United States v. Rangel

64 M.J. 678, 2007 CCA LEXIS 117, 2007 WL 1052496
CourtUnited States Air Force Court of Criminal Appeals
DecidedMarch 2, 2007
DocketACM 36382
StatusPublished
Cited by8 cases

This text of 64 M.J. 678 (United States v. Rangel) 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. Rangel, 64 M.J. 678, 2007 CCA LEXIS 117, 2007 WL 1052496 (afcca 2007).

Opinion

OPINION OF THE COURT

FRANCIS, Judge:

A general court-martial composed of officer members convicted the appellant, contrary to his pleas, of one specification of forcible sodomy on divers occasions, in violation of Article 125, UCMJ, 10 U.S.C. §§ 925. The panel sentenced the appellant to a dishonorable discharge, 35 years confinement, forfeiture of all pay and allowances, and reduction to E-l. The convening authority approved the sentence as adjudged.

The appellant raises three allegations of error. He asserts: 1) the military judge erred in admitting evidence under Mil. R. Evid. 413 that the appellant committed other sexual assault offenses; 2) the evidence is legally and factually insufficient to support his conviction1; and 3) his sentence is inappropriately severe.

Background

The appellant was convicted of forcibly sodomizing JB on divers occasions between 1 October 2000 and 31 October 2003. JB was the teenage son of Ms. SB, a divorcee the appellant befriended in 1996 when he was stationed at Moron Air Base, Spain. When the appellant was re-assigned to the United States in 1997, he suggested that Ms. SB move her family to the United States so she could provide a better life for her three children. She agreed and the appellant sponsored their entry into the country.

At the time of the charged offenses, Ms. SB, her son JB, and her daughter KB lived with the appellant in Altus, Oklahoma. JB and KB moved with the appellant to Altus in October 2000. Ms. SB joined the appellant and her family in Altus after her oldest son, RB, died in November 2000.2

JR testified that shortly after his brother’s death, the appellant began forcibly sodomizing him. At the time the offenses started, JR, then 15 years old, was sharing a bedroom with the appellant, with JR sleeping on the floor. One night, the appellant asked JR if he wanted to sleep in the appellant’s bed instead of on the floor. JB agreed. He fell asleep in the bed and awoke to find the appellant pulling down JB’s underwear and trying to penetrate JB’s anus with the appellant’s penis. JB did not say anything, but moved around to make the appellant stop. The appellant stopped, hugged JB, and promised never to do anything like that again. The next night, JB again agreed to sleep in the appellant’s bed because he believed the appellant’s promise not to do anything. JB awoke to find the appellant on top of him trying to penetrate him again. Again JB moved around and the appellant stopped, hugging JB, and promising not to do it again.

JB testified the appellant did not stop, but tried again about a week later, this time successfully. On that occasion, the appellant pulled the bed sheet up over JB’s head. He then pinned down one of JB’s legs, held JB’s other leg up toward his shoulder with one hand, and used his other hand to guide his [681]*681penis into JB’s anus, keeping it there until the appellant ejaculated. JB struggled, but was unable to get the appellant off him. The appellant used so much force on that occasion to hold JB down that it hurt and JB could not move. JB testified the appellant thereafter continued to sodomize him four or five times per week for two and one-half to three years, both through forced anal penetration and by placing his mouth on JB’s penis.

The military judge, over trial defense counsel’s objection, also admitted evidence, under Mil. R. Evid. 413, that the appellant previously forcibly sodomized two other individuals. FS testified that in 1988 or 1989, when he was between 10-12 years old, and the appellant was 17 or 18 years old, the appellant sodomized him multiple times. The two were playmates and FS sometimes stayed at the appellant’s house. On several occasions when he did so, the appellant, when he thought FS was sleeping, forcibly inserted his penis into FS’ anus. FS told him to stop, but the appellant would not.

The appellant’s nephew, JK, testified the appellant sodomized him twice, both times when he was visiting his grandparents, the appellant’s parents. The first time was in the summer of 1989 when JK was about 6 years old and the appellant was 19 or 20 years old. JK woke up one night to find the appellant had JK’s penis in his mouth. The second time occurred five years later in 1994, when JK was about 10-11 years old and the appellant was 24 or 25 years old. On that occasion, JK fell asleep on the couch. JK awoke briefly while being carried to his room by the appellant, but fell asleep again. He woke to find the appellant with his mouth on JK’s penis. The same night, the appellant inserted his penis into JK’s anus.

Military Rule of Evidence US

“We review the military judge’s ruling on the admissibility of evidence under an abuse of discretion standard.” United States v. Dewrell, 55 M.J. 131, 137 (C.A.A.F.2001). See also United States v. Bailey, 55 M.J. 38 (C.A.A.F.2001); United States v. Bare, 63 M.J. 707, 710 (A.F.Ct.Crim.App.2006). “[Wjhen the judge does not articulate the balancing analysis on the record, we give the evidentiary ruling less deference than we do where ... the balancing analysis is fully articulated on the record.” Bailey, 55 M.J. at 41. “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.” Bare, 63 M.J. at 710 (quoting United States v. Springer, 58 M.J. 164, 167 (C.A.A.F.2003)).

In sexual assault cases, evidence of uncharged past sexual assaults by the same accused “is admissible and may be considered for its bearing on any matter to which it is relevant.” Mil. R. Evid. 413(a). This includes admission for purposes of demonstrating the accused’s propensity to commit the charged offenses. United States v. Parker, 59 M.J. 195, 198 (C.A.A.F.2003); United States v. Wright, 53 M.J. 476, 480 (C.A.A.F.2000).

Before admitting evidence under Mil. R. Evid. 413, the judge must make three threshold determinations: 1) Whether the accused is charged with an offense of sexual assault within the meaning of Mil. R. Evid. 413(a); 2) Whether the proffered evidence is evidence that the accused committed another offense of sexual assault; and, 3) Whether the proffered evidence is relevant under Mil. R. Evid. 401 and 402. United States v. Berry, 61 M.J. 91, 95 (C.A.A.F.2005) (citing Wright, 53 M.J. at 482). If the evidence meets these threshold requirements, the military judge must then apply the balancing test of Mil. R. Evid. 403 to determine whether its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members.” Id. “In conducting the [Mil. R. Evid.] 403 balancing test a military judge should consider the following factors: the strength of the proof of the prior act; the probative weight of the evidence; the potential to present less prejudicial evidence; the possible distraction of the fact-finder; the time needed to prove the prior conduct; the temporal proximity of the prior event; the frequency of the acts; the presence of any intervening circumstances; and the relationship between the parties.” Id.; Bailey, 55 M.J. at 41.

[682]*682The military judge included in the record a written ruling explaining the basis for her decision that evidence of the appellant’s prior sexual assaults on FS and JK was admissible under Mil.

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Cite This Page — Counsel Stack

Bluebook (online)
64 M.J. 678, 2007 CCA LEXIS 117, 2007 WL 1052496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rangel-afcca-2007.