Monday, February 27, 2012
Conduct Unbecoming An Officer: Appellate Court Affirms Court-Martial's Finding Despite Character Evidence Error
Similar to its federal counterpart, Military Rule of Evidence 414 states in relevant part that
(a) In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of child molestation is admissible....
(d) For purposes of this rule, “child” means a person below the age of sixteen....
In its recent opinion in United States v. Reynard, 2012 WL 592774 (Army Ct.Crim.App.,2012), the U.S. Army Court of Criminal Appeals found that a military judge improperly admitted evidence that was not admissible under Rule 414, and yet the court still affirmed the court-martial's finding of guilty and the appellant's sentence. Why?
Unfortunately, the court's opinion doesn't divulge many facts, but it does tell us that Master Sergeant Raymond J. Reynard was subjected to a court-martial based upon hugging the alleged victim and touching her bottom and was found guilty of one specification of indecent assault and count of carnal knowledge. Reynard was thereafter sentenced to a dishonorable discharge and confinement for seven years. The convening authority then dismissed the carnal knowledge specification and approved the remaining findings of guilt and the adjudged sentence.
Reynard thereafter appealed, claiming that the military judge erred in admitting evidence that he had previously committed a child molestation offense against the alleged victim, LK, and the U.S. Army Court of Criminal Appeals agreed, finding that
The victim in this case, LK, was born on 8 May 1990 and was no longer considered a child for Mil.R. Evid. 414 purposes as of 8 May 2006, when she reached the age of sixteen. In response to a defense motion to suppress evidence, the military judge erred in finding Charge II to be a child molestation offense. During the time period alleged in the specification, between on or about 1 May 2007 and 30 September 2007, LK was over the age of sixteen. Pursuant to Mil. R. Evid. 414, Charge II was not a child molestation offense because the alleged victim was not below sixteen. Similarly, the military judge erred in concluding appellant's alleged digital penetration of LK in 2007 was an act of child molestation and admissible under Mil. R. Evid. 414 because LK was not under sixteen at the time of the incident and therefore not a child.
That said, the court also found that the military judge deemed evidence of the 2007 act to be admissible under Military Rule of Evidence 404(b) "to show absence of mistake and indicate the [appellant's] intention to resume their sexual relationship." The appellate court agreed with this, finding that "the military judge properly admitted this incident under Mil. R. Evid. 404(b) as proof of appellant's intent and absence of mistake."
I disagree with this conclusion unless Reynard's claim was that his conduct was accidental, i.e., that his hand slipped and that he did not intend to touch the alleged victim's bottom. Even if this were Reynard's defense, I'm not sure that the evidence should have been deemed admissible, but if it wasn't his defense, the evidence was classic propensity character evidence and should have been deemed inadmissible.