Navy-Marine Corps Court of Criminal Appeals

United States v. Grubb, __ M.J. ___ (N-M Ct. Crim. App. 2023) is interesting because the court finds the military judge erred in admitting Mil. R. Evid. 414 evidence and reverses the findings and sentence. An "enlisted" panel had convicted Grubb of two sexual assaults of a child and the MJ sentenced him to four years, RiR, and a DD.

Two specifications of sexual assault of a child were preferred against Appellant. These specifications related to victims Ms. Bravo and Ms. Lima. An additional charge also alleged a violation of Article 120b, UCMJ, but related to Ms. Sigma, Appellant’s high school girlfriend. All charges and specifications were alleged to have occurred before 1 January 2019.
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Before trial, Ms. Sigma notified the Government that she no longer wanted to participate in the trial as a witness. The defense was then advised of the Government’s intent to use information regarding Ms. Sigma as propensity evidence under Mil. R. Evid. 414 as it related to the Article 120b specifications involving Ms. Bravo and Ms. Lima. The Government then withdrew and dismissed the charge related to Ms. Sigma. 

The evidence suggested that Appellant and Ms. Sigma had sexual relations prior to his enlistment and perhaps at least once while on active duty. The defense objected to the Mil. R. Evid. 414 evidence and

argued that the motion to exclude was supported by Kentucky state law and a Naval Criminal Investigation Service interview of Ms. Sigma. Appellant’s position was that Kentucky law did not criminalize his relationship with Ms. Sigma because the age difference between them was within the range protected by Kentucky law and, therefore, the sexual relationship did not amount to an offense.

Some takeaways.

• The three threshhold findings come before the presumption of admissibility under Mil. R. Evid. 414.

1. Is the accused charged with an act of child molestation?
2. Does the proffered evidence show the commission of a crime at the time of the acts.
3. Is the evidence relevant.

And of course the evidence must survive the Mil. R. Evid. 403 balancing.

• Mil. R. Evid. 414s listing of crimes is an exclusive one, "Thus, it does not give the military judge the discretion to admit uncharged misconduct in every case in which the accused has allegedly committed wrongdoing."
• ​"Military judges should be especially cautious not to conflate the liberal admissibility underpinnings of Mil R. Evid. 414 with the threshold inquiries that must be strictly satisfied. The “liberal admissibility standard does not guide or inform its threshold inquiry: whether a prior act is one of child molestation.”" Here,

​The military judge, in ruling on the defense’s Mil. R. Evid. 414 motion, found the issue of whether sexual relations with Ms. Sigma occurred before or after Appellant enlisted in the Marine Corps to be relevant only as to jurisdiction, noting in his ruling that “…whether or not the uncharged misconduct…occurred before or after the accused’s enlistment…would only resolve the…jurisdictional issue of whether the accused could be tried for his alleged misconduct at a court-martial.” We disagree. The military judge’s bundling of events relating to Ms. Sigma under a general concept of “sexual assault of a child” led to legal errors in his Mil. R. Evid. 414 and Mil. R. Evid. 403 analysis. 

• As to the sexual acts prior to enlistment, the court finds that under Kentucky law no crime had been committed and because he had not yet enlisted, no crime was committed while subject to the UCMJ.

Turning to the post-enlistment sex, the court says in part

The Supreme Court found that a trial court did not need to make a finding by a preponderance of the evidence that the acts occurred in order to admit such evidence. Instead, this type of evidence should be admitted if there is sufficient evidence such that the jury could conclude, based on a preponderance of the evidence, that the defendant committed the similar act. Put differently, the trial court only needs to assess whether there is enough evidence for a reasonable jury to reach the conclusion under a preponderance standard.

The military judge’s ruling indicates his view that “[t]he [Appellant’s] admissions, corroborated by Ms. K.W. and statements of [Ms. Sigma]…is a primary source for both the uncharged misconduct as well as the charged offenses [pertaining to the other victims].” This is notable in that Appellant denied any post-enlistment sexual relations with Ms. Sigma, K.W. clarified that the statements in question were about Ms. Bravo not Ms. Sigma and Ms. Sigma never testified in this case. Having reviewed all the evidence in this case, even in light of the holding in Huddleston, we have doubts that a jury could have reasonably found by a preponderance of the evidence that Appellant had sexual relations with Ms. Sigma, at some time after his enlistment. However, we need not resolve the Mil. R. Evid. 401 and 402 issue at this stage because in addition to the three-part test established by Mil. R. Evid. 414, the military judge must also conduct a Mil. R. Evid. 403 balancing analysis. We find that the military judge abused his discretion in applying the Mil. R. Evid. 403 balancing test, and thus do not need to reach the issue of relevance under Mil. R. Evid. 104(b).
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The court finds the MJ's balancing was erroneous and prejudicial. See United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1991) for the four factors to be examined for the presence or absence of material prejudice.