                         UNITED STATES, Appellee

                                         v.

                 Allen J. SOLOMON, Private First Class
                     U.S. Marine Corps, Appellant

                                  No. 13-0025
                        Crim. App. No. 201100582

       United States Court of Appeals for the Armed Forces

                          Argued March 20, 2013

                            Decided May 8, 2013

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


                                     Counsel


For Appellant:    Lieutenant Ryan C. Mattina, JAGC, USN (argued).

For Appellee: Major David N. Roberts, USMC (argued); Major Paul
M. Ervasti, USMC, and Major William C. Kirby, USMC (on brief);
Colonel Stephen C. Newman, USMC, and Brian K. Keller, Esq.

Military Judges:    G. L. Simmons and Stephen F. Keane


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Solomon, No. 13-0025/MC


     Judge STUCKY delivered the opinion of the Court: 1

     We granted review to determine whether the military judge

abused his discretion when he admitted evidence under Military

Rule of Evidence (M.R.E.) 413, and whether trial counsel’s

closing arguments on findings constituted prosecutorial

misconduct amounting to plain error.   We hold that the military

judge’s admission of M.R.E. 413 evidence was an abuse of

discretion.   We therefore need not decide whether trial

counsel’s closing arguments were error.

                                I.

     Appellant, who was tried at a general court-martial

composed of members with enlisted representation, entered mixed

pleas.   He was convicted pursuant to his pleas of violating a

lawful general order and wrongful use of a controlled substance

in violation of Articles 92 and 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 892, 912a (2006).   Contrary to his

pleas, Appellant was convicted of abusive sexual contact,

indecent conduct, drunk and disorderly conduct, and obstruction

of justice in violation of Articles 120 and 134, UCMJ, 10 U.S.C.

§§ 920, 934 (2006).   The convening authority approved the


1
  We heard oral argument in this case at the United States Naval
Academy as part of the Court’s “Project Outreach.” See United
States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This
practice was developed as part of a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.

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United States v. Solomon, No. 13-0025/MC


adjudged sentence of a dishonorable discharge, confinement for

six years, forfeiture of all pay and allowances, and reduction

to the lowest enlisted grade.    The United States Navy-Marine

Corps Court of Criminal Appeals (CCA) set aside and dismissed

the Article 134 specifications, and affirmed the remaining

findings.   United States v. Solomon, No. NMCCA 201100582, 2012

CCA LEXIS 291, at *16–*17, 2012 WL 3106790, at *6 (N-M. Ct. Crim.

App. July 31, 2012).    After reassessment, the CCA affirmed a

term of four years of confinement and the remainder of the

approved sentence.   Id. at *22, 2013 WL 3106790, at *8.

                                 II.

                                 A.

     In December 2010, Appellant and Lance Corporal (LCpl) K

were roommates.   LCpl K testified that in the early morning of

17 December 2010, he:

     woke up at approximately 0320–0330 with his belted jeans
     open and pulled down to his ankles, along with his boxer
     shorts; the appellant was lying on top of him between his
     knees and rubbing his exposed genitals against LCpl K’s.
     LCpl K testified that he pushed the appellant off and asked
     what he was doing. The appellant did not respond, but
     returned to his own bed. LCpl K turned on the light,
     pulled up his pants, and walked over to the appellant’s bed
     to confront him. The appellant was lying on the bed naked
     and clutching a cell phone to his chest. LCpl K took the
     phone from the appellant and found three photos of his
     exposed genitals.

          LCpl K left the room to show the Duty Noncommissioned
     Officer (DNCO) the photos. LCpl K stepped back in to
     retrieve his own cell phone, at which time the appellant
     attempted to grab his phone from LCpl K’s hand. A short


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United States v. Solomon, No. 13-0025/MC


     struggle ensued, but ultimately the appellant regained
     possession of his cell phone and deleted the photos in
     front of LCpl K. LCpl K then left and made his report.

Id. at *2–*3, 2012 WL 3106790, at *1.

                                B.

     Prior to trial, Appellant moved to suppress evidence of

three previous incidents proffered by the Government under

M.R.E. 413 and alternatively under M.R.E. 404(b).      The military

judge held a hearing pursuant to Article 39(a), UCMJ, 10 U.S.C.

§ 839 (2006), to consider the motion.      The military judge

granted the motion to suppress evidence of the first two

incidents.

     At the Article 39(a) hearing, the military judge heard

arguments relating to the third incident -- an alleged sexual

assault of LCpls B and R.   The Government proffered written

statements that LCpls B and R made to Naval Criminal

Investigative Services (NCIS) on November 17, 2009.      Those

statements alleged that on November 14, 2009, LCpl B awoke in

her barracks room at approximately 2:30–3:00 a.m. to someone

touching her inside her panties.       As she rolled over, LCpl B saw

an unidentified male walk over to where her roommate, LCpl R,

lay sleeping, and saw him grabbing LCpl R’s feet or ankles.

LCpl B shouted and startled the intruder, who ran out through

the bathroom into an adjoining room.      As the intruder passed

through the lighted bathroom, LCpl B recognized Appellant:       he


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United States v. Solomon, No. 13-0025/MC


lived on the same hallway, and she had daily contact with him

during the preceding month.   LCpl R, who was roused by LCpl B’s

shout, pursued the intruder into the adjoining room.   When LCpl

R returned, she told LCpl B that a window was loose in the

adjoining room.   The two did not report the incident to anyone

that night.   Two days later, LCpl R and LCpl B discovered that

Appellant was apprehended for a DUI that night, “a few hours

after our incident.”   A noncommissioned officer overheard them

discussing the incident in the barracks room, and they then

initiated the report of the assault through their chain of

command.   Appellant was acquitted of these allegations at an

August 2010 general court-martial.

     In addition to submitting the statements of LCpls B and R,

the Government called one witness to testify at the Article

39(a) hearing about the incident -– Dr. Nancy Slicner, an expert

in the forensic psychology of sexually deviant behavior.

Slicner reviewed all three prior incident allegations and

testified that Appellant had exhibited patterns of voyeurism

escalating to the point of contact offenses, his predatory

actions had several common characteristics, and he had the

propensity to commit the sort of misconduct alleged in the

instant case.

     Defense counsel argued that Appellant’s August 2010

acquittal of the alleged assaults against LCpls B and R greatly


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United States v. Solomon, No. 13-0025/MC


reduced the strength of proof of that incident and its probative

value.   In addition to the acquittal, defense counsel presented

evidence of Appellant’s alibi during the time the alleged

assaults occurred.   According to an incident report from the

Camp Pendleton Provost Marshal’s Office, Appellant was taken

into military police custody at 1:58 a.m. on November 15, 2009,

for driving under the influence after a gate sentry observed his

erratic approach to the San Luis Ray Gate to Camp Pendleton.       He

was not released until 3:26 a.m.       Both of the lance corporals’

statements allege that the assaults occurred between 2:30 and

3:00 a.m.   Defense counsel also submitted an e-mail from

Appellant’s defense counsel at the previous court-martial.       The

e-mail detailed the factors the prior defense counsel believed

contributed to Appellant’s acquittal including, inter alia, that

Appellant “was arrested for DUI 45 minutes away coming on to

base (not off) at the San Luis Rey Gate at 0152 [sic] by MPs” at

the same time LCpls B and R claim to have been assaulted.

     The military judge overruled the suppression motion,

determining that, pursuant to United States v. Berry, 61 M.J. 91

(C.A.A.F. 2005), and United States v. Wright, 53 M.J. 476

(C.A.A.F. 2000), evidence of the alleged assaults of LCpls B and

R was admissible under M.R.E. 413. 2


2
  The military judge alternatively ruled that the evidence was
admissible under M.R.E 404(b) to show a common modus operandi.

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United States v. Solomon, No. 13-0025/MC


                                 C.

     Appellant challenged the military judge’s evidentiary

ruling before the CCA.    The CCA held that the military judge did

not abuse his discretion, but rather properly determined that

the threshold requirements for admitting M.R.E 413 evidence were

satisfied.    Noting that the military judge did not explicitly

reconcile Appellant’s alibi evidence with LCpl B’s and LCpl R’s

testimony, the CCA determined that “[i]t is implicit in his

findings of fact that the military judge concluded that the

appellant entered the female Marines’ room earlier than they

recall and was apprehended subsequently,” and the CCA

“decline[d] to disturb the factual findings of the judge on the

grounds that they are unsupported by the record or clearly

erroneous.”   Solomon, 2012 CCA LEXIS 291, at *12–*13, 2012 WL

3106790, at *4.

                                III.

     This Court reviews a military judge’s decision to admit

evidence for an abuse of discretion.      United States v. Ediger,

68 M.J. 243, 248 (C.A.A.F. 2010).      “The abuse of discretion

standard is a strict one, calling for more than a mere

difference of opinion.   The challenged action must be arbitrary,


The CCA appropriately declined to uphold the admission of
evidence on that ground, and that ruling is not at issue in this
appeal. Solomon, 2012 CCA LEXIS 291, at *7–*8 n.1, 2012 WL
3106790, at *3 n.1.

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United States v. Solomon, No. 13-0025/MC


fanciful, clearly unreasonable, or clearly erroneous.”   United

States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (citation and

internal quotation marks omitted).

     M.R.E. 413(a) provides that “[i]n a court-martial in which

the accused is charged with an offense of sexual assault,

evidence of the accused’s commission of one or more offenses of

sexual assault is admissible and may be considered for its

bearing on any matter to which it is relevant.”    “This court has

noted that inherent in M.R.E. 413 is a general presumption in

favor of admission.”   Berry, 61 M.J. at 94–95.

     There are three threshold requirements for admitting

evidence of similar offenses in sexual assault cases under

M.R.E. 413:   (1) the accused must be charged with an offense of

sexual assault; (2) the proffered evidence must be evidence of

the accused’s commission of another offense of sexual assault;

and (3) the evidence must be relevant under M.R.E. 401 and

M.R.E. 402.   Id. at 95; Wright, 53 M.J. at 482.   For (2), the

Court must conclude that the members could find by a

preponderance of the evidence that the offenses occurred.

Wright, 53 M.J. at 483 (citing Huddleston v. United States, 485

U.S. 681, 689–90 (1988)).

     Once these three findings are made, the military judge is

constitutionally required to also apply a balancing test under

M.R.E. 403.   Berry, 61 M.J. at 95.   M.R.E. 403 provides that


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United States v. Solomon, No. 13-0025/MC


“[a]lthough relevant, evidence may 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.”   In the M.R.E. 413

context, “[t]he Rule 403 balancing test should be applied in

light of the strong legislative judgment that evidence of prior

sexual offenses should ordinarily be admissible[.]”    Wright, 53

M.J. at 482 (second alteration in original) (citation and

internal quotation marks omitted).    Accordingly, in conducting

the balancing test, the military judge should consider the

following non-exhaustive factors to determine whether the

evidence’s probative value is substantially outweighed by the

danger of unfair prejudice:    strength of proof of the prior act

(i.e., conviction versus gossip); probative weight of the

evidence; potential for less prejudicial evidence; distraction

of the factfinder; time needed for proof of the prior conduct;

temporal proximity; frequency of the acts; presence or lack of

intervening circumstances; and the relationship between the

parties.   Id.   When a military judge articulates his properly

conducted M.R.E. 403 balancing test on the record, the decision

will not be overturned absent a clear abuse of discretion.

United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).




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United States v. Solomon, No. 13-0025/MC


                                  IV.

     In this case, the military judge clearly abused his

discretion in admitting evidence of the alleged assaults of

LCpls B and R under M.R.E. 413.    The problem is not that an

incident for which an accused has been previously acquitted may

never be admitted under M.R.E. 413; rather, the problem is that

the military judge altogether failed to mention or reconcile

Appellant’s important alibi evidence and gave little or no

weight to the fact of the prior acquittal.

     The military judge in this case appropriately made findings

of fact and law on the record, in which he enunciated a full

M.R.E. 413 analysis, including consideration of each of the

Wright factors, and conducted a balancing test under M.R.E. 403.

However, the content of these supplemental findings of fact and

conclusions of law reveals a clear abuse of judicial discretion.

                                  A.

     We turn first to the military judge’s supplemental findings

of fact.   First, the military judge found that “a preponderance

of evidence establishes” as a fact that “[i]n mid-November,

2009, at night or in the early morning hours, the accused broke

into the barracks rooms of two sleeping female Marines.”

(emphasis added).   In fact, no question existed from the

evidence presented to the military judge as to the timeframe of

the assaults.   The evidence before the military judge at the


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United States v. Solomon, No. 13-0025/MC


Article 39(a) hearing included two unequivocal statements made

by LCpl B and LCpl R under oath:     LCpl B stated that she awoke

to the intruder “[a]t approx. 230-300 [sic] in the morning,” and

LCpl R stated that she “woke up around 0230-0300” when her

roommate cried out.   The uncontroverted evidence before the

military judge was that LCpls B and R were assaulted between

2:30 and 3:00 a.m.

     The military judge went on to find, as fact, that “[w]hen

[LCpl R] awoke, [Appellant] ran out of the room, got in his car,

and promptly drove away, ultimately receiving a citation for

driving under the influence of alcohol.”     However, none of the

evidence presented supports the military judge’s finding that

Appellant got in his car and promptly drove away.     According to

the statements of LCpls B and R, they last saw the intruder

running through the head and their headmate’s room.     No evidence

was presented as to what the intruder did next.     The evidence

actually before the military judge, however, established that

Appellant was apprehended by the police as he was entering, not

leaving, the base at 1:58 a.m., and that he remained in police

custody until 3:26 a.m., a period of time covering the entirety

of the timeframe alleged by LCpls B and R.     The military judge

failed to address this discrepancy in his findings.

     In making unexplained and unreconciled leaps from the

evidence presented to his findings of fact, the military judge


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United States v. Solomon, No. 13-0025/MC


clearly erred.    Although he did find as fact that “[Appellant]

was acquitted of sexually assaulting [LCpl R] and [LCpl B] at a

previous General Court-Martial,” he failed to reconcile, or even

mention, the fact that an uncontroverted military police report

situates Appellant in police custody for the entire period of

time that LCpls B and R allege they were being assaulted.      We

find no support for the CCA’s conclusion that “[i]t is implicit

in his findings of fact that the military judge concluded that

the appellant entered the female Marines’ room earlier than they

recall and was apprehended subsequently,” and that these

implicit findings are not “unsupported by the record or clearly

erroneous.”   Solomon, 2012 CCA LEXIS 291, at *12–*13, 2012 WL

3106790, at *4.    The military judge’s findings of fact are

contradictory to record evidence and wholly fail to grapple with

the important alibi evidence presented by Appellant.

Accordingly, we find that the military judge clearly abused his

discretion.

                                 B.

     We turn now to the military judge’s conclusions of law.

The military judge appropriately conducted a full M.R.E. 413

analysis, including balancing under M.R.E. 403, on the record,

but the content of that analysis is problematic.    Most

problematic is the military judge’s determination that the

evidence’s probative value outweighs the risk of unfair


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United States v. Solomon, No. 13-0025/MC


prejudice under M.R.E. 403.   M.R.E. 403 provides that

“[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the members.”

     This Court has recognized that:

     inherent in M.R.E. 413 is a general presumption in favor of
     admission. However, we have also noted that it is a
     constitutional requirement that evidence offered under Rule
     413 be subjected to a thorough balancing test under M.R.E.
     403. Where that balancing test requires exclusion of the
     evidence, the presumption of admissibility is overcome.

Berry, 61 M.J. at 95 (citations and internal quotation marks

omitted).   “The importance of a 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 (C.A.A.F. 2006).

     The M.R.E. 403 balancing in this case was incomplete.   When

considering the strength of proof of the prior act, the military

judge found that “[a]lthough the members at [the prior] General

Court-Martial did not find guilt beyond a reasonable doubt, the

testimonial evidence of [LCpl B] and [LCpl R] is compelling.     A

fact finder could easily find beyond a preponderance that the

proffered offense occurred and that the accused committed it.”

In determining that the strength of proof of the prior act was

“easily beyond a preponderance” the military judge again omitted

any discussion of the military police report’s tendency to



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United States v. Solomon, No. 13-0025/MC


establish Appellant’s alibi.   Combined with the acquittal, the

alibi evidence greatly reduces the strength of the proof of the

prior act; failing to deal with that fact was error.   Because

the strength of the proof is significantly lower than the

military judge determined, its probative weight is similarly

reduced.

     Additionally, when considering the risk of distraction, the

military judge determined that “[t]here is little if any risk of

distraction.   It will take a fair amount of time to hear the

testimony but this alone does not warrant its exclusion.”     On

the contrary, admitting the evidence in this case resulted in a

classic example of a “distracting mini-trial” on the prior

alleged assaults.   Berry, 61 M.J. at 97 (citation and internal

quotation marks omitted).   Trial counsel began his opening

argument by telling the members that “[e]verything that is

hidden will eventually be brought into the open, and every

secret will eventually be brought into the light,” and he spent

almost half of his opening statement detailing the alleged

assault of LCpls B and R, arguing that “this isn’t the first

time the accused has done something similar.”   He then

summarized the Government theory of the case:

     The most important thing we have is a fingerprint. We have
     a fingerprint of the accused. And what is that
     fingerprint? Not a physical print, but we have
     similarities of actions. Some people call it modus
     operandi, sexual propensity, similarities of actions. And


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United States v. Solomon, No. 13-0025/MC


     I ask all of you to take notes and notice the similarities
     of actions at a barracks room, at night, the next day is a
     work day. Look at the similarities of actions and you will
     see the fingerprint of the accused in all three of these
     cases.

LCpls B and R were the first two witnesses called and provided

detailed testimony of the November 2009 incident; approximately

one-fourth of the trial was spent establishing the prior

incident.   During closing arguments, trial counsel emphasized

the “three secrets” Appellant tried to keep, repeatedly

comparing the assaults of LCpls B, R, and K.   In rebuttal

arguments, trial counsel again emphasized the similarity of the

prior assaults of LCpls B and R to the present case, and the

likelihood that Appellant had a propensity to assault LCpl K:

     Is there any doubt that [Appellant] was in [LCpls B and
     R’s] room on 15 November 2009? Absolutely not. Is there
     any doubt there was touching that night? Absolutely not.
     Is there any doubt that they IDed him in their room and in
     the head? Absolutely not.

          And let’s move forward to the case at hand. Is there
     any doubt that [Appellant] was in that room that night?
     Absolutely not.

     Evidence of the prior offenses in this case devolved into

exactly the sort of sidetracking of the factfinder that should

be avoided when admitting M.R.E. 413 evidence.   See Berry, 61

M.J. at 97 (finding it evident that a “distracting mini-trial”

occurred where trial counsel’s opening statement began with

reference to the M.R.E. 413 prior act and his closing statement

emphasized the prior act) (citation and internal quotation marks


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United States v. Solomon, No. 13-0025/MC


omitted); cf. James, 63 M.J. at 222 (where the military judge

limited the scope of admissible propensity evidence to brief

testimony); United States v. Bailey, 55 M.J. 38, 41 (C.A.A.F.

2001) (where the military judge “kept the witness’ testimony

abbreviated and focused” to ensure a minimum amount of time

would be spent on M.R.E. 413 evidence).    Although we recognize

that the military judge would not have known when he admitted

the M.R.E. 413 evidence that trial counsel would overdo it in

this manner, the military judge failed to take actions during

trial to limit its overuse, including declining to take judicial

notice of the acquittal.   The military judge also declined to

heed the specific request of the Government to “negate any

possible danger of unfair prejudice” to Appellant by providing a

limiting instruction noting Appellant’s acquittal.    The result

was that a great deal of time was spent in a distracting mini-

trial on a collateral matter of low probative value, without the

ameliorative effect of judicial recognition of the acquittal via

limiting instruction or judicial notice.

     Applying the appropriate deference to the ruling of a

military judge, we find that in this case the military judge’s

failure to address or reconcile Appellant’s alibi evidence or

give due weight to Appellant’s acquittal undermined his M.R.E.

403 balancing analysis such that the decision to admit the

evidence was an abuse of discretion.


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United States v. Solomon, No. 13-0025/MC


                               C.

     “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.”

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006).   When a military

judge abuses his discretion in the M.R.E. 403 balancing

analysis, the error is nonconstitutional.   Berry, 61 M.J. at 97.

“For a nonconstitutional error such as this one, the Government

has the burden of demonstrating that ‘the error did not have a

substantial influence on the findings.’”    Id. (quoting United

States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)).

     The Government conceded that if it were error to admit the

M.R.E. 413 evidence in this case, then it would not be harmless.

The Government’s entire theory of the case was that Appellant

engaged in an escalating pattern of deviant sexual behavior.

Without the testimony of LCpls B and R, the Government’s case-

in-chief consisted of LCpl K’s account of the assault and

restatements of his initial report.   The erroneously admitted

evidence was material to the Government’s otherwise weak case.

We hold that the Government has failed to demonstrate the error

did not have a substantial influence on the findings in this

case.




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United States v. Solomon, No. 13-0025/MC


                                  V.

     The judgment of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed as to Specifications 1 and 3 of

Charge I and the sentence.   The findings of guilty to those

offenses and the sentence are set aside.   The judgment as to the

remaining findings is affirmed.    The record of trial is returned

to the Judge Advocate General of the Navy.   A rehearing is

authorized.




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