       This opinion is subject to revision before publication


       UNITED STATES COURT OF APPEALS
                  FOR THE ARMED        FORCES
                     _______________
                       UNITED STATES
                          Appellant
                                v.
          Justin L. FETROW, Technical Sergeant
              United States Air Force, Appellee
                          No. 16-0500
                   Crim. App. No. ACM 38631
        Argued October 25, 2016—Decided April 17, 2017
                Military Judge: Matthew P. Stoffel
   For Appellant: Captain Tyler B. Musselman (argued);
   Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on
   brief)
   For Appellee: Major Johnathan D. Legg (argued); Colonel
   Jeffrey G. Palomino.
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges STUCKY,
   RYAN, and OHLSON, joined.
                     _______________

   Judge SPARKS delivered the opinion of the Court.

    Appellee was tried by a general court-martial composed
of officer and enlisted members. Contrary to his pleas, he
was convicted of attempted abusive sexual contact with a
child, attempted aggravated sexual abuse of a child, abusive
sexual contact with a child, two specifications of aggravated
sexual abuse of a child, and two specifications of aggravated
sexual contact with a child, in violation of Articles 80 and
120, Uniform Code of Military Justice (UCMJ), 10 U.S.C §§
880, 920 (2006).1 The convictions were all based on the ver-

   1 Appellee was found not guilty of four specifications of sexual
abuse of a child (Article 120, UCMJ); one specification of aggra-
vated sexual contact with a child (Article 120, UCMJ); one specifi-
cation of abusive sexual contact with a child (Article 120, UCMJ):
and one specification of indecent acts with a child (Article 134,
UCMJ, 10 U.S.C. § 934). Three of the above specifications were
dismissed by the military judge pursuant to a defense motion to
dismiss under M.R.E. 917.
            United States v. Fetrow, No. 16-0500/AF
                     Opinion of the Court

sion of Article 120, UCMJ, in effect between October 1, 2007,
and June 27, 2012. The members sentenced Appellee to a
dishonorable discharge, confinement for twenty-five years,
forfeiture of all pay and allowances, and reduction to pay
grade E-1. Except for the forfeitures, the convening authori-
ty approved the sentence as adjudged. On appeal to the
United States Air Force Court of Criminal Appeals, Appellee
raised, among other issues, his unsuccessful challenge at
trial to the testimony of his biological daughter which was
admitted as propensity evidence under Military Rule of Evi-
dence (M.R.E.) 414. The lower court agreed with Appellee in
part that the military judge had erred in admitting the tes-
timony about two of three incidents and that Appellee was
prejudiced by the error. United States v. Fetrow, 75 M.J.
574, 578 (A.F. Ct. Crim. App. 2016).
    The Judge Advocate General of the Air Force then certi-
fied the following two questions for our review:
   I.     Whether the Air Force Court of Criminal Appeals
          committed legal error when it found that in order for
          conduct to constitute child molestation under Mil. R.
          Evid. 414, the conduct must have been an offense un-
          der the UCMJ, or federal or state law, at the time it
          was committed and, if offered under Mil. R. Evid.
          414(d)(2)(a)-(c), that the conduct must meet the defini-
          tion of an offense listed under the version of the appli-
          cable enumerated statute in effect on the day of trial.
   II.    Whether the Air Force Court of Criminal Appeals
          committed legal error when it found that the erroneous
          admission of two acts of indecent liberties committed
          by Appellee on his child age daughter had a substantial
          influence on the members’ verdict requiring set aside of
          the findings and sentence.
We agree with the lower court’s analysis and conclusions
that the military judge erred, and we are not persuaded that
the error was harmless.




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            United States v. Fetrow, No. 16-0500/AF
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                       BACKGROUND
       As of the trial date, Appellee and his wife, Mrs. JNF,
had been married nine years.2 Appellee and his wife had a
blended family consisting of six children. Fetrow, 75 M.J. at
577. As laid out by the lower court, Appellee “brought two
children into the marriage, Mrs. JNF brought two children
into the marriage, and Appellee and Mrs. JNF had two bio-
logical children together.” Id. “The allegations of sexual
abuse in this case involved the two children that Mrs. JNF
brought into the marriage, JB and JH.” Id. The certified is-
sues under consideration relate to the testimony of JLF, Ap-
pellee’s biological daughter born before Appellee’s marriage
to Mrs. JNF.
       In January 2013, JH reported to a school counselor
that Appellee sexually abused her. Id. Her sister, JB, subse-
quently alleged that Appellee had previously sexually
abused her. Id. By the time of trial, however, JH had recant-
ed her allegations and did not testify on the findings or dur-
ing sentencing. Id. The Government’s key evidence in the
case was the testimony of JB who was seventeen years old at
the time of trial. She testified to two distinct time periods:
one, six years earlier, when Appellee sexually abused her
while her family was living in South Carolina, and another,
two years prior to trial, when the family lived in Wyoming.
Fetrow, 75 M.J. at 577. In addition, she testified to three in-
cidents when Appellee sexually abused her sister JH in her
presence. Fetrow, 75 M.J. at 577. JB’s testimony described a
number of incidents of abuse, including Appellee touching
and licking her vagina, and paying her to show him her
breasts, touch his penis, and perform other sexual acts with
him. At trial the defense moved in limine to exclude testi-
mony from Appellee’s biological daughter, JLF, expected to
be offered by the Government as propensity evidence under
M.R.E. 414. JLF’s testimony described three separate inci-
dents involving Appellee’s conduct with her. The military
judge made the following findings:

       [1] The first alleged incident JLF described took
       place at or near Charleston, South Carolina, some-

   2 The trial of these offenses took place between November 12,
2013, and February 13, 2014.



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             United States v. Fetrow, No. 16-0500/AF
                      Opinion of the Court

       time between June 2001 and December 2001. She
       stated that on one occasion while she was approxi-
       mately 3-4 years of age and living with the Ac-
       cused, the Accused placed her in a bedroom closet
       while he had sex with a woman.

       She believed they were having sex because both the
       Accused and the woman were naked and were
       “humping.” While the Accused and the woman were
       engaged in sexual activity, JLF was able to see the
       sexual activity because the closet door was slightly
       open . . . .

       [2] JLF also stated that on one occasion around the
       same time, the Accused touched her on her upper
       thigh. The touching allegedly occurred while JLF
       and the Accused built tents made of blankets. No
       other adult was present when the touching oc-
       curred, JLF described the touching as seductive in
       nature and explained that the Accused touched her
       knee with his hand and moved his hand slowly up
       her leg. JLF became visibly upset while testifying
       regarding this incident.

       [3] JLF also described an incident where she saw
       the Accused’s penis. This occurred in Summerville,
       South Carolina, while she was approximately 8-9
       years old. JLF was spending the summer with the
       Accused, though she normally lived with her moth-
       er . . . . On this occasion, the Accused exposed his
       penis to JLF while in the bathroom of their resi-
       dence while running bathwater. The Accused had
       removed his pants, and while sticking his foot in
       the bathtub, he moved his foot quickly and made a
       comment about the water being too hot. The Ac-
       cused still was wearing his shirt. Shortly thereaf-
       ter, someone walked into the house, and the Ac-
       cused told JLF to leave. At a later point, the
       Accused questioned JLF on whether she laughed
       when she saw his penis.

Fetrow, 75 M.J. at 578 (alterations in original). The military
judge concluded that each of these incidents was “a qualify-
ing offense of child molestation . . . in violation of Article 120
and 120b,” and denied the motion to exclude. Appellee was
ultimately convicted of a number of the offenses to which JB
testified regarding the abuse that occurred to her, as well as



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               United States v. Fetrow, No. 16-0500/AF
                        Opinion of the Court

offenses she witnessed committed against JH. Fetrow, 75
M.J. at 577.
        In its opinion, the Court of Criminal Appeals provided
a brief recitation of the development of M.R.E. 414, and an
analysis of what constitutes an offense of child molestation
admissible as propensity evidence under the rule. Fetrow, 75
M.J. at 580-81. After a thoughtful analysis, it concluded that
conduct qualifying for admission as “any other offense of
child molestation” was limited to conduct that was an of-
fense punishable under the UCMJ, or a crime under federal
or state law at the time the conduct occurred. It further con-
cluded that regarding M.R.E. 414(d)(2)(A) in particular, that
provision was limited to Article 120, UCMJ, only (not Article
120b, UCMJ), and only the version in effect at the time of
trial. Fetrow, 75 M.J. at 581-82.
      Thus, our task is to determine the limits of the lan-
guage of M.R.E. 414 sanctioning the admissibility of evi-
dence of “any other offense of child molestation.” Since we
agree with the lower court, we reach our conclusion by fol-
lowing a path similar to its well-reasoned analysis.
                        DISCUSSION
        The standard of review for a military judge's decision
to admit evidence is abuse of discretion. United States v.
Yammine, 69 M.J. 70, 73 (C.A.A.F. 2010). The question of
whether the admitted testimony constitutes evidence that
the accused committed another offense of child molestation
under M.R.E. 414 is one of law, reviewed de novo. Id. Reso-
lution of the certified questions necessitates close examina-
tion of the language of the rule. Questions involving the con-
struction of statutes and rules are reviewed de novo. United
States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015).
       Admissibility under M.R.E. 414 requires the following
findings by the military judge:
          (1) whether the accused is charged with an act of
         child molestation as defined by M.R.E. 414(a);3 (2)

3   M.R.E. 414(a) states:
         In a court-martial proceeding in which an accused is
         charged with an act of child molestation, the military judge
         may admit evidence that the accused committed any other


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            United States v. Fetrow, No. 16-0500/AF
                     Opinion of the Court

       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.
Yammine, 69 M.J. at 73-74 (footnote added). The second el-
ement of this inquiry is at issue here. The rule, in relevant
part, defines “another offense of child molestation” as fol-
lows: “ ‘Child molestation’ means any offense punishable un-
der the Uniform Code of Military justice, or a crime under
federal law or under state law . . . that involves: (A) any con-
duct prohibited by Article 120 and committed with a child.”
M.R.E. 414(d)(2)(A). The task at hand is to determine how
this provision should be interpreted to best reflect the intent
of the President.
       The rules of statutory construction, although general-
ly applied to construe statutes, are helpful in analyzing evi-
dentiary rules as well as other provisions of the Manual for
Courts-Martial. We begin by simply reading the plain lan-
guage of the rule giving effect to every clause and word.
Duncan v. Walker, 533 U.S. 167, 172 (2001); United States v.
Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014). The words used in
the rule “should be given their common and approved us-
age.” United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F.
2003) (internal quotation marks omitted) (quoting United
Scenic Artists v. NLRB, 762 F.2d 1027, 1032 n.15 (D.C. Cir.
1985). We are mindful that we construe the rule so as to
avoid rendering any language superfluous or redundant.
Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995); Murphy
Exploration & Prod. Co. v. Dept. of Interior, 252 F.3d 473,
481 (D.C. Cir. 2001). We have previously stated that we con-
strue the text of M.R.E. 414 strictly rather than expansively.
Yammine, 69 M.J. at 75.
       We begin by examining the phrases, “any offense pun-
ishable under the [UCMJ]” and “a crime under federal law
or state law.” We agree with the lower court’s reasonable
conclusion that the prior conduct must have been against
the law at the time it occurred. Otherwise, it would have


       offense of child molestation. The evidence may be consid-
       ered on any matter to which it is relevant.



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            United States v. Fetrow, No. 16-0500/AF
                     Opinion of the Court

been lawful conduct and thus, not “a crime” or “an offense
punishable.”
       We also agree with the lower court that the similar
crimes must involve conduct listed in the version of M.R.E.
414 in effect at the time of trial. The current version of
M.R.E. 414 is always the President’s most recent determina-
tion of what criminal conduct is potentially relevant for pro-
pensity purposes in child molestation cases. Section
(d)(2)(A)-(G) of M.R.E. 414 provides an exclusive list of con-
duct and the similar crimes evidence must fall within those
categories. Yammine, 69 M.J. at 74-75. To the extent those
categories incorporate specific criminal statutes, the prior
conduct at issue must constitute a crime under those stat-
utes in effect on the day of trial. Accordingly, we adopt the
two-part analysis established by the Court of Criminal Ap-
peals for determining whether uncharged acts qualify as
other offenses of child molestation, namely, (1) whether the
conduct constituted a punishable offense under the UCMJ,
federal law, or state law when the conduct occurred; and (2)
whether the conduct is encompassed within one of the spe-
cific categories set forth in the version of M.R.E. 414
(d)(2)(A)-(G) in effect at the time of trial.
                         ANALYSIS
       We turn to whether the three uncharged incidents
meet the two-part test set out above. For ease we will refer
to these incidents as the closet incident, the tent incident,
and the bathroom incident. As noted earlier, the military
judge admitted evidence of all three incidents concluding
that each qualified as an offense of child molestation in vio-
lation of Articles 120 and 120b, UCMJ.
       We begin with the tent incident. The military judge
found that on one occasion when JLF and Appellee were
building tents made with blankets, Appellee touched JLF on
her upper thigh. He found that JLF explained that Appellee
touched her knee with his hand and moved his hand slowly
up her leg and described this touching as seductive in na-
ture. JLF’s actual testimony was that the touch was “[l]ike a
seduced—a seducing type. . . . [b]ecause it was slow, and it
didn’t feel right to me. . . . It didn’t feel like how a dad is
supposed to be interacting with a daughter.”



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             United States v. Fetrow, No. 16-0500/AF
                      Opinion of the Court

        The Court of Criminal Appeals looked to the 2001
version of indecent acts with a child under Article 134,
UCMJ. It noted the elements of that offense4 and the defini-
tion of the term “indecent.”5 The court concluded that the
alleged conduct constituted an offense punishable under the
UCMJ when it was committed. Fetrow, 75 M.J. at 583. The
court then considered whether the conduct fell within the
prohibition found in the version of M.R.E. 414 (d)(2)(A) in
effect at the time of trial. The lower court found the military
judge’s specific finding that the tent incident constituted
“sexual abuse of a child in violation of Article 120 and Arti-
cle 120b” was erroneous. We agree. Although sexual abuse of
a child was an offense under Article 120b, UCMJ, offenses
under that statute were not specifically incorporated into
the version of M.R.E. 414(d)(2) in effect at the time of trial.
The lower court concluded, and we agree, that the reference
to Article 120, UCMJ, in M.R.E. 414(d)(2)(A) at the time did



4The offense of an indecent act with a child under Article 134,
UCMJ, had the following elements:
       (1) That the accused committed a certain act upon or with
       the body of a certain person;
       (2) That the person was under 16 years of age and not the
       spouse of the accused;
       (3) That the act of the accused was indecent;
       (4) That the accused committed the act with intent to
       arouse, appeal to, or gratify the lust, passions, or sexual
       desires of the accused, the victim, or both; and
       (5) That, under the circumstances, the conduct of the ac-
       cused was to the prejudice of good order and discipline in
       the armed forces or was of a nature to bring discredit upon
       the armed forces.
Fetrow, 75 M.J. at 583 (citing Manual for Courts-Martial, United
States pt. IV, para. 87.b.(1) (2005 ed.) (MCM).
5 “In this context, ‘indecent’ conduct ‘signifies that form of immo-
rality relating to sexual impurity which is not only grossly vulgar,
obscene, and repugnant to common propriety, but tends to elicit
lust and deprave the morals with respect to sexual relations.’ ”
Fetrow, 75 M.J. at 583 (quoting MCM pt. IV, para. 90.c. (2005
ed.)).



                                 8
             United States v. Fetrow, No. 16-0500/AF
                      Opinion of the Court

not encompass Article 120b, UCMJ.6 Notwithstanding this
conclusion, conducting its de novo review, the court conclud-
ed that the alleged conduct could constitute an abusive sex-
ual contact under Article 120, UCMJ. Therefore, in its view
the evidence was properly admitted under M.R.E. 414, and
we see no reason to disturb this conclusion.
       We next consider the closet incident and the bath-
room incident. The military judge found both incidents con-
stituted indecent exposure under the pre-October 1, 2007,
version of Article 134, UCMJ. However, the Court of Crimi-
nal Appeals saw little need to address the first part of the
two-part inquiry since it was clear the alleged conduct on
both occasions failed to qualify under the second part. As
stated above, the court had noted that offenses under Article
120b, UCMJ, were not specifically incorporated into M.R.E.
414(d)(2) as child molestation offenses. The court then
looked to M.R.E. 414(d)(2)(A) and examined the offenses
enumerated in Article 120, UCMJ, and concluded that the
two incidents of indecent exposure were not included as of-
fenses under Article 120, UCMJ, because neither incident
involved a sexual act or sexual contact as defined by the
rule. Fetrow, 75 M.J. at 584-85. After examining the remain-
ing categories under M.R.E. 414(d)(2), the Court of Criminal
Appeals concluded, “an indecent exposure to a child, under
the facts of this case, does not constitute an offense of ‘child
molestation’ that is admissible as a ‘similar crime’ under
[M.R.E.] 414.” Id. at 585. We agree.
                  PREJUDICE ANALYSIS
       Under Article 59(a), UCMJ, a “finding or sentence of
a court-martial may not be held incorrect on the ground of
an error of law unless the error materially prejudices the
substantial rights of the accused.” 10 U.S.C. § 859(a) (2012).
“The test for nonconstitutional evidentiary error is whether
the error had a substantial influence on the findings.” Unit-
ed States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001) (citing
Kotteakos v. United States, 328 U.S. 750, 765, (1946)). It is

   6  On May 16, 2016, the President signed Exec. Order No.
13730, 81 Fed. Reg. 33,331, 33,352, revising M.R.E. 414(d)(2)(A) to
read, “any conduct prohibited by Article 120 and committed with a
child, or prohibited by Article 120b.” (Emphasis added.)



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            United States v. Fetrow, No. 16-0500/AF
                     Opinion of the Court

the government that bears the burden of demonstrating that
the admission of erroneous evidence is harmless. United
States v. Flesher, 73 M.J. 303, 318 (C.A.A.F. 2014); United
States v. Berry, 61 M.J. 91, 97-98 (C.A.A.F. 2005). In evalu-
ating whether an erroneous admission of evidence is harm-
less, we use the four-part analysis set out in United States v.
Kerr, weighing (1) the strength of the government’s case, (2)
the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question. 51 M.J. 401, 405 (C.A.A.F. 1999).
        Although our review for prejudice is de novo, we
adopt the lower court’s analysis of the first three Kerr fac-
tors. We also adopt the lower court’s analysis of the fourth
factor, the quality of the evidence in question. We agree with
the lower court’s conclusion that JLF’s testimony was power-
ful because it was “apparently emotional and heartfelt,” with
JLF becoming visibly upset while testifying and telling the
members that it was difficult for her to testify because she
loved her father. Fetrow, 75 M.J. at 586. In addition, we note
that evidence erroneously admitted under M.R.E. 414 is un-
like most evidentiary error. The very nature of propensity
evidence is to permit the trier of fact to infer that since the
accused has acted previously in a certain fashion, he was in-
clined to have acted in conformity with that conduct with
respect to the charged offenses. When such evidence is erro-
neously admitted, the result is that evidence of bad charac-
ter has been improperly admitted against the accused.
M.R.E. 404(b)(1). Since the closet incident was not admissi-
ble under M.R.E. 414, it served no purpose other than to
suggest to the members that Appellee was an adulterer with
no regard for the psychological welfare of his young child.
Likewise, the bathroom incident served no probative pur-
pose other than to suggest that Appellee was a poor parent
with an odd proclivity for allowing his children to view him
unclothed. Whatever one might be inclined to infer about
Appellee from the charged offenses, the potential inferences
raised by this erroneously admitted evidence were improper.
Further, the record discloses that trial counsel led his clos-
ing argument with these incidents. We are not convinced
that the improperly admitted evidence of Appellee’s conduct
on these occasions did not have a substantial influence on



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            United States v. Fetrow, No. 16-0500/AF
                     Opinion of the Court

the findings resulting in something less than a fair trial for
Appellee.
                         DECISION
      The certified questions are answered in the negative
and the decision of the United States Air Force Court of
Criminal Appeals is affirmed.




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