#### UNITED STATES, Appellee, v. Ryan D. HEBERT, Staff Sergeant U.S. Army, Appellant.

No. 66,527.

CM 8902634.

U.S. Court of Military Appeals.

Argued Jan. 8, 1992.

Decided Sept. 24, 1992.

For appellant: *Captain Edward T. Keable*(argued); *Colonel Robert B. Kirby, Major Michael J. Kelleher, Captain Emmett G. Wells*(on brief); *Lieutenant Colonel Russell S. Estey.*

For Appellee: *Major Kenneth T. Grant*(argued); *Colonel Dayton M. Cramer, Major Thomas E. Booth, Captain Karen R. O’Brien*(on brief); *Captain Timothy J. Saviano.*

*Opinion of the Court*

SULLIVAN, Chief Judge:

During August 1989, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Devens, Massachusetts. Contrary to his pleas, he was found guilty of two specifications of committing sodomy with his adolescent stepson, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. He was sentenced to a dishonorable discharge, confinement for 5 years, forfeiture of $400 pay per month for 60 months, and reduction to Private E-l. On February 14, 1990, the convening authority approved this sentence. On March 8,1991, the Court of Military Review affirmed the findings of guilty and the sentence. 32 MJ 707.

On July 16, 1991, this Court granted review on the following question of law:

> WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT BY ADMITTING TESTIMONY THAT APPELLANT HAD COM*267MITTED UNCHARGED ACTS OF FONDLING AND SODOMY UPON HIS NEPHEWS TWO-TO-THREE YEARS PRIOR TO THE CHARGED OFFENSES.

We hold that the military judge did not prejudicially err when he admitted the challenged uncharged-misconduct evidence in this case. *See generally United States v. Ross,*84 MJ 183 (CMA 1992).

Appellant was charged and found guilty of sodomizing his stepson sometime during May of 1987 and on divers occasions between April 1988 and June 19, 1988. The boy, 14 years old at the time of trial, testified that appellant came to his room and performed oral sodomy on him. He stated that this act occurred at Saco, Maine, one month before his mother married appellant in June of 1987. He also testified that he told his mother about it in vague terms but appellant subsequently denied it. He finally testified that this act was done about 70 more times before June of 1988 when his mother finally caught him and appellant in bed together naked. Two of appellant’s sisters testified that appellant admitted that his wife caught him with the victim just before they split up. One also testified that he admitted being “in love with” the victim in this case. Appellant’s wife also testified that she found appellant nude in bed with her son and that “he was touching” the boy. Appellant denied all the sexual offenses and the testimony concerning his purported admissions thereto.

The uncharged-misconduct evidence in this case was presented through the testimony of his two nephews, Bradley and Daryl. Daryl testified that appellant in 1985 took him and Bradley to the drive-in and fondled Bradley’s penis. He also testified that appellant “tried to” place his hands in his (Daryl’s) pants. Bradley testified to the same events and that appellant later committed oral sodomy on him after Daryl was dropped off. Both boys were around 14 years old at the time of these events.

The military judge admitted the uncharged-misconduct evidence in this case for the following purpose:

> MJ: Defense motion in limine to prevent the testimony of Daryl and Bradley is denied. *Although specifically mentioning earlier that there was not an intent involved in the offense in order to find the accused guilty the court’s going to have to find that the accused had the intent to receive sexual gratification from an involvement with young boys.*A prior incident involving young boys is highly probative on that intent and I will allow it. I know it can be termed that the accused has a “character trait of sexual attraction for young boys,” but the court is convinced under [Mil.R.Evid.] 403 that the probative value in this case of a similar act far outweighs any prejudicial impact.

> DC: With all respect, Your Honor, I would request the court point out what the similarity of the acts is.

> MJ: Oral sodomy.

> DC: So the court is resting on the similarity of the act that there was oral sodomy. The court finds no significance of the fact that there was [a] different number of parties or that there was a different relationship or a different kind of place, none of those things are important?

> MJ: I’m convinced that if the incident occurred its probative value outweighs prejudicial impact under 403.

> DC: Yes, Your Honor.

(Emphasis added.)

The military judge later instructed the members of the limited use which they could make of this testimony, as follows:

> Evidence has been admitted that the accused may have committed sodomy with Bradley. This evidence was admitted and may be considered by you for its limited purpose of its tendency, if any, to show the accused’s state of mind and his desire to satisfy his sexual desires with young boys.

*268Appellant was charged and found guilty of sodomy in violation of Article 125(a), which states:

> (a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.

Paragraph 51, Part IV, Manual for Courts-Martial, United States, 1984, explains the elements of this offense as follows:

> b. *Elements.*

> (1) That the accused engaged in unnatural carnal copulation with a certain other person or with an animal.

[Note: Add either or both of the following elements, if applicable]

> (2) That the act was done with a child under the age of 16.

> (3) That the act was done by force and without the consent of the other person.

> c. *Explanation.*It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.

The crime of sodomy is considered a general-intent crime requiring only that appellant’s conduct be deliberate or purposeful. *See United States v. Morgan,*8 USCMA 341, 343-44, 24 CMR 151, 153-54 (1957).

The prosecution was not required to prove that appellant committed the charged acts of sodomy with an intent to gratify his sexual desires. *Cf. United States v. Orsburn,*31 MJ 182 (CMA 1990), *cert. denied,*— U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991). However, its chief witness, the alleged victim in this case, testified that his stepfather sodomized him between 85 to *100*times over a 2-year period from June 1987 to June 1988. The prosecution thus argued that evidence of appellant’s sexual desires for his nephews in 1985 or 1986 established a persistent state of mind or sexual desire for the male adolescents in his family which was consistent with his stepson’s testimony of repeated offenses.

Evidence of a specific state of mind on the part of an accused on occasions prior to charged acts may be admissible to show circumstantially that the charged acts later occurred as an expression of or outlet for this mental state. *See United States v. Watkins,*21 MJ 224, 227 (CMA) (Cox, J.), *cert. denied,*476 U.S. 1108, 106 S.Ct. 1956, 90 L.Ed.2d 364 (1986). Here, appellant’s nephews testified to his sexual acts or attempted sexual acts with both of them which indicated his peculiar incestual interest for young boy family members. *See United States v. Munoz,*32 MJ 359, 363-64 (CMA), *cert. denied,*— U.S. -, 112 S.Ct. 437, 116 L.Ed.2d 456 (1991). The existence of such a state of mind on the part of appellant was also shown to have occurred within reasonable proximity to the charged acts. Such facts were not only consistent with his stepson’s testimony but could constitute a necessary predicate for believing his assertions concerning appellant’s voracious sexual desires and his unrelenting sexual assaults upon him. *See generally United States v. Ferguson,*28 MJ 104, 108 (CMA 1989). Accordingly, in these particular circumstances, we are somewhat reluctant to conclude that an abuse of discretion occurred in admitting this uncharged-misconduct evidence. *See United States v. Bender,*33 MJ 111 (CMA 1991).

Nevertheless, this Court can decide this case on an alternate ground, namely, that admission of the challenged uncharged-misconduct evidence in this case, if error, was harmless. *See*Art. 59(a), UCMJ, 10 USC § 859(a); Mil.R.Evid. 103(a), Manual, *supra.*The Court of Military Review held that, assuming error, the overwhelming evidence of guilt precluded a finding of unfair prejudice. We note that *269his stepson’s testimony, coupled with his wife’s statement that she found appellant nude in bed with her son touching him, was substantial evidence of guilt. His sisters’ statements that he admitted being caught by his wife with the stepson and loved the stepson were simply devastating. In addition, the contradiction of his broad denial of sexual molestation of children by another sister severely undermined his credibility and character defenses. Finally, the military judge’s instruction on the limited use to be made of the uncharged-misconduct evidence significantly reduced the possibility that appellant was convicted simply because he was a bad person. In these circumstances a reversal of the decision below which sustained these findings of guilty cannot be justified.*

The decision of the United States Army Court of Military Review is affirmed.

Judges COX and CRAWFORD concur.

*

 This case might also be affirmed on the basis of the recent decision of the Supreme Court in *Estelle v. McGuire,*U.S., — U.S.-, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). *See United States v. Orsbum,*31 MJ 182, 187 (CMA 1990), *cert. denied,*— U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991). Committing indecent acts is a Iesser-included offense of sodomy, and the prosecution asked and was entitled to try to prave this offense with its requisite element that appellant did this act with an intent to satisfy sexual desires. *See*paras. 51(d), 63, and 87, Part IV, Manual for Courts-Martial, United States, 1984. The fact that the judge did not ultimately instruct on this offense does not change our conclusion in this regard in the absence of defense objection.

GIERKE, Judge

(concurring in the result):

I am satisfied that admission of the challenged uncharged misconduct, if erroneous, was harmless in this case. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). Accordingly, I concur in the result. However, I disassociate myself from any dicta finding no abuse of discretion in admitting the uncharged misconduct.

The uncharged misconduct at issue in this case was offered to establish that appellant had “a persistent state of mind or sexual desire for the male adolescents in his family.” 35 MJ at 268. We have said that “[t]he threshold question” to determine “admissibility of uncharged misconduct ‘is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime and thereby to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses.’ ” *United States v. Rodriguez,*31 MJ 150, 155 (CMA 1990) (quoting *United States v. Castillo,*29 MJ 145, 150 (CMA 1989)). I wish to reserve judgment on whether use of uncharged misconduct to show “a persistent state of mind” in a child-sexual-abuse case is somehow distinguishable from the generally prohibited use of such evidence to show a “predisposition” to commit a similar offense.

WISS, Judge

(concurring in part and in the result):

I agree with the majority that, assuming any error as appellant complains, it was harmless under all the circumstances of this case. *See*Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). Accordingly, I join in the disposition ordered by the majority and in that portion of the majority’s opinion that develops the conclusion that appellant was not prejudiced.

I expressly do not join, however, in that portion of the majority opinion which suggests the absence of an abuse of discretion “in admitting this uncharged-misconduct evidence.” 35 MJ at 268. I have two serious reservations about that part of the opinion.

First, Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984, expressly precludes admission of “[ejvidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show that the person acted in conformity therewith.” The reasoning in the majority opinion leading to its finding of no error seems to violate this principle—witness such language as, “appellant’s sexual de*270sires for his nephews in 1985 or 1986 established a persistent state of mind or sexual desire for the male adolescents in his family which was consistent with the stepson’s testimony of repeated offenses.” 35 MJ at 268.

This sentence is logical *if*it was a given that the charged acts occurred and the key dispute was *identity*of the perpetrator. But in the context where the only real contest for the factfinders was whether the acts occurred at all, this evidence does only one thing: It argues that the accused acted in a certain way before, so it can be presumed that he acted in conformity again. Even the military judge, in the quoted portion of his ruling in the majority opinion, 35 MJ at 267, acknowledges such a view of the evidence. Mil.R.Evid. 404(b) disallows such propensity evidence. *See generally Estelle v. McGuire,*— U.S. -,-- -, 112 S.Ct. 475, 483-84,116 L.Ed.2d 385 (1991).

Second, if it be argued that, regardless of the defense theory of the case, the prosecution was required to prove all the elements of the charged and lesser-included offenses and that this evidence permissibly helped do so, *see Estelle v. McGuire, supra*— U.S. at ——, 112 S.Ct. at 483, certainly the response is that, notwithstanding, the theory of the case surely enters into the formula under Mil.R.Evid. 403. *See United States v. Warren,*6 USCMA 419, 423, 20 CMR 135, 139 (1955). Evidence which is probative only of an element that both sides agree is not disputed and which, at the same time, is highly inflammatory and, thus, unfairly prejudicial, should be excluded. That is what MiLR.Evid. 403 is all about.