United States v. Woodard

18 C.M.A. 6, 18 USCMA 6, 39 C.M.R. 6, 1968 CMA LEXIS 212, 1968 WL 5040

• Court: United States Court of Military Appeals
• Decided: November 1, 1968
• Docket: No. 21,342
• Status: Published

Opinion

Opinion of the Court

Per Curiam:

A general court-martial convicted the accused of several offenses, including sodomy, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. We granted review to consider whether he was prejudiced as to the latter offense by the admission in evidence , of a book of photographs described as “homosexual literature.”

The law officer overruled a defense objection to admission of the book on the ground that it had probative value to establish motive and “outweigh [ed] the risk of harm to the accused.” The board of review sustained the ruling. We disagree.

Possession of a book of photographs of famous paintings is not evidence that the possessor is a lover of art. Similarly, possession of the book admitted in evidence at this trial is not relevant to the alleged act of sodomy. See United States v Warren, 6 USCMA 419, 424, 20 CMR 135; cf. United States v Battista, 14 USCMA 70, 73, 33 CMR 282.

The decision of the board of review as to Charge II and the sentence is reversed. The findings of guilty as to Charge II and the sentence are set aside, and the record of trial is returned to the board of review. In its discretion, the board may direct a rehearing on Charge II and the sentence, or dismiss the charge and reassess the sentence on the basis of the remaining findings of guilty.