

   
   
   
   U.S. v. Wright



United States, Appellee
v.
David WRIGHT III, Senior Airman
U.S. Air Force, Appellant
 
No. 99-0318
Crim. App. No. 32731
 
United States Court of Appeals for the Armed
Forces
Argued October 20, 1999
Decided August 31, 2000
CRAWFORD, C.J., announced the judgment of
the Court and delivered an opinion in which COX, S.J., joined. SULLIVAN
and EFFRON, JJ., each filed an opinion concurring in part and in the result.
GIERKE, J., filed an opinion concurring in part and dissenting in part.
Counsel
For Appellant: Major Stephen P. Kelly
(argued); Lieutenant
Colonel Jeanne M. Rueth and Captain
Tishlyn Taylor (on brief); Lieutenant Colonel Ray T. Blank, Jr.
For Appellee: Captain James C. Fraser
(argued); Colonel
Anthony P. Dattilo, Lieutenant Colonel
Ronald A. Rodgers,
and Captain Mitchel Neurock, USAFR
(on brief); Captain Steven D. Dubriske.
Military Judge: John J. Powers
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

 
Chief Judge CRAWFORD announced the judgment
of the Court and delivered an opinion in which Senior Judge COX joined.
Appellant was tried by a general court-martial
from March 26 to 29, 1997, at Kadena Air Base, Japan. He was convicted
in accordance with his pleas, of indecent assault on Airman First Class
(A1C) P in October 1996; and contrary to his pleas, of indecent assault1
on A1C D in April 1996; housebreaking2
of the dormitory room of A1C P in October 1996; and assault consummated
by a battery3 on A1C D
in August 1996, in violation of Articles 134, 130, and 128, Uniform Code
of Military Justice, 10 USC §§ 934, 930, and 928, respectively.
A panel composed of officer members sentenced him to a bad-conduct discharge,
confinement for 6 months, 3 months hard labor without confinement, and
reduction to the grade of E-3. The convening authority approved the sentence
except for hard labor without confinement exceeding one month. The Court
of Criminal Appeals affirmed the findings and sentence. 48 MJ 896 (1998).
We review the following issues:

I

WHETHER THE MILITARY JUDGE ERRED WHEN HE
ALLOWED
TRIAL COUNSEL TO PRESENT TESTIMONY OF A PSYCHOLOGIST
TO IMPERMISSIBLY BOLSTER THE CREDIBILITY OF A KEY GOVERNMENT WITNESS.

II

WHETHER ALLOWING EVIDENCE OF OTHER SEXUAL
MISCONDUCT TO SHOW PROPENSITY UNDER MILITARY RULE OF EVIDENCE
413 VIOLATES THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE CONSTITUTION.

We shall discuss the issues in reverse order.

Issue II
The constitutionality of a statute is a question
of law; therefore, the standard of review is de novo. United
States v. Brown, 25 F.3d 307, 308 (6th Cir. 1994). Appellant
claims that Mil. R. Evid. 413 violates both the Due Process and Equal Protection
Clauses of the United States Constitution. With regard to his due process
claim, appellant argues that the historical proscription against use of
propensity evidence has created a "fundamental" right against admission
of such evidence. As to the equal protection claim, appellant argues that
the standard to be applied is strict scrutiny and that the Government is
unable to show a compelling interest in its differing treatment of sexual
offenders versus others who engage in criminal activity. The Government
disagrees.

FACTS
In this case the Government sought to use evidence
pertaining to the indecent assault on A1C P in October 1996 as propensity
evidence to prove that appellant also indecently assaulted A1C D in April
1996. Trial defense counsel conceded that evidence of the assault on A1C
P would properly come in under Mil.R.Evid. 404(b) to prove intent with
respect to the charge of housebreaking of AlC Ps dormitory room. The defense
made a motion in limine, however, to protest admission of such evidence
to prove propensity and to request that the military judge "preclud[e]
trial counsel and any Government witness from testifying about, mentioning
or otherwise alluding to the proffered evidence."
Trial counsel asserted that the propensity
evidence was admissible in order to prove the accuseds intent to sexually
assault A1C P after breaking into her room. Noting that the members would
already know of the assault by virtue of appellants guilty plea to that
assault, trial counsel reasoned that "Rule 403 should not exclude the evidence
because its going to be in front of the members anyway, hence any prejudicial
impact is going to be there, no matter what."
Trial counsel supported its admission to prove
propensity under Rule 413, noting the misconduct evidence was charged,
so it was not subject to Mil.R.Evid. 404(b).
The military judge determined that the alleged
assault against A1C P could be admitted for the purpose of demonstrating
appellants propensity to commit similar sex offenses as charged. The following
findings of fact and law were made:


1. The Accused has been found guilty, pursuant
to his pleas, of unlawful entry of Airman [P]s dormitory room on 18 October
1996 and indecent assault on Airman [P] once he was inside the room.
2. The indecent assault occurred while Airman
[P] was asleep on her bed in the early morning hours at approximately 0500.
The Accused committed the assault by placing his hand inside her underwear
and touching her vaginal area.
3. The Accused is also charged with rape of
Airman [D] on 26 April 1996, indecent assault of Airman [D] in August 1996,
as well as housebreaking of Airman [P]s room on 16 [sic] October 1996,
that is, unlawfully entering her room with the intent to commit the criminal
offense of indecent assault.
4. In order to prove the housebreaking offense,
the facts of the indecent assault to which the accused has pleaded guilty
would be entered into evidence as part of the facts and circumstances surrounding
the commission of the offense to try and prove the Accuseds intent.
5. With regard to the alleged rape, the proffer
in Trial Counsels brief states that Airman [D] will testify that the alleged
rape occurred while she was asleep in the early morning hours. This allegedly
occurred approximately six months prior to the indecent assault of Airman
[P].
6. With regard to the alleged indecent assault
of Airman [D], it is proffered that she will testify that the assault occurred
when the Accused placed his hand on her vaginal area when she was bending
over at work in the Dental Clinic. This allegedly occurred approximately
two months prior to the assault on Airman [P].
7. In the instant case, it is charged misconduct
that the Government contends the triers of fact should be entitled to consider
for its bearing on the offenses to which the Accused has pleaded not guilty.
8. The spill over instruction states that each
offense must stand on its own, and the trier of fact must keep the evidence
of each offense separate. In other words, proof of one offense carries
with it no inference that the Accused is guilty of any other offense.
9. Subsequently, M.R.E. 413 was enacted which
states that [sic] in a criminal case in which a defendant is accused of
an offense of sexual assault, evidence of the defendants commission of
another offense or offenses of sexual assault is admissible and may be
considered for its bearing on any matter which is relevant. In other words,
even uncharged misconduct of another sexual assault could be admissible
to show an Accuseds propensity to commit the charged sexual assault.
10. The Court finds that the indecent assault
committed upon Airman [P] on 18 October 1996 - and I may have misspoke
and said 16 October in one of my earlier findings, but I meant 18 October.
The Court finds that the indecent assault committed upon Airman [P] on
18 October 1996 may be considered by the Court members, along with any
other evidence properly admitted on the other charged offenses, for its
bearing on the guilt or innocence of the Accused.
The Court finds that the indecent assault is
a charged offense which will be admitted into evidence in order to try
and prove the Specification of Charge II, that it is sufficiently similar
to the alleged rape in that it occurred in the early morning hours while
the victim was asleep, that it is sufficiently similar to the alleged assault
on Airman [D] in that it involved an assault by touching the vaginal area,
and that the indecent assault of Airman [P] was sufficiently proximate
in time to the other offenses, so therefore the probative value of considering
this sexual assault for its bearing on the other offenses is not substantially
outweighed by the danger of unfair prejudice.
What I will do is devise a modified spill over
instruction because I still intend to advise the Court members of the spill
over instruction and that, while they may consider this evidence for its
possible bearing on the other offenses, they must do so with caution in
view of the concern expressed in the spill over instruction.


In conclusion, the military judge asserted the
constitutionality of Rule 413, recognizing other jurisdictions allowance
of admission of such evidence.

LAW
Prior to Rule 413,4
character evidence could be presented by means of opinion or reputation
evidence. The then-Rules of Evidence specifically precluded character
evidence as circumstantial proof of conduct. However, Congress approved
Fed. R. Evid. 413-415 as part of the Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, Title XXXII, § 320935(a). Rule 413(a)
reads:



In 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.



Rule 413(d) contains a definition of "offenses
of sexual assault," which includes the charges in this case.

Congressional Record
Speaking on the House floor, Congresswoman
Susan Molinari stated: "The new rules will supersede in sex offense cases
the restrictive aspects of Federal Rule of Evidence 404(b)." Contrasted
to Rule 404(b)s "general prohibition" against propensity evidence, "the
new rules for sex offense cases authorize admission and consideration of
evidence of an uncharged offense for its bearing on any matter to which
it is relevant." See Fed.R.Evid. 413(a).



This includes the defendants propensity
to commit sexual assault ... and assessment of the probability or improbability
that the defendant has been falsely or mistakenly accused of such an offense.
In other respects, the general standards of the rules of evidence will
continue to apply, including ... the courts authority under evidence rule
403 to exclude evidence whose probative value is substantially outweighed
by its prejudicial effect.... The practical effect of the new rules is
to put evidence of uncharged offenses in sexual assault ... cases on the
same footing as other types of relevant evidence that are not subject to
a special exclusionary rule. The presumption is in favor of admission.



140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994).
Thus, the legislative history shows that Rule
413 not only creates an exception to Rule 404(b)s general prohibition
against the use of a defendants propensity to commit crimes but also it
is subject to Rule 403.
While some argue that character evidence may
be overestimated by jurors,5
the new rules allow the public to accept jury verdicts and controls to
some extent the legitimacy and acceptability of acquittals in criminal
cases. Jack B. Weinstein, Some Difficulties in Devising Rules for Determining
Truth in Judicial Trials, 66 Colum. L. Rev. 223, 225-27 (1966); David
P. Bryden and Roger C. Park, "Other Crimes" Evidence in Sex Offense
Cases, 78 Minn. L. Rev. 529, 543 (1994); cf. Charles Nesson,
The
Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts,
98 Harv. L. Rev. 1357, 1368 (1985)(arguing that the need "to promote public
acceptance of verdicts" can better explain many evidentiary rules). This
fear does not apply equally to the military because panel members are selected
based on their "age, education, training, experience, length of service,
and judicial temperament." Art. 25(d)(2), UCMJ, 10 USC § 825(d)(2).
Just as the Supreme Court has recognized, the
judiciary is not a rulemaking body. The new Rules reflect a political decision
that there should be a greater range of admissible evidence in criminal
and civil actions involving specific sexual assault crimes. The scientific
community is divided on the question of recidivism for sexual offenders.
Some have found a rate of recidivism is very high for sexual offenders6
while some have found the rate lower for rapists than for burglars, drug
offenders, or robbers.7
Even with this decision, Congress enacted the Rules. Thus, unless these
Rules are unconstitutional, we are bound by the Rules.

Constitutional Challenge
Appellant makes a facial challenge to the Rule
and challenges it as applied. The presumption is that a rule of evidence
is constitutional unless lack of constitutionality is clearly and unmistakably
shown. National Endowment for the Arts v. Finley, 524 U.S. 569,
580 (1998) ("Facial invalidation is, manifestly, strong medicine that
has been employed by the Court sparingly and only as a last resort.");
United
States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to
a legislative act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid."). Appellant must show that
Rule 413 "offends some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental." Montana
v. Egelhoff, 518 U.S. 37, 43-45 (1996) (examining historical practices
on due process challenges). The question is whether "this type of evidence
[Rule 413] is so extremely unfair that its admission violates fundamental
conceptions of justice." Dowling v. United States, 493 U.S. 342,
352, 353 (1990)(evidence of acquittal admissible because the evidence was
"at least circumstantially valuable in proving petitioners guilt").
The Supreme Court has "defined the category
of infractions that violate fundamental fairness very narrowly." Id.
at 352. As the Court explained:



Judges are not free, in defining "due process,"
to impose on law enforcement officials [their] "personal and private notions"
of fairness and to "disregard the limits that bind judges in their judicial
function." Rochin v. California, 342 U.S. 165, 170, 72 S. Ct. 205,
208, 96 L.Ed. 183 (1952).... [They] are to determine only whether the action
complained of ... violates those "fundamental conceptions of justice which
lie at the base of our civil and political institutions," Mooney v.
Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 341, 79 L.Ed. 791 (1935),
and which define "the communitys sense of fair play and decency," Rochin
v. California, supra, at 173, 72 S. Ct., at 210.



493 U.S. at 353, quoting United States v. Lovasco,
431 U.S. 783, 790 (1977). The Rule would be fundamentally unfair if it
undermines the presumption of innocence and the requirement that the prosecution
prove guilt beyond a reasonable doubt. See Estelle v. McGuire,
502 U.S. 62, 78 (opinion of OConnor, J.). In rejecting a challenge to
the Texas habitual criminal offenders statute, the Court noted that "it
has never been thought that [the Courts Due Process Clause] cases establish
this Court as a rulemaking organ for the promulgation of state rules of
criminal procedure." Spencer v. Texas, 385 U.S. 554, 564 (1967).
As noted by the Supreme Court, we must recognize,
as reinforced in United States v. Scheffer, 523 U.S. 303, 118 S.
Ct. 1261 (1998), that the President has the ultimate authority for the
enactment of the Rules of Evidence that this Court determines satisfy the
Constitution.

Protection
The Federal courts examining the new rules
have uniformly upheld the rules while emphasizing the importance of a Rule
403 balancing test. United States v. Mound, 149 F.3d 799, 800 (8th
Cir. 1998) ("In considering evidence offered under Rules 413, 414, and
415, a trial court must still apply Rule 403, though in such a way as to
allow [the new rules their] intended effect."), cert. denied, 525
U.S. 1089 (1999); United States v. Castillo, 140 F.3d 874, 882 (10th
Cir. 1998) (the "Rule 403 balancing test applies to evidence admitted under
Rule 414"); United States v. Larson, 112 F.3d 600, 604-05 (2d
Cir. 1997)("We view Rule 403 analysis in connection with evidence offered
under Rule 414 to be consistent with Congresss intent...."); United
States v. Lawrence, 1999 U.S. App. LEXIS 16967 at 5 (6th
Cir. 1999)("Rule 403...is applicable in the Rule 414 context"). But the
courts of appeals do not require the trial judge to make specific findings
of fact as to Rules 403 and 413. See, e.g., Castillo,
140 F.3d at 884 (The "district court need not make detailed factual findings
in support of its Rule 403 determination. However, [b]ecause of the sensitive
nature of the balancing test in these cases, it will be particularly important
for a district court to fully evaluate the proffered Rule 413 ... evidence
and make a clear record of the reasoning behind its findings."). The Rule
403 balancing test should be applied "[i]n light of the strong legislative
judgment that evidence of prior sexual offenses should ordinarily be admissible[.]"
United
States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997).
In LeCompte, the Court held on government
appeal that it was reversible error to exclude evidence of prior acts of
child molestation. The incidents were separated by 8 years and the trial
judge excluded the evidence. On appeal the Court reversed, stating that
"we think the District Court erred in its assessment that the probative
value of [the] testimony was substantially outweighed by the danger of
unfair prejudice." Id. at 769. The prior charged acts were substantially
similar, and the lapse of time was less significant than might have appeared.
As to the danger of unfair prejudice and propensity evidence, "it is precisely
such holdings as that [by the District Court] that Congress intended to
overrule." Id. at 770.
Before admitting evidence under Rule 413, three
threshold findings are required:
l. The accused is charged with an offense of
sexual assault -- Mil.R.Evid. 413(a);
2. "[T]he evidence proffered is evidence of
the defendants commission of another offense of ... sexual assault";
and
3. The evidence is relevant under Rules 401
and 402. United States v. Guardia, 135 F.3d 1326, 1328 (10th
Cir. 1998).
Additionally, the Court must apply a balancing
test under Rule 403. Some of the factors to be examined when conducting
a balancing test are as follows:

Strength of proof of prior act - conviction
versus gossip;
probative weight of evidence;
potential for less prejudicial evidence;
distraction of factfinder; and
time needed for proof of prior conduct.

See United States v. Enjady, 134
F.3d 1427, 1433 (10th Cir.), cert. denied, 525 U.S. 887
(1998). Some others include:

temporal proximity;
frequency of the acts;
presence or lack of intervening circumstances;
and
relationship between the parties.

See Guardia, 135 F.3d at 1331.
Mr. David J. Karp, a drafter of the Rules,
has stated: "It is not expected, however, that evidence admissible pursuant
to proposed Rules 413-15 would often be excluded on the basis of Rule 403.
Rather, the effect of the new rules is to put evidence of uncharged offenses
in sexual assault ... cases on the same footing as other types of evidence
that are not subject to a special exclusionary rule. The presumption is
in favor of admission." 70 Chicago-Kent L. Rev. 15, 19 (1994).8
"The rule excluding uncharged misconduct is contrary to the trend in evidence
law towards free proof." 78 Minn. L. Rev. at 561. Additionally, "[j]urists
and scholars alike increasingly have agreed ... that technical rules of
evidence designed to prevent factfinders from making mistakes are, at best,
more trouble than they are worth." Id.; William L. Twining, Theories of
Evidence: Bentham and Wigmore (1985)(describing advocacy of free proof
and its current impact).
In addition to the Rule 403 balancing test,
the rules also protect (1) by limiting the uncharged misconduct to serious
offenses; (2) by requiring the evidence to meet the relevance requirements
of Rules 401-402 and enforced through Rule 104(b); (3) by requiring the
judge to conclude that the jury could find by preponderance of the evidence
that the offenses occurred, Huddleston v.
United States, 485 U.S. 681, 689-90 (1988); and (4) by the notice requirement
in Rule 413(b) which ensures that admission of the evidence does not threaten
the presumption of innocence.

EQUAL PROTECTION
We next consider the challenge to Rule 413
under the Equal Protection Clause. At trial the defense only raised a due
process challenge in the pleadings, but the judge did not rule on any constitutional
claim. However, both the due process and the equal protection challenges
were presented to the Court of Criminal Appeals. Thus, the constitutional
challenge based on equal protection is properly before us. See Taylor
v. Illinois, 484 U.S. 400, 406 n.9 (1988).
We conclude that the reasoning in Mound,
149 F.3d at 801 and Castillo, 140 F.3d at 883 provides ample justification
for rejecting the equal protection claim and we do so now.

DISCUSSION
This is the type of case in which this evidence
was designed to be admitted. The victim was too traumatized, intimidated,
and humiliated to file a complaint in the first instance. It was not until
AlC P filed her complaint that AlC D followed with hers. As the Supreme
Court observed in Huddleston: "[I]ndividual pieces of evidence,
insufficient in themselves to prove a point, may in cumulation prove it.
The sum of an evidentiary presentation may well be greater than its constituent
parts." 485 U.S. at 691.
The direct evidence in this case came from
the testimony of A1C D subject to examination by both sides and the members.
This evidence formed the basis for the charges against the appellant. The
incidents were recent and detailed. As with A1C P, A1C D was a contemporary
of the appellant and worked closely together in the dental clinic. There
is no question as to the identity of appellant. A1C Ds failure to report
and her maintaining of normal relationship with appellant until after the
incident with A1C P was put in context by the testimony of Dr. Greene.
Additionally, the interrelatedness of the evidence concerning A1C D and
A1C P did not consume more time than otherwise needed for this trial because
such evidence was needed to prove the charges.
We hold that the Rule is constitutional and
that the judge did not abuse his discretion in admitting the evidence concerning
A1C D.

FACTS  Issue I
A1C D testified that she was sexually abused
by her stepfather and that her mother refused to report the allegation.
A1C D stated as a result of that experience she was reluctant to report
sexual abuse. Normally, she dealt with abuse by pretending it really didnt
happen.
Defense counsel highlighted on cross-examination
that A1C D initially failed to report the sexual attack on April 26, 1996,
even though she had previously reported an unrelated incident of sexual
harassment. Likewise, it was brought out that A1C D enjoyed a normal interaction
with appellant. Her failure to report and relationship with appellant were
brought out to show that her actions were inconsistent with the alleged
sexual assault.
After this cross-examination, Dr. Greene testified
that the victims reactions were "consistent" with other victims of child
abuse. Because of her prior abuse, "she reported what we call emotional
anesthesia or an ability, a decreased emotional reactivity, decreased
involvement in her emotional life." The prior abuse had an impact upon
her "affective presentation." Dr. Greene explained: "Very often, when people
have been exposed to traumatic events in their lives, especially children
and adolescents, what youll find is a tendency to manage or attempt to
better manage their negative emotions by not dealing with them."
Dr. Greene also testified as to the impact
on the victim from her mothers failure to take action. Her mothers reaction
to her stepfather and the victims allegations at that time led her to
distrust other individuals. Rather than testifying about rape victims in
general, Dr. Greene testified to the reactions of the victim who had been
subject to child abuse. Her reaction was not necessarily common, but it
"certainly [was] not unexpected."



Q. Can you describe her affect?
 
A. Yeah, her affect was as I described before.
It was incongruent. Quite frankly, I was impressed that she was, that to
be reporting something that is or should be objectively traumatic, she
was able to report it with a fairly flat and neutral affect.




 





Q. And was there a way she should have responded
to having been raped?
A. That question is actually - Thats one of
the big problems in the whole area of dealing with victims of rape. We
have expectations about victims of rape and other sorts of traumatic events,
and our expectation is almost of the, well, is of the woman being terribly
devastated or the rape victim being terribly devastated by the rape. And,
you know, we have all these pictures in the media of a woman huddling behind
a blanket or behind a piece of furniture trying to protect herself and
shivering uncontrollably. Thats kind of what we expect, but we know when
we deal with these people as patients that the reaction to rape is very
variable. Some people show relatively minor response to having been raped,
and other people are devastated to the point of requiring hospitalization.
Q. Now, how would the history of Airman [D]
have affected her response and her decision not to report a rape?
A. Her history... Now, her - One of the things
that we know about her history is that she has always been, well, that
she has a history of sexual abuse and attempting to report the sexual abuse
to her mother, who was her primary care giver, and being, and a history
of not having anything being done about that. I mean, there was nothing
done; there was no consequence until she was an adult of any of the reports
that she made about her sexual abuse. And so, the history and her response,
well, her response and the issue of the rape is consistent with the history
of someone who has not benefited from reporting, whos not had any benefit
come of her telling her trusted care giver that she is being violated and
shes being assaulted.
Q. Are you familiar with the term "minimization"?
A. Yes.
Q. And what does that mean?
A. Minimization is the process of either affectively
or cognitively - and affect meaning, again, emotion; cognitively meaning
how we think about things - of downplaying the severity of an incident
so that its better able, again, to be handled; its better able to be
coped with. And we minimize all the time, I mean, there are times that
were insulted in the context of a discussion, or things happen to us at
work that are very negative, and rather than have the strong reaction that
we should, we go out of our way to sort of, to put it in a box or put it
in a, or think about it in a way that helps protect us and how we feel.



He also testified that A1C D



reported that this is her characteristic
style, that she prefers to handle things herself. And so, rather than making
big deals about things, shes very often, she reported a style that involves
kind of handling, making sure that she takes care of things herself.



When asked if this was common of "victims of childhood
sexual abuse," he responded that "[i]t is certainly not unexpected." When
Dr. Greene was asked if sexual-abuse victims like D would tend to minimize,
he testified:



The most striking example, what I saw was
the affective presentation, certainly. Her decision not to report is certainly
consistent with minimization as well. Her decision to take this, to not,
and to keep it to herself, and to not even consider it, and to engage in
all of the emotional processes required to help contain and better manage
emotional response to that trauma is certainly an example of minimization.
 

DISCUSSION


As this Court stated in United States v. Halford,
50 MJ 402, 404 (1999):



Expert testimony in sexual abuse cases may
take many forms. The expert may offer evidence that the characteristics
demonstrated by the victim lead to a diagnosis of "rape-trauma syndrome
... [which] is probative ... on the issue of consent by the victim." United
States v. Carter, 26 MJ 428, 429 (CMA 1988). Or, the expert may testify
that certain behavioral characteristics are consistent with a "rape trauma
model." United States v. Houser, 36 MJ 392, 394-96 (CMA), cert.
denied,
510 U.S. 864, 114 S. Ct. 182, 126 L.Ed.2d 141 (1993); see also
United States v. Reynolds, 29 MJ 105, 111 (CMA 1989)("[T]he plain
rule of law is that an experts testimony concerning rape-trauma syndrome"
is admissible); United States v. Lee, 28 MJ 52, 54-55 (CMA 1989)(admitted
testimony to show victim suffered from post-traumatic stress disorder);
United States v. Snipes, 18 MJ 172 (CMA 1984)(expert may testify
victims behavior is typical of abused child). However, the expert may
not testify concerning the credibility of the victim or other witnesses,
absent a proper foundation under Mil.R.Evid. 405.



Just as in Halford, the defense attacked
A1C Ds credibility on cross-examination relying on her failure to report
and her normal interaction with appellant, to show the inconsistency of
the alleged sexual assault. The prosecution, however, explained her actions
through the testimony of Dr. Greene, in particular the effect of the abuse
by her step-father and her mothers refusal to report his conduct. Trial
defense counsel did not question Dr. Greenes expertise or his ability
to link his expertise to the specific facts of the case.
Dr. Greene was well aware of his role. When
the defense tried to open the door by asking him if her responses were
"consistent with the possibility that rape occurred. Isnt that what you
were testifying about?," Dr. Greene responded, "I think that for me to
do that [respond as indicated], I would be usurping the responsibility
of the jury." The judge told counsel that Dr. Greene could not testify
"about credibility" but he could "testify concerning patterns of consistency
between the traits of victims and compare those with patterns in the victims
story...." When there was a possibility of inadmissible testimony, the
judge stepped in to exclude inadmissible evidence. Under the circumstances
of this case we hold that Dr. Greene did not impermissibly bolster the
credibility of A1C D.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 As a lesser-included
offense of rape.
2
He pleaded guilty to the lesser-included offense of unlawful entry.
3
As a lesser-included offense of indecent assault.
4
Both the Federal Rule and the Military Rule are virtually the same.
5
This rule has resulted in a substantial amount of commentary, much of it
favorable towards the Rule. Roger C. Park, David P. Leonard & Steven
H. Goldberg, Evidence Law 150 n. 96 (1998).
6
Joseph A. Aluise, Evidence of Prior Sexual Misconduct in Sexual Assault
and Child Molestation Proceedings: Did Congress Err in Passing Federal
Rules of Evidence 413, 414, and 415?, 14 J.L. & Pol. 153 (1998).
7See,
e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence
in Sex Offense Cases, 78 Minn. L. Rev. 529, 572 (1994) (citing statistics
from the Department of Justice).
8
Ms. Molinari said that Mr. Karps article "provided a detailed account
of the views of the legislative sponsors and the administration concerning
the proposed reform, and should also be considered an authoritative part
of its legislative history." 140 Cong. Rec. H8991.


SULLIVAN, J. (concurring in part and in the
result):
I would hold that Fed. R. Evid. 413, as incorporated
by Mil. R. Evid. 1102, was applicable to appellants court-martial in March
of 1997 and it was constitutional. See United States v. Enjady,
134 F.3d 1427, 1430 (10th Cir. 1998) (holding that Fed. R. Evid.
413 is facially constitutional because Fed. R. Evid. 403 balancing test
applies), citing Dowling v. United States, 493 U.S. 342,
352-53 (1990); accord United States v. Castillo, 140 F.3d
874, 881-83 (10th Cir. 1998). However, I agree with Judge Gierke
in his view that evidence of conduct that occurs after the charged offense
but before the trial is objectionable under Mil. R. Evid. 403. See
United States v. Matthews, No.99-0487, ___ MJ ___, ___ ( ) (Sullivan,
J., concurring in the result). *
Nevertheless, I would find no plain error here. See Article 59(a),
UCMJ, 10 USC § 859(a).
FOOTNOTE:
* My concurrence
in Matthews, which rested on Mil. R. Evid. 403's protection against
undue prejudice, is legally distinct from other cases in which this Court
has dealt with such evidence on grounds other than undue prejudice. E.g.,
United
States v. Caniete, 28 MJ 426, 427-28 (1989); United States v. Dorsey,
38 MJ 244, 247 (1993); United States v. Colon-Angueira, 16 MJ 20,
25 (1983), citing J. Wigmore, A Treatise on the Anglo-American
System of Evidence in Trials at Common Law § 399 (3d ed. 1940).


EFFRON, Judge (concurring in part and in the
result):
I agree with the principal opinion's treatment
of Issue I.
Issue II, as framed by appellant, is a facial
challenge to Rule 413. I agree that the constitutionality of Rule 413 may
be sustained by applying "the safeguards embodied in Rule 403[.]" United
States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998); see also
id. (setting forth specific factors that must be considered under
Rule 403 in a sexual assault case); and United States v. Guardia,
135 F.3d 1326, 1331 (10th Cir. 1998) (although the trial court is not required
to make detailed findings of fact under Rule 403, it is important that
the court "fully evaluate the proffered Rule 413 evidence and make a clear
record of the reasoning behind its findings").


GIERKE, Judge (concurring in part and dissenting
in part):
I agree with the majoritys decision regarding
Issue I. I disagree with its decision on Issue II.
At the outset, I decline to join the majoritys
advocacy of "free proof." ___ MJ at (16). Our charter is to interpret
and apply Rule 413, not to justify the wisdom of its promulgation.
I disagree with the majoritys conclusion that
this case "is the type of case in which this evidence was designed to be
admitted." ___ MJ at (17). I have grave doubts about the admissibility
of the indecent assault on A1C P to prove the offenses against A1C D. The
indecent assault on A1C P occurred on October 18, 1996, well after the
offenses against A1C D. The offenses against A1C D were alleged to have
occurred on April 26, 1996, 6 months before the indecent assault
on A1C P, and during August 1996, 2 months before the indecent assault
on A1C P.
While Rule 413 does not specifically set out
a temporal requirement, legislative and scholarly commentators strongly
suggest that an offense offered as evidence of propensity must precede
the offense that the evidence is offered to prove. A week after the evidentiary
changes were adopted, Senator Robert Dole, a co-sponsor of the changes,
described them on the Senate floor as "establishing a general presumption
that evidence of past similar offenses in sexual assault and child
molestation cases is admissible at trial." 140 Cong. Rec. S.12990 (daily
ed. September 20, 1994) (emphasis added); see also S. Saltzburg,
L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual
616-18 (4th ed. 1997), referring repeatedly to "history of similar
misconduct," "past similar transgressions," "past sexual offense evidence,"
"and "past sexual offenses." In the absence of persuasive federal authority
to the contrary, I conclude that Rule 413 does not authorize admission
of evidence of sexual offenses committed after the charged offense. Accordingly,
I would hold that the evidence was not admissible as propensity evidence
under Rule 413.
Turning to the issue of prejudice, I am not
convinced that the error was harmless. At trial the defense conceded that
the evidence of appellants indecent assault on A1C P was admissible under
Mil. R. Evid. 404(b), to prove his intent with respect to the alleged housebreaking.
The defense, however, contested admission of the evidence as propensity
evidence under Rule 413. After the military judge overruled the defense
objections, he compounded the error by permitting trial counsel to argue
propensity and instructing the members on the use of the evidence to show
propensity.
The credibility of A1C Ds testimony was seriously
undermined at trial. The court members did not believe her testimony entirely,
as evidenced by their findings. They found appellant not guilty of raping
A1C D (Charge I and its specification) but guilty only of indecent assault,
and not guilty of an indecent assault (specification 1 of Charge III) on
A1C D, but guilty only of an assault and battery. Under these circumstances,
I have "grave doubt" whether the error was harmless. Kotteakos v. United
States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248 (1946). Accordingly,
I would set aside the findings of guilty of indecent assault (Charge I
and its specification) and assault and battery (specification 1 of Charge
III), and authorize a rehearing on those offenses and the sentence.


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