                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                         Wayne M. PARKER, Sergeant
                            U.S. Army, Appellant

                                    No. 02-0937
                            Crim. App. No. 9600945

       United States Court of Appeals for the Armed Forces

                            Argued October 8, 2003

                         Decided December 22, 2003

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


                                       Counsel


For Appellant:     Lieutenant Colonel Michael E. Smith (argued).


For Appellee: Captain Mark J. Hamel (argued); Lieutenant
    Colonel Margaret B. Baines and Captain Janine P. Felsman (on
    brief); and Captain Theodore C. Houdek.



Military Judge:      C. S. Schwender (trial); R. L. Swan (rehearing)



        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Parker, No. 02-0937/AR



   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of rape (2

specifications), forcible sodomy, sodomy, assault and battery,

and adultery (three specifications), in violation of Articles

120, 125, 128, and 134, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 920, 925, 928, and 934 (2000).

The members sentenced Appellant to a dishonorable discharge,

confinement for ten years, total forfeitures, and reduction to

Private (E-1).   The convening authority disapproved the sodomy

conviction and approved only so much of the sentence as provided

for a dishonorable discharge, confinement for nine years and six

months, total forfeitures, and reduction to Private (E-1).

   The Court of Criminal Appeals disapproved two of the

findings (the assault and battery conviction and one of the rape

convictions), modified the forcible sodomy finding (to sodomy),

and affirmed the remaining findings of guilty.   The court also

set aside the sentence and ordered a sentence rehearing.   United

States v. Parker, 54 M.J. 700, 717 (A. Ct. Crim. App. 2001).

     At the rehearing, Appellant was sentenced to a bad-conduct

discharge, confinement for 45 months, total forfeitures, and

reduction to Private (E-1).   The convening authority approved

the sentence, granting confinement credit for 1,736 days served.



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United States v. Parker, No. 02-0937/AR


Thereafter, the Court of Criminal Appeals affirmed in an

unpublished memorandum opinion.

     On Appellant’s petition, we granted review of the following

issues:

                                  I.

    WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE
    GOVERNMENT TO PRESENT VIDEOTAPED EVIDENCE, OVER DEFENSE
    OBJECTION, FOR THE LIMITED MIL.R.EVID. 413 PURPOSE OF
    SHOWING SIMILAR CRIMES WITH RESPECT TO A KEY GOVERNMENT
    WITNESS [AL] CONCERNING AN ALLEGED RAPE THAT THE GOVERNMENT
    CHARGED OCCURRED IN 1995 WHERE THE FACTS SUPPORTING THE
    ALLEGED RAPE OCCURRED IN 1993, AND WHERE THE MILITARY JUDGE
    PREVIOUSLY RULED THAT THE GOVERNMENT COULD NOT AMEND THE
    CHARGE SHEET TO CHANGE THE DATES, YET ALLOWED THE
    GOVERNMENT TO PRESENT THE EVIDENCE PURSUANT TO MIL.R.EVID.
    413 (WITHOUT CONDUCTING A MIL.R.EVID. 403 BALANCING TEST),
    AND ALLOWED THE COURT-MARTIAL PANEL TO FIND APPELLANT
    GUILTY OF THE CHARGED RAPE BY EXCEPTIONS AND SUBSTITUTIONS,
    CHANGING THE DATES OF THE ALLEGED OFFENSE BY TWO YEARS.

          A. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO
          DIRECT THE GOVERNMENT, PURSUANT TO R.C.M. 603(d), TO
          EITHER DISMISS OR WITHDRAW AND PREFER ANEW THE
          OFFENSES RELATING TO [AL] (SPECIFICATION 4 OF CHARGE
          II AND SPECIFICATION 2 OF CHARGE V) ONCE HE SUSTAINED
          THE DEFENSE OBJECTION TO THE GOVERNMENT’S PROPOSED
          MAJOR CHANGE TO THESE SPECIFICATIONS, AND INSTEAD
          ALLOWED THE SPECIFICATIONS TO GO FORWARD TO THE PANEL
          WHERE THE PANEL FOUND APPELLANT GUILTY BY EXCEPTIONS
          AND SUBSTITUTIONS.

          B. WHETHER THE MILITARY JUDGE ERRED WHEN HE FAILED TO
          GRANT THE DEFENSE MOTION FOR A FINDING OF NOT GUILTY
          AS TO THE [AL] SPECIFICATIONS.

          C. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING THE
          VIDEOTAPED TESTIMONY OF [AL] UNDER MIL.R.EVID. 413
          WITHOUT CONDUCTING A MIL.R.EVID. 403 BALANCING TEST.




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United States v. Parker, No. 02-0937/AR


                                 II.

     WHETHER THE MILITARY JUDGE ERRED AS A MATTER OF LAW WHEN HE
     ALLOWED, OVER DEFNESE OBJECTION, A GOVERNMENT WITNESS [AL]
     TO TESTIFY VIA VIDEOTAPED DEPOSITION WHERE THE GOVERNMENT
     FAILED TO ESTABLISH THE UNAVAILABILITY OF THE WITNESS,
     THEREBY VIOLATING APPELLANT'S SIXTH AMENDMENT RIGHT TO
     CONFRONT WITNESSES AGAINST HIM.

     For the reasons discussed below, we hold that the military

judge erred when he denied a defense motion to dismiss the

specifications referenced in Issue I.B.       In light of that

decision, we need not address the remaining questions under

Issues I and II.



                          I.   INTRODUCTION

     Appellant was charged with three separate sets of offenses

pertinent to the granted issues: (1) rape, forcible sodomy, and

assault of Ms. KD, as well as adultery with Ms. KD, at various

times between October 1, 1994, and June 30, 1995; (2) rape,

forcible sodomy, and assault of Ms. USG, as well as adultery

with Ms. USG, at various times between June 1, 1994, and June 1,

1995; and (3) rape of Ms. AL between February 1 and March 31,

1995, as well as adultery with Ms. AL during February or March

1995.   With respect to the charges involving Ms. AL, the panel

found by exceptions and substitutions that he was guilty of

committing the rape and adultery offenses between August 1993

and March 1995.    In this appeal, Appellant contends that the



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United States v. Parker, No. 02-0937/AR


military judge committed various errors with respect to the

findings involving Ms. AL, including failure to grant a defense

motion to dismiss at the conclusion of the prosecution’s case,

and allowing the panel to change the nature of the offense

during deliberations on findings.



       II. LEGAL BACKGROUND: MODIFICATION OF CHARGES AND
                SPECIFICATIONS AFTER ARRAIGNMENT

     This appeal involves the legal principles concerning

modification of charges or specifications after arraignment.

Minor changes to charges and specifications after arraignment

are permitted prior to the announcement of findings, but major

changes may not be made over the objection of the accused.    Rule

for Courts-Martial [hereinafter R.C.M.] 603.    R.C.M. 603

provides:

            (a) Minor changes defined. Minor changes in
            charges and specifications are any except
            those which add a party, offenses, or
            substantial matter not fairly included in
            those previously preferred, or which are
            likely to mislead the accused as to the
            offenses charged.

            . . . .

            (c) Minor changes after arraignment. After
            arraignment the military judge may, upon
            motion, permit minor changes in the charges
            and specifications at any time before
            findings are announced if no substantial
            right of the accused is prejudiced.




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United States v. Parker, No. 02-0937/AR


            (d) Major changes. Changes or amendments to
            charges or specifications other than minor
            changes may not be made over the objection
            of the accused unless the charge or
            specification affected is preferred anew.


     Charges and specifications also may be modified during

deliberations on findings.    The panel, or the military judge in

a bench trial, may modify the charges and specifications under

the authority to make "exceptions and substitutions."     R.C.M.

918(a)(1).    This power may be used to conform the findings to

the evidence, but it "may not be used to substantially change

the nature of the offense . . . . "    Id.   See Manual for Courts-

Martial, United States (2002 ed.) [hereinafter MCM], Analysis of

the Military Rules of Evidence A21-66 [hereinafter Drafter’s

Analysis].    The non-binding Discussion accompanying R.C.M.

918(a) notes:    "Changing the date or place of the offense may,

but does not necessarily, change the nature or identity of the

offense."    Compare United States v. Allen, 50 M.J. 84, 86

(C.A.A.F. 1999), and United States v. Hunt, 37 M.J. 344, 347

(C.M.A. 1993), with United States v. Wray, 17 M.J. 375, 376

(C.M.A. 1984).




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United States v. Parker, No. 02-0937/AR


                       III.   FACTUAL BACKGROUND

                  A.   Ms. AL’S Pretrial Statements

     At the time of the charged offenses, Ms. AL and Appellant

were stationed in Germany and assigned to the same unit.     The

pertinent charges against Appellant were generated as a result

of a sworn statement Ms. AL provided to Army investigators on

June 19, 1995, in which she wrote: "About 0300 sometime in

February or March I was raped in my room by PARKER."    She did

not expressly identify the year in which the alleged rape

occurred.   The charges against Appellant alleged that he raped

Ms. AL “between 1 February 1995 and 31 March 1995,” and that he

engaged in adultery with Ms. AL “on or about February or March

1995.”

      Between the time that charges were filed and trial on the

merits in Germany, Ms. AL left active duty and returned to the

United States.    The prosecution, anticipating that Ms. AL might

not be willing to return to Germany for the court-martial,

received permission from the military judge on April 18, 1996 --

11 days before trial -- to depose her on videotape in the United

States.   The deposition was taken on April 22, 1996.

     Ms. AL's testimony during the deposition about the timing

of the alleged rape was inconsistent with the 1995 dates on the

charge sheet.    During the deposition, she reiterated the

allegation in her sworn statement that Appellant had raped her


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United States v. Parker, No. 02-0937/AR


while she was "passed out" at a party in her barracks room at

some point during February or March.   When asked whether this

was a reference to 1993, she responded, "I believe so."   She

also indicated that, prior to this incident, she and Appellant

had dated "about a month, maybe two," and that, she and

Appellant had engaged in consensual sexual intercourse "about

six or seven times" during their dating relationship.    She also

indicated that their consensual sexual activity had ended at

some point prior to the rape, and that they did not have sexual

relations at any time after the alleged rape.


        B.   The Prosecution's Motion to Amend the Charges

     On April 29, 1996, shortly after the deposition was taken,

the prosecution moved to amend the rape specification to correct

"an incorrect date."   According to trial counsel, the

specification erroneously referred to "February 1995 to March

1995," when it should have referred to "February 1993 to March

1993" as the time period of the alleged rape.   Defense counsel

objected on the grounds that the proposed modification exceeded

the scope of permissible minor changes.   See R.C.M. 603(a), (d).

In the course of opposing trial counsel’s motion, defense

counsel emphasized that the dates were particularly important in

this case, where the prosecution intended to present testimony

that the interaction between Appellant and Ms. AL involved both



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United States v. Parker, No. 02-0937/AR


consensual and non-consensual sexual intercourse.    Defense

counsel argued that in the context of a relationship involving

consensual sexual activity, establishing the date of any alleged

non-consensual incident was critical to proper trial preparation

by the defense.

       At the conclusion of argument by both parties, the military

judge sustained the defense objection, ruling that the

"Government . . . can't change the date."    The military judge

later noted that his ruling was based on the position that the

defense, which was prepared to defend against a charge of

misconduct in 1995, did not have adequate notice that it would

be required to defend against a charge of misconduct in 1993.


  C.    Trial counsel's Motion to Admit Ms. AL's Statement Under
                   Military Rules of Evidence 413

       Immediately after losing the motion to change the dates in

the rape specification concerning Ms. AL, the prosecution moved

to admit Ms. AL's videotaped deposition on the ground that the

sexual misconduct described therein was relevant to the separate

charges involving Ms. KD and Ms. USG.    In support of the motion,

trial counsel cited Military Rule of Evidence [hereinafter

M.R.E.] 413, "Evidence of similar crimes in sexual assault

cases."    M.R.E. 413(a) provides as follows:

            In a court-martial in which the accused is
            charged with an offense of sexual assault,
            evidence of the accused’s commission of one


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United States v. Parker, No. 02-0937/AR


          or more offenses of sexual assault is
          admissible and may be considered for its
          bearing on any matter to which it is
          relevant.

     M.R.E. 413 is patterned after Federal Rule of Evidence 413,

which was enacted by Congress in 1994 to facilitate the

introduction of evidence that might otherwise be subject to

restrictions on the use of propensity evidence.    See Drafter’s

Analysis at A22-37; Steven A. Saltzburg et al., Military Rule of

Evidence Manual 615-16 (4th ed. 1997).    The rule permits the

prosecution “to use evidence of the accused’s uncharged past

sexual assaults for the purpose of demonstrating his propensity

to commit the charged offenses.”    Id. at 616.   See United States

v. Bailey, 55 M.J. 38 (C.A.A.F. 2001).

     In the present case, trial counsel argued that Ms. AL’s

testimony was admissible because it concerned “sexual misconduct

of the exact same nature for which the accused is currently

facing trial of the other five specifications of rape, and as

such, it is admissible for that particular issue."    Defense

counsel objected on various grounds, focusing primarily on the

contention that the probative value of such evidence was

outweighed by the risk of unfair prejudice.    See M.R.E. 403;

Bailey, 55 M.J. at 40-41.

     The military judge ruled that the prosecution would be

permitted “to put on this evidence under M.R.E. 413."    With



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United States v. Parker, No. 02-0937/AR


respect to defense counsel’s objection under M.R.E. 403, the

military judge said:

          The drafters took that into consideration
          when they gave us M.R.E. 413. It almost
          seems to be an exception to 403. But even
          with a 403 balancing, [an] allegation of a
          prior rape is very relevant to charged
          offenses of a similar nature, even if the
          modus operandi is a little bit different.
          And that's what the drafters said [] is the
          reason they put in 413.

                       D.   Contents of the Flyer

     Prior to the introduction of evidence on the merits, the

prosecution sought to clarify the status of the rape charge

involving Ms. AL in light of the military judge's rejection of

the Government’s motion to amend the specification.    Trial

counsel noted that the “flyer” – the document that would be

presented to the members summarizing the charges and

specifications -- contained the specification alleging rape of

Ms. AL in 1995, and he argued that the Government should be

permitted to retain the specification alleging 1995 as the year

of the offense.   Trial counsel added: "Then through instructions

to the panel, the panel can address whether or not they feel

that the government has met its burden of proof on that

allegation."   According to trial counsel, if the prosecution

would not be allowed to proceed with the specification as

alleged, the flyer would have to be modified to delete the

specification before the flyer was given to the panel.


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United States v. Parker, No. 02-0937/AR


     Defense counsel countered that the specification should be

deleted from the flyer because there was no evidence that

Appellant raped Ms. AL in 1995.     According to defense counsel,

the only evidence of any misconduct with AL was the deposition.

Defense counsel noted that the military judge had admitted the

deposition only for a limited purpose under M.R.E. 413, and that

the deposition addressed an incident in 1993, not a rape in

1995.

     The military judge declined to order deletion of the

specification, observing: "I'll expect [the Government to] put

on some evidence and it may not be enough."       Trial counsel

added, "And we can address that at the appropriate time with the

close of the government's case, Your Honor."


        E.   The Prosecution's Evidence on the Charged Offenses

     After opening statements, the prosecution presented its

evidence on the charges against Appellant concerning Ms. KD and

Ms. USG.     The prosecution also presented evidence on an

unrelated charge of maltreatment of a subordinate under Article

93, UCMJ, 10 U.S.C. § 893 (2000).       The evidence as to these

offenses consisted primarily of in-court testimony by the

alleged victims and other witnesses.       The prosecution then

offered the videotaped deposition of Ms. AL, which the military

judge admitted into evidence, consistent with his pretrial



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United States v. Parker, No. 02-0937/AR


rulings.      The deposition was shown to the members without

comment by either counsel or the military judge.      During

rebuttal, the Government offered brief testimony by a

noncommissioned officer in Ms. AL's unit that primarily

concerned AL's character for truthfulness and her credibility.

At the end of his testimony, a member of the panel asked this

witness whether he was aware of any relationship between Ms. AL

and Appellant, and he answered, "No, sir."


        F.   The Defense Motion for Findings of Not Guilty

     After the prosecution completed its case on the merits,

defense counsel moved for findings of not guilty on the rape and

adultery specifications that alleged misconduct with Ms. AL in

1995.    See R.C.M. 917.

     Under R.C.M. 917(a), the military judge “shall enter a

finding of not guilty . . . if the evidence is insufficient to

sustain a conviction of the offense affected.”      R.C.M. 917(d)

states that a motion for a finding of not guilty “shall be

granted only in the absence of some evidence which, together

with all reasonable inferences and applicable presumptions,

could reasonably tend to establish every essential element of an

offense charged.      The evidence shall be viewed in the light most

favorable to the prosecution without an evaluation of the

credibility of witnesses.”



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United States v. Parker, No. 02-0937/AR


     In support of the motion for findings of not guilty,

defense counsel argued that during the prosecution's case-in-

chief "no evidence whatsoever [had been] presented on those

issues of guilt or innocence on these charges or

specifications."   Trial counsel contended that the

specifications should be submitted to the court-martial panel,

and that the members should be permitted to find Appellant

guilty of the two specifications by using exceptions and

substitutions to modify the date.      Defense counsel offered two

responses: first, that the only evidence relating to Ms. AL was

in her deposition, which alleged a rape occurring in 1993,

significantly outside the charged time period; second, that the

deposition had been admitted only as propensity evidence

relevant to the charges involving Ms. KD and Ms. USG, and that

the deposition did not state that Appellant engaged in sexual

misconduct with Ms. AL in 1995.

     Following the presentations by both parties, the military

judge denied the defense motion to dismiss the charges.     He

added that he was going to "do research the next time we have a

break as to how much of a variance [in the dates] this is, and

whether I'll allow it to go to the members later."     Defense

counsel asked the military judge to enter special findings

regarding the motion to dismiss when the military judge

completed his review of the variance matter, and the military


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United States v. Parker, No. 02-0937/AR


judge agreed.   Defense counsel raised the issue later in the

trial by asking the military judge to rule on the motion to

dismiss, noting that the defense awaited a definitive ruling

before deciding how to proceed.     A brief colloquy ensued:

          MJ: The decision is that the motion is
          denied.

          DC:   The grounds, sir?

          MJ:   Prima facia case has been made.

          DC: Thank you, sir. Has the military judge
          done any research that he had indicated that
          he was going to do earlier?

          MJ: I did as much research as I felt was
          necessary.

          DC:   Thank you, sir.

The military judge did not enter special findings in support of

the ruling, despite his earlier statement that he would do so.


      G. Entry of Findings by Exceptions and Substitutions

     Following presentation of evidence on the merits by both

parties, the military judge instructed the panel on findings,

including an instruction on the general subject of variance.

The instruction advised the members that if they were satisfied

from the evidence that the charged offenses occurred but that

the time, place, or manner "differs slightly" from the exact

allegations in the specifications, they could make "minor




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United States v. Parker, No. 02-0937/AR


modifications" in reaching their findings, provided that they

did not change the nature or identity of the offenses.

     The members found Appellant guilty by exceptions and

substitutions of both specifications alleging misconduct with

Ms. AL.   They found that the rape had occurred between "1 August

1993" and 31 March 1995, and that the adultery had occurred on

or about "August [19]93 through March [19]95."



                          IV.    DISCUSSION

     The present appeal involves a closely contested trial, in

which the members were required to make careful judgments about

whether Appellant crossed the line between permissible and

impermissible social and professional interactions in a variety

of different circumstances.     In the context of this case,

evidence concerning the time, place, and nature of the

interactions between Appellant and others was a major focus of

the litigation.   The importance of these factors is reflected in

the findings at both the trial and appellate levels.      At trial,

the members found Appellant not guilty of four of the six rape

allegations, one of the two assault charges, and a separate

maltreatment charge.   They also modified one of the forcible

sodomy charges to simple sodomy.       The Court of Criminal Appeals

further modified the findings, concluding that the evidence was

factually insufficient as to three findings:      one of the


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United States v. Parker, No. 02-0937/AR


remaining rape charges, the remaining forcible sodomy charge,

and the remaining assault charge.     Parker, 54 M.J. at 708.

     With respect to the charges concerning Appellant’s

interaction with Ms. AL, the military judge’s pretrial rulings

established the parameters of the Government’s case.    First, the

military judge rejected the prosecution’s motion to modify the

charged dates from 1995 to 1993.     That decision, based upon the

prohibition against major changes in R.C.M. 603, made it clear

that the Government was obligated to prove that the offenses

took place in 1995, the charged timeframe.    Second, the military

judge thereafter permitted the prosecution to introduce Ms. AL’s

deposition, following the prosecution’s representation that the

evidence was admissible under M.R.E. 413 because it contained

evidence relevant to the separate charges involving Ms. KD and

Ms. USG.   Third, the decision by the military judge to not alter

the 1995 dates on the flyer further underscored the Government’s

obligation to produce evidence that Appellant engaged in

improper sexual activity with Ms. AL in 1995.    The prosecution

produced no such evidence.

     Following the military judge’s rejection of the motion to

change the charged dates, the Government could have addressed

the disconnect between pleading and proof through withdrawal of

these charges and preferral of new charges for consideration in

the present trial or in a separate trial.    See R.C.M. 603(d).


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United States v. Parker, No. 02-0937/AR


Having chosen not to do so, the Government was required to prove

in its case-in-chief that there was improper sexual activity

between Appellant and Ms. AL during the charged period in 1995.

     The Government introduced no evidence of sexual interaction

between Appellant and Ms. AL during the charged time period.

Had the Government introduced evidence from which the

factfinders could reasonably infer sexual action during the

charged period in 1995, the evidence in Ms. AL’s deposition

concerning sexual activity in 1993 might have been relevant

under M.R.E. 413 to proving the nature of subsequent sexual

activity.   The prosecution, however, could use the 1993 evidence

only by connecting it to otherwise admissible evidence of sexual

activity between Appellant and Ms. AL in 1995.    Proof of

improper sexual activity in 1993, without more, did not

demonstrate directly or by reasonable inference that Appellant

engaged in sexual activity with Ms. AL in 1995.

     Accordingly, the evidence introduced by the prosecution at

the close of the Government’s case was legally insufficient

under R.C.M. 917 to prove that Appellant raped Ms. AL in the

period between February and March 1995 or that he engaged in

adultery with her during that period.     The military judge erred

by not granting the motion to dismiss those specifications.




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United States v. Parker, No. 02-0937/AR


                          V.    DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed as to specification 4 of Charge II and

specification 2 of Charge V, and as to the sentence.   The

findings of those specifications are set aside, and those

specifications are dismissed.   The sentence is set aside, and

the case is returned to the Judge Advocate General for remand to

the Court of Criminal Appeals, which may order a rehearing.




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