United States v. Munoz

32 M.J. 359, 1991 CMA LEXIS 472, 1991 WL 101312

• Court: United States Court of Military Appeals
• Decided: June 14, 1991
• Docket: No. 64,268; CM 8901236
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

During March of 1989 appellant was tried by a general court-martial composed of officer members at Fort Monmouth, New Jersey. Contrary to his pleas, he was found guilty of four specifications of committing indecent acts on his minor daughter, [A], in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to a bad-conduct discharge, confinement for 3 years, and forfeiture of $300 pay per month for 36 months. The sentence was approved by the convening authority on May 3, 1989. The Court of Military Review affirmed on January 3, 1990, in a short-form opinion.

This Court granted review 31 MJ 414 on the following two issues of law raised by appellate defense counsel:

I

WHETHER THE MILITARY JUDGE ERRED TO APPELLANT’S SUBSTANTIAL PREJUDICE BY PERMITTING APPELLANT’S DAUGHTER [I] ... TO TESTIFY, OVER DEFENSE OBJECTION, REGARDING PRIOR ACTS OF UNCHARGED MISCONDUCT BY APPELLANT.

II

WHETHER EVIDENCE OF APPELLANT’S UNCHARGED MISCONDUCT OF SEXUAL ABUSE OF HIS DAUGHTER ... SHOULD HAVE BEEN EXCLUDED UNDER MILITARY RULE OF EVIDENCE 403.

We find no prejudicial abuse of discretion by the military judge in this case and affirm. United States v. Castillo, 29 MJ 145, 151 (CMA 1989). See generally United States v. St. Pierre, 812 F.2d 417, 420 (8th Cir.1987).

Appellant was found guilty of four specifications of indecent acts with his minor daughter, [A]. Two specifications alleged that he fondled her and placed his hands on her breasts and vagina. Two other specifications alleged that he fondled her and placed his hands on her breasts. The first two offenses allegedly occurred in his government quarters at Pirmasens, West Germany, during January 1987. The latter offenses purportedly occurred in Arizona and New Jersey in February 1987 and June 1988. [A] was around 10 or 11 years old at the time of these offenses, but she was 12 when she testified against her father. He also took the witness stand at this court-martial, but he denied that any sexual misconduct occurred.'

Prior to this court-martial, the defense made a motion in limine to “preclude the admission of any evidence concerning alleged acts of sexual misconduct between the accused and his other daughters.” The Government opposed this motion and asserted that such evidence was admissible in its case on the merits “to prove a common scheme or plan....” It specifically referred to the decision of this Court in United States v. Mann, 26 MJ 1 (CMA), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988).

The military judge questioned the Government concerning its proffer of evidence. The record states:

MJ: All right, for purposes of this motion that’s what we’re interested in. All right, now as far as [I] is concerned, she’s going to say that at the age of 9-11, somewhere in that area, again, she was at home, there were other people at home and that the accused fondled her breasts. Is that right? What else is she going to testify to?

TC: And rubbed her vagina. The government would certainly limit her testimony too, because there were acts of sodomy in this case. But the government would not elicit testimony as to those incidents due to the prejudicial potential and would limit it to the discussion of the offense.

MJ: To similar offenses. Is that what you’re trying to say?

TC: Yes, sir.

MJ: Okay.

DC: Your Honor, clearly that cannot be done because-

MJ: Oh, it can be done all right. It might not be a good thing to do.

Trial counsel later repeated to the military judge his theory of admissibility, as follows:

MJ: All right, would you state again what your view is, Captain Carey, with respect to, you’re offering this for a common scheme or plan?

TC: Yes, Your Honor.

MJ: Okay, what’s the theory?

TC: The theory is that Sergeant Munoz would drink alcohol, become intoxicated and then approach his daughters while they were alone in a room in the house, either the bedroom or the living room, and that family members either present in the house but another part of the house or out of the house entirely and that the fondling would occur, rubbing of breasts and vagina, and then always a statement afterwards that, “This is our secret. Don’t tell anybody about that.” That these would occur periodically. There was, of course, only the one instance with [AA] but there are multiple instances with [A] as charged and also with [I].

And again, the government cites the Mann case and the fact that the court excluded the evidence in that case I’m sure is not the deciding factor. Certainly it lays out the test. And in this case, unlike the Mann case, all the witnesses to the uncharged misconduct remember clearly what happened unlike in the Mann case.

(Emphasis added.)

The military judge initially deferred ruling on the motion. He subsequently ruled prior to pleas as follows:

MJ: All right, with respect to your motion on the testimony of the two witnesses, [AA] and [I], I find that the testimony of these two witnesses to be probative of a plan on the accused’s part to sexually abuse his children and I find a nexus of time. The fact that events were removed in time from the other does not undermine their relevance. Whether you have the same victim is an important component of the alleged plan. The similarity of the acts; that is, the fondling of breasts and vagina; the common situs of the commission in the home of the family; the age of the victims at the time; the fact that other people were present; the fact that the accused had been drinking are all matters of commonality that I’ve carefully considered.

I further find that based on the averments of counsel, that the uncharged misconduct is plain, clear and conclusive and I find that on balance, the probative value of the uncharged misconduct outweighs the prejudicial impact, whatever prejudicial impact it may have and that the evidence may be presented to show a plan on the part of the accused to sexually abuse his children.

Therefore, the motion is denied. We’ll hear the plea at this time.

The victim, [A], subsequently testified at this court-martial and implicated appellant in the charged offenses. Defense counsel then renewed his objection to the expected testimony of [I] and [AA]. He asserted that the incidents they would relate were distinctly different from [A]’s testimony such that they were not evidence of a common plan or scheme. The military judge then heard the testimony of both of the. victim’s sisters out of the presence of the members. He then ruled as follows:

MJ: Okay, I’m going to reconsider my [ruling] and upon reconsideration I’m going to exclude [AA]’s testimony. The first sister. But for the reasons that I set out in my, because I think there’s a 403 problem with that and I think upon hearing her testify and based on the fact [that it’s] only one incident, I think that is susceptible to more prejudice than substance so I’m not going to allow that because I think there’s a 403 problem. But I don’t see any problem with the testimony of the other sister, [I] and I’m going to allow that in for the reasons that I gave in the findings before.

The daughter, [I], then testified as follows before the members:

DIRECT EXAMINATION

(Questions by the prosecution):

Q. Would you state your full name for the record?

A. [I],

* * * * * *

Q. And how old are you?

A. 24.

Q. Do you know the accused?

A. Yes.

Q. And how do you know him?

A. He’s my father.

Q. Let me draw your attention back to when you were 8 or 9-11 years of age. You remember where you lived during that time?

A. West Fort Hood, Texas.

Q. Did you have any occasion during that period where your father may have touched you?

A. Several. Yes.

Q. Could you describe for us, please, how this first happened?

A. There was several times. Once my family was in, my sister and my mom were sitting in the living room and I was making popcorn in the kitchen. My father came in. He pulled my pants down, started fondling my vagina.

Q. How old were you at this time?

A. I guess 9 or 10.

Q. I'm sorry?

A. 9 or 10.

Q. And was anybody else in the kitchen besides you?

A. No.

Q. What time of day was this?

A. I’m not real sure. Late afternoon. Evening.

Q. Had your father been drinking?

A. Not-

Q. Do you recall?

A. Not at that time. No.

Q. What happened?

A. He was fondling my vagina. He did that for a little while and the next thing I knew he has his face to where he’s, I don’t know, touching my vagina with his tongue.

Q. How long did this last, this incident?

A. Oh, anywhere from about 10 minutes or so.

Q. Were there other instances during the age when you were 9-11 where these sorts of things happened?

A. Yes. Another time my sisters were outside in the backyard playing, I believe, mowi[ng] the lawn. My father took me into the storage shed and again started fondling my vagina and sodomized me.

Q. What do you mean by “sodomized”? I know it’s difficult.

A. He had anal sex.

Q. Do you recall when you reached puberty?

A. About 10. It was early.

Q. Were there ever any instances where these sorts of things happened in your parents’ bedroom?

A. Yeah, there’s one time where he took me in there, showed me the Playboy, Hustler magazines of nude women in there and then he fondled my vagina a little bit and there was a knock at the door and it was my older sister, [D], and he stepped out of the room. She — I don’t know what he did, but she came back later and took me out of the room and later on that evening he brought me back in there while they were either outside or watching TV and again started fondling my vagina and this time I was laying next to him completely nude and this lasted for a little while and then he proceeded to sodomize me again.

Q. Did he ever say anything to you about these acts during their occurrence or afterwards?

A. He always told me he loved me and that’s why we were doing it and never to say anything because mom would really be mad with me and it would hurt her very much and would make her really angry.

Q. Did you ever tell anybody about this?

A. No, not while we were at Fort Hood.

Q. You said this happened several times to you there?

A. (Indicated an affirmative response.)

Q. Had your father been drinking during these periods?

A. Yeah, there’s been quite a few occasions where he was. He would take me into the bathroom and fondle my vagina for a while and have oral sex with me and then turn me over and sodomize me.

Q. Were there instances, ..., where he fondled you outside your clothing prior to progressing into the actual acts that you described?

A. When I was younger.

Q. And what did he do?

A. It would start out as a tickling game. He’d start on my stomach and then eventually worked down to my underwear, but it would be over my underwear.

Q. When did you first tell anybody that this had happened?

A. When we lived in Fort Riley, Kansas where he had made an attempt on my younger sister, [AA], and I believe it was that night that I told my older sister, [D], that he had also done this to me and not just one time.

Our starting point in resolving the first granted issue is Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984. It states:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.) The prosecutor’s theory of admissibility for appellant’s uncharged misconduct with [I] and [AA] was that it showed a plan on his part to sexually abuse his daughters at a young age. Consequently, he averred that the subsequent sexual misconduct with [A], in testimonial dispute at this court-martial, also probably occurred as individual manifestations of that same plan. See United States v. Mann, 26 MJ at 4; United States v. Brannan, 18 MJ 181, 183 (CMA 1984).

Appellant contends that the uncharged sexual misconduct evidence in this case did not show a “plan” but instead reflected “a generic description of familial sexual abuse.” He asserts that it was nothing more than a collection of disparate acts which were remote in time and dissimilar in nature and circumstance. Furthermore, he expands upon his objection at trial and now contends that [I]’s actual testimony also exceeded the scope of the Government’s initial proffer of evidence. This additional sexual-misconduct evidence, he asserts, reinforces the dissimilarity of the acts of uncharged misconduct to the charged offenses and rendered her testimony on these matters inadmissible.

The core of appellant’s Mil.R.Evid. 404(b) argument is that the uncharged misconduct against [I] did not rationally reflect a plan on appellant’s part to sexually abuse his daughters. See generally United States v. Brannan, supra at 183-84 (CMA 1984). The military judge rejected this contention specifically, noting significant elements of concurrence between the uncharged acts and the charged acts which suggested a common plan. See generally 2 Wigmore, Evidence §§ 304, 357(3), and 360 (Chadbourn rev.1979). The common factors were the age of the victim, the situs of the offenses, the circumstances surrounding their commission, and the fondling nature of the misconduct. On this basis we hold that the military judge did not abuse his discretion in concluding that all the uncharged misconduct was “probative of a plan on appellant’s part to sexually abuse his children.” United States v. Mann, supra 26 MJ at 5. Cf. United States v. Fawbush, 900 F.2d 150, 151 (8th Cir.1990). See generally Mil.R.Evid. 401 and 402.

We must also reject appellant’s particular claim of remoteness based on the occurrence of those acts at least 12 years earlier. See generally United States v. Cuch, 842 F.2d 1173, 1178 (10th Cir.1988). In this case the object of appellant’s purported plan was the sexual abuse of his young daughters. Accordingly, the victim’s age at the time of the offenses was the critical concern, not the period of time between the misconduct and the charged offenses. United States v. Mann, supra; United States v. Hadley, 918 F.2d 848, 851 (9th Cir.1990).

Moreover, this is not a case like United States v. Ferguson, 28 MJ 104 (CMA 1989), where the uncharged misconduct was offered for a purpose under Mil.R.Evid. 404(b) which was not a material issue in that case. See United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985). United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984). The critical issue here was the occurrence of the charged indecent acts, and evidence of appellant’s plan to do such acts was probative on this point. United States v. Mann, supra. See generally United States v. Beahm, 664 F.2d 414, 417 (4th Cir.1981). Accordingly, we find no legal error in the military judge’s ruling under Mil.R.Evid. 404(b). See United States v. Orsburn, 31 MJ 182, 187 (CMA 1990). See generally Story v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991).

The more difficult problem in this case arises under the second granted issue. It stems particularly from the portion of [I]’s testimony concerning the more serious acts of sexual misconduct perpetrated upon her by appellant. She testified that her father orally and anally sodomized her on several occasions and attempted to sexually assault her sister, [AA], when they lived at Fort Riley. We note that trial counsel had earlier conceded that [I]’s testimony on the sodomies would not be adduced by the Government because of its potential for prejudice. Moreover, the judge ruled that testimony by [AA] concerning appellant’s one-time attempt to sexually assault her would also not be admissible at this court-martial.

Admissibility of this testimony under Mil.R.Evid. 403 was highly questionable. Appellant was only charged with fondling his minor daughter. The uncharged acts of sodomy were clearly more egregious and more reprehensible than those acts or the uncharged acts of fondling. See United States v. Fortenberry, 860 F.2d 628, 632 (5th Cir.1988), cert. denied, — U.S. -, 111 S.Ct. 1333, 113 L.Ed.2d 265 (1991); cf. United States v. Brooks, 670 F. 2d 625, 628 (5th Cir.1982). A strong possibility of prejudice existed on this basis alone. See generally E. Imwinkelried, Uncharged Misconduct Evidence § 8:24 (1984). Nevertheless, for several reasons we find reversal of appellant’s conviction is not required by admission of this potentially inflammatory uncharged-misconduct evidence. United States v. Mann, 26 MJ at 5. Cf. United States v. Kinman, 25 MJ 99 (CMA 1987).

Although not decisive, we must note that appellant did not object at the actual trial to [I]’s testimony about the sodomies on the basis that it exceeded the scope of trial counsel’s earlier concession. In addition, he did not object to her testimony on the assault of [AA] on the basis that it violated the trial judge’s earlier ruling barring [AA]’s testimony concerning this same incident. Finally, although he cited Mil.R.Evid. 403 in his earlier written motion objecting to [I]’s testimony, he did not clearly pursue this undue-prejudice objection at the time she actually presented her testimony to the judge or the members. His final oral objection to the sodomy evidence was predicated only on its dissimilarity to the charged actions of fondling such that it did not qualify for admission as evidence of a plan under Mil.R.Evid. 404(b). See United States v. Brannan, 18 MJ at 184. Such defense inaction is at best puzzling and suggests waiver of his Mil.R.Evid. 403 claim. See Mil.R.Evid. 103(a)(1).

In any event, this failure to properly object to the additional testimony of [I] reflects recognition of the fact that continuation of this objection, once the uncharged fondling evidence was admitted, was clearly superfluous. The victim’s (A’s) testimony was already substantially corroborated by the showing of appellant’s sex-abuse plan through the evidence of his repeated fondling of [I]. Admission of evidence of additional sexual misconduct of a more serious degree with [I] for this same purpose was simple overkill. Cf. United States v. Ferguson, 28 MJ at 109-10. Secondly, we note that a limiting instruction carefully delineating the proper use of all this uncharged misconduct evidence was given in this case.

* See United States v. St. Pierre, supra. Accordingly, we are convinced that admission of this portion of [I]’s testimony did not substantially change the outcome of appellant’s trial. Art. 59(a), UCMJ, 10 USC § 859(a); United States v. Barnes, 8 MJ 115 (CMA 1979).

The decision of the United States Army Court of Military Review is affirmed.

Now with respect to the testimony of [I], evidence that the accused may have committed certain acts with her, which would be uncharged misconduct; that is, other criminal offenses which are not before you; that evidence may be considered by you for the independent purpose of its tendency, if any, to prove a plan or design of the accused to sexually molest his own children. Now, you may not consider that evidence, that is the evidence presented by [I], for any other purpose. And you may not conclude from that evidence that the accused is a bad person or has criminal tendencies and he, therefore, committed the offenses as charged. That evidence was not offered for that purpose and you may not use it for that purpose. You may, as I say, use it only for the limited purpose of its tendency, if any, to prove a plan or a design by the accused to sexually molest his own children.