U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700026
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                     WILLIAM F. COWART, III
                     Hospitalman (E-3), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Commander Jason L. Jones, JAGC, USN.
    Convening Authority: Commander, Navy Region Southeast,
                          Jacksonville, FL.
  Staff Judge Advocate’s Recommendation: Commander George W.
                        Lucier, JAGC, USN.
       For Appellant: Captain Andrew R. House, JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAG C,
               USN; Captain Brian L. Farrell, USMC.
                      _________________________

                          Decided 12 June 2018
                         _________________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

  MARKS, Senior Judge:
    A military judge sitting as a general court-martial convicted the
appellant, contrary to his pleas, of two specifications of distributing child
pornography and one specification of possessing child pornography in
violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                    United States v. Cowart III, No. 201700026


§ 934.1 The military judge sentenced the appellant to 48 months’
confinement, reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority approved the sentence as adjudged and, except for the
punitive discharge, ordered it executed.
    The appellant asserts one assignment of error. The military judge abused
his discretion when he excluded evidence about a viable alternate suspect for
the distribution of child pornography specifications. We find error, conclude it
was not harmless beyond a reasonable doubt, and set aside the findings for
Specifications 1 and 2 of the Charge and the sentence. Arts. 59(a) and 66(c),
UCMJ.
                                I. BACKGROUND
   The case against the appellant for distribution of child pornography is
entirely circumstantial.
    On 2 May 2012, the appellant boarded a plane in Japan, where he was
stationed aboard USS BONHOMME RICHARD (LHD 6), and flew home to
Newport, North Carolina, for about two-and-a-half weeks of leave. He spent
most of his leave period at his parents’ home, where family and friends came
to visit him. On 20 May 2012, the appellant left his parents’ home in North
Carolina to return to his ship in Japan.
    At the same time, an agent with the North Carolina Special Bureau of
Investigations (SBI) was monitoring computer file sharing networks2 for the
electronic exchange of child pornography. On 8 May 2012, the agent
discovered that a host computer at a particular internet protocol (IP) address
had shared images of suspected child pornography between 3 and 8 May. The
agent was able to determine that the host computer was using a particular
version of a file sharing software to connect to a file sharing network under
the user name “Okisama.”3 Between 8 and 9 May 2012, the agent’s computer
detected and downloaded 40 images of child pornography from the Okisama
account. On 19 May 2012, six more files of child pornography came from the
same source. The agent traced the IP address associated with the account to
the appellant’s parents’ home. State records identified four individuals
associated with the residence: the appellant’s parents, the appellant, and the
appellant’s brother. SBI agents searched the appellant’s parents’ home in


    1 The military judge acquitted the appellant of one specification of possessing

child pornography.
   2 The SBI agent defined “file sharing” networks as computer systems that are

connected to each other directly via the Internet and can share files among them.
Record at 82.
   3   

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                        United States v. Cowart III, No. 201700026


June 2012 and conducted forensic previews of the computers in the house.
They found neither child pornography nor file sharing software. The SBI
agents then contacted the Naval Criminal Investigative Service (NCIS).
     On 26 September 2012, NCIS special agents searched the appellant’s
berthing and work space aboard USS BONHOMME RICHARD, then pier-
side in Guam, and seized all of his personal electronic devices. Forensic
analysis yielded images and videos of child pornography on the appellant’s
cellular phone.4 The appellant’s laptop computer contained neither child
pornography nor the file sharing software used to exchange the child
pornography files in May 2012. An external hard drive contained some
evidence of child pornography. Investigators found none of the files
distributed in May 2012 on any of the appellant’s devices. Finally, forensic
analysis revealed the appellant’s use of “Okisama”5 as the password to his
external hard drive6 and the username associated with his Nintendo gaming
system.7
                                     II. DISCUSSION
    The appellant alleges that he was deprived of his constitutional right to
present a complete defense. His defense relied primarily on evidence that an
alternate suspect—his cousin, JC—may have been responsible for
distributing the child pornography. The appellant asserts the military judge
erroneously excluded testimony suggesting that JC possessed child
pornography in 2010 and searched for it at the appellant’s family home in
2006 or 2007.
    We review a military judge’s decision to exclude evidence for an abuse of
discretion. United States v. McDonald, 

, 430 (C.A.A.F. 2004)
(citing United States v. Tanksley, 

, 175 (C.A.A.F. 2000)).




   4 Forensic investigators also found child pornography on the appellant’s iPod, but
the appellant was not charged with possessing child pornography on his iPod. The
military judge admitted the child pornography found on the iPod only to rebut the
defense’s assertion that someone other than the appellant distributed the child
pornography from his parents’ home in May 2012.
   5 The meaning of “Okisama” did not appear in the record; however, testimony
suggested it was related to the appellant’s birthplace, Okinawa, Japan.
   6   Record at 207.
   7   

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                     United States v. Cowart III, No. 201700026


A.    Constitutional right to present “legally and logically relevant”
evidence in defense
    “The right to present defense evidence tending to rebut an element of
proof such as the identity of the perpetrator is a fundamental Constitutional
right.” United States v. Woolheater, 

, 173 (C.M.A. 1994) (citing
United States v. Valenzuela-Bernal, 

(1982)). See also United
States v. Hennis, 

, 823 (A. Ct. Crim. App. 2016) (en banc) (“The
right to obtain and present such ‘third party culpability’ evidence is an
important component of an accused’s right to present a defense.”). In
Woolheater, the defense sought to introduce evidence about Petty Officer
Woolheater’s shipmate to demonstrate that the shipmate had the
opportunity, knowledge, and motive to commit the arson of which Petty
Officer Woolheater was accused. 

The Court of Military Appeals
found that the military judge “erred when he ruled that the defense could not
present legally and logically relevant evidence that someone else had the
motive, knowledge, and opportunity to commit the arson.” 

(emphasis added). Later, in United States v. Dimberio, 

, 24
(C.A.A.F. 2001), the Court of Appeals for the Armed Forces (CAAF) reiterated
that the constitutional right to present a defense is the right to present
“evidence which is legally and logically relevant.”
B. The appellant’s evidence of third-party culpability
    The appellant called a single witness—his father—to present his defense.
Through his father’s testimony, the appellant presented an alternate suspect
who may have distributed the child pornography from his parents’ IP address
in May 2012. While the appellant was visiting his parents in North Carolina,
family members and high school friends came to the house. Among the
visitors was the appellant’s cousin, JC. JC and the appellant were close, and
JC had lived with the appellant and his family for a time in the past.
    According to the appellant’s father, JC spent the night at the house six or
seven times during the appellant’s visit and slept in the same room as the
appellant. The father was not certain that JC was in the house during the
early morning hours of 9 and 19 May when the child pornography was
distributed. He remembered that “when my son first came in [JC] did come
and stay with us for several days there[,]” but he testified only that JC “could
have been there” at the hour the pornography was distributed on 9 May. 8
Midway through the leave period, the appellant and his father left the house
to visit the appellant’s grandfather for about a week. The appellant’s father
knew JC was in the house right before the appellant left on 20 May. He was


   8   

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                      United States v. Cowart III, No. 201700026


certain that JC was in the house during the day on 19 May, but he did not
know when he left that night. He did not know whether he was in the house
at the hour the child pornography was distributed on 19 May.
   But testimony about JC’s presence in the family home in May 2012 is not
the subject of the alleged error. Testimony about two prior incidents involving
JC in the family’s home is at issue.
   1. Report of JC’s child pornography possession in 2010
    The appellant’s father testified that in 2010, the appellant, JC, and a
family friend, R, lived together in a trailer on the family’s property. He
recalled an incident when the appellant and R “came into the house very
emotional, high attitude, they came to the back room and were just very
upset.”9 The appellant and R were upset because “[t]hey had found disks of
child pornography in [JC’s] bedroom.”10 They insisted that JC move out of the
trailer. The father explained that he did not report JC to law enforcement
because JC is family, has special needs, and “needs someone to support
him.”11
    Trial counsel objected to the father’s testimony, citing relevance, evidence
of other crimes, wrongs, or acts, and hearsay. Civilian defense counsel (CDC)
responded:
            It goes to number one, access for other individuals that had
         potential access to the IP address that was identified and
         discussed by Agent [C]. Number two, it goes to the potential
         motive and opportunity of an alternative suspect other than
         Hospitalman Cowart.12
When asked to distinguish the evidence from improper character evidence,
CDC explained, “it is an alternative, the theory of the defense case as the
court has pointed out more than once is that there was potential opportunity,
access and availability and potentially motivation for some other individual
to access and distribute child pornography in May of 2012.”13
   CDC later reiterated his assertion that the evidence was admissible
“under the alternative theory for showing someone else had access,
opportunity, potential motivation and was around during the charged time


   9   

   10   

at 386.
   12   

   13   

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                         United States v. Cowart III, No. 201700026


frame.”14 Ruling from the bench, the military judge admitted the evidence
that multiple people had access to the wireless network in the home at the
time of the appellant’s visit. But he excluded the evidence that JC possessed
child pornography in 2010:
         [A]s to the past history and the stories, I am gonna sustain that
         part of the objection. It’s too far. It’s remote in time and it is
         character evidence brought to show that he acted in one way
         two years ago and then he acted in conformity therewith in
         May 2012. I think that’s just character evidence in that
         regard.15
    The military judge then allowed the CDC to proffer his second line of
intended questioning of the appellant’s father.
   2. Evidence of electronic searches for child pornography in 2006-07
    Before JC lived with the appellant in a trailer on the family’s property, he
lived with the appellant’s parents in their house from 2006 to 2007. The
record indicates JC was at least 16 years old at the time and likely older. The
appellant’s father initially allowed JC to borrow his computer but then
withdrew that permission. After JC used the computer, the appellant’s father
saw “tracks of” child pornography.16 He defined tracks of child pornography
as pop-up advertisements to “‘[c]lick here for underaged [sic] youth having
sex’” and images of “kids running down a nude beach and that kind of
stuff[.]”17 As he had taken “on the burden of trying to take care of [JC,]” the
appellant’s father did not report the suspected child pornography but “did
[his] best to clean it up.”18
   Trial counsel raised “the same objection” from the first line of questioning,
and the military judge responded, “[s]ame ruling. Sustained.”19
C.    MIL. R. EVID. 404(b), the Reynolds test, and legally and logically
relevant evidence
    Although CDC did not explicitly invoke MILITARY RULE OF EVIDENCE
(MIL. R. EVID.) 404(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016
ed.), he sought admission of the testimony about JC’s alleged prior acts to


   14   

   15   

   16   

   17   

at 394.
   19   

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                     United States v. Cowart III, No. 201700026


demonstrate his motive and opportunity to distribute child pornography.
Under MIL. R. EVID. 404(b)(1), “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” But
evidence of prior bad acts “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” MIL. R. EVID. 404(b)(2). Typically, the
government offers MIL. R. EVID. 404(b) evidence against an accused. In
something of a reversal of roles, the appellant, not the government, proffered
this MIL. R. EVID. 404(b) evidence. The evidence about JC’s alleged prior acts
was integral to the appellant’s defense that someone else in the house had
not only the opportunity but the motive to distribute child pornography in
May 2012.20
   By well-established precedent, military courts review the admissibility of
MIL. R. EVID. 404(b) evidence via the Reynolds test:
   1. Does the evidence reasonably support a finding by the court
   members that the 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”?
United States v. Reynolds, 

, 109 (C.M.A. 1989) (internal citations
omitted). Step two applies the standard for relevance in MIL. R. EVID. 401.
“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. Step three
incorporates the balancing test in MIL. R. EVID. 403, accounting for the

   20  Federal circuit courts often refer to FEDERAL RULE EVIDENCE (FED. R. EVID.)
404(b) evidence offered about someone other than the appellant as reverse 404(b)
evidence. (With regard to the permitted uses of crimes, wrongs, or other acts, the
language in FED. R. EVID. 404(b) and MIL. R. EVID. 404(b) is identical.) “‘Reverse
404(b)’ is a term some courts have used to refer to evidence of prior bad acts by a
third party, introduced by the defendant and offered to implicate the third party in
the charged crime.” United States v. Battle, 

, 512 (8th Cir. 2014) (citing
United States v. Myers, 

, 123 (4th Cir. 2009); United States v.
Montelongo, 

, 1174 (10th Cir. 2005); United States v. Seals, 

, 606 (7th Cir. 2005); United States v. Lucas, 

, 605 (6th Cir. 2004);
United States v. Hamilton, 

, 155 n.8 (5th Cir. 1995); United States v.
Spencer, 

, 750 n.5 (9th Cir. 1992) (Reinhardt, J., dissenting); United States
v. Stevens, 

, 1401-02 (3d Cir. 1991)).


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                   United States v. Cowart III, No. 201700026


danger—to the appellant and the process—of “unfair prejudice, confusing the
issues, misleading the members, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
    When an accused introduces MIL. R. EVID. 404(b) evidence about someone
else, the danger of unfair prejudice to the accused is minimal, if not non-
existent. There is still the potential for danger to the process—threats to
“policy considerations such as the interest in the orderly conduct at trials”—
that may substantially outweigh the probative value of the evidence.

(citation omitted). Thus the third prong of the
Reynolds test still applies to MIL. R. EVID. 404(b) evidence about a third
party. But it is less likely that the prospect of unfair prejudice to the process
alone will substantially outweigh the probative value of the evidence.
   It is important to note that, by incorporating MIL. R. EVID. 401 and 403,
the Reynolds test incorporates a determination of legal and logical relevance.
“[MIL. R. EVID.] 401-404 set forth what is legally and logically relevant.”

. When conducted on behalf of the defense, Reynolds
analysis of MIL. R. EVID. 404(b) evidence has constitutional implications. “[I]f
the evidence is otherwise legally and logically relevant under Rules 401
through 403 the defendant has a constitutional right to introduce the
evidence.” 

    As we review the military judge’s exclusion of the defense’s evidence
about cousin JC, we look for the Reynolds analysis or some other application
of MIL. R. EVID. 401 and 403.
D. Military judge’s exclusion of the appellant’s 404(b) evidence
    “We review a military judge’s evidentiary rulings for an abuse of
discretion. However, when the judge does not articulate the balancing
analysis on the record, we give the evidentiary ruling less deference than we
do where . . . the balancing analysis is fully articulated on the record.” United
States v. Dewrell, 

, 138 (C.A.A.F. 2001) (citing United States v.
Manns, 

, 166 (C.A.A.F. 2000)).
   The military judge ruled to exclude the appellant’s MIL. R. EVID. 404(b)
evidence about JC from the bench and did not reduce his ruling to writing.
Review of the discourse between the military judge and counsel suggests that
the military judge focused on the age of the evidence. The discussion began
with trial counsel’s objection to the father’s testimony about the discovery of a
disk containing child pornography in JC’s room in the trailer.
           TC: He’s testifying about hearsay, other crimes, wrongs or
       acts of another individual not [sic] disparate in time and place,
       well, not necessarily place, but time.



                                       8
                         United States v. Cowart III, No. 201700026


              ....
             MJ: And so therefore, [the hearsay objection] is overruled,
         but what’s, you know, this is disparate in time with different
         people. I know the accused is slightly involved in this, but is
         this tied into what’s going on here?
              ....
             CDC: It goes to number one, access for other individuals
         that had potential access to the IP address that was identified
         and discussed by [North Carolina SBI] Agent [C]. Number two,
         it goes to the potential motive and opportunity of an alternative
         suspect other than Hospitalman Cowart.
             MJ: All right. But this doesn’t seem to be like in May 2012,
         this is occurring. This seems to be occurring at a different time.
         I mean if this was May 2012, and there had been other
         contraband discovered there and people have taken steps to
         destroy it, these people would seem to be really tight close, but
         in May 2012, this isn’t when this event occurs.
             CDC: I think that the time that I would argue is that the
         same individual was involved. I agree we’re talking about a two
         year discrepancy in time, but it’s the same individual, in the
         same location, with the same access who was present during
         this time in May of 2012, so it’s not like I’m saying he was
         there in May of 2000—or in 2010, and then he never came
         back. I mean this is the same individual that was in and
         around the charged premises in May of 2012.21
    After the appellant’s father testified about finding tracks of child
pornography on his computer after JC borrowed it, the military judge asked
one question: “What year is [he] living under your roof?”22 The appellant’s
father answered that JC moved in with him around 2006 or 2007. The
answer lent support to the military judge’s earlier comment that the
testimony concerned “past history.”23
   Without articulating relevance in terms of MIL. R. EVID. 401 or
conducting a MIL. R. EVID. 403 balancing test on the record, the military
judge excluded the testimony about JC because (1) it was improper character
evidence, and (2) it was too remote in time.

   21   Record 387-89.
   22   

   23   

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                      United States v. Cowart III, No. 201700026


   1. Improper character evidence
    Although the appellant presented and proffered his father’s testimony as
evidence of motive and opportunity, the military judge characterized it as
improper character evidence. “[T]his is a lot of character evidence coming in
about this person trying to say they acted in conformity therewith. They did
it once. They did it again.”24 The military judge explicitly anchored the
discussion in MIL. R. EVID. 404(a)(1), which provides that “[e]vidence of a
person’s character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the character trait[,]”
and MIL. R. EVID. 405, which details methods of proving character.
    But whether the father’s testimony about JC was character evidence
under MIL. R. EVID. 404(a) or evidence of prior acts under MIL. R. EVID.
404(b) was not the dispositive question. In Dimberio, the CAAF clarified that
impermissible character evidence—“[s]uch evidence [that] would not fit
within the exceptions to MIL. R. EVID. 404(a)”—might still be admissible
because it is legally and logically 

. We turn next to
legal and logical relevance and the judge’s finding of remoteness.
   2. Remoteness
    It is well within a military judge’s discretion to find that evidence of a
third party’s possible culpability is too remote to be admissible. The Supreme
Court noted in Holmes v. South Carolina, 

, 327 (2006), that
judges may exclude evidence intended to shift suspicion to another suspect if
it is too remote to be relevant. (Citing 41 C.J.S. HOMICIDE § 216 at 56-58
(1991) (“but frequently matters offered in evidence [by the accused to show
another person’s commission of the charged crime] are so remote and lack
such connection with the crime that they are excluded”) (emphasis added);
40A Am. Jur. 2d Homicide § 286 at 136-138 (1999) (“[evidence tending to
prove that another person may have committed the crime with which the
defendant is charged] may be excluded where it does not sufficiently connect
the other person to the crime, as, for example, where the evidence is
speculative or remote”) (emphasis added)). Remoteness equates to speculation
or a lack of connection with the crime at issue.
   Based on his focus on dates, the military judge appears to have found the
evidence too remote in terms of time. He did not otherwise articulate why the
evidence lacked probative value. The military judge only indicated that too
much time had passed since JC was allegedly discovered searching for child
pornography. Our superior court has considered temporal proximity in cases
similar to the one before us, where evidence of child pornography has been


   24   

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                   United States v. Cowart III, No. 201700026


admitted against an accused because it “could reasonably be viewed as
reflecting or tending to reflect his sexual desires during the charged acts.”
United States v. Mann, 

, 4 (C.M.A. 1988). See also United States v.
Whitner, 

, 461 (C.A.A.F. 1999) (affirming admission of evidence of
the “appellant’s possession of a large number of homosexual materials in his
military barracks room on the day of the offense” to show his motive for
committing the charged sexual assault of another man); United States v.
Orsburn, 

, 187 (C.M.A. 1990) (upholding the admissibility of
pornographic materials about children which “were found at the situs of the
alleged sexual offenses, around the time of these offenses, and in an area
under at least partial control of the appellant”). Cf United States v. Rhea, 

, 423 (C.M.A. 1991) (upholding the admissibility of pornographic
books about children found near where the alleged sexual assaults of a child
occurred without mentioning temporal proximity). Temporal proximity can
constitute part of the connection between the evidence and the crime at issue.
    But the case law does not require temporal proximity, particularly when
the evidence demonstrates sexual interest in children. The government
sought to introduce four- or five-year-old evidence against Staff Sergeant
Mann to prove a common scheme or plan to sexually assault his 

. At trial, Staff Sergeant Mann unsuccessfully objected to admission
of these acts, arguing they “were not ‘close enough in time, place and
circumstances to be relevant[.]’” 

Force Court of Military Review
found the military judge abused his discretion in admitting the testimony.
United States v. Mann, 

, 710 (A.F.C.M.R. 1985). On appeal, the
Court of Military Appeals 

. “The apparent remoteness
of some of these acts (5 years) does not undermine their relevance where the
youth of the victim is an important component of the averred plan.” 

States v. Burkett, 

, 1309-10 (8th Cir. 1987) (holding
“there is no specific number of years beyond which prior acts are no longer
relevant to the issue of intent”)).
     Finally, temporal proximity is but one factor in a MIL. R. EVID. 403
balancing test. See United States v. Wright, 

, 482 (C.A.A.F. 2000)
(listing temporal proximity as one of nine “factors to be examined when
conducting a [MIL. R. EVID. 403] balancing test”). See also United States v.
Berry, 

, 96 (C.A.A.F. 2005) (noting, in the course of a Wright
analysis, that “[t]he length of time between the events alone is generally not
enough to make a determination as to the admissibility of the testimony”).
Instead of considering temporal proximity while conducting a balancing test,
the military judge substituted a test for remoteness. He never identified the
potential danger to the fact-finding process that substantially outweighed the
probative value of the evidence. As he made a binary determination of
temporal proximity in lieu of a Reynolds analysis or MIL. R. EVID. 403


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                    United States v. Cowart III, No. 201700026


balancing test and failed to articulate further how the father’s testimony was
not legally and logically relevant, we find legal error.
E. Admissibility of the appellant’s 404(b) evidence under Reynolds
    Before we determine whether the military judge’s legal error amounted to
an abuse of discretion, we will determine whether the excluded evidence was
admissible. Thus we apply the Reynolds test to the father’s testimony about
JC.
   1. Report of JC’s child pornography possession in 2010
    The appellant sought to admit evidence that JC possessed child
pornography in 2010, but it was hearsay. The appellant’s father never saw
the disk which allegedly contained child pornography. He testified only to
what the appellant and R reported to him. The military judge did not abuse
his discretion by admitting the testimony only for its “effect on the listener.”25
If we are unable to consider the father’s testimony as substantive evidence
that JC possessed disks of child pornography in the trailer in 2010, we end
our Reynolds analysis of this evidence at step one. We cannot find that “the
evidence reasonably support[s] a finding . . . that [JC] committed [the] prior
crimes, wrongs, or 

. The military judge did not abuse his
discretion in excluding this evidence.
   2. Evidence of electronic searches for child pornography in 2006-07
    The appellant’s father proffered that he personally observed evidence of
child pornography on his computer after JC used it in his home in 2006 or
2007.
    First, the evidence reasonably supports a finding that JC committed the
prior crime, wrong, or act. 

for meeting this factor is quite
low.” United States v. Dorsey, 

, 246 (C.M.A. 1993). The appellant’s
father described with particularity pop-up advertisements for “‘underaged



   25  

However, the evidence suggests that an exception to the hearsay
rule may have applied, and the statements may have been admissible under MIL. R.
EVID. 803(2) as excited utterances. Had the statements been admitted, they would
have reasonably supported a finding that JC possessed child pornography in 2010
while living with the appellant on his parents’ property. JC’s possession of child
pornography would make it more probable that he had a motive to distribute child
pornography in May 2012. Even with the testimony necessary to determine whether
the statements met the hearsay exception for excited utterances, danger to the court-
martial process in terms of confusing the issues, misleading the military judge,
undue delay, wasting time, or needlessly presenting cumulative evidence would not
have substantially outweighed the probative value of the evidence. The evidence
would have been admissible. 

; MIL. R. EVID. 403.


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                         United States v. Cowart III, No. 201700026


youth having sex’” and images of children on a nude beach.26 We can
reasonably infer that they resulted from recent electronic searches related to
children, nudity, and sex on the same computer. He did not explain with
particularity why he attributed the searches to JC as opposed to anyone else
with access to his computer. The evidence is circumstantial. But given the
low standard, we find the evidence meets the first prong of the test.
    Next, we determine “what ‘fact . . . of consequence’ is made ‘more’ or ‘less
probable’ by the existence of this evidence.” Reynolds, 

. We
consider this question in the context of the government’s entirely
circumstantial case against the appellant for distribution of child
pornography. The direct evidence established only that someone distributed
child pornography via the IP address registered to the appellant’s father in
May 2012.
    Investigators began their search for the distributor by forensically
examining all of the computers in the home. When they found no evidence of
child pornography or the file sharing software they moved to their next
possible suspect. As the appellant was the only person associated with the
residence not home at the time of the search, the North Carolina
investigators contacted NCIS. There is no evidence the North Carolina SBI
continued their investigation or that anyone searched JC’s computer or
electronic devices. NCIS found child pornography on the appellant’s cell
phone and iPod and discovered that he used the profile name “Okisama.”
Aside from the Okisama connection, the only evidence against the appellant
was his interest in child pornography. He possessed none of the distributed
images. There was no evidence of child pornography or the file sharing
software on his laptop computer. Evidence that, on at least one prior
occasion, JC had borrowed his uncle’s computer and may have used it to
search for child pornography on his wireless network is evidence that JC had
the same motive and opportunity to distribute child pornography when he
returned to the home in May 2012.
    Admittedly, the passage of five or six years from the time JC allegedly
searched for child pornography to the distribution at issue weakens the
probative value of the evidence. But we do not find that temporal attenuation
fatal to the admissibility of this evidence in this case. See 

; 

; 

. There is a sufficient nexus
between JC’s willingness to search for child pornography while a guest of the
appellant’s family five or six years earlier and his return to the house as a
guest in May 2012. This evidence has some probative value as to the matter
at issue in this case—the identity of the distributor of child pornography.


   26   Record at 393.


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                   United States v. Cowart III, No. 201700026


    Finally, “is the ‘probative value . . . substantially outweighed by the
danger of unfair prejudice?’” Reynolds, 

. In short, no. There is no
risk of unfair prejudice to the appellant. Evidence that someone other than
the appellant may have searched for and viewed child pornography is not
likely to confuse the issues, particularly when the fact finder is the military
judge. Nor was there any danger that the fact-finder would be misled. There
was no undue delay, because the appellant’s father had already succinctly
testified to the evidence at issue. There were no other witnesses, no
evidentiary exhibits, and no expert witnesses needed to interpret exhibits.
There was also no prospect of needlessly cumulative evidence, as this was the
only evidence that JC, or anyone else in the home, had shown an interest in
child pornography. Finding no danger of unfair prejudice, we conclude that it
did not substantially outweigh the probative value of the evidence.
   Thus we find that the testimony that JC may have searched for child
pornography on the same home network five or six years earlier was
admissible under MIL. R. EVID. 404(b). It was legally and logically relevant.
The military judge’s legal error in failing to analyze the evidence in
accordance with MIL. R. EVID. 401 and 403 and the Reynolds test and in
excluding the evidence as improper character evidence and too remote in time
constituted an abuse of discretion.
F. Prejudice
    As previously stated, “[t]he right to present defense evidence tending to
rebut an element of proof such as the identity of the perpetrator is a
fundamental Constitutional right.” 

(citations
omitted). As long as “the evidence is otherwise legally and logically relevant
under [MIL. R. EVID.] 401 through 403 the defendant has a constitutional
right to introduce the evidence.” 

. An appellant has
the burden of establishing that an erroneous exclusion deprived him or her of
evidence “‘material and favorable to his defense’” and thus amounted to
constitutional error. United States v. Toohey, 

, 357 (C.A.A.F.
2006) (quoting United States v. Robaina, 

, 862 (8th Cir. 1994))
(additional citations omitted).
    The appellant’s sole defense to the distribution charge was evidence that
JC also had the opportunity and motive to distribute child pornography in
May 2012. Exclusion of that evidence left the appellant with nothing more
than a house full of people with the opportunity to distribute child
pornography but no apparent motive to do so. The military judge’s abuse of
discretion improperly deprived the appellant of evidence “material and
favorable to his defense[.]” 

was a constitutional dimension to the military judge’s error, the
government must prove that it was harmless beyond a reasonable doubt.

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                       United States v. Cowart III, No. 201700026


United States v. Hall, 

, 436 (C.A.A.F. 2002) (“For constitutional
errors, the government must persuade this court that the error was harmless
beyond a reasonable doubt.”) Declining to acknowledge the possibility of
constitutional error in this case, the government has failed to do so. Contrary
to the government’s characterizations, the circumstantial case against the
appellant for distribution of child pornography was not overwhelming.
Although the appellant possessed child pornography, he possessed none of
the distributed child pornography or the file sharing software. The only direct
link between the appellant and the distribution detected by the North
Carolina SBI was the moniker “Okisama.”
    We must also assess the possible prejudice of this exclusion in light of the
military judge’s subsequent admission of similar MIL. R. EVID. 404(b)
evidence against the appellant on rebuttal. As part of the government’s case
in rebuttal, trial counsel asked the military judge to re-examine admission of
the appellant’s iPod under MIL. R. EVID. 404(b). The appellant’s iPod, seized
among his belongings on the ship, contained three uncharged files of child
pornography.27 The military judge had initially excluded it from evidence
based on insufficient notice to the appellant under MIL. R. EVID. 404(b) and a
lack of connection to the distribution of child pornography. Ironically, the
military judge later ruled the evidence was admissible to rebut the
appellant’s theory of an alternate suspect.
    In this ruling, the military judge correctly noted that “MIL. R. EVID.
404(b) is an evidentiary rule of inclusion [and] the applicable test is derived
under United States v. Reynolds, 

(C.M.A. 1989).”28 The military
judge found the MIL. R. EVID. 404(b) bases of motive and identity to be
“inexorably intertwined” and “interconnected with the idea that the accused
is the source of distribution.”29 The military judge noted that “[s]everal
military cases deal with sexual preference of an accused and sexually related
items possessed by an accused.”30 He relied on Whitner and Mann. Finding
that the appellant brought his iPod home on leave with him in May 2012, the
military judge held that “[t]he possession of the IPod [sic] images of child
pornography by the accused provides a motive to be involved in the
distribution and possession of images that were distributed in [this case.]”31


    27 Charges against the appellant for possession of child pornography stemmed

from files found on a mobile phone and external hard drive.
   28   Record at 449; Appellate Exhibit (AE) XXIII at 3.
   29   AE XXIII at 4, 5.
   30   

   31   

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                         United States v. Cowart III, No. 201700026


   The military judge’s ruling admitting the evidence to rebut the appellant’s
defense best captures the significance of the defense evidence he excluded:
         This motive to be involved in child pornography internet
         activity goes toward rebutting the defense evidence of a third
         party being responsible for the distribution. All persons are
         considered innocent and all possible persons of interest in the
         Cowart home began the case on an equal evidentiary plane.
         The defense argument is that a third party distributed the
         evidence and the accused’s possession of the Ipod images
         provides the fact-finder with a marker that differentiates him
         from all others. This is fact of consequence that is made more
         or less probable by the existence of this evidence and it goes to
         attempting to limit the identities of a possible distributor.32
Evidence that JC also had the “marker”—the same sexual interest—upends
the equal evidentiary plane. It negates the differentiation the government
relied on to prove its case.
    The military judge’s erroneous and asymmetrical application of MIL. R.
EVID. 404(b) improperly excluded evidence of an alternate perpetrator that
was material and favorable to the appellant’s defense. The prejudicial impact
of that error was exacerbated by the military judge’s subsequent ruling
allowing the government to introduce similar evidence to rebut the defense.
Thus, exclusion of evidence implicating JC was not harmless beyond a
reasonable doubt in this case and constituted an error materially prejudicial
to the substantial rights of the appellant. Art. 59(a), UCMJ.
                                   III. CONCLUSION
    The findings of guilty to Specifications 1 and 2 of the Charge and the
sentence are set aside. The findings as to the Charge and Specification 4
thereunder are affirmed. The record of trial is returned to the Judge
Advocate General of the Navy for remand to an appropriate convening
authority with a rehearing authorized.
                                            For the Court


                                            R.H. TROIDL
                                            Clerk of Court




   32   AE XXIII at 7.


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