IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Bartholomew M. BERRY, Sergeant 

U.S. Army, Appellant 

No. 04-0240 

Crim. App. No. 20000960 

United States Court of Appeals for the Armed Forces 

Argued October 20, 2004 

Decided May 10, 2005 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., 

filed a separate opinion concurring in the result. 

Counsel 

For Appellant: Captain Charles A. Kuhfahl Jr. (argued); Colonel 

Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major

Sean S. Park (on brief); Colonel Mark Cremin. 

For Appellee: Captain Michael D. Wallace (argued); Colonel 

Steven T. Salata and Major Natalie A. Kolb (on brief). 

Military Judge: William T. Barto 

This opinion is subject to editorial correction before final publication. 
United States v. Berry, No. 04-0240/AR 

2

Judge ERDMANN delivered the opinion of the court. 

 After entering a guilty plea to the lesser included offense 

of sodomy, Sergeant (SGT) Bartholomew M. Berry was tried by a 

general court-martial on a number of offenses. Berry was 

convicted of the greater offense of committing sodomy by force 

and without consent, making a false official statement, 

committing an indecent act with another, and fraternization, in 

violation of Articles 125, 107, and 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 907, 925, 934 (2000), 

respectively. Berry’s sentence, which was approved by the 

convening authority, included a bad-conduct discharge, 

confinement for twelve months, and forfeiture of all pay and 

allowances. 

 The sole issue before this court involves the admission of 

evidence of a prior sexual assault under Military Rule of 

Evidence (M.R.E.) 413. At trial, Berry’s defense to the charge 

of forcible sodomy was that Sergeant T (SGT T) had consented to 

the oral sex incident that was the basis for the charge. To 

counter this defense the Government sought to introduce 

testimony from LS, who testified he had been the victim of a 

similar act by Berry eight years earlier. The military judge 

found that the testimony was relevant and admissible under 

M.R.E. 413 and that ruling was affirmed by the United States 
United States v. Berry, No. 04-0240/AR 

3

Army Court of Criminal Appeals in an unpublished opinion. 

United States v. Berry, ARMY 20000960 (A. Ct. Crim. App. Dec. 

18, 2003). 

We granted review of the Army court’s decision to determine 

whether the military judge erred in admitting LS’s testimony 

under M.R.E. 413. We find that although the testimony was 

relevant, the military judge erred in admitting it because he 

failed to do an adequate balancing test under M.R.E. 403 and 

that under a proper M.R.E. 403 balancing test, the testimony was 

inadmissible. We also find the error to be prejudicial. 

BACKGROUND

 Berry’s conviction flows from events that occurred after a 

barbecue at his residence attended by Berry, SGT T, and Private 

First Class (PFC) H. They drank a few beers at the barbecue and 

then went to a bar in town where they continued drinking. After 

they had been at the bar a few hours, SGT T fell out of his 

chair while reaching for a cigarette and the three decided to 

return to Berry’s residence. SGT T became sick when they 

arrived at Berry’s residence and he threw up several times. The 

evidence at trial gave two different versions of the events that 

followed. 

In Berry’s sworn statement, in which he admitted to 

consensual sodomy with SGT T, Berry said that he helped SGT T 

clean himself up and helped him into Berry’s bed. He then 
United States v. Berry, No. 04-0240/AR 

4

stated that he and SGT T began kissing and Berry “brought [SGT 

T’s] pants down, and that’s when [the oral sex] happened.” SGT 

T did not tell Berry to stop, and Berry claimed that SGT T was 

awake at the time although “he was going in and out, he was 

pretty drunk.” After the oral sex, Berry went to sleep and woke 

up later to drive SGT T to pick up his daughter from day care. 

 SGT T testified to a different version of events. He 

stated that he felt very dizzy and very sick when they left the 

bar and that he threw up a number of times when they got back to 

Berry’s residence. After lying on Berry’s bed to sleep it off, 

the next thing he remembered was looking up and seeing Berry on 

top of him and kissing him. He testified that he tried to stop 

Berry, but that he could not move. Berry then asked him if he 

“wanted to f[---],” and he said no. Berry told SGT T that he 

had some condoms, and SGT T again said no. 

The next thing he remembered was that Berry’s “head started 

moving down towards my genital area.” Again SGT T “tried to 

move and tried to push him off, but I couldn’t . . . . I felt 

like I was paralyzed and I just could not move.” The last thing 

he remembered was “a warm sensation on my genital area, but I am 

not sure because I don’t remember seeing him being on it . . . 

I just remember him going down towards that area, and then a 

sensation there of feeling that he was putting his mouth on my 

genital area.” SGT T also remembered someone trying to get his 
United States v. Berry, No. 04-0240/AR 

5

underwear back on him and that Berry then woke him up to pick up 

his daughter. 

In addition to the two conflicting accounts of the evening, 

LS testified at trial over the objections of Berry’s defense 

counsel. LS was fifteen at the time of his testimony and he 

testified regarding an encounter he had with Berry eight years 

earlier when he was six and Berry was thirteen. He and Berry 

both resided in military housing in Hawaii. According to LS, 

one day they were playing with a group of children and Berry 

called him over behind a tree. Berry pulled his own pants down, 

and “tried to get me to such [sic] on his penis.” When LS said 

no, Berry reached over and pulled his pants down and “said he’d 

do it to me first.” LS hesitated, but Berry convinced him and 

then proceeded to suck on his penis. Berry then said it was his 

turn, and LS began to suck on Berry’s penis. They were 

interrupted when “a guy ran out,” and both of them ran away. On 

cross examination, LS admitted that there was no force used by 

Berry but that Berry talked him into participating. 

The prosecution sought to have LS’s testimony admitted 

under M.R.E. 413, stating that “it is relevant to Sergeant 

Berry’s propensity to sexually assault those who are in a 

position of vulnerability.” Trial counsel also stated that the 

evidence satisfied the M.R.E. 403 balancing test established by 
United States v. Berry, No. 04-0240/AR 

6

this court in United States v. Wright, 53 M.J. 476 (C.A.A.F. 

2000), and therefore was not overly prejudicial. 

Berry’s defense counsel objected to the admission of this 

testimony on the basis that it was “extremely distracting, and 

. . . extremely prejudicial.” The defense argued that LS’s 

memory of the event, on a scale of one to ten (with ten being 

very clear), was only about a six. With regard to the probative 

value of the evidence, the defense counsel argued that it was 

childhood sexual experimentation and that it took place eight 

years prior to the event in question with no evidence that 

anything of the kind happened in between. He further argued 

that there was no evidence of physical force or lack of consent. 

The military judge found the testimony to be relevant and 

admissible under M.R.E. 413. 

The military judge denied Berry’s motion to exclude LS’s 

testimony as follows: 

The accused is charged with an offense of 

sexual assault . . . . The proffered 

evidence is evidence that the accused 

committed another act of or offense of 

sexual assault, and the evidence is 

relevant, under Military Rule of Evidence 

401 and 402. The proffered evidence involves 

conduct that occurred over eight years ago. 

The proffered evidence is similar to 

the charged misconduct because it involves 

taking advantage of a vulnerable victim. 

[LS] was, approximately, 6[]years old at the 

time of the alleged sexual assault by the 

accused, who, despite his own youth, is 

considered by the court to have acted upon 
United States v. Berry, No. 04-0240/AR 

7

someone of tender years who was unable to 

consent at the time. 

[SGT T] was also, apparently, 

vulnerable in that he was apparently 

unconscious or sleep [sic], or experiencing 

periods of partial consciousness, based on 

the government’s proffered [sic] at the time 

of the alleged assault by the accused. 

Both offenses involve homosexual 

fellatio performed by the accused on 

another; and this proffered evidence 

involves only a single act, potentially, 

established by a single witness. As such, 

the defense motion to exclude the testimony 

of [LS] is denied. 

In both his opening and closing statements, trial counsel 

referred to Berry’s acts with LS and reminded the members that 

the encounter could be considered relevant “because [Berry] took 

advantage of a person in a vulnerable position just like he did 

here in the case that you’re deciding.” The military judge’s 

instruction to the members with regard to LS’s testimony stated 

that it could be considered “for the purpose of its tendency, if 

any, to show that the accused has a propensity to commit 

nonconsensual sexual acts against unusually vulnerable persons.” 

The Army court affirmed the ruling of the military judge 

that LS’s testimony was relevant under M.R.E. 401 and 402. 

Although the military judge did not articulate an M.R.E. 403 

balancing test on the record, the Army court found that the 

military judge had conducted a balancing test. That conclusion 

was based on the factual findings made by the military judge and 

the arguments raised by the trial counsel regarding the factors 
United States v. Berry, No. 04-0240/AR 

8

that must be considered in an M.R.E. 403 balancing test. 

Because it found that the military judge had conducted the 

required balancing test, the Army court reviewed his ruling for 

abuse of discretion and found that he had not abused his 

discretion in admitting the testimony of LS under M.R.E. 413. 

On appeal before this court, Berry argues that LS’s 

testimony does not meet the threshold test for admissibility 

because it is not logically relevant. Berry further argues that 

even if LS’s testimony is relevant, neither the military judge 

nor the Army court did a proper balancing test as required by 

M.R.E. 403 and by this court’s decision in Wright. He suggests 

that had they done so they would have concluded that the 

testimony should not be admitted. Berry concludes by arguing 

that he was prejudiced by the erroneous admission of this 

testimony. In response, the Government argues that the 

testimony is relevant and the military judge conducted the 

required balancing test under M.R.E. 403 and properly concluded 

that LS’s testimony should be admitted. 
United States v. Berry, No. 04-0240/AR 

9

DISCUSSION

 The granted issue1 asks whether the military judge erred in 

admitting evidence of uncharged sexual acts between Berry and LS 

that occurred eight years earlier when Berry was thirteen and LS 

was six. This court has noted that inherent in M.R.E. 413 is a 

general presumption in favor of admission. See Wright, 53 M.J. 

at 482-83. However, we have also noted that it is a 

“constitutional requirement that evidence offered under Rule 413 

be subjected to a thorough balancing test” under M.R.E. 403. 

United States v. Dewrell, 55 M.J. 131, 138 (C.A.A.F. 2001). 

Where that balancing test requires exclusion of the evidence, 

the presumption of admissibility is overcome. See Wright, 53 

M.J. at 482-83. 

M.R.E. 413 Threshold Requirements

This court has held that to admit evidence under M.R.E. 

413, three threshold determinations must be made: 

1. The accused is charged with an offense 

of sexual assault -– [M.R.E.] 413(a); 

2. “The evidence proffered is ‘evidence of 

the defendant’s commission of another 

offense of . . . sexual assault’”; and 

3. The evidence is relevant under [M.R.E.] 

401 and 402. United States v. Guardia, 

135 F.3d 1326, 1328 (10th Cir. 1998). 

 1

 WHETHER THE MILITARY JUDGE ERRED IN ADMITTING 

EVIDENCE OF UNCHARGED HOMOSEXUAL ACTS BETWEEN 

APPELLANT WHEN HE WAS THIRTEEN YEARS OLD, AND A SIXYEAR-OLD BOY, EIGHT YEARS BEFORE THE CHARGED OFFENSE 

OF FORCIBLE SODOMY WITH AN ADULT SOLDIER. 
United States v. Berry, No. 04-0240/AR 

10

Wright, 53 M.J. at 482. 

As the military judge noted, the first and second threshold 

requirements were met because Berry was charged with forcible 

sodomy without consent, which is an offense of sexual assault 

under the UCMJ, and Berry’s conduct with LS falls under that 

same definition. See M.R.E. 413(d)(1) (defining “sexual 

assault”). Moving to the third threshold requirement, we must 

determine whether the military judge abused his discretion in 

finding LS’s testimony relevant under M.R.E. 401. See United 

States v. Gilbride, 56 M.J. 428, 430 (C.A.A.F. 2002) (citing 

United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995)). A 

military judge abuses his discretion “if his application of the 

correct legal principles to the facts . . . is clearly 

unreasonable.” United States v. Williams, 37 M.J. 352, 356 

(C.M.A. 1993). 

 Relevant evidence under M.R.E. 401 is “evidence having any 

tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or 

less probable than it would be without the evidence.” The 

military judge found that “[t]he proffered evidence is similar 

to the charged misconduct because it involves taking advantage 

of a vulnerable victim.” From strictly a propensity viewpoint, 

the evidence does show that Berry had participated in similar 

conduct in the past. This evidence, therefore, does have some 
United States v. Berry, No. 04-0240/AR 

11

tendency to make it more probable that Berry committed a 

nonconsensual act against a vulnerable person and we conclude 

that the military judge did not abuse his discretion in finding 

the testimony to be relevant. See Wright, 53 M.J. at 480 

(noting legislative history shows that Federal Rule of Evidence 

(F.R.E.) 4132 creates an exception to M.R.E. 404(b)’s general 

prohibition against the use of a defendant’s propensity to 

commit crimes). 

M.R.E. 403 Balancing Test

Once the evidence meets these threshold requirements, a 

military judge must apply the balancing test of M.R.E. 403 under 

which the testimony may be excluded if its “probative value is 

substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the members.” M.R.E. 

403. In conducting the M.R.E. 403 balancing test a military 

judge should consider the following factors: the strength of 

the proof of the prior act; the probative weight of the 

evidence; the potential to present less prejudicial evidence; 

the possible distraction of the fact-finder; the time needed to 

prove the prior conduct; the temporal proximity of the prior 

 

2

 M.R.E. 413 was adopted from F.R.E. 413, and the analysis of 

M.R.E. 413 in the Manual for Courts-Martial, United States (2002 

ed.)(MCM), references the legislative history of F.R.E. 413 

regarding congressional intent for the rule. MCM, Analysis of 

the Military Rules of Evidence A22-37. 
United States v. Berry, No. 04-0240/AR 

12

event; the frequency of the acts; the presence of any 

intervening circumstances; and the relationship between the 

parties. Wright, 53 M.J. at 482. 

 The military judge made minimal findings relating to the 

Wright factors and did not articulate any balancing of those 

factors on the record. Where the military judge is required to 

do a balancing test under M.R.E. 403 and does not sufficiently 

articulate his balancing on the record, his evidentiary ruling 

will receive less deference from this court. See Dewrell, 55 

M.J. at 138 (citing United States v. Manns, 54 M.J. 164, 166 

(C.A.A.F. 2000)); United States v. Bailey, 55 M.J. 38, 41 

(C.A.A.F. 2000) (citing Manns, 54 M.J. at 166). 

 The Wright elements addressed by the military judge tend to 

support admission of the testimony: the proof of the prior 

similar act was strong because it involved the testimony of the 

only witness who had first-hand knowledge about the event; there 

was only one prior act which, as noted, could be established by 

a single witness and would not take an inordinate amount of 

time; and the act occurred eight years ago between acquaintances 

where the victim was in a vulnerable position. 
United States v. Berry, No. 04-0240/AR 

13

 The military judge failed to address the relevant remaining 

Wright factors:3

 the probative weight of the evidence, the 

frequency of the acts, the temporal proximity of the prior act 

and the presence of intervening circumstances, and the 

distraction of the fact-finder. 

 While the military judge noted that the prior incident 

occurred eight years earlier where the victim was in a 

vulnerable position, he failed to analyze further the 

circumstances of the two incidents with regard to the probative 

weight of the previous incident. The incident with LS occurred 

outside during the day between children, while the incident with 

SGT T occurred at night in private quarters between two adults 

after an evening of drinking. 

 

3

 We note that one of those factors not considered by the 

military judge is whether it would have been possible to admit, 

for the same purpose, evidence that was less prejudicial than 

LS’s testimony. The defense argued on appeal before the Court 

of Criminal Appeals and before this court that a statement by 

Berry admitting to the encounter with LS was available for that 

purpose and should have been considered by the military judge. 

However, the issue of whether less prejudicial evidence was 

available was not raised by the defense at trial and Berry’s 

statement was not admitted by the Court of Criminal Appeals. We 

make no decision as to whether this statement would have been 

admissible at the trial level, we simply note that the statement 

is not part of the record on appeal. We must evaluate the 

military judge’s ruling based on what was known to him at the 

time of trial. Accordingly, we have denied Berry’s “Motion to 

Attach Defense Appellate Exhibit A,” filed with this court on 

October 18, 2004, and will not consider the substance of Berry’s 

statement concerning the prior event. 
United States v. Berry, No. 04-0240/AR 

14

 The incident with LS occurred only once, eight years prior 

to Berry’s encounter with SGT T, when Berry was thirteen years 

old. The length of time between the events alone is generally 

not enough to make a determination as to the admissibility of 

the testimony. The circumstances surrounding the individual and 

the events that transpired in the intervening period must be 

taken into consideration. Where a defendant was an adult at the 

time he committed the prior sexual assault, this court has found 

incidents occurring more than eight years prior to the charged 

incident to be relevant under M.R.E. 413. See Dewrell, 55 M.J. 

at 137-38 (finding incidents occurring approximately seven to 

ten years earlier admissible); Bailey, 55 M.J. at 41 (finding 

incidents occurring three and one-half and ten years prior 

admissible). A similar finding is not readily made where a 

prior incident is between children or adolescents. 

 In United States v. McDonald, 59 M.J. 426 (C.A.A.F. 2004), 

we evaluated whether evidence of sexual acts that occurred 

twenty years prior to the charged act, when the defendant was 

thirteen, was erroneously admitted for the purpose of showing 

intent or a common plan under M.R.E. 404(b). We concluded that 

the evidence was not relevant under that rule, and in so doing 

we noted the absence of “evidence of that 13-year-old 

adolescent’s mental and emotional state, sufficient to permit 
United States v. Berry, No. 04-0240/AR 

15

meaningful comparison with Appellant’s state of mind as an adult 

20 years later.” Id. at 430. 

 During the eight years between the two incidents Berry grew 

from a child of thirteen to an adult of twenty-one. There was 

no evidence introduced to show that Berry engaged in similar 

acts between the time he was thirteen and the time of the 

incident with SGT T eight years later. Consistent with 

McDonald, we also note here that there is no evidence suggesting 

that Berry’s mens rea at twenty-one was the same as it was when 

he was a child of thirteen. As one scholar has stated: 

Between the ages of twelve and seventeen, 

adolescents undergo a critical period of 

transition during which they experience 

rapid transformations in emotional, 

intellectual, physical, and social 

capacities. Even older adolescents, whose 

raw intellectual capacities may rival those 

of adults, have less experience on which to 

draw in making and evaluating choices. In 

short, adolescents are not simply miniature 

adults. 

Kim Taylor-Thompson, States of Mind/States of Development, 14 

Stan. L. & Pol’y Rev. 143, 152-53 (2003) (footnotes omitted). 

When projecting on a child the mens rea of an adult or 

extrapolating an adult mens rea from the acts of a child, 

military judges must take care to meaningfully analyze the 

different phases of the accused’s development rather than treat 

those phases as being unaffected by time, experience, and 

maturity. Where a military judge finds that the prior “sexual 
United States v. Berry, No. 04-0240/AR 

16

assault” acts of a child or adolescent are probative to an act 

later committed as an adult, such a determination must be 

supported in the record by competent evidence. Consequently the 

passage of eight years in this case constitutes a notable 

intervening circumstance between the two events at issue when 

coupled with Berry’s growth from childhood to adulthood during 

that time. 

 We then turn to another of the Wright factors not addressed 

by the military judge -- the possible distraction of the factfinder that could result from admission of the testimony. In 

Bailey we noted that the danger considered by this factor is 

that admission of the evidence may “result in a distracting 

mini-trial on a collateral issue.” Bailey, 55 M.J. at 41. 

 The prosecution’s opening statement did not begin with a 

reference to the facts of the present case but rather with a 

reference to the earlier incident: “[I]n 1992, the accused was 

a 13-year old living in Hawaii on a military installation. He 

called a neighborhood child, a six-year old boy behind a tree, 

he pulled down the little boy’s pants and he convinced him to 

allow him to suc[k] on the child’s penis.” 

 In his closing statement the prosecutor reminded the 

members that Berry “convinced [a] little boy to try to suck on 

his penis[]” even though “the little boy said, no.” He noted 

that the encounter with LS could be considered relevant “because 
United States v. Berry, No. 04-0240/AR 

17

[Berry] took advantage of a person in a vulnerable position just 

like he did here in the case that you’re deciding.” 

Under these circumstances it is evident that a “distracting 

mini-trial” on the collateral issue of the LS incident resulted 

from the admission of LS’s testimony and the prosecution’s 

pointed references. The emphasis on “a neighborhood child,” “a 

little boy,” and “a six year-old boy” all characterized Berry in 

the eyes of the members as a child molester, one of the most 

unsympathetic characterizations that can be made. 

 Considering the already limited probative value of LS’s 

testimony, that value clearly was outweighed by the danger that 

the members were distracted from considering his testimony for 

its proper purpose. Applying the appropriate deference to the 

ruling of the military judge, we find that LS’s testimony fails 

the M.R.E. 403 balancing test and that the military judge’s 

decision to admit LS’s testimony was in error. 

Prejudice

“A finding or sentence of 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.” 

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000). For a 

nonconstitutional error such as this one, the Government has the 

burden of demonstrating that “the error did not have a 

substantial influence on the findings.” United States v. 
United States v. Berry, No. 04-0240/AR 

18

McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003); see also United 

States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001). 

In evaluating whether erroneous admission of Government 

evidence is harmless, this court uses a four-part test, 

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. See McDonald, 59 M.J. at 430 (citing United States v. 

Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)). 

 The central question with regard to this specification was 

whether SGT T had in fact consented to the sodomy or whether 

Berry had taken advantage of him when he was in a vulnerable 

drunken state. The Government evidence on this issue consisted 

of expert testimony speculating that SGT T had been drugged and 

SGT T’s vague testimony regarding the incident. The defense 

submitted no evidence, but set forth Berry’s version of events 

through cross-examination of the witnesses and his sworn 

statement in which he admitted to consensual sodomy. The result 

was a “he said/he said” case, where SGT T’s credibility and the 

effectiveness of the defense cross-examination were all that the 

members had to rely upon. 

 LS’s testimony added the first-hand account by a fifteenyear-old boy that he was sodomized at the age of six by Berry. 

Even though the testimony was admitted for the limited purpose 
United States v. Berry, No. 04-0240/AR 

19

of showing that Berry had a propensity to commit nonconsensual 

sexual acts against unusually vulnerable persons, due to the 

inflammatory nature of the testimony and the emphasis given the 

testimony by the Government, it was likely considered by the 

members as much more than propensity evidence. Berry became not 

just a soldier who stood accused of forcible sodomy, but rather 

a child molester who was charged with the offense of forcible 

sodomy. Based upon our review of the record, it appears that 

LS’s testimony improperly tipped the balance of the evidence and 

the Government has not met its burden of demonstrating that this 

improperly admitted evidence “did not have a substantial 

influence on the findings.” McCollum, 58 M.J. at 342. 

 Finding that Berry was prejudiced by the military judge’s 

error we turn to whether, if a rehearing on the affected 

findings is deemed impracticable, reassessment would be 

appropriate. We find that, considering the inflammatory nature 

of the evidence to which the members were erroneously exposed, 

it would not be possible to “reliably determine what sentence 

would have been imposed at the trial level if the error had not 

occurred.” United States v. Sales, 22 M.J. 305, 307 (C.M.A. 

1986). Reassessment, therefore, is not appropriate. 
United States v. Berry, No. 04-0240/AR 

20

DECISION

 The decision of the United States Army Court of Criminal 

Appeals is reversed. That part of the finding of the 

specification of Charge II stating “by force and without the 

consent of the said Sergeant [T]” and the sentence are set 

aside. The remainder of the specification of Charge II and the 

remaining findings of guilty are affirmed. The record of trial 

is returned to the Judge Advocate General of the Army. A 

rehearing on the affected finding and sentence is authorized. 

If a rehearing on the affected finding is deemed impracticable, 

a rehearing may be held on the sentence alone. 
United States v. Berry, No. 04-0240/AR 

CRAWFORD, Judge (concurring in the result). 

I agree that the military judge abused his discretion by 

conducting a flawed analysis under Military Rule of Evidence 

(M.R.E.) 403, and would reverse on that ground. However, I 

cannot join in the majority’s reasoning because the judge also 

abused his discretion by determining evidence of Appellant’s 

childhood act to be logically relevant under M.R.E. 401. 

To be legally relevant, evidence must first be logically 

relevant. If Appellant’s childhood sexual act is not legally 

relevant to show his propensity to commit similar acts as an 

adult because “there is no evidence suggesting that Berry’s mens 

rea at twenty-one was the same as it was when he was a child of 

thirteen,” __ M.J. (15), then it was not logically relevant to 

show his propensity to commit similar acts in the first place. 

Relevant evidence under M.R.E. 401 is “evidence having any 

tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or 

less probable than it would be without the evidence.” In this 

case, the military judge found that “[t]he proffered evidence is 

similar to the charged misconduct because it involves taking 

advantage of a vulnerable victim.” Without elaboration, the 

majority accepts that similarity of conduct as sufficient to 

establish logical relevance. Given the facts of this case, 
United States v. Berry, No. 04-0240/AR 

2

however, and considering the purpose for which the evidence was 

offered, logical relevance requires more. 

 The Government offered Appellant’s childhood act under 

M.R.E. 413, which permits introduction of so-called “propensity 

evidence,” i.e., “[t]he rule permits the prosecution to use 

evidence of the accused's uncharged past sexual assaults for the 

purpose of demonstrating his propensity to commit the charged 

offenses.” United States v. Parker, 59 M.J. 195, 198 (C.A.A.F. 

2003)(citation and internal quotation marks omitted). The 

military judge denied the defense’s motion to exclude LS’s 

testimony and instructed the members that they may consider LS’s 

testimony “for the purpose of its tendency, if any, to show that 

the accused has a propensity to commit nonconsensual sexual acts 

against vulnerable persons.” To be logically relevant to this 

purpose, the evidence must have some “tendency to make the 

existence of” appellant’s propensity “more probable . . . than 

it would be without the evidence.” M.R.E. 401. As we 

recognized in United States v. Wright, 53 M.J. 476 (C.A.A.F. 

2000), M.R.E. 413 opens with a reminder that, while generally 

admissible, evidence must first be “relevant”: 

In a court-martial in which the accused is charged 

with an offense of sexual assault, evidence of the 

accused’s commission of one or more offenses of sexual 

assault is admissible, and may be considered for its 

bearing on any matter to which it is relevant. 
United States v. Berry, No. 04-0240/AR 

3

M.R.E. 413(a)(emphasis added);1 Wright, 53 M.J. at 480. 

Conceding that the military judge did not cite propensity 

as the “fact” to which this evidence was relevant, the majority 

then concludes that “[f]rom strictly a propensity viewpoint, the 

evidence does show that Berry had participated in similar 

conduct in the past. This evidence, therefore, does have some 

tendency to make it more probable that Berry committed a 

nonconsensual act against a vulnerable person[.]” __ M.J. (10-

11). This statement is particularly troubling in light of the 

later conclusion that “there is no evidence suggesting that 

Berry’s mens rea at twenty-one was the same as it was when he 

was a child of thirteen.” __ M.J. (15). From these statements, 

one must conclude that the mere happenstance of a similar, 

earlier act demonstrates per se relevance to propensity, even 

 

1

 We noted in Wright that M.R.E. 413 and Fed. R. Evid. 413 “are 

virtually the same.” Wright, 53 M.J. at 480 n.4. Accordingly, 

analysis of Fed. R. Evid. 413 also illuminates M.R.E. 413. In 

a discussion of Fed. R. Evid. 413, two scholars commented: 

The evidence permitted is broadly defined as any act 

that would be either a state or federal crime related 

to either sexual assault or child molestation. The 

limitations appear to be only relevance and the 

requirement that the prosecution provide fifteen days 

notice of its intent to use evidence pursuant to 

these rules.” 1 Barbara E. Bergman and Nancy 

Hollander, Wharton’s Criminal Evidence (15th ed. 

1997)(footnotes omitted)(commenting on the nearly 

identical text of Fed. R. Evid. 413 and 414). 

§ 4.42 at 458-59. 
United States v. Berry, No. 04-0240/AR 

4

absent evidence or presumption of a similarity of mens rea,2 or, 

presumably, character. Such a conclusion strongly suggests that 

even differences in mental competence (and certainly differences 

in cognitive and emotional development) are inapplicable to a 

threshold analysis under M.R.E. 401 -- a departure from the 

application of that rule that I cannot embrace, for it leads to 

the conclusion that the mindless act of an infant is per se 

logically relevant to prove the state of mind or character of 

that infant as an adult and would be admissible unless excluded 

for some other reason. “[Evidence] may also be inadmissible as 

irrelevant because a link in the chain of facts is missing that 

is required to give probative value to the evidence.” 1 

Wharton’s Criminal Evidence § 4-5 at 298-99 (footnote omitted); 

see also M.R.E. 104(b); c.f. Johnson v. Elk Lake School 

District, 283 F.3d 138, 154-55 (3d Cir. 2002)(applying Fed. R. 

Evid. 104(b) to Fed. R. Evid. 413(d)). In applying M.R.E. 413, 

I believe the majority has confused evidence relevant to state 

of mind and character3

 with evidence relevant to happenstance, 

and in so doing, has departed from our recently announced 

analysis in United States v. McDonald, 59 M.J. 426 (C.A.A.F. 

 

2 Of course, mens rea and character are not congruent concepts, 

but in the context of this evidence and the purpose for which it 

was offered, the two are logically indistinguishable. 

3

 “Propensity evidence” is a form of character evidence. See 2 

Stephen A. Salzburg et al., Federal Rules of Evidence Manual § 

413.02[2] (8th ed. 2001). 
United States v. Berry, No. 04-0240/AR 

5

2004),4 rejecting evidence for its failure to satisfy M.R.E. 401. 

In McDonald, this Court stated: 

The military judge found, and the court below agreed, 

that the evidence was logically relevant both as to 

“common plan” and “intent.” We disagree. Applying 

the second prong of Reynolds, we hold that the 

evidence of Appellant's uncharged acts was not

logically relevant to show either a common plan or 

Appellant's intent. 

59 M.J. at 429-30 (internal citation omitted). 

Because M.R.E. 413, as employed in this case, demands 

logical relevance to a character trait –- propensity to commit 

sexual acts with vulnerable persons –– I would again conclude 

that evidence of sexual acts that occurred when the defendant 

was thirteen is not logically relevant to prove character or 

cognition of that child as an adult, absent “evidence of that 

13-year-old adolescent’s mental and emotional state, sufficient 

to permit meaningful comparison with Appellant’s character as an 

adult.” McDonald, 59 M.J. at 430. While Appellant’s case 

presents a gap of only eight years between the acts, as opposed 

to the twenty years in McDonald, those intervening years share 

the same evidentiary deficiency: failure to account for the 

effects of puberty and adolescence on either cognitive 

development or character. In McDonald, we required the 

 

4

 Although McDonald addressed M.R.E. 404(b), the concept of legal 

and logical relevance runs through the military evidentiary 

rules, including M.R.E. 401, 402, 403, 404(b), 413, and 14, 

along with the other § IV rules. 
United States v. Berry, No. 04-0240/AR 

6

appellant to establish the logical relevance of a thirteen-yearold’s “mental and emotional state” to the state of mind of that 

child as an adult. In this case, we examine the logical 

relevance of a thirteen-year-old’s acts to the “propensity” of 

that child as an adult to engage in similar acts. I recognize 

that there is no meaningful distinction between the relevance we 

required in McDonald and the relevance we should require here. 

Happenstance vs. character and state of mind. In our 

practice, as in the federal district courts, the undertaking of 

an act is frequently relevant in and of itself, without regard 

to the state of mind of the actor in performing the act. See, 

e.g., M.R.E. 304 (confessions and admissions), M.R.E. 321 

(eyewitness identification), and M.R.E. 406 (habit and routine). 

In the course of a trial, innumerable other contexts arise in 

which proof of an act is relevant merely to show that the act 

occurred (e.g., facts establishing nonvolitional elements of 

offenses). In other contexts, relevance requires that 

happenstance be paired with a specific purpose (e.g., M.R.E. 

608(b)(evidence of prior conduct must be probative of 

truthfulness or untruthfulness); M.R.E. 801(d)(1)(B)(prior 

consistent statement must precede motive to fabricate). 

Character or state of mind evidence. When intent, plan, 

purpose, or character are involved -- when the fact made more or 

less probable is a quality of cognition -- mere happenstance may 
United States v. Berry, No. 04-0240/AR 

7

not be sufficient to establish logical relevance. McDonald, 59 

M.J. at 430; United States v. Humpherys, 57 M.J. 83, 89-90 

(C.A.A.F. 2002); United States v. Tanksley, 54 M.J. 169, 175 

(C.A.A.F. 2000); United States v. Matthews, 53 M.J. 465, 473 

(C.A.A.F. 2000). M.R.E. 413 and 414 freed prosecutors from the 

restraints of M.R.E. 404(b) and for the first time permitted 

evidence of an accused’s past acts to demonstrate the propensity 

of the accused to commit other such acts. Although “propensity” 

has been defined in slightly differing terms by various sources, 

the common theme is the focus on “nature” as the source of the 

inclination,5

 reinforcing the classification of such evidence as 

“character evidence.” In short, the evidence is offered to show 

that the character or nature of the accused is such that he or 

she is predisposed to commit the charged offense, based on 

similar conduct undertaken by the accused in the past. As I see 

it, in the context of any comparative “state of mind” or 

character evidence, there is a roughly graduated scale -- with 

mere unity of identity at one end and absolute identity of 

cognitive state at the other -- along which such evidence will 

generally fall. While I agree that mere unity of identity may 

 

5

 Webster’s Third New International Dictionary of the English 

Language (1961)(“a natural inclination”). See, e.g., Merriam 

Webster’s Collegiate Dictionary (11th ed. 2003)(defining 

propensity as “an often intense natural inclination or 

preference); Webster’s New Word College Dictionary (4th ed. 

1999)(propensity is a natural inclination or tendency”). 
United States v. Berry, No. 04-0240/AR 

8

be sufficient to establish relevance when reasonable identity of 

cognitive state can be assumed (as in the acts of most adults), 

I do not believe we should apply that assumption to bridge the 

frequently vast chasm of puberty and adolescence. With this in 

mind, I believe our logic in McDonald must control our 

examination of this even more powerful evidence. 

 As the majority notes, children are not miniature adults. 

Evidence that an accused possessed some cognitive characteristic 

at age twenty-one might logically be presumed relevant to 

whether the accused had that same characteristic at age twentynine; however, consistent with our logic in McDonald, I cannot 

agree that evidence of a cognitive characteristic at age 

thirteen can be assumed to be logically relevant to whether the 

accused had that same cognitive characteristic at age twentyone. 

For most teens, [risky or antisocial] behaviors are 

fleeting; they cease with maturity as individual 

identity becomes settled. Only a relatively small 

proportion of adolescents who experiment in risky or 

illegal activities develop entrenched patterns of 

problem behavior that persist into adulthood. 

 

Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of 

Adolescence: Developmental Immaturity, Diminished 

Responsibility, and the Juvenile Death Penalty, 58 American 

Psychologist 1009, 1014 (2003). Professors Steinberg and Scott 

also note that: 
United States v. Berry, No. 04-0240/AR 

9

studies of criminal careers indicate that the vast 

majority of adolescents who engage in criminal or 

delinquent behavior desist from crime as they mature 

into adulthood (Farrington, 1986). Thus the criminal 

choices of typical young offenders differ from those 

of adults not only because the choice, qua choice, is 

deficient as the product of immature judgment, but 

also because the adolescent’s criminal act does not 

express the actor’s bad character. 

Id. at 1015. 

 In addition to the concerns we expressed in McDonald, we 

have also recognized that, even absent the complicating factors 

of puberty and adolescence, “[e]ven an individual with certain 

characteristics may have internal self-monitoring which may or 

may not cause them to act similarly in various situations.” 

United States v. Dimberio, 56 M.J. 20, 27 (C.A.A.F. 2001). 

 While I agree that M.R.E. 413 has significantly reduced 

the analytical importance of temporal proximity between the 

charged acts and prior, similar acts introduced under that rule, 

I cannot agree that the rule creates a bypass around M.R.E. 401 

and 402 or creates a “happenstance equals relevance” equation. 

Discussing Fed. R. Evid. 413, which uses language similar to 

that of M.R.E. 413, the Eighth Circuit noted that: “We have 

previously stated that this rule supersedes Rule 404's 

prohibition against character evidence, allowing testimony of 

prior bad acts in sexual assault cases, provided that it is 

relevant.” United States v. Bird, 372 F.3d 989, 992 (8th Cir. 

2004). In sexual assault and child molestation cases, evidence 
United States v. Berry, No. 04-0240/AR 

10

that the defendant committed a prior similar offense “may be 

considered for its bearing on any matter to which it is 

relevant,” including the defendant’s propensity to commit such 

offenses. Fed. R. Evid. 413(a), 414(a). “If relevant, such 

evidence is admissible unless its probative value is 

‘substantially outweighed’ by one or more of the factors 

enumerated in Rule 403, including ‘the danger of unfair 

prejudice.’” United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 

2001)(quoting United States v. LeCompte, 131 F.3d, 769 (8th Cir. 

1997). 

This is not to say here, nor did we so hold in McDonald, 

that the acts of a child cannot be relevant to determination of 

the state of mind of that child as an adult. 59 M.J. at 430. 

Rather, in this arena of great potential probity and great 

potential prejudice, we must follow the rule and require that 

threshold relevance to the specified “fact” be demonstrated with 

the same level of scrutiny we would apply to any other evidence 

offered for any other purpose. Expressed another way, we should 

not be so confident in the crucible of M.R.E. 403 that we 

assume, for purposes of M.R.E. 413, that happenstance equals 

relevance. This is particularly so, given that in Wright we 

emphasized the importance of M.R.E. 401 and 402, and in McDonald

we denounced the assumption that happenstance equals relevance 

with regard to similar evidence offered under M.R.E. 404(b). 
United States v. Berry, No. 04-0240/AR 

11

Because I am not convinced that the military judge made that 

critical comparison in this case, I cannot express confidence in 

the lower court’s conclusion that there was no abuse of 

discretion in this quarter.