U.S. v. Hays, 62 M.J. 158

Core Criminal Law Subjects: Crimes: Article 134 - Soliciting Another to Commit an Offense Pre-2019 offenses

1. in stating that solicitation included any use of words or other device by which a person is requested, urged, advised, counseled, tempted, commanded, or otherwise enticed or incited to commit a crime, the court of criminal appeals did not improperly broaden the definition of solicitation to include conduct that would not otherwise be criminal; by quoting terms from a criminal law treatise that were synonymous with language from the MCM, the CCA merely offered additional explanation as to what constitutes a serious request in accordance with the established definition of solicitation
2. neither the UCMJ nor the MCM precludes a conviction for solicitation simply because the object of the solicitation may be predisposed towards committing the crime; because there may be cases in which a solicitation transforms predisposition into action, this Court rejects appellant’s invitation to adopt a predisposition limitation on solicitation
3. (the evidence was legally sufficient to sustain the accused’s conviction for soliciting another to commit carnal knowledge where he e-mailed another to inquire into whether that person had engaged in sexual intercourse with a minor female, immediately followed by a request for pictures of such an encounter, with a quid pro quo offer of similar pictures in return; the repeated urging for the other person to send pictures of him engaging in sexual intercourse with a minor female, as well as the quid pro quo contained in the same e-mail and the tone and language of the e-mail -- and viewing the evidence in the light most favorable to the government, a reasonable factfinder could have found that the inquiry constituted a serious reque

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. an improvident plea to an offense of a CPPA violation charged under clause 3 of Article 134 may be upheld on a proper record as a provident plea to a lesser included offense under the first two clauses of Article 134; in this case, appellant’s improvident guilty pleas to CPPA violations were provident to lesser included offenses based on the same conduct under clause 2 of the general article, where the record reflected that appellant admitted that his conduct was service-discrediting and why and that he clearly understood the nature of the prohibited conduct
2. the Child Pornography Protection Act has no extraterritorial application; because appellant engaged in the conduct underlying the CPPA-based charges in Germany, the guilty pleas to those charges were improvident

Core Criminal Law Subjects: Evidence: Character

1. profile evidence is evidence that presents a characteristic profile of an offender, such as a pedophile or child abuser, and then places the accused’s personal characteristics within that profile as proof of guilt; generally, use of any characteristic profile as evidence of guilt or innocence in criminal trials is improper
2. in this judge-alone trial, even if the expert testimony of the government’s witness constituted improper profile evidence regarding the behavioral aspects of persons who sexually abuse children, there was no prejudice to the accused because the military judge, who understood the witness’s testimony as simply interpreting the language of an e-mail sent by the accused, did not treat the testimony as profile evidence or give it any prejudicial weight in that regard

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. a witness qualified as an expert may testify as to scientific, technical, or other specialized knowledge if it will assist the factfinder in understanding the evidence or determining a fact at issue; testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact; however, an expert may not express an opinion on the ultimate issue of a case
2. an expert opinion interpreting a document does not necessarily constitute an ultimate opinion on the intent of the document’s author
3. in this case, an expert with specialized knowledge in the field of the behavioral aspects of the sexual victimization of children was qualified to speak to the strategies employed by sexual predators to encourage other individuals to commit sexual offenses against children and to offer his opinion as to whether an e-mail could be viewed as part of such a strategy

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. under MRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith; such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; the admissibility of uncharged misconduct evidence is analyzed under a three-pronged test: (1) Does the evidence reasonably support a finding by the court members that Appellant committed the prior crimes, wrongs, or acts?; (2) What fact of consequence is made more or less probable by the existence of the evidence?; and (3) Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice?; the evidence is inadmissible if it fails any one of these three tests
2. when considering whether uncharged misconduct constitutes admissible evidence of intent under MRE 404(b), a court considers whether appellant’s state of mind in the commission of both the charged and uncharged acts was sufficiently similar to make the evidence of the prior acts relevant on the intent element of the charged offenses; extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct
3. evidence of uncharged misconduct in e-mail exhibits describing the accused’s desire to engage in and view sexual activities with minor females was properly admitted to show his intent and motive with respect to the offense of soliciting another to commit carnal knowledge

Core Criminal Law Subjects: Witnesses: Experts

1. a witness qualified as an expert may testify as to scientific, technical, or other specialized knowledge if it will assist the factfinder in understanding the evidence or determining a fact at issue; testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact; however, an expert may not express an opinion on the ultimate issue of a case
2. an expert opinion interpreting a document does not necessarily constitute an ultimate opinion on the intent of the document’s author
3. in this case, an expert with specialized knowledge in the field of the behavioral aspects of the sexual victimization of children was qualified to speak to the strategies employed by sexual predators to encourage other individuals to commit sexual offenses against children and to offer his opinion as to whether an e-mail could be viewed as part of such a strategy

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in the absence of objection at trial, an appellate court applies the plain error test; appellant has the burden of demonstrating that there was an error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights; an appellate court need not assess whether there was an error if any error would not have materially prejudiced appellant’s substantial rights
2. when the issue of plain error involves a judge-alone trial, an appellant faces a particularly high hurdle; a military judge is presumed to know the law and apply it correctly, is presumed capable of filtering out inadmissible evidence, and is presumed not to have relied on such evidence on the question of guilt or innocence; as a result, plain error before a military judge sitting alone is rare indeed

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

1. the interpretation of solicitation under Article 134 is a question of law, which an appellate court reviews de novo
2. legal sufficiency is a question of law, which an appellate court reviews de novo; the test is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt
3. an appellate court reviews a military judge’s ruling to admit or exclude evidence for an abuse of discretion
4. an appellate court reviews a military judge’s decision to admit expert testimony for an abuse of discretion
5. in challenging the providence of a guilty plea, appellant carries the burden of showing that the record of trial demonstrates a substantial basis in law and fact for questioning the plea