                         UNITED STATES, Appellee

                                         v.

                  William C. TANNER, Seaman Recruit
                         U.S. Navy, Appellant

                                  No. 05-0710
                        Crim. App. No. 200301120

       United States Court of Appeals for the Armed Forces

                          Argued April 19, 2006

                         Decided August 18, 2006

EFFRON, J., delivered the opinion of the Court, in which
GIERKE, C.J., and CRAWFORD and ERDMANN, JJ., joined. BAKER, J.,
filed a separate opinion concurring in the result.


                                     Counsel


For Appellant:    Captain Richard A. Viczorek, USMC (argued).


For Appellee: Lieutenant TyQuili R. Booker, JAGC, USNR
(argued); Major Kevin C. Harris, USMC, and Commander Charles N.
Purnell, JAGC, USN (on brief).



Military Judge:    R. B. Wities




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Tanner, No. 05-0710/NA


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of the following offenses against his biological daughter:    rape

of a child under the age of sixteen years, forcible sodomy of a

child under the age of sixteen years (two specifications), and

indecent acts with a child under the age of sixteen years, in

violation of Articles 120, 125, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000).    The

adjudged sentence included a dishonorable discharge and

confinement for eighteen years.   The convening authority

approved the sentence.   Pursuant to a pretrial agreement, the

convening authority suspended all confinement in excess of

ninety months for a period of ninety months from the date of

sentencing.   The United States Navy-Marine Corps Court of

Criminal Appeals affirmed.    United States v. Tanner, 61 M.J. 649

(N-M. Ct. Crim. App. 2005).

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER THE LOWER COURT ERRED BY HOLDING
          THAT IT WAS HARMLESS ERROR BEYOND A
          REASONABLE DOUBT FOR THE MILITARY JUDGE
          DURING SENTENCING TO ADMIT APPELLANT’S PRIOR
          COURT-MARTIAL CONVICTION THAT WAS
          SUBSEQUENTLY REVERSED.




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United States v. Tanner, No. 05-0710/NA


We hold that admission of the prior conviction did not

constitute prejudicial error, and we affirm.



                              I.   BACKGROUND

                   A.   APPELLANT’S TWO COURTS-MARTIAL

        Appellant has been tried by two courts-martial for sexual

abuse of family members.      Each court-martial involved a

different victim.       At his first court-martial, which occurred a

year before the court-martial now on appeal in this Court,

Appellant pled guilty to the following offenses against his

fifteen-year-old stepdaughter:       attempted carnal knowledge in

violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000), and

sodomy and indecent acts in violation of Articles 125 and 134,

UCMJ.    In addition, Appellant pled guilty to committing adultery

with an unrelated adult, in violation of Article 134, UCMJ.

        A year later, at his second court-martial, Appellant pled

guilty to sexual abuse of his ten-year-old biological daughter.

The offenses against his daughter, which included rape, took

place over an eighteen month period, the same general time frame

as the offenses against his stepdaughter.

              B.   SENTENCING AT THE SECOND COURT-MARTIAL

        During the sentencing proceeding at the second court-

martial, the prosecution offered into evidence a record of

Appellant’s conviction at the first court-martial, which was


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United States v. Tanner, No. 05-0710/NA


then under appeal.   See Rule for Courts-Martial (R.C.M.)

1001(b)(3).   The defense did not object to the evidence, which

consisted of the general court-martial order for Appellant’s

first court-martial.   The general court-martial order contained

considerable detail concerning the convictions obtained at the

first court-martial, including that Appellant had attempted

sexual intercourse with his stepdaughter, had exposed his naked

body to her, had fondled her, had touched her breasts and her

genitalia with his hands, and had inserted his finger into her

vagina.

     When the prosecution also sought to introduce portions of

the record from the earlier court-martial, the defense objected

on the grounds that the material was irrelevant, cumulative, and

improper evidence in aggravation.    The military judge sustained

the defense objection, focusing primarily on the fact that the

evidence was cumulative.   He noted that “in looking at the

Court-Martial Order . . . as an experienced military judge, I

can clearly see what the charges/specifications were, how the

accused pled and how he was found.”   He added that “[t]he

specifications are rather explicit on their face and I think

they don’t need any further exposition by documents which may be

set forth in” the record of trial.

     Subsequently, during presentation of its case on

sentencing, the defense introduced a substantial amount of


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United States v. Tanner, No. 05-0710/NA


evidence, including information concerning Appellant’s first

court-martial.    As summarized by the court below, the defense

sought to obtain a lenient sentence to confinement by arguing

that:    (1) the offenses at issue in both courts-martial occurred

concurrently; (2) Appellant made substantial progress in sexual

offender rehabilitation and treatment programs during the

confinement resulting from his first court-martial; and (3)

Appellant had significant potential for rehabilitation.         Tanner,

61 M.J. at 654.    The defense evidence substantiated the

misconduct at issue in his first court-martial, and included

evidence from the victims in each trial.      See id.

                       C.   APPELLATE PROCEEDINGS

        Subsequent to the completion of Appellant’s second court-

martial, the Court of Criminal Appeals set aside the findings

and sentence of Appellant’s first court-martial based on the

Government’s failure to comply in a timely fashion with the

terms of the pretrial agreement involving deferral and waiver of

automatic forfeitures.      See id. at 653.   The court authorized a

rehearing on the charges at issue in the first court-martial,

but the convening authority decided to not retry Appellant.        Id.

        During appellate review of Appellant’s second court-martial

-- the case now before us -- the Court of Criminal Appeals

considered the impact of its earlier decision to set aside

Appellant’s first conviction.     Id. at 653-57.    The court


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United States v. Tanner, No. 05-0710/NA


determined that admission into evidence of Appellant’s “prior

court-martial conviction that was subsequently reversed was a

constitutional error, but that the error was harmless beyond a

reasonable doubt.”    Id. at 653.



                           II.   DISCUSSION

     R.C.M. 1001 sets out the presentencing procedure for

courts-martial, including the rules governing the presentation

of sentencing evidence.   The prosecution’s evidence may include

the accused’s service data from the charge sheet, personal data

and evidence as to the character of the accused’s prior service,

evidence of prior military or civilian convictions, evidence in

aggravation, and evidence of rehabilitative potential.        R.C.M.

1001(b)(1)-(5).

     For the purpose of admitting a prior conviction into

evidence, a court-martial “conviction” occurs “when a sentence

has been adjudged.”   R.C.M. 1001(b)(3)(A).     Under the rule, the

prosecution may introduce evidence of a prior conviction during

“[t]he pendency of an appeal therefrom.”      R.C.M. 1001(b)(3)(B).

The validity of the sentence in the later court-martial may be

affected, however, if the prior conviction introduced during

sentencing is reversed on appeal.       See United States v. Tucker,

404 U.S. 443, 447-48 (1972); United States v. Alderman, 22

C.M.A. 298, 302, 46 C.M.R. 298, 302 (1973).      In such an


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instance, we test for prejudice from admission of that prior

conviction by determining whether the sentence in the later

court-martial “might have been different” had the conviction not

been introduced during sentencing.   Tucker, 404 U.S. at 448;

Alderman, 22 C.M.A. at 302, 46 C.M.R. at 302.

     In the course of evaluating potential prejudice, we

consider whether the same information otherwise would have been

admissible at the sentence proceeding and at a sentence

rehearing.   See United States v. Wingart, 27 M.J. 128, 134

(C.M.A. 1988) (“Even though trial counsel did not offer the

evidence on this basis, there would be little point in setting

aside the sentence if the challenged evidence clearly would be

admissible at a rehearing.”).

     The fact that information is inadmissible on sentencing as

a record of conviction does not preclude its admission on other

grounds under R.C.M. 1001(b) if relevant and reliable.    See

United States v. Ariail, 48 M.J. 285, 287 (C.A.A.F. 1998).      As

noted in Section I.B. supra, the record of Appellant’s

conviction at the first court-martial contained considerable

detail concerning sexual abuse of his stepdaughter.   In light of

the reversal of Appellant’s first conviction, the issue before

us is whether the information contained in that record of

conviction otherwise was admissible during sentencing.




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United States v. Tanner, No. 05-0710/NA


     R.C.M. 1001 constitutes the gate through which such matters

must pass during sentencing.    See Wingart, 27 M.J. at 135.

R.C.M. 1001(b)(4), which authorizes the prosecution to “present

evidence as to any aggravating circumstances directly relating

to or resulting from the offenses of which the accused has been

found guilty,” provides one route through that gate.

     We recognized in Wingart that “uncharged misconduct will

often be admissible as evidence in aggravation under” R.C.M.

1001(b)(4).   27 M.J. at 135.   In Wingart, we considered

admissibility of uncharged misconduct during sentencing when the

evidence had not been introduced during findings.     Id. at 134.

We noted that, under M.R.E. 404(b), evidence of uncharged

misconduct expressly was inadmissible as a general matter to

show propensity to commit the charged crime, but that it may be

admissible for other purposes.   Id. at 134-35.     We cited the

view of the drafters that R.C.M. 1001(b)(4) did not “authorize

admission of evidence of uncharged misconduct merely because

under some circumstances that evidence might be admissible

[under another rule] in a contested case to prove an offense for

which the accused is being tried.”    Id. at 135.

     The analysis in Wingart focused on the general rule

governing evidence of uncharged misconduct, M.R.E. 404(b),

noting that such evidence is “inadmissible unless there is some

purpose to be served by its reception other than to show that


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the accused is predisposed to commit crime.”    Id. at 136.   We

observed that “it often is very difficult to determine in

advance whether evidence of uncharged misconduct will qualify

for admission in a particular case,” and that R.C.M. 1001(b)(4)

was not designed “to introduce into sentencing proceedings all

the complex issues which are present in applying [Military Rule

of Evidence (M.R.E.)] 404(b) in a contested case.”   Id. at 135.

Accordingly, we concluded that M.R.E. 404(b) does not provide a

basis for admission of evidence during sentencing that is not

otherwise admissible under R.C.M. 1001(b)(4).   Id. at 135-36;

see, e.g., United States v. Nourse, 55 M.J. 229 (C.A.A.F. 2001)

(evidence of uncharged misconduct demonstrating a continuing

course of conduct is admissible in aggravation during sentencing

under R.C.M 1001(b)(4) because it is directly related to the

charged offense).

     In the present case, the issue is not admissibility of

prior misconduct evidence under the general provisions of M.R.E.

404(b) covering “[o]ther crimes, wrongs, or acts.”   Instead, the

question is whether the evidence would have been admissible

through the gateway provided by R.C.M. 1001.    In making this

assessment, we consider the more specific provisions of M.R.E.

414, rather than R.C.M. 404(b).   M.R.E. 414, which addresses the

admissibility of evidence of similar crimes in child molestation

cases, was adopted subsequent to our decision in Wingart.     See


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United States v. Tanner, No. 05-0710/NA

Exec. Order No. 13,086, 3 C.F.R. 155 (1999).    M.R.E. 414, and

its companion rule, M.R.E. 413 (evidence of similar crimes in

sexual assault cases) are based on Fed. R. Evid. 414 and Fed. R.

Evid. 413, as enacted by Congress.   Manual for Courts-Martial,

United States, Analysis of the Military Rules of Evidence app.

22 at A22-36 to A22-37 (2005 ed.).

     Under M.R.E. 414(a):

          In a court-martial in which the accused is
          charged with an offense of child
          molestation, evidence of the accused’s
          commission of one or more offenses of child
          molestation is admissible and may be
          considered for its bearing on any matter to
          which it is relevant.

M.R.E. 414, like M.R.E. 413, establishes a presumption in favor

of admissibility of evidence of prior similar crimes in order to

show predisposition to commit the designated crimes.    See United

States v. Wright, 53 M.J. 476, 482-83 (C.A.A.F. 2000).     As such,

M.R.E. 414 stands in sharp contrast to M.R.E. 404(b), at issue

in Wingart, which bars uncharged misconduct as evidence of

predisposition.

     The structure of M.R.E. 404(b) permits admission of

evidence of other crimes, wrongs, or acts only upon a showing by

the proponent of a specifically relevant purpose to be served

under the circumstances of the particular case.    United States

v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002).     In that context,

we declined to hold in Wingart that the potential, abstract


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United States v. Tanner, No. 05-0710/NA

admissibility of uncharged misconduct under M.R.E. 404(b) could

meet the requirement of R.C.M. 1001(b)(4) that evidence in

aggravation involve “circumstances directly relating to or

resulting from the offenses of which the accused has been found

guilty.”   See 27 M.J. at 135-36.

     M.R.E. 414, however, does not contain a prohibition against

predisposition evidence.   Instead, in a court-martial for child

molestation, M.R.E. 414 provides a vehicle for the admissibility

of other acts of child molestation committed by the accused.

The rule reflects a presumption that other acts of child

molestation constitute relevant evidence of predisposition to

commit the charged offense.   As such, in a child molestation

case, evidence of a prior act of child molestation “directly

relat[es] to” the offense of which the accused has been found

guilty and is therefore relevant during sentencing under R.C.M.

1001(b)(4).   See M.R.E. 401 (providing that evidence is relevant

if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more

probable . . . than it would be without the evidence”); 1

Stephen A. Saltzburg et al., Military Rules of Evidence Manual §

401.02 (5th ed. 2003) (discussing the low threshold for

determining relevance under the M.R.E.).

     Evidence under M.R.E. 413 and M.R.E. 414 is subject to a

balancing test pursuant to M.R.E. 403, under which relevant


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United States v. Tanner, No. 05-0710/NA

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.”   See United

States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (applying the

balancing test to evidence considered under M.R.E. 413).    In the

present case, the M.R.E. 414 predisposition evidence would have

been admissible under R.C.M. 1001(b)(4), subject to balancing.

Because the evidence was admitted without objection as a prior

conviction under R.C.M. 1001(b)(3)(A), the military judge did

not conduct a balancing test in the context of M.R.E. 414.

Accordingly, we review the evidence in this light without giving

any deference to the decision of the military judge.   United

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

     In the context of the evidence at issue, we conclude that

the absence of balancing under M.R.E. 403 and M.R.E. 414 does

not constitute prejudicial error.   The information as to

Appellant’s prior misconduct offered at this trial depict

Appellant’s sexual molestation of a member of his family -- his

fifteen-year-old stepdaughter -- during the same period of time

as he committed the offenses of which he now stands convicted,

which involved sexual abuse of another member of his family --

his ten-year-old biological daughter.   Under the circumstances

of this case, including Appellant’s concurrent sexual abuse of

two different minor members of his family, the absence of


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United States v. Tanner, No. 05-0710/NA

balancing under M.R.E. 403 and M.R.E. 414 during sentencing was

harmless beyond a reasonable doubt.



                         III.   DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Tanner, No. 05-0710/NA


     BAKER, Judge (concurring in the result):

     The majority concludes that prior acts of child molestation

under Military Rule of Evidence (M.R.E.) 414 are always relevant

during sentencing under Rule for Courts-Martial (R.C.M.)

1001(b)(4) as evidence directly relating to the offense of which

the accused has been found guilty.   However, the majority skips

an important analytic step.    Although such evidence is

presumptively admissible under M.R.E. 414, it must still be

relevant to be admitted and considered.1   M.R.E. 414 states:    “In

a court-martial in which the accused is charged with an offense

of child molestation, evidence of the accused’s commission of

one or more offenses of child molestation is admissible and may

be considered for its bearing on any matter to which it is

relevant.” (emphasis added).    This requires a case-by-case

determination that the evidence is relevant, as opposed to the

blanket presumption adopted by the Court today.

     Recently, in another case involving interpretation of

M.R.E. 414, this Court reiterated the United States Supreme

Court’s long-standing, fundamental rule of statutory

interpretation “‘that courts must presume that a legislature

says in a statute what it means and means in a statute what it

says there.’”   United States v. James, 63 M.J. 217, 221


1
  As the text of M.R.E. 414 is clear, we need not refer to the
legislative history to address the question presented.
United States v. Tanner, No. 05-0710/NA


(C.A.A.F. 2006) (quoting Connecticut Nat’l Bank v. Germain, 503

U.S. 249, 253-54 (1992)).   The same rule applies here, albeit

this time in a different context.     M.R.E. 414 does not state

that such evidence must be admitted.     Rather, the rule states

that such evidence “is admissible and may be considered for its

bearing on any matter to which it is relevant.”    M.R.E. 414

(emphasis added).   As the legislative history suggests, the

statement that such evidence is admissible is best understood in

relation to the normal treatment of such evidence under M.R.E.

404(b) (and its civilian counterpart, Fed. R. Evid. 404(b)), in

which it was normally excluded.   As this Court noted in James,

“[p]rior to 1996, the admissibility of evidence of uncharged

misconduct in the military justice system was severely

restricted by M.R.E. 404(b) and the judicial application of the

rule.”   63 M.J. at 219.   The Drafters’ Analysis of M.R.E. 414

states that the rule was “intended to provide for more liberal

admissibility of character evidence in criminal cases of child

molestation where the accused has committed a prior act of

sexual assault or child molestation.”    Manual for Courts-

Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-37 (2005 ed.).

     The requirement to determine that M.R.E. 414 evidence is

both logically and legally relevant is borne out by this Court’s

opinion in James.   There, this Court held that uncharged


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United States v. Tanner, No. 05-0710/NA


misconduct under M.R.E. 414 was admissible regardless of whether

it occurred before or after the charged offense so long as it

was “otherwise relevant and admissible under M.R.E. 401, M.R.E.

402, and M.R.E. 403.”   63 M.J. at 218.   Likewise, in United

States v. Wright, this Court established the “three threshold

findings” that are required before evidence can be admitted

pursuant to M.R.E. 413 (or M.R.E. 4142), including a

determination that “[t]he evidence is relevant under Rules 401

and 402.”   53 M.J. 476, 482 (C.A.A.F. 2000).   Balancing under

M.R.E. 403 is also required, although not until the three

threshold findings have been satisfied.   Id.

     In the sentencing context, R.C.M. 1001(b)(4) provides the

framework for determining whether M.R.E. 414 evidence is

relevant.   Under R.C.M. 1001(b)(4), “directly relating to”

evidence must pertain to “any aggravating circumstances”

including, but not limited to, “evidence of financial, social,

psychological, and medical impact on or cost to any person or

entity who was the victim of an offense committed by the accused

. . . .”    Informed by M.R.E. 414’s presumption of admissibility,

the phrase “directly relating to” is appropriately interpreted

broadly.


2
  See James, 63 M.J. at 220 (“In light of the common history and
similar purpose of M.R.E. 413 and M.R.E. 414, there is no need
to distinguish the two rules for the purpose of our discussion
of the granted issue.”).

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     In sum, although presumptively admissible under R.C.M.

1001(b)(4), evidence of uncharged sexual misconduct must be

relevant.    See M.R.E. 414; see also M.R.E. 413.   We consider

relevance in the sentencing context in light of this presumption

of admissibility.

     In this case, the uncharged misconduct with Appellant’s

stepdaughter was, without question, “directly related to” his

charged offense and therefore relevant because it involved the

same family, the same time frame, and the same types of acts.

See United States v. Mullens, 29 M.J. 398, 400 (C.M.A. 1990)

(allowing evidence of uncharged sexual misconduct on more than

one of the appellant's children under R.C.M. 1001(b)(4) where

those same children were also the object of similar charged

offenses).   Cf. United States v. Wingart, 27 M.J. 128, 136

(C.M.A. 1988) (holding that photographs of a separate child

victim in the appellant’s trial for indecent acts with a child

were not properly admissible under R.C.M. 1001(b)(4)).

Therefore, I concur in the result.




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