

   
   
   
   U.S. v. Tanksley



UNITED STATES, Appellee
v.
Marion H. TANKSLEY, Captain
U.S. Navy, Appellant
 
No. 99-0666
Crim. App. No. 96-1402
 
United States Court of Appeals for the Armed
Forces
Argued May 2, 2000
Decided September 25, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which GIERKE, J., and COX, S.J., joined. GIERKE, J., filed
a concurring opinion. SULLIVAN, J., filed an opinion concurring in part
and in the result. EFFRON, J., filed an opinion concurring in part and
dissenting in part.
Counsel
For Appellant: Lieutenant Commander R.C.
Klant, JAGC, USN (argued).
For Appellee: Lieutenant Janice K. O'Grady,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: W.F. Grant
 
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD delivered the opinion
of the Court.
Contrary to his pleas, Captain Tanksley, a
Navy doctor, was convicted of violating a lawful general regulation, five
specifications of making false official statements, taking indecent liberties
with a female under the age of 16, obstructing justice by communicating
a threat, and false swearing, in violation of Articles 92, 107, and 134,
Uniform Code of Military Justice, 10 USC §§ 892, 907, and 934.
The members sentenced appellant to confinement for 38 months, forfeiture
of $3,500 pay per month for 30 months, and dismissal. The convening authority
approved the sentence as adjudged but suspended the adjudged forfeitures
for a period of 12 months, conditioned on appellant providing them by allotment
to his wife. The Court of Criminal Appeals affirmed. 50 MJ 609 (1999).
On January 18, 2000, we granted review
of the following issues:

I


WHETHER THE LOWER COURT ERRED IN FINDING
THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILTY TO INDECENT
LIBERTIES.


II


WHETHER THE LOWER COURT ERRED IN FAILING
TO FIND THAT APPELLANT WAS MATERIALLY PREJUDICED BY THE MEMBERS' CONSIDERATION
OF EVIDENCE THAT APPELLANT HAD BEEN OFFERED AND REFUSED TO SUBMIT TO A
POLYGRAPH EXAMINATION.


III


WHETHER THE LOWER COURT ERRED IN FAILING
TO FIND THAT APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL
WHERE THE GOVERNMENT SEIZED A PRIVILEGED DOCUMENT APPELLANT WAS PREPARING
FOR HIS ATTORNEY AND USED THAT DOCUMENT TO INVESTIGATE AND PREFER ADDITIONAL
CHARGES AGAINST APPELLANT.


IV


WHETHER THE LOWER COURT ERRED IN FAILING
TO FIND THAT THE MEMBERS WERE IMPROPERLY INSTRUCTED THAT THEY COULD CONSIDER
THE TESTIMONY OF J REGARDING ALLEGED FONDLING THAT HAD OCCURRED 30 YEARS
PRIOR AS EVIDENCE OF THE INTENT ELEMENT OF THE INDECENT LIBERTIES CHARGE.


Oral argument was heard in this case on May 2,
2000. Thereafter, appellant filed a motion asking us to reconsider granting
review of two issues we previously declined to address. We now grant review
of those issues, which are:

V


WHETHER THE LOWER COURT ERRED IN FAILING
TO FIND THAT APPELLANT SUFFERED ILLEGAL PRETRIAL PUNISHMENT IN VIOLATION
OF ARTICLE 13, UCMJ.


VI


WHETHER, IN DENYING APPELLANTS WRIT OF HABEAS
CORPUS, THE LOWER COURT ABUSED ITS DISCRETION
BY RESOLVING NUMEROUS AND SIGNIFICANT FACTUAL
MATTERS BASED ONLY UPON ITS REVIEW OF CONTRADICTORY AFFIDAVITS.


I. BACKGROUND
In 1959, appellant married Loni Ruth Tanksley.
Together they had four daughters: E (born in 1960); J (born in 1961); M
(born in 1968); and H (born in 1970). Appellant and Loni divorced in 1980
amid allegations of physical and mental abuse, as well as sexual abuse
of his daughters. The older girls (E and J) had already fled the home before
the divorce.
Appellant subsequently married Kelly, and together
they had a daughter, P. In August 1993, appellant, Kelly, and P, now 6
years old, were visiting appellant's daughters, M and H, in Lake Charles,
Louisiana. During the course of this visit, H observed her father in the
bathroom with P for a long period of time, ostensibly taking a shower.
H saw P towel drying her nude father. H discussed what she had seen with
her sister M. Although appellant had never sexually abused M, M knew of
the extensive sexual abuse that appellant had allegedly inflicted upon
her older sisters prior to their leaving the home in 1976 and 1977.
In a subsequent conversation between M and
her sister J, M told J about the visit, about their father still drinking
throughout the day, and about the shower episode with P, witnessed by H.
This conversation purportedly brought back vivid, emotional memories for
J, who had been abused at a young age in the bathtub by appellant. J contacted
authorities in Virginia, who started both criminal and social services
type investigations.
On July 5, 1994, appellant was relieved of
his medical duties at the Naval Air Station, Oceania, and temporarily assigned
to the Naval Base in Norfolk. He was given a government office and computer.
Although no one shared appellants office, it was not exclusively his to
use. On July 12, appellant was typing a document on this computer when
he was called away from the office. He neither closed out the document
nor turned off the computer. When he left the office, he closed but did
not lock the door.
When appellant got to the conference room (the
place to which he had been summoned), he was apprehended and taken to pretrial
confinement. The duty officer, Lieutenant Commander O'Toole (a judge advocate
officer) went to appellant's office to secure his personal belongings.
When Commander O'Toole entered the office, he noticed that the computer
was on and the document in question was displayed on the screen. Seeing
that the document was entitled "Regarding the Charges Now Pending Against
Me," Commander O'Toole printed the document and removed the disk from the
computer.

II. SEIZURE OF THE STATEMENT
At trial, appellant objected to the seizure
of the document, arguing that he had a reasonable expectation to privacy
in his office and that the seizure of the computer disk was illegal under
both the Fourth Amendment and Mil.R. Evid. 314 and 316, Manual for Courts-Martial,
United States (1995 ed.). Both the military judge and the Court of Criminal
Appeals concluded that the seizure of the disk was proper under Mil.R.Evid.
314(d) and 316(d)(3).
Although not raised at trial, appellant alleged
before the Court of Criminal Appeals that the seizure of the disk also
violated his Sixth Amendment right to counsel because the document was
being prepared for his attorney and was therefore privileged. The Court
of Criminal Appeals found that the document was exculpatory and
was not used at trial. The lower court also rejected appellant's assertions
that this document led to the preferral of any charges or the discovery
of any otherwise undiscoverable evidence. 50 MJ at 621.
We agree that the document in question was
entirely exculpatory. We also find no violation of appellant's constitutional
right to be free from unreasonable searches and seizures, or any abridgement
of his right to enjoy the assistance of counsel for his defense.
First, appellant occupied an office in which
he had, at best, a reduced expectation of privacy. See Mil.R.Evid
314(d); United States v. Muniz, 23 MJ 201 (CMA 1987); United
States v. Weshenfelder, 20 USCMA 416, 43 CMR 256 (1971); see
generally O'Connor v. Ortega, 480 U.S. 709 (1987)(holding
that public employees have limited expectation of privacy in the workplace).
More importantly, appellant forfeited any expectation
of privacy he might have enjoyed by leaving the document in plain view
on a computer screen in an unsecured room. See Mil.R.Evid. 316(d).
Finally, and most importantly, the exculpatory document in question was
not used at trial, did not reveal any confidential information about defense
strategy, and produced no information or leads that were not already known
to the Government or within the grasp of government investigative agencies.
See
generally Weatherford v. Bursey, 429 U.S. 545, 554 (1977);
United
States v. Kelly, 790 F.2d 137 (D.C. Cir. 1986);
United States v.
Brugman, 655 F.2d 540, 546 (4th Cir. 1981). This is not
a case where the Government has deprived appellant of his ability to communicate
with his counsel and make decisions. While privileged communication with
counsel may be the essence of the Sixth Amendment guarantee of effective
assistance of counsel, the Supreme Court has rejected any perse
rule that finds a Sixth Amendment violation when otherwise privileged,
confidential information is overheard or read. See Weatherford
v. Bussey, supra. We too decline appellants invitation to establish
such a rule.

III. REFUSAL OF A POLYGRAPH EXAM
On December 21, 1993, appellant was interviewed
by Special Agent Dillard of the Defense Investigative Service (DIS). This
particular interview was one of many conducted by both Naval Criminal Investigative
Service (NCIS) and DIS agents after abuse allegations were leveled against
appellant by ex-wife Loni and daughters E and J around 1980.
Pursuant to this interview, Agent Dillard drafted
a nine page handwritten statement, which appellant signed, substantially
denying all allegations. Although the record is unclear regarding how the
subject of taking a polygraph examination arose during the December 1993
interview,1
on page eight of this statement (Pros. Ex.
2), appellant added:



I have refused to take a polygraph when offered
one, because I am a doctor and I have dealt with patients and others in
a law enforcement capacity, that have undergone polygraph examinations,
the high emotions involved, and I refuse to subject myself to the test.



Prosecution Exhibit 2 was admitted without objection.
Mil.R.Evid. 707(a) states:



Notwithstanding any other provision of law,
the results of a polygraph examination, the opinion of a polygraph examiner,
or any reference to an offer to take, failure to take, or taking
of a polygraph examination, shall not be admitted into evidence.



(Emphasis added.)
Failure of the trial counsel to redact the
above quoted sentence from Prosecution Exhibit 2 prior to submission to
the finders of fact was error.
By failing to object, appellant forfeited the
issue in the absence of plain error. See Johnson v. United States,
520 U.S. 461, 466-67 (1997); United States v. Olano, 507 U.S. 725,
732-34 (1993); United States v. Powell, 49 MJ 460, 463-65 (1998);
United
States v. Kho, 54 MJ 63, 65 (2000). Appellant has the burden of establishing
that any plain error "materially prejudiced his substantial rights." See
United States v. Reist, 50 MJ 108, 110 (1999).
Appellants reliance on United States v.
Rodriguez, 37 MJ 448 (CMA 1993), is misplaced. In Rodriguez,
over defense objection, the special agent who administered Rodriguezs
polygraph testified about the actual results of that examination, concluding
that Rodriguez had not been truthful during his polygraph examination.
This Court found error in the Governments failure to lay the necessary
foundation for the polygraphs reliability before admitting the results
of the examination. After engaging in a harmless error analysis (since
there was a defense objection), we found that the Government had not met
its burden of showing Rodriguez was not prejudiced by the error.
Here, because we conduct a plain error analysis,
appellant has the burden of demonstrating prejudice. The document in question
was one of 25 trial and 138 appellate exhibits admitted. After laying the
foundation for the admission of Prosecution Exhibit 2, Special Agent Dillard
explained that when appellant reviewed his statement, he (appellant) added
the objectionable phrase concerning his refusal to take a polygraph. Appellants
counsel immediately objected to any testimony concerning the polygraph.
The trial judge sustained the objection. Several questions later, the witness
used the word "polygraph" in response to the trial counsels question.
The alert military judge immediately halted the answer. No further mention
was made during the remainder of the trial of a polygraph examination.
The record consists of over 1300 pages of testimony. This passing reference
to a polygraph examination did not materially prejudice any substantial
right of this appellant. See United States v. Clark, 53 MJ
280 (2000).

IV. SUFFICIENCY OF THE EVIDENCE OF INDECENT
ASSAULT
Appellant was charged with taking indecent
liberties with P in November 1990 (Specification 1, Charge IV) and in August
1993 (Specification 2, Charge IV) while bathing with her.2
The gravamen of the offense, as charged, was that by bathing nude, appellant
exposed his genitals to P and vice versa.3
The evidence shows that appellant, wife Kelly,
and daughter P visited M, appellants daughter by his first wife, at her
Louisiana home in 1993. On the morning of the alleged offense, H and her
young son arrived at Ms house about 7:40 a.m. to visit her father. M left
for work at 8:00. Appellant began drinking wine early in the morning. In
preparation for a lunch engagement with M, Kelly took a shower and got
dressed. During this time, P was playing with Hs son. Appellant then decided
to take a shower and instructed P to "come get in the shower with me."
P did not comply immediately. Again, appellant said: "P, come get in the
shower with me now." Appellants wife joined in his request, telling P
to "go get in the shower with your father. We gotta go." P finally went
to the bathroom with appellant, closed the door, and remained therein for
"somewhere between 30 and 45 minutes."
When the door opened and P came out of the
bathroom dressed in a towel, H observed her father from the back and saw
that he was nude. After Kelly and H dried P and dressed her, Ps mother
instructed P to return to the bathroom to dry off her nude, adult father
 an act which in and of itself could constitute indecent liberties with
a child. After P finished drying off her father, her demeanor was changed.
Prior to her taking a shower, P had been happy; after the shower, she became
quiet and subdued for the remainder of that day. When appellant left the
bathroom, he said to P: "P, who loves you more than anyone else in the
world?" P responded: "Daddy does." Appellant asked her again: "Who loves
you like no one else can?" P responded again: "Daddy does." The evidence
shows that P did not answer these questions enthusiastically. P did not
testify at trial.
J testified that she was born in 1961 and was
about 3 or 4 years of age when appellant began bathing her. J was not allowed
to sit in the tub during these baths. During the course of the bath, appellant
would lather J, fondle her, and insert his fingers into her vagina and
anus. Over the years, appellants sexual abuse of J not only persisted
but intensified as he conditioned her to accept such abuse. J testified
that she feared her father and his demonstrated tendency to violence. When
J was between 9 and 10 years old, appellant began raping her. This abuse
continued until she ran away from home in 1978.
The Government introduced this evidence not
only to prove appellants abuse of J (and thus prove appellants official
statement denying such abuse was false), but also as evidence of appellants
intent to arouse, appeal to, or gratify his sexual desires when he took
a bath with his minor daughter, P. Trial counsels theory of the case was
that appellant had used his parental status and bathing regimen to condition
J at a young age to accept his sexual advances in the 1960s and 70s, and
he was beginning this cycle anew with his "second family," specifically
his daughter, P. See United States v. Acton, 38 MJ 330 (CMA
1993).
At the close of both the prosecution and defense
cases, and hearing all the evidence, the military judge ruled, over defense
objection, that the evidence surrounding the bathing of J was admissible
under Mil.R.Evid. 404(b) to prove appellants intent with regard to the
two indecent liberties offenses with which appellant was charged.
Appellate defense counsel contends that the
military judges instruction,4
requested by the Government, was error. Counsel argued first that Mil.R.Evid.
404(b)s application to the two incidents involving P and J "diluted the
presumption of innocence" and, alternatively, if Mil.R.Evid. 404 (b) does
apply, the evidence of Js abuse was too remote and dissimilar. Thus, Mil.R.Evid.
403 should have precluded the use of any of Js testimony to show appellants
intent in bathing P. We disagree.
A military judges decision to admit or exclude
evidence is reviewed under an abuse of discretion standard. United States
v. Schlamer, 52 MJ 80, 96 (1999); United States v. Miller, 46
MJ 63, 65 (1997). The judges decision to admit evidence under Rule 403
is likewise reviewed for abuse of discretion. See United States
v. Lake, 36 MJ 317, 322 (CMA 1993).
This Court has repeatedly concluded that a
pattern of lustful intent, established in one set of specifications,
could be used by factfinders as proof of lustful intent in a different
set of specifications. See Mil.R.Evid. 404(b); United States
v. Cox, 18 MJ 72, 74-75 (CMA 1984); United States v. Sweeney,
48 MJ 117 (1998); United States v. Ruppel, 49 MJ 247, 250 (1998);
United
States v. Miller, supra; United States v. Bender, 33
MJ 111, 112 (CMA 1991); United States v. Reynolds, 29 MJ 105, 109-110
(CMA 1989); see also United States v. Johnson, 49
MJ 467, 473-74 (1998); United States v. Hebert, 35 MJ 266, 268 (CMA
1992); United States v. Munoz, 32 MJ 359, 363-64 (CMA 1991).
Moreover, Mil.R.Evid. 404(b), like its federal
rule counterpart, is one of inclusion. See generally 1 Edward
J. Imwinkelried, Uncharged Misconduct Evidence § 2:31 at 163
(1999 rev. ed.). It does not say whether the "other crimes, wrongs, or
acts" must be charged or uncharged conduct. Additionally, this evidentiary
rule does not have a temporal yardstick by which a trial judge is to gauge
the evidentiary value of the other crimes, wrongs, or acts. See,
e.g.,
United
States v. Ruiz, 178 F.3d 877, 880 (7th Cir. 1999)("In particular,
if the acts are similar in nature to those of the charged crime, even a
substantial gap in time may not destroy the relevance of the acts to the
determination of the defendants intent in committing the charged conduct.");
cf.
United
States v. Bailey, 111 F.3d 1229, 1234 (5th Cir.),
cert
denied, 522 U.S. 927 (1997)(test that is applied in determining
the probative value of Fed. R. Evid. 404(b) evidence depends on the issue;
the similarity of extrinsic and charged offenses must be greater when offered
to prove identity than when offered to prove intent).The nub of the matter
is whether the evidence is offered for a purpose other than to show an
accuseds predisposition to commit an offense.



[T]he sole test under Mil.R.Evid. 404(b)
is whether the evidence of the misconduct is offered for some purpose other
than to demonstrate the accuseds predisposition to crime and thereby to
suggest that the factfinder infer that he is guilty, as charged, because
he is predisposed to commit similar offenses.



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



The threshold inquiry a court must make before
admitting similar acts evidence under Rule 404(b) is whether that evidence
is probative of a material issue other than character.



Huddleston v. United States, 485 U.S. 681,
686 (1988).
While this is not a pure uncharged misconduct
case, since Js testimony was necessary for the Government to convict appellant
of making a false official statement, like the Court of Criminal Appeals,
we will apply the three-prong test for determining admissibility of Mil.R.Evid.
404(b) evidence announced in United States v. Reynolds, supra.
First, the evidence reasonably supports a finding
by the court members that appellant sexually abused J, as she described
it, and the Court of Criminal Appeals found her testimony to be "compelling
in its candor, frankness, and chilling detail." 50 MJ at 619.
Second, the evidence made the existence of
appellants malevolent intent in bathing with P more probable. The age
of the victims at the time the bathing began (between 4 and 6 years old)
and the situs of the acts (in the bathroom behind closed doors but while
other family members were in the home) are, as found by the courts below,
"strikingly similar."
Citing United States v. Morrison, 52
MJ 117, 122 (1999), appellate defense counsel contends that our case law
requires that the offenses be "almost identical" in order for one act or
pattern of misconduct to be used to support proof of a different charge
of misconduct. Appellant contends that any misconduct involving J could
not have been used to support the intent element with regard to bathing
P because the misconduct with J involved digital penetration, which over
the years culminated in the rape of J, along with other violent abuse.
United States v. Morrison examined uncharged
misconduct which the military judge had admitted to show "motive, plan
or scheme, ability or opportunity, and lack of mistake." Morrison,
52 MJ at 122. The case at hand involves evidence of one crime used to support
intent to commit a different crime. See United States v. Van
Metre, 150 F.3d 339 (4th Cir. 1998)(uncharged kidnapping
and sexual assault of a different victim admitted as probative of intent
to commit charged kidnapping); United States v. Williams, 816 F.2d
1527 (11th Cir. 1987)("[E]xtrinsic evidence of similar acts
will possess great probative value if the defendants intent is in issue
and if the Government lacks other strong evidence of the defendants intent.").
"In criminal cases, intent is probably the
most common purpose for admitting other-crimes evidence." 2 Weinsteins
Federal Evidence § 404.22 [1][a] at 404-70 (2d ed. 2000). The
fundamental issue was appellants intent in bathing nude with his 6-year-old
daughter. "Extrinsic acts evidence may be critical to the establishment
of the truth as to a disputed issue, especially when that issue involves
the actors state of mind and the only means of ascertaining that mental
state is by drawing inferences from conduct." Huddleston, 485 U.S.
at 685. The military judges carefully tailored instructions (supra
at 14 n.4) to a senior panel of officers ensured that the evidence would
not be used by the factfinders for other than the purpose for which it
was admitted. See generally United States v. Yellow,
18 F.3d 1438, 1441 (8th Cir. 1994); Morgan v. Foretich,
846 F.2d 941 (4th Cir. 1988).
The third prong of the Reynolds test
asks whether the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice under Mil.R.Evid. 403. As we have said
on a number of occasions, the military judge enjoys "wide discretion" when
applying Mil.R.Evid. 403. United States v. Rust, 41 MJ 472, 478
(1995); United States v. Manns, No. 99-0853, ___ MJ (5) (2000).
Since the military judge in this case conducted and announced his Mil.R.Evid.
403 balancing test on the record, we will not only exercise "great restraint"
in reviewing his decision, but will also give him maximum deference in
determining whether there is a "clear abuse of discretion." See
United States v. Manns, supra; United States v.
Harris, 46 MJ 221, 225 (1997); Government of the Virgin Islands
v. Archibald, 987 F.2d 180, 186 (3d Cir. 1993); Miller, 46 MJ
at 65.
The evidence of appellants misconduct with
J was already before the members, as J testified regarding the false official
statements charge. Additionally, the judges clear, cogent, correct, and
complete instructions to the court members regarding the use of Js testimony
precluded any unfair prejudice that might arise in the application of Js
testimony to the specification involving P. Having found a proper application
of the law to the facts involving the indecent liberties offense, we find
no error with the lower courts holding that the Government proved appellants
guilt beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979).

V. PRETRIAL CONFINEMENT
Following his conviction, appellant addressed
the court members with a lengthy unsworn statement. He informed the members
that:



Since July 1994 I have been confined in solitary
confinement. I have been confined in a cell
6 foot by 8 foot with bars on the door. The
cell has a steel bunk, a commode, a sink, and a school desk, and thats
all. It has a painted cement floor and a coat hook. I eat my meals in this
cell and I spend most of my time trying to recognize the things I have
done wrong, and what I have done wrong, and what positive action I can
take to make me a better person in the future. I have been doing this for
237 days today.



Several minutes later, appellant again stated:



Additionally, as I stated earlier, for the
past 237 days I have been totally without freedom in
a 6 by 8 cell in solitary confinement and
Ive been alone in that cell, and its a cell with three solid steel walls
and bars on the front
and not able to see anyone unless they walk
up
to or walk past my cell. During this time
I have been isolated from my family with visits from my daughter one time
a week and visit from my wife two times a week. I have been strip-searched
on every occasion I have had visitors or every occasion I left the compound
for any reason I
have been strip-searched. Stripped off my
clothes, all my clothes, and completely searched. And usually when I am
transported, I am trans- ported in handcuffs and confined in a secure cage,
then police vehicle. This has been severe punishment and it has been constant
every day for 8 months.



Later, appellant continued:



Officers of the jury, I close now by reaffirming
that I am truly repentant and remorseful for my transgressions. And through
the many days of my solitary confinement and the 2 weeks of this trial,
I have become a different person than the Hollis Tanksley of before....
There will never be a second I draw a breath that I will not be reminded
that you found me guilty in a General Court-Martial and that I served 8
months in solitary confinement. It wasnt Hanoi Hilton, but it was solitary
confinement in a little cell with no one but me where I ate, and went to
the bathroom, and slept in a steel cell with no vision except through the
front.



Appellant received 237 days of pretrial confinement
credit. See United States v. Allen, 17 MJ 126 (CMA 1984).
He did not request that the court give any further consideration to his
pretrial confinement being illegal pretrial punishment.
Article 13, UCMJ, 10 USC § 813, prohibits
pretrial punishment. We need not decide whether appellant waived any right
to credit by failure to raise the issue at trial. United States v. Huffman,
40 MJ 225 (CMA 1994); see also United States v. Fricke,
53 MJ 149 (2000). As we held in United States v. Southwick, 53 MJ
412, 416 (2000):



[A]ppellants trial tactics were tantamount
to an affirmative waiver in this case, because
they involved an election between two available alternatives. It is clear
from the record that appellant made a tactical decision to take the pretrial-punishment
issue to the members instead of asking the military judge for appropriate
relief....



Accordingly, under the facts of this case, we
hold that the military judge did not err by failing to sua sponte
award additional confinement credit for pretrial punishment in violation
of Article 13. We need not resolve the factual dispute concerning contradictory
affidavits in Issue VI. Appellants uncontradicted testimony concerning
his pretrial punishment, presented for consideration by the members in
arriving at an appropriate sentence, decides the matter.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 The last
line on the second page of the DIS information sheet included with Prosecution
Exhibit 1 reads: "If subject refuses to provide information or denies allegations
offer a polygraph." Prosecution Exhibit 1 was admitted without defense
objection.
2
Appellant was found not guilty of Specification 1.
3See
para. 87c(2), Part IV, Manual for Courts-Martial, United States (1995 ed.)
("When a person is charged with taking indecent liberties, the liberties
must be taken in the physical presence of the child, but physical contact
is not required. Thus, one who with the requisite intent exposes ones
private parts to a child under 16 years of age may be found guilty of this
offense.").
4
Each offense must stand on its own and you must keep the evidence of each
offense separate. The burden is on the prosecution to prove each and every
element of each offense beyond reasonable doubt. Proof of one offense carries
with it no inference that the accused is guilty of any other offense.
I just instructed you
that you may not infer 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. However, there has been
some evidence presented with respect to the accused having bathed his daughter
J when she was a young child which may be used for another purpose. This
testimony was offered to prove the falsehood of certain statements the
accused made denying such bathing took place, in connection with the false
official statement and false swearing charges and specifications before
you. The testimony may also be considered by you for a limited purpose
with respect to allegations of taking indecent liberties with P, as alleged
in Specifications 1 and 2 of charge IV.
If you would find the
testimony from J (now Mrs. G) on the matter of the accuseds conduct in
bathing her as a young child credible, meaningful, and useful to establishing
whether the accused had the specific intent to arouse, appeal to, or gratify
his lust or sexual desires when, ostensibly in the bathroom with P for
the purpose of taking a bath, he allegedly exposed his genitals to her
and required her to expose her genitals to him, then you may consider this
testimony for the limited purpose of its tendency, if any, to prove that
element of specific intent in connection with the allegations of having
taken indecent liberties with P in Specifications 1 and 2 of Charge IV.
You may not consider
this evidence for any other purpose in respect to the allegations affecting
P and you may not conclude or infer from this evidence that the accused
is a bad person or has criminal tendencies, and that therefore he committed
the offenses involving indecent liberties, as alleged. You may not use
this evidence to establish an initial threshold that one or both of the
indecent liberties incidents occurred. The only competent evidence that
the incidents took place derives from the testimony of H. If you conclude
from her testimony that either or both of the incidents did occur, then
you may use the testimony of J regarding prior bathing incidents when she
was a young child to determine if the accused had the required specific
intent.
Further, you may not
consider other evidence regarding french kissing, fondling, or attempts
at vaginal, oral, or anal sex, as extracted from the testimony of J as
a preteen or teenager, or from B, H, or M, as bearing on the issue of the
accuseds specific intent in connection with the allegations of indecent
liberties with P or to establish that the alleged acts said to constitute
indecent liberties with P took place at all.


GIERKE, Judge (concurring):
Issue IV gives me pause, for many of
the reasons set out by my learned colleague, Judge Effron. The analysis
set forth in Judge Effrons opinion that bears on the issue of whether
the second prong of Reynolds is met also bears on the balancing
test under Mil. R. Evid. 403. The time lapse and the lack of similarity
of the prior conduct addressed by Judge Effron tend to diminish the probative
value of the evidence in question. On the other side of the scale, the
prejudicial effect of the evidence regarding the prior acts with J was
very high.
Had I been the military judge, I am
not sure that I would have admitted the evidence. Nevertheless, I recognize
that this is an area where a military judge has broad discretion. This
case presented the military judge with a close judgment call, and appellant
has not persuaded me that the military judges ruling was a "clear abuse
of discretion." United States v. Manns, No. 99-0853, ___ MJ (5)
(2000). Therefore, I concur.


SULLIVAN, Judge (concurring in part
and in the result):
I join the majority on everything except
the pretrial punishment issues, since I did not join the majority opinion
in its "tantamount to an affirmative waiver" theory in United States
v. Southwick, 53 MJ 412, 416 (2000). Nevertheless, I can join in the
result on the pretrial punishment issues. Appellant does not allege that
his purported illegal pretrial punishment was done to induce his confession
as alleged in United States v. Fricke, 53 MJ 149 (2000). Accordingly,
our decision in Fricke does not require similar action in appellant's
case.


EFFRON, Judge (concurring in part and
dissenting in part):
I agree with the principal opinion
on Issue II (concerning the reference to the polygraph examination), Issue
III (concerning the seizure of the document prepared by appellant), and
Issues V and VI (pretrial confinement). I dissent on Issue IV (consideration
of an uncharged incident occurring 30 years in the past). In light of my
views on Issue IV, I also dissent on Issue I (sufficiency of the evidence
as to the charge pertinent to Issue IV).
With respect to Issue IV, I would hold
that Js testimony does not meet the second prong of the test for consideration
of uncharged misconduct under United States v. Reynolds, 29 MJ 105
(CMA 1989), and was not admissible under Mil.R.Evid. 404(b) to prove the
intent element of the indecent liberties charge.
The charge pertinent to Issue IV alleged
that appellant took indecent liberties with a child by showering with his
6-year-old daughter, P, and "exposing his genitals to her and requiring
her to expose her genitals to him" during the course of the shower. To
prove the element that appellant committed this act to gratify his sexual
desire, trial counsel offered evidence of events from 30 years earlier
in the form of testimony by J, appellants adult daughter from an earlier
marriage. J claimed that appellant had digitally penetrated her when she
was a young child while bathing her in the family bathtub. The military
judge admitted this testimony under Mil.R.Evid. 404(b).
Evidence offered under Mil.R.Evid.
404(b) is considered under a three-part test. Under the second part of
the test, the proffered evidence must make a fact of consequence more or
less probable. Reynolds, supra at 109. The Government asserts
that the 30-year-old events involving J demonstrated that appellant took
a shower with P to gratify his sexual desires. The Government's theory
is that appellant had "conditioned" J for later sexual acts with the abuse
during bathing and that the cycle was beginning anew with P.
To the extent that our Court has permitted
"conditioning" as a basis for admission of evidence, we have viewed it
as involving planned acts or behavior implemented to achieve a desired
end. In the context of 404(b) evidence, we have held that uncharged acts
"must be almost identical to the charged acts" to be admissible as evidence
of a plan or scheme. United States v. Morrison, 52 MJ 117, 122 (1999);
United
States v. Brannan, 18 MJ 181, 183 (CMA 1984).
In the present case, there is a degree
of similarity between the charged acts and the acts from 30 years in the
past in terms of the age of the alleged victims and their relationship
to appellant. There are significant differences, however, in terms of the
nature of the acts and the surrounding circumstances. With respect to the
30-year-old events, J testified that appellant washed her in the bathtub
and digitally penetrated her. There is nothing in the record to suggest
similarity to the key aspects of the charged offense. There is no evidence
that appellant was nude when he bathed J, that he bathed with her, that
he exposed himself to her, or that others were aware of his actions. In
contrast to the 30-year-old allegation, which involved only appellant and
his daughter, the circumstances of the charged offense were not kept secret
from the family. P was directed by her mother, in front of other family
members in a relatives home, to take a shower with her father, to dry
her father,1
and to respond to her father when he later asked her who loved her. In
further contrast to the earlier event, there was no evidence of any improper
physical contact.
The Governments theory would require us to
hold that when this father took a shower with his 6-year-old daughter,
he did so to gratify his sexual desire because he physically abused a different
daughter 30 years earlier. As the majority opinion states, "a pattern of
lustful intent" can be used by the factfinder to infer lustful intent for
a separate charge. The key, however, is finding a pattern, which the evidence
does not establish in this case. The acts upon which the Government's theory
is based are not sufficiently similar to constitute a "plan" of conditioning
and, therefore, are not admissible under Mil.R.Evid. 404(b).
I note that under current law -- which was
not in effect at the time of trial -- evidence similar to Js testimony
may be admitted in courts-martial under Mil.R.Evid. 414, which applies
to certain sexual offenses. Such evidence, however, is not admissible under
Mil. R. Evid. 404(b), which still applies to non-sexual offenses outside
the scope of Mil. R. Evid. 414. It is important that we maintain the standard
set forth in Reynolds for cases arising under Mil. R. Evid. 404(b)
that involve evidence of a non-sexual nature.
The Government presented no other evidence
to prove the intent element of the indecent liberties charge. As a result,
appellant was prejudiced as to findings and the charge should be dismissed
under Issue I.
With respect to the sentence, I note that appellant
was also convicted of violating a lawful general regulation, five specifications
of false official statements, and endeavoring to impede an investigation
and intimidate witnesses. The maximum confinement possible for appellant
for all offenses, including the indecent liberties charge, was 42 years.
Without the indecent liberties charge, the maximum was 35 years. Appellant
received a sentence of dismissal, confinement for 38 months, and forfeitures.
It is noteworthy that Js testimony regarding abuse was admissible independently
on the merits for one of the false official statements specifications,
so the specter of crimes of sexual perversion was already before the members
when they considered appellants sentence on the other charges. Because
the indecent liberties charge was not the only crime that involved evidence
of aberrant sexual behavior in this case, added to the fact that the appellant
received a relatively brief period of confinement in the context of the
allowable maximum, I would conclude that the error was not prejudicial
as to sentence.
FOOTNOTE:
1 The lead
opinion states that Ps mother instructing P to dry off her naked father
was an "act which in and of itself could constitute indecent liberties
with a child." ___ MJ (12). I disagree with this proposition, for
the Government must prove that appellant, the father, engaged in the exposure
and contact with the requisite intent (to gratify his sexual desire). This
formulation of the crime, and the issue of intent, is further clouded when
one considers that it was the mother, and not appellant, who instructed
P to dry off her father.


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