

   
   
   
   U.S. v. Griggs



UNITED STATES, Appellee
v.
Mark E. GRIGGS, Religious Program Specialist
Second Class
U.S. Navy, Appellant
 
No. 98-1076
Crim. App. No. 97-0553
 
United States Court of Appeals for the Armed
Forces
Argued May 13, 1999
Decided September 9, 1999

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


Counsel
For Appellant: Lieutenant Commander Linda
J. Lofton, JAGC, USN (argued); Lieutenant J.L. Eichenmuller,
JAGC, USNR.
For Appellee: Captain Danny R. Fields,
USMCR (argued); Colonel Kevin M. Sandkuhler, USMC, Commander
Eugene E. Irvin, JAGC, USN, and Lieutenant James E. Grimes,
JAGC, USNR (on brief).
Military Judge: James D. Rockwell
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge EFFRON delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted
by a special court-martial composed of officer members of indecent exposure
(4 specifications) and taking indecent liberties (1 specification), in
violation of Article 134, Uniform Code of Military Justice, 10 USC §
934. He was sentenced to a bad-conduct discharge, confinement for 3 months,
and reduction to the lowest enlisted grade. The convening authority approved
the sentence but waived the automatic forfeitures mandated by Article 58b,
UCMJ, 10 USC § 858b, with a provision that they be paid to
the accused's wife. The Court of Criminal Appeals affirmed these results.
On appellant's petition, we granted review
of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING
TESTIMONY REGARDING PRIOR UNRELATED ALLEGATIONS OF MISCONDUCT FOR WHICH
APPELLANT HAD BEEN PREVIOUSLY TRIED AND ACQUITTED.
II. WHETHER THE GOVERNMENT FAILED TO PROVE,
BEYOND A REASONABLE DOUBT, THAT APPELLANT WAS GUILTY OF INDECENT EXPOSURE
OR INDECENT LIBERTIES WITH A CHILD.

We affirm.

I. FACTS
The charges in this case arise from three incidents
that occurred during a single week at Naval Air Station - Joint Reserve
Base, Fort Worth, Texas. In each incident, appellant was in the base chapel
where he served as a Religious Program Specialist Petty Officer Second
Class. In each incident, appellant appeared before his victim with his
trouser fly open while wearing no underwear. Each time, he positioned himself
before his intended victim so as to maximize exposure of his genital area,
either by leaning back in a chair or pew with his knees spread apart or
by standing with one foot on a step. At trial appellant argued that these
exposures were accidental.

II. EVIDENCE OF UNCHARGED PRIOR MISCONDUCT
Three years prior to the court-martial at issue
in this case, appellant was tried by special court-martial on charges that
he had exposed himself to and masturbated in front of a woman, Ms. C, at
his previous duty post in Brawdy, Wales. He was acquitted of those charges.
At the court-martial that is the subject of
the present appeal, the Government sought to introduce the testimony of
Ms. C regarding the prior incident as evidence of "intent and absence of
mistake." See Mil. R. Evid. 404(b), Manual for Courts-Martial, United
States (1998 edition).*
The military judge ruled that the testimony was admissible for the offered
purposes and that the probative value of the evidence was "not outweighed
by the danger of unfair prejudice." The Court of Criminal
Appeals held that the judge did not abuse his discretion in admitting the
testimony because there was "more than a passing similarity" between the
prior "conduct in Brawdy, Wales and" the conduct "in the Texas chapel"
at issue in the present case. Unpub. Op. at 4.
In this appeal, appellant contends that admission
of Ms. C's testimony was error because the testimony should have been barred
by Mil.R.Evid. 403 (exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time) and Mil.R.Evid. 404(b) (exclusion of evidence
of other crimes, wrongs, or acts). Because the incident at issue in the
prior trial involved both indecent exposure and masturbation and the incidents
at issue in the present case involved only indecent exposure, appellant
argues that there was not a sufficient "nexus" between the two sets of
incidents to support admission of Ms. C's testimony under any of the exceptions
to Mil.R.Evid. 404(b). In addition, appellant contends that
the lack of a strong nexus between the alleged circumstances surrounding
the incidents resulted in a low probative value that was outweighed by
the high risk of unfair prejudice.
We are satisfied that the military judge did
not abuse his discretion. The fact of an acquittal does not necessarily
bar the evidence of prior acts. Dowling v. United States, 493 U.S.
342, 348 (1990) ("[R]elevant and probative evidence that is otherwise admissible
under the Rules of Evidence [is not rendered inadmissible] simply because
it relates to alleged criminal conduct for which a defendant has been acquitted.").
Cf.
United States v. Munoz, 32 MJ 359, 363-64 (CMA) (uncharged
misconduct admitted as proof of plan), cert. denied,502 U.S. 967(1991).
The military judge determined that there was sufficient evidence that the
prior acts occurred, and he applied the appropriate Mil.R.Evid. 403 balancing
test. There is a need for great sensitivity when making the determination
to admit evidence of prior acts that have been the subject of an acquittal.
The military judge exercised due sensitivity in the present case. The
record reflects that the members were made aware of appellant's prior acquittal.
A Stipulation of Fact (prosecution exhibit 1) regarding the acquittal was
presented to the members as evidence. During the questioning of the alleged
victim of the prior incident, the military judge ensured that the scope
of the questioning was limited to a statement that there was an
acquittal. The military judge expressly mentioned the acquittal
in his instructions regarding stipulations and in his limiting instructions.
Under these circumstances, it was not an abuse of discretion for the judge
to allow the testimony.
Even if there was error in the decision to
admit the evidence of the prior acts, admission of Ms. C's testimony was
not prejudicial under Article 59(a), UCMJ, 10 USC §
859(a). The acts alleged at this court-martial were well supported by the
testimony of three victims who described very similar incidents of indecent
exposure by appellant. In light of the overwhelming evidence that appellant
had committed the acts with which he was charged, any error was harmless.

III. LEGAL SUFFICIENCY OF THE EVIDENCE
Appellant also contends that the evidence was
not legally sufficient to support his conviction. When considering sufficiency
of the evidence, this Court must determine "whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt."
United
States v. Turner, 25 MJ 324 (CMA 1987) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
The elements of the offense of indecent exposure
are:



(1) That the accused exposed a certain part
of the accused's body to public view in an indecent manner;
(2) That the exposure was willful and wrongful;
and
(3) That, under the circumstances, the accused's
conduct 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.



Para. 88b, Part IV, Manual, supra.
Appellant argues that the evidence was not
sufficient to show that he exposed himself because two of the witnesses
did not specifically observe his genitalia. He also argues that there was
no evidence that he willfully exposed himself. As the Court of Criminal
Appeals noted, the victims testified that appellant positioned his body
in each instance with his pants unzipped and wearing no underwear, so that
his genital area was clearly exposed. A reasonable factfinder could have
concluded that appellant intentionally exposed himself to each of the victims
in an indecent manner. That is sufficient to meet the test of Jackson
v. Virginia, supra.

IV. CONCLUSION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
*The cited version of all Manual
provisions is unchanged from the version applicable at trial.

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