                         UNITED STATES, Appellee

                                         v.

                  Marcus W. STEPHENS, Staff Sergeant
                       U.S. Air Force, Appellant

                                  No. 08-0589
                           Crim. App. No. 36682

       United States Court of Appeals for the Armed Forces

                         Argued January 12, 2009

                          Decided March 12, 2009

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


                                     Counsel


For Appellant: Dwight H. Sullivan, Esq. (argued); Major Shannon
A. Bennett, Captain Anthony D. Ortiz, and Captain Tiffany M.
Wagner (on brief).


For Appellee: Captain Coretta Gray (argued); Colonel Gerald R.
Bruce and Major Jeremy S. Weber (on brief); Major Matthew S.
Ward and Captain John M. Simms.


Military Judge:    Mary M. Boone


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Stephens, No. 08-0589/AF


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether the military judge

erred by allowing the father of the victim to testify in

sentencing about the effect the investigation and court-martial

had on the victim.   We hold that there was no error and affirm.

                          I.   Background

     Appellant, a twenty-one-year-old staff sergeant (E-5) was

charged with inappropriately touching his thirteen-year-old

cousin by marriage on two occasions at family parties, once in

December 2003 and the other in August 2004.    Appellant pled not

guilty to carnal knowledge, sodomy, and indecent acts.    Articles

120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 920, 925, 934 (2000).   A general court-martial with

members convicted him of attempted carnal knowledge, attempted

sodomy, and indecent acts, all in August 2004.    Article 80,

UCMJ, 10 U.S.C. §§ 880 (2000); Article 134, UCMJ.    He was

acquitted of the sole specification (indecent acts) that was

alleged to have occurred in December 2003.

     The victim, BU, testified at length via closed-circuit

television in the findings phase of the trial.    She did not

testify on sentencing.   During the Government’s sentencing case,

the trial counsel called the victim’s father to testify about

the effect the crimes had on her.     He testified concerning her

emotional state and the fact that she no longer appeared to


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United States v. Stephens, No. 08-0589/AF


enjoy sports or other activities.     The trial counsel then asked

him the following question:   “How about the effect of this

process, the investigation and her testifying and what not, how

has that impacted her and how has it impacted you?”    The

following exchange then took place:

     CDC2: Your honor, we would object to the relevance of
     this testimony.

     MJ: I’ll allow it, it goes to victim impact.      I’ll
     allow it, go ahead.

     CDC2: Your honor, we object. They are asking to
     penalize the Defendant for invoking his right to have
     a trial and the process involved with that.

     MJ: Well, I think you need to focus a little bit, but
     the process is okay, what she has had to go through.
     That is fine, go ahead, focus it a little more.

     CDC2:   Your honor, is that overruled?

     MJ: Yes, in one sense. He can go through what the
     effect of it since this has come about until now and
     she has had to testify, the impact and the effect on
     her and that means as she has gone through the
     process, just the impact, emotionally on her.

     CDC2:   Very [w]ell, your honor.

     MJ:   You can talk about that.

     TC:   Thank you.

     WIT: It has been totally devastating, what she has
     had to go through, what she has had to put up with;
     the constant retelling to different people, to
     different systems of the court system. I mean, to
     keep bringing it slamming it in her face, I mean,
     ya’ll just don’t have a clue what this has done to my




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United States v. Stephens, No. 08-0589/AF


     daughter. She is nowhere near the same daughter that
     she was before. It has just totally changed her one
     hundred percent.

     The convening authority approved the adjudged sentence to a

dishonorable discharge, confinement for three years, forfeiture

of all pay and allowances, and reduction to the lowest enlisted

grade.   The United States Air Force Court of Criminal Appeals

affirmed.   United States v. Stephens, 66 M.J. 520, 529 (A.F. Ct.

Crim. App. 2008).

                           II.   Analysis

     We test a military judge’s admission or exclusion of

evidence, including sentencing evidence, for an abuse of

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

2000).   Rule for Courts-Martial (R.C.M.) 1001(b)(4) provides as

follows:

     The trial counsel may present evidence as to any
     aggravating circumstances directly relating to or
     resulting from the offenses of which the accused has
     been found guilty. Evidence in aggravation includes,
     but is not limited to, evidence of financial, social,
     psychological, and medical impact on or cost to any
     person . . . who was the victim of an offense
     committed by the accused . . . .

Testimony as to the effect of the process, including the trial,

on the victim, as was admitted here, certainly comes within the

rather broad ambit of this rule.       Of course, a rule or other

provision of the Manual for Courts-Martial cannot sanction a

violation of Appellant’s constitutional rights.      See United



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United States v. Stephens, No. 08-0589/AF


States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992) (noting that the

military justice system has hierarchical sources of rights

beginning with the Constitution and that “[n]ormal rules of

statutory construction provide that the highest source authority

will be paramount, unless a lower source creates rules that are

constitutional and provide greater rights for the individual”).

Furthermore, sentencing evidence is subject to the requirements

of Military Rule of Evidence (M.R.E.) 403.    United States v.

Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001) (citing United States v.

Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)).     When the military

judge conducts a proper balancing test under M.R.E. 403 on the

record, her ruling will not be overturned absent a clear abuse

of discretion; the ruling of a military judge who fails to do so

will receive correspondingly less deference.    Id.; Manns, 54

M.J. at 166.   Here, while the military judge limited the ambit

of the father’s testimony, she did not perform the balancing

test on the record.

     Appellant, citing United States v. Mobley, 31 M.J. 273

(C.M.A. 1990), United States v. Carr, 25 M.J. 637 (A.C.M.R.

1987), and Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001), argues

that the father’s testimony was an impermissible comment on

Appellant’s right to plead not guilty, confront the witnesses

against him, and put the Government to its proof, and hence

constitutional error.


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United States v. Stephens, No. 08-0589/AF


       This case is not analogous to the cases cited.   In Mobley,

the trial counsel called attention to the accused’s failure to

testify by apostrophizing at length, asking rhetorical questions

of the mute accused and providing his own answers.1     Both Carr

and Burns were cases in which the government, at trial,

explicitly commented on the fact that the appellant’s invocation

of his constitutional right to a trial forced the victim to

endure the rigors of cross-examination and relive the experience

of being attacked.    Carr, 25 M.J. at 638; Burns, 260 F.3d at

896.   Here, there was no explicit comment by the trial counsel

or the father concerning Appellant’s invocation of his rights

but rather, a brief reference to the effect of the entire

proceeding (including, but not limited to, the trial) on

Appellant’s victim.   Considering the facts of this case, we do

not find the cited cases persuasive and find no constitutional

violation.

       This does not end the inquiry, however, as relevant

evidence may still be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice.




1
  31 M.J. at 278-79. We did not hold this to be error, but
vacated and remanded. Id. at 280. On remand, the Air Force
Court of Military Review found error but held it to be
constitutionally harmless. United States v. Mobley, 34 M.J.
527, 529, 531-32 (A.F.C.M.R. 1991). We summarily affirmed.
United States v. Mobley, 36 M.J. 34 (C.M.A. 1992).

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United States v. Stephens, No. 08-0589/AF


M.R.E. 403.   When, as here, a military judge fails to conduct

the M.R.E. 403 balancing test on the record, we will examine the

record ourselves.   Manns, 54 M.J. at 166.

     The overriding concern of M.R.E. 403 “is that evidence will

be used in a way that distorts rather than aids accurate fact

finding.”    1 Stephen A. Saltzburg et al., Military Rules of

Evidence Manual § 403.02[4], at 4-27 (6th ed. 2006).    Doing so,

we find that the father’s testimony was probative because it

showed specific psychological harm BU suffered as a result of

Appellant’s offense; she was no longer able to enjoy sports and

other activities and had changed significantly.   See R.C.M.

1001(b)(4) (stating that aggravation evidence includes evidence

of psychological impact on the victim).   The concern for unfair

prejudice arises from the possibility that the court members

might misuse this testimony as a comment on Appellant’s right to

confront and cross-examine the witness.   Under the circumstances

of this case, we find that possibility remote.    The admission of

this evidence did not distort accurate fact finding.   Limited as

the father’s testimony was by the military judge, its probative

value in establishing specific harm to the victim was not

substantially outweighed by any danger of unfair prejudice to

Appellant.    The military judge did not abuse her discretion.

The evidence was relevant victim impact evidence and properly

admitted under R.C.M. 1001(b)(4).


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United States v. Stephens, No. 08-0589/AF


     We caution trial counsel introducing aggravation evidence

under R.C.M. 1001(b)(4) to use care in eliciting testimony that

may cross the line into impermissible comment on an accused’s

invocation of his constitutional rights.    While we find no abuse

of discretion here, it is not difficult, particularly in cases

involving sexual abuse, to envision such a case.

                         III.   Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Stephens, No. 08-0589/AF


     BAKER, Judge, with whom EFFRON, Chief Judge, joins

(concurring in the result):

     Although I do not agree with the Court’s conclusion that

there was no error, I agree that Appellant was not prejudiced.

For that reason, I concur in the result.

     As the Court notes, this case is distinguished from United

States v. Carr, 25 M.J. 637 (A.C.M.R. 1987), and Burns v.

Gammon, 260 F.3d 892 (8th Cir. 2001), because the Government did

not expressly comment on Appellant’s constitutional right to

trial or to remain silent.    United States v. Stephens, __ M.J.

__ (6) (C.A.A.F. 2009).   Rather, the father testified during a

series of questions about the impact that the crime, the

process, and testifying had on his daughter.   But the questions

asked of the victim’s father, while more opaque than in Carr and

Burns, nonetheless implicated Appellant’s constitutional right

to trial.   Significantly, defense counsel objected on that

specific ground.   Moreover, the question to which counsel

objected was clearly segregated from the previous question,

which dealt with the emotional impact of the offense generally.

The question objected to dealt with the impact of the trial

itself.

     TC: How about the effect of this process, the
     investigation and her testifying and what not, how has
     that impacted her and how has it impacted you?

     . . . .
United States v. Stephens, No. 08-0589/AF



     WIT: It has been totally devastating, what she has
     had to go through, what she has had to put up with;
     the constant retelling to different people, to
     different systems of the court system. I mean, to
     keep bringing it slamming it in her face, I mean,
     ya’ll just don’t have a clue what this has done to my
     daughter. She is nowhere near the same daughter that
     she was before. It has just totally changed her one
     hundred percent.

     Therefore, the issue was plainly before the military judge

and this is not a case where the issue is only found with the

clear vision of line-by-line appellate hindsight.   Accordingly,

the military judge was obliged to address whether the proffered

testimony was directly related to the offense and legally

relevant under Military Rule of Evidence (M.R.E.) 403.    See

United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007)

(citing two limitations on the admission of aggravation

evidence, that such evidence is “‘directly relating’ to the

offenses of which the accused has been found guilty” and passes

the test of M.R.E. 403).   Here, it is clear that, for the

purpose of M.R.E. 401 and Rule for Courts-Martial 1001(b)(4),

the testimony directly related to the impact of the offense on

the victim, including the testimony about the investigation and

related proceedings.   See United States v. Rust, 41 M.J. 472,

478 (C.A.A.F. 1995) (“The phrase ‘directly relating to or

resulting from the offenses’ imposes a ‘higher standard’ than

‘mere relevance.’   Evidence is admissible on sentence which


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United States v. Stephens, No. 08-0589/AF


shows ‘the specific harm caused by the defendant.’”) (citations

omitted).

     The problem is that the question and answer also referenced

the victim’s testimony at trial.       As a result, on these facts

the M.R.E. 403 balancing test should have broken in Appellant’s

favor.    The probative value of the answer to this question was

weak in light of the other extensive evidence of emotional

impact.   This evidence included the father’s other testimony,

the mother’s testimony, and the expert opinion of the

psychologist on sentencing; all of which discussed how the

offense had affected the victim’s emotional well-being and

changed her as a person.   Additionally, the victim testified for

more than four hours during Appellant’s court-martial, and the

members could observe for themselves the emotional impact of the

offense and subsequent process on her.      On the other hand, the

father’s answer implicated Appellant’s right to trial.      In a

court-martial before members, that raised the possibility that

one or more members might sentence Appellant not only for his

offense and its direct impact on the victim, but also for

compelling the victim to endure the burden of testifying at

trial, which is his constitutional right.      That significant due

process risk outweighed the probative value of the evidence.

     However, in the final analysis, the error in M.R.E. 403

balancing was harmless for much the same reason that the

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United States v. Stephens, No. 08-0589/AF


evidence was not probative.   The emotional impact on the victim

was dramatic, self-evident during the victim’s testimony, and

substantiated through expert testimony.   For this reason, any

error was harmless using either a constitutional or

nonconstitutional standard.




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