

   
   
   
   U.S. v. Henry



UNITED STATES, Appellee
v.
Keith HENRY, Sergeant
U.S. Army, Appellant
 
No. 98-1023
Crim. App. No. 9402015
 
United States Court of Appeals for the Armed
Forces
Argued October 27, 1999
Decided June 21, 2000

CRAWFORD, C.J., delivered the opinion of
the Court, in which SULLIVAN and GIERKE, JJ., and COX, S.J., joined.
EFFRON, J., filed a dissenting opinion.


Counsel
For Appellant: Captain Marc D.A. Cipriano
(argued); Colonel Adele H. Odegard (on brief); Major Leslie A.
Nepper, Major Scott R. Morris, and Major Jonathan F. Potter.
For Appellee: Captain Katherine M. Kane
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer, and Captain Mary E. Braisted (on brief); Captain
Daniel G. Brookhart.
Military Judges: Larry D. Vick and Craig S.
Schwender
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD delivered the opinion
of the Court.
Contrary to his pleas, appellant was convicted
of rape and adultery, in violation of Articles 120 and 134, Uniform Code
of Military Justice, 10 USC §§ 920 and 934. Officer and enlisted
members sentenced him to a dishonorable discharge, confinement for 25 years,
forfeiture of $427.20 pay per month for 300 months, and reduction to Private
E-1. The convening authority approved the sentence. The Court of Criminal
Appeals affirmed in an unpublished opinion.
Before this Court, appellant contends that
the military judge abused his discretion by admitting, over defense objection,
seven sexually explicit prosecution exhibits because none were relevant
to the charges for which appellant was standing trial. In the second granted
issue, appellant maintains that his record of trial is incomplete and,
thus, incapable of review under Article 66, UCMJ, 10 USC § 866, because
five of these aforementioned exhibits are missing, in whole or in part,
from the record. 52 MJ 355 (1999). We resolve both issues against appellant.

FACTS
SR, the 15-year-old daughter of Pilar Henry,
told her mother on August 6, 1994, that appellant, her stepfather, had
raped her earlier that day. Appellant and SR had left their home to get
the victims bicycle repaired. Instead, appellant drove SR to a wooded
area near Mainz, Germany, forced her into the back of the car, and ordered
her to remove her clothing. Appellant then raped his stepdaughter.
On August 7, both SR and her mother gave sworn
statements at the Criminal Investigation Command (CID) office. During the
course of that interview, SR informed the agents that appellant had been
sexually assaulting and sodomizing her during the previous 2 years. The
young victim also informed the CID agent that more recently, while living
in Weisbaden, appellant had SR "watch pornographic videos with him" in
their government quarters.
Based on SRs statements, CID agents got command
authorization, as well as appellants written consent, to search his quarters
for "pornographic material." No videos containing pornography were found.
Agents did find and seize a Hustler magazine (Prosecution Exhibits
43 and 44), one issue of High Society (Pros. Ex. 45), three Leisure
Time Products catalogs (Pros. Exs. 39 thru 41), and one Globe
sales catalog (Pros. Ex. 42), all of which afforded the reader an opportunity
to purchase sexually explicit videotapes.
Appellant was charged with raping SR on August
6, 1994, committing forcible sodomy with SR between June 1992 and August
1994, indecently assaulting SR between June 1992 and August 1994, committing
adultery with SR on August 6, and assaulting his wife on August 7.
At trial, the defense objected to the introduction
of Exhibits 39 through 45 on the basis of relevancy. See Mil.R.Evid.
401, 402, and 403, Manual for Courts-Martial, United States (1998 ed.).
After hearing Mrs. Henrys testimony to the effect that there were pornographic
materials such as Hustler magazine in their quarters, as well as
hearing SR recant and say that she had not watched pornographic movies
or looked at sexually explicit magazines with her stepfather, the military
judge admitted the seven exhibits in question.
Prosecution Exhibit 39 (three pages depicting
pornographic videos offered by Leisure Time Products) was included
in the record of trial in its entirety. Photographs depicting the front
covers of Prosecution Exhibits 40, 41, 42, and 45 were also included. The
actual front and back magazine covers of Prosecution Exhibit 43 (August
1993 edition of Hustler magazine) were included in the record, and
Exhibit 44 is a photograph of page 3 of the August 1993 issue of Hustler
magazine.
Oral argument in this case was held before
this Court on October 27, 1999. On November 12, 1999, in response to appellants
assertion that he was prejudiced by the failure to include Prosecution
Exhibits 40, 41, 42, 44, and 45, in their entirety, in the record, we ordered
appellee to submit these complete exhibits or identical copies/back issues
to the Court. Affidavits submitted by appellee show that Exhibits 40 through
45 were destroyed by the Wiesbaden CID office following appellants court-martial.
The Government has produced a back issue of the Hustler magazine
in its entirety. Thus, we have a complete issue of the one magazine that
comprised both Prosecution Exhibits 43 and 44 at trial. Appellee has been
unable to produce alternative copies of the other exhibits.

DISCUSSION
We review evidentiary rulings of a military
judge for abuse of discretion, and overturn these rulings only if the judges
findings of fact are clearly erroneous or "his decision is influenced by
an erroneous view of the law." United States v. Sullivan, 42 MJ
360, 363 (1995); United States v. Owens, 51 MJ 204 (1999). Appellant
asks us to give the military judge minimal deference in this case because
he did not articulate any basis for his ruling on the record, or indicate
that he was conducting the balancing analysis required by Mil.R.Evid. 403.
Like the court below, we find no abuse of discretion
by admitting Prosecution Exhibits 39 through 45. Appellant was charged
with indecently assaulting his stepdaughter over a 2-year period. In its
attempt to prove appellant guilty of indecent assault, the Government had
to show that the acts alleged were done "with the intent to gratify the
lust or sexual desires of the accused." Para. 63b(2), Part IV, Manual,
supra. The magazines were found in a location where the indecent
assaults were purported to have occurred. The Hustler magazine was
dated August 1993, and the High Society magazine had a date of October
27, 1992. Both dates fall within the period during which appellant was
charged with indecently assaulting his stepdaughter. Possession of such
material could be evidence of appellants sexual desires as alleged. See
Mil.R.Evid. 401 and 402; United States v. Whitner, 51 MJ
457, 461 (1999).
Additionally, at trial, SR refuted her earlier
statement and denied watching any pornographic movie with appellant. She
also testified that there were no pornographic magazines in the home because
her mother would not permit such material in the house. With the evidence
in this posture, Prosecution Exhibits 39 through 45 were relevant to rebut
SRs in-court testimony and to show that her pretrial statement was more
truthful on this issue than her in-court testimony.
Appellant's intent was a contested issue which
not only enhanced the probative value of Prosecution Exhibits 39-45, but
also justified their admission. See Mil.R.Evid. 403. See
United States v. Mann, 26 MJ 1 (CMA), cert denied,
488 U.S. 824 (1988). We hold that the evidence was also relevant because
it had a tendency to prove that appellant had a plan to condition his daughter
to accept his sexual advances and, thus, satisfy his sexual desires. See
United States v. Acton, 38 MJ 330, 333 (CMA 1993); United States
v. Palmer, 29 MJ 929 (AFCMR 1989), affd, 33 MJ 7 (CMA 1991);
see generally United States v. Henley, 52 MJ 391 (2000).
In light of the charges, the evidence, and
the young victims recantation, the judges decision to admit Prosecution
Exhibits 39 through 45 was neither erroneous nor unreasonable nor influenced
by an erroneous view of the law. Finally, we note that appellant was not
convicted of indecently assaulting his daughter. This acquittal demonstrates
that the court members were not inflammed by admission of the sexually
explicit material, and carefully weighed the evidence of each offense prior
to returning guilty findings for rape and adultery against appellant.
The second granted issue, whether the record
of trial is incomplete, is one that presents a question of law which this
Court will review de novo. The requirement that a record
of trial be complete and substantially verbatim in order to uphold the
validity of a verbatim record sentence is one of jurisdictional proportion
that cannot be waived. See United States v. Gray, 7 MJ 296
(CMA 1979); United States v. Whitney, 23 USCMA 48, 48 CMR 519 (1974).
Records of trial that are not substantially verbatim or are incomplete
cannot support a sentence that includes a punitive discharge or confinement
in excess of 6 months. RCM 1103(b)(2)(B), Manual, supra.
A substantial omission renders a record of
trial incomplete and raises a presumption of prejudice that the Government
must rebut. United States v. McCulla, 11 MJ 234, 237 (CMA 1981);
United States v. Gray, supra; United States v. Boxdale,
22 USCMA 414, 47 CMR 351 (1973). Insubstantial omissions from a record
of trial do not raise a presumption of prejudice or affect that records
characterization as a complete one.
Substantial omissions have included unrecorded
sidebar conferences that involved the admission of evidence (United
States v. Gray, supra) and argument concerning court member
challenges (United States v. Sturdivant, 1 MJ 256 (CMA 1976)). In
United States v. McCulla, supra, we found the letter of dishonor
in a worthless check case which was used to show mens rea
to be a substantial omission. The Army Court of Criminal Appeals has found
the omission of a videotape showing the accused flying during Desert Shield/Storm,
which was admitted during the sentencing portion of trial, to be a substantial
omission (United States v. Seal, 38 MJ 659 (ACMR 1993)). Similiarly,
in United States v. Stoffer, 53 MJ 26 (2000), we concluded that
the absence of three defense exhibits was a substantial omission.*
Insubstantial omissions include the absence
of photographic exhibits of stolen property (United States v. Carmans,
9 MJ 616 (ACMR 1980)), a flier given to the members (United States v.
Johnson, 33 MJ 1017 (ACMR 1991)), a court member's written question
(United States v. Baker, 21 MJ 618 (ACMR 1985)), and an accused's
personnel record (United States v. Harper, 25 MJ 895 (ACMR 1988)).
Prosecution Exhibits 39-45 were admitted for
the purpose of showing that appellant possessed sexually explicit literature
at his quarters from which he could order pornographic videos to show to
the victim. Prosecution Exhibit 39, which advertises virtually every type
of sexual act on video, is incorporated in its entirety in the record of
trial. Appellee has submitted a back issue of the August 1993 edition of
Hustler magazine to this Court. In reviewing this magazine, it is
apparent that Prosecution Exhibits 43 and 44 are parts of the same magazine.
On no less than 20 pages in Prosecution Exhibit 44 there are sexually explicit
videos advertised, and many of those pages contained forms to facilitate
ordering the material. Accordingly, the omission of the remaining exhibits,
Prosecution Exhibits 40, 41, 42, and 45 are insubstantial omissions from
this record of trial and do not affect its completeness.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTE:
* In Stoffer,
none of the extenuation and mitigation exhibits were included in the record
of trial. By contrast, this appellants record of trial is now missing
four prosecution exhibits. In light of the material found in Prosecution
Exhibits 39, 43, and 44, relating to sexually explicit videotapes, the
absence of four similar exhibits is neither a substantial omission nor
prejudicial to appellants right to a full and fair review of his conviction.


EFFRON, Judge (dissenting):
Two magazines and four catalogs apparently
containing sexually explicit material were seized during a search of appellant's
quarters triggered by the victim's statement that appellant sometimes played
sexually explicit videotapes for her in their quarters. The investigators
found no such videotapes during the search.
The prosecution offered the magazines and catalogs
as evidence at trial, on the theory that the publications contained advertisements
for ordering sexually explicit videotapes, which would tend to corroborate
the victim's statement that appellant had exposed her to similar material.
The military judge admitted the publications into evidence over defense
objection, but did not articulate on the record the factors considered
under Mil.R.Evid. 403 (requiring the military judge to balance the probative
value against the risk of unfair prejudice). See United States
v. Reynolds, 29 MJ 105, 109 (CMA 1989) (the balancing test under Mil.R.Evid.
403 is the third prong of the three-part test for determining admissibility
of uncharged misconduct under Mil.R.Evid. 404(b)).
The record of trial that reached the appellate
courts contained only one of the exhibits at issue in its entirety, Prosecution
Exhibit 39. Otherwise, the record contained only the front and back covers
of Prosecution Exhibit 44 and photographs of the front covers of Prosecution
Exhibits 40, 41, 42, and 45. In response to this Court's order to produce
the missing exhibits, the Government stated that those exhibits were destroyed
by the local CID office after appellant's court-martial. The Government
was able to locate and file a back issue of Prosecution Exhibit 44, but
it has been unable to locate copies of the other publications that had
been introduced at trial.
The impact of sexually explicit material on
a court-martial is likely to depend on both the nature of the charges and
the nature of the material. Publications that treat children and sexual
matter in a degrading and exploitative manner carry the potential for having
a prejudicial impact on a court-martial, particularly in a case involving
charges of sexual abuse of a minor. In such a case, it is essential that
the military judge articulate the factors used to balance the probative
value of such evidence against the risk of unfair prejudice under Mil.R.Evid.
403. Where the military judge has failed to do so, a lower appellate court
may nonetheless review the evidence and conduct its own balancing. If the
military judge fails to ensure that the evidence at issue is included in
the record, however, it is not possible to properly weigh the prejudicial
impact of "evidence" that is not described in the record with sufficient
particularity. Because the Government has been unable to reconstruct the
record, it is necessary to set aside the trial results and return the record
for a rehearing. See United States v. Stoffer, 53 MJ 26 (2000).

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