U.S. v. Henry, 53 M.J. 108

Core Criminal Law Subjects: Evidence: Relevance

1. military judge did not abuse his discretion by admitting certain sexually oriented magazines and catalogs which afforded the reader the opportunity to purchase sexually explicit videotapes where: (1) appellant was charged with indecently assaulting his stepdaughter and possession of such material could be evidence of appellant’s intent to gratify his lust or sexual desires; (2) the exhibits tended to support the victim’s out-of-court statement that she watched pornographic movies with appellant; and (3) the evidence had a tendency to prove that appellant had a plan to condition his daughter to accept his sexual advances and, thus, satisfy his sexual desires

Trial Stages: Initial Review: Preparation of Record of Trial

1. a substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the government must rebut; insubstantial omissions from a record of trial do not raise a presumption of prejudice or affect the record’s characterization as a complete one
2. omission of portions of sexually explicit literature from which appellant could have ordered pornographic videotapes was insubstantial where those exhibits which were in the record amply demonstrated that sexually explicit videotapes were advertised along with order forms to facilitate ordering the material

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

1. evidentiary rulings of a military judge are reviewed for abuse of discretion, and are overturned only if the judge’s findings of fact are clearly erroneous or his decision is influenced by an erroneous view of the law
2. whether the record of trial is complete is a question of law that is reviewed de novo

Trial Stages: Appeals: Waiver

1. requirement that record of trial be complete and substantially verbatim in order to support a sentence that includes a punitive discharge or confinement in excess of 6 months is of jurisdictional proportion and cannot be waived