UNITED STATES v. GRUBB (2023)

A general court-martial composed of members with enlisted representation convicted Appellant, contrary to his pleas, of two specifications of sexual assault of a child in violation of Article 120b, Uniform Code of Military Justice [UCMJ].¹ The military judge sentenced Appellant to a dishonorable discharge, reduction to paygrade E-1, and confinement totaling four years.

Appellant asserts five assignments of error [AOEs]: (1) the military judge committed structural error by sentencing Appellant under sentencing rules which came into effect on 1 January 2019 despite that the charge and both specifications alleged offenses committed before 1 January 2019; (2) the military judge committed structural error by allowing a statutory rape trial to be tried in an elementary school classroom; (3) the military judge abused her discretion by denying a defense request for a continuance; (4) the military judge misapplied Military Rules of Evidence [Mil. R. Evid.] 414 and 403 by allowing trial counsel to introduce unfairly prejudicial propensity evidence regarding Appellant's sexual relationship with his high school girlfriend; and (5) the military judge abused her discretion by sustaining trial counsel's objection as to relevance when the defense sought to cross-examine a complaining witness as to whether a free trip to Hawaii constituted bias insofar as it motivated her to testify. We find merit in Appellant's fourth AOE and take action in our decretal paragraph rendering a review of AOEs 1, 2, 3 and 5 unnecessary.

I. BACKGROUND

The case before us stems from alleged sexual relations Appellant had with minor girls in his hometown of Morgantown, Kentucky, during two specific periods of time: (i) prior to 16 October 2017, which is the date he joined the Marine Corps, and (ii) while he was home on leave in the summer of 2018.

Two specifications of sexual assault of a child in violation of Article 120b, UCMJ, were preferred against Appellant. These specifications related to victims Ms. Bravo and Ms. Lima.² An additional charge also alleged a violation of Article 120b, UCMJ, but related to Ms. Sigma, Appellant's high school girlfriend. All charges and specifications were alleged to have occurred before 1 January 2019. Specifically, the allegations regarding Ms. Sigma were alleged to have occurred between 1 June 2017 and 1 August 2018; and the allegations relating to Ms. Bravo and Ms. Lima were alleged to have occurred between on or about 1 June 2018 and on or about 2 July 2018.

In addition to the charges and specifications above, Appellant was originally charged with an unrelated offense alleged to have occurred after 1 January 2019.³ Appellant's case thus involved “straddling offenses” relative to new procedural rules arising from the passage of the Military Justice Act of 2016 [MJA 16].⁴ Accordingly, Appellant was required to elect which sentencing rules would apply in his court-martial prior to being arraigned.⁵ The military judge advised Appellant of his forum and sentencing options pursuant to MJA 16. Appellant elected trial by members with enlisted representation and chose to be sentenced by the military judge under the MJA 16 rules.

Before trial, Ms. Sigma notified the Government that she no longer wanted to participate in the trial as a witness. The defense was then advised of the Government's intent to use information regarding Ms. Sigma as propensity evidence under Mil. R. Evid. 414 as it related to the Article 120b specifications involving Ms. Bravo and Ms. Lima. The Government then withdrew and dismissed the charge related to Ms. Sigma.

The defense filed a motion to preclude the Mil. R. Evid. 414 matters relating to Appellant's relationship with Ms. Sigma. The military judge heard argument regarding the propensity evidence offered by the Government under Mil. R. Evid. 414.⁶ Appellant argued that the motion to exclude was supported by Kentucky state law and a Naval Criminal Investigation Service interview of Ms. Sigma.⁷ Appellant's position was that Kentucky law ⁸ did not criminalize his relationship with Ms. Sigma because the age difference between them was within the range protected by Kentucky law and, therefore, the sexual relationship did not amount to an offense.

The military judge denied the defense motion. The defense moved for reconsideration, which the military judge also denied.

Trial commenced at Appellant's general court-martial on the charges relating to Ms. Bravo and Ms. Lima.

The members convicted Appellant on both specifications and the military judge sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, reduction to paygrade of E-1, and confinement for four years (three years for Specification 1 (Ms. Bravo) and one year for Specification 2 (Ms. Lima), to be served consecutively).

II. DISCUSSION

A. Standard of Review and the Law

This Court reviews “a military judge's decision to admit evidence for an abuse of discretion.”⁹ “ ‘Abuse of discretion’ is a term of art applied to appellate review of the discretionary judgments of a trial court. An abuse of discretion occurs when the trial court's findings of fact are clearly erroneous or if the court's decision is influenced by an erroneous view of the law.”¹⁰ “Further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.”¹¹ “In reviewing a ruling on a motion to suppress, we consider the evidence in the light most favorable to the prevailing party.”¹²

Whether evidence admitted at court-martial constitutes proper propensity evidence under Mil. R. Evid. 414 is a question of law that we review de novo.¹³ This Court also reviews de novo questions involving the construction of statutes and regulatory rules.¹⁴

B. Analysis

We begin with an analysis of Mil. R. Evid. 414(a), which provides that, in a court-martial for 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. Before admitting evidence of other acts of child molestation under Mil. R. Evid. 414(a), a military judge is required to make three threshold findings:

(1) that the accused is charged with an act of child molestation as defined by [Mil. R. Evid.] 414(a);

(2) that the proffered evidence is evidence of his commission of another offense of child molestation, and;

(3) that the evidence is relevant under Mil. R. Evid. 401 and Mil. R. Evid. 402.15

“Additionally, the Court must apply a balancing test under Rule 403.”¹⁶

Neither party raises any issue concerning the first required threshold finding. “ ‘Child molestation’ means any offense punishable under the [UCMJ], or a crime under federal law or under state law ․ that involves: (A) any conduct prohibited by Article 120 and committed with a child, or prohibited by Article 120b.”¹⁷ The Article 120b charges Appellant faced clearly fall within the definitions of Mil. R. Evid. 414.

The second threshold finding is at the heart of the issue and raised as AOE 4: did the military judge misapply Military Rules of Evidence 414 and 403 by allowing the trial counsel to introduce unfairly prejudicial propensity evidence regarding Appellant's sexual relationship with his high school girlfriend?

The rule, in relevant part, requires that the Mil. R. Evid. 414 evidence proffered relate to “any other offense of child molestation.”¹⁸ Military Rule of Evidence 414(d)(2)(A)-(G) provides an exclusive list of offenses that qualify as offenses of child molestation. Thus, it does not give the military judge the discretion to admit uncharged misconduct in every case in which the accused has allegedly committed wrongdoing. Military Rule of Evidence 414(d) specifically states “child molestation” means an offense punishable under the UCMJ, or a crime under federal law or state law that involves:

(A) any conduct prohibited by Article 120 and committed with a child, or prohibited by Article 120b;

(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).19

“The rules of statutory construction, although generally applied to construe statutes, are helpful in analyzing evidentiary rules as well as other provisions of the Manual for Courts-Martial.”²⁰ We “begin by simply reading the plain language of the rule giving effect to every clause and word.”²¹ The words used in the rule “should be given their common and approved usage.”²² Following established precedent, we must construe the rule to avoid rendering any language superfluous or redundant.²³ Our superior Court has established that the text of Mil. R. Evid. 414 is read “strictly rather than expansively.”²⁴

We begin our analysis by examining the phrases, “an offense punishable under the [UCMJ]” and “a crime under federal law or under state law.”²⁵ In order to effectuate the regulatory language, the prior conduct must have been against the law at the time it occurred, that is, such conduct must have been “an offense punishable” under an applicable state or federal law.²⁶ “[Mil R. Evid.] 414, like its counterpart Fed. R. Evid. 414, 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.’ ”²⁷

Military judges should be especially cautious not to conflate the liberal admissibility underpinnings of Mil R. Evid. 414 with the threshold inquiries that must be strictly satisfied. The “liberal admissibility standard does not guide or inform its threshold inquiry: whether a prior act is one of child molestation.”²⁸ Our superior Court has noted the “inherent tension between the Rule and traditional concerns regarding convictions based on ‘bad character’ evidence. Such evidence has long been regarded as having the tendency to relieve the government of its constitutional burden to prove every element of the charged offense beyond a reasonable doubt.”²⁹ Thus, courts have interpreted whether an offense “qualifies” under Mil .R. Evid. 414 strictly, rather than expansively, and continue to require that the offense “fall[s] within the [rule's] specific definition.”³⁰

In this case, the fact that sexual intercourse occurred is not in dispute, nor is the fact that Ms. Sigma was 14 and turned 15 during the time the acts occurred.³¹ Additionally, neither party challenges the fact that sexual intercourse between the Appellant and Ms. Sigma occurred numerous times.³² What is in dispute is whether the sexual relationship ended on or before Appellant's enlistment on 16 October 2017, or if Appellant and Ms. Sigma had sex one additional time while he was on leave after he enlisted in the Marine Corps. For the purposes of our analysis we must distinguish between sexual relations that occurred before Appellant's enlistment and those that may have occurred after, because 16 October 2017 marks a bright line for establishment of UCMJ jurisdiction.

The military judge, in ruling on the defense's Mil. R. Evid. 414 motion, found the issue of whether sexual relations with Ms. Sigma occurred before or after Appellant enlisted in the Marine Corps to be relevant only as to jurisdiction, noting in his ruling that “․whether or not the uncharged misconduct․occurred before or after the accused's enlistment․would only resolve the․jurisdictional issue of whether the accused could be tried for his alleged misconduct at a court-martial.”³³ We disagree. The military judge's bundling of events relating to Ms. Sigma under a general concept of “sexual assault of a child” led to legal errors in his Mil. R. Evid. 414 and Mil. R. Evid. 403 analysis.

Consistent with the specific language of Mil. R. Evid. 414 and precedent established by the Court of Appeals for the Armed Forces [C.A.A.F.], the appropriate analysis involves a careful review of the specific acts alleged as Mil. R. Evid. 414 matters and their applicability under the rule. That requires consideration of the Appellant's pre-enlistment conduct as a separate issue from his alleged post-enlistment conduct.

1. Pre-Enlistment

We first begin by examining the admissibility of evidence of a sexual relationship between Appellant and Ms. Sigma prior to Appellant's enlistment on 16 October 2017. The Government suggests that so long as the act was an offense somewhere, in some jurisdiction, at the time it occurred, then evidence of that act would be properly admissible under Mil. R. Evid. 414. We disagree. Such a reading would not only render meaningless language within Mil. R. Evid. 414, but would also lead to absurd results. In the Government's view, essentially any enumerated offense in any state or federal jurisdiction, regard-less of its contemporaneous applicability to a specific accused, would suffice as propensity evidence under Mil. R. Evid. 414. With regard to UCMJ violations, both Articles 120 and 120b require that the individual charged be “subject to this chapter.”³⁴ We cannot overlook or ignore this jurisdictional requirement.

Article 2, UCMJ, states in part that “․a change in status from civilian to member of the armed forces shall be effective upon taking the oath of enlistment.”³⁵ There is no argument by the Government, and nothing in the record suggests, that Appellant was otherwise subject to the UCMJ prior to his enlistment on 16 October 2017. As Appellant was not subject to the UCMJ until his enlistment, the events prior to that date were not “punishable under the [UCMJ] for purposes of Mil. R. Evid. 414(d)(2). Nor do we find that, under these facts, those events constitute proper propensity evidence under Mil. R. Evid. 414(d)(2)(A)-(G).

The military judge's declaration that the defense available under Kentucky state law “does not change the character of the uncharged misconduct” fails to account for all the words of Mil. R. Evid. 414.³⁶ Kentucky Revised Statute [KRS] 510.120,³⁷ the only state or federal law identified as pertinent to this matter, provides, “(2) In any prosecution under section 1(a) of this section, it is a defense that:

(a) The other person's lack of consent was due solely to incapacity to consent by reason of being less than sixteen (16) years old; and

(b) The other person was at least fourteen (14) years old; and

(c) The actor was less than five (5) years older than the other person.38

The Kentucky Instructions to Juries § 4.51 ³⁹ further highlight this “Romeo and Juliet”⁴⁰ provision. Jurors in Kentucky would be instructed:

“You will find the Defendant guilty․if, and only if, you believe․all of the following․ That at the time of such occurrence (defendant) was at least eighteen (18) years old and at least five (5) years older than the victim.”⁴¹

The evidence is clear that Appellant was 18 years old and turned 19 on the day he enlisted in the Marine Corps, thus meeting the first prong of Kentucky Instructions to Juries § 4.51 that the “(defendant) was at least eighteen (18) years old․”⁴² Equally clear is that Ms. Sigma was 14 years old and turned 15 during the course of her sexual relationship with Appellant.⁴³ Therefore, during Appellant's pre-enlistment relationship, there was never a disparity in the ages of Ms. Sigma and Appellant greater than five years; and so, the second prong of Kentucky Instructions to Juries § 4.51 that the (defendant) was “at least five (5) years older than the victim” could not be met. In addition, there is no evidence in the record to suggest that the sexual relationship between Ms. Sigma and Appellant was anything other than purely consensual. Consequently, Appellant could not have been punished under Kentucky law for having otherwise consensual sexual relations with Ms. Sigma during this period.⁴⁴

Hence, the second threshold finding of Mil. R. Evid. 414, “that the proffered evidence is evidence of his commission of another offense of child molestation,” must be answered in the negative. Under these circumstances any sexual relationship between Appellant and Ms. Sigma prior to 16 October 2017 is not admissible under Mil. R. Evid. 414 and its admission by the military judge was an abuse of discretion.

2. Post-Enlistment

We next examine the admissibility of evidence of alleged sexual relations between Appellant and Ms. Sigma after Appellant's enlistment. As discussed, supra, there is no debate that the first threshold finding – that the accused is charged with an act of child molestation as defined by Mil. R. Evid. 414(a) – is met. Once enlisted, Appellant was subject to the UCMJ and Article 120b, UCMJ. Ms. Sigma was fifteen years old during the time period when the alleged post-enlistment sexual conduct took place.⁴⁵ Under Article 120b, UCMJ, the age of consent is sixteen years.⁴⁶ Therefore, the second threshold question of Mil. R. Evid. 414 – that the proffered evidence is evidence of his commission of another offense of child molestation – would be met.

The final threshold question “that the evidence is relevant under Mil. R. Evid. 401․and Mil. R. Evid. 402,” must then be resolved.⁴⁷ In his ruling on Mil. R. Evid. 414, the military judge summarily found the evidence “relevant and admissible under M.R.E. 401 and 402 as it has a tendency to make facts of consequence more probable than they would be without the evidence, namely, that the accused committed the charged offenses of child molestation because he has a propensity to do so.”⁴⁸ This analysis, however, was predicated on the admissibility of the entire spectrum of the sexual relationship between Appellant and Ms. Sigma. Once Mil. R. Evid. 414 is properly applied to the facts, there remains just one alleged sexual encounter and, as such, the military judge's Mil. R. Evid. 401 and 402 analysis becomes more suspect.

Relevance under Mil. R. Evid. 401 and Mil. R. Evid. 402 is enforced through Mil. R. Evid. 104(b).⁴⁹ Under Mil. R. Evid 104(b), “[t]he court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ․ by a preponderance of the evidence.”⁵⁰ In Huddleston v. United States, the Supreme Court resolved the issue of whether trial courts must make a preliminary finding before “similar act” evidence is submitted to the jury. The Supreme Court found that a trial court did not need to make a finding by a preponderance of the evidence that the acts occurred in order to admit such evidence. Instead, this type of evidence should be admitted if there is sufficient evidence such that the jury could conclude, based on a preponderance of the evidence, that the defendant committed the similar act.⁵¹ Put differently, the trial court only needs to assess whether there is enough evidence for a reasonable jury to reach the conclusion under a preponderance standard.⁵²

The military judge's ruling indicates his view that “[t]he [Appellant's] admissions, corroborated by Ms. K.W.⁵³ and statements of [Ms. Sigma]․is a primary source for both the uncharged misconduct as well as the charged offenses [pertaining to the other victims].”⁵⁴ This is notable in that Appellant denied any post-enlistment sexual relations with Ms. Sigma,⁵⁵ K.W. clarified that the statements in question were about Ms. Bravo not Ms. Sigma ⁵⁶ and Ms. Sigma never testified in this case. Having reviewed all the evidence in this case, even in light of the holding in Huddleston, we have doubts that a jury could have reasonably found by a preponderance of the evidence that Appellant had sexual relations with Ms. Sigma, at some time after his enlistment.

However, we need not resolve the Mil. R. Evid. 401 and 402 issue at this stage because in addition to the three-part test established by Mil. R. Evid. 414, the military judge must also conduct a Mil. R. Evid. 403 balancing analysis. We find that the military judge abused his discretion in applying the Mil. R. Evid. 403 balancing test, and thus do not need to reach the issue of relevance under Mil. R. Evid. 104(b).

C. Mil .R. Evid. 403 Analysis

A military judge must apply, among other factors, those identified in Wright, including: “[s]trength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; and time needed for proof of prior conduct. ․ temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties.”⁵⁷

When conducting the Mil. R. Evid. 403 balancing test in this case, the military judge should have weighed the very limited post-enlistment evidence alone. Instead, the military judge applied the factors to the totality of the sexual relationship: including admissions by Appellant that he had sex with Ms. Sigma when she was fourteen, Ms. Sigma's birth certificate, and statements by Ms. Sigma. This was an erroneous application of Mil. R. Evid. 414 to the relevant evidence. Had the military judge properly limited his analysis to the single third-party report of sexual conduct in 2018, his conclusion would have been outside the range of reasonable options. Evidence related to the 2018 allegation regarding Ms. Sigma lacks probative value and is confusing. In toto it is not favorable to the Government and amounts to a single unrecorded report that lacks specifics and contradicts other statements by Ms. Sigma. The contradictory evidence included Ms. Sigma, on several occasions, while being interviewed, failed to mention the post-enlistment sexual contact and Appellant's denial of sexual relations with Ms. Sigma after he enlisted.⁵⁸ The Government argues that “․the text messages would have been admissible to prove the Appellant's ‘child molestation’ after he joined the Marine Corps.”⁵⁹ We disagree. Where the Government champions the fact that the text messages “do not specify a timeframe for the sexual relationship” as a basis for their admission, we find that this erodes any probative value of the text messages and greatly increases both confusion of the matter.⁶⁰ Because the military judge's application of the law related to the Mil. R. Evid. 414 material under these facts was flawed, his application of the Mil. R. Evid. 403 balancing test given that flawed understanding, was erroneous. Thus, we find he abused his discretion in admitting the Mil. R. Evid. 414 matters into evidence.

D. Prejudice Analysis

Under Article 59(a), UCMJ, a “finding or sentence of a 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 [appellant].”⁶¹ The question of whether there was material prejudice to a substantial right of Appellant is answered by determining if “the error had a substantial influence on the findings.”⁶² To evaluate whether there was a substantial influence on the findings, this Court considers four factors [the Kerr factors] de novo: (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.⁶³

While the Government asks that this Court consider the Kerr factors in toto, we find it is necessary, given the nature of the charges and the material in question, to discuss the first two factors relating to the charged abuse of Ms. Bravo and Ms. Lima independently.⁶⁴

a. Ms. Bravo.

The Government's case was relatively strong. While there was no DNA or physical evidence to support the first specification of the charge, the Government's evidence consisted of Ms. Bravo's testimony, supporting testimony of another witness, and admissions by Appellant in the form of text messages to a friend.⁶⁵ In addition, the defense conceded that sexual intercourse occurred with Ms. Bravo in its opening statement and focused throughout the case on a mistake of fact defense as to Ms. Bravo's age. We therefore find that the Government had a relatively strong case and the first factor weighs in favor of there being no substantial impact on the findings.

Conversely, the defense case was relatively weak. The defense's case, offered exclusively through cross-examination, related to the lack of trustworthiness and lack of truthfulness of Ms. Bravo. The defense elicited from Ms. Bravo and others that Ms. Bravo had not been truthful about her age; however, the defense was unable to elicit specifically that Ms. Bravo told Appellant that she was sixteen at the time of the charged offense. We therefore find that the defense had a relatively weak case and the second factor weighs in favor of there being no substantial impact on the findings.

b. Ms. Lima.

The Government's case related to Ms. Lima was weak. Direct examination on the specific topic of sexual intercourse amounted to the following:

ATC: And when you and [Appellant] went to your bedroom, what did you all do?

Ms. Lima: We started having sex.

ATC: When you say you all started having sex, what do you mean?

Ms. Lima: He stuck his penis in my vagina.

ATC: How do you know he stuck his penis in your vagina?

Ms. Lima: He penetrated.66

While this colloquy may meet the minimum threshold of “some evidence” to survive a challenge under R.C.M. 917, the Government was handicapped by varying versions of the events told by Ms. Lima, and a lack of corroboration of sexual contact, other than a statement by Ms. Lima's mother. Unlike the evidence related to Ms. Bravo, the evidence related to Ms. Lima was essentially unsupported. We therefore find that the Government had a relatively weak case involving Ms. Lima, and thus the first factor weighs in favor of there being a substantial impact on the findings.

Similarly, the defense's case relative to Ms. Lima was relatively strong. The defense's case, presented solely through cross-examination, highlighted Ms. Lima's contradictory statements about the particularities of sexual intercourse and whether intercourse with Appellant even occurred. The defense successfully called into question Ms. Lima's testimony, memory, and motives. The defense also elicited testimony from Ms. Lima's mother that called into question the veracity of Ms. Lima's testimony. Specifically, on cross-examination, Ms. Lima's mother confirmed that Ms. Lima had previously told her “․that they went somewhere and had intercourse.”⁶⁷ This contradicted prior testimony regarding both the conversation of prior sexual contact and the location of the alleged act. We find that this factor also weighs in favor of finding that the inadmissible evidence had a substantial impact on the findings with regard to the specification involving Ms. Lima.

c. Remaining Kerr Factors:

Given the nature of the Mil. R. Evid. 414 evidence in question, specifically text messages and testimony regarding Ms. Sigma, rather than testimony from Ms. Sigma, we must consider it in its totality as applied to the remaining Kerr factors. Weighing the materiality of the Mil. R. Evid 414 evidence, we echo the C.A.A.F.’s guidance in United States v. Fetrow that:

evidence erroneously admitted under M.R.E. 414 is unlike most evidentiary error. The very nature of propensity evidence is to permit the trier of fact to infer that since the accused has acted previously in a certain fashion, he was inclined to have acted in conformity with that conduct with respect to the charged offenses.68

“Material” is defined as “important; more or less necessary; having influence or effect․.”⁶⁹ The Mil. R. Evid. 414 evidence admitted in this case played a significant role in the Government's presentation. Essentially, the military judge's erroneous evidentiary ruling related to Ms. Sigma improperly invited the Government to use evidence of bad character against Appellant in violation of Mil. R. Evid. 404(b)(1). While the invitation to use such evidence alone may not have been sufficient, the record reveals that trial counsel referred to Ms. Sigma more than a dozen times during witness examination; offered multiple items into evidence identifying Ms. Sigma and her age (including her birth certificate);⁷⁰ and during both summation and rebuttal argument, highlighted Appellant's relationship with Ms. Sigma, specifically addressing propensity:

[T]he military judge also talked to you about propensity and what you can do with it. That [Appellant]․ acknowledges having sex with [Ms. Sigma]․told you who [Ms. Sigma] was. [Ms. Sigma] was his fourteen and then fifteen-year-old girlfriend. You have [Ms. Sigma]’s birth certificate to know exactly how old she was.71

In addition to naming Ms. Sigma and presenting propensity evidence related to Appellant's relationship with her, the trial counsel, in both opening statement and closing argument, made reference to “high school freshmen” and “middle schoolers.”⁷² At the time of the allegations in this case, Ms. Bravo and Ms. Lima were in the seventh and eighth grade respectively.⁷³ The general characterization of “high school freshmen” and “middle schoolers” effectively encompassed Ms. Sigma and the Appellant's relationship with her.

The Government contends the evidence is not material: “Indeed, Trial Counsel only mentioned the issue briefly in his closing argument.”⁷⁴ We disagree. Trial counsel mentioned Ms. Sigma by name at least nine times in closing argument and referred to her several other times.⁷⁵ During rebuttal, the Government referred to Ms. Sigma by name four additional times.⁷⁶ Trial counsel highlighted propensity as a consideration in both arguments. The erroneously admitted evidence was material to the Government's case on the merits and in its argument. Thus this factor weighs heavily in favor of the erroneously admitted evidence having a substantial influence on the findings.

Finally, we turn to the fourth Kerr factor – the quality of the evidence in question. The Government suggests the evidence was of low quality.⁷⁷ We disagree. We find the evidence compelling and highly prejudicial. Prosecution Exhibits 27 and 28 unquestionably put the facts of Appellant's sexual relationship with Ms. Sigma, a fourteen year old, in front of the members. Evidence of Appellant's relationship with Ms. Sigma and her age became such a highlighted chapter in the Government's case through testimony, evidentiary documents and argument as to distract from the charges before the court. Even recognizing the nature of the Government's case regarding Ms. Bravo, the relationship with Ms. Sigma improperly categorized Appellant as having sexual interest in children and effectively put him on trial for his high school relationship with her. “Whatever one might be inclined to infer about Appell[ant] from the charged offenses, the potential inferences raised by this erroneously admitted evidence were improper.”⁷⁸

After weighing the Kerr factors and considering the state of the evidence before us, we are not convinced that the improperly admitted evidence did not have a substantial influence on the findings as to both specifications, “resulting in something less than a fair trial for Appell[ant].”⁷⁹ The defense's position with regard to Specification 1 (Ms. Bravo) was an acknowledgement that sex occurred, but offering mistake of fact as to Ms. Bravo's age as a defense. The improperly admitted evidence regarding Ms. Sigma and her age openly undermines this position, as highlighted in both the Government's closing argument and rebuttal. Effectively, the material related to Ms. Sigma played an improper role in responding to the defense case theory related to Ms. Bravo. With regard to Specification 2 (Ms. Lima), the Defense maintained that sex never occurred and the lack of supporting evidence with regard to that charge makes it difficult to be certain Appellant was convicted of Specification 2 of the Charge on the strength of the evidence alone. Although it is certainly possible that the members convicted Appellant based solely on the testimony of his accusers, we are not convinced that the erroneous underlying intimation regarding Ms. Sigma did not substantially influence the findings in Appellant's case in its entirety.

In addition to the Kerr factors we must determine if the evidence in question was obvious from other sources which were properly admitted into evidence. “When a fact was already obvious from ․ testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless. Conversely, where the evidence does provide new ammunition, an error is less likely to be harmless.”⁸⁰ In this case the information related to Ms. Sigma was logically relevant only to the propensity argument pursued by the Government. There is no indication in the record that Ms. Sigma was present during the acts alleged against Ms. Bravo or Ms. Lima, or that Appellant's high school relationship with Ms. Sigma played any part in facilitating or effecting these alleged offenses. We therefore consider the evidence related to Ms. Sigma to be “new ammunition” and find its admission prejudicial to Appellant's substantial rights.

E. Member's Instructions

While precisely tailored instructions to the members in this case may have mitigated the prejudice to Appellant for purposes of finding harmless error, that was not the case here. We cannot escape the conclusion that Appellant suffered unfair prejudice from the inclusion of the matters related to Ms. Sigma despite the military judge providing a limiting instruction on KRS § 510.120.⁸¹ The military judge's instructions and judicial notice explanation consistently and prejudicially referred to “another sexual offense” with Ms. Sigma.⁸² The military judge instructed the members, first, that there was a defense under Kentucky law; then that Appellant “may have committed another sexual offense with․ [Ms. Sigma]”⁸³ and that they could “consider the evidence of this offense for its bearing on any matter to which it is relevant to include its tendency, if any, to show the accused's propensity to engage in sexual offenses with children.”⁸⁴ The military judge's instruction permitted members to use Appellant's lawful high school relationship with Ms. Sigma to show Appellant's “propensity to engage in sexual offenses with children.”⁸⁵ “Absent evidence to the contrary, this Court may presume that members follow a military judge's instructions,”⁸⁶ and we must assume, in this case, that the members used the erroneously admitted propensity evidence in a manner consistent with those instructions. Accordingly, we also assume that the members were influenced by the language used and prejudiced by the suggestion that the Appellant had committed “other sexual offenses.” We conclude, therefore, that the admission and instruction on the use of evidence relating to Ms. Sigma had a “substantial influence on the findings,”⁸⁷ and materially prejudiced Appellant's substantial rights.⁸⁸

We find that the error related to evidence regarding Ms. Sigma permeated the trial and the delivery of instructions related to Ms. Sigma and the permissive use of this evidence as propensity against the Appellant was highly prejudicial. We find the admission of the Mil. R. Evid. 414 material relating to Ms. Sigma was prejudicial error that was not harmless.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, we have determined that, due to erroneous admission of the Mil. R. Evid. 414 material arising from the military judge's misapplication of the law, the findings and sentence are SET ASIDE. A rehearing is authorized.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

FOOTNOTES

1.   10 U.S.C. § 920b (2016).

2.   All names used in this opinion, other than Appellant, appellate counsel, and the judges, are pseudonyms.

3.   The second additional charge against Appellant alleged two specifications in violation of Article 112a, UCMJ. These violations were alleged to have occurred after 1 January 2019. All charges and specifications were referred together to a general court-martial. Appellant entered into a plea agreement that disposed of the Second Additional Charge at a special court-martial. See United States v. Grubb, No. 202100156, 2022 CCA LEXIS 174 (N-M Ct. Crim. App. Mar. 22, 2022).

4.   National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, §§ 5321–38, 5542, 130 Stat. 2000, 2923–37, 2967–68 (2016) (codified as 10 U.S.C. §§ 860–70) [FY 2017 NDAA].

5.   Rule for Courts-Martial [R.C.M.] 902a.

6.   App. Ex. XIII.

7.   App. Ex. XII; App. Ex. VIII.

8.   Ky. Rev. Stat. § 510.120; App. Ex. XII.

9.   United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002).

10.   United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)).

11.   United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992))

12.   United States v. Cowgill, 68 M.J. 388, 390 (C.A.A.F. 2010) (quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)).

13.   United States v. Yammine, 69 M.J. 70, 73 (C.A.A.F. 2010).

14.   United States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015).

15.   See United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000) (requiring threshold findings before admitting evidence under Mil. R. Evid. 413); United States v. Dewrell, 55 M.J. 131, 138 n.4 (C.A.A.F. 2001) (“As Rules 413 and 414 are essentially the same in substance, the analysis for proper admission of evidence under either should be the same.”).

16.   Id., at 482.

17.   Mil. R. Evid. 414(d)(2)(A).

18.   See Mil. R. Evid. 414(a).

19.   Mil R. Evid. 414(d)(2)(A)-(G).

20.   United States v. Fetrow, 76 M.J. 181 (C.A.A.F. 2017).

21.   Duncan v. Walker, 533 U.S. 167, 172 (2001); United States v. Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014).

22.   United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F. 2003) (internal quotation marks omitted) (citing United Scenic Artists v. NLRB, 762 F.2d 1027, 1032 n.15 (D.C. Cir. 1985)).

23.   See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995); Murphy Exploration & Prod. Co. v. United States DOI, 252 F.3d 473, 481 (D.C. Cir. 2001).

24.   Yammine, 69 M.J. at 75.

25.   Mil R. Evid. 414(d)(2).

26.   Id.

27.   United States v. Schroder, 65 M.J. 49, 55 (C.A.A.F. 2007) (quoting Manual for Courts-Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22-37).

28.   Yammine, 69 M.J. at 75.

29.   Id.

30.   Yammine, 69 M.J. at 75 (quoting Schroder, 65 M.J. at 53).

31.   Pros. Ex. 29.

32.   R. at 26; see also App. Ex. XV at 7.

33.   App. Ex. XV.

34.   Articles 120 & 120b, UCMJ.

35.   Article 2, UCMJ.

36.   App. Ex. XV.

37.   Ky. Rev. Stat. § 510.120; App. Ex. XII.

38.   Ky. Rev. Stat. § 510.120(2)(a)-(c).

39.   1 Cetrulo, Kentucky Instructions to Juries - Crim § 4.51 (2021); Appellate Ex. XVI

40.   Provisions of statutory laws in some states that pertain to individuals under the age of consent who engage in sexual intercourse, when there is a minor age difference.

41.   1 Cetrulo, Kentucky Instructions to Juries - Crim § 4.51 (2021) (emphasis added).

42.   R. at 585

43.   Pros. Ex. 29.

44.   While Ky. Rev. Stat. § 510.120 prohibits sexual relations with an individual under the age of sixteen years, § 510.120(2) specifically precludes a conviction under the facts and circumstances of this case. Therefore, even if “a crime” under Mil. R. Evid. 414 was given a broad reading, the military judge should have been aware that no conviction was possible under these facts. Accordingly, the related evidence was not relevant and should not have survived the required Mil. R. Evid 403 balancing test.

45.   Pros. Ex. 29

46.   Article 120b, UCMJ.

47.   Wright, 53 M.J. at 482.

48.   App. Ex. XV

49.   Wright, 53 M.J. at 483.

50.   Huddleston v. United States, 485 U.S. 681, 690 (1988).

51.   Id at 685.

52.   Id. at 690.

53.   K.W. was called as a witness by the Government and was the sponsor of several Prosecution Exhibits including Pros. Ex. 27.

54.   App. Ex. XV.

55.   R. at 30.

56.   R. at 415.

57.   Wright, 53 M.J. at 482.

58.   Appellant testified during the motions session and admitted sexual relations with Ms. Sigma prior to his enlistment, but denied sexual relations with her, or even seeing her, during the period in question. R. at 30.

59.   Gov't Brief at 38.

60.   Gov't Brief at 38.

61.   Article 59(a), UCMJ.

62.   United States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019).

63.   United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007) (explaining that pursuant to “nonconstitutional harmless error analysis, we conduct a de novo review to determine whether this error had a substantial influence on the members’ verdict in the context of the entire case” by applying the four factors); see also United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1991).

64.   Gov't Brief at 38.

65.   Pros. Ex. 28.

66.   R. at 500.

67.   R. at 542.

68.   United States v. Fetrow, 76 M.J. 181, 188 (C.A.A.F. 2017).

69.   Material, Black's Law Dictionary (9th ed. 2004).

70.   Pros. Ex. 29.

71.   R. at 598.

72.   R. at 261, 590.

73.   R. at 308, 409.

74.   Gov't Brief at 39.

75.   R. at 590-600.

76.   R. at 620-624.

77.   Gov't Brief at 39.

78.   Fetrow, 76 M.J. at 188.

79.   Id.

80.   United States v. Steen, 81 M.J. 261 (C.A.A.F. 2021) (citing Yammine, 69 M.J. at 78).

81.   R. at 482, 586.

82.   R. at 586

83.   R. at 586.

84.   R. at 586.

85.   R. at 586.

86.   United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).

87.   United States v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005) (quotation omitted).

88.   Yammine, 69 M.J. at 79.

KIRKBY, Judge: