                       UNITED STATES, Appellee

                                    v.

               Jerry J. EDIGER, Private First Class
                       U.S. Army, Appellant

                              No. 08-0757

                       Crim. App. No. 20060275

       United States Court of Appeals for the Armed Forces

                        Argued October 8, 2009

                       Decided January 5, 2010

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.


                                 Counsel


For Appellant: Captain Elizabeth Turner (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Matthew M. Miller, Lieutenant
Colonel Jonathan F. Potter, Major Grace M. Gallagher, and
Captain Alison L. Gregoire (on brief).

For Appellee: Captain Sarah J. Rykowski (argued); Colonel
Norman F. J. Allen III, Lieutenant Colonel Martha L. Foss, and
Major Sara M. Root (on brief); Captain Philip M. Staten.

Military Judge:   Jeffery R. Nance and Mark P. Sposato


       This opinion is subject to revision before final publication.
United States v. Ediger, No. 08-0757/AR

       Judge ERDMANN delivered the opinion of the court.

       At a contested general court-martial, Private First Class

Jerry J. Ediger was convicted of one specification of rape of a

person under the age of sixteen and two specifications of making

a false official statement.   Prior to trial the Government

dismissed one specification of taking indecent liberties with a

female under the age of sixteen.       Ediger was sentenced to a

dishonorable discharge and confinement for fifteen years.      The

convening authority reduced the confinement to fourteen years

and eleven months but otherwise approved the sentence.      The

United States Army Court of Criminal Appeals affirmed the

findings and sentence.   United States v. Ediger, No. ARMY

20060275 (A. Ct. Crim. App. June 11, 2008).

       “In a court-martial in which the accused is charged with an

offense of child molestation, evidence of the accused’s

commission of one or more offenses of child molestation is

admissible and may be considered for its bearing on any matter

to which it is relevant.”   Military Rule of Evidence (M.R.E.)

414.   We granted review of the Army Court’s decision to

determine whether the military judge erred in admitting evidence

of prior child molestation under M.R.E. 414.      We find no error

and affirm the Army Court of Criminal Appeals.




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United States v. Ediger, No. 08-0757/AR

                             Background

       The charges against Ediger arose out of allegations made by

Ediger’s former stepdaughter, MA.     Ediger first became involved

with MA’s mother when MA was eight or nine years old, and he

married her mother in 1999, when MA was twelve years old.    The

first of the charged incidents took place after Ediger married

MA’s mother.   MA testified that after a family trip to Walmart,

Ediger told her that she had embarrassed him and he wanted to

embarrass her in the same way.    Ediger told MA to go to her

parents’ bedroom and ordered her to pull down her pants and get

on the bed.    When MA refused, Ediger pulled down her pants and

told her to get on the bed on all fours facing away from him.

Ediger proceeded to sit in a chair behind MA with a pornographic

magazine and masturbate.   MA testified that she felt she had to

do what Ediger said because he said he would hit her if she did

not.   When MA’s mother returned home, MA told her what happened

but her mother did not make any effort to remedy the situation.

       Shortly after this incident MA left her mother’s home and

moved in with her grandparents.   In 2001, MA moved back in with

her mother and Ediger and she testified that it was during this

time period that Ediger raped her.    MA did not tell her mother

about the rape at the time because she was scared that Ediger

would become abusive towards her and assumed her mother would

not believe her.   After the rape MA again left to live with her



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United States v. Ediger, No. 08-0757/AR

grandparents.   MA returned in 2005 when her mother was preparing

for major surgery.   At that time MA decided to tell her mother

about Ediger’s abuse, which resulted in a criminal investigation

and the filing of the instant charges against Ediger.

     The charges filed against Ediger included:   the rape of MA;

indecent liberties with MA (masturbating in her presence while

looking at her with intent to gratify his sexual desires);

indecent language (orally communicating to MA “You have nice

tits,” and “I love your ass,” or words to that effect); and two

specifications of a false official statement (“I did not ever

masturbate in [MA]’s presence” or words to that effect, and “I

did not rape [MA]” or words to that effect).

M.R.E. 414 Testimony

     The Government sought to introduce evidence of prior child

molestation by Ediger pursuant to M.R.E. 414 in the form of

testimony from TG.   Ediger filed a motion to suppress TG’s

testimony.   For purposes of the motion, the parties stipulated

that TG would testify as follows:

(1) Ediger lived with TG and her mother when TG was between
eight and eleven years old; (2) Ediger sexually abused her
in a variety of ways including fondling her and forcing her
to perform oral sex on him; (3) in one instance, Ediger
punished TG by telling her to take off her pants and
underwear and pose on her hands and knees on her bed while
he spanked her, masturbated and licked her pubic area; (4)
on another occasion, TG inadvertently walked in on Ediger
and her mother engaged in a sex act and Ediger said to her,
“you either have to leave, or you have to be a part of
this,” or words to that effect; and (5) TG reported



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United States v. Ediger, No. 08-0757/AR

Ediger’s conduct to the police but recanted at the urging
of her mother.

     In the motion to suppress, the defense urged the military

judge to “weigh[] heavily the distance in time of the

allegations, the danger of confusing the issue, and the little

probative value, if any, [TG]’s testimony will have in assisting

the Fact Finder in this case.”

First Ruling on the Motion to Suppress TG’s Testimony

     The first military judge assigned to Ediger’s case,

Lieutenant Colonel (LTC) Jeffery R. Nance, denied the defense

motion to suppress TG’s testimony in a detailed ruling.    Judge

Nance’s ruling analyzed TG’s testimony in light of this court’s

precedent governing the admission of evidence under M.R.E. 413

and M.R.E. 414 as set forth in United States v. Wright, 53 M.J.

476 (C.A.A.F. 2000).   Specifically, Judge Nance found:

     a.   The events involving [TG] occurred between seven
          and four years from the events for which the
          accused is facing trial, alleged by [MA].

     b.   The events are similar to those charged. The
          accused allegedly engaged in sexual acts with
          young girls, of the same age at the time of the
          incidents, who were not his natural daughters but
          were either his step daughter [sic] or over whom
          he was acting in that capacity toward. All
          events occurred at residents [sic] the accused
          shared with the mothers of the two girls as well
          as the girls themselves. On one occasion, the
          circumstances of the sexual acts are strikingly
          the same. The accused is alleged by both girls
          to have been forced them [sic] to pose on her
          hands and knees exposing her naked lower torso to
          the accused while the accused masturbated. The
          other striking similarity to these two alleged


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United States v. Ediger, No. 08-0757/AR

          acts is that, apparently under the guise of
          disciplining them, the accused told both girls
          that they had been acting up and had embarrassed
          him in public before telling them to take off
          their clothes and pose on their hands and knees.
          The accused also is alleged to have used threats
          that the girl’s mothers would not believe them if
          they told her what happened to keep the girls
          quiet. All acts were forceful and coercive in
          nature.

     c.   The frequency of the acts. The sexual acts with
          these minor girls occurred infrequently with each
          alleged victim but the similarity of events, the
          things he told them to keep them quiet, the
          scepter of physical violence used as a veiled
          threat and the guise of discipline for “acting
          up” or “embarrassing me in public” was remarkably
          similar even to the point of the same words being
          used.

     d.   The presence or lack of intervening
          circumstances. There were none other than that
          the accused moved on to a new relationship with a
          different woman who also had a similarly aged
          young daughter from another marriage.

     e.   The relationship between the parties. The
          relationship between the accused and both young
          girls was exactly alike. Though the accused was
          not married to [TG]’s mother, he lived in the
          same house, held himself out as her “Dad,”
          administered discipline to her and took on the
          role as “Dad” to [TG] as far as her mother was
          concerned.

     f.   Strength of proof of the act. [TG] will testify
          that these sexual acts were perpetrated upon her
          by the accused. There is no other evidence
          offered on these acts nor is there any
          contradictory evidence offered. [TG] allegedly
          reported these acts to the police but later
          recanted her allegations at her mother’s request.
          The court finds that the trier of fact could
          conclude by a preponderance of the evidence that
          these uncharged acts occurred.




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United States v. Ediger, No. 08-0757/AR

     g.    Time needed for proof of the prior act. A
           minimum of time will be needed since only one
           witness will testify to these prior acts.

     h.    Distraction of the fact finder. The court will
           ensure through limiting instructions and tailored
           direct and cross[-]examination that there is no
           mini-trial on collateral issues.

     i.    Potential for less prejudicial evidence. There
           is not less prejudicial evidence concerning these
           sexual acts that the parties have identified that
           could be presented in this case.

     j.    Probative weight of the evidence. The probative
           weight of the evidence is extremely high. The
           evidence shows a clear factual pattern that the
           accused used on both girls to engage in sexually
           abusive conduct.

     After he issued his ruling admitting the testimony of TG,

Judge Nance asked the parties to provide proposed limiting

instructions.   Prior to trial Judge Nance was replaced by LTC

Mark P. Sposato, who presided over the remainder of the court-

martial.

Dismissal of Indecent Liberties Charge and Renewal of Motion to
Suppress TG’s Testimony

     After Judge Nance’s ruling on the motion to suppress but

before trial, the Government moved to dismiss Specification 1 of

Charge III, the indecent liberties charge which alleged that

Ediger masturbated while looking at MA on the bed while she was

on her hands and knees.   In response to the dismissal of this

charge, the defense renewed their motion to suppress TG’s

testimony, arguing that TG’s testimony had been offered in

support of the withdrawn indecent liberties specification.


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United States v. Ediger, No. 08-0757/AR

Judge Sposato denied the motion stating, “I’ve reviewed the

ruling of Colonel Nance and I affirm his ruling under 414, the

evidence would appear to still be admissible and I conducted 403

balancing and I find, under the circumstances the evidence would

be substantially more probative than prejudicial.”1   Judge

Sposato then informed counsel that he would prepare a limiting

instruction to give to the panel following TG’s testimony.    He

subsequently provided the parties with a proposed limiting

instruction, to which neither party objected.

TG’s Testimony at Court-Martial

     At Ediger’s court-martial, TG testified that Ediger dated

her mother in 1995 and 1996 when TG was between the ages of nine

and eleven.   She testified that during that time, Ediger spanked

and fondled her on a regular basis.   TG testified that Ediger

punished her on one occasion by making her take off all her

clothes, get on a bed on all fours, and then licked and fondled

her genital area.   TG also testified that Ediger forced her to

perform oral sex on him.   TG specifically testified to the

following incident:

     I had a nightmare, so I woke up and I was going to
     mom’s room and I walked in on them having sex and I
     immediately closed the door back, went back to my

1
  The second military judge misstated the balancing test in
M.R.E. 403, which calls for evidence to 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.”

                                  8
United States v. Ediger, No. 08-0757/AR

     room. The next day James told me that since I walked
     in on them pretty much if I wanted to see what was
     going on I could be a part of it.

At one point TG filed a police report but later recanted at the

urging of her mother and Ediger.

Military Judge’s Instructions to the Panel on TG’s Testimony

     After TG testified, LTC Sposato read the following

instruction to the members:

          You’ve heard evidence through the testimony of
     [TG] that the accused may have previously committed
     other offenses of child molestation. You may consider
     the evidence of such other acts of child molestation
     for their tendency, if any, to show the accused’s
     propensity to engage in child molestation, as well as
     their tendency, if any, to identify the accused as the
     person that committed offenses alleged in Charges I
     and III, to prove a plan or design of the accused to
     molest [MA] and to determine whether the accused had a
     motive to commit those offenses.
          You may not, however, convict the accused merely
     because you believe he committed these other offenses
     or merely because you believe he has a propensity to
     engage in child molestation. 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.

When giving this instruction, Judge Sposato erroneously included

a reference to Charge III (which initially contained two

specifications:   the indecent liberties specification which had

been dismissed; and an indecent language specification for which

Ediger was found not guilty) when informing the members of the

charges for which they could consider TG’s testimony.   Judge

Sposato corrected this mistake when he gave the instruction a




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United States v. Ediger, No. 08-0757/AR

second time prior to deliberations, by deleting the reference to

Charge III.

                              Discussion

        The granted issue asks whether the military judge erred in

admitting the testimony of TG pursuant to M.R.E. 413 and M.R.E.

414.2    Ediger argues that the military judges made the following

errors in admitting TG’s testimony:    Judge Sposato failed to

properly instruct the members that TG’s testimony should have

been considered only in light of the rape charge; Ediger’s

comment to TG “you either have to leave or be a part of this”

was not admissible as it does not constitute child molestation

as defined in M.R.E. 414; and neither military judge performed

an adequate analysis under M.R.E. 403.

        In response, the Government argues that both military

judges provided a proper analysis when admitting TG’s testimony

in light of this court’s precedent in Wright, 53 M.J. 476.       The

Government asserts that the military judges correctly evaluated

the threshold factors and Judge Sposato properly instructed the

members as to the propensity evidence.     Finally, the Government

argues that even if the military judges erred, any error was

harmless given the strength of the Government’s case and the

limiting instruction given by Judge Sposato.



2
  United States v. Ediger, 67 M.J. 416, 416-17 (C.A.A.F. 2009)
(order granting review).

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United States v. Ediger, No. 08-0757/AR

       A military judge’s decision to admit or exclude evidence is

reviewed for an abuse of discretion.       United States v. Manns, 54

M.J. 164, 166 (C.A.A.F. 2000).     Admission of evidence under

M.R.E. 414 requires a two-step analysis.       First, the military

judge must make three threshold findings:       (1) whether the

accused is charged with an act of child molestation as defined

by M.R.E. 414(a); (2) whether the proffered evidence is evidence

of his commission of another offense of child molestation as

defined by the rule; and (3) whether the evidence is relevant

under M.R.E. 401 and M.R.E. 402.        United States v. Bare, 65 M.J.

35, 36 (C.A.A.F. 2007).     Here, consideration of TG’s testimony

regarding prior acts of child molestation was triggered under

M.R.E. 414 because Ediger was charged with an offense of child

molestation in the rape of MA.

       Once the three threshold factors are met, the military

judge must then apply a balancing test under M.R.E. 403.3         Id.

“The importance of careful balancing arises from the potential

for undue prejudice that is inevitably present when dealing with

propensity evidence.”      United States v. James, 63 M.J. 217, 222


3
    M.R.E. 403 provides:

       Exclusion of relevant evidence on grounds of prejudice,
       confusion, or waste of time[.] Although relevant, evidence
       may 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.

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United States v. Ediger, No. 08-0757/AR

(C.A.A.F. 2006).    Inherent in M.R.E. 414 is a “general

presumption in favor of admission.”   See United States v. Berry,

61 M.J. 91, 94-95 (C.A.A.F. 2005); United States v. Dewrell, 55

M.J. 131, 138 n.4 (C.A.A.F. 2001).

      “Where a military judge properly conducts the balancing

test under Military Rule of Evidence 403, we will not overturn

his decision unless there is a clear abuse of discretion.”

United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F. 1998).

However, “[w]here the military judge is required to do a

balancing test under M.R.E. 403 and does not sufficiently

articulate his balancing on the record, his evidentiary ruling

will receive less deference from this court.”   Berry, 61 M.J. at

96.

      Judge Nance provided a thorough balancing test, applying

each of the Wright factors and explaining his analysis on the

record.   When the defense renewed their motion to suppress TG’s

testimony after the Government dismissed the indecent liberties

specification, Judge Sposato adopted Judge Nance’s initial

ruling and noted that the evidence would still be admissible.

However, he did not explain why it was appropriate for him to

adopt Judge Nance’s ruling despite the dismissal of the indecent

liberties charge.   While Judge Sposato stated that he had

conducted a M.R.E. 403 balancing test and concluded that the

evidence would be substantially more probative than prejudicial,



                                 12
United States v. Ediger, No. 08-0757/AR

he did not explain his analysis on the record.4   Because Judge

Sposato did not record his balancing test on the record, his

ruling is given less deference than Judge Nance’s ruling, which

provided a thorough analysis of the Wright factors.     Berry, 61

M.J. at 96.

     Under the circumstances of this case, we find that Judge

Sposato properly adopted Judge Nance’s earlier findings

regarding the admission of TG’s testimony.   Although the

Government dismissed the indecent liberties charge alleging that

Ediger masturbated in the presence of and while looking at MA,

the Government did not dismiss the corresponding false official

statement specification which charged that Ediger made a false

official statement that “I did not ever masturbate in [MA]’s

presence.”    At trial, when the Government dismissed the indecent

liberties charge, Judge Sposato asked trial counsel how the

Government intended to prove the false statement specification

without the related indecent liberties specification.    The

Government responded, “we can still elicit the evidence to [sic]

4
  Because the charges which Ediger faced were altered with the
withdrawal of the indecent liberties specification, our review
would have benefited from a complete Wright analysis and
balancing test on the record by Judge Sposato. As stated in
James, we strongly suggest that military judges dealing with
objections to propensity evidence proffered under M.R.E. 413 and
M.R.E. 414 make a record of their application of M.R.E. 403. 63
M.J. at 222. These safeguards are especially important in light
of the fact that M.R.E. 413 and M.R.E. 414 propensity evidence
can be both highly probative and highly prejudicial at the same
time.



                                 13
United States v. Ediger, No. 08-0757/AR

trial that the statement made in Charge II [the false official

statement charge] is false.”

     Indeed, MA testified that Ediger forced her to pose naked

on a bed on all fours in front of him while he masturbated.

Therefore the same conduct raised in the dismissed charge,

alleged masturbation in front of MA, remained at issue in

Ediger’s court-martial despite the Government’s dismissal of the

indecent liberties charge.   The analysis undertaken by Judge

Nance was still relevant and applicable despite the Government’s

dismissal of that charge.    Under those circumstances, Judge

Sposato appropriately adopted Judge Nance’s ruling allowing for

the admission of TG’s testimony.

Judge Sposato’s instructions on TG’s Testimony

     This court has stated, in regard to a military judge’s

responsibilities to properly instruct members as to the proper

use of propensity evidence, as follows:

     [I]t is essential that . . . the members are
     instructed that M.R.E. 414 evidence may be considered
     for its bearing on an accused’s propensity to commit
     the charged crime, the members must also be instructed
     that the introduction of such propensity evidence does
     not relieve the government of its burden of proving
     every element of every offense charged. Moreover, the
     factfinder may not convict on the basis of propensity
     evidence alone.

United States v. Schroder, 65 M.J. 49, 56 (C.A.A.F. 2007).

     Ediger argues that the members should have been instructed

that they could consider TG’s testimony solely for the rape



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United States v. Ediger, No. 08-0757/AR

charge.   He specifically argues that “[i]n the absence of being

told of this restriction, [the members] would have assumed that

they could consider TG’s testimony in determining appellant’s

guilt as to all charges.”    We note that once evidence is

admitted under M.R.E. 414, that evidence “may be considered for

any matter to which it is relevant.”   The members could

therefore have considered TG’s testimony in their evaluation of

any of the charges facing Ediger for which it was relevant.

M.R.E. 414.

     Judge Sposato’s instruction, which he gave to the members

both after TG’s testimony and again prior to releasing the

members to deliberations, properly reflects the considerations

discussed in Schroder.   He was not required to instruct the

members that the propensity evidence could be used “solely” for

the rape charge.

TG’s Testimony about Ediger’s Statement

     Ediger argues that both military judges improperly admitted

TG’s testimony about Ediger’s comment after she walked in on him

and her mother having sex.   Ediger claims that the statement

(“if I wanted to see what was going on I could be a part of it”)

does not fall within the definition of child molestation as that

term is defined in M.R.E. 414 and thus does not meet the second

threshold requirement for admission.




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United States v. Ediger, No. 08-0757/AR

       The second threshold requirement under M.R.E. 414 is that

the proffered evidence must be evidence of the commission of

another offense of child molestation as defined by M.R.E. 414.5

The Government argues that this statement constituted an

invitation or solicitation to participate in sexual activity.

However, we need not decide whether the statement falls within

the definition in M.R.E. 414, because even if we were to assume

that the admission of the statement was error, it was harmless

under the test for prejudice from an erroneous evidentiary

5
    Under M.R.E. 414:

       “child” means a person below the age of sixteen, and
       “offense of child molestation” means an offense . . . that
       involve[s]

            (1) any sexual act or sexual contact with a child
            proscribed by the Uniform Code of Military Justice,
            Federal law, or the law of a State;

            (2) any sexually explicit conduct with children
            proscribed by the Uniform Code of Military Justice,
            Federal law, or the law of a State;

            (3) contact between any part of the accused’s body, or
            an object controlled or held by the accused, and the
            genitals or anus of a child;

            (4) contact between the genitals or anus of the
            accused and any part of the body of a child;

            (5) deriving sexual pleasure or gratification from the
            infliction of death, bodily injury, or physical pain
            on a child; or

            (6) an attempt or conspiracy to engage in conduct
            described in paragraphs (1) through (5) of this
            subdivision.

M.R.E. 414(d)(1)-(6).

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United States v. Ediger, No. 08-0757/AR

ruling set forth in United States v. Kerr, 51 M.J. 401, 405

(C.A.A.F. 1999) (citing United States v. Weeks, 20 M.J. 22, 25

(C.M.A. 1985)).    In Kerr, we evaluated the following factors to

determine prejudice:   “(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.

     The Government presented a strong case against Ediger at

court-martial.    In addition to the previously discussed direct

testimony from MA and TG, the Government called two witnesses

with whom Ediger had discussed his relationship with MA.    A

friend of Ediger’s testified that Ediger made insinuations about

a sexual encounter with MA.   A criminal investigator who

interviewed Ediger testified that Ediger told him that he

thought about MA when he masturbated and planned on pursuing a

romantic relationship with MA after he ended his relationship

with her mother.   The Government also presented testimony from a

social worker and a psychologist that supported MA’s behavior as

a rape victim.

     The defense case consisted of an attempt to discredit MA by

showing inconsistencies in her statements to investigators and

by trying to establish a motive to fabricate her accusations, as

well as arguing that there was no physical evidence of a sexual




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United States v. Ediger, No. 08-0757/AR

relationship with MA.   In comparison, the Government’s evidence

was considerably stronger than the defense case.

     The third prong of the Kerr test evaluates the materiality

of the proffered evidence.    This prong is “merely a test for

relevancy and materiality.”   Weeks, 20 M.J. at 25 n.3.    TG’s

testimony that Ediger told her “if I wanted to see what was

going on I could be a part of it,” is not direct evidence of the

charges against Ediger, but rather some evidence of his

propensity to commit those offenses.   The fourth prong of the

Kerr test evaluates the quality of the evidence.     While TG’s

testimony as to Ediger’s statement was the same quality as her

other propensity testimony, it was of “no better quality than

that which was already before the finder of fact.”    United

States v. Roberson, 65 M.J. 43, 48 (C.A.A.F. 2007).     In the

context of evidence presented at trial, TG’s testimony about the

statement was not “particularly significant” either in its

quality or materiality.   See United States v. Dobson, 63 M.J. 1,

20 (C.A.A.F. 2006).

     In weighing the four factors set forth in Kerr, we find

that Ediger did not suffer prejudice because of the admission of

the statement.   We therefore find that even if the military

judge erred in admission of the statement, the error was

harmless.   The additional evidence of Ediger’s statement could




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United States v. Ediger, No. 08-0757/AR

not have tipped the scales in favor of the Government any more

than TG’s testimony already had.

Balancing and Relevancy Analysis of TG’s testimony

     Ediger argues that the most significant error was Judge

Nance’s finding that the events alleged by TG were similar to

the events charged by MA.    Specifically, Ediger argues that MA

alleged that she was raped whereas TG claimed that she was

forced to perform oral sex and repeatedly molested by Ediger.

Ediger claims the acts are “widely disparate.”    Ediger also

argues that the only similar act referenced in TG’s stipulated

testimony at the motions hearing -- that Ediger masturbated in

front of her -- was not testified to by TG at trial.    However,

contrary to Ediger’s assertions, TG did testify at trial that

Ediger masturbated in front of her on one occasion when he

ultimately forced her to perform oral sex.

     Regardless, Ediger’s argument that the acts alleged must be

exactly the same is unpersuasive.     This court has never required

the exact same acts of sexual molestation for the admission of

evidence under M.R.E. 414.   See James, 63 M.J. at 218-20 (acts

of uncharged child molestation were “similar in their sexual

nature” although victims did not describe engaging in precisely

the same acts with the defendant); Schroder, 65 M.J. at 51-52

(evidence of other acts of molestation and sodomy admitted in

court-martial for rape and indecent acts).



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United States v. Ediger, No. 08-0757/AR

     Ediger also argues that the military judge did not properly

evaluate the temporal proximity factor in his balancing analysis

under M.R.E. 403, but simply stated the length of time between

the allegations made by MA and TG.   Judge Nance’s specific

reference to the temporal proximity of the events reflects that

he factored the time difference into his analysis.6   Temporal

proximity is but one factor considered by the military judge and

we have stated “[t]he length of time between the events alone is

generally not enough to make a determination as to the

admissibility of the testimony.”    Berry, 61 M.J. at 96.

     Ediger also argues that the military judge did not properly

evaluate the “strength of proof” factor in his Wright analysis.

Ediger raises the fact that the alleged police report filed by

TG was not available due to the passage of time and argues that

the report could have shown whether TG’s claims were consistent.

Contrary to Ediger’s claim, this factor was specifically

addressed by Judge Nance:

     There is no other evidence offered on these acts nor
     is there any contradictory evidence offered. [TG]
     allegedly reported these acts to the police but later
     recanted her allegations at her mother’s request. The
     court finds that the trier of fact could conclude by a

6
  This court has concluded that incidents occurring more than
eight years prior to the charged incident were admissible in
Dewrell, 55 M.J. at 137-38. In United States v. Bailey, 55 M.J.
38, 41 (C.A.A.F. 2001), we allowed admission of evidence of
uncharged misconduct occurring approximately ten years before
the charged offense.




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United States v. Ediger, No. 08-0757/AR

     preponderance of the evidence that these uncharged
     acts occurred.

We agree with Judge Nance’s conclusion and we are satisfied that

the direct testimony from TG could have convinced the panel that

Ediger committed the similar acts alleged by TG.

                            Conclusion

     We find that TG’s testimony of prior child molestation

under M.R.E. 414 was properly admitted.   Judge Nance conducted a

thorough Wright analysis and that analysis was properly adopted

by Judge Sposato.   The decision of the United States Army Court

of Criminal Appeals is affirmed.




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