                                      CORRECTED COPY


UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          CAMPANELLA 1, SALUSSOLIA, and FLEMING
                                 Appellate Military Judges

                                 UNITED STATES, Appellee
                                              v.
                                 Captain JACK K. NORRIS
                                United States Army, Appellant

                                         ARMY 20160262

                          Headquarters, III Corps and Fort Hood
                 Douglas Watkins and Rebecca Connally, Military Judges
                Lieutenant Colonel Travis L. Rogers, Staff Judge Advocate

For Appellant: Zachary Spilman, Esquire (argued) 2; Captain Cody Cheek, JA;
Richard W. Rousseau, Esquire; Zachary Spilman, Esquire (on brief and reply brief).

For Appellee: Captain Sandra L. Ahinga (argued) 3;Lieutenant Colonel Eric K.
Stafford, JA; Captain Austin L. Fenwick, JA; Captain KJ Harris, JA; Captain Joshua
B. Banister, JA; Captain Sandra L. Ahinga, JA (on brief).

                                       14 September 2018

                                    ----------------------------------
                                     MEMORANDUM OPINION
                                    ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

      We hold, under the unique facts of this case, appellant’s act of lying his body
on top of his victim is sufficient force to sustain a conviction to the offense of rape
by force under Article 120(a)(1), Uniform Code of Military Justice [UCMJ], 10
U.S.C. § 920 (2006). We also find the military judge erred, in part, by allowing the
government to admit evidence under Military Rule of Evidence [Mil. R. Evid.]
404(b) to establish appellant’s intent to dominate and control his victim and his


1
    Senior Judge Campanella decided this case prior to her departure from the Court.
2
    Corrected
3
    Corrected
NORRIS—ARMY 20160262

motive of hostility towards his victim. We, nevertheless find this error did not
materially prejudice appellant’s rights.
      A military judge, sitting as a general-court-martial convicted appellant,
contrary to his pleas, of two specifications of rape by force, two specifications of
sexual assault, one specification of simple assault, and three specifications of assault
consummated by a battery, in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§
920 (2006), and 920 and 928 (2012). The military judge sentenced appellant to
confinement for seventeen years and a dismissal. The military judge granted
appellant seven days of Article 13, UCMJ, confinement credit. The convening
authority approved the adjudged sentence and credited appellant with seven days
against his sentence to confinement in accordance with the military judge’s ruling.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
asserts eight assignments of error, three of which merit discussion, but no relief.

                                   BACKGROUND

        Appellant’s offenses were against his then-wife, JC. Appellant was
convicted of two specifications of raping JC by lying on top of her with his body,
sufficient that she could not avoid or escape the sexual contact. Appellant raped JC
on divers occasions between 1 November 2011 and 31 December 2011 (Specification
2 of Charge I) and on one occasion between 25 March 2012 and 15 April 2012
(Specification 3 of Charge I).

                                 Rape by Force Offenses

      As to the rape in Specification 2 of Charge I, appellant and JC met in August
2011 and married a month later. Around November or December 2011, JC awoke
several mornings with a sore vagina and her clothes removed or improperly located
on her body. She also noticed the presence of semen when she used the bathroom.

       When JC confronted appellant about what was happening, he admitted to
having sexual intercourse with her while she was asleep. During this time, JC was
taking prescription Ambien before going to bed, which she testified made her
“sleepy and drowsy.” JC communicated to appellant that she felt humiliated,
violated, and she did not consent to him having sexual intercourse with her while she
was asleep and under the influence of Ambien.

      After this discussion with appellant, JC testified to awakening on more than
one occasion while “very groggy” to find appellant engaging in sexual intercourse
with her. JC stated she would start to cry. JC described the occasions as:

      I could just feel, he is a really big guy, and he was a lot bigger than me.
      At that time he was very muscular and he worked out, so you could
      definitely feel the weight. And I remember feeling him moving my


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      clothing. I remember feeling his weight on my chest and on my hips,
      and then I felt him put his penis into my vagina.

When asked if she could move, JC testified:
     No, absolutely not. You are groggy, and he is so much bigger than I
     am. It is not like you can wake up, you know, and roll over or even
     push someone off. You can’t push—you can’t push anything bigger
     than you off of you.

       As to the rape in Specification 3 of Charge I, JC testified to being
approximately four months pregnant and returning home after her first ultrasound.
JC stated appellant entered their bedroom, grabbed her shoulders, threw her on her
back on the bed, pulled down her pants, climbed on top of her, and proceeded to
have sexual intercourse with her. JC testified that while appellant was on top of her,
his arms were positioned at her sides, and she felt like she could not move because
he was so heavy. JC testified she cried during the sexual intercourse because it was
very painful.

                      Admission of Appellant’s Uncharged Acts

       At trial, the government admitted the following Mil R. Evid. 404(b) evidence:
(1) appellant drove erratically on two occasions; (2) appellant choked JC and placed
a pillow over her face during sexual intercourse on several occasions; and (3)
appellant dominated JC in other various ways to include taking her personal items
during their entire marriage. See Mil. R. Evid. 404(b). 4

                   Appellant’s Erratic Driving on Two Occasions

      After JC’s first ultrasound, appellant drove her home. They began arguing
during the car ride. Becoming more angry, appellant stomped on the accelerator
increasing the car’s speed to approximately ninety miles per hour on a busy road.
Appellant also swerved the car causing JC to hit her head on the side of the car.
This driving incident immediately preceded the rape by force offense charged in
Specification 3 of Charge I.




4
 “Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . .” Mil
R. Evid. 404(b).




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       JC testified that on 27 May 2013, she and appellant visited a planetarium with
their infant daughter. Their daughter was in the back of the vehicle in a car seat. JC
and appellant started arguing during the drive home. Appellant drove fast and
erratically, running red lights, and swerving in and out of lanes. 5

          Appellant’s Uncharged Acts Involving Sexual Intercourse with JC

       JC testified on one occasion, appellant entered their bedroom to engage
in sexual intercourse. JC told appellant she was too tired. Appellant placed his
forearm over her throat, leaned forward, and asked her if “[she] would like to go to
sleep forever.” JC perceived this as a threat that appellant would use more force
against her if she refused to engage in sexual intercourse. JC also testified to other
instances during their marriage when appellant would strangle her or place a pillow
over her face during sexual intercourse. 6

            Appellant’s Multiple and Varied Uncharged Acts against JC

       JC testified appellant would take her car keys, cell phone, credit card, military
identification card, wallet, her engagement ring, and other items of value throughout
the course of their marriage. 7 She testified appellant put a “find my i-Phone”
application on her cell phone in order to track her whereabouts. Appellant deprived
her of sleep by not allowing her to go to sleep or waking her while she was sleeping.
JC testified if she offered an opinion contrary to appellant, he would force her to sit
on the couch so he could “pontificate for hours if necessary until [JC] said [to him]
‘you’re right. I’m sorry.’” Appellant also frequently did not allow JC to leave their
house or if she left the house he would lock her out.




5
 This driving incident occurred the afternoon before the charged offense of child
neglect, to which appellant was found not guilty, for leaving his infant daughter
unattended in his quarters for over six hours.
6
  Although JC testified to multiple strangulations, appellant was charged with only
one specification of aggravated assault for strangling JC and found guilty of the
lesser included-offense of assault consummated by a battery (Specification 2 of
Charge III).
7
 As to the cell phone, JC testified to one incident on or about 4 August 2013 when
she argued with appellant about him turning off her phone. In the middle of the
argument, appellant unlawfully pushed JC’s head on the ground resulting in a
conviction for an assault consummated by a battery (Specification 3 of Charge III).




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       The military judge ruled orally that all of the uncharged acts were admissible
for the non-propensity purpose of establishing appellant’s intent to dominate and
control JC and his motive of hostility towards her. The military judge reasoned
appellant’s uncharged acts were relevant because the acts made it more likely than
not that appellant possessed the intent or motive to commit the multiple charged
offenses of rape, sexual assault, and assault against JC. 8 The military judge also
held “the fact that the uncharged acts and the charged acts have the same alleged
victim, at the time, which was the accused’s spouse at the time, strengthens the
mode of relevancy.” Although the military judge stated she “considered all three
parts” of the Mil. R. Evid. 404(b) test and “under the [Reynolds] three part test, this
evidence [met] the criteria for admission to show the accused’s motive, intent, or
state of mind,” she did not articulate her Mil. R. Evid. 403 balancing analysis on the
record. 9

                              LAW AND DISCUSSION

                 Legal and Factual Sufficiency of the Rape Offenses

       Appellant asserts the act of lying on top of another does not constitute
sufficient force to affirm his conviction to two specifications of forcible rape under
of Article 120(a)(1)(2006), UCMJ. We disagree.

        We review claims of legal and factual insufficiency de novo, examining all of
the evidence properly admitted at trial. Art. 66(c), UCMJ; United States v. Beatty,
64 M.J. 456, 459 (C.A.A.F. 2007). The test for legal sufficiency is whether,
considering the evidence in the light most favorable to the government, any rational
trier of fact could have found the elements of the contested crimes beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The test for

8
  At the time of the military judge’s ruling, appellant was charged with one
specification of sexually assaulting JC while she was substantially incapacitated, in
violation of Article 120, UCMJ (found not guilty); two specifications of forcible
rape of JC, in violation of Article 120, UCMJ (found guilty of both specifications);
three specifications of sexual assault by causing bodily harm to JC, in violation of
Article 120, UCMJ (found guilty of two of the three specifications); two
specifications of aggravated assault against JC, in violation of Article 128, UCMJ
(found guilty of the lesser included offense of assault consummated by battery for
both specifications); and three specifications of assault consummated by battery
against JC, in violation of Article 128, UCMJ (found guilty of two of the three
specifications).
9
 “Although 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.” Mil. R. Evid. 403.


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factual sufficiency is whether after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, we ourselves
are convinced of the appellant’s guilt beyond a reasonable doubt. United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987).

       We find JC’s testimony, regarding the rapes by force in Specifications 2 and 3
of Charge I, describes “physical violence, strength, power or restraint sufficient that
[she] could not avoid [appellant] or escape the sexual conduct.” See 10 U.S.C. §
920(t)(5)(C)(2006), Article 120(t)(5)(C)MCM (2008 ed.), Part IV, ¶45a(t)(5).
Appellant cites to United States v. Soto, 2014 CCA LEXIS 681 (A.F. Ct. Crim. App.
17 Sep. 2014) and United States v. Valentin, 2012 CCA LEXIS 180 (N.M. Ct. Crim.
App. 17 May 2012) for the proposition that lying on top of another does not
constitute force under 10 U.S.C. § 920(t)(5)(C)(2006). This case, however, is
readily distinguishable from Soto and Valentin. We discuss these distinctions in
turn.

       In Soto, the evidence of force was much weaker than in this case in three
ways. 2014 CCA LEXIS 681. First, the government failed to present detailed
evidence regarding the victim’s communication of non-consent to Soto. Id. at *12-
13. In contrast, evidence of JC’s non-consent is sufficiently detailed. For
Specification 2 of Charge I, JC testified she told appellant she felt humiliated,
violated, and she did not consent to having sexual intercourse while asleep on
Ambien. For Specification 3 of Charge I, JC described appellant’s hostility towards
her during the car ride home from her first ultrasound when appellant started driving
erratically, which caused her to hit her head in the car. When they returned home,
despite JC separating herself from appellant, he sought her out in their bedroom,
forced her on the bed, forcibly removed her clothes, and proceeded to have sexual
intercourse with her. JC cried during the rape because she was in pain. As to both
specifications, we find the evidence of JC’s non-consent much more compelling than
in Soto and are convinced beyond a reasonable doubt she did not consent.

        Second, in Soto, the government presented ambiguous evidence regarding
when and for how long Soto was on top of her. Id. at *13-14. Whereas, JC’s
testimony to both offenses provided graphic detail of appellant’s force. During the
rape in Specification 2 of Charge I, JC testified appellant was physically much
bigger than she. She described feeling his weight on her chest and hips holding her
down preventing her from moving, rolling over, or pushing him off of her. JC also
testified appellant penetrated her while she was “groggy” from Ambien usage which
further impaired her physical ability to resist appellant. Similarly, JC testified
during the rape in Specification 3 of Charge I she could not move because he was
heavy, she was four months pregnant, and the intercourse was painful. We find the
evidence of appellant’s physical force in both offenses not only much more detailed
than in Soto but also sufficient to support the conviction.




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       Third, the victim in Soto testified she was afraid during the encounter because
she feared getting in trouble for having sex with her instructor and cheating on her
boyfriend, not that she was afraid of Soto. Id. at *13. In stark contrast, appellant
was convicted of physically assaulting JC on multiple occasions during the period
surrounding the charged rapes. JC described being afraid of appellant and trapped in
the marriage. The record clearly demonstrates JC feared appellant and that fear was
present during the rapes for which he was convicted.

       Valentin is distinguishable because it involved proof of constructive force.
2012 CCA LEXIS 180. Here, it is the amount of actual force that is at issue. In
Valentin, the court held the military judge erred by instructing the panel members
that constructive force under a parental psychological compulsion theory was
sufficient to meet the definition of rape by force under 10 U.S.C. §
920(t)(5)(C)(2006). Id. at *30. To constitute a rape by force, however, there must
be a physical act. Id. at *32. Although the government presented evidence of
appellant’s hostility towards JC and how it influenced her psychologically, in
contrast to Valentin, the government also presented evidence of actual physical force
through appellant’s use of his greater body weight to restrain JC. Here, JC testified
to the actual physical acts which constituted the force for the rapes in Specifications
2 and 3 of Charge I.

       We find appellant’s physical acts in Specifications 2 and 3 of Charge I
constituted sufficient force to overcome JC. Accordingly, we find there was
sufficient evidence for the trier of fact and us to conclude beyond a reasonable doubt
appellant raped JC using unlawful force. 10




10
  We further note even if we were to find the facts of this case did not support a
factual finding of force, we could still approve a conviction for the lesser included
offense of aggravated sexual assault. See United States v. Alston, 69 M.J. 214
(C.A.A.F. 2010). In Alston, the CAAF held “[t]he bodily harm element of
aggravated sexual assault under Article 120(c) – defined in Article 120(t)(8) to
include an offensive touching, however slight – is a subset of the force of rape under
Article 120(a), as defined in Article 120(t)(5)(C).” Id. at 216. We also note a
reassessment of the sentence in accordance with the principles of Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986) would yield the same sentence. We are confident the military judge
would have adjudged the same sentence. The maximum punishment for aggravated
sexual assault is a dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 30 years. MCM, 2008, pt. IV, ¶ 45.e(2)(f)(2). Thus, appellant’s
conviction for Specifications 2 and 3 of Charge I still would have carried a
maximum punishment of 60 years. Further, the gravamen of appellant’s criminal
conduct would remain substantially the same.


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                             Mil. R. Evid. 404(b) Evidence

      Appellant asserts the military judge erred in admitting evidence pursuant to
Mil R. Evid. 404(b) to prove appellant’s intent to dominate and control JC and his
motive of hostility towards JC.

       A decision to admit evidence is reviewed for abuse of discretion. United
States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). “[A] military judge abuses
his discretion if his findings of fact are clearly erroneous or his conclusions of law
are incorrect.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).

        The test for admissibility of uncharged misconduct under Mil. R. Evid. 404(b)
is set out in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989): (1) Does
the evidence reasonably support a finding by the court members that appellant
committed prior crimes, wrongs or acts?; (2) What “fact…of consequence” is made
“more” or “less probable” by the existence of this evidence?; and (3) Is the
“probative value… substantially outweighed by the danger of unfair prejudice?” Id.
at 109. In order for evidence to be relevant under Mil. R. Evid. 404(b), the
evidence must be probative of a material issue other than character. Huddleston v.
United States, 485 U.S. 681, 686 (1988).

       Ordinarily, under the third prong of the Reynolds’ test, we review a military
judge’s Mil. R. Evid. 403 ruling for a “clear abuse of discretion.” United States v.
Ruppel, 49 M.J. 247, 250 (1998). However, we give military judges less deference
if they fail to articulate their balancing analysis on the record, and no deference if
they fail to conduct a Mil. R. Evid. 403 balancing analysis altogether. See United
States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010); United States v. Berry, 61 M.J.
91, 96 (C.A.A.F. 2005); United States v. Mann, 54 M.J. 164 (C.A.A.F. 2000). Our
superior court has identified a non-exhaustive list of factors to consider when
conducting a Mil. R. Evid. 403 balancing test: “[S]trength of proof of prior act—
conviction versus gossip; probative weight of evidence; potential for less prejudicial
evidence; distraction of factfinder; . . . time needed for proof of prior conduct[;] . . .
temporal proximity; frequency of the acts; presence or lack of intervening
circumstances; and relationship between the parties.” United States v. Wright, 53
M.J. 476, 482-83 (C.A.A.F. 2003) (citations omitted).

       In analyzing the first prong of the Reynolds test, JC’s testimony describing
each uncharged act, reasonably supports a finding appellant committed each prior
act. As to the second and third prongs of the Reynolds test, the military judge stated
she conducted a Mil. R. Evid. 403 balancing test but failed to articulate her analysis
on the record. Accordingly, the military judge’s ruling is not entitled to a “clear



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abuse of discretion” but instead we will apply a lesser deference for failing to
articulate her analysis. Even after applying this lesser deference, we find the
military judge did not err in admitting some uncharged acts but erred in admitting
other uncharged acts. We discuss each in turn.

              Uncharged Acts Properly Admitted by the Military Judge

      We find the military judge did not err in admitting the uncharged acts of
appellant driving erratically after JC’s ultrasound, strangling or placing a pillow
over JC’s face during sexual intercourse, and taking JC’s cellphone on one
occasion. 11

                  Appellant’s Erratic Driving after the Ultrasound

        The uncharged act of appellant driving erratically after JC’s first ultrasound
is highly relevant to the forcible rape charged in Specification 3 of Charge I because
it occurred immediately prior, and is considered res gestae evidence. See e.g.
United States v. Moran, 65 M.J. 178, 183 (C.A.A.F. 2007) (noting otherwise
disallowed testimony is permitted because it is necessary to complete the
chronological sequence of events).

       Appellant and JC had an argument during the drive home, appellant began
driving erratically, causing JC to hit her head on the window. JC testified when they
returned home, appellant continued to be angry, entered their bedroom and forcibly
raped her. We find the military judge properly allowed evidence of appellant’s
erratic driving on this one occasion because it is relevant to show appellant’s intent
to dominate and control JC and his motive of hostility towards her which remained
present during the rape in Specification 3 of Charge I. See United States v. Watkins,
21 M.J. 224, 227 (C.M.A. 1986) (holding prior acts are admissible which reasonably
could be viewed as “the expression and effect of the existing internal emotion” and
“the same motive [is] shown to have existed in appellant at the time of the
subsequently charged acts.”).

       Under Mil R. Evid. 403, appellant’s erratic driving is highly probative
because it immediately precedes the charged act in Specification 3 of Charge I and
lends explanation to appellant’s hostility towards JC during the charged rape. The
prejudice of admitting the uncharged acts that appellant drove erratically and
committed an assault and battery against JC when her head hit the car window does
not substantially outweigh the probative value of the evidence. Admitting the
uncharged act is not substantially outweighed by any Mil. R. Evid 403 concerns;



11
  We would find these uncharged acts were properly admitted even if we gave no
deference to the military judge’s ruling.


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particularly in a case where an appellant is charged with a plethora of far more
serious offenses against the same victim.

         Appellant’s Uncharged Acts Involving Sexual Intercourse with JC

       JC testified appellant placed his forearm over JC’s neck prior to sexual
intercourse and threatened her and on several occasions throughout the marriage
appellant strangled her or placed a pillow over her face during sexual intercourse.
These uncharged acts are highly relevant to show appellant’s intent to dominate and
control JC and his motive of hostility towards her. Appellant was charged with
several crimes of sexual violence against JC. The aforementioned uncharged acts
are similarly violent acts to the charged sexual offenses. Additionally, the
uncharged acts occurred on divers occasions within the same time period as the
charged offenses.

       United States v. Jenkins, presented a similar Mil. R. Evid. 403 analysis as
occurred in this case. 48 M.J. 594 (1998). Similar to appellant’s assaults against
JC, Jenkins also had a “long sordid history of battering his spouse.” Id. at 595. In
Jenkins, this court held the military judge correctly applied the three-part Reynolds
test and properly admitted the evidence of uncharged acts “given the repetition of
very similar circumstances on five occasions, always between Jenkins and [his wife],
always involving matters beyond the control of [Jenkins], matters which led to an
argument and a lashing out, and often times to injury to [his spouse].” Id. at 598.
Similar to Jenkins, appellant’s uncharged acts were all similar acts of repeated
violence and always against his wife.

       While some prejudice exists in admitting uncharged acts of appellant’s
additional violence against JC, the uncharged acts are highly relevant as to
appellant’s hostility towards JC. See Jenkins, 48 M.J. at 598-99 (Army Ct. Crim.
App. 1998); see also United States v. Hamilton, 2001 CCA LEXIS 451 at *25 (Army
Ct. Crim. App. 2001) (reversing because of erroneously admitted Mil. R. Evid.
404(b) evidence but recognizing the relevancy of motive is strengthened when the
charged and uncharged acts occur against the same victim). 12 Accordingly, we find
the probative value of this evidence not substantially outweighed by any Mil. R.
Evid 403 concerns.

                         Appellant’s Control over JC’s Cell Phone



12
   Appellant asserts his case is similar to Hamilton and requires reversal.
Appellant’s case, however, is readily distinguishable from Hamilton because the
uncharged acts in Hamilton were committed against a different victim, an ex-wife,
and the acts were far more serious crimes than the charged offenses against his
current wife. Id. at *18-19.


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      JC testified that on 4 August 2013, she and appellant argued over her cell
phone because he had turned it off, which was a common occurrence in their
marriage. This angered JC because it was her phone and appellant never paid for her
phone. She confronted appellant about turning off her phone, which resulted in an
argument. During the argument, appellant pushed JC’s head into the ground.
Appellant was charged with this assault of JC in Specification 3 of Charge III, and
convicted of this offense.

       Under Mil R. Evid. 403, the probative value of appellant’s prior act of turning
off JC’s cell phone on 4 August 2013 is highly relevant because it provides context
to the argument immediately preceding the assault in Specification 3 of Charge III
and the probative value of the evidence is not substantially outweighed by any Mil.
R. Evid 403 concerns.

                      Relevance of Appellant’s Motive and Intent

      We next address appellant’s argument that the evidence of his intent and
motive were not relevant because appellant’s defense at trial was JC fabricated the
charged offenses and thus he did not assert his acts were an accident or he possessed
an innocent mental state. Appellant asserts his intent was therefore not in
controversy. We disagree for two reasons.

       First, appellant’s defense theory did not relieve the government of the burden
of establishing beyond a reasonable doubt that appellant possessed the general intent
to commit the offenses against JC. See United States v. Harrow, 65 M.J. 190
(C.A.A.F.). “[T]he basic tenet from the Supreme Court is ‘[a] simple plea of not
guilty . . . puts the prosecution to its proof as to all elements of the crime charged.’”
United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007) (quoting Mathews v. United
States, 485 U.S. 58, 64-65 (1988)). “The Supreme Court, examining this same
question, unequivocally determined that evidence of intent and lack of accident may
be admitted regardless of whether a defendant argues lack of intent because every
element of a crime must be proven by the prosecution.” Id. at 202 (citing Estelle v.
McGuire, 502 U.S. 62, 69 (1991); Matthews v. United States, 485 U.S. 58, 64-65
(1988)). “Motive is the moving force that induces the criminal act and comes into
play before the actus reus, that is, why the criminal did the act.” United States v.
Jenkins, 48 M.J. 594, 598 (Army Ct. Crim. App. 1998) (citation omitted).
“[A]lthough never an element of an offense, [motive] may be relevant in a case to . .
. to show criminal intent.” United States v. Hamilton, 2001 CCA LEXIS 451, at *25
(Army Ct. Crim. App. 2001). “Uncharged misconduct can be probative of general
criminal intent, such as that required of rape […].” U.S. v. Jenkins, 48 M.J. 594,
599 (Army Ct. Crim. App. 1998).

      Second, appellant’s defense was JC fabricated the charged offenses, which
ultimately creates an inverse presumption regarding appellant and that he did not



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possess any motive or intent to harm JC. However, if appellant possessed an intent
to dominate and control JC and a motive of hostility towards her, the government
could establish it was less likely JC was fabricating the allegations. In other words,
appellant’s motive and intent were relevant to rebut the defense theory that JC was
lying. During cross-examination of JC at trial, defense attempted to undermine JC’s
credibility, on multiple grounds, to include insinuating JC actually had a happy and
loving marriage with appellant. Defense counsel cross-examined JC extensively
with multiple pictures of her and appellant appearing happy. This cross-examination
increased the relevance of appellant’s motive and intent against JC, allowing the
government to rebut the defense theory that JC and appellant had a happy marriage
so JC must be lying about the alleged offenses.

       While the government may not have been required to prove appellant’s
“specific intent” as an element, we find the government should not be constrained
from presenting relevant acts regarding appellant’s specific intent as evidence to
establish the element of appellant’s general intent. We also find the defense’s
theory of the case and cross-examination of JC created an inverse presumption that
appellant possessed no criminal intent or motive, which placed his intent and motive
into controversy and made the uncharged acts relevant to the government’s case.

             Uncharged Acts Improperly Admitted by the Military Judge

       We find the military judge erred in admitting the uncharged acts of appellant
driving erratically after a family visit to the planetarium and the other multiple and
varied acts against JC.

        The uncharged act of appellant driving erratically after a family visit to the
planetarium, appears to had minimal, if any, relevance to any of the charged offenses
related to JC. JC testified she and appellant argued during the drive home. JC
testified appellant stomped on the accelerator, ran a couple of red lights, and was
driving erratically by swerving in and out of lanes. When they returned home, they
continued to argue, eventually leading to JC leaving the house without their infant
daughter. Appellant was charged with child endangerment for leaving their daughter
unattended for over 6 hours in her crib. Appellant’s hostility towards JC, by driving
erratically, however, lacks sufficient relevance as to appellant’s alleged neglect
towards their daughter. Even if the evidence had some relevance the probative value
was substantially outweighed by Mil. R. Evid. 403 concerns. We find this incident
of appellant’s erratic driving too attenuated from the charged offenses regarding JC
for its admission under Mil. R. Evid. 404(b).

      With the exception of appellant shutting off JC’s cell phone on or about 4
August 2013, the other uncharged acts of appellant taking JC’s other personal items,
depriving JC of sleep, forcing her to sit on the couch, and not allowing her to leave
the house or locking her out of the house had minimal, if any, relevance under Mil



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R. Evid. 404(b) as to appellant’s intent or motive to commit the charged offenses.
We find these uncharged acts had minimal, if any, relevance to the charged offenses
because they were too attenuated in time to any actual alleged offense. JC testified
these uncharged acts occurred throughout the course of their marriage. These minor
acts are not sufficiently relevant to appellant’s motive or intent to commit any of the
charged offenses against JC on a date certain. Even if the acts were relevant, their
probative value was substantially outweighed by Mil. R. Evid. 403 concerns.

                                Prejudice to Appellant

       Having determined the military judge improperly admitted evidence under Mil
R. Evid. 404(b), we must now determine whether this error resulted in material
prejudice to appellant’s substantial rights. Article 59(a), UCMJ. “We evaluate
prejudice from an erroneous evidentiary ruling by weighing (1) the strength of the
government’s case, (2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in question.” United States
v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citing United States v. Weeks, 20 M.J.
22, 25 (C.M.A. 1985). Appellant was not materially prejudiced by the military
judge erroneously admitting some uncharged acts.

       Here, the government’s case was strong. In addition to JC’s testimony
recalling all of the details of appellant’s assaults against her, the government also
corroborated her testimony with several other witnesses, an audio recording, photos
of injuries, and appellant’s own statements.

        Four witnesses corroborated JC’s testimony. JC’s friend, SO, testified JC
called her after the assault in Specification 3 of Charge III. JC’s brother, BC, sister-
in-law, CC, and friend, GS all testified JC told them appellant physically and
sexually assaulted her. SO testified she observed injuries on JC’s shoulder, arms,
wrist, and face. SO took photos of these injuries which were admitted into evidence
at trial. These injuries were further corroborated by CC, who testified she observed
these injuries on JC in person.

       The government also admitted into evidence a recording from August 2013,
retrieved from appellant’s cell phone. The recording contained audio of JC arguing
with appellant about how he sexually abused her “all of the time.”

       The government’s case was also strengthened by appellant’s own statements
to JC in a handwritten letter in which appellant admitted to “violating” JC.
Appellant wrote:

      [JC], especially you – who are so fragel (sic), so tender and sensitive
      towards me – deserve boundaries. You have them and you know what
      they are when they have been violated – AND I have violated them



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      indeed! Since our wedding day I have exercised free reign over your
      body and thought that that was okay, that as your husband that was my
      right. What age am I living in, 1613? […] I have violated you, our
      marriage, and our wedding vows. I have been that husband that no girl
      dreams and every father fears – I have been no husband at all.

       The defense case was not strong. The crux of appellant’s defense was that
none of the charged allegations occurred and JC was fabricating the allegations as
part of the divorce and child custody dispute. The four corroborating witnesses,
photos of injuries, audio recording, and appellant’s handwritten letter to JC undercut
the defense’s theory of the case.

       The materiality and quality of the improperly admitted uncharged acts were
low. The uncharged acts consisted of much less serious offenses or crimes than the
charged offenses. The minimal relevance of the uncharged acts, which warranted
their exclusion, negates their prejudicial impact on the proceedings.

      Accordingly, we find the military judge’s ruling under Mil R. Evid. 404(b)
harmless because the government’s case was strong and appellant’s defense case was
weak. See United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (holding that
when the remainder of the government’s case was strong and the defense presented
no evidence to contradict it, instead relying “on suggestion and insinuation,” the
Mil. R. Evid. 404(b) error was harmless); United States v. Corbett, 29 M.J. 253, 256
(C.M.A. 1989) (determining inadmissible Mil. R. Evid. 404(b) evidence had a
minimal effect on the members considering all the other evidence presented at trial
and the inadmissible evidence’s tenuous relevance).

                          Ineffective Assistance of Counsel

       To establish ineffective assistance of counsel, an appellant must demonstrate
both (1) his counsel’s performance was deficient, and (2) the deficiency resulted in
prejudice. United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). In order to establish deficient
performance, an appellant must establish that counsel’s “representation amounted to
incompetence under ‘prevailing professional norms.’” Harrington v. Richter, 562
U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).

       Appellant claims his trial defense counsel were ineffective for failing to
present evidence of his “pertinent character traits.” Appellant does not specify
which character traits. However, appellant references a forensic psychologist report
conducted of appellant and submitted with his R.C.M. 1105 matters. Appellant
directs this court’s attention to a portion of the report, which states, “[…] anger and
aggression were specifically considered and neither was not found to be a manifest
problem. His level of anger-proneness appeared to be similar to that of the average



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individual. There was no evidence of sadistic personality features. Neither was
there evidence of serious sexual psychopathology.” Appellant appears to be
referencing evidence of a character for peacefulness. 13

       We find trial defense counsel’s election to not present evidence of appellant’s
character for peacefulness to be a reasonable trial strategy. Had defense counsel
presented this evidence, the government would have been permitted to rebut
defense’s assertion that appellant is a peaceful person. Moreover, we find the lack
of evidence of appellant’s character for peacefulness did not prejudice appellant.
Appellant’s own words to JC in a text message, “I’m still a bitter angry man. And I
have impulses to cause hurt not only to myself but to those around me,” greatly
undermined any potential evidence of appellant’s peaceful character. Additionally,
appellant’s handwritten letter to JC, JC’s testimony, and the testimony of four other
witnesses contradicted appellant’s possession of a peaceful character.

      Therefore, we find appellant has failed to meet his burden of showing he was
denied effective assistance of counsel.

                                   CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                        FOR THE COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court


13
  To the extent appellant may also be referencing a “good soldier defense,” we note
Mil R. Evid. 404 was modified by the National Defense Authorization act for Fiscal
Year 2015, Pub. L. No. 113-291, § 536, 128 Stat. 2268 (19 December 2014).
Appellant’s case was tried after this date. The modified rule prohibits an accused
from offering evidence of his general military character for sexual assault offenses
and “any other offense in which evidence of general military character of the
accused is not relevant to any element of an offense for which the accused has been
charged.” Mil. R. Evid. 404(a)(2)(A) (2016 ed.). Even if appellant could have
presented such evidence, we again note, it would have permitted the government to
rebut this evidence with a deluge of appellant’s specific violent acts. We find trial
defense counsel’s election to not present evidence of appellant’s general military
character to be a reasonable trial strategy.


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