Air Force Court of Criminal Appeals reverses conviction for sexual assault of two stepdaughters based on military judge error.

Recently, in United States v. Fetrow, the Air Force Court of Criminal Appeals (AFCCA) reversed an appellant’s conviction for sexual assault of his two stepdaughters, finding that the military judge wrongfully admitted other evidence regarding interactions with his biological daughter.  At appellant’s court-martial, appellant was convicted of sexually abusing his two stepdaughters based on the testimony of just one of the stepdaughters.  Prior to the court-martial, one of the stepdaughters recanted her allegations and refused to testify.  However, at the court-martial, the other stepdaughter testified that appellant sexually abused her and also testified that she witnessed appellant abuse her sister three times.  Also, during this court-martial, the government introduced evidence from appellant’s biological daughter.  Appellant’s biological daughter was 17 years old at the time of his court-martial.  She testified regarding three incidents.  First, she stated that when she was about 3 or 4 years old, appellant put her in a bedroom closet while he had sex with a woman and that she could see the sexual encounter.  Second, appellant’s daughter testified that around the same time appellant touched her upper thigh seductively when they were building tents to play in.  Finally, appellant’s daughter testified that when she was 8 or 9 years old appellant exposed his penis to her while he was running some bath water.  She stated he had removed his pants, but not his shirt and was testing the water with his foot.  Military Rules of Evidence (MRE) 414 permits the admission of evidence of “any other offense of child molestation” to show propensity to commit a charged act of “child molestation.”  The military judge in appellant’s court-martial allowed the evidence from his biological daughter to be presented based on MRE 414.  The AFCCA however, determined that the first and third offenses described by the biological daughter constituted indecent exposure and were just not similar enough to the offense of child molestation.  Therefore, the AFCCA determined that the first and third offenses described by appellant’s biological daughter should not have been admitted as “propensity evidence” under MRE 414.  The AFCCA further determined that the military judge’s error was not harmless, but instead was prejudicial to appellant.  In making this conclusion, the AFCCA looked at the fact that the government relied heavily on those two improperly admitted incidents during their opening and closing arguments.  At his court-martial, appellant received 25 years confinement, reduction to E1, forfeiture of all pay and allowances and a dishonorable discharge.  Now, based on the AFCCA decision this conviction and sentence are reversed and the appellant may be retried.  Given the passage of time, it may be difficult for the government to produce the same evidence that was produced during the initial court-martial.  A rehearing will most likely require finding the stepdaughter that testified originally and having her go through that testimony again.  This may prove difficult.  This case demonstrates that being found guilty at a court-martial does not mean your defense is over.  It also shows that an appeal may be found in error made by the military judge in the court-martial.  Military appellate courts are there to review legal issues and I am here to help you determine what issues are ripe for review.  If you are facing a court-martial or would like to appeal your court-martial, but you are not sure what issues should be raised, I am here to help.  I have the experience you need and I will know what the best arguments are in your specific court-martial and/or appeal.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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