United States v. Bare

63 M.J. 707, 2006 CCA LEXIS 189, 2006 WL 2268000
CourtUnited States Air Force Court of Criminal Appeals
DecidedJuly 14, 2006
DocketACM 35863
StatusPublished
Cited by94 cases

This text of 63 M.J. 707 (United States v. Bare) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bare, 63 M.J. 707, 2006 CCA LEXIS 189, 2006 WL 2268000 (afcca 2006).

Opinion

OPINION OF THE COURT

STONE, Senior Judge:

The appellant appeared before a general court-martial consisting of officer and enlisted members on charges he sexually molested his natural daughter, RB.

He pled not guilty to two specifications alleging he sodomized RB on divers occasions.1 The first specification covered the period when RB was under the age of 12, and the second covered the period when she was 12 yet still under 16.2 The court members found him guilty of the first specification, but not the second.

He entered mixed pleas to two other specifications.3 The first alleged he committed indecent acts on RB on divers occasions. The appellant pled guilty to a single incident of indecent acts, by exceptions, but the court members ultimately convicted him of this specification as charged. The second specification alleged indecent liberties with RB on divers occasions. Contrary to his pleas, the court members found him guilty of this conduct.

The appellant was sentenced to a dishonorable discharge, confinement for 40 years, and reduction to the grade of E-l. The convening authority approved the findings and sentence as adjudged.

Before this Court, the appellant raises the following issues:

I.
WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF UNCHARGED SEXUAL ACTS BETWEEN APPELLANT, WHEN HE WAS 15 OR 16 YEARS OLD, AND HIS 8-YEAR-OLD SISTER, 17 YEARS BEFORE THE CHARGED OFFENSES.
II.
WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILT AS TO SPECIFICATION 2 OF CHARGE II, TAKING INDECENT LIBERTIES WITH RB.
III.
WHETHER THE PORTION OF THE APPELLANT’S SENTENCE CALLING FOR A DISHONORABLE DISCHARGE AND 40 YEARS OF CONFINEMENT IS INAPPROPRIATELY SEVERE.

Finding no merit to these issues, we affirm.4

I. Propensity Evidence

a. Background,

At trial, the government sought to admit the testimony of KB, the appellant’s sister, regarding his sexual molestation of her when she was between the approximate ages of 7 and 11 and the appellant was between the approximate ages of 15 and 19. This conduct occurred between 1984 and 1987, some 17 to 19 years prior to trial. The government moved to admit this evidence under Military Rule of Evidence (Mil. R. Evid.) 414, which provides for the admission of similar crime [705]*705evidence in child molestation cases.5 Subsection (a) of this Rule 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.”

Before making a ruling, the military judge conducted a full hearing outside the presence of the court members. KB testified, and the defense presented expert testimony from Dr. Jeffrey N. Younggren, a clinical psychologist, to challenge KB’s recollection of the events that had occurred 17 to 19 years earlier. At the conclusion of the motion hearing, the military judge entered the following findings of fact:

1. [KB] is the sister of the accused. She is the youngest of four children. The accused is the oldest of the four. The accused is approximately 8 years older than [KB],
[KB] was born in 1976. Initially, she lived with her parents and brothers in Pennsylvania. The relationship between [KB] and her brothers was normal until she turned 8.
When [KB] turned 8, the accused began to touch her chest, breasts, and thighs. The accused used his hands to touch [KB]. The accused would also stroke [KB’s] vaginal area. The touching occurred both above and beneath [her] clothing. The accused touched [her] one to two times per week while [they lived] in Pennsylvania. The accused was approximately 16 at the time the touching began____
4. When [KB] was approximately 9-years old, her family moved to Ohio. Over the next two years the accused continued to touch [her] breasts, thighs, and vaginal area. The accused used his hands during these incidents. The touching occurred under [KB’s] clothing.
5. On at least one occasion while the accused was touching [her], he asked [KB] if she was okay, and asked whether he was hurting her. On at least one occasion the accused digitally penetrated [KB’s] vagina. The accused stopped touching [KB] when she was 11 [years old].
6. [KB] reported the accused’s touching to a school counselor when she was 13. The touching covered the period between 1984 through 1987.
7. [RB] is the natural daughter of the accused. When [RB] ... was approximately 5 or 6 the accused began to touch her breasts, rub her vaginal area, rub his penis on her body, [and] have [RB] stroke his penis with her hands. The touching progressed from slight touching to skin-to-skin contact. The incidents began while the accused and [RB] were living in Nevada. The touching occurred more frequently after they moved to Illinois. It occurred almost every time the accused and [RB] were alone. The touching also occurred in Florida [where the appellant moved pursuant to a change of military assignment]. The touching continued until the summer of 2000, when [RB] was approximately 10 years old____
8. [TA] is the stepdaughter of the accused.[6] She was born on 18 October 1986. Approximately six to seven months after the accused married [TA’s] mother, the accused started touching [TA]. The [706]*706touching included over and under her shirt, and occurred three to four times per week until she told her mother. The accused touched [TA’s] breasts, stomach, back, thighs, and top of her legs. These incidents occurred while the Bares lived in Illinois. [TA] was in the ... 4th grade at this time____
9. The accused is charged with several offenses that involve child molestation involving ... [his natural daughter RB],

After conducting an extended analysis under Mil. R. Evid. 403 on the record, the military judge ruled that KB’s testimony was admissible.

b. Law

“We review a military judge’s decision to admit propensity evidence for an abuse of discretion.” United States v. James, 60 M.J. 870, 871 (A.F.Ct.Crim.App.2005), aff'd, 63 M.J. 217 (C.A.A.F.2006). See also United States v. Dewrell, 55 M.J. 131, 137 (C.A.A.F.2001); United States v. Bailey, 55 M.J. 38, 41 (C.A.A.F.2001). “If the military judge makes findings of fact, we review the findings under a clearly erroneous standard of review. We review conclusions of law de novo.” United States v. Springer, 58 M.J. 164, 167 (C.A.A.F.2003) (citing United States v. Alameda, 57 M.J. 190, 198 (C.A.A.F.2002)).

To determine the admissibility of propensity evidence in child molestation eases, we initially apply the three-part analysis found in United States v. Wright to determine logical relevance. 53 M.J. 476, 482 (C.A.A.F.2000). See also Huddleston v.

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Cite This Page — Counsel Stack

Bluebook (online)
63 M.J. 707, 2006 CCA LEXIS 189, 2006 WL 2268000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bare-afcca-2006.