                        ****CORRECTED COPY – DESTROY ALL OTHERS****



          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                   UNITED STATES

                                            v.

                        Technical Sergeant JUSTIN L. FETROW
                                United States Air Force

                                       ACM 38631

                                       __ M.J. __

                                    21 January 2016

         Sentence adjudged 13 February 2014 by GCM convened at Frances E.
         Warren Air Force Base, Wyoming. Military Judge: Matthew P. Stoffel.

         Approved Sentence: Dishonorable discharge, confinement for 25 years, and
         reduction to E-1.

         Appellate Counsel for Appellant: Captain Johnathan D. Legg and C. Ed
         Massey (civilian counsel).

         Appellate Counsel for the United States: Major Meredith L. Steer and
         Gerald R. Bruce, Esquire.

                                          Before

                           MITCHELL, DUBRISKE, BROWN
                               Appellate Military Judges

                         PUBLISHED OPINION OF THE COURT


BROWN, Judge:

       At a general court-martial composed of officer and enlisted members, Appellant
was convicted, contrary to his pleas, of attempted abusive sexual contact with a child,
attempted aggravated sexual abuse of a child, abusive sexual contact with a child, and
four specifications of aggravated sexual contact with a child, in violation of Articles 80
and 120, UCMJ, 10 U.S.C. §§ 880, 920.1 All offenses resulting in a conviction were
based on the version of Article 120 that was in effect for misconduct occurring between
1 October 2007 and 27 June 2012. The court sentenced Appellant to a dishonorable
discharge, confinement for 25 years, forfeiture of all pay and allowances, and reduction
to E-1. The convening authority approved the adjudged sentence except for the
forfeitures.

        On appeal, Appellant raises five issues: (1) the military judge improperly
admitted the testimony of Appellant’s biological daughter as Mil. R. Evid. 414 propensity
evidence, (2) the finding as to Specification 2 of Charge III was ambiguous when the
military judge granted a motion for a finding of not guilty that removed “divers” from the
specification, (3) the evidence was legally and factually insufficient, (4) the sentence was
inappropriately severe, and (5) the case was subjected to unlawful command influence.2
Appellant also submitted a petition for a new trial, citing to an affidavit from the
testifying victim where she recanted her in-trial testimony. As to the first issue, we agree
that the military judge erred in admitting evidence under Mil. R. Evid. 414 and that this
error prejudiced a substantial right of Appellant. As a result, it is unnecessary for us to
address the remaining issues or the petition for a new trial at this time.

                                                 Background

       As of the trial date, Appellant and his wife, Mrs. JNF, had been married nine
years. Appellant and his wife had a blended family consisting of six children. Appellant
brought two children into the marriage, Mrs. JNF brought two children into the marriage,
and Appellant and Mrs. JNF had two biological children together. The allegations of
sexual abuse in this case involved the two children that Mrs. JNF brought into the
marriage, JB and JH.

       In January 2013, JH reported to a school counselor that Appellant sexually abused
her. During the course of this investigation, her sister, JB, made allegations that
Appellant had also previously sexually abused her. By the time of trial, however, JH
recanted her allegations against Appellant and did not testify in the findings or sentencing
portions of the trial.

        The Government’s primary evidence in this case was the testimony of JB. She
testified to two distinct periods of time: one period, six years earlier, when Appellant
reportedly sexually abused her when her family lived in South Carolina, and another, two

1
  Appellant was found not guilty of four specifications of sexual abuse of a child, in violation of Article 120b,
UCMJ, 10 U.S.C. § 920b. Appellant was also found not guilty of a specification of aggravated sexual contact with a
child, abusive sexual contact with a child, and indecent acts with a child, in violation of Articles 120 and 134,
UCMJ, 10 U.S.C. §§ 920, 934.
2
  The allegation of unlawful command influence was raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).




                                                        2                                            ACM 38631
years earlier, when the family lived in Wyoming. She also testified regarding three
incidents when Appellant reportedly sexually abused JH in her presence.

       Appellant was ultimately found guilty of all the incidents that JB testified to
regarding abuse that occurred to her, as well as the incidents of sexual abuse involving JH
that JB testified occurred in her presence.

                         Admission of Mil. R. Evid. 414 Evidence

       Appellant asserts that the military judge erred by admitting certain evidence of
uncharged conduct involving Appellant and his biological daughter, JLF, under Mil. R.
Evid. 414.

       At issue was the admission of testimony from Appellant’s now 17-year-old
biological daughter, JLF, about three incidents that occurred with her father. These
incidents were entirely unrelated to the abuse alleged by JB. Appellant filed a timely
motion in limine objecting to the admission of the evidence. After a hearing, the military
judge denied the defense motion. The military judge set out his analysis in a written
ruling. The military judge’s findings of fact are not clearly erroneous and we therefore
adopt his findings for purposes of our appellate review. See United States v. Bare, 63
M.J. 707, 710 (A.F. Ct. Crim. App. 2006).

       The military judge made the following findings of fact regarding the three
incidents:

              [1] The first alleged incident JLF described took place at or
              near Charleston, South Carolina, sometime between June
              2001 and December 2001. She stated that on one occasion
              while she was approximately 3–4 years of age and living with
              the Accused, the Accused placed her in a bedroom closet
              while he had sex with a woman.

              She believed they were having sex because both the Accused
              and the woman were naked and were “humping.” While the
              Accused and the woman were engaged in sexual activity, JLF
              was able to see the sexual activity because the closet door was
              slightly open. . . .

              [2] JLF also stated that on one occasion around the same
              time, the Accused touched her on her upper thigh. The
              touching allegedly occurred while JLF and the Accused built
              tents made of blankets. No other adult was present when the
              touching occurred, JLF described the touch as seductive in
              nature and explained that the Accused touched her knee with


                                             3                                   ACM 38631
                  his hand and moved his hand slowly up her leg. JLF became
                  visibly upset while testifying regarding this incident.

                  [3] JLF also described an incident where she saw the
                  Accused’s penis. This occurred in Summerville, South
                  Carolina, while she was approximately 8–9 years old. JLF
                  was spending the summer with the Accused, though she
                  normally lived with her mother . . . . On this occasion, the
                  Accused exposed his penis to JLF while in the bathroom of
                  their residence while running bathwater. The Accused had
                  removed his pants, and while sticking his foot in the bathtub,
                  he moved his foot quickly and made a comment about the
                  water being too hot. The Accused still was wearing his shirt.
                  Shortly thereafter, someone walked into the house, and the
                  Accused told JLF to leave. At a later point, the Accused
                  questioned JLF on whether she laughed when she saw his
                  penis.

       Mil. R. Evid. 414 permits the admission of evidence of “any other offense of child
molestation” to show propensity to commit a charged act of “child molestation.” A
military judge must make three threshold findings: (1) the accused must be charged with
an offense of child molestation as defined by Mil. R. Evid. 414, (2) the proffered
evidence must be evidence of the accused’s commission of another offense of child
molestation as defined by Mil. R. Evid. 414, and (3) the evidence must be relevant under
Mil. R. Evid. 401 and 402.3 United States v. Yammine, 69 M.J. 70, 73–74 (C.A.A.F.
2010). On appeal, we review de novo whether the prior act meets the threshold
requirements of Mil. R. Evid. 414. Bare, 63 M.J. at 710; Yammine, 69 M.J. at 73.

       The intent of Mil. R. Evid. 414 is to provide for more liberal admissibility of
character evidence in criminal cases of child molestation. See Drafter’s Analysis,
Supplement to the Manual for Courts-Martial, United States, app. 22 at A22-43 (2012
ed.). This liberal admissibility standard applies to conduct that meets the definition of
“child molestation” under Mil. R. Evid. 414. As to whether conduct constitutes a
qualifying offense of “child molestation,” however, we apply the text of the rule strictly.

3
  If the prior act meets the three threshold requirements for admissibility under Mil. R. Evid. 414, the trial judge is
constitutionally required to conduct a Mil. R. Evid. 403 balancing test, which provides that 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. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). Some of the factors to be
examined include the strength of proof of the prior act(s), the probative weight of the evidence, the potential to use
less-prejudicial evidence, the potential to distract the factfinder, the time needed to prove the prior act(s), temporal
proximity, frequency, the presence or lack of intervening circumstances, and the relationship between the parties.
United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000).




                                                           4                                               ACM 38631
Yammine, 69 M.J. at 75; cf. United States v. Bird, 372 F.3d 989, 992 (8th Cir. 2004)
(stating that propensity evidence must fit into one of the offenses proscribed by the
evidentiary rule).

       The military rule provides an exclusive list of offenses that qualify as “offense[s]
of child molestation.” Yammine, 69 M.J. at 75 (quoting United States v. Schroder, 65
M.J. 49, 53 (C.A.A.F. 2007)) (internal quotation marks omitted) (alteration in original).
Thus, the conduct “must fall within the specific definition of an offense of child
molestation set out in Mil. R. Evid 414” to be properly admitted under Mil. R. Evid 414.
Id. (quoting Schroder, 65 M.J. at 53) (internal quotation marks omitted).

        Since the first version of Mil. R. Evid. 414 was promulgated in 1998, the analysis
of the rule noted that it was nearly identical to its Federal Rule counterpart, though
tailored to military practice. See Drafter’s Analysis, Supplement to the Manual for
Courts-Martial, United States, app. 22 at A22-43 (2012 ed.). Rather than incorporating
by reference conduct prohibited by specific statutes as the federal rule did, the military
rule through 2013 described the covered conduct generically and without reference to any
particular criminal statute.4 On at least one occasion, however, this approach resulted in
an outcome where misconduct that would constitute “child molestation” under Fed. R.
Evid. 414 did not constitute “child molestation” under the military rule. See Yammine, 69
M.J. at 75–76 (stating that possession of child pornography would not necessarily
constitute “child molestation” under Mil. R. Evid. 414, despite it being so under Fed. R.
Evid. 414).

        In May 2013, Mil. R. Evid. 414 (“Evidence of similar crimes in child molestation
cases”) was amended to even more closely follow Fed. R. Evid. 414 by expanding the
definition of “child molestation” to include the same federal criminal statutes referenced
in the Federal Rule counterpart.

       Currently, “child molestation” is defined as an “offense punishable” under the
Uniform Code of Military Justice, or a crime under federal law or state law “that
involves”:



4
  The original rule defined the “offense of child molestation” as “an offense punishable under the Uniform Code of
Military Justice, or a crime under Federal law or the law of a State that involved—(1) any sexual act or sexual
contact with a child proscribed by the Uniform Code of Military Justice, Federal law, or the law of a State; (2) any
sexually explicit conduct with children proscribed by the Uniform Code of Military Justice, Federal law, or the law
of a State; (3) contact between any part of the accused’s body, or an object controlled or held by the accused, and
the genitals or anus of a child; (4) contact between the genitals or anus of the accused and any part of the body of a
child; (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a
child; or (6) an attempt or conspiracy to engage in conduct described in paragraphs (1) through (5) of this
subdivision.” Manual for Courts-Martial, United States, pt. III, (1998 ed.). It also provided definitions of “sexual
act,” “sexual contact” and “sexually explicit conduct.” Id. The rule remained substantively unchanged until 2013.




                                                          5                                               ACM 38631
             (A) any conduct prohibited by Article 120 and committed with a
             child;

             (B) any conduct prohibited by 18 U.S.C. chapter 109A and
             committed with a child;

             (C) any conduct prohibited by 18 U.S.C. chapter 110;

             (D) contact between any part of the accused’s body, or an object
             held or controlled by the accused, and a child’s genitals or anus;

             (E) contact between the accused’s genitals or anus and any part
             of a child’s body;

             (F) contact with the aim of deriving sexual pleasure or
             gratification from inflicting death, bodily injury, or physical pain
             on a child; or

             (G) an attempt or conspiracy to engage in conduct described in
             subdivisions (d)(2)(A)–(F).

Mil. R. Evid. 414 (d)(2).5 Therefore, as of May 2013, the only remaining substantive
differences to the federal rule are (1) the inclusion of the provision incorporating
“conduct prohibited by Article 120 and committed with a child” and (2) defining a child
as a person below the age of 16.6

                What Constitutes “Child Molestation” under Mil. R. Evid. 414?

       To answer this question regarding what is admissible as “similar crime” evidence,
we must interpret both the meaning of “an offense punishable under the Uniform Code of
Military Justice, or a crime under federal or under state law” and the meaning of “that
involves any conduct prohibited by Article 120 and committed with a child.” Mil. R.
Evid. 414(d)(2)(A). We conclude that the two portions of this rule are focused on

5
  This version of Mil. R. Evid. 414 went into effect in May 2013, after Appellant’s alleged crimes but prior to
Appellant’s trial. Exec. Order No. 13643, 78 Fed. Reg. 29559 (May 15, 2013).
6
  Fed. R. Evid. 414(d)(2) defines a child as a person below the age of 14 and “child molestation” as a crime under
federal law or under state law involving:
    (A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;
    (B) any conduct prohibited by 18 U.S.C. chapter 110;
    (C) contact between any part of the defendant's body–or an object–and a child’s genitals or anus;
    (D) contact between the defendant’s genitals or anus and any part of a child’s body;
    (E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a
    child; or
    (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–(E).




                                                        6                                            ACM 38631
different concerns and, therefore, one must look to both the law in effect at the time of
the prior conduct and the law when the evidence is offered to determine whether conduct
constitutes an offense of “child molestation” under the rule.

       Appellant argues that what constitutes an offense of “child molestation” for
admission as a “similar crime” under Mil. R. Evid. 414 is determined by whether the
conduct was a crime at the time that conduct occurred. Appellant points to the language
of Mil. R. Evid. 414 which consistently has required the propensity incident to be an
“offense punishable” under the Uniform Code of Military Justice (or a crime under
federal or state law), and argues this necessarily implies the conduct must have been an
offense at the time the conduct occurred.

        Certain canons of statutory construction advise courts to interpret statutes and
rules in a way that avoids rendering any language superfluous, and “to give effect, if
possible, to every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174
(2001) (quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955)) (internal
quotation marks omitted). “[W]ords should be given their common and approved usage.”
See United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F. 2003) (quoting United Scenic
Artists v. NLRB, 762 F.2d 1027, 1032 n.15 (D.C. Cir. 1985)) (internal quotation marks
omitted). Courts should also avoid redundancy unless doing so would create a strained or
contorted reading of the statute or rule. See Gustafson v. Alloyd Co., 513 U.S. 561, 574
(1995) (instructing courts to “avoid a reading [of statutory language] which renders some
words altogether redundant); Parker v. Califano, 561 F.2d 320, 325 (D.C. Cir. 1977)
(noting the “familiar principle that statutory language should be construed so as to avoid
redundancy”); Murphy Exploration & Prod. Co. v. Dept. of Interior, 252 F.3d 473, 481
(D.C. Cir. 2001). There is also a general preference against surplusage; that is, excessive
or nonessential language. See Lamie v. United States Tr., 540 U.S. 526, 536 (2004).
That preference, however, is constrained by the requirement that a construction avoiding
surplusage must be a reasonable one. Jarecki v. G.D. Searle & Co., 367 U.S. 303,
307–08 (1961) (“The statute admits a reasonable construction which gives effect to all of
its provisions. In these circumstances we will not adopt a strained reading which renders
one part a mere redundancy.”). Thus, even if a rule or statute is interpreted in a manner
that results in redundancy, it would not be a reason to interpret it in a manner that is not
plausible.

        Applying these concepts to this situation, we find Appellant’s argument persuasive
as to the meaning of “offense punishable” under the UCMJ and the meaning of a “crime”
under federal or state law. For an offense to be “punishable” under the law, it is
reasonable to conclude that the pertinent incident must have been against the law when
the conduct occurred. If the incident did not constitute an offense at the time of the
conduct, it was lawful conduct and not a crime that could be punished under the UCMJ or




                                             7                                    ACM 38631
federal/state law. Therefore, the conduct must have been a UCMJ offense, a federal
crime or a state crime when the conduct occurred.7 This recognizes that the illegality of
the prior conduct is important when determining whether it creates a propensity to engage
in charged criminal conduct. If the President intended otherwise, one would expect he
would have used language that made this intent clear. Our interpretation gives plain
meaning to the term “offense punishable” and “crime” in Mil. R. Evid. 414(b)(2). It is
also consistent with the title of Mil. R. Evid 414 (“similar crimes in child-molestation
cases”) and the instruction provided to panel members when such evidence is introduced
(which repeatedly uses the word “uncharged offense”), as well as our superior court’s
admonition that courts are to apply the text of the rule strictly. Cf. Yammine, 69 M.J. at
75.

        This conclusion, however, does not end the inquiry. To be admissible under Mil.
R. Evid. 413, the “similar crime” incident must also involve conduct listed in the current
version of Mil. R. Evid. 414(d)(2)(A)–(G). Cf. United States v. Blazek, 431 F.3d 1104
(8th Cir. 2005) (prior misconduct was admissible under Fed. R. Evid. 413, despite the
conduct actually being prosecuted under a state statute not incorporated into the rule,
because the underlying conduct was prohibited by an incorporated statute). As to this
second inquiry, the focus is on the underlying conduct itself. Because the definitions
listed in Mil. R. Evid. 414 are an exclusive list of the offenses that qualify for admission
as “similar crimes” under the rule, a “similar crime” incident must be within those
definitions before being admitted into evidence. See Yammine, 69 M.J. at 75.

       The current version of Mil. R. Evid. 414, along with its incorporated criminal
statutes within it, constitute the Congressional and executive’s current determinations of
what criminal conduct is potentially relevant for propensity to commit an offense of child
molestation. If certain criminal conduct is potentially relevant to an accused’s propensity
to commit an offense of child molestation, it should matter little that the crime was only
recently included as prohibited conduct under the rule. As the underlying criminal
conduct is the same, so is its relevance to an accused’s propensity to commit an offense
of child molestation.8 Consequently, to the extent that the conduct in Mil. R. Evid.
414(d)(2) incorporates a particular statute as prohibited criminal conduct, such as
incorporating Article 120, 18 U.S.C. chapter 109A, or 18 U.S.C. chapter 110, the rule
references conduct that would constitute a crime under those statutes in effect on the day



7
  It is not necessary, however, that the conduct resulted in a conviction, was officially charged, or even that it could
currently result in a criminal conviction at the time of trial. See United States v. Henley, 53 M.J. 488, 490 (C.A.A.F.
2000) (holding that evidence of sexual misconduct that cannot be charged because of the statute of limitations would
not bar admissibility of the conduct under Mil. R. Evid. 413 or 414).
8
  Though the conduct would remain relevant under Mil. R. Evid. 401 and 402, temporal proximity to the charged
offense is a factor in the Mil. R. Evid. 403 balancing test and might very well result in its exclusion at that stage of
the analysis. See United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000).




                                                           8                                               ACM 38631
of trial.9 Such an approach appropriately keeps the focus on the details of the “similar
crime” at issue, and whether that crime is relevant to a charged offense of child
molestation before the court.

       In addition to giving full force and effect to every word in the evidentiary rule, this
interpretation also avoids turning the “offense punishable” portion of the definition into
an unnecessary redundancy when the “similar crime” conduct also falls within one of the
categories of conduct found in Mil. R. Evid. 414(d)(2)(A)–(C). The first portion of the
“child molestation” definition requires that the act must be an offense punishable under
the UCMJ, or a crime under federal or state law. The first three provisions of the second
portion of the definition, though, define “child molestation” as involving conduct that is
prohibited by three specific statutes––Article 120 of the UCMJ, 18 U.S.C. chapter 109A,
or 18 U.S.C. chapter 110. As to these three provisions, if one interpreted both portions of
the definition as asking whether the conduct constituted a “crime” at the time of the
conduct, it would make the first portion of the definition redundant as there would not be
a situation where conduct would be prohibited by one of the three statutes, yet not an
“offense punishable” by any provision of the UCMJ, or a crime under federal or state
law.

        As we have interpreted the rule, however, both portions of the definition serve
different purposes and thus ask different questions. The first portion ensures the conduct
was a crime, in the broadest sense, when it occurred. This avoids a situation where an
individual’s lawful conduct is later classified as a “similar crime” and used as evidence of
his propensity to commit the crime of child molestation. The second portion addresses
the admissibility of that criminal conduct based on how it is defined by the rule when the
evidence is offered at trial. This represents the Congressional and executive’s current
understanding of what prior criminal actions are potentially relevant in a court-martial
involving charges of child molestation. This two-step approach gives the maximum
effect to each and every word of the evidentiary rule, while still avoiding an implausible,
strained, or contorted result.




9
  Contrary to Appellant’s assertions, this does not violate Appellant’s constitutional right against ex post facto laws.
U.S. CONST. art I, § 9, cl. 3. This is a rule of evidence as to what conduct could be admitted as propensity evidence
in a child molestation case. Appellant is not being prosecuted or punished for the prior conduct and the panel was
instructed accordingly. Legislative enactments creating procedural rules which merely permit members to consider
certain types of evidence for certain purposes do not raise ex post facto concerns. Thompson v. Missouri, 171 U.S.
380, 387 (1898). Only changes in evidentiary rules which permit conviction on less or different testimony than the
law required at the time of conviction violate the ex post facto clause. See Carmell v. Texas, 529 U.S. 513, 522–25
(2000) (holding that an evidentiary rule removing the requirement of corroboration for certain offenses constituted a
violation of the ex post facto clause of the Constitution because, based on the law at the time the crime was
committed, the evidence would have been legally insufficient to sustain a conviction); Calder v. Bull, 3 U.S. 386,
390 (1798).




                                                           9                                               ACM 38631
                  Application of Mil. R. Evid. 414 to the Three Incidents

       We now turn to the case at bar to determine whether the three incidents at issue
were properly admitted as “similar crimes” under Mil. R. Evid. 414. The three threshold
questions are: (1) whether the accused is charged with an offense of child molestation
under Mil. R. Evid. 414, (2) whether the proffered evidence is evidence of a qualifying
offense of child molestation under Mil. R. Evid. 414, and (3) whether the evidence is
relevant under Mil. R. Evid. 401 and 402. As to these three questions, the only question
in reasonable dispute, and raised by Appellant as error, is whether the proffered evidence
is a qualifying offense of “child molestation” under Mil. R. Evid. 414.

       As to all three incidents, the military judge found there was sufficient evidence for
the finder of fact to conclude that Appellant committed the alleged conduct and that such
conduct constituted “sexual abuse of a child in violation of Article 120 and 120b” based
on the versions of those offenses in effect on the day of trial. The military judge also
concluded that the first and third incidents would constitute an indecent exposure under
the pre-1 October 2007 version of Article 134, and the second incident would constitute
an indecent act with a child under the pre-1 October 2007 version of Article 134. He thus
found them all to be similar crimes of child molestation admissible under Mil. R. Evid.
414.

                          Indecent Act with a Child—Incident 2

       As previously discussed, Mil. R. Evid. 414 sets forth a two-part test to determine
whether proposed “similar crimes” constitute “child molestation”: (1) whether the
conduct constitutes a punishable offense under the UCMJ, federal law, or state law when
the conduct occurred; and (2) whether the conduct is encompassed within one of the
specific categories set forth in Mil. R. Evid. 414(b)(2).

       Accordingly, we first consider whether Appellant touching his four-year-old
biological daughter on the thigh in a “seductive manner” constitutes a punishable offense
under the UCMJ, federal law, or state law when the conduct purportedly occurred. At the
time of this conduct in approximately 2001, the offense of an indecent act with a child
under Article 134, UCMJ, had the following elements:

              (1) That the accused committed a certain act upon or with the
              body of a certain person;

              (2) That the person was under 16 years of age and not the
              spouse of the accused;

              (3) That the act of the accused was indecent;




                                            10                                    ACM 38631
                  (4) That the accused committed the act with intent to arouse,
                  appeal to, or gratify the lust, passions, or sexual desires of the
                  accused, the victim, or both; and

                  (5) That, under the circumstances, the conduct of the accused
                  was to the prejudice of good order and discipline in the armed
                  forces or was of a nature to bring discredit upon the armed
                  forces.

Manual for Courts-Martial, United States (MCM), pt. IV, ¶ 87.b.(1) (2005 ed.).

       In this context, “indecent” conduct “signifies that form of immorality relating to
sexual impurity which is not only grossly vulgar, obscene, and repugnant to common
propriety, but tends to elicit lust and deprave the morals with respect to sexual relations.”
MCM, pt. IV, ¶ 90.c. (2005 ed.). “An act that may not be indecent between consenting
adults may well be made indecent because it is between an adult and a child.” United
States v. Strode, 43 M.J. 29, 32 (C.A.A.F. 1995).

        Here, JLF, who remained supportive of Appellant at trial, described an incident
when she was four years old and playing with Appellant. JLF recalled that, while they
were alone, Appellant touched her thigh in a “slow manner” that did not feel right to her
at the time.10 She described it at trial as a “seducing” type of touch. There was nothing
apparent from the situation that would have explained why Appellant would have
touched his daughter in the manner described. As the military judge noted, one might
expect a father to touch his child a multitude of times on the thigh and leg in the course of
normal parent-child interactions. Despite this, however, this particular touch was so
different from the others that JLF still recalled it 13 years later at trial. Considering the
surrounding facts and circumstances, there was sufficient evidence for the military judge
to conclude that the touching was indecent and that it was done with the intent to arouse
the lust, passions, or sexual desires of Appellant and/or JLF. See United States v. Webb,
1991 CMR Lexis 817 (N.M.C.M.R. 1991) (unpub. op.) (upholding a conviction for
indecent act with a child when the accused touched a 9-year-old’s thigh during a game of
hide and seek when the circumstances suggested the touching was done with the intent to
gratify his lust). This purported conduct by Appellant therefore constitutes an offense
punishable under the UCMJ when it was allegedly committed, and the first portion of the
two-part test is satisfied.



10
  In addition, in JLF’s statement to investigators a year earlier, she recalled that after Appellant touched her legs in
a sexual way, he would tell her not to tell anyone. This was provided as an attachment to the defense’s motion in
limine to assist the trial judge in determining the admissibility of this prior conduct under Mil. R. Evid. 414. JLF
did not, however, testify to this during the motions hearing or before the members.




                                                          11                                               ACM 38631
       We next consider whether the conduct currently falls within the exclusive list of
prohibited conduct found in the current rule. As to this question, the military judge
concluded that the conduct constituted “sexual abuse of a child in violation of Article 120
and Article 120b.” This conclusion is erroneous as the offense of “sexual abuse of a
child” is not a violation of Article 120. Furthermore, although “sexual abuse of a child”
is an offense under Article 120b, offenses under that statute are not specifically
incorporated into Mil. R. Evid. 414(d)(2) as “child molestation” offenses.

        Mil. R. Evid. 414(d)(2)(A) currently incorporates any conduct that is “prohibited
by Article 120 and committed with a child.” The reference to “Article 120” (which is
entitled “rape and sexual assault generally”) does not encompass Article 120b. Article
120 and Article 120b are separate and independent statutory provisions.

        To interpret the rule’s reference to Article 120 more broadly than written, so that it
also incorporates Article 120a, Article 120b, and Article 120c, would result in a counter-
intuitive and an unprecedented expansion of what constitutes “similar crime” evidence in
child molestation cases. For example, such a reading would convert a non-sexual
stalking offense involving a child under Article 120a into a potential “similar crime”
under Mil. R. Evid. 414. If the President’s intent was to significantly expand what types
of conduct can be considered for admission for these purposes in the military, or to
further differentiate the military rule from the federal rule, one would expect that it would
be done explicitly and clearly.11 Cf. United States v. McCollum, 58 M.J. 323 (C.A.A.F.
2003) (stating that given the significant legal and policy considerations of reading a de
facto child exception into Mil. R. Evid. 504, the court would have expected such an intent
“to be represented in express language, rather than pressed or squeezed from the present
text”). Regardless of whether Appellant’s touching of his daughter’s thigh might
constitute conduct currently prohibited by Article 120a, Article 120b, or Article 120c, the
conduct “must fall within the specific definition of an offense of child molestation set out
in [Mil. R. Evid.] 414” to admit it as child molestation propensity evidence. Yammine, 69
M.J. at 75 (quoting Schroder, 65 M.J. at 53) (internal quotation marks omitted).
Consequently, the military judge erred as “sexual abuse of a child” is not an offense
under Article 120 and Mil. R. Evid. 414 does not incorporate conduct prohibited by
Article 120b.

       This does not end our inquiry, however, as we review de novo whether an offense
is a qualifying offense under Mil. R. Evid. 414. See Yammine, 69 M.J. at 73. Upon our
review of the evidence and the military judge’s findings of fact, we conclude that the
Appellant touching his four-year-old daughter’s thigh in a seductive manner could


11
  There is a current proposal to amend Mil. R. Evid. 414(d)(2)(A) to add “or prohibited by Article 120b” to the
“conduct prohibited by Article 120 and committed with a child” language. Manual for Courts-Martial; Proposed
Amendments, 80 Fed. Reg. 63204 (Oct. 19, 2015).




                                                      12                                           ACM 38631
constitute an abusive sexual contact under Article 120.12 We agree with the military
judge’s application of Mil. R. Evid. 403 to the admission of this evidence under Mil. R.
Evid. 403 and thus we find this evidence was properly admitted under Mil. R. Evid. 414.

                                 Indecent Exposures—Incidents 1 and 3

       We next turn to the two incidents that involved Appellant purportedly exposing
himself to his biological daughter. We again look to the two-part test to determine
whether either of Appellant’s purported exposures to his biological child would constitute
a qualifying offense of “child molestation” under Mil. R. Evid. 414. The two-part test is
again: (1) whether the conduct constitutes a punishable offense under the UCMJ, federal
law, or state law when the conduct occurred; and (2) whether the conduct is encompassed
within one of the specific categories set forth in Mil. R. Evid. 414(d)(2). We address the
second portion of the test first, as we conclude that neither of these exposures falls within
the specific categories of prohibited conduct in Mil. R. Evid. 414(b)(2), and thus these
incidents should not have been admitted under that rule.

        At the time of the trial, as well as when Mil. R. Evid. 414 was amended in 2013,
there were four specifically enumerated offenses under Article 120: rape, sexual assault,
aggravated sexual contact, and abusive sexual contact. All four of these offenses require,
as an element, either a sexual act or a sexual contact. MCM, pt. IV, ¶ 45. (2012 ed.). A
sexual act and a sexual contact require either physical contact, bodily penetration, or
touching. As the two indecent exposures at issue here did not include a touching of any
sort, the incidents did not meet the definition of sexual contact and, therefore, were not
prohibited by Article 120.

       We next consider whether the conduct is covered by any other portion of Mil. R.
Evid. 414(d). Indecent exposure is not conduct punishable by 18 U.S.C. chapters 109A
or 110. See Mil. R. Evid. 414(d)(2)(B)–(C). The next three provisions, Mil. R. Evid.
414(d)(2)(D)–(F), require specific types of contact between a perpetrator and a child.
Such contact did not occur with either of these exposures by Appellant. Finally, the last
provision of the rule includes conduct that constitutes an attempt or conspiracy to engage
in “sexual molestation” offenses under the rule. Mil. R. Evid. 414(d)(2)(G). There is
insufficient evidence to show Appellant attempted to or conspired to engage in any of the
specifically prohibited conduct under the rule. Cf. United States v. Bird, 372 F.3d 989,
993 (8th Cir. 2004) (noting mere solicitation is generally insufficient to constitute an
attempted sexual act). Consequently, an indecent exposure to a child, under the facts of
12
   Appellant cites to United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007), for the proposition that touching a
person’s thigh, unless it was the inner thigh, does not constitute a sexual contact under the rule. Schroder, however,
addressed a prior version of Mil. R. Evid. 414 that defined a sexual contact as an intentional touching of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person. The current rule, however, incorporates by
reference conduct prohibited by Article 120. Sexual contact under Article 120 is defined more expansively to
include touching of any body part of a person with the requisite intent.




                                                         13                                              ACM 38631
this case, does not constitute an offense of “child molestation” that is admissible as a
“similar crime” under Mil. R. Evid. 414.

       This conclusion is also consistent with the intent of Mil. R. Evid. 414. The rule is
intended to closely follow Fed. R. Evid. 414. See Drafter’s Analysis, Supplement to the
Manual for Courts-Martial, United States, app. 22 at A22-43 (2012 ed.). Absent
additional amendments to Mil. R. Evid. 414, it is to be expected that conduct considered
“child molestation” under the current version of Mil. R. Evid. 414 will closely mirror
conduct that is considered “child molestation” under Fed. R. Evid. 414. See generally
Report of the Military Justice Review Group (MJRG) Part I: UCMJ Recommendations
(22 December 2015).13 This court was unable to find a federal case that concluded that
an indecent exposure as described in this case would constitute child molestation for
purposes of Fed. R. Evid. 414. A plain reading of the federal rule is that an indecent
exposure without contact does not constitute “child molestation.” A similar result under
the now nearly identical military rule is to be expected.

       In conclusion, indecent exposure without physical contact does not constitute
“child molestation” for purposes of Mil. R. Evid. 414 as it is currently drafted.14 Because
the military judge’s view of the law with respect to a qualifying offense under Mil. R.
Evid. 414 was erroneous, he abused his discretion by admitting testimony regarding the
two indecent exposures even though he otherwise recognized and applied the correct
standards. See Yammine 69 M.J. at 76 (citing United States v. Rader, 65 M.J. 30, 32–34
(C.A.A.F. 2007)).

                                              Prejudice Analysis

       Finding error in the admission of testimony regarding the two incidents of
indecent exposure, we must next test for prejudice. We review de novo whether a non-
constitutional error had a substantial influence on the members’ verdict in the context of
the entire case. United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007). In
answering this question, “[w]e consider four factors: (1) the strength of the government’s
case; (2) the strength of the defense’s case; (3) the materiality of the evidence in question;
and (4) the quality of the evidence in question. Id. “When a fact was already obvious
from testimony at trial and the evidence in question would not have provided any new

13
   The Department of Defense General Counsel established the Military Justice Review Group (MJRG) with one of
the five guiding principles being to “consider the extent to which the principles of law and rules of procedure and
evidence used in the trial of criminal cases in the United States district courts should be incorporated into military
justice practice.” Report of the Military Justice Review Group Part I: UCMJ Recommendations, at 5–6 (22
December 2015).
14
   The proposed modification to Mil. R. Evid. 414 adding Article 120b, UCMJ, as an offense of child molestation
would arguably capture Appellant’s indecent conduct as “sexual abuse of a child.” This, however, would mark an
expansion from the federal rules as to conduct that constitutes “child molestation” for purposes of propensity
evidence in a child molestation case. Whether such an expansion is warranted is not for this court to decide.




                                                         14                                              ACM 38631
ammunition, an error is likely to be harmless. Conversely, when the evidence does
provide new ammunition, an error is less likely to be harmless.” Yammine, 69 M.J. at 78
(quoting Harrow, 65 M.J. at 200) (internal quotation marks and elipses omitted).

        With regard to the strength of the Government’s case, it was based primarily on
the testimony of one witness, JB, regarding conduct that purportedly happened two to six
years earlier. This was a delayed accusation of abuse and, as such, JB was unable to
provide specific dates for the alleged conduct. Her testimony was apparently
unemotional, as the Government provided testimony from an expert in the field of child
sexual abuse who explained to the members that neither the victim’s delayed disclosures,
nor her lack of emotion, are unusual in these types of cases. There also was not any
scientific or physical evidence that corroborated the allegations. The other sister, JH,
recanted prior to trial and did not testify before the members. Though admission of the
thigh-touching incident was not an abuse of discretion, and could have been used for
propensity purposes, that lone incident was the least helpful of the three for the
Government since, when viewed alone, it could be more easily interpreted in varying
ways by the members.

       The defense, on the other hand, did raise a partial alibi defense to the late 2007
allegations, arguing that Appellant was out of town and the children were staying with
family in Texas during these alleged offenses. As to the incidents that purportedly
occurred in Wyoming between January 2011 and June 2012, the defense had a family
friend testify that they did not notice the children acting unusually. The defense also
highlighted JB’s failure to testify about Appellant’s genital piercing and suggested that it
would be unlikely for anyone being intimate with Appellant not to notice such a piercing.

       The indecent exposure evidence was also material to the Government’s case. As
this was a situation where the Government was forced to rely almost exclusively on the
testimony of a 17-year-old stepdaughter about what happened years earlier, the Mil. R.
Evid. 414 evidence played a significant role in suggesting that Appellant had a prurient
sexual interest in his children, that this conduct may have constituted early attempts to
groom his children for later sexual activity, and that he was therefore more likely to have
committed the offenses testified to by JB. In the prosecution’s opening statement, trial
counsel highlighted Appellant’s two purported indecent exposures to his biological
daughter to apparently suggest that Appellant’s desires and criminal misdeeds pre-dated
the allegations in this trial. In fact, approximately a quarter of trial counsel’s opening
statement was devoted to the uncharged conduct involving Appellant’s biological
daughter. In addition, during closing argument, trial counsel began their argument with
the Mil. R. Evid. 414 incidents and argued that these types of incidents progressed to the
allegations involving JB and JH. This propensity evidence was clearly a critical piece of
the Government’s case.




                                            15                                    ACM 38631
       Finally, as to the quality of the evidence, the only evidence of the Mil. R. Evid.
414 conduct presented to the members was the in-court testimony of JLF. This testimony
lasted approximately an hour. Unlike the testimony of the victim, however, JLF’s
testimony was apparently emotional and heartfelt. The military judge noted in his Mil. R.
Evid. 414 ruling that JLF was visibly upset when testifying about her father’s conduct. In
addition, JLF told the members that it was very difficult for her to testify because she
loved her father. In the context of this case, JLF’s testimony about these prior acts was
powerful.

       The indecent exposure incidents that were improperly admitted as propensity
evidence constituted additional ammunition for the Government, and it was ammunition
that trial counsel effectively deployed during opening statement and argument on
findings. In these circumstances, we cannot hold that the error in its admission was
harmless.

                                       Conclusion

       For the foregoing reasons, the findings of guilt and the sentence are set aside. The
record of trial is returned to The Judge Advocate General. A rehearing is authorized.



              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                            16                                   ACM 38631
