UNITED STATES, Appellee

                                        v.

                  Brian C. MCDONALD, Mess Management
                        Specialist First Class
                         U.S. Navy, Appellant

                                  No. 03-0211

                         Crim. App. No. 200000635

       United States Court of Appeals for the Armed Forces

                       Argued November 19, 2003

                       Decided May 5, 2004

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.

                                    Counsel

For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR
(argued).

For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR (argued);
Colonel Michael E. Finnie, USMC (on brief); Commander R. P.
Taishoff, JAGC, USN, and Lieutenant Ross W. Weiland, JAGC, USNR.

Military Judge: R. J. Kreichelt




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. McDonald, No. 03-0211/NA


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, Appellant was convicted of two

specifications of committing indecent liberties with a child,

one specification of indecent language toward the child, and one

specification of soliciting sex with a child, in violation of

Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934

(2000).    The convening authority approved the sentence of a

dishonorable discharge, five years’ confinement, and reduction

to the lowest enlisted grade.   The Court of Criminal Appeals

affirmed the findings and sentence.   United States v. McDonald,

 (N-M. Ct. Crim. App. 2002).   We granted review of

the following issues:

     I.     WHETHER THE LOWER COURT ERRED BY FINDING EVIDENCE
            OF UNCHARGED ACTS THAT APPELLANT ALLEGEDLY
            COMMITTED OVER TWENTY YEARS BEFORE TRIAL, WHEN HE
            WAS A CHILD, WAS ADMISSIBLE UNDER MILITARY RULE
            OF EVIDENCE 404(B) OVER DEFENSE OBJECTION.

     II.    WHETHER ADDITIONAL CHARGE I, WRONGFULLY
            SOLICITING A FEMALE UNDER SIXTEEN YEARS OF AGE
            AND NOT APPELLANT’S WIFE TO HAVE SEXUAL
            INTERCOURSE WITH HIM, SHOULD BE DISMISSED FOR
            FAILURE TO STATE AN OFFENSE.

     We hold that the lower court erred by upholding the trial

judge’s admission of evidence of uncharged acts of misconduct

committed over 20 years before the trial, and therefore need not

address Issue II.




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                                FACTS

       According to the charges, Appellant began making sexual

advances toward his adopted daughter, TM, when she was 12 years

old.   He gave her condoms and took pictures of her while she was

taking a bath.   Additionally, he gave her a story he downloaded

from the Internet entitled, “Daddy and Me.”   The story described

sexual relations between a father and daughter.    Later,

Appellant gave TM a letter saying, “You’re beautiful,” “I want

to be your first sexual experience,” and “Wouldn’t it be better

if it was with someone who loved you and wouldn’t tell anybody

. . . [or] would call you a whore afterwards . . . .”   When he

gave this to his daughter, she started crying.    He immediately

took it, ripped it up, and threw it away.

       Appellant’s wife testified that she found a “story” called

“Daddy and Me” in the children’s bathroom.    The story described

a sexual relationship between a father and his young daughter.

When the daughter in the story began to reach puberty, her

father became attracted to her.   The daughter began asking her

father about sex and became curious about engaging in sexual

activity with him.

       Appellant’s wife stopped reading the story because she

became angry and then went to talk to Appellant.   Appellant

admitted to her that he was reading the story, but claimed that

he accidentally left it in TM’s bathroom.    Appellant’s wife said


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United States v. McDonald, No. 03-0211/NA


she was inclined to believe TM, who had told her that Appellant

had purposefully placed the story where TM would see it.

        In addition to admitting testimony regarding the story

“Daddy and Me,” and the evidence concerning the condoms and

picture-taking, the judge also admitted evidence that Appellant

engaged in sexual contact with his stepsister, KM, 20 years

before the trial while both were adolescents.

        KM, who was 29 years old at the time of trial, testified

about what happened when she was eight years old and Appellant

was 13 years old.    Sometimes Appellant would enter her room and

expose himself, or come in touching himself.    On some occasions,

Appellant and KM were left alone in the house.    He brought

pornographic magazines with him, read them, and allowed her to

see them, one of which included an illustrated story about a

fairy masturbating a man.    This conduct led to KM masturbating

Appellant.    Appellant also asked to see her body on several

occasions.    On one such occasion she complied, and Appellant

attempted to insert his finger into her vagina, but she moved

away.

        Appellant was charged with photographing TM while she was

taking a shower and providing TM with condoms.    The charges

alleged that these acts were done with the intent to gratify his

sexual desires.    The prosecutor offered KM’s testimony to show

intent, plan, and scheme regarding his offenses with TM.    See


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United States v. McDonald, No. 03-0211/NA


Military Rule of Evidence 404(b)[hereinafter M.R.E.].    The

defense objected, but the judge overruled the objection, finding

the evidence was probative of Appellant’s intent and plan.

        Later, the judge instructed the members that KM’s testimony

could only be considered on the issues of plan or design, or

intent, as to Charge I specification 1, photographing TM while

she was taking a shower, and specification 2, providing condoms

to TM.

        Appellant now argues that the uncharged acts do not show a

plan.    Appellant further contends that the uncharged acts are

not probative of Appellant’s intent, because the acts were

committed 20 years ago, are not similar to the charged acts, and

were committed when he was only a child.    Appellant also asserts

that even if the evidence was found to be relevant, the

probative value of the evidence is substantially outweighed by

its prejudicial nature.    Based upon these concerns, Appellant

argues that the uncharged acts were introduced only to establish

his propensity for similar acts, not for a valid purpose under

M.R.E. 404(b).    The Government counters by arguing that the acts

are admissible to show a plan or design by Appellant.    Moreover,

the Government also argues, and the lower court held, that even

if there was error in admitting the evidence, it was harmless.

The evidence of guilt included Appellant’s written pretrial

statement, his oral admissions to his wife and mother, and TM’s


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United States v. McDonald, No. 03-0211/NA


testimony corroborated in part by Dr. True and TM’s brother.

The defense presented no evidence.

                             DISCUSSION

     This case concerns evidence of uncharged misconduct, or

“other acts” evidence, and the application of the “relevance

rules of evidence.”   M.R.E.s 401, 403, and 404(b).   These rules

are virtually identical to the Federal Rules of Evidence

[hereinafter Fed.R.Evid.].   M.R.E. 401 provides that to be

admitted, evidence must be logically relevant, by tending “to

make the existence of any fact . . . more probable or less

probable than it would be without the evidence.”   This Court has

discussed at length the admission of “other acts” evidence under

M.R.E. 404(b), just as the Supreme Court has discussed the

federal analog, Fed.R.Evid. 404(b).   Over the years, we have

relied upon the three-part test in United States v. Reynolds, 

 (C.M.A. 1989), which has the following elements:

          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”?

Id. at 109 (citations omitted).   This three-prong test is

consistent with Huddleston v. United States, 

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(1988).   The first and second prongs address the logical

relevance of the evidence.1

     The first prong of the Reynolds test tracks the Supreme

Court’s holding in Huddleston that “Rule 404(b). . . evidence is

relevant only if the jury can reasonably conclude that the act

occurred and that the defendant was the actor.”   Id. at 689.

     The second prong of Reynolds derives from the Supreme

Court’s conclusion that “[t]he threshold inquiry a court must

make before admitting similar acts evidence under Rule 404(b) is

whether that evidence is probative of a material issue other

than character.”   Id. at 686.   The Supreme Court went on to

recognize that Fed.R.Evid. 401 and 402 (like M.R.E. 401 and 402)

“establish the broad principle that relevant evidence --

evidence that makes the existence of any fact at issue more or

less probable -- is admissible unless the Rules provide

otherwise.”   Id. at 687.

     Finally, the third prong of Reynolds mirrors Huddleston’s

discussion of the danger of undue prejudice, in which the

Supreme Court stated, “The House made clear that the version of

Rule 404(b) which became law was intended to ‘place greater

emphasis on admissibility than did the final Court version.’”




1
  Manual for Courts-Martial, United States (2002 ed.), Analysis
of the Military Rules of Evidence A22-33.
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United States v. McDonald, No. 03-0211/NA


485 U.S. at 688 (citations omitted).    The Supreme Court

continued:

             The Senate echoed this theme: “[T]he use of
             the discretionary word ‘may’ with respect to
             the admissibility of evidence of crimes, wrongs,
             or other acts is not intended to confer any
             arbitrary discretion on the trial judge.” Thus,
             Congress was not nearly so concerned with the
             potential prejudicial effect of Rule 404(b)
             evidence as it was with ensuring that
             restrictions would not be placed on the admission
             of such evidence.

Id. at 688-89 (citations omitted).     The third prong ensures that

the evidence is legally, as well as logically, relevant.       As the

Court stated:    “Rule 403 allows the trial judge to exclude

relevant evidence if, among other things, ’its probative value

is substantially outweighed by the danger of unfair prejudice.’”

Id. at 687.     Once the judge determines the evidence to be

logically relevant, the judge “may exclude it only on the basis

of those considerations set forth in Rule 403 . . . .”      Id. at

688.

       The military judge found, and the court below agreed, that

the evidence was logically relevant both as to “common plan” and

“intent.”    McDonald, 57 M.J. at 755-56.   We disagree.    Applying

the second prong of Reynolds, we hold that the evidence of

Appellant’s uncharged acts was not logically relevant to show

either a common plan or Appellant’s intent.    See, e.g., United

States v. Humpherys, 

, 90-91 (C.A.A.F. 2002)(noting

that the moving party must satisfy all three prongs for the

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evidence to be admissible).    A military judge’s decision to

admit or exclude evidence is reviewed under an abuse of

discretion standard.    United States v. Tanksley, 

,

175 (C.A.A.F. 2000).    We will not overturn a military judge’s

evidentiary decision unless that decision was “arbitrary,

fanciful, clearly unreasonable,” or “clearly erroneous.”      United

States v. Miller, 

, 65 (C.A.A.F. 1997)(citations

omitted).    A military “judge abuses his discretion if his

findings of fact are clearly erroneous or his conclusions of law

are incorrect.”    Humpherys, 57 M.J. at 90 (citing United States

v. Ayala, 

, 298 (C.A.A.F. 1995)).    Because the

admission of the uncharged acts evidence was clearly erroneous

under Reynolds, the military judge abused his discretion.       We

further hold that the judges’ error was prejudicial to

Appellant, and therefore merits reversal.

     A.     The Common Plan Theory

     Under Reynolds’ second prong, the common plan analysis

considers whether the uncharged acts in question establish a

“plan” of which the charged act is an additional manifestation,

or whether the acts merely share some common elements.    United

States v. Morrison, 

, 122 (C.A.A.F. 1999); United

States v. Munoz, 

, 363-64 (C.M.A. 1991).    The

question as applied to the facts of this case, is whether the

uncharged acts evidence shows that Appellant had a plan to


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United States v. McDonald, No. 03-0211/NA


commit indecent acts that manifested itself on two occasions:

first, when Appellant was 13 years old with his stepsister, and

second, 20 years later, with his adopted daughter.   In answering

such a question, we have examined the following factors: the

relationship between victims and the appellant; ages of the

victims; nature of the acts; situs of the acts; circumstances of

the acts; and time span.   Morrison, 52 M.J. at 122-23.    Viewing

the facts of this case under that framework, we conclude that

the military judge abused his discretion in admitting the

uncharged acts to establish a common plan.   Indeed, the

uncharged acts in this case are extremely dissimilar to the

charged offenses:   Appellant was 13 years of age at the time of

the uncharged acts, rather than a 33-year-old adult; the

uncharged acts were committed in the home of his stepsister,

where he was visiting, while the charged acts occurred where he

was the head of the household; the uncharged acts were with a

stepsister who was about five years younger, rather than with a

young stepchild under his parental control, who was about 20

years younger.

     B.   The Intent Theory

     As to intent, we consider whether Appellant’s state of mind

in the commission of both the charged and uncharged acts was

sufficiently similar to make the evidence of the prior acts

relevant on the intent element of the charged offenses.


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United States v. McDonald, No. 03-0211/NA


Tanksley, 54 M.J. at 176-77; United States v. Rappaport, 

, 447 (C.M.A. 1986).   In this case, Appellant was a 13-year-

old child at the time of the uncharged acts, and a 33-year-old

married adult at the time of the charged acts.   Absent evidence

of that 13-year-old adolescent’s mental and emotional state,

sufficient to permit meaningful comparison with Appellant’s

state of mind as an adult 20 years later, the military judge’s

determination of relevance on the issue of intent was fanciful

and clearly unreasonable.

     C.   Effect of the Error

     Having concluded that the military judge abused his

discretion in admitting the evidence of Appellant’s uncharged

acts, we hold that this error was prejudicial and therefore

merits reversal.   Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000)

(“A finding or sentence of court-martial may not be held

incorrect on the ground of an error law unless the error

materially prejudices the substantial rights of the accused.”).

In evaluating whether erroneous admission of government evidence

is harmless, this Court uses a four part test, “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

v. Kerr, 

, 405 (C.A.A.F. 1999).   After applying this

test, we cannot be confident that the findings of the court-


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martial were not substantially influenced by the improperly

admitted evidence of the Appellant’s childhood conduct.

     The Government had a strong case that Appellant had taken

the photographs and given TM the condoms; however, under both

specifications 1 and 2 of Charge I, the Government was required

to prove beyond a reasonable doubt that Appellant had taken the

photographs and given TM the condoms “with the intent to . . .

gratify [his] sexual desires.”   Manual for Courts-Martial,

United States (2002 ed.), Part IV, para. 87.b.(2)(e).      The

Government’s evidence on this element, particularly with respect

to the photographs, was not strong.     The defense presented no

evidence.   In this posture, irrelevant and highly inflammatory

evidence of Appellant’s childhood exposure, masturbation, and

attempted digital penetration with an 8-year-old girl, 20 years

ago, could not help but be powerful, persuasive, and confusing.

Munoz, 32 M.J. at 364; United States v. Mann, 

, 5

(C.M.A. 1988).   Under these circumstances, the childhood acts of

Appellant were not only irrelevant, but indistinguishable from

propensity evidence, and could only have harmed Appellant in the

eyes of the members.   Cf. United States v. Holmes, 

(C.M.A. 1994).

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.      The findings and the sentence


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are set aside.   The record of trial is returned to the Judge

Advocate General of the Navy.   A rehearing is authorized.




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