## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before DUNN, HOLDEN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant NORRIS DAVIS United States Army, Appellant

ARMY 20041240

Headquarters, Fort Drum David L. Conn, Military Judge Lieutenant Colonel James F. Garrett, Staff Judge Advocate (trial and post-trial recommendation) Lieutenant Colonel George R. Smaw ley, Acting Staff Judge Advocate (post-trial addendum)

For Appellant: Lieutenant Colonel Steven C. Henric ks, JA; Major Tyesha E. Lowery, JA; Captain Ryan M. Suerth, JA (on brief).

For Appellee: Colonel John W. Miller II, JA; Lieutenant Colonel Virginia G. Beakes-Read, JA; Lieutenant Colonel Francis C. Kiley, JA ; Major Karen J. Borgerding, JA, USAR (on brief).

28 September 2007

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OPINION OF THE COURT

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DUNN, Chief Judge:*

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of indecent acts with a fe male under sixteen years of age in violation of Article 134, Un iform Code of Military Ju stice, 10 U.S.C. § 934 [hereinafter UCMJ]. 1 The military judge convicted appellant, c ontrary to his pleas, of a second specification of indecent acts with a female under sixteen years of age in

* Chief Judge Dunn took fina l action in this case prior to her reassignment.

1 Appellant pled not guilty to Charge I (rape), which was dismissed by the military judge pursuant to a pretrial agreement.DAVIS – ARMY 20041240

2 violation of Article 134, UC MJ. The convening authorit y approved the adjudged sentence to a dishonorable discharge, confinement for five years, and reduction to

Private E1. This case is before the cour t for review pursuant to Article 66(c),

UCMJ.

In this mixed plea case of first impression, we deci de whether a military judge

can consider an accused’s statements ma de during the guilty plea inquiry when subsequently ruling on the admissibility of ev idence during the co ntested portion of

the trial. 2 Although Militar y Rule of Evidence 104 [hereinafter Mil. R. Evid.] grants the military judge broad auth ority to consider evidence on interloc utory matters, it does not permit a military judge to consid er statements from a guilty plea inquiry when deciding admiss ibility of evidence during the contested portion of the trial regarding a separate o ffense. Although we find the military judge erred when he considered appellant’s statements made duri ng the providence in quiry when deciding to admit propensity ev idence under Mil. R. Evid. 41 4, we also fi nd that error harmless beyond a reasonab le doubt under the circumstances of this case.

I. BACKGROUND

Appellant, a thirty-three -year-old married infantry man, committed indecent acts upon his two ste pdaughters: thirteen-year-old MR, and eleven-year-old LM. Appellant pled guilty to act ing indecently with MR on divers occasions over a twoyear period between 1998 and 2000. Appellant pl ed not guilty to acting indecently, on a single occa sion, with LM in May 2004. 3 During the contes ted portion of the case, in addition to calling LM to testify, the gover nment also called MR who

related what she saw and did and what her sister said about appellant’s acts on LM.

MR also testified about the ti mes appellant molested her. Appellant objected to the

2 Appellant alleges the mil itary judge erred by imprope rly using his admissions during the providence inqu iry on Specification 1 of Charge II as proof that appellant was guilty of the cont ested Specification 2 of Charge II. Given the military judge’s prior express disclaimer of any su ch use and specific refusal to consider the stipulation of fact on Spec ification 1 during findings deliberations on Specification 2, we reject appellant’s assert ion: “I do not[e] – – that I did make brie f reference to the accused plea of guilty when making a determination of whether the event related to [MR] would be admissibl e under [Mil. R. Ev id.] 414, but I us ed the accused’s plea only for the sole basis for making th at determination and fo r no other pu rpose.”

3 MR was between the ages of seven and nine during th e period from 1998 to 2000 when appellant sexually mole sted her by fondling her and placing his hands on her buttocks, legs, and “private parts.” LM was eleven year s old in 2004 wh en appellant sexually molested her by suck ing her neck and placing his naked erect penis up the leg of her shorts and against her body near her vagina.DAVIS – ARMY 20041240

3 government questioning MR about the molestations to which appellant had already pled guilty in Specification 1 of Charge II.

Guilty Plea

Before accepting a guilty plea, Article 45, UCMJ, re quires the military judge to address the accused person ally, explain the rights wa ived by entry of a guilty plea, and obtain the accused’s e xpress waiver of these rights. United States v. Care

, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). In additi on, the military judge

must ensure an accused under stands the provision s of any pretrial agreement and that the parties agree to the terms set forth in the agreement. United States v. Resch , 65 M.J. 233, 237 (C.A.A .F. 2007) (citing United States v. Bartley , 47 M.J. 182, 186 (C.A.A.F. 1997); United States v. Green , 1 M.J. 453, 456 (C.M .A. 1976); R.C.M. 910(f)(4)(A)). In this case , although the military judge fu lfilled these requirements, he never informed appe llant that his plea of guilty, st ipulation of fact, or statements he made during his providen ce inquiry could later be considered by the court on matters pertaining to the remain ing contested ch arge.

Trial on the Merits

After appellant pled guilt y to indecent acts with MR, the government presented evidence on the me rits to prove appellant co mmitted indecent acts with LM. Appellant called no witn esses and did not testify.

JD’s Testimony

In 1992, appellant met his wife, JD, wh ile stationed in Pa nama. JD already had two daughters wh en they met: MR, born in 1991, and LM, bo rn in 1992. Appellant and JD married in 1995; the couple had one son in 1996 and another son in 1999. They reloca ted from Panama in May 1997 to Fort Campbell, Kentucky, where the family lived for four years. Appellant was stationed without his family in Korea from 2000-2001, after wh ich the family moved to Fort Drum, New York. Appellant deployed to Afgh anistan in 2003, re turning in May 2 004. On 27 May 2004, appellant and JD had an argument because JD did not approve of appellant having bought an expensive vehicle. That night, JD went out with some girlfriends to celebrate a birthday and appellant stayed hom e with the children.

JD returned home around 0200 hours on 28 May, found ever yone sleeping,

and went to bed. She ar ose around 0700 hours the next morn ing and noticed two unusual situations: both gi rls were already up and out of their rooms and appellant

was also out of bed and in their sons’ room, playing wi th the boys. She heard a

noise in the kitchen and sa w LM and MR by the stairs . They beckoned to JD, whispering they needed her to come downstairs so they could talk to her. Both girls appeared nervous, scared, an d shocked. MR to ld her that something happened last night and that LM had to tell her mother. LM, wrin ging her hands, looking down,DAVIS – ARMY 20041240

4 and shaking, told her mother that appellant molested her the previous evening. JD grabbed a knife from the k itchen, then immediately went upstairs to confront appellant. She found him back in bed, hold ing a blanket up around his face, with his eyes open, and challenged hi m, saying “How dare you. How dare you. Messing with my daughter. . . . Yo u don’t mess with my daugh ter. You don’t touch my daughter.” Appellant responded saying, “W hat? What are you talking about?” JD grabbed the phone and told appellant she wa s calling the police. Alarmed, appellant said, “Don’t do th at. My career will be over. My career will be over.” JD told appellant he should have thought about hi s career before he touched LM and she dialed 911. Although JD had not given ap pellant any details of LM’s allegations, appellant said, “Okay, ok ay, I’ll tell you what happened. It didn’t happen like that

. It didn’t happen like that . I’ll tell you what happened” (emphasi s added). The two then began arguing a nd appellant never told her his ve rsion of what happened. The military police arrived and removed appellant. JD subs equently took LM to the hospital for an examination, and later to CID where LM de scribed appellant’s sexual

acts. LM’s Testimony

During the contested portion of the trial, LM testified that appellant sexually

molested her on the evenin g of 27 May 2004 when she wa s eleven years old. LM explained she fell asl eep that night in her bedroom unde r her blanket wi th the remote control in her hand; she had been watching the Disney Channel. LM awoke to find appellant grabbing the remote control from her, and changing the channel to watch the news. She testified ap pellant then removed her bl anket, took her out of bed, placed her on his lap on a vaca nt bed in her bedroom, to ok out his naked erect penis from underneath his clothing, and placed it up the leg of her shorts a nd against her body near her vagina. Whil e putting his penis inside her shorts, appellant also

sucked on LM’s neck. After LM heard her sister MR get up to use the bath room, her stepfather put her back in her bed, placed th e covers back on her, and ran out of the room. Appellant later briefly returned to her room, then qu ickly left again.

Dr. Pagdin’s testimony

Doctor (Dr.) Grant Pagdin, an emergenc y room physician, performed a sexual assault exam on LM. Doctor Pagdin descri bed LM as about four feet tall, weighing eighty-eight pound s and sexually undevelope d. He testified that LM stated that at

the time of the molestation she was wearin g clothes, her “father” pulled her on top of him, and pulled his penis out of his pants. He furthe r testified that LM suffered a minor mucosal tear, a “straddle- type” inju ry, in her vaginal region that appeared

fresh.DAVIS – ARMY 20041240

5 MR’s Testimony

The government also calle d MR, who testified she awoke to a loud noise on 27 May 2004 and grew concerne d about her sister, LM. MR thought appe llant, who had “raised” her, was “doing something to [her] sister.” Spec ifically, she “had a weird feeling that my dad was doing something to . . . her that he [had done] to me when I was younger.” MR testified that when she was seven to eight years old, while her mother was not at home, appellan t would come to her room at night when she was sleeping. Appellant w ould open her legs, and put hi s finger into her vagina.

On 27 May 2004, to crea te a commotion and help pr otect her sister, MR went

to the bathroom to make no ise so appellant would “get off” LM. MR flushed the toilet and then heard a sq ueaking noise and saw appell ant running from LM’s room down the hallway. Sh e returned to her room and watc hed LM’s door. She observed appellant return to LM’s room, stay a few minutes, and then return to his room. The next morning, while the two girls were brushing their teeth, MR asked LM what appellant had done to he r. LM did not want to talk. MR testified LM acted nervous, wrung her hands, remained qu iet, and looked dow n all the time. Wh en the girls went downstairs and while they we re washing the dishes, MR again asked LM what had happened and LM told MR about appellant’s indecent acts the previous night. MR immediately called their mother downstairs so that LM co uld tell her mother what appellant ha d done.

The government questioned MR about the indecent acts appellant perpetrated upon her from 1998 to 2000, to which appellant pl ed guilty in Sp ecification 1 of Charge II, in order to dem onstrate appellant’s propensi ty for such conduct. The following exchange took place:

DC: Now I have an ob jection, Your Honor.

MJ: All right. And what’s th e basis of your objection?

DC: [Mil. R. Evid.] 403.

MJ: All right. Government, why are you seeking to offer testimony about wh at happened to this witness?

TC: Your Honor, the pro ffer of evidence that the government offers is evidence of abuse that [MR] suffered as a child . . . under [Mil. R. Evid.] 414(b) which allows evidence of a previous--evide nce of previous child sexual

offenses.

. . . .DAVIS – ARMY 20041240

6 MJ: All right. So Defense, wh at’s your position on this

evidence as it relates to [Mil. R. Evid.] 414(a)?

DC: Our position, Your Honor, with regard to [Mil. R. Evid.] 414(a) is that it's no t relevant as to whether they (sic) accused committed the o ffenses that he’s currently contesting. So [Mil. R. Evid .] 414 would allow it to be

admissible if it wa s relevant, but my un derstanding is that [the] government is essentially going to offer this evidence as evidence of prop ensity rather than anything directly related to the events of the 27th of May as they are alleged.

MJ: All right. But under [Mil. R. Evid.] 414(c), isn’t it

true that this was intended to be an explicit exception to the prohibition against propens ity evidence under [Mil. R. Evid.] 404(b)?

DC: Well, Your Honor, I still believe that [the] prejudicial effect of hearing that evidence is going to outweigh the--any probative value that the court may glean from hearing the evidence.

MJ: All right. Government, wh at’s your response to as I understand it, not a [Mil. R. Evid.] 414(a) objection, meaning that this evidence––it’s not the defense

contention I take it th at this would not c onform to the type

of evidence admissib le under Military Rule of Evidence 414(a). Is that right?

DC: Yes, sir.

MJ: But it’s a [Mil. R. Evid.] 403, th at the prejudicial effect substantially outweighs a ny probative valu e. Is that right?

DC: Yes, sir.

The Government then argu ed MR’s testimony would demonstrate appellant’s propensity to commit the contested sexual offense and that, beca use of similarities such as the time of day, the mother’s absence, the place of the crime, and the age of the victim, the probative value of the evid ence outweighed the prejudicial effect. Defense counsel, on the other hand, argued there we re insufficient si milarities: the victimization of MR took pl ace several years be fore, in a differe nt location, and “were substantially diffe rent in terms of the––kind of the mode. . . .” The militaryDAVIS – ARMY 20041240

7 judge then ruled:

MJ: All right. Well[,] taking into account the evidence the court has previously heard wi th regard to the charged offense to which St aff Sergeant Davis has previously pled guilty , I do find that there are significant simi larities in the charged offense and th e offense proffered by the government in this case whic h they seek to admit under [Mil. R. Evid.] 414. . . (emphasis added).

The military judge overruled the defense objectio n, allowed MR’s testimony on appellant’s sexual molestatio n of her and convic ted appellant of in decent acts with

LM.

II. DISCUSSION

When making evidentiary ru lings, a military judge is not bound by th e rules of evidence. Mil. R. Evid. 104(a). See United States v. Yanez , 16 M.J. 782, 784 (A.C.M.R. 1983) pet

. denied, 18 M.J. 292 (C.M.A. 19 84) (“Military Rule of Evidence 104(a) subs tantially changed m ilitary practice, by providing that the military judge is no t bound by the rules of evidence when dete rmining preliminary questions such as the admissibility of evidence”). 4

The issue in this case is whether, given th e broad admissibil ity provisions of Mil. R. Evid. 104(a), the military judge co uld consider what ap pellant said about molesting MR during the prov idence inquiry in determining whet her MR’s testimony

would be admissible at trial on the contested specificatio n. We hold that, absent any affirmative waiver by appellant—of which there was none in this case—the military judge could not consider st atements made dur ing the providence inquiry for such evidentiary rulings.

“The judicial policy limiting the use of judicial admissi ons made during a guilty plea inquiry is a long-standing tenet of military justice.” United States v.

Ramelb , 44 M.J. 625, 628 (Army Ct. Crim. Ap p. 1996)(internal citations omitted).

4 Military Rule of Evidence 104 is based on the corr esponding Federal Rule of

Evidence which allows trial judges in civilian federal courts to consider hearsay or

unauthenticated documents when deci ding a question of admissibility. Yanez , 16 M.J. at 784 (citations omitted). This broa d rule, however, may ha ve its limitations.

In United States v. Light , 48 M.J. 187, 190 (C.A.A.F. 199 8), our superior court left the issue unresolved, but recognized a “ten sion” between Mil. R. Evid. 104 and the admissibility of evidence of a polygraph examinat ion when addressi ng the issue of a

search warrant.DAVIS – ARMY 20041240

8 In United States v. Grijalva , 55 M.J. 223, 228 (C.A.A.F. 2001), our su perior court delineated the general rule barring admiss ion during a contested case of statements made by an accused during an earlier plea inquiry. Grijalva shot his wife in the back and was charged with attempted premeditated murder. He pled guilty to the lesser included offense of aggrav ated assault and, in a be nch trial, the government successfully proved the charge d greater offense. In fi nding Grijalva guilty, the military judge specifically relied on admiss ions made during th e providence inquiry

on the lesser included offense that indicated Grijalva intended to shoot his wife and

took actions indicative of premeditation, such as rem oving his young daughter from

the line of fire. Id. at 227. While “a gui lty plea to a lesser-i ncluded offense may be

used to establish facts and elements comm on to both the greate r and lesser offense within the same specification, ” admissions during a providence inqu iry relating to a contested element may not be so used. Id . at 227-228 (inter nal quotations and citations omitted). See also United States v. Gilchrist , 61 M.J. 785, 794 (Army Ct. Crim. App. 2005) and cases cited therein.

In Grijalva , the Court of Appeals for the Armed Forces (CAAF) held it was error for the military judge, in finding the element of pr emeditation, to consider statements Grijalva made for a purpose not within his limited waiver of the right against self-incrimination. Grijalva , 55 M.J. at 228; see also United States v.

Gilchrist , 61 M.J. at 794-95 n. 17 (“This limite d ‘knowing and intelligent’ waiver of his privilege against sel f-incrimination did not include authorization to use appellant’s statements from the pl ea inquiry to prove the contested specification.”)(internal citatio ns omitted). Furt her, the CAAF dete rmined that since

such an error was of Consti tutional dimension, relief wa s required unless the error was harmless beyond a reasonable doubt. Grijalva , 55 M.J. at 228. Examining all the “powerful and uncontested evidence” of Grijalva’s guilt, the CAAF concluded the military judge’s erro r was harmless beyond a reasonable doubt. Id

. See also

Resch , 65 M.J. at 237 (error was not harm less beyond reason able doubt when government had no other evidence outside of st ipulation of fact).

In the instant case, we deal not with a finding of guilty on a greater offense, but with the admissibility of evidence on a separate but re lated offense: appellant’s molestation of his other prepubescent step daughter, LM. Here, the military judge advised appellant his guilty plea to indecent acts with MR waived his right against

self-incrimination with regard to that offense. The military judge expressly advised appellant the stipulation of fact would be used for the limited purposes of determining the provid ence of appellant’s guilty plea and an appr opriate sentence. The military judge did not inform appellant the stipul ation of fact regarding Specification 1 of Charge II might also be used to determin e admissibility of evidence in the ensuing contested trial on the merits of Specification 2 of Charge II.

The military judge’s cons ideration of facts from appellant’s testimony during the guilty plea inquiry in hi s ruling on admissi bility of propensity evidence under

Mil. R. Evid. 414 and 403 amounted to erro r of a Constitutional dimension. In soDAVIS – ARMY 20041240

9 doing, the military ju dge exceeded the perm issible uses to whic h appellant consented in his waiver of his privil ege against self-inc rimination. Because the mi litary judge erred in using information from the guilty plea inquiry to anal yze the admissibility of MR’s testimony, we will not grant deferenc e to his analysis. Cf. United States v. Berry , 61 M.J. 91, 96 (C.A.A.F. 2005) (“[w]here the military judge is required to do a balancing test under M.R.E. 403 and does not sufficie ntly articulate his balancing on the record, his evidentiary ruling will receiv e less deference fr om this court.”) (citations omitted). Instea d, we conduct our own independ ent analysis based only on the information properly before the military judge at the point in time he ruled the

contested evidence admissible. See United Stat es v. Parker, 54 M.J. 700, 714 (Army Ct. Crim. App. 2001) (where mi litary judged erre d in failing to ap ply Mil. R. Evid. 403 balancing test, appell ate court tested for pr ejudice by conducting own balancing), aff’d , 62 M.J. 310 (C.A.A.F. 2005).

Admissibility of Propensity Evidence

Beginning “[i]n 1996 th[e] rule against admissibility of bad acts to prove a propensity to commit similar acts was turned upside down in cases involving . . .

sexual offenses in volving minors.” United States v. James , 63 M.J. 217, 219 (C.A.A.F. 2006) (emphasis adde d). Military Rule of Ev idence 414(a) provides: “In

a court-martial in which the accused is char ged with an offense of child molestation,

evidence of the accused’s commission of on e or more offenses of child molestation is admissible and may be co nsidered for its bearing on any matter to which it is relevant.” Before a military judge ad mits evidence of ot her acts of child molestation, the evidence must pass the criteria set out in United States v. Wright , 53 M.J. 476, 482 (C.A .A.F. 2000). See James , 63 M.J. at 220 ( Wright factors apply to

Mil. R. Evid. 4 14). Under the Wright analysis, the accused mu st be charged with a

child molestation offe nse, there must be evidence proffered that he committed another offense, and the evidence must be relevant. Wright , 53 M.J. at 482.

Trial defense counsel conceded the evid ence of appellant’s propensity to

commit child molestation was admissible under Mil. R. Ev id. 414, but obj ected that it was unfairly prejud icial under Mil. R. Evid. 403. In conduct ing a Mil. R. Evid. 403 analysis on whethe r to exclude Mil. R. Evid. 414 evidence because its probative value is substantially outweighed by the danger of unfair prejudice, the military judge may consider factors such as “proxi mity in time to the charged or predicate misconduct; similarity to the charged or predicate misconduct; frequency of the other acts; surrounding ci rcumstances; relevant intervening events; and other

relevant similarities or differences.” Draf ter’s Analysis, Mil. R. Evid. 414, Manual for Courts-Martial, United States, 2005 at A22-37 ( quoting Report of the Judicial

Conference of the United St ates on the Admission of Char acter Evidence in Certain Sexual Misconduct Cases). “In applying M.R.E. 4 03 to evidence otherwise

admissible under M.R.E. 414 we apply an approach balancing numerous factors. No

one factor is controlli ng, although in a given ca se it could be.” United States v.

Bare , 65 M.J. 35, 37 (C.A.A.F. 2007).DAVIS – ARMY 20041240

10 Some of the factors to be examined when conducting a balancing test are as follows: Strength of proof of the prior act—conviction versus go ssip; probative weight of evidence; potential for le ss prejudicial evidence; distraction of fact finder; and time needed for proof of prior conduct. Some others include: temporal proximity; frequency of the ac ts; presence or la ck of intervening circumstances; and relationship betw een the parties.

Wright, 53 M.J. at 482 (internal citation omitted)

. See also United States v. Dacosta

, 63 M.J. 575, 580 (Army Ct. Crim. App. 2006).

In the instant case, the evidence at issu e is not only admiss ible under Mil. R. Evid. 414, it also passes muster under the Mil. R. Evid. 403 balancing test. Appellant was charged with child molestation offenses against two children; there was evidence he committed both, and the eviden ce of one was relevant to the other. As MR testified, the circ umstances of appellant’s in decent acts upon her were similar, although not comple tely parallel, to the acts on LM. Both victims were prepubescent; both were ap pellant’s stepdaughters; both were in their own homes, 5
in bed, sleeping; their mother was out of the hou se; and appellant engaged in various forms of touching short of sexual intercou rse with both victim s. “The Rule 403 balancing test should be app lied ‘[i]n light of the strong legislative judgment that the evidence of prior sexual offenses should ordinarily be admissible .’” Wright , 53 M.J. at 482 (quoting United States v. LeCompte , 131 F.3d 767, 769 (8th Cir. 1997))(emphasis added). Further, in a m ilitary judge alone tr ial, there was “no

distraction to the fact-finder.” Id. There was no less prejudic ial evidence available: given appellant’s secretive behavior, MR was the only available witness who could provide the relevant evidence.

Additionally, we note MR’s testimony wa s relevant entirely apart from its

value in demonstratin g appellant’s propensity to molest his stepdaughter; her

5 Appellant makes much of the fact that the locations were different and the incidents were years apart. While we include those factors in ou r balancing test, we do not find those factors compelling: the geog raphical locations were different because appellant had been reassign ed and moved his family fr om Kentucky to New York;

the abuses on both victims occurred in the family home. As fo r the lapse of time, for a significant part of that time ap pellant did not have access to either stepdaughter because of his assignments. As MR testified, appellant’s a buse of her ceased only when he was assigned to Kore a, a period appell ant’s wife JD test ified was a year. JD also testified that appellant left for Afghanistan in 2003 and returned the very

month in which the abus e of LM occurred.DAVIS – ARMY 20041240

11 testimony explained w hy she worried what her stepfath er might be doing to LM and why MR felt the need to creat e a commotion. In other wo rds, her deliberate attempt to make noise and get her father out of LM’s bedroom made sense because MR knew from firsthand experience there was reason to susp ect her father was doing something criminal to her sister. MR’s testim ony also served to explain her questioning of her sister and her careful attention to LM’s body language and behavior, all of which were particularly relevant given appellant’s strategy of contesting LM’s credibility and attributing LM’s statements to some form of instigation by MR.

In sum, entirely apart from the stip ulation of fact or appellant’s own admissions during the prov idence inquiry, we find the evidence appellant molested

MR was admissible to show his propensity for child molestation as evidence to prove he molested LM; its probative valu e was not substantially outweighed by the danger of unfair prejudice.

Harmless Error

While the military judge erred in cons idering appellant’s statements during the guilty plea inquir y on Specification 1 of Charge II when deciding admissibility of the propensity evidence on contested Specification 2 of Charge II, we find the error harmless beyond a reasonable doubt. First, the actual admission of the

evidence itself was not error: essentially, th e military judge was correct in his ruling but wrong in the methodology he used to reach it. As discussed supra , the evidence of the offenses against MR under Mil. R. Evid. 414 an d Mil. R. Evid. 403, through MR’s own te stimony, was proper ly admissible to show appellant’s propensity to commit sexual molestation of LM.

Further, even if MR’s testimony about the incidents to wh ich appellant pled guilty was not admissible as propensity evidence, th ere was ample additional evidence to convict appellan t beyond a reasonable doubt of the indece nt acts with LM. Most importantly, LM test ified in detail about the ev ent. She also made fresh complaints to her sister, he r mother, and the p hysician and nu rse who examined her. Doctor Pagdin testified that LM told hi m about the molestatio n. LM also made a

consistent statement to CID 6 and her physical exam rende red results consistent with

6 Appellant asserted, and contin ues to assert, LM rendered inconsistent statements, most particularly whether appellant placed his penis in or on her vagina. The criminal investigator who interviewed LM explained that the apparent

“inconsistencies” were resolved when the agent provid ed LM with an anatomically

correct doll so that she co uld demonstrate the body parts to which she was referring. Using the doll, LM made clear that appellant’s penis did not go “inside” the “vaginal

(continued . . .)DAVIS – ARMY 20041240

12 the indecent acts. Her mother, JD, testif ied to LM’s statements. Moreover, JD

described the altercation she had with appellant upon conf ronting him. Even though JD did not specify what LM had told her, appellant’s immediate responses demonstrated his guilty consci ence. He told JD that hi s “career [would] be over,” “it didn’t happen like that,” and then tried to prevent JD from calling the police.

MR’s other “non-propens ity” testimony co rroborated LM’s story. MR

described how she flushed the to ilet in order to disrupt appellant. She testified how appellant, showing c onsciousness of guilt, fled from LM’s room after hearing the noise, only to sneak b ack in later. MR also describe d LM’s look of anguish the next morning and her result ing perception that something wrong had happened to LM. Accordingly, even if the military judge e rred by admitting the propensity evidence MR provided, it was harmless beyond a reasonable doubt.

CONCLUSION

We have considered the remaining assignments of error and matters personally asserted by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and find them without merit.

Accordingly, the findi ngs of guilty and the se ntence are affirmed.

Senior Judge HOLDEN an d Judge SULLIVAN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

(. . . continued) hole”; instead, the penis went “up next to it.” Accord ingly, we find the statements

were not inconsiste nt as alleged. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: