United States v. Tanner , 63 M.J. 445 ( 2006 )

UNITED STATES, Appellee
v.
William C. TANNER, Seaman Recruit
U.S. Navy, Appellant
No. 05-0710
Crim. App. No. 200301120
United States Court of Appeals for the Armed Forces
Argued April 19, 2006
Decided August 18, 2006
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, C.J., and CRAWFORD and ERDMANN, JJ., joined. BAKER, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Captain Richard A. Viczorek, USMC (argued).
For Appellee: Lieutenant TyQuili R. Booker, JAGC, USNR
(argued); Major Kevin C. Harris, USMC, and Commander Charles N.
Purnell, JAGC, USN (on brief).
Military Judge: R. B. Wities
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Tanner, No. 05-0710/NA
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of the following offenses against his biological daughter: rape
of a child under the age of sixteen years, forcible sodomy of a
child under the age of sixteen years (two specifications), and
indecent acts with a child under the age of sixteen years, in
violation of Articles 120, 125, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000). The
adjudged sentence included a dishonorable discharge and
confinement for eighteen years. The convening authority
approved the sentence. Pursuant to a pretrial agreement, the
convening authority suspended all confinement in excess of
ninety months for a period of ninety months from the date of
sentencing. The United States Navy-Marine Corps Court of
Criminal Appeals affirmed. United States v. Tanner, 61 M.J. 649(N-M. Ct. Crim. App. 2005).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER COURT ERRED BY HOLDING
THAT IT WAS HARMLESS ERROR BEYOND A
REASONABLE DOUBT FOR THE MILITARY JUDGE
DURING SENTENCING TO ADMIT APPELLANT’S PRIOR
COURT-MARTIAL CONVICTION THAT WAS
SUBSEQUENTLY REVERSED.
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We hold that admission of the prior conviction did not
constitute prejudicial error, and we affirm.
I. BACKGROUND
A. APPELLANT’S TWO COURTS-MARTIAL
Appellant has been tried by two courts-martial for sexual
abuse of family members. Each court-martial involved a
different victim. At his first court-martial, which occurred a
year before the court-martial now on appeal in this Court,
Appellant pled guilty to the following offenses against his
fifteen-year-old stepdaughter: attempted carnal knowledge in
violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000), and
sodomy and indecent acts in violation of Articles 125 and 134,
UCMJ. In addition, Appellant pled guilty to committing adultery
with an unrelated adult, in violation of Article 134, UCMJ.
A year later, at his second court-martial, Appellant pled
guilty to sexual abuse of his ten-year-old biological daughter.
The offenses against his daughter, which included rape, took
place over an eighteen month period, the same general time frame
as the offenses against his stepdaughter.
B. SENTENCING AT THE SECOND COURT-MARTIAL
During the sentencing proceeding at the second court-
martial, the prosecution offered into evidence a record of
Appellant’s conviction at the first court-martial, which was
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then under appeal. See Rule for Courts-Martial (R.C.M.)
1001(b)(3). The defense did not object to the evidence, which
consisted of the general court-martial order for Appellant’s
first court-martial. The general court-martial order contained
considerable detail concerning the convictions obtained at the
first court-martial, including that Appellant had attempted
sexual intercourse with his stepdaughter, had exposed his naked
body to her, had fondled her, had touched her breasts and her
genitalia with his hands, and had inserted his finger into her
vagina.
When the prosecution also sought to introduce portions of
the record from the earlier court-martial, the defense objected
on the grounds that the material was irrelevant, cumulative, and
improper evidence in aggravation. The military judge sustained
the defense objection, focusing primarily on the fact that the
evidence was cumulative. He noted that “in looking at the
Court-Martial Order . . . as an experienced military judge, I
can clearly see what the charges/specifications were, how the
accused pled and how he was found.” He added that “[t]he
specifications are rather explicit on their face and I think
they don’t need any further exposition by documents which may be
set forth in” the record of trial.
Subsequently, during presentation of its case on
sentencing, the defense introduced a substantial amount of
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evidence, including information concerning Appellant’s first
court-martial. As summarized by the court below, the defense
sought to obtain a lenient sentence to confinement by arguing
that: (1) the offenses at issue in both courts-martial occurred
concurrently; (2) Appellant made substantial progress in sexual
offender rehabilitation and treatment programs during the
confinement resulting from his first court-martial; and (3)
Appellant had significant potential for rehabilitation. Tanner,
61 M.J. at 654. The defense evidence substantiated the
misconduct at issue in his first court-martial, and included
evidence from the victims in each trial. See id.
C. APPELLATE PROCEEDINGS
Subsequent to the completion of Appellant’s second court-
martial, the Court of Criminal Appeals set aside the findings
and sentence of Appellant’s first court-martial based on the
Government’s failure to comply in a timely fashion with the
terms of the pretrial agreement involving deferral and waiver of
automatic forfeitures. See id. at 653. The court authorized a
rehearing on the charges at issue in the first court-martial,
but the convening authority decided to not retry Appellant. Id.
During appellate review of Appellant’s second court-martial
-- the case now before us -- the Court of Criminal Appeals
considered the impact of its earlier decision to set aside
Appellant’s first conviction. Id. at 653-57. The court
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determined that admission into evidence of Appellant’s “prior
court-martial conviction that was subsequently reversed was a
constitutional error, but that the error was harmless beyond a
reasonable doubt.” Id. at 653.
II. DISCUSSION
R.C.M. 1001 sets out the presentencing procedure for
courts-martial, including the rules governing the presentation
of sentencing evidence. The prosecution’s evidence may include
the accused’s service data from the charge sheet, personal data
and evidence as to the character of the accused’s prior service,
evidence of prior military or civilian convictions, evidence in
aggravation, and evidence of rehabilitative potential. R.C.M.
1001(b)(1)-(5).
For the purpose of admitting a prior conviction into
evidence, a court-martial “conviction” occurs “when a sentence
has been adjudged.” R.C.M. 1001(b)(3)(A). Under the rule, the
prosecution may introduce evidence of a prior conviction during
“[t]he pendency of an appeal therefrom.” R.C.M. 1001(b)(3)(B).
The validity of the sentence in the later court-martial may be
affected, however, if the prior conviction introduced during
sentencing is reversed on appeal. See United States v. Tucker,
404 U.S. 443, 447-48 (1972); United States v. Alderman, 22
C.M.A. 298, 302, 46 C.M.R. 298, 302 (1973). In such an
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instance, we test for prejudice from admission of that prior
conviction by determining whether the sentence in the later
court-martial “might have been different” had the conviction not
been introduced during sentencing. Tucker, 404 U.S. at 448;
Alderman, 22 C.M.A. at 302, 46 C.M.R. at 302.
In the course of evaluating potential prejudice, we
consider whether the same information otherwise would have been
admissible at the sentence proceeding and at a sentence
rehearing. See United States v. Wingart, 27 M.J. 128, 134
(C.M.A. 1988) (“Even though trial counsel did not offer the
evidence on this basis, there would be little point in setting
aside the sentence if the challenged evidence clearly would be
admissible at a rehearing.”).
The fact that information is inadmissible on sentencing as
a record of conviction does not preclude its admission on other
grounds under R.C.M. 1001(b) if relevant and reliable. See
United States v. Ariail, 48 M.J. 285, 287 (C.A.A.F. 1998). As
noted in Section I.B. supra, the record of Appellant’s
conviction at the first court-martial contained considerable
detail concerning sexual abuse of his stepdaughter. In light of
the reversal of Appellant’s first conviction, the issue before
us is whether the information contained in that record of
conviction otherwise was admissible during sentencing.
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R.C.M. 1001 constitutes the gate through which such matters
must pass during sentencing. See Wingart, 27 M.J. at 135.
R.C.M. 1001(b)(4), which authorizes the prosecution to “present
evidence as to any aggravating circumstances directly relating
to or resulting from the offenses of which the accused has been
found guilty,” provides one route through that gate.
We recognized in Wingart that “uncharged misconduct will
often be admissible as evidence in aggravation under” R.C.M.
1001(b)(4). 27 M.J. at 135. In Wingart, we considered
admissibility of uncharged misconduct during sentencing when the
evidence had not been introduced during findings. Id. at 134.
We noted that, under M.R.E. 404(b), evidence of uncharged
misconduct expressly was inadmissible as a general matter to
show propensity to commit the charged crime, but that it may be
admissible for other purposes. Id. at 134-35. We cited the
view of the drafters that R.C.M. 1001(b)(4) did not “authorize
admission of evidence of uncharged misconduct merely because
under some circumstances that evidence might be admissible
[under another rule] in a contested case to prove an offense for
which the accused is being tried.” Id. at 135.
The analysis in Wingart focused on the general rule
governing evidence of uncharged misconduct, M.R.E. 404(b),
noting that such evidence is “inadmissible unless there is some
purpose to be served by its reception other than to show that
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the accused is predisposed to commit crime.” Id. at 136. We
observed that “it often is very difficult to determine in
advance whether evidence of uncharged misconduct will qualify
for admission in a particular case,” and that R.C.M. 1001(b)(4)
was not designed “to introduce into sentencing proceedings all
the complex issues which are present in applying [Military Rule
of Evidence (M.R.E.)] 404(b) in a contested case.” Id. at 135.
Accordingly, we concluded that M.R.E. 404(b) does not provide a
basis for admission of evidence during sentencing that is not
otherwise admissible under R.C.M. 1001(b)(4). Id. at 135-36;
see, e.g., United States v. Nourse, 55 M.J. 229 (C.A.A.F. 2001)
(evidence of uncharged misconduct demonstrating a continuing
course of conduct is admissible in aggravation during sentencing
under R.C.M 1001(b)(4) because it is directly related to the
charged offense).
In the present case, the issue is not admissibility of
prior misconduct evidence under the general provisions of M.R.E.
404(b) covering “[o]ther crimes, wrongs, or acts.” Instead, the
question is whether the evidence would have been admissible
through the gateway provided by R.C.M. 1001. In making this
assessment, we consider the more specific provisions of M.R.E.
414, rather than R.C.M. 404(b). M.R.E. 414, which addresses the
admissibility of evidence of similar crimes in child molestation
cases, was adopted subsequent to our decision in Wingart. See
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Exec. Order No. 13,086, 3 C.F.R. 155 (1999). M.R.E. 414, and
its companion rule, M.R.E. 413 (evidence of similar crimes in
sexual assault cases) are based on Fed. R. Evid. 414 and Fed. R.
Evid. 413, as enacted by Congress. Manual for Courts-Martial,
United States, Analysis of the Military Rules of Evidence app.
22 at A22-36 to A22-37 (2005 ed.).
Under M.R.E. 414(a):
In a court-martial in which the accused is
charged with an offense of child
molestation, evidence of the accused’s
commission of one or more offenses of child
molestation is admissible and may be
considered for its bearing on any matter to
which it is relevant.
M.R.E. 414, like M.R.E. 413, establishes a presumption in favor
of admissibility of evidence of prior similar crimes in order to
show predisposition to commit the designated crimes. See United
States v. Wright, 53 M.J. 476, 482-83 (C.A.A.F. 2000). As such,
M.R.E. 414 stands in sharp contrast to M.R.E. 404(b), at issue
in Wingart, which bars uncharged misconduct as evidence of
predisposition.
The structure of M.R.E. 404(b) permits admission of
evidence of other crimes, wrongs, or acts only upon a showing by
the proponent of a specifically relevant purpose to be served
under the circumstances of the particular case. United States
v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002). In that context,
we declined to hold in Wingart that the potential, abstract
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admissibility of uncharged misconduct under M.R.E. 404(b) could
meet the requirement of R.C.M. 1001(b)(4) that evidence in
aggravation involve “circumstances directly relating to or
resulting from the offenses of which the accused has been found
guilty.” See 27 M.J. at 135-36.
M.R.E. 414, however, does not contain a prohibition against
predisposition evidence. Instead, in a court-martial for child
molestation, M.R.E. 414 provides a vehicle for the admissibility
of other acts of child molestation committed by the accused.
The rule reflects a presumption that other acts of child
molestation constitute relevant evidence of predisposition to
commit the charged offense. As such, in a child molestation
case, evidence of a prior act of child molestation “directly
relat[es] to” the offense of which the accused has been found
guilty and is therefore relevant during sentencing under R.C.M.
1001(b)(4). See M.R.E. 401 (providing that evidence is relevant
if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more
probable . . . than it would be without the evidence”); 1
Stephen A. Saltzburg et al., Military Rules of Evidence Manual §
401.02 (5th ed. 2003) (discussing the low threshold for
determining relevance under the M.R.E.).
Evidence under M.R.E. 413 and M.R.E. 414 is subject to a
balancing test pursuant to M.R.E. 403, under which relevant
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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.” See United
States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (applying the
balancing test to evidence considered under M.R.E. 413). In the
present case, the M.R.E. 414 predisposition evidence would have
been admissible under R.C.M. 1001(b)(4), subject to balancing.
Because the evidence was admitted without objection as a prior
conviction under R.C.M. 1001(b)(3)(A), the military judge did
not conduct a balancing test in the context of M.R.E. 414.
Accordingly, we review the evidence in this light without giving
any deference to the decision of the military judge. United
States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).
In the context of the evidence at issue, we conclude that
the absence of balancing under M.R.E. 403 and M.R.E. 414 does
not constitute prejudicial error. The information as to
Appellant’s prior misconduct offered at this trial depict
Appellant’s sexual molestation of a member of his family -- his
fifteen-year-old stepdaughter -- during the same period of time
as he committed the offenses of which he now stands convicted,
which involved sexual abuse of another member of his family --
his ten-year-old biological daughter. Under the circumstances
of this case, including Appellant’s concurrent sexual abuse of
two different minor members of his family, the absence of
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balancing under M.R.E. 403 and M.R.E. 414 during sentencing was
harmless beyond a reasonable doubt.
III. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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BAKER, Judge (concurring in the result):
The majority concludes that prior acts of child molestation
under Military Rule of Evidence (M.R.E.) 414 are always relevant
during sentencing under Rule for Courts-Martial (R.C.M.)
1001(b)(4) as evidence directly relating to the offense of which
the accused has been found guilty. However, the majority skips
an important analytic step. Although such evidence is
presumptively admissible under M.R.E. 414, it must still be
relevant to be admitted and considered.1 M.R.E. 414 states: “In
a court-martial in which the accused is charged with an offense
of child molestation, evidence of the accused’s commission of
one or more offenses of child molestation is admissible and may
be considered for its bearing on any matter to which it is
relevant.” (emphasis added). This requires a case-by-case
determination that the evidence is relevant, as opposed to the
blanket presumption adopted by the Court today.
Recently, in another case involving interpretation of
M.R.E. 414, this Court reiterated the United States Supreme
Court’s long-standing, fundamental rule of statutory
interpretation “‘that courts must presume that a legislature
says in a statute what it means and means in a statute what it
says there.’” United States v. James, 63 M.J. 217, 221
1
As the text of M.R.E. 414 is clear, we need not refer to the
legislative history to address the question presented.
United States v. Tanner, No. 05-0710/NA
(C.A.A.F. 2006) (quoting Connecticut Nat’l Bank v. Germain, 503
U.S. 249, 253-54 (1992)). The same rule applies here, albeit
this time in a different context. M.R.E. 414 does not state
that such evidence must be admitted. Rather, the rule states
that such evidence “is admissible and may be considered for its
bearing on any matter to which it is relevant.” M.R.E. 414
(emphasis added). As the legislative history suggests, the
statement that such evidence is admissible is best understood in
relation to the normal treatment of such evidence under M.R.E.
404(b) (and its civilian counterpart, Fed. R. Evid. 404(b)), in
which it was normally excluded. As this Court noted in James,
“[p]rior to 1996, the admissibility of evidence of uncharged
misconduct in the military justice system was severely
restricted by M.R.E. 404(b) and the judicial application of the
rule.” 63 M.J. at 219. The Drafters’ Analysis of M.R.E. 414
states that the rule was “intended to provide for more liberal
admissibility of character evidence in criminal cases of child
molestation where the accused has committed a prior act of
sexual assault or child molestation.” Manual for Courts-
Martial, United States, Analysis of the Military Rules of
Evidence app. 22 at A22-37 (2005 ed.).
The requirement to determine that M.R.E. 414 evidence is
both logically and legally relevant is borne out by this Court’s
opinion in James. There, this Court held that uncharged
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misconduct under M.R.E. 414 was admissible regardless of whether
it occurred before or after the charged offense so long as it
was “otherwise relevant and admissible under M.R.E. 401, M.R.E.
402, and M.R.E. 403.” 63 M.J. at 218. Likewise, in United
States v. Wright, this Court established the “three threshold
findings” that are required before evidence can be admitted
pursuant to M.R.E. 413 (or M.R.E. 4142), including a
determination that “[t]he evidence is relevant under Rules 401
and 402.” 53 M.J. 476, 482 (C.A.A.F. 2000). Balancing under
M.R.E. 403 is also required, although not until the three
threshold findings have been satisfied. Id.In the sentencing context, R.C.M. 1001(b)(4) provides the
framework for determining whether M.R.E. 414 evidence is
relevant. Under R.C.M. 1001(b)(4), “directly relating to”
evidence must pertain to “any aggravating circumstances”
including, but not limited to, “evidence of financial, social,
psychological, and medical impact on or cost to any person or
entity who was the victim of an offense committed by the accused
. . . .” Informed by M.R.E. 414’s presumption of admissibility,
the phrase “directly relating to” is appropriately interpreted
broadly.
2
See James, 63 M.J. at 220 (“In light of the common history and
similar purpose of M.R.E. 413 and M.R.E. 414, there is no need
to distinguish the two rules for the purpose of our discussion
of the granted issue.”).
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In sum, although presumptively admissible under R.C.M.
1001(b)(4), evidence of uncharged sexual misconduct must be
relevant. See M.R.E. 414; see also M.R.E. 413. We consider
relevance in the sentencing context in light of this presumption
of admissibility.
In this case, the uncharged misconduct with Appellant’s
stepdaughter was, without question, “directly related to” his
charged offense and therefore relevant because it involved the
same family, the same time frame, and the same types of acts.
See United States v. Mullens, 29 M.J. 398, 400 (C.M.A. 1990)
(allowing evidence of uncharged sexual misconduct on more than
one of the appellant's children under R.C.M. 1001(b)(4) where
those same children were also the object of similar charged
offenses). Cf. United States v. Wingart, 27 M.J. 128, 136
(C.M.A. 1988) (holding that photographs of a separate child
victim in the appellant’s trial for indecent acts with a child
were not properly admissible under R.C.M. 1001(b)(4)).
Therefore, I concur in the result.
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