

waives the objection in the absence of plain error.   RCM 920(f);

Grier, supra.   The burden is on appellant to establish plain

error.   We find no plain error in the judge’s instruction.

     After instructing the members on the elements of rape, the

military judge then advised them that the offense of attempted

rape, in violation of Article 80, UCMJ, 10 USC § 880, was a

lesser-included offense of Charge 1 and its specification,

alleging the rape of AB.   He instructed the members that in


                                 9
United States v. Simpson, No. 01-0047/AR


order to find appellant guilty of attempted rape, they had to be

convinced by legal and competent evidence, beyond a reasonable

doubt, of four elements:

            The first element is that on or about 18 November
            ’95, at Fort Drum, New York, that the accused did
            a certain act; that is, he pressed his penis
            against [B’s] –- I should say [AB’s] body[.]

     Appellant now attacks the military judge’s instruction as

improper on two fronts.    First, he alleges that the offense of

attempted rape was not reasonably raised by the evidence.

Citing United States v. Griffin, 50 MJ 480 (1999), he argues

that any instruction on this lesser-included offense was

improper.    Contending that the sole issue surrounding the rape

accusation was consent, not penetration, appellant argues that

penetration became an issue only when the military judge

improperly used AB’s statement to CID as substantive evidence in

his instruction.    We disagree.

     During his closing argument, defense counsel attacked both

the lack-of-penetration and lack-of-consent issues.     At the

outset of defense counsel’s closing argument, he asserted that

the physical evidence failed to show whether or not appellant

and AB had any sexual contact.      Later, referring to his cross-

examination of AB, defense counsel argued that the statement

provided by AB to investigators soon after the incident was more

accurate than her in-court testimony and should, therefore, be



                                   10
United States v. Simpson, No. 01-0047/AR


believed.   In asking the court members to find a lack of

penetration, defense counsel argued:   “Well, on cross-

examination, it was brought out that, ‘Well, I then felt Bug’s

penis on my butt.’...   Penis on the butt is not penetration.”

Accordingly, while an instruction that incorporates evidence not

admitted at trial may constitute error, in the absence of an

objection, and given trial defense counsel’s use of that

evidence in his closing argument, we conclude there was no plain

error.

     Appellant contends that his defense counsel asked AB the

question concerning her statement to CID shortly after the

offense occurred solely to impeach her.    Such cross-examination,

he argues, did not amount to the introduction of substantive

evidence that would give rise to a lesser-included-offense

instruction.   See United States v. Taylor, 44 MJ 475, 479

(1996)(“When a witness’ prior inconsistent statement is offered

for impeachment, it is not being offered for its truth.”).

However, to ensure that the answers given may only be used for

impeachment purposes, the defense must request a specific

instruction under Mil.R.Evid. 105.   The failure to request such

an instruction constitutes a waiver absent plain error.     Here,

the defense made no such request.

     Furthermore, there is evidence independent of AB’s

statement to CID that permitted, if not required,   the military


                               11
United States v. Simpson, No. 01-0047/AR


judge to give an instruction on the lesser-included offense of

attempted rape.   AB’s response to the trial defense counsel’s

question concerning her statement to CID and “feeling Bug’s

penis on [her] butt” was explained as follows:    “That was the –-

after he come back from the bathroom.   But the first time when

my daughter woke up, his penis was in my vagina.”    (Emphasis

added.)   With the testimony in this posture, an attempted rape

instruction was proper.    See Sansone v. United States, 380 U.S.

343, 350 (1965)(“A lesser-included offense instruction is ...

proper where the charged greater offense requires the jury to

find a disputed factual element which is not required for

conviction of the lesser-included offense.”); Griffin, supra.

     Accordingly, if there was any error in the military judge’s

instructing the members that the first element of the offense of

attempted rape was that appellant “pressed his penis against

AB’s body,” it was certainly not plain error.    See Estelle v.

McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141,

147 (1973)(an instruction should be considered in context of

record of trial and instructions as a whole, not judged in

“artificial isolation”).

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                12
