UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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Misc. Dkt. No. 2016-12

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UNITED STATES

Appellant

v.

Brian L. WALTERS

Staff Sergeant (E-5), U.S. Air Force, Appellee

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Appeal by the United States Pursuant to Article 62, UCMJ

Decided 12 January 2017

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Military Judge: Patricia A. Gruen.

GCM convened at Joint Base Pearl Harbor-Hickam, Hawaii.

For Appellant: Major Mary Ellen Payne, USAF (argued); Colonel Katherine E. Oler, USAF; and Gerald R. Bruce, Esquire.

For Appellee: Major Lauren A. Shure, USAF (argued), and Lieutenant 

Colonel Nicholas W. McCue, USAF.

Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military 

Judges.

Judge SPERANZA delivered the opinion of the court, in which Senior 

Judge MAYBERRY and Judge JOHNSON joined.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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SPERANZA, Judge:

The United States brings this appeal under Article 62, UCMJ, 10 U.S.C. § 

862, asserting that the military judge abused her discretion by excluding evidence offered pursuant to Military Rule of Evidence (Mil. R. Evid.) 413. We 

agree and grant the Government’s appeal.
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I. BACKGROUND

Appellee is charged with one specification of abusive sexual contact by 

causing bodily harm, in violation of Article 120, UCMJ, 10 U.S.C. § 920, for 

allegedly touching Staff Sergeant (SSgt) RM’s pubic area with his hand with 

an intent to gratify his sexual desire. Prior to trial and pursuant to Mil. R. 

Evid. 413, trial counsel provided trial defense counsel notice of the Government’s intent to offer evidence that Appellee committed another sexual offense 

upon Ms. JC. Trial defense counsel promptly moved for appropriate relief, asking the military judge to suppress evidence related to Ms. JC’s allegations because it involved “charged” misconduct prohibited by United States v. Hills, 75 

M.J. 350 (C.A.A.F. 2016), failed to meet the threshold requirements established by the Court of Appeals for the Armed Forces (CAAF) in United States 

v. Wright, 53 M.J. 476 (C.A.A.F. 2000), and failed the balancing test required 

by Mil. R. Evid. 403. The Government opposed the motion and offered Ms. JC’s 

written statement to the Honolulu Police Department to support its position. 

The Government also invited the military judge to consider SSgt RM’s recorded 

interview with the Air Force Office of Special Investigations (AFOSI). 

Following the convening of the general court-martial, the parties litigated 

several motions, to include the motion for appropriate relief seeking exclusion 

of evidence under Mil. R. Evid. 413. In support of their written submissions on 

this matter, the parties offered additional evidence, including witness testimony. After presentation of evidence and argument by counsel, the military 

judge, on the record, discussed her findings of fact with the parties before 

granting the Defense motion. The military judge documented her oral ruling 

in a written ruling. Subsequently, the Government served timely notice of appeal and the case was docketed with this court.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to hear this appeal under Article 62(a)(1)(B), UCMJ, 

10 U.S.C. § 862(a)(1)(B), which authorizes the Government to appeal “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding” in a court-martial where a punitive discharge may be 

adjudged. 

A military judge’s decision to admit evidence is reviewed for an abuse of 

discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). The 

military judge’s findings of fact are reviewed for clear error, but her conclusions 

of law are reviewed de novo. United States v. Keefauver, 74 M.J. 230, 233 

(C.A.A.F. 2015). An abuse of discretion occurs if the military judge’s decision 

“is influenced by an erroneous view of the law.” United States v. Cowgill, 68 

M.J. 388, 390 (C.A.A.F. 2010) (quoting United States v. Quintanilla, 63 M.J. 

29, 35 (C.A.A.F. 2006)) (emphasis added). 

Because this issue is before us pursuant to a Government appeal, we may 

act only with respect to matters of law. Article 62(b), UCMJ. We may not make 
United States v. Walters, Misc. Dkt. No. 2016-12

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findings of fact, as we are limited to determining whether the military judge’s 

factual findings are clearly erroneous or unsupported by the record. United 

States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995). We also review the evidence 

in the light most favorable to the prevailing party. United States v. Wicks, 74 

M.J. 93, 98 (C.A.A.F. 2014). “When a court is limited to reviewing matters of 

law, the question is not whether a reviewing court might disagree with the 

trial court’s findings, but whether those findings are ‘fairly supported by the 

record.’” United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004) (quoting 

United States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985)).

Mil. R. Evid. 413 is an exception to the ordinary rule that evidence of uncharged misconduct or prior convictions is generally inadmissible and may not 

be used to show an accused’s propensity or predisposition to commit charged 

conduct. See Mil. R. Evid. 404(b); United States v. Berry, 61 M.J. 91, 95 

(C.A.A.F. 2005); Wright, 53 M.J. at 480. The Rule provides that “[i]n a courtmartial proceeding for a sexual offense, the military judge may admit evidence 

that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant.” Mil. R. Evid. 413(a). This includes using evidence of either a prior sexual offense conviction or uncharged 

sexual offenses to prove that an accused has a propensity to commit a sexual 

offense. Hills, 75 M.J. at 354 (citing United States v. James, 63 M.J. 217, 220–

22 (C.A.A.F. 2006)).

The meaning and scope of Mil. R. Evid. 413 is a question of law that we 

review de novo. LRM v. Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013). We first 

review de novo the meaning and scope of Mil. R. Evid. 413 to determine 

whether the military judge’s exclusion of the conduct under Mil. R. Evid. 413 

was guided by erroneous legal conclusions before determining whether the military judge abused her discretion in excluding Mil. R. Evid. 413 evidence as 

propensity evidence. Hills, 75 M.J. at 354 (citing Koon v. United States, 518 

U.S. 81, 100 (1996)); see United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 

2009).

In pertinent part, the military judge concluded the following: the CAAF’s 

decision in Hills precluded admission of the evidence offered in this case because “[t]he ‘uncharged misconduct’ is actually charged misconduct, it is just 

that the other charged acts that the Government seeks to admit are pending 

trial in a civilian criminal court, as opposed to being charged in this military 

court-martial;” the offered evidence was not logically relevant under Mil. R. 

Evid. 401 and 402, thus failing the third threshold finding for admissibility as 

required by Wright; and the evidence failed the Mil. R. Evid. 403 balancing test 

because “[t]his type of evidence is highly prejudicial and certainly more prejudicial than probative.” We find each of these conclusions was guided and influenced by the military judge’s erroneous view of the law; thus, she abused her 

discretion in excluding the offered evidence. See Cowgill, 68 M.J. at 390; Clayton, 67 M.J. at 286.
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III. APPLICATION OF UNITED STATES V. HILLS

In Hills, the CAAF held that because evidence of charged sexual misconduct “was already admissible in order to prove the offenses at issue, the application of [Mil. R. Evid.] 413—a rule of admissibility for evidence that would 

otherwise not be admissible—was error.” 75 M.J. at 352. The CAAF explained 

that “[n]either the text of [Mil. R. Evid.] 413 nor the legislative history of its 

federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to 

prove beyond a reasonable doubt in the same case.” Id. (emphasis added). It 

seemed obvious to the CAAF “that it is impermissible to utilize [Mil. R. Evid.] 

413 to show that charged conduct demonstrates an accused’s propensity to 

commit . . . the charged conduct.” Id. at 353. Moreover, the court found that 

the standard findings instructions on the proper use of Mil. R. Evid. 413 evidence of charged offenses “both undermined the presumption of innocence and 

created a tangible risk that Appellant was convicted based on evidence that 

did not establish his guilt beyond a reasonable doubt.” Id. at 352. 

SSgt RM alleged that while at a bar, the drunken Appellee grabbed her 

hand and placed it on his genitals; followed her into the bathroom; pushed her 

against the side of the stall and tried to kiss her, while she repeatedly said “no” 

and “stop it;” put his hand up her underwear, touching her pubic area; and only 

stopped when a bar employee entered the bathroom and told Appellee to leave. 

Approximately six months after SSgt RM’s allegations and less than four 

months after charges related to those allegations were preferred, Ms. JC alleged that Appellee touched her without consent. Specifically, Ms. JC claimed 

the following: As she drove Appellee’s girlfriend and the drunken Appellee 

home, Appellee’s girlfriend sat in the passenger’s seat with her head resting on 

the dashboard, apparently sleeping, while Appellee sat in a backseat behind 

Ms. JC. Appellee began to massage Ms. JC’s shoulders. She pushed his hands 

away. Appellee persisted and moved his hands closer to her chest area. She 

told Appellee to “stop” and again pushed his hands away. Appellee told her to 

“relax,” reached underneath her bikini top, and massaged her breasts with 

both of his hands. She again told him to “stop,” and Appellee told her “relax” 

and proceeded to “grope” her breasts again. Appellee did not stop touching Ms. 

JC until his girlfriend looked over. 

That same evening, Ms. JC provided a written statement to Honolulu Police. On the form, the Honolulu Police classified the offense as a sexual assault. 

Appellee was arrested for this conduct and was scheduled to be arraigned in 

Hawaii state court.

The military judge acknowledged that the conduct offered pursuant to Mil. 

R. Evid. 413 was “not charged in the case at bar.” Nevertheless, she found that 

Hills’ prohibition against permitting the Government to show propensity by 

relying on the very acts the Government needs to prove beyond a reasonable 
United States v. Walters, Misc. Dkt. No. 2016-12

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doubt in the same case applied in Appellee’s case. The military judge concluded, “In this case, the evidence the Government seeks to admit is actually 

charged conduct and a presumption of innocence has attached to the Accused 

with respect to that charged conduct as it is an allegation that is yet to be 

proved.” 

However, no offense related to Ms. JC’s allegations is before Appellee’s 

court-martial. The offense is pending before a court in a separate jurisdiction 

and that court will independently render its verdict, if any. The conduct offered 

by the Government pursuant Mil. R. Evid. 413 is not conduct the Government 

has to prove beyond a reasonable doubt in the same case. See Hills, 75 M.J. at 

352. This plainly is not an offense on which the factfinder in Appellee’s courtmartial has to deliberate. See id. at 354 (citing Wright, 53 M.J. at 479). Accordingly, the CAAF’s attendant concerns about Appellee’s presumption of innocence being undermined by the Government’s use of evidence admitted to prove 

charged offenses in the same case are not implicated here.

Mil. R. Evid. 413 evidence of an offense charged in another jurisdiction, but 

not charged in the case at bar, is not precluded by Hills. The conduct is not 

charged in the same case and evidence of this uncharged conduct would not 

already be admissible at the court-martial. See Hills, 75 M.J. at 355. However, 

such evidence of uncharged conduct may be properly admitted under Mil. R. 

Evid. 413. Thus, the military judge abused her discretion by erroneously finding the evidence of Appellee’s uncharged sexual offenses upon Ms. JC offered 

pursuant to Mil. R. Evid. 413 at Appellee’s court-martial was “actually charged 

misconduct” as contemplated and prohibited by Hills. Moreover, this erroneous 

view of the law influenced her subsequent analysis and decisions under Wright

and Mil. R. Evid. 403. 

IV. WRIGHT’S THRESHOLD FINDINGS FOR ADMISSIBILITY

In Wright, the CAAF required military judges to make the following three 

threshold findings before admitting evidence under Mil. R. Evid. 413: (1) The 

accused is charged with an offense of sexual assault; (2) The evidence proffered 

is evidence of his commission of another offense of sexual assault; and (3) The 

evidence is relevant under Mil. R. Evid. 401 and Mil. R. Evid. 402. 53 M.J. at 

482. 

Mil. R. Evid. 401 establishes the test for relevance. Evidence is relevant if: 

(a) it has any tendency to make a fact more or less probable than it would be 

without the evidence; and (b) the fact is of consequence in determining the action. Mil. R. Evid. 401.

Under Mil. R. Evid. 402, “[r]elevant evidence is admissible unless any of 

the following provides otherwise: (1) the United States Constitution as it applies to members of the Armed Forces; (2) a federal statute applicable to trial 

by courts-martial; (3) these rules; or (4) this Manual.” Mil. R. Evid. 402(a)(1)-

(4). “Irrelevant evidence is not admissible.” Mil. R. Evid. 402(b).
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After concluding Hills prohibited admission of the evidence offered by the 

Government under Mil. R. Evid. 413, the military judge nonetheless made her 

threshold findings under Wright. The military judge found that Appellee was 

charged with an offense of sexual assault and that the proffered evidence alleging Appellee touched Ms. JC’s breasts without her consent was evidence of 

Appellee’s commission of another sexual assault. However, the military judge 

determined that the proffered evidence was not relevant under Mil. R. Evid. 

401 and 402. She concluded that “[w]hether the evidence is relevant under 

[Mil. R. Evid.] 401 and [Mil. R. Evid.] 402 is where the Hills findings seem to 

interface and potentially conflict with the Wright case.” Consequently, the military judge reasoned:

If the evidence the Government seeks to admit in this court-martial is charged misconduct, but not charged in the case at bar, 

then the unproven allegation of a completely separate alleged 

unproven incident regarding a completely separate set of facts 

and alleged victim is arguably not relevant to the conduct at issue in this court-martial.

We find no conflict between the CAAF’s holdings in Hills and Wright. Any 

conflict between these two binding decisions was created by the military 

judge’s erroneous assessment of what constitutes “charged” conduct under 

Hills. The military judge’s misapplication of Hills influenced her decision to 

find seemingly archetypal propensity evidence under Mil. R. Evid. 413 logically 

irrelevant and, therefore, inadmissible under Mil. R. Evid. 401 and Mil. R. 

Evid. 402, despite its relevancy being “all but mandated.” See United States v. 

Dewrell, 52 M.J. 601, 608 (A.F. Ct. Crim. App. 1999) (“The first issue for any 

item of evidence is relevance. See Mil. R. Evid. 401, 402. As prior dicta on this 

issue have intimated, in view of the language Congress used in Rules 413 and 

414, relevancy is all but mandated.”). Moreover, evidence of “an unproven allegation of a completely separate alleged unproven incident regarding a completely separate set of facts and alleged victim” is the type of evidence Mil. R. 

Evid. 413 inarguably deems logically relevant in sexual offense cases. Accordingly, the military judge’s determination that evidence of Appellee’s alleged 

sexual offenses against Ms. JC failed the third threshold finding of Wright—

relevance under Mil. R. Evid. 401 and Mil. R. Evid. 402—was guided by an 

erroneous view of the law. 

V. MIL. R. EVID. 403 BALANCING TEST

Although the military judge found that the proffered evidence failed the 

third threshold finding for admissibility under Wright, she still conducted the 

required Mil. R. Evid. 403 balancing test. 

Once the evidence meets the threshold requirements in Wright, the military judge must apply the balancing test of Mil. R. Evid. 403 under which the 

evidence may be excluded if its “probative value is substantially outweighed 
United States v. Walters, Misc. Dkt. No. 2016-12

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by the danger of unfair prejudice, confusion of the issues, or misleading the 

members.” Berry, 61 M.J. at 95 (citing Mil. R. Evid. 403). In conducting the 

balancing test under Mil. R. Evid. 403, the military judge should consider the 

following factors:

[T]he 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. 

Id. (citing Wright, 53 M.J. at 482). 

“No one factor is controlling, although in a given case it could be.” United 

States v. Bare, 65 M.J. 35, 37 (C.A.A.F. 2007). However, the Mil. R. Evid. 403 

balancing test “should be applied ‘in light of the strong legislative judgement 

that evidence of prior sexual offenses should ordinarily be admissible[.]’” 

Wright, 53 M.J. at 482 (citing United States v. LeCompte, 131 F.3d 767, 769 

(8th Cir. 1997)). It is not expected that evidence admissible pursuant to Mil. R. 

Evid. 413 would often be excluded on the basis of Mil. R. Evid. 403. See id.

(citing David J. Karp, Symposium on the Admission of Prior Offense Evidence 

in Sexual Assault Cases: Evidence of Propensity and Probability in Sex Offense 

Cases and Other Cases, 70 CHICAGO-KENT L. REV. 15, 19 (1994)). “The presumption is in favor of admission.” Id. 

The military judge cited each factor announced in Wright, but only briefly 

addressed half of them in conducting her balancing test—the strength of proof 

of the prior act, the probative weight of the evidence, the relationship between 

the parties, and the possibility of distraction to the factfinder. Moreover, the 

military judge’s balancing, based on minimal findings related to some of the 

Wright factors, was influenced by her prior, erroneous legal conclusions. She 

found, “This type of evidence is highly prejudicial and certainly more prejudicial 

than probative.” (Emphasis added). Plainly, the military judge failed to 

properly weigh the probative value of evidence that is presumptively relevant 

and admissible when she began her balancing test under the opposite presumptions. Put another way, the proffered Mil. R. Evid. 413 evidence in this 

case was weighed on a defective scale upon which it registered little to no probative value. On the military judge’s scale, the evidence was presumptively 

inadmissible “charged” misconduct under Hills and, thus, not even logically 

relevant as propensity evidence when she weighed it. We are mindful of the 

discretion given to a military judge when she conducts her Mil. R. Evid. 403 

balancing test on the record; however, the military judge’s erroneous view of 

the law permeated her decisions and improperly tipped the Mil. R. Evid. 403 

scale in this case. Accordingly, the military judge abused her discretion. 
United States v. Walters, Misc. Dkt. No. 2016-12

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VI. CONCLUSION

The military judge’s ruling to grant the defense motion for appropriate relief and exclude evidence offered under Mil. R. Evid. 413 is vacated, and the 

record will be returned to the military judge for action consistent with this 

opinion. Accordingly, the appeal of the United States under Article 62, UCMJ, 

is hereby GRANTED.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court