U.S. v. Fetrow, 76 M.J. 181

Core Criminal Law Subjects: Evidence: Generally

1. the rules of statutory construction, although generally applied to construe statutes, are helpful in analyzing evidentiary rules as well as other provisions of the MCM
2. the plain language of an evidentiary rule should be read to give effect to every clause and word; words used in the rule should be given their common and approved usage, and the rule should be construed so as to avoid rendering any language superfluous or redundant

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

1. admissibility under MRE 414 (similar crimes in child-molestation cases) requires the following findings by the military judge: (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; with respect to the second element, the rule, in relevant part, defines “another offense of child molestation” as follows: child molestation means any offense punishableunder the UCMJ, or a crimeunder federal law or under state law that involves any conduct prohibited by Article 120 (rape and sexual assault generally) and committed with a child
2. the text of MRE 414 is construed strictly rather than expansively
3. in order for an accused’s prior conduct to be admissible in a court-martial for child molestation as evidence that appellant previously committed another offense of child molestation, the prior conduct must have been against the law at the time it occurred; otherwise, it would have been lawful conduct and thus, not a crime or an offense punishable under MRE 414
4. in order for an accused’s prior conduct to be admissible in a court-martial for child molestation as evidence that appellant previously committed another offense of child molestation, the similar crime must involve conduct listed in the version of MRE 414 in effect at the time of trial, and to the extent that list incorporates specific criminal statutes, the prior conduct at issue must constitute a crime under those statutes in effect on the day of trial
5. in order for an accused’s prior conduct to be admissible in a court-martial for child molestation as evidence that appellant previously committed another offense of child molestation, a two-part analysis is used for determining whether uncharged acts qualify as other offenses of child molestation, namely, (1) whether the conduct constituted a punishable offense under the UCMJ, federal law, or state law when the conduct occurred; and (2) whether the conduct is encompassed within one of the specific categories set forth in the version of MRE 414(d)(2)(A)-(G) in effect at the time of trial
6. the testimony of the accused’s biological daughter regarding an incident in which the accused allegedly seductively touched her thigh when she was approximately three to four years old was admissible as propensity evidence of a prior offense of child molestation at a GCM in which the accused was charged with molesting his stepdaughters; the accused’s alleged conduct with his biological daughter was an indecent act with a child punishable under UCMJ when committed, and it constituted abusive sexual contact under Art 120, UCMJ, an offense incorporated in the qualifying offenses set forth in MRE 414 in effect at the time of trial
7. the testimony of the accused’s biological daughter regarding an incident when she was three or four years old in which she saw the accused having sex with a woman and her testimony regarding another incident when she was eight or nine years old in which she saw the accused’s penis were inadmissible as propensity evidence of prior offenses of child molestation at a GCM in which the accused was charged with molesting his stepdaughters; even if both incidents constituted indecent exposure punishable under UCMJ when committed, indecent exposure was not incorporated in the qualifying offenses set forth in MRE 414 in effect at the time of trial because it did not involve a sexual act or sexual contact

Trial Stages: Appeals: Generally

1. resolution of certified questions necessitates close examination of the language of the rule

Trial Stages: Appeals: Harmless / Prejudicial Error

1. under Article 59(a), UCMJ, a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; it is the government that bears the burden of demonstrating that the admission of erroneous evidence was harmless; in evaluating whether an erroneous admission of evidence was harmless, an appellate court uses a four-part analysis, weighing (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
2. the erroneous admission as propensity evidence of two acts of indecent liberties committed by the accused on his biological daughter had a substantial influence on the members’ verdict and was not harmless at a GCM in which the accused was charged with molesting his stepdaughters; his biological daughter gave emotional and heartfelt testimony regarding an incident in which she saw the accused having sex with a woman and an incident in which saw the accused’s penis, and the testimony served no purpose other than to improperly suggest that the accused was adulterer with no regard for the psychological welfare of his young child or that he was a poor parent with an odd proclivity for allowing his children to view him unclothed

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

1. the standard of review for a military judge’s decision to admit evidence is abuse of discretion
2. whether admitted testimony constitutes evidence that the accused committed another offense of child molestation under MRE 414 is one of law, reviewed de novo.
3. questions involving the construction of statutes and rules are reviewed de novo
4. under Article 59(a), UCMJ, a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; it is the government that bears the burden of demonstrating that the admission of erroneous evidence was harmless; in evaluating whether an erroneous admission of evidence was harmless, an appellate court uses a four-part analysis, weighing (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
5. an appellate court reviews de novo whether an accused was prejudiced by a nonconstitutional evidentiary error

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. the rules of statutory construction, although generally applied to construe statutes, are helpful in analyzing evidentiary rules as well as other provisions of the MCM