Petition for Writ of Certiorari — Ciulla v. United States

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1991

DAVID G. CIULLA,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

DAVDD D. JIVIDEN

Captain, Office of

The Judge Advocate General

United States Air Force

HQ USAF/JAJD

Bldg. 5683

Bolling AFB, DC 20332-6128

Counsel of Record

JEFFREY R. OWENS

Lieutenant Colonel, Office of

The Judge Advocate General

- United States Air Force

JULY 1991 Counsel for Petitioner

QUESTION PRESENTED

Whether the petitioner’s right to due process of law was

violated both when the military judge, over defense objec-

tion, considered uncharged misconduct in determining peti-

tioner’s sentence, and when courts of appellate review

used the admission of the uncharged misconduct for a

different basis than that used by the military judge.

(i)

fiy

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TABLE OF CONTENTS

Page

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STATEMENT OF THE CASE qo 22.o. oo eeeeeeeeee eee 2

REASONS FOR GRANTING THE WRIT ................... 3

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cai sancti cciiccmaretavimenissceninagetbtcnosgilbeie la

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(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Sheppard v. United States, 290 U.S. 90 (19338) ...... 7

Spencer v. Texas, 385 U.S. 554 (1967) 0.000000... 3,6

United States v. Caceres, 440 U.S. 741 (1971) ........ 5

United States v. Trombetta, 467 U.S. 479 (1984)... 3

United States v. Ciulla, 32 M.J. 186 (C.M.A.1991).. 3, 5, 6

United States v. Clay, 1 C.M.R. 74 (C.M.A. 1951)... 3

United States v. Kinman, 25 M.J. 599 (C.M.A.

» gn Rea rained ee nesnn ae ate Sal ws aan ont nll 6

United States v. Martin, 20 M.J. 227 (C.M.A

ge SRNR aE cn rte Meccan a eh teal 5

United States v. Mullens, 29 M.J. 389 (C.M.A

EET 8 sa et morro aE al AER 5

United States v. Silva, 21 M.J. 336 (C.M.A. 1988)... 3

United States v. Watkins, 21 M.J. 224 (C.M.A.

re SES RRS REE Bie ce oie 7

United States v. Wingart, 21 M.J. 127 (C.M.A.

RSA SAU eo Rr Nee RNa ee 7

United States v. Ciulla, 29 M.J. 868 (A.F.C.M.R.

ES STE Pe ean a oe RE 3

Constitutional Provision:

United States Constitution Amendment V .............. 2

United States Code:

a 6,7

10 U.S.C. § 867(h) (Supp. 1990) ........002 2. ee 1

28 U.S.C. § 1259(3) (Supp. 1989) ........ 1

Uniform Code of Military Justice:

NG 4

Article 66 (c) .......... ESERIES Ce aN IT 6

Rules for Courts-Martial, Manual for Courts-Martial

1984:

TT oo sasts dint iatehsengenaipacecdinicdiendsanicenals 2,4, 5,7

BITE tics nci resnesinsathinencidsescecbdiskinkassetsionates 7

v

TABLE OF AUTHORITIES—Continued

Military Rule of Evidence: Page

Mil.R. Evid. 108 (a) (1) .......--------.c--cscceecesecceeeceeeeesserees 5, 6, 7

Miscellaneous :

Manual for Courts-Martial, United States, 1984,

Analysis, A21-61 .................-0.:c-c-ccsssersseorsnerecerseeees 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. ——

DAVID G. CIULLA,

V.

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to the

United States Court of Military Appeals

Petitioner

PETITION FOR WRIT OF CERTIORARI

The petitioner, David G. Ciulla, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case on April 11, 1991.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at 32 M.J. 186 (C.M.A. 1991), in

which Senior Judge Everett concurred in part and dis-

sented in part (Appendix A). The United States Air

Force Court of Military Review issued a decision on No-

vember 16, 1989, reported at 29 M.J. 868 (A.F.C.M.R.)

(Appendix B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on April 11, 1991. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1259 (3)

(Supp. 1989) and 10 U.S.C. § 867 (h) (Supp. 1990),

2

CONSTITUTIONAL AND RULE FOR

COURTS-MARTIAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the United

States provides in relevant part:

No person shall be . . . deprived of life, jiberty, or

property without due process of law.

Rule for Courts-Martial 1001(b) (4), Manual for Courts-

Martial, United States, 1984 provides in relevant part:

(4) Evidence in aggravation. The trial counsel may

present evidence as to any aggravating circumstances

directly relating to or resulting from the offenses of

which the accused has been found guilty. Except in

capital cases a written or oral deposition taken in

accordance with R.C.M. 702 is admissible in aggrava-

tion.

STATEMENT OF THE CASE

On 30 November 1988, the petitioner, an Air Force

staff sergeant (E-5), was tried by a general court-martial

in a judge alone trial at McChord Air Force Base, Wash-

ington. He pled guilty to charges of forceable sodomy

and the commission of indecent acts upon his natural

daughter, a child under 16 years of age. He was initially

sentenced to a dishonorable discharge, confinement for 40

years, and reduction to airman basic (E-1). The Air

Force Court of Military Review affirmed the findings but

reduced his confinement to 30 years on 16 September 1989.

During the presentencing portion of the appellant’s

trial, his natural daughter testified for the prosecution.

During her direct examination by trial counsel, defense

counsel objected to the relevancy of trial counsel’s inquiry

as to whether “during the time he was doing these things

to you,” the petitioner ever said “anything to you about

doing these things to other girls?” Trial counsel stated

the inquiry was relevant as to the determination of spe-

cific deterrence and protection of other victims. The trial

judge allowed the question based on the offered relevance,

3

stating he would be able to separate out anything that’s

overly prejudicial.” Petitioner’s daughter then related

that petitioner, on one occasion, asked her if she would

mind if he “[did] it” to a friend of hers and see her

friend naked.

The Air Force Court of Military Review found that

this evidence was admissible “as part and parcel of the

circumstances surrounding the [petitioner’s] offenses

against his daughter,” United States v. Ciulla, 29 M.J.

868, 869-70 (A.F.C.M.R. 1989). The Court of Military

Appeals affirmed the decision of the United States Air

Force Court of Military Review on any one of three

grounds. First, the objection was waived, as it was not

“at all clear” that the trial judge considered the infor-

mation for any purpose, and that it was “incumbent upon

the defense to seek clarification prior to the time sentence

was announced.” United States v. Ciulla 32 M.J. 186,

187 (C.M.A. 1991). Second, admission of the testimony

constituted harmless error as to punishment, “given the

magnitude of appellant’s offenses against the victim, we

see no danger that this bit of testimony affected his pun-

ishment.” Jd. Third, the testimony was, “state-of-mind/

depth-of-problem” evidence directly related to the charged

offenses. Jd. Both lower courts of review affirmed the

finding and sentence based on a theory of admissibility

regarding the petitioner’s statements distinct from that

theory of admissibility asserted by prosecution and uti-

lized by the military judge at trial.

REASONS FOR GRANTING THE WRIT

By overruling the defense objection and considering the

petitioner’s uncharged misconduct, the petitioner’s due

process rights were violated, rendering his sentencing trial

fundamentally unfair. In Spencer v. Texas, 385 U.S. 554

(1967), this Court first recognized that the due process

clause guarantees the fundamental elements of fairness in

a criminal trial. Later, in United States v. Trombetta,

4

467 U.S. 479, 485 (1984), this Court noted that “Under

the Due Process Clause of the Fourteenth Amendment,

criminal prosecutions must comport with prevailing no-

tions of fundamental fairness.” In a case preceding both

decisions, the constitutional concept of due process of law

was extended to military members, as Congress, through

its passage of a Uniform Code of Military Justice,

(U.C.M.J.), United States, 1951, granted military ac-

cused rights parallel to those awarded to defendants in

civilian courts. United States v. Clay, 1 C.M.R. 74

(C.M.A. 1951).

The President, pursuant to the statutory authority

granted to him by Congress, see Article 36(a), U.C.M.J.,

10 U.S.C. § 886(a) (1988), promulgated R.C.M. 1001(b)

(4), authorizing trial counsel to present evidence as to

any aggravating circumstances directly related to or re-

sulting from the offenses for which an accused has been

found guilty. The Drafter’s Analysis to this Rule made

clear that R.C.M. 1001(b) (4) does not authorize intro-

duction in general of evidence of bad character or un-

charged misconduct, rather, the evidence sought to be

introduced in sentencing must be of circumstances directly

relating to or resulting from an accused’s offenses. Man-

ual for Courts-Martial, United States, 1984, Analysis,

A2i-61. The uncharged misconduct reflected in the peti-

tioner’s colloquy with his daughter does not fall within

the ambit of R.C.M. 1001(b) (4)’s provisions. Specifically,

it does not reflect admissible state-of-mind/depth of prob-

lem evidence directly related to the charged offenses.

The petitioner’s statements were indicative of his un-

towed interest for another girl, and were not an integral

part of a criminal course of conduct which served to

explain how he attempted to carry out his offenses, as

were the statements by the accused in United States v.

Silva, 21 M.J. 336, 337 (C.M.A. 1988). Likewise, the

petitioner’s questions of his daughter did not deal with

prior acts of sodomy with the victim or another sibling,

5

as was the case in United States v. Mullens, 29 M.J. 389,

400 (C.M.A. 1990). Moreover, unlike the judge in United

States v. Martin, 20 M.J. 227, 230 (C.M.A. 1985), the

military judge sub judice did not conclude on the record

that the petitioner’s statements were so ambiguous as to

have very little weight. In sum, the uncharged miscon-

duct in this case was not admissible under R.C.M. 1001

(b) (4) for purposes of sentencing the appellant. As noted

by Senior Judge Everett in his opinion below, “evidence

of uncharged misconduct is not admissible in aggravation

no matter how similar it might be to the charged offenses

—unless it literally directly relates to or results from

the charged offenses. United States v. Ciulla, 32 M.J.

186, 188 (C.M.A. 1991) (Everett, Senior J., concurring

in part, dissenting in part) (emphasis in original). The

petitioner’s sentence was therefore arrived at in contra-

vention of R.C.M. 1001(b) (4), violating his due process

rights. Cf., United States v. Caceres, 440 U.S. 741 (1971)

(Noting that when compliance with a regulation is man-

dated by the Constitution or Federal Law it should be

judicially enforced).

The other two bases for the Court of Military Appeals

affirmance below are likewise in error. Despite the court’s

statement to the contrary, the military judge did in fact

consider the uncharged misconduct based on the offered

relevance by trial counsel. The judge found the uncharged

misconduct relevant, and stated he would consider it. He

never waivered from this finding, noting on the record

that he would if he should later find the evidence irrele-

vant; “based on the offered relevance at this point I will

allow the matter to proceed until I determine, if all, that

it is not relevant.” Ciulla, supra at 187. Defense coun-

sel’s objection comported with the procedural require

ments set forth in Mil.R.Evid. 103(a) (1) and was there-

fore not waived for purposes of appellate review. The

Court of Appeals’ assertion that it was incumbent on

defense counsel to “seek clarification” of the judge’s rul-

6

‘ing under pain of waiver created an unauthorized and

novel procedural rule which affected the substantive

rights of the petitioner in contravention of the clear

standard authorized by Congress and promulgated by the

President in Mil.R.Evid. 103(a) (1). As noted by Senior

Judge Everett in his opinion below, “[i]f the military

judge elects to defer his ruling until he has a fuller pic-

ture of the case, it seems to me that it is the judge’s

responsibility ultimately to ensure that he does enter his

ruling—not the defense’s burden to enter a second objec-

tion when, in reality, a ruling to the first is yet outstand-

ing.” Id. at 187-88.

The petitioner was manifestly prejudiced by the mili-

tary judge’s improper consideration of the uncharged

misconduct prior to sentencing. As this Court noted, un-

charged misconduct is generally recognized to have the

potentiality for prejudice, and is generally excluded ex-

cept when admitted pursuant to certain well established

exceptions. Spencer, supra, at 560. A sentence should be

based on the offenses of which an accused stands con-

victed. Thus, one based on uncharged misconduct would

not be appropriate and so should not be properly affirmed

under Article 66(c), U.C.M.J., 10 U.S.C. § 866(c)

(1988).' United States v. Kinman, 25 M.J. 599 (C.M.A.

1987). The petitioner’s severe sentence was imposed after

inadmissible uncharged misconduct was considered by the

military judge. Both lower appellate courts improperly

affirmed the sentence, thereby failing to rectify the funda-

mental unfairness of the petitioner’s sentencing trial.

1 Article 66(c) of the Uniform Code of Military Justice, 10 U.S.C.

§ 866(c) provides: ,

In a case referred to it, the Court of Military Review may

act only with respect to the findings and sentence as approved

by the convening authority. It may affirm only such findings

of guilty, and the sentence or such part or amount of the sen-

tence, as it finds correct in law and fact and determines, on

the basis of the entire record, should be approved. . .

7

Each of the lower appellate courts admitted the un-

charged misconduct on a basis distinct from that for which

it was erroneously admitted at trial by the military judge.’

The petitioner’s trial was therefore rendered unfair on

that basis as well. Sheppard v. United States, 290 U.S.

90 (1933); United States v. Watkins 21 M.J. 224, 226,

n. 2 (C.M.A. 1986).

CONCLUSION

The President, pursuant to congressional mandate,

authorized the admission of aggravation evidence only

within the parameters of R.C.M. 1001(b) (4). Despite

timely objection pursuant to Mil.R.Evid. 103(a) (1), the

military judge improperly considered the petitioner’s un-

charged misconduct, which was inadmissible under R.C.M.

1001 (b) (4), in arriving at a sentence. The petitioner’s

sentencing trial was thus rendered fundamentally unfair,

and his sentence was improper under Article 66(c),

U.C.M.J., 10 U.S.C. § 866(c) (1988). The petitioner

further submits that he has also suffered a denial of due

process of law when, on appellate review, the uncharged

misconduct was used for a different basis then that ad-

mitted by the trial judge. This Court should grant the

petition for writ of certiorari to insure that the military

justice system, so carefully crafted by both presidentialiy

promulgated Rules for Courts-Martial and congressional

statute, will again be allowed to protect the due process

rights, not only of the petitioner, but of all service mem-

bers.

2 The trial judge’s ruling ran afoul of R.C.M. 1001(b)(5), which

prohibits extrinsic evidence of uncharged misconduct in order to

show the presence or absence of an accused’s rehabilitation poten-

tial. United States v. Wingart, 21 M.J. 127 (C.M.A. 1988).

Respectfully submitted,

DAVDD D. JIVIDEN

Captain, Office of

The Judge Advocate General

United States Air Force

HQ USAF/JAJD

Bldg. 5683

Bolling AFB, DC 20332-6128

Counsel of Record

JEFFREY R. OWENS

Lieutenant Colonel, Office of

The Judge Advocate General

United States Air Force

JULY 1991 Counsel for Petitioner

APPENDICES

— |

el ee el

la

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 64,058

ACM 27528

UNITED STATES,

Appellee,

v.

Davip G. CIULLA, Staff Sergeant, U.S. Air Force,

Appellant.

Argued Jan. 9, 1991

Decided April 11, 1991

For Appellant: Captain David D. Jividen (argued) ;

Major Ronald G. Morgan (on brief) ; Colonel Richard F.

O’Hair, Lieutenant Colonel Jeffrey R. Owens, Captain

Mark R. Land.

For Appellee: Major Brenda J. Hollis (argued) ; Major

Paul H. Blackwell, Jr. and Captain David G. Nix (on

brief) ; Colonel Robert E. Giovagnoni.

Opinion of the Court

COX, Judge:

Appellant challenges the propriety of the military

judge’s receipt of certain presentencing evidence in this

judge-alone trial.’

1 As framed by appellant, the issue is:

WHETHER THE MILITARY JUDGE ERRED TO THE SUB-

STANTIAL PREJUDICE OF APPELLANT BY ALLOWING

2a

Appellant pleaded guilty to committing sodomy and

indecent acts upon his natural daughter, in violation of

Articles 125 and 134, Uniform Code of Military Justice,

10 USC §§ 925 and 934, respectively. The charged con-

duct to which appellant judicially confessed—staggering

in both quantum and degree—occurred while the child

was between the ages of 10 and 13.2 Upon a detailed

providence inquiry, the military judge accepted appel-

lant’s pleas and found him guilty. Prior to pronouncing

sentence, the judge heard expert testimony about the

massive psychological damage suffered by the victim.

The military judge sentenced appellant to a dishonor-

able discharge, confinement for 40 years, and reduction

to E-3. The convening authority approved the sentence.

The Court of Military Review reduced the confinement to

30 years, but otherwise affirmed the findings and the

sentence, noting that it had “found no Air Force case for

which similar child abuse offenses—however heinous—

includ[ed] such a lengthy term of confinement.” 29 M.J.

868, 870 (1989).

The issue on appeal relates to a brief exchange that

occurred on sentencing between trial counsel and the vic-

tim. Trial counsel was permitted to ask the victim this

question, over defense objection based on relevance:

[D]juring the time that dad was doing these things

to you, did dad ever say anything to you about doing

these things to other girls?

THE VICTIM TO TESTIFY TO APPELLANT’S EXPRESSED

DESIRE TO SEE A FRIEND OF THE VICTIM’S NAKED

AND TO COMMIT INDECENT ACTS WITH THAT FRIEND.

2In addition, the victim testified, without defense objection, that

the abuse began with inappropriate touching in the bathtub when

she was about 2 years old; it escalated to full sodomy when she was

in the second or third grade; and it continued unabated to age 13,

at which point she finally reported it to her mother.

Ue a ns ee

3a

The military judge’s rationale for permitting the ques-

tion was:

Well, I believe I’m able to separate out anything

that’s overly prejudicial and will not consider it in an

undue fashion, but, based on the offered relevance at

this point I will allow the matter to proceed until J

determine, if at all, that it is no relevant.

(Emphasis added.)

In response to the question, the victim testified that, on

one occasion during the period in question, appellant ex-

pressed a desire to “do it’? to one of her friends and to

see this other girl naked. That was the extent of the

challenged testimony; its propriety was never again ad-

dressed insofar as we can determine.

We resolve this case on any of three grounds. First, it

is not at all clear that the military judge considered the

information for any purpose. Given the tentative nature

of the judge’s ruling, it was incumbent upon the defense

to renew the objection and seek clarification prior to the

time sentence was announced. The objection was thus

waived.

Second, nothing would seem less surprising than to

learn that one who had been sexually abusing his own

daughter for years might entertain similar fantasies

about other young girls. The expert testified to the same

effect in any event. Given the magnitude of appellant’s

offenses against the victim, we see no danger that this

bit of testimony affected his punishment.

Third, “aggravating circumstances directly relating to

. . . the offenses of which the accused has been found

guilty” may be introduced by the prosecution on sentenc-

ing. RCM 1001(b) (4), Manual for Courts-Martial,

United States, 1984. As we have construed it, this type

of state-of-mind/depth-of-problem evidence was directly

related to the charged offenses. United States v. Mullens,

4a

29 MJ 398 (CMA 1990), citing United States v. Silva, 21

MJ 3386 (CMA 1986), and United States v. Martin, 20

MJ 227 (CMA 1985), cert. denied, 479 U.S. 917, 107

S.Ct. 8328, 93 L.Ed.2d 295 (1986).

The decision of the United States Air Force Court of

Military Review is therefore affirmed.

Chief Judge SULLIVAN concurs.

EVERETT, Senior Judge (concurring in part and dis-

senting in part) :

I agree that, given the nature of the military judge’s

response to the initial objection, it is not clear that he

ultimately considered the challenged evidence for any pur-

pose at all. I am not so sure as the majority, though, that

the burden of definitively resolving the matter on the

record rested with the defense and that, otherwise, the

defense can be charged with waiving the issue.

Mil.R.Evid. 108(a)(1), Manual for Courts-Martial,

United States, 1984, requires an objection to evidence if

later complaint is to be heard on appeal; the defense en-

tered such an objection here. If the military judge elects

to defer his ruling until he has a fuller picture of the

case, it seems to me that it is the judge’s responsibility

ultimately to ensure that he does enter his ruling—not

the defense’s burden to enter a second objection when, in

reality, a ruling to the first is yet outstanding.

In any event, even considering the severe sentence

adjudged and approved, I am convinced that the chal-

lenged evidence played no significant role in the adjudged

sentence and that, certainly, any arguable effect does not

continue to be reflected in the approved sentence. See

Art. 59(a), Uniform Code of Military Justice, 10 USC

§ 859(a).

I am compelled, however, to reiterate my disagreement

with the willingness of my Brothers on this Court to

encompass such evidence as that in question here within

" |

5a

“aggravating circumstances directly relating to or result-

ing from the offenses of which the accused has been found

guilty.” See RCM 1001(b) (4), Manual, supra. I have

expressed my views on this language in my separate opin-

ions in each of the cases cited by the majority: Quite

simply, I believe that evidence of uncharged misconduct is

not admissible in aggravation—no matter how similar it

might be to the charged offenses—unless it literally di-

rectly relates to or results from the charged offenses. In-

deed, I strongly urge that anyone interested in this con-

flict read carefully the three cases out of Court of Military

Review that are cited in the Drafters’ Analysis to reflect

what they intended by this language in this rule. Manual,

supra at A21-64 (Change 3).

6a

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 27528

UNITED STATES

v.

STAFF SERGEANT Davin G, CIULLA, FR 119-44-5998,

United States Air Force

Sentence Adjudged 30 Nov. 1988

Decided 16 Nov. 1989

Appellate Counsel for the Appellant: Colonel Richard

F. O'Hair and Captain Mark R. Land.

Appellate Counsel for the United States: Colonel Joe R.

Lamport, Colonel Robert E. Giovagnoni, Major Terry M.

Petrie, Major Jeffrey H. Curtis and Captain David G. Nix.

Before BLOMMERS, KASTL and MURDOCK, Appel-

late Military Judges.

DECISION

KASTL, Senior Judge:

The appellant was found guilty of sodomy and indecent

acts with his natural daughter, in violation of Articles

125 and 134, UCMJ, 10 U.S.C. §§ 925, 934. His sentence

is a dishonorable discharge, confinement for 40 years, and

reduction to airman first class.

At a bench trial, the appellant pleaded guilty to the

offenses charged. During his guilty plea inquiry as to

7a

sodomy, he specifically admitted that he forced his daugh-

| ter to perform fellatio upon him. As part of its case-in-

; chief, the prosecution then sought to prove further acts

of sodomy in that he had performed cunnilingus upon her

as well. The Government was successful in this effort,

based largely on the testimony of the child victim.

Following findings of guilty, the Government recalled

the appellant’s daughter during the presentencing portion

of the court-martial. The prosecutor asked her whether

the appellant had ever voiced a desire to perform illegal

| acts upon other girls. The defense immediately objected to

| the question on the basis of relevancy. Trial counsel’s

response emphasized the “relative risk of this person

should he be put back out into society.” After the military

judge stated that he would separate out “anything that’s

overly prejudicial,” the questioning continued:

SQ. _—_

TC: During the time that your dad was doing

these things to you that we talked about earlier, did

he ever talk about doing those kinds of things to other

girls?

Witness: Yeah, once. One girl.

TC: What did he say?

| Witness: He said, do you mind if I do it to your

) friend [D], and I said no, I don’t want you to do it.

TC: And what was he going to do?

Witness: Cause, like this, if—he goes, do you

mind if I see her naked? And, that’s all he said,

though.

The appellant argues that the military judge erred by

allowing this testimony as to the appellant’s desires with

{D]. We find no error and affirm the findings.

) Uncharged Misconduct or “Facts and Circumstances?”

Citing United States v. Wingart, 27 M.J. 128, 135

(C.M.A.1988) the appellant argues that his fantasy as to

[D] was uncharged misconduct; after findings of guilty

[

8a

have been entered, he argues, such uncharged miscon-

duct is no longer of consequence unless it constitutes

aggravation evidence under R.C.M. 1001 (b) (4).

We find the evidence in question clearly admissibie

under R.C.M. 1001(b) (4) as an integral part of the

appellant’s criminal course of conduct. Regardless of

the plea, the prosecution is permitted after findings of

guilty to present evidence directly related to the offenses

for which the accused is to be sentenced. United States v.

Vickers, 13 M.J. 4038 (C.M.A.1982); United States v.

Thomas, 11 M.J. 388 (C.M.A. 1981); United States »v.

Carfang, 19 M.J. 739 (A.F.C.M.R.1984), pet. denied 21

M.J. 112 (C.M.A.) ; United States v. Keith, 17 M.J. 1078

(A.F.C.M.R.1984). We find it noteworthy that the Analy-

sis on this point (MCM, 1984, Appendix 21, page A 21-

64) cites United States v. Rose, 6 M.J. 754 (N.C.M.R.

1978) as illustrative of the rule. In Rose, evidence of sub-

sequent sexual acts was held admissible to show aggra-

vated circumstances of the crimes with which the accused

was charged.

During oral argument, appellate defense counsel sought

to distinguish the concept behind the cited cases. The

defense recognized the premise that an expanded factual

account might be admissible as the res gestae or “facts

and circumstances” which surround commission of an

offense. However, the defense insists, the disputed evi-

dence in the present case is distinguishable because it

entered through an entirely different door—to prove that

this individual was a danger to society.

We need not wrestle at length with this defense con-

tention. As the Court of Military Appeals recently com-

mented, there would be little point in granting relief “if

the challenged evidence clearly would be admissible at a

rehearing” (emphasis added). United States v. Wingart,

27 M.J. at 134. In any event, we find the evidence in

question admissible as part and parcel of the circum-

ec eden te PC Nao —

9a

stances surrounding the appellant’s offenses against his

daughter. In addition to the cases already cited, see

United States v. Silva, 21 M.J. 336 (C.M.A. 1986) ;

United States v. Pitts, 18 M.J. 522 (A.F.C.M.R.1984)

pet. denied 19 M.J. 126 (C.M.A.1984) and United States

v. Dagger, 23 M.J. 594 (A.F.C.M.R.1986) pet. denied 25

M.J. 241 (C.M.A.1987) See also DA Pam 27-173, Trial

Procedure (15 Feb 1987) paragraph 25-5e(2). It follows

that—whether the defense contention is correct that the

evidence was inadmissible for the reasons stated by trial

counsel—it was clearly admissible to show the circum-

stances surrounding the commission of the crimes.'

We find the facts of this case clearly distinguishable

from those in United States v. Wingart, a lynchpin of the

defense effort. In Wingart, the Court of Military Appeals

found the military judge erred in admitting slides “of a

former young neighbor girl who was an Air Force de-

pendent ... in various stages of undress and in provoca-

tive poses.” The photographs had been discovered by the

appellant’s ex-wife approximately three years earlier.

United States v. Wingart, 27 M.J. at 131. Stale, three-year

old material is a far cry from the probative “facts and

circumstances” data present in the instant case.’

1 Appellate Government counsel insist that the testimony was

perfectly admissible as relevant aggravating evidence, probative

on the issues of treatment and length of confinement. In particular,

the prosecution emphasizes, the subsequent testimony of Dr. Nancy

Slicner, a child psychologist, shows that when children from inside

the home reach a safe haven, other children might be at risk unless

the offender has been placed into a good treatment program.

2 Because of our disposition of this evidentiary issue, we need

not address the proposition that any possible legal error would be

harmless. As to this matter, we note that this appellant was found

guilty of indecent acts occurring over a two and one-half year

period. His crimes included fellatio and cunnilingus, fondling his

daughter, masturbating in front of her, rubbing his penis against

her anus and rubbing her vaginal area with a feather duster. This

abuse occurred almost daily. The appellant called his child a tramp

and a whore; he threw money at her. She testified that she feared

10a

Sentence Appropriateness

We now address the matter of appropriateness of sen-

tence. The appellant was subject to a dishonorable dis-

charge, 54 years of confinement, and accessory penalties.

The military judge sentenced him to a dishonorable dis-

charge and 40 years confinement; he imposed no forfeit-

ures and reduced the appellant to airman first class.

It has been aptly said that it is no accident that Justice

holds the scales in one hand and the sword in the other.

The sword without the scales is brute force; the scale

without the sword is but empty theory. Both belong

together.* We observe that there is perhaps no type of

offense more repugnant than sexua] abuse involving one’s

own child. In our review of an appropriate sentence, we

have found no Air Force case for which similar child

abuse offenses—however heinous—include such a lengthy

term of confinement. See, for example, United States v.

Saul, 26 M.J. 568, 575 (A.F.C.M.R.1988)., Considering

the entire record, we find appropriate only so much of

the sentence as extends to a dishonorable discharge, con-

finement for 30 years, and reduction to airman first class.

The findings of guilty and the sentence as modified, are

AFFIRMED.

Senior Judge BLOMMERS and Judge MURDOCK con-

cur.

him as a violent individual. It is indeed difficult to imagine many

acts more vile between a parent and child. Furthermore, the victim

has been in therapy and still has frequent nightmares. Dr. Slicner,

a government witness, testified that the victim will have a difficult

time overcoming the abuse in the future. Dr. Slicner further opined

that this was one of the most severe cases she had seen in her

extensive work with child abuse victims.

3 See R. Von Ihering, The Struggle for Law (Chicago; 1897)

pp. 1-2.

WT U.S. GOVERNMENT PRINTING OFricE; 1995 297283 62121