U.S. v. Yammine, 69 M.J. 70

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. for evidence to be admitted under MRE 414, a rule permitting evidence of a prior act of child molestation to be admissible to show propensity to commit a charged act of molestation, the military judge must make three threshold findings: (1) whether the accused is charged with an act of child molestation as defined by MRE 414(a); (2) whether the proffered evidence is evidence of his commission of another offense of child molestation as defined by the rule; and (3) whether the evidence is relevant under MRE 401 and MRE 402; relevance under MRE 401 and MRE 402 is enforced through MRE 104(b); the military judge simply examines all the evidence in the case and decides whether the court members could reasonably find the conditional fact by a preponderance of the evidence; once the three threshold factors are met, the military judge must then apply a balancing test under MRE 403; the importance of careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; inherent in MRE 414 is a general presumption in favor of admission

Military Justice Personnel: Military Judge: Discretion

1. where the military judge’s view of the law with respect to a qualifying offense under MRE 414 was erroneous, he abused his discretion by admitting evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer as evidence of another offense of child molestation

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. indecent acts with a child under Article 134, UCMJ, is not a lesser included offense of forcible sodomy under Article 125, UCMJ

Core Criminal Law Subjects: Crimes: Article 134 - Indecent Acts or Liberties with a Child Pre-2019 offenses

1. indecent acts with a child under Article 134, UCMJ, is not a lesser included offense of forcible sodomy under Article 125, UCMJ

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. MRE 414 permits the admission of evidence of a prior act of child molestation to show propensity to commit a charged act of child molestation
2. for evidence to be admitted under MRE 414, a rule permitting evidence of a prior act of child molestation to be admissible to show propensity to commit a charged act of molestation, the military judge must make three threshold findings: (1) whether the accused is charged with an act of child molestation as defined by MRE 414(a); (2) whether the proffered evidence is evidence of his commission of another offense of child molestation as defined by the rule; and (3) whether the evidence is relevant under MRE 401 and MRE 402; relevance under MRE 401 and MRE 402 is enforced through MRE 104(b); the court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence; once the three threshold factors are met, the military judge must then apply a balancing test under MRE 403; the importance of careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; inherent in MRE 414 is a general presumption in favor of admission
3. the meaning of an offense of child molestation is defined in detail by MRE 414(d)-(g), and this definition provides an exclusive list of offenses that qualify as offenses of child molestation; thus, to be properly admitted under MRE 414, the proffered evidence must fall within the specific definition of an offense of child molestation set out in MRE 414; whether an offense qualifies under MRE 414 is interpreted strictly, rather than expansively, and requires that the offense fall within the rule’s specific definition
4. in this case, evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not admissible under MRE 414 as evidence that appellant had a propensity to commit sodomy or indecent acts with a child; although the computer filenames were treated as synonymous with the offense of possession or attempted possession of child pornography, this offense was not a qualifying offense under MRE 414 under the facts of this case; possession or attempted possession of child pornography, while a violation of federal law, did not fall within any defined instance of child molestation relied on by the military judge or the CCA under MRE 414(d)(2) (offenses involving sexually explicit conduct with children) or MRE 414(d)(5) (offenses involving death, bodily injury, or physical pain on a child); MRE 414 limits qualifying offenses to crimes that involve actual persons; while computer filenames may be enough to satisfy probable cause, the admission of propensity evidence required more
5. in this case, the possession or attempted possession of child pornography was not a qualifying offense within MRE 414(d)(5) (offenses involving death, bodily injury, or physical pain on a child), where there was no way to know what, if anything, the computer files originally attached to the filenames depicted (even though the filenames themselves were clearly suggestive of homosexual acts involving preteen and teenage boys); thus, there was not only no way to know whether actual children were involved, there was also no way to know whether the conduct depicted otherwise fell within MRE 414(d)(5)’s requirement of the infliction of death, bodily injury, or physical pain on a child; although the infliction of death, bodily injury, or physical pain on a child may and undoubtedly does occur in the creation of much child pornography, in other instances, given the breadth of the conduct and ages covered, it may not; however emotionally traumatic possession by others of images involving that conduct may be for the children involved, infliction of death, bodily injury, and physical pain are specific and delimiting terms
6. in this case, the possession or attempted possession of child pornography was not a qualifying offense within MRE 414(d)(2) (offenses involving sexually explicit conduct with children), because the phrase “with children” requires that the conduct be in the physical presence of a child or children, and this did not occur under the facts of this case
7. whereas MRE 414 was intended to provide for more liberal admissibility of character evidence in criminal cases of child molestation where the accused has committed a prior act of sexual assault or child molestation, admissibility under MRE 404(b) is comparatively restrictive

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. MRE 404(b) provides, in relevant part, that 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; it may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident
2. whereas MRE 414 was intended to provide for more liberal admissibility of character evidence in criminal cases of child molestation where the accused has committed a prior act of sexual assault or child molestation, admissibility under MRE 404(b) is comparatively restrictive
3. a three-prong test has been established to determine the admissibility of uncharged misconduct under MRE 404(b): (1) does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; and (3) is the probative value substantially outweighed by the danger of unfair prejudice; the evidence at issue must fulfill all three prongs to be admissible; the second prong mirrors the relevance concerns reflected under MRE 401 and MRE 402, while the third prong reflects the concerns ordinarily handled under MRE 403
4. evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not admissible under MRE 404(b) as evidence to show motive, plan, or intent to commit sodomy or indecent acts with a child, where even assuming that the filename evidence reasonably supported a determination that appellant committed the prior misconduct of possession or attempted possession of child pornography, it did not show appellant’s propensity to commit the charged offenses of sodomy with a child; finding sexual propensity evidence relevant under MRE 404(b) outside of MRE 413 or MRE 414 is not an approved basis for admitting this evidence; in this case, the military judge’s apparent reliance on MRE 414 reasoning for his MRE 404(b) analysis was error
5. evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not admissible under MRE 404(b) as evidence to show motive, plan, or intent to commit sodomy or indecent acts with a child, where under the facts of this case, the prejudicial effect of the evidence substantially outweighed whatever marginal relevance and probative value these computer filenames had to the charged offenses of sodomy with a child; the probative value of the evidence was low, because the underlying files were downloaded over a two‑day period almost two years prior to the charged offenses and subsequently deleted and overwritten, the potential for prejudice was high where the filenames were descriptive and disturbing, and the military judge erroneously allowed the evidence to be used expansively to show appellant’s propensity to commit the charged offenses (an impermissible purpose under MRE 404(b)) in a “he said/he said” dispute between appellant and the victim where the filenames - taken as propensity evidence - arguably corroborated the victim’s version of events

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when an appellate court finds a nonconstitutional error, it tests for prejudice; the question, which it reviews de novo, is whether the error had a substantial influence on the members’ verdict in the context of the entire case; in answering this question, it considers four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; when a fact was already obvious from testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless; conversely, where the evidence does provide new ammunition, an error is less likely to be harmless
2. the military judge’s error in admitting evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not harmless in a prosecution for committing sodomy with a child, where this was a case of dueling facts pitting appellant’s denial that sexual contact occurred against the victim’s claim that it did, and the members were instructed that they could consider the filename evidence, which had nothing to do with the victim, for its tendency, if any, to show appellant’s propensity to engage in the charged conduct; the filename evidence introduced new ammunition against appellant found nowhere else in the record; while the question of prejudice might otherwise be a close one, members are presumed to follow the military judge’s instructions, and in this case, the military judge’s instruction, erroneously permitting members to use the filenames to show appellant’s propensity to engage in sodomy or indecent acts with a child, tipped the balance here; the admission of and instruction on the use of the filename evidence had a substantial influence on the findings, and materially prejudiced appellant’s substantial rights

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

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion
2. the threshold question under MRE 414 whether the proffered evidence is evidence of the accused’s commission of another offense of child molestation as defined by the rule is one of law, reviewed by an appellate court de novo
3. when an appellate court finds a nonconstitutional error, it tests for prejudice; the question, which it reviews de novo, is whether the error had a substantial influence on the members’ verdict in the context of the entire case; in answering this question, it considers four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; when a fact was already obvious from testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless; conversely, where the evidence does provide new ammunition, an error is less likely to be harmless

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. indecent acts with a child under Article 134, UCMJ, is not a lesser included offense of forcible sodomy under Article 125, UCMJ