U.S. v. Whitner, 51 M.J. 457

Core Criminal Law Subjects: Evidence: Balancing

1. challenged evidence of homosexual videotape and similar materials was proffered on important/viable issues pertaining to appellant’s state of mind or intent during the charged offenses and the nature of his sexual desires at the time; defense’s failure to specifically contest the intent issues did not remove the government’s burden of proof on these elements of the offenses or render this evidence unduly prejudicial
2. challenged evidence of homosexual videotape and similar materials did not have diminished probative value where: (1) defense claimed appellant could not remember what happened on night in question; (2) defense claimed alleged victim was presenting patently false details in his testimony which should cause it to be rejected in its entirety; (3) the defense made an alternate concession that the alleged victim may have consented to oral sodomy with “somebody”; and (4) suggestion that conduct was consensual was vague and equivocal, thus not clearly removing issue of intent from this case
3. challenged evidence of homosexual videotape and similar materials did not have diminished probative value because it was cumulative where: (1) appellant’s pretrial admissions were more generic; (2) appellant’s pretrial admissions were undermined by appellant’s claims that he was too drunk to remember his actions and intentions on the night in question; (3) the challenged evidence was specific in nature; and, (4) the challenged evidence had a nexus to the charged offenses
4. challenged evidence of homosexual videotape and similar materials was not unduly prejudicial where: (1) despite the coercive homosexual acts portrayed in some of the challenged materials, appellant was found not guilty of forcible offenses; (2) appellant did not actively dispute overwhelming proof of participation in lesser offenses; and, (3) the military judge gave repeated limiting instructions

Core Criminal Law Subjects: Evidence: Motive

1. appellant’s possession of a large number of homosexual materials in his military barracks room on the day of the offense, including some depicting acts similar to those particularly charged, reasonably suggests an emotional need for his committing the charged homosexual-related misconduct in satisfaction of that emotion

Core Criminal Law Subjects: Evidence: Plan or Design

1. homosexual tapes and materials depicting sexual abuse of the superior-subordinate relationship in the military environment or coercive sexual conduct in a military-type environment rationally supported a ruling admitting such evidence to show a plan or method to secure homosexual sex from unsuspecting servicemembers

Core Criminal Law Subjects: Evidence: Relevance

1. military judge did not err in admitting homosexual videotape and similar materials to show intent required to prove the crimes charged; an accused’s possession of pornographic books, magazines, or videos concerning a particular sex partner or sexual act, at or near the scene of an alleged sex crime, around the time of that alleged offense, may be relevant evidence of intent or state of mind at that time depending on the circumstances of a particular case

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. (military judge’s determination of relevance under MRE 401 is reviewed under a clear-abuse-of-discretion standard). (military judge’s ruling overruling objection under MRE 403 is reviewed using a clear-abuse-of-discretion standard)