UNITED STATES, Appellee 

v. 

Ronald H. BARNETT Jr., Sergeant 

U.S. Marine Corps, Appellant 

No. 05-0322 

Crim. App. No. 9901313 

United States Court of Appeals for the Armed Forces 

Argued April 18, 2006 

Decided August 9, 2006 

BAKER, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Captain Rolando R. Sanchez, USMC (argued). 

For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR 

(argued); Commander Charles N. Purnell, JAGC, USN (on brief); 

Lieutenant Kathleen Helmann, JAGC, USNR. 

Military Judge: R. L. Rogers 

THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION. 
United States v. Barnett Jr., No. 05-0322/MC 

2 

Judge BAKER delivered the opinion of the Court. 

Appellant was tried by general court-martial before officer 

and enlisted members. Contrary to his pleas, he was convicted 

of two specifications of violating a lawful general order, three 

specifications of maltreatment, one specification of making a 

false official statement, four specifications of indecent 

assault and one specification of indecent acts1 in violation of 

Articles 92, 93, 107 and 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 892, 893, 907, 934 (2000). Appellant was 

acquitted of two specifications of violating a lawful general 

order, one specification of maltreatment, one specification of 

making a false statement and one specification of indecent 

assault in violation of Articles 92, 93 and 134, UCMJ. The 

adjudged and approved sentence included a bad-conduct discharge, 

confinement for two years, forfeiture of all pay and allowances, 

and reduction to grade E-1. 

The United States Navy-Marine Corps Court of Criminal 

Appeals set aside the guilty findings under Charge I (two 

specifications of violating a general order) and the guilty 

findings under Charge II (three specifications of maltreatment 

of subordinates) as an unreasonable multiplication of charges. 

 

1 Appellant was originally charged with indecent assault under 

this specification. Appellant was acquitted of this offense, 

but found guilty of the lesser included offense of indecent 

acts. 
United States v. Barnett Jr., No. 05-0322/MC 

3 

United States v. Barnett, No. NMCCA 9901313, 2004 CCA LEXIS 285, 

at *15, 2004 WL 3015292, at *5 (N-M. Ct. Crim. App. Dec. 30, 

2004) (unpublished). Aside from this error, the lower court 

found no further errors and affirmed, finding the approved 

sentence appropriate under United States v. Sales, 22 M.J. 305, 

307-08 (C.M.A. 1986). 2004 CCA Lexis 285, at *27, 2004 WL 

3015292 at *10. We granted review of the following issue: 

WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE 

MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY ADMITTING 

EVIDENCE OF UNCHARGED MISCONDUCT IN VIOLATION OF MILITARY 

RULE OF EVIDENCE 404(b) OVER DEFENSE OBJECTION. 

We hold that the military judge abused his discretion when 

he admitted the evidence of uncharged misconduct over defense 

objection. However, we further hold that Appellant suffered no 

material prejudice to his substantial rights as a result of this 

error. Therefore, we affirm. 

BACKGROUND 

Appellant, a twenty-nine-year-old sergeant in the Marine 

Corps at the time of his court-martial, was a member of 

Headquarters and Service Battalion, Marine Corps Base, Quantico, 

Virginia. At the time of the alleged offenses, Appellant was 

serving as an instructor at Aberdeen Proving Ground (APG), 

Maryland. The charges in Appellant’s case stemmed from alleged 

incidents of unwanted physical and verbal advances by Appellant 

toward four female Army trainees at APG, Private (PVT) SD, PVT 
United States v. Barnett Jr., No. 05-0322/MC 

4 

SK, Private First Class (PFC) LT, and PFC BL, in the fall of 

1997. 

Prior to trial, defense counsel moved to suppress 

Appellant’s statements on November 21, 1997, to special agents 

from the Naval Criminal Investigative Service (NCIS). 

Specifically, the defense sought to suppress a written statement 

made by Appellant detailing his physical encounters with PVT SK, 

PVT SD, and PFC LT. According to Appellant’s written statement, 

he and the three trainees kissed, but it was voluntary and 

willing on their part. The military judge denied Appellant’s 

motion to suppress. At trial, Appellant proceeded on a theory 

that the physical interactions between Appellant and the four 

trainees were in fact consensual, in accordance with his written 

statement to NCIS. 

During pretrial motions, the Government sought to introduce 

the testimony of RB, a former Marine Lance Corporal, who was 

stationed with Appellant at Twentynine Palms, California, in the 

spring of 1994. In addition to her testimony, the Government 

also sought to introduce a Discrimination/Sexual Harassment 

Incident Report as part of Appellant’s service record book. The 

two-page report detailed the investigation of RB’s allegations 

and the actions taken against Appellant as a result. The 

Government offered both pieces of evidence under Military Rule 

of Evidence (M.R.E.) 404(b). 
United States v. Barnett Jr., No. 05-0322/MC 

5 

During a session pursuant to Article 39(a), UCMJ, 10 U.S.C. 

§ 839(a) (2000), prior to trial, the trial counsel and the 

military judge had the following exchange on the admissibility 

of RB’s testimony: 

MJ: What is -- how is it that this [sic] 

relevant? What does [RB] have to say about what 

happened in 1994, how is [sic] relevant to the 

offenses in this case? 

TC: Okay, sir. First, on the accused’s intent, 

we’ve got offenses that have to do with the 

intent of the accused and these will [sic] talk 

about, we believe, this evidence will allow the 

members to see the accused’s intent, what the 

case law that I’ve cited talks about as a 

predatory intent on the part of the accused. We 

have not -- well, we’ve got a few theories, sir. 

This is not by any chance the mantra that is 

exactly in the -- common plan, scheme, intent, 

motive. This is -- we’ve got three purposes, 

we’re offering it, and first is the intent, 

second is to defeat the accused’s claim that the 

acts were consensual, and third to show the 

accused’s plan, if you will, to sexually harass, 

dominate and touch subordinate females that he’s 

able to separate from the pack, if you will. 

And, admittedly the third and the first may merge 

at some point, but the evidence itself will give 

the members a picture of the accused’s intent. 

And intent is relevant in this case. 

MJ: Okay. You focus on the intent. You believe 

that this evidence would be relevant on the issue 

of intent as it relates to the indecent assault 

specification? 

TC: That’s correct, sir. We believe that and we 

believe also when you talk about the plan of the 

accused that that encompasses the sexual 

harassment and maltreatment aspects that were 

charged with it. And that’s why I say at some 

point they may merge, but certainly we do believe 

it impacts on his intent to gratify his sexual 
United States v. Barnett Jr., No. 05-0322/MC 

6 

desire. The acts that [RB] will testify, the 

statements that he made, the repeated nature of 

the statements, the complete ignorance of [his] 

comments, please stop, leave me alone, just the 

complete roll over and you’ll see how that and 

what has happened in the instance with these four 

victims, how that segues and we’ll be able to 

show the members the intent of the accused here. 

It gives them a picture of it and we believe it 

is necessary for the government’s case, it’s 

relevant, material, and it’s permissible. 

In response, defense counsel objected to the introduction of 

RB’s testimony on multiple grounds: 

DC: I would ask how the government is going to 

link up [RB]’s testimony with Sergeant Barnett’s 

intent? He’s made -- Major Bowe has made some 

general propositions but there’s a total lack of 

specificity here as to how whatever she says is 

going to prove either intent, plan, or defeat the 

claim of consent to Sergeant Barnett. I would 

state that these things are so temporally removed 

that there is no logical nexus in either times, 

place, or space between what happened in 1994 and 

what happened in 1997. . . . I believe what 

you’re going to hear is no allegations of an 

indecent assault by [RB] at all. Basically they 

are the nature of repeated comments. She’s going 

to say that she told him to stop a bunch of times 

and he didn’t, whereas the allegations from 

Aberdeen once told to stop, Sergeant Barnett 

apparently did stop. In Aberdeen the allegations 

involved being [sic] one on one contact, being 

alone and trying to ensure that they’re alone and 

in a closed space. Whereas, [RB] is going to say 

whenever one instance of touching occurred, 

occurred [sic] with a couple of other Marines in 

the room. There was no actual one on one contact 

with him, just a series of phone calls and 

comments . . . . 

That being said . . . this is definitely 

going to fail the 403 legal relevancy test, 

definitely a substantial risk of unfair prejudice 
United States v. Barnett Jr., No. 05-0322/MC 

7 

to the accused, confusion of the issues, and a 

great propensity to mislead the members, sir. 

During another session pursuant to Article 39(a), UCMJ, the 

military judge ruled on the Government’s motion to admit RB’s 

testimony and the incident report: 

MJ: Gentlemen, the defense of mistake of fact 

has an essential part, whether it’s mistake of 

fact as to a specific intent offense or a general 

intent offense, that the accused’s mistake of 

fact as to consent, that’s the mistake of fact at 

issue in this case, was honestly held, that he 

truly believed it that is, that in this case PFC 

[LT], [PVT SD], [PVT SK] and PFC [BL] consented 

to his touchings and comments . . . . The 

testimony of [RB] is relevant in that it shows 

that on a prior occasion that the accused was 

informed in what appear to be very clear terms 

that his conduct wasn’t welcomed, and, hence, not 

consented to under similar circumstances. Hence, 

it’s relevant in this proceeding. . . . I noted 

that they are relevant given the defense posture 

and the evidence which has been introduced in 

support of that posture. I will give a 

cautionary instruction to the members on the use 

of the evidence and, hence, I’m convinced that 

with that instruction being provided to the 

members both now and during -- or prior to their 

deliberations that the probative value of this 

evidence is not substantially outweighed by its 

prejudicial impact. 

. . . . 

The page 11 entry and the incident report 

which was provided to me for consideration on 

this matter in the Article 39(a) session 

previously, and which I have considered herein, 

are not admitted and will not be admitted 

pursuant to this. I find that their prejudicial 

impact to admit at this time the page 11 entry 

would be cumulative and that at this time that 

its introduction would be substantially more 

prejudicial than probative. 
United States v. Barnett Jr., No. 05-0322/MC 

8 

Before RB was brought before the members to testify, the 

military judge gave the following limiting instruction at the 

defense counsel’s request: 

MJ: Evidence that the accused may have made 

sexually provocative comments to [RB] and may 

have touched her in a purportedly provocative 

manner may be considered by you for the limited 

purpose of its tendency, if any, to rebut the 

contention of the defense evidence that the 

accused’s participation in the offenses of 

indecent assault under Charge IV with [PVT SD], 

[PFC LT], and [PVT SK], and the offenses of 

maltreatment in the specifications under Charge 

II with [PVT SD] and [PFC LT], [PVT SK], and [PFC 

BL] as the result of mistake on the accused’s 

part as to consent on the part of the persons who 

were in Charge II and IV, which are before you, 

the object of the accused’s alleged sexual 

touchings and/or comments. You may not consider 

this evidence for any other purpose and you may 

not conclude from this evidence that the accused 

is a bad person or has criminal tendencies and 

that he therefore committed the offenses which 

are charged and which are before the court. 

The military judge repeated this instruction at the close of 

RB’s testimony. 

 During the prosecution’s case, all four of the complaining 

witnesses testified against Appellant. Although each of the 

trainee’s testimony differed, three of the four trainees 

described a physical encounter with Appellant that included 

kissing and fondling. The fourth trainee testified that 

Appellant mentioned wanting to kiss her during class one morning 
United States v. Barnett Jr., No. 05-0322/MC 

9 

and also attempted to tickle her on another occasion. None of 

the trainees testified that she told Appellant to stop. 

RB testified that, while serving as the maintenance company 

clerk at Twentynine Palms in 1994, she and Appellant “had to 

communicate on a daily basis” for administrative reasons. RB 

stated that she began receiving phone calls from Appellant that 

“started out on a business matter” but would then change. When 

asked to elaborate on this change, RB offered the following: 

“The tone of his voice would change. He started making comments 

[that] I had a sexy voice, things of that nature. He would 

whisper comments to me over the phone.” When asked what 

specific comments Appellant made, RB stated that “[t]here [were] 

several comments ranging from, you have a sexy voice, you should 

have married a man like me, not your husband. He made a comment 

that he wanted to know what it was like to have sex with a white 

pregnant woman. I was pregnant at the time.” RB testified that 

in addition to Appellant’s frequent phone calls, he also made 

similar comments to her in-person, although “[v]ery few times.” 

The only physical contact RB testified to was Appellant rubbing 

his arm on her arm while they were both seated in Appellant’s 

office at his computer. 

On the issue of consent, trial counsel and RB had the 

following exchange: 
United States v. Barnett Jr., No. 05-0322/MC 

10 

Q: Now, when Sergeant Barnett made these 

comments to you over the phone, what would you 

say to him? 

A: On several occasions I asked him to stop. 

Q: Okay. 

A: Stop calling and hang up the phone. 

Q: When you would tell him to stop, stop -- give 

us an idea of what you would say to him? Would 

you simply say stop or did you make a comment, 

what would it be? 

A: I started out just by saying, you know, you 

don’t need to be saying these things. Then it 

started being like you need to stop making these 

comments. 

Q: And when you would make your comment like 

that, you need to stop or stop making these 

comments, would Sergeant Barnett respond at all? 

A: No, sir, he did not. 

Q: And on occasion would more sexual comments 

follow? 

A: Yes. 

Q: And then you said you had to hang up the 

phone? 

A: Yes. 

During closing arguments, trial counsel summarized the import of 

RB’s testimony: 

Is the accused aware of what he is doing? Is he 

aware of what he is doing, or is this a mistake? 

Is he aware of what he is doing? Ask yourself 

that. And when you’re thinking about that, and 

you’re thinking about the four victims in this 

case, think about [RB]. Think about what 

happened to her three years before these events. 
United States v. Barnett Jr., No. 05-0322/MC 

11 

She told you how she was sexually harassed by the 

accused. Not anything like these privates, not 

anything like these privates. Touched, the 

comments, “You shouldn’t have married him, you 

should have married a guy like me.” 

She says no. Why is this important? Why is 

that important, “She says no”? Because it 

doesn’t matter. She tells you she says no. She 

has to hang up on him. She has to hang up on him 

a number of times. Sometimes he comes and visits 

her and he says it, and she can’t hang up. You 

get a picture of what these privates were going 

to go through. 

Trial defense counsel, by contrast, reiterated Appellant’s 

mistake of fact defense: 

The military judge is going to instruct you, 

mistake of fact is a defense to indecent assault, 

sexual harassment, mistreatment. What was going 

on through Sergeant Barnett’s mind? It doesn’t 

even have to be reasonable for indecent assault. 

No matter how unreasonable, as long as he 

perceived there was consent -- and you see that 

in his statement -- and you saw that from the 

testimony of these girls, that they said no and 

he kept going and they didn’t do anything, they 

said nothing, he kept going. You know, a 

reasonable person would consider that to be 

consent. 

Following closing arguments, the military judge instructed 

the members on the mistake of fact defense and repeated his 

earlier limiting instruction with regard to RB’s testimony. 

On review, the lower court applied the three-part test set 

forth in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 

1989), to determine whether RB’s testimony should have been 

admitted under M.R.E. 404(b). Barnett, 2004 CCA LEXIS 285, at 
United States v. Barnett Jr., No. 05-0322/MC 

12 

*3-*4, 2004 WL 3015292, at *1-*2. The lower court concluded 

that the evidence had been properly admitted and that the 

military judge did not abuse his discretion. 2004 CCA LEXIS 

285, at *6-*7, 2004 WL 3015292 at *2. 

First, the finder of fact could reasonably 

conclude that the acts RB complained of did occur 

and that the appellant is the person who 

committed those acts. . . . Second, the 

appellant’s commission of the prior acts is 

probative of whether he believed the victims 

consented to his physical contact. Consent was a 

material issue raised by the appellant in his own 

defense. Third, while the relevant evidence was 

prejudicial to the appellant, the danger of 

unfair prejudice did not substantially outweigh 

its probative value. The military judge gave a 

cautionary instruction immediately before and 

after RB’s testimony and again before 

deliberations on findings. 

2004 CCA LEXIS 285, at *6, 2004 WL 3015292, at *2 (footnote 

omitted). 

On appeal to this Court, Appellant argues that the military 

judge abused his discretion when he allowed RB to testify. 

According to Appellant, RB’s testimony fails all three of the 

prongs in Reynolds. Specifically, Appellant argues that RB’s 

testimony was not probative of Appellant’s mistake of fact 

defense “because her allegations constituted completely 

different facts and circumstances.” With regard to the third 

prong, Appellant argues that the probative value of RB’s 

testimony did not outweigh its prejudicial value. “[RB]’s 

testimony only created a picture of Appellant’s propensity to 
United States v. Barnett Jr., No. 05-0322/MC 

13 

engage in inappropriate behavior. The unfair prejudicial effect 

of [RB]’s testimony included that Appellant was obsessive and 

possessed uncommon sexual fetishes.” 

In response, the Government argues that the military judge 

did not abuse his discretion and that he properly applied the 

three-prong test in Reynolds. The Government further asserts 

that, even if the military judge did err, there was no material 

prejudice to Appellant’s substantial rights. In support of this 

conclusion, the Government summarizes the evidence in this case, 

and reiterates the strength of the Government’s case at trial. 

DISCUSSION 

“A military judge’s decision to admit or exclude evidence 

is reviewed under an abuse of discretion standard.” United 

States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (citing 

United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000), 

overruled on other grounds by United States v. Inong, 58 M.J. 

460, 464 (C.A.A.F. 2003)). “[A] military judge abuses his 

discretion if his findings of fact are clearly erroneous or his 

conclusions of law are incorrect.” United States v. Ayala, 43 

M.J. 296, 298 (C.A.A.F. 1995). 

M.R.E. 404(b)2

 provides, in relevant part: 

 

2 Although M.R.E. 413 permits evidence of similar crimes in 

sexual assault cases, we do not decide whether the evidence in 

this case would have been admissible under M.R.E. 413 for two 

reasons. First, M.R.E. 413 was not in effect at the time of 
United States v. Barnett Jr., No. 05-0322/MC 

14 

Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order 

to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as 

proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or 

accident . . . . 

As noted, this Court in Reynolds established a three-part 

test to determine the admissibility of uncharged misconduct 

under M.R.E. 404(b): 

1. Does the evidence reasonably support a finding by 

the court members that appellant committed prior 

crimes, wrongs or acts? 

2. What “fact . . . of consequence” is made “more” or 

“less probable” by the existence of this evidence? 

3. Is the “probative value . . . substantially 

outweighed by the danger of unfair prejudice”? 

29 M.J. at 109 (citations omitted). The evidence at issue must 

fulfill all three prongs to be admissible. Id. “The first and 

second prongs address the logical relevance of the evidence.” 

McDonald, 59 M.J. at 429; M.R.E. 401; M.R.E. 402; see also

Huddleston v. United States, 485 U.S. 681, 686-87, 689 (1988). 

“The third prong ensures that the evidence is legally, as well 

as logically, relevant.” McDonald, 59 M.J. at 429; M.R.E. 403; 

see also Huddleston, 485 U.S. at 687-88. 

Here, as detailed above, trial counsel offered three 

 

Appellant’s court-martial. See United States v. Morrison, 52 

M.J. 117, 121 n.4 (C.A.A.F. 1999). Second, Appellant’s 

uncharged misconduct does not qualify as sexual assault under 

M.R.E. 413. 
United States v. Barnett Jr., No. 05-0322/MC 

15 

theories to support admission of the uncharged misconduct 

evidence, including intent,3 plan,4 and to rebut Appellant’s 

mistake of fact defense. Despite defense counsel’s objection, 

the military judge admitted the evidence as relevant to rebut 

Appellant’s claim that the four trainees consented to his 

advances. Specifically, as noted previously, the military judge 

stated that RB’s testimony was “relevant in that it shows that 

on a prior occasion . . . the accused was informed in what 

appear to be very clear terms that his conduct wasn’t welcomed, 

and, hence, not consented to under similar circumstances.” 

Resolution of the issue in this case centers around the 

second and third prongs of Reynolds. The first question in this 

case is one of logical relevance -- whether the factual 

dissimilarities between the offenses charged at trial and the 

 

3 As noted, trial counsel offered the following explanation when 

pressed by the military judge on the theory of intent: 

[C]ertainly we do believe that it impacts on his intent to 

gratify his sexual desire. The acts that [RB] will 

testify, the statements that he made, the repeated nature 

of the statements, the complete ignorance of [his] 

comments, please stop, leave me alone, just the complete 

roll over and you’ll see how that and what has happened in 

the instance with these four victims, how that segues and 

we’ll be able to show the members the intent of the accused 

here. 

4

 As noted, trial counsel offered the following explanation on 

the theory of plan: “[A]nd third to show the accused’s plan, if 

you will, to sexually harass, dominate and touch subordinate 

females that he’s able to separate from the pack . . . .” 
United States v. Barnett Jr., No. 05-0322/MC 

16 

prior uncharged misconduct were so great such that the military 

judge abused his discretion when he allowed RB to testify. The 

second question in this case, assuming the prior uncharged 

misconduct was logically relevant, is one of legal relevance -- 

whether any unfair prejudice created by the evidence outweighed 

its probative value. We address these two questions in turn. 

Logical relevance

The military judge’s ruling to admit the evidence was 

premised on two related implicit findings, first, that because 

RB did not consent to his actions, Appellant should have known 

that the four trainees also did not consent, and, second, that 

Appellant should have known because the circumstances were 

similar in nature. 

With regard to the first implicit finding, consent, as a 

legal matter, and in the context of adult relations, is a factspecific inquiry that must be made on a case-by-case basis. See

United States v. Hibbard, 58 M.J. 71, 75-76 (C.A.A.F. 2003); see

Manual for Courts-Martial, United States pt. IV, para. 

45.b.(1)(b) (2005 ed.) (MCM). In this case, the facts are such 

that consent, or lack thereof, cannot be determined with 

reference to the prior uncharged misconduct. With RB, Appellant 

engaged in escalating verbal harassment of a coworker, resulting 

in RB explicitly telling Appellant to stop calling her and to 

stop making inappropriate comments. By contrast, with the four 
United States v. Barnett Jr., No. 05-0322/MC 

17 

trainees, Appellant engaged in largely continuous physical 

harassment of subordinates in a teaching environment where he 

was never explicitly told to stop. Regardless of whether 

Appellant should have known that his advances toward subordinate 

female trainees were inappropriate, RB’s requests that Appellant 

stop calling her and stop making sexual comments does not show 

that Appellant could not have mistakenly believed that any of 

the four trainees consented to his later actions. 

With regard to the second implicit finding, there are 

significant factual differences between the circumstances RB 

described and those the four trainees described, aside from 

those noted above. In Morrison, this Court conducted a six-part 

analysis of prior uncharged misconduct to determine 

admissibility under M.R.E. 404(b) where the accused was charged 

with multiple specifications of child molestation. 52 M.J. at 

122-23. Citing United States v. Munoz, 32 M.J. 359, 363 (C.M.A. 

1991), this Court identified the following as relevant to its 

analysis: (1) the “[r]elationship between victims and 

appellant”; (2) the “[a]ges of the victims”; (3) the “[n]ature 

of the acts”; (4) the “[s]itus of the acts”; (5) the 

“[c]ircumstances of the acts”; and (6) the “[t]ime span.” Id. 

All but the second criterion is relevant to this case. We 

examine these criteria in turn. 

Relationship between the victims and appellant: Unlike the 
United States v. Barnett Jr., No. 05-0322/MC 

18 

four trainees, who were students under Appellant’s supervision, 

RB testified that she had only an administrative relationship 

with Appellant in which she was not subject to his supervision. 

Nature of the acts: RB testified that the only physical 

contact she had with Appellant was when he rubbed his arm 

against hers while they were both seated at the computer in his 

office. By contrast, three of the four trainees testified to 

repeated overt sexual acts that included kissing and fondling. 

The fourth trainee testified that Appellant mentioned wanting to 

kiss her during class one morning and also attempted to tickle 

her on another occasion. 

Situs of the acts: RB testified that Appellant made 

inappropriate comments toward her over the telephone and also 

in-person when he would stop by her office. The one incident of 

touching occurred in Appellant’s office. By contrast, 

Appellant’s statements to the four trainees were always inperson. Furthermore, Appellant’s comments and actions did not 

occur in an office setting, but rather, in the context of his 

teaching duties, in a tank, for example, or in a classroom. 

Circumstances of the acts: In this case, as in Morrison, 

there is no common theme. 52 M.J. at 123. While there are 

multiple, notable similarities between the circumstances of 

Appellant’s acts towards the four trainees, as compared to the 

circumstances of Appellant’s largely verbal conduct toward RB, 
United States v. Barnett Jr., No. 05-0322/MC 

19 

the similarities are few. 

Time span: The charges against Appellant stem from 

incidents occurring in late October 1997 through early November 

1997. By contrast, RB testified that her encounters with 

Appellant were from April 1994 until August of 1994. 

In sum, the evidence of Appellant’s prior uncharged 

misconduct with RB had only marginal logical relevance to the 

present charged conduct. Despite trial counsel’s arguments to 

the contrary, RB’s explicit instructions to Appellant to stop 

are not probative of whether Appellant reasonably could have 

mistaken the four trainees’ silence as consent. Furthermore, 

the evidence is only marginally relevant under either of the 

other two theories trial counsel offered -- intent and plan. 

During trial counsel’s lengthy proffer to the military judge, he 

argued that RB’s testimony would be probative of Appellant’s 

“predatory intent” and also “to show the accused’s plan . . . to 

sexually harass, dominate and touch subordinate females that 

he[] [was] able to separate from the pack . . . .” However, 

both of these alternative bases for admissibility are weak. As 

in Morrison, “[t]he charged acts were so overtly sexual that 

motive and intent were not in issue.” 52 M.J. at 123. In 

addition, Appellant’s actions toward RB, and the context in 

which they occurred, do not tend to show a common plan. RB was 

not a subordinate female to Appellant in the same way that the 
United States v. Barnett Jr., No. 05-0322/MC 

20 

trainees were. As noted, Appellant and RB had a purely 

administrative, as opposed to an instructive, relationship. In 

addition, there was no “pack” from which Appellant could 

separate RB. 

Legal relevance

Even assuming the evidence of Appellant’s prior uncharged 

misconduct was logically relevant, to be admissible, it must 

still pass the test of legal relevance under the third prong of 

Reynolds. Recently, in United States v. Berry, this Court 

outlined the following criteria for testing legal relevance: 

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 event; the frequency of the acts; 

the presence of any intervening circumstances; and the 

relationship between the parties. 

61 M.J. 91, 95-96 (C.A.A.F. 2005) (citing United States v. 

Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)). 

In his ruling on the defense motion, the military judge did 

not conduct the balancing inquiry under M.R.E. 403 on the 

record. See id. at 96 (“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.”). Instead, the 

military judge stated the following: “I’m convinced that with 
United States v. Barnett Jr., No. 05-0322/MC 

21 

that instruction being provided to the members both now and 

during -- or prior to their deliberations that the probative 

value of this evidence is not substantially outweighed by its 

prejudicial impact.” 

As defense counsel argued at trial, RB’s testimony carried 

a “substantial risk of unfair prejudice” to Appellant including 

“confusion of the issues, and a great propensity to mislead.” 

Both of these statements are true. The issue in this case was 

whether the four trainees consented to Appellant’s actions. 

RB’s testimony was, at best, marginally probative on this point. 

Furthermore, in order to challenge RB’s credibility, the defense 

called various witnesses to rebut her claims and also to refute 

what she claimed reporting at the time of the incident. Just as 

importantly, RB’s testimony raised the specter of unfair 

prejudice in two ways. First, RB’s testimony portrayed 

Appellant to the members as not just a noncommissioned officer 

who abused his authority over trainees, but as a sergeant who 

made advances toward the Marine wife of another Marine. Second, 

some of Appellant’s comments included racial overtones. RB 

testified that a “few times” Appellant told her that “he wanted 

to know what it was like to have sex with a white pregnant 

woman.” 

In light of the marginal relevance of RB’s testimony, we 

conclude that the danger of unfair prejudice from these aspects 
United States v. Barnett Jr., No. 05-0322/MC 

22 

of RB’s testimony substantially outweighed the probative value 

of the evidence. In this context, the military judge’s limiting 

instruction could not eliminate the unfair prejudice created by 

RB’s testimony in light of its low probative value coupled with 

the nature of the prejudice. Cf. United States v. Owens, 21 

M.J. 117, 124 (C.M.A. 1985) (finding a limiting instruction that 

restricted members’ consideration to an issue on which prior act 

evidence had “considerable probative value” substantially 

reduced evidence’s “prejudicial tendencies”). 

For the above reasons, even assuming the evidence was 

logically relevant, the military judge erred when he found that 

the danger of unfair prejudice did not substantially outweigh 

its probative value. M.R.E. 403. Therefore, the evidence in 

this case fails to fulfill not only the second, but also the 

third prong of Reynolds. 

Prejudice

Having determined that the military judge abused his 

discretion, we must now determine whether this error resulted in 

material prejudice to Appellant’s substantial rights. Article 

59(a), UCMJ, 10 U.S.C. § 859(a) (2000). “We evaluate prejudice 

from an erroneous evidentiary ruling by 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.” United States 
United States v. Barnett Jr., No. 05-0322/MC 

23 

v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citing United States 

v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)). 

Here, the Government’s case, aside from RB’s testimony and 

the two-page incident report, was strong. All four of the 

complainants testified and there were similarities between their 

respective rendition of events. There is nothing in the record 

to indicate that these four individuals were not credible 

witnesses. The defense, by contrast, did not present a 

compelling case. The crux of Appellant’s defense was that he 

reasonably believed that the four trainees consented to his 

actions. However, all four denied that the encounters were 

consensual and each recounted some type of nonverbal 

manifestation of their unwillingness to be touched by Appellant.5 

Finally, the evidence involving RB, even if relevant, was of 

marginal importance given the difference in contexts. As stated 

above, the events involving RB happened almost three years 

earlier. In addition, the defense brought in two witnesses to 

rebut RB’s version of events. For these reasons, we hold that 

the erroneous admission of RB’s testimony was harmless error. 

 

5

 PVT SD testified that she pulled her legs together when 

Appellant touched her legs and pubic area and pushed his hand 

away when Appellant rubbed her breast. PFC BL testified that 

she elbowed Appellant out of the way when he tried to tickle 

her. PFC LT testified that she pushed Appellant away twice when 

he kissed her. PVT SK testified that she pulled away when 

Appellant kissed her. 
United States v. Barnett Jr., No. 05-0322/MC 

24 

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.