                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                    Bartholomew M. BERRY, Sergeant
                         U.S. Army, Appellant

                               No. 04-0240

                        Crim. App. No. 20000960

       United States Court of Appeals for the Armed Forces

                        Argued October 20, 2004

                          Decided May 10, 2005

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

                                  Counsel

For Appellant: Captain Charles A. Kuhfahl Jr. (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
Sean S. Park (on brief); Colonel Mark Cremin.

For Appellee: Captain Michael D. Wallace (argued); Colonel
Steven T. Salata and Major Natalie A. Kolb (on brief).

Military Judge:    William T. Barto


  This opinion is subject to editorial correction before final publication.
United States v. Berry, No. 04-0240/AR



     Judge ERDMANN delivered the opinion of the court.

     After entering a guilty plea to the lesser included offense

of sodomy, Sergeant (SGT) Bartholomew M. Berry was tried by a

general court-martial on a number of offenses.   Berry was

convicted of the greater offense of committing sodomy by force

and without consent, making a false official statement,

committing an indecent act with another, and fraternization, in

violation of Articles 125, 107, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 907, 925, 934 (2000),

respectively.   Berry’s sentence, which was approved by the

convening authority, included a bad-conduct discharge,

confinement for twelve months, and forfeiture of all pay and

allowances.

     The sole issue before this court involves the admission of

evidence of a prior sexual assault under Military Rule of

Evidence (M.R.E.) 413.   At trial, Berry’s defense to the charge

of forcible sodomy was that Sergeant T (SGT T) had consented to

the oral sex incident that was the basis for the charge.     To

counter this defense the Government sought to introduce

testimony from LS, who testified he had been the victim of a

similar act by Berry eight years earlier.   The military judge

found that the testimony was relevant and admissible under

M.R.E. 413 and that ruling was affirmed by the United States



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United States v. Berry, No. 04-0240/AR

Army Court of Criminal Appeals in an unpublished opinion.

United States v. Berry, ARMY 20000960 (A. Ct. Crim. App. Dec.

18, 2003).

     We granted review of the Army court’s decision to determine

whether the military judge erred in admitting LS’s testimony

under M.R.E. 413.   We find that although the testimony was

relevant, the military judge erred in admitting it because he

failed to do an adequate balancing test under M.R.E. 403 and

that under a proper M.R.E. 403 balancing test, the testimony was

inadmissible.   We also find the error to be prejudicial.


                            BACKGROUND

     Berry’s conviction flows from events that occurred after a

barbecue at his residence attended by Berry, SGT T, and Private

First Class (PFC) H.   They drank a few beers at the barbecue and

then went to a bar in town where they continued drinking.     After

they had been at the bar a few hours, SGT T fell out of his

chair while reaching for a cigarette and the three decided to

return to Berry’s residence.   SGT T became sick when they

arrived at Berry’s residence and he threw up several times.    The

evidence at trial gave two different versions of the events that

followed.

     In Berry’s sworn statement, in which he admitted to

consensual sodomy with SGT T, Berry said that he helped SGT T

clean himself up and helped him into Berry’s bed.   He then


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United States v. Berry, No. 04-0240/AR

stated that he and SGT T began kissing and Berry “brought [SGT

T’s] pants down, and that’s when [the oral sex] happened.”     SGT

T did not tell Berry to stop, and Berry claimed that SGT T was

awake at the time although “he was going in and out, he was

pretty drunk.”   After the oral sex, Berry went to sleep and woke

up later to drive SGT T to pick up his daughter from day care.

     SGT T testified to a different version of events.    He

stated that he felt very dizzy and very sick when they left the

bar and that he threw up a number of times when they got back to

Berry’s residence.   After lying on Berry’s bed to sleep it off,

the next thing he remembered was looking up and seeing Berry on

top of him and kissing him.   He testified that he tried to stop

Berry, but that he could not move.    Berry then asked him if he

“wanted to f[---],” and he said no.   Berry told SGT T that he

had some condoms, and SGT T again said no.

     The next thing he remembered was that Berry’s “head started

moving down towards my genital area.”    Again SGT T “tried to

move and tried to push him off, but I couldn’t . . . . I felt

like I was paralyzed and I just could not move.”   The last thing

he remembered was “a warm sensation on my genital area, but I am

not sure because I don’t remember seeing him being on it . . .

I just remember him going down towards that area, and then a

sensation there of feeling that he was putting his mouth on my

genital area.”   SGT T also remembered someone trying to get his



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United States v. Berry, No. 04-0240/AR

underwear back on him and that Berry then woke him up to pick up

his daughter.

     In addition to the two conflicting accounts of the evening,

LS testified at trial over the objections of Berry’s defense

counsel.   LS was fifteen at the time of his testimony and he

testified regarding an encounter he had with Berry eight years

earlier when he was six and Berry was thirteen.   He and Berry

both resided in military housing in Hawaii.    According to LS,

one day they were playing with a group of children and Berry

called him over behind a tree.   Berry pulled his own pants down,

and “tried to get me to such [sic] on his penis.”   When LS said

no, Berry reached over and pulled his pants down and “said he’d

do it to me first.”   LS hesitated, but Berry convinced him and

then proceeded to suck on his penis.   Berry then said it was his

turn, and LS began to suck on Berry’s penis.   They were

interrupted when “a guy ran out,” and both of them ran away.      On

cross examination, LS admitted that there was no force used by

Berry but that Berry talked him into participating.

     The prosecution sought to have LS’s testimony admitted

under M.R.E. 413, stating that “it is relevant to Sergeant

Berry’s propensity to sexually assault those who are in a

position of vulnerability.”   Trial counsel also stated that the

evidence satisfied the M.R.E. 403 balancing test established by




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United States v. Berry, No. 04-0240/AR

this court in United States v. Wright, 53 M.J. 476 (C.A.A.F.

2000), and therefore was not overly prejudicial.

     Berry’s defense counsel objected to the admission of this

testimony on the basis that it was “extremely distracting, and

. . . extremely prejudicial.”   The defense argued that LS’s

memory of the event, on a scale of one to ten (with ten being

very clear), was only about a six.   With regard to the probative

value of the evidence, the defense counsel argued that it was

childhood sexual experimentation and that it took place eight

years prior to the event in question with no evidence that

anything of the kind happened in between.   He further argued

that there was no evidence of physical force or lack of consent.

The military judge found the testimony to be relevant and

admissible under M.R.E. 413.

     The military judge denied Berry’s motion to exclude LS’s

testimony as follows:

          The accused is charged with an offense of
          sexual assault . . . . The proffered
          evidence is evidence that the accused
          committed another act of or offense of
          sexual assault, and the evidence is
          relevant, under Military Rule of Evidence
          401 and 402. The proffered evidence involves
          conduct that occurred over eight years ago.
               The proffered evidence is similar to
          the charged misconduct because it involves
          taking advantage of a vulnerable victim.
          [LS] was, approximately, 6[]years old at the
          time of the alleged sexual assault by the
          accused, who, despite his own youth, is
          considered by the court to have acted upon



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United States v. Berry, No. 04-0240/AR

          someone of tender years who was unable to
          consent at the time.
               [SGT T] was also, apparently,
          vulnerable in that he was apparently
          unconscious or sleep [sic], or experiencing
          periods of partial consciousness, based on
          the government’s proffered [sic] at the time
          of the alleged assault by the accused.
               Both offenses involve homosexual
          fellatio performed by the accused on
          another; and this proffered evidence
          involves only a single act, potentially,
          established by a single witness. As such,
          the defense motion to exclude the testimony
          of [LS] is denied.


     In both his opening and closing statements, trial counsel

referred to Berry’s acts with LS and reminded the members that

the encounter could be considered relevant “because [Berry] took

advantage of a person in a vulnerable position just like he did

here in the case that you’re deciding.”   The military judge’s

instruction to the members with regard to LS’s testimony stated

that it could be considered “for the purpose of its tendency, if

any, to show that the accused has a propensity to commit

nonconsensual sexual acts against unusually vulnerable persons.”

     The Army court affirmed the ruling of the military judge

that LS’s testimony was relevant under M.R.E. 401 and 402.

Although the military judge did not articulate an M.R.E. 403

balancing test on the record, the Army court found that the

military judge had conducted a balancing test.   That conclusion

was based on the factual findings made by the military judge and

the arguments raised by the trial counsel regarding the factors


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United States v. Berry, No. 04-0240/AR

that must be considered in an M.R.E. 403 balancing test.

Because it found that the military judge had conducted the

required balancing test, the Army court reviewed his ruling for

abuse of discretion and found that he had not abused his

discretion in admitting the testimony of LS under M.R.E. 413.

     On appeal before this court, Berry argues that LS’s

testimony does not meet the threshold test for admissibility

because it is not logically relevant.    Berry further argues that

even if LS’s testimony is relevant, neither the military judge

nor the Army court did a proper balancing test as required by

M.R.E. 403 and by this court’s decision in Wright.    He suggests

that had they done so they would have concluded that the

testimony should not be admitted.    Berry concludes by arguing

that he was prejudiced by the erroneous admission of this

testimony.   In response, the Government argues that the

testimony is relevant and the military judge conducted the

required balancing test under M.R.E. 403 and properly concluded

that LS’s testimony should be admitted.




                                 8
United States v. Berry, No. 04-0240/AR

                              DISCUSSION

     The granted issue1 asks whether the military judge erred in

admitting evidence of uncharged sexual acts between Berry and LS

that occurred eight years earlier when Berry was thirteen and LS

was six.   This court has noted that inherent in M.R.E. 413 is a

general presumption in favor of admission.    See Wright, 53 M.J.

at 482-83.    However, we have also noted that it is a

“constitutional requirement that evidence offered under Rule 413

be subjected to a thorough balancing test” under M.R.E. 403.

United States v. Dewrell, 55 M.J. 131, 138 (C.A.A.F. 2001).

Where that balancing test requires exclusion of the evidence,

the presumption of admissibility is overcome.    See Wright, 53

M.J. at 482-83.


M.R.E. 413 Threshold Requirements

     This court has held that to admit evidence under M.R.E.

413, three threshold determinations must be made:

             1.   The accused is charged with an offense
                  of sexual assault -– [M.R.E.] 413(a);
             2.   “The evidence proffered is ‘evidence of
                  the defendant’s commission of another
                  offense of . . . sexual assault’”; and
             3.   The evidence is relevant under [M.R.E.]
                  401 and 402. United States v. Guardia,
                  135 F.3d 1326, 1328 (10th Cir. 1998).

     1
        WHETHER THE MILITARY JUDGE ERRED IN ADMITTING
     EVIDENCE   OF   UNCHARGED   HOMOSEXUAL    ACTS BETWEEN
     APPELLANT WHEN HE WAS THIRTEEN YEARS OLD, AND A SIX-
     YEAR-OLD BOY, EIGHT YEARS BEFORE THE CHARGED OFFENSE
     OF FORCIBLE SODOMY WITH AN ADULT SOLDIER.



                                  9
United States v. Berry, No. 04-0240/AR


Wright, 53 M.J. at 482.

     As the military judge noted, the first and second threshold

requirements were met because Berry was charged with forcible

sodomy without consent, which is an offense of sexual assault

under the UCMJ, and Berry’s conduct with LS falls under that

same definition.   See M.R.E. 413(d)(1) (defining “sexual

assault”).   Moving to the third threshold requirement, we must

determine whether the military judge abused his discretion in

finding LS’s testimony relevant under M.R.E. 401.   See United

States v. Gilbride, 56 M.J. 428, 430 (C.A.A.F. 2002) (citing

United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995)).    A

military judge abuses his discretion “if his application of the

correct legal principles to the facts . . . is clearly

unreasonable.”   United States v. Williams, 37 M.J. 352, 356

(C.M.A. 1993).

     Relevant evidence under M.R.E. 401 is “evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”    The

military judge found that “[t]he proffered evidence is similar

to the charged misconduct because it involves taking advantage

of a vulnerable victim.”   From strictly a propensity viewpoint,

the evidence does show that Berry had participated in similar

conduct in the past.   This evidence, therefore, does have some


                                10
United States v. Berry, No. 04-0240/AR

tendency to make it more probable that Berry committed a

nonconsensual act against a vulnerable person and we conclude

that the military judge did not abuse his discretion in finding

the testimony to be relevant.   See Wright, 53 M.J. at 480

(noting legislative history shows that Federal Rule of Evidence

(F.R.E.) 4132 creates an exception to M.R.E. 404(b)’s general

prohibition against the use of a defendant’s propensity to

commit crimes).


M.R.E. 403 Balancing Test

       Once the evidence meets these threshold requirements, a

military judge must apply the balancing test of M.R.E. 403 under

which the testimony may be excluded if its “probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the members.”   M.R.E.

403.   In conducting the M.R.E. 403 balancing test a military

judge should consider the following factors:   the strength of

the proof of the prior act; the probative weight of the

evidence; the potential to present less prejudicial evidence;

the possible distraction of the fact-finder; the time needed to

prove the prior conduct; the temporal proximity of the prior



2
  M.R.E. 413 was adopted from F.R.E. 413, and the analysis of
M.R.E. 413 in the Manual for Courts-Martial, United States (2002
ed.)(MCM), references the legislative history of F.R.E. 413
regarding congressional intent for the rule. MCM, Analysis of
the Military Rules of Evidence A22-37.

                                 11
United States v. Berry, No. 04-0240/AR

event; the frequency of the acts; the presence of any

intervening circumstances; and the relationship between the

parties.   Wright, 53 M.J. at 482.

     The military judge made minimal findings relating to the

Wright factors and did not articulate any balancing of those

factors on the record.   Where the military judge is required to

do a balancing test under M.R.E. 403 and does not sufficiently

articulate his balancing on the record, his evidentiary ruling

will receive less deference from this court.   See Dewrell, 55

M.J. at 138 (citing United States v. Manns, 54 M.J. 164, 166

(C.A.A.F. 2000)); United States v. Bailey, 55 M.J. 38, 41

(C.A.A.F. 2000) (citing Manns, 54 M.J. at 166).

     The Wright elements addressed by the military judge tend to

support admission of the testimony:   the proof of the prior

similar act was strong because it involved the testimony of the

only witness who had first-hand knowledge about the event; there

was only one prior act which, as noted, could be established by

a single witness and would not take an inordinate amount of

time; and the act occurred eight years ago between acquaintances

where the victim was in a vulnerable position.




                                12
United States v. Berry, No. 04-0240/AR

     The military judge failed to address the relevant remaining

Wright factors:3 the probative weight of the evidence, the

frequency of the acts, the temporal proximity of the prior act

and the presence of intervening circumstances, and the

distraction of the fact-finder.

     While the military judge noted that the prior incident

occurred eight years earlier where the victim was in a

vulnerable position, he failed to analyze further the

circumstances of the two incidents with regard to the probative

weight of the previous incident.       The incident with LS occurred

outside during the day between children, while the incident with

SGT T occurred at night in private quarters between two adults

after an evening of drinking.




3
  We note that one of those factors not considered by the
military judge is whether it would have been possible to admit,
for the same purpose, evidence that was less prejudicial than
LS’s testimony. The defense argued on appeal before the Court
of Criminal Appeals and before this court that a statement by
Berry admitting to the encounter with LS was available for that
purpose and should have been considered by the military judge.
However, the issue of whether less prejudicial evidence was
available was not raised by the defense at trial and Berry’s
statement was not admitted by the Court of Criminal Appeals. We
make no decision as to whether this statement would have been
admissible at the trial level, we simply note that the statement
is not part of the record on appeal. We must evaluate the
military judge’s ruling based on what was known to him at the
time of trial. Accordingly, we have denied Berry’s “Motion to
Attach Defense Appellate Exhibit A,” filed with this court on
October 18, 2004, and will not consider the substance of Berry’s
statement concerning the prior event.

                                  13
United States v. Berry, No. 04-0240/AR

       The incident with LS occurred only once, eight years prior

to Berry’s encounter with SGT T, when Berry was thirteen years

old.   The length of time between the events alone is generally

not enough to make a determination as to the admissibility of

the testimony.   The circumstances surrounding the individual and

the events that transpired in the intervening period must be

taken into consideration.   Where a defendant was an adult at the

time he committed the prior sexual assault, this court has found

incidents occurring more than eight years prior to the charged

incident to be relevant under M.R.E. 413.   See Dewrell, 55 M.J.

at 137-38 (finding incidents occurring approximately seven to

ten years earlier admissible); Bailey, 55 M.J. at 41 (finding

incidents occurring three and one-half and ten years prior

admissible).   A similar finding is not readily made where a

prior incident is between children or adolescents.

       In United States v. McDonald, 59 M.J. 426 (C.A.A.F. 2004),

we evaluated whether evidence of sexual acts that occurred

twenty years prior to the charged act, when the defendant was

thirteen, was erroneously admitted for the purpose of showing

intent or a common plan under M.R.E. 404(b).   We concluded that

the evidence was not relevant under that rule, and in so doing

we noted the absence of “evidence of that 13-year-old

adolescent’s mental and emotional state, sufficient to permit




                                 14
United States v. Berry, No. 04-0240/AR

meaningful comparison with Appellant’s state of mind as an adult

20 years later.”   Id. at 430.

     During the eight years between the two incidents Berry grew

from a child of thirteen to an adult of twenty-one.   There was

no evidence introduced to show that Berry engaged in similar

acts between the time he was thirteen and the time of the

incident with SGT T eight years later.   Consistent with

McDonald, we also note here that there is no evidence suggesting

that Berry’s mens rea at twenty-one was the same as it was when

he was a child of thirteen.   As one scholar has stated:

            Between the ages of twelve and seventeen,
            adolescents undergo a critical period of
            transition during which they experience
            rapid transformations in emotional,
            intellectual, physical, and social
            capacities. Even older adolescents, whose
            raw intellectual capacities may rival those
            of adults, have less experience on which to
            draw in making and evaluating choices. In
            short, adolescents are not simply miniature
            adults.

Kim Taylor-Thompson, States of Mind/States of Development, 14

Stan. L. & Pol’y Rev. 143, 152-53 (2003) (footnotes omitted).

When projecting on a child the mens rea of an adult or

extrapolating an adult mens rea from the acts of a child,

military judges must take care to meaningfully analyze the

different phases of the accused’s development rather than treat

those phases as being unaffected by time, experience, and

maturity.   Where a military judge finds that the prior “sexual



                                 15
United States v. Berry, No. 04-0240/AR

assault” acts of a child or adolescent are probative to an act

later committed as an adult, such a determination must be

supported in the record by competent evidence.   Consequently the

passage of eight years in this case constitutes a notable

intervening circumstance between the two events at issue when

coupled with Berry’s growth from childhood to adulthood during

that time.

     We then turn to another of the Wright factors not addressed

by the military judge -- the possible distraction of the fact-

finder that could result from admission of the testimony.     In

Bailey we noted that the danger considered by this factor is

that admission of the evidence may “result in a distracting

mini-trial on a collateral issue.”   Bailey, 55 M.J. at 41.

     The prosecution’s opening statement did not begin with a

reference to the facts of the present case but rather with a

reference to the earlier incident:   “[I]n 1992, the accused was

a 13-year old living in Hawaii on a military installation.    He

called a neighborhood child, a six-year old boy behind a tree,

he pulled down the little boy’s pants and he convinced him to

allow him to suc[k] on the child’s penis.”

     In his closing statement the prosecutor reminded the

members that Berry “convinced [a] little boy to try to suck on

his penis[]” even though “the little boy said, no.”   He noted

that the encounter with LS could be considered relevant “because



                               16
United States v. Berry, No. 04-0240/AR

[Berry] took advantage of a person in a vulnerable position just

like he did here in the case that you’re deciding.”

     Under these circumstances it is evident that a “distracting

mini-trial” on the collateral issue of the LS incident resulted

from the admission of LS’s testimony and the prosecution’s

pointed references.   The emphasis on “a neighborhood child,” “a

little boy,” and “a six year-old boy” all characterized Berry in

the eyes of the members as a child molester, one of the most

unsympathetic characterizations that can be made.

     Considering the already limited probative value of LS’s

testimony, that value clearly was outweighed by the danger that

the members were distracted from considering his testimony for

its proper purpose.   Applying the appropriate deference to the

ruling of the military judge, we find that LS’s testimony fails

the M.R.E. 403 balancing test and that the military judge’s

decision to admit LS’s testimony was in error.


Prejudice

     “A finding or sentence of court-martial may not be held

incorrect on the ground of an error of law unless the error

materially prejudices the substantial rights of the accused.”

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).   For a

nonconstitutional error such as this one, the Government has the

burden of demonstrating that “the error did not have a

substantial influence on the findings.”   United States v.


                                17
United States v. Berry, No. 04-0240/AR

McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003); see also United

States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001).

     In evaluating whether erroneous admission of Government

evidence is harmless, this court uses a four-part test,

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.   See McDonald, 59 M.J. at 430 (citing United States v.

Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)).

     The central question with regard to this specification was

whether SGT T had in fact consented to the sodomy or whether

Berry had taken advantage of him when he was in a vulnerable

drunken state.   The Government evidence on this issue consisted

of expert testimony speculating that SGT T had been drugged and

SGT T’s vague testimony regarding the incident.   The defense

submitted no evidence, but set forth Berry’s version of events

through cross-examination of the witnesses and his sworn

statement in which he admitted to consensual sodomy.   The result

was a “he said/he said” case, where SGT T’s credibility and the

effectiveness of the defense cross-examination were all that the

members had to rely upon.

     LS’s testimony added the first-hand account by a fifteen-

year-old boy that he was sodomized at the age of six by Berry.

Even though the testimony was admitted for the limited purpose



                                18
United States v. Berry, No. 04-0240/AR

of showing that Berry had a propensity to commit nonconsensual

sexual acts against unusually vulnerable persons, due to the

inflammatory nature of the testimony and the emphasis given the

testimony by the Government, it was likely considered by the

members as much more than propensity evidence.   Berry became not

just a soldier who stood accused of forcible sodomy, but rather

a child molester who was charged with the offense of forcible

sodomy.   Based upon our review of the record, it appears that

LS’s testimony improperly tipped the balance of the evidence and

the Government has not met its burden of demonstrating that this

improperly admitted evidence “did not have a substantial

influence on the findings.”   McCollum, 58 M.J. at 342.

     Finding that Berry was prejudiced by the military judge’s

error we turn to whether, if a rehearing on the affected

findings is deemed impracticable, reassessment would be

appropriate.   We find that, considering the inflammatory nature

of the evidence to which the members were erroneously exposed,

it would not be possible to “reliably determine what sentence

would have been imposed at the trial level if the error had not

occurred.”   United States v. Sales, 22 M.J. 305, 307 (C.M.A.

1986).    Reassessment, therefore, is not appropriate.




                                 19
United States v. Berry, No. 04-0240/AR

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed.   That part of the finding of the

specification of Charge II stating “by force and without the

consent of the said Sergeant [T]” and the sentence are set

aside.   The remainder of the specification of Charge II and the

remaining findings of guilty are affirmed.   The record of trial

is returned to the Judge Advocate General of the Army.   A

rehearing on the affected finding and sentence is authorized.

If a rehearing on the affected finding is deemed impracticable,

a rehearing may be held on the sentence alone.




                                20
United States v. Berry, No. 04-0240/AR


     CRAWFORD, Judge (concurring in the result).

     I agree that the military judge abused his discretion by

conducting a flawed analysis under Military Rule of Evidence

(M.R.E.) 403, and would reverse on that ground.    However, I

cannot join in the majority’s reasoning because the judge also

abused his discretion by determining evidence of Appellant’s

childhood act to be logically relevant under M.R.E. 401.

     To be legally relevant, evidence must first be logically

relevant.    If Appellant’s childhood sexual act is not legally

relevant to show his propensity to commit similar acts as an

adult because “there is no evidence suggesting that Berry’s mens

rea at twenty-one was the same as it was when he was a child of

thirteen,”   __ M.J. (15), then it was not logically relevant to

show his propensity to commit similar acts in the first place.

     Relevant evidence under M.R.E. 401 is “evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”   In this

case, the military judge found that “[t]he proffered evidence is

similar to the charged misconduct because it involves taking

advantage of a vulnerable victim.”   Without elaboration, the

majority accepts that similarity of conduct as sufficient to

establish logical relevance.   Given the facts of this case,
United States v. Berry, No. 04-0240/AR


however, and considering the purpose for which the evidence was

offered, logical relevance requires more.

      The Government offered Appellant’s childhood act under

M.R.E. 413, which permits introduction of so-called “propensity

evidence,” i.e., “[t]he rule permits the prosecution to use

evidence of the accused's uncharged past sexual assaults for the

purpose of demonstrating his propensity to commit the charged

offenses.”   United States   v. Parker, 59 M.J. 195, 198 (C.A.A.F.

2003)(citation and internal quotation marks omitted).       The

military judge denied the defense’s motion to exclude LS’s

testimony and instructed the members that they may consider LS’s

testimony “for the purpose of its tendency, if any, to show that

the accused has a propensity to commit nonconsensual sexual acts

against vulnerable persons.”   To be logically relevant to this

purpose, the evidence must have some “tendency to make the

existence of” appellant’s propensity “more probable . . . than

it would be without the evidence.”    M.R.E. 401.   As we

recognized in United States v. Wright, 53 M.J. 476 (C.A.A.F.

2000), M.R.E. 413 opens with a reminder that, while generally

admissible, evidence must first be “relevant”:

     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.




                                  2
United States v. Berry, No. 04-0240/AR


M.R.E. 413(a)(emphasis added);1 Wright, 53 M.J. at 480.

       Conceding that the military judge did not cite propensity

as the “fact” to which this evidence was relevant, the majority

then concludes that “[f]rom strictly a propensity viewpoint, the

evidence does show that Berry had participated in similar

conduct in the past.    This evidence, therefore, does have some

tendency to make it more probable that Berry committed a

nonconsensual act against a vulnerable person[.]” __ M.J. (10-

11).    This statement is particularly troubling in light of the

later conclusion that “there is no evidence suggesting that

Berry’s mens rea at twenty-one was the same as it was when he

was a child of thirteen.” __ M.J. (15).    From these statements,

one must conclude that the mere happenstance of a similar,

earlier act demonstrates per se relevance to propensity, even



1
    We noted in Wright that M.R.E. 413 and Fed. R. Evid. 413 “are
    virtually the same.” Wright, 53 M.J. at 480 n.4. Accordingly,
    analysis of Fed. R. Evid. 413 also illuminates M.R.E. 413. In
    a discussion of Fed. R. Evid. 413, two scholars commented:

         The evidence permitted is broadly defined as any act
         that would be either a state or federal crime related
         to either sexual assault or child molestation. The
         limitations appear to be only relevance and the
         requirement that the prosecution provide fifteen days
         notice of its intent to use evidence pursuant to
         these rules.” 1 Barbara E. Bergman and Nancy
         Hollander, Wharton’s Criminal Evidence (15th ed.
         1997)(footnotes omitted)(commenting on the nearly
         identical text of Fed. R. Evid. 413 and 414).
    § 4.42 at 458-59.



                                  3
United States v. Berry, No. 04-0240/AR


absent evidence or presumption of a similarity of mens rea,2 or,

presumably, character.   Such a conclusion strongly suggests that

even differences in mental competence (and certainly differences

in cognitive and emotional development) are inapplicable to a

threshold analysis under M.R.E. 401 -- a departure from the

application of that rule that I cannot embrace, for it leads to

the conclusion that the mindless act of an infant is per se

logically relevant to prove the state of mind or character of

that infant as an adult and would be admissible unless excluded

for some other reason.   “[Evidence] may also be inadmissible as

irrelevant because a link in the chain of facts is missing that

is required to give probative value to the evidence.”   1

Wharton’s Criminal Evidence § 4-5 at 298-99 (footnote omitted);

see also M.R.E. 104(b); c.f.   Johnson v. Elk Lake School

District, 283 F.3d 138, 154-55 (3d Cir. 2002)(applying Fed. R.

Evid. 104(b) to Fed. R. Evid. 413(d)).   In applying M.R.E. 413,

I believe the majority has confused evidence relevant to state

of mind and character3 with evidence relevant to happenstance,

and in so doing, has departed from our recently announced

analysis in United States v. McDonald, 59 M.J. 426 (C.A.A.F.

2
 Of course, mens rea and character are not congruent concepts,
but in the context of this evidence and the purpose for which it
was offered, the two are logically indistinguishable.
3
  “Propensity evidence” is a form of character evidence. See 2
Stephen A. Salzburg et al., Federal Rules of Evidence Manual §
413.02[2] (8th ed. 2001).

                                 4
United States v. Berry, No. 04-0240/AR


2004),4 rejecting evidence for its failure to satisfy M.R.E. 401.

In McDonald, this Court stated:

     The military judge found, and the court below agreed,
     that the evidence was logically relevant both as to
     “common plan” and “intent.” We disagree. Applying
     the second prong of Reynolds, we hold that the
     evidence of Appellant's uncharged acts was not
     logically relevant to show either a common plan or
     Appellant's intent.

59 M.J. at 429-30 (internal citation omitted).

     Because M.R.E. 413, as employed in this case, demands

logical relevance to a character trait –- propensity to commit

sexual acts with vulnerable persons –– I would again conclude

that evidence of sexual acts that occurred when the defendant

was thirteen is not logically relevant to prove character or

cognition of that child as an adult, absent “evidence of that

13-year-old adolescent’s mental and emotional state, sufficient

to permit meaningful comparison with Appellant’s character as an

adult.”   McDonald,   59 M.J. at 430.     While Appellant’s case

presents a gap of only eight years between the acts, as opposed

to the twenty years in McDonald, those intervening years share

the same evidentiary deficiency:       failure to account for the

effects of puberty and adolescence on either cognitive

development or character.   In McDonald, we required the


4
  Although McDonald addressed M.R.E. 404(b), the concept of legal
and logical relevance runs through the military evidentiary
rules, including M.R.E. 401, 402, 403, 404(b), 413, and 14,
along with the other § IV rules.

                                   5
United States v. Berry, No. 04-0240/AR


appellant to establish the logical relevance of a thirteen-year-

old’s “mental and emotional state” to the state of mind of that

child as an adult.   In this case, we examine the logical

relevance of a thirteen-year-old’s acts to the “propensity” of

that child as an adult to engage in similar acts.    I recognize

that there is no meaningful distinction between the relevance we

required in McDonald and the relevance we should require here.

     Happenstance vs. character and state of mind.    In our

practice, as in the federal district courts, the undertaking of

an act is frequently relevant in and of itself, without regard

to the state of mind of the actor in performing the act.    See,

e.g., M.R.E. 304 (confessions and admissions), M.R.E. 321

(eyewitness identification), and M.R.E. 406 (habit and routine).

In the course of a trial, innumerable other contexts arise in

which proof of an act is relevant merely to show that the act

occurred (e.g., facts establishing nonvolitional elements of

offenses).   In other contexts, relevance requires that

happenstance be paired with a specific purpose (e.g., M.R.E.

608(b)(evidence of prior conduct must be probative of

truthfulness or untruthfulness); M.R.E. 801(d)(1)(B)(prior

consistent statement must precede motive to fabricate).

     Character or state of mind evidence.   When intent, plan,

purpose, or character are involved -- when the fact made more or

less probable is a quality of cognition -- mere happenstance may


                                 6
United States v. Berry, No. 04-0240/AR


not be sufficient to establish logical relevance.   McDonald, 59

M.J. at 430; United States v. Humpherys, 57 M.J. 83, 89-90

(C.A.A.F. 2002); United States v. Tanksley, 54 M.J. 169, 175

(C.A.A.F. 2000); United States v. Matthews, 53 M.J. 465, 473

(C.A.A.F. 2000).   M.R.E. 413 and 414 freed prosecutors from the

restraints of M.R.E. 404(b) and for the first time permitted

evidence of an accused’s past acts to demonstrate the propensity

of the accused to commit other such acts.   Although “propensity”

has been defined in slightly differing terms by various sources,

the common theme is the focus on “nature” as the source of the

inclination,5 reinforcing the classification of such evidence as

“character evidence.”   In short, the evidence is offered to show

that the character or nature of the accused is such that he or

she is predisposed to commit the charged offense, based on

similar conduct undertaken by the accused in the past.   As I see

it, in the context of any comparative “state of mind” or

character evidence, there is a roughly graduated scale -- with

mere unity of identity at one end and absolute identity of

cognitive state at the other -- along which such evidence will

generally fall.    While I agree that mere unity of identity may


5
  Webster’s Third New International Dictionary of the English
Language (1961)(“a natural inclination”). See, e.g., Merriam
Webster’s Collegiate Dictionary (11th ed. 2003)(defining
propensity as “an often intense natural inclination or
preference); Webster’s New Word College Dictionary (4th ed.
1999)(propensity is a natural inclination or tendency”).

                                  7
United States v. Berry, No. 04-0240/AR


be sufficient to establish relevance when reasonable identity of

cognitive state can be assumed (as in the acts of most adults),

I do not believe we should apply that assumption to bridge the

frequently vast chasm of puberty and adolescence.     With this in

mind, I believe our logic in McDonald must control our

examination of this even more powerful evidence.

        As the majority notes, children are not miniature adults.

Evidence that an accused possessed some cognitive characteristic

at age twenty-one might logically be presumed relevant to

whether the accused had that same characteristic at age twenty-

nine; however, consistent with our logic in McDonald, I cannot

agree that evidence of a cognitive characteristic at age

thirteen can be assumed to be logically relevant to whether the

accused had that same cognitive characteristic at age twenty-

one.

       For most teens, [risky or antisocial] behaviors are
       fleeting; they cease with maturity as individual
       identity becomes settled. Only a relatively small
       proportion of adolescents who experiment in risky or
       illegal activities develop entrenched patterns of
       problem behavior that persist into adulthood.

Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of

Adolescence:   Developmental Immaturity, Diminished

Responsibility, and the Juvenile Death Penalty, 58 American

Psychologist 1009, 1014 (2003).   Professors Steinberg and Scott

also note that:



                                  8
United States v. Berry, No. 04-0240/AR


     studies of criminal careers indicate that the vast
     majority of adolescents who engage in criminal or
     delinquent behavior desist from crime as they mature
     into adulthood (Farrington, 1986). Thus the criminal
     choices of typical young offenders differ from those
     of adults not only because the choice, qua choice, is
     deficient as the product of immature judgment, but
     also because the adolescent’s criminal act does not
     express the actor’s bad character.

Id. at 1015.

         In addition to the concerns we expressed in McDonald, we

have also recognized that, even absent the complicating factors

of puberty and adolescence, “[e]ven an individual with certain

characteristics may have internal self-monitoring which may or

may not cause them to act similarly in various situations.”

United States v. Dimberio, 56 M.J. 20, 27 (C.A.A.F. 2001).

         While I agree that M.R.E. 413 has significantly reduced

the analytical importance of temporal proximity between the

charged acts and prior, similar acts introduced under that rule,

I cannot agree that the rule creates a bypass around M.R.E. 401

and 402 or creates a “happenstance equals relevance” equation.

Discussing Fed. R. Evid. 413, which uses language similar to

that of M.R.E. 413, the Eighth Circuit noted that:    “We have

previously stated that this rule supersedes Rule 404's

prohibition against character evidence, allowing testimony of

prior bad acts in sexual assault cases, provided that it is

relevant.”     United States v. Bird, 372 F.3d 989, 992 (8th Cir.

2004).   In sexual assault and child molestation cases, evidence


                                   9
United States v. Berry, No. 04-0240/AR


that the defendant committed a prior similar offense “may be

considered for its bearing on any matter to which it is

relevant,” including the defendant’s propensity to commit such

offenses.    Fed. R. Evid. 413(a), 414(a).   “If relevant, such

evidence is admissible unless its probative value is

‘substantially outweighed’ by one or more of the factors

enumerated in Rule 403, including ‘the danger of unfair

prejudice.’”   United States v. Gabe, 237 F.3d 954, 959 (8th Cir.

2001)(quoting United States v. LeCompte, 131 F.3d, 769 (8th Cir.

1997).

     This is not to say here, nor did we so hold in McDonald,

that the acts of a child cannot be relevant to determination of

the state of mind of that child as an adult.    59 M.J. at 430.

Rather, in this arena of great potential probity and great

potential prejudice, we must follow the rule and require that

threshold relevance to the specified “fact” be demonstrated with

the same level of scrutiny we would apply to any other evidence

offered for any other purpose.   Expressed another way, we should

not be so confident in the crucible of M.R.E. 403 that we

assume, for purposes of M.R.E. 413, that happenstance equals

relevance.   This is particularly so, given that in Wright we

emphasized the importance of M.R.E. 401 and 402, and in McDonald

we denounced the assumption that happenstance equals relevance

with regard to similar evidence offered under M.R.E. 404(b).


                                 10
United States v. Berry, No. 04-0240/AR


Because I am not convinced that the military judge made that

critical comparison in this case, I cannot express confidence in

the lower court’s conclusion that there was no abuse of

discretion in this quarter.




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