David Wright III Senior Airman U.S. Air Force Convicted Sex Offender Indecent Assault

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Name: David Wright III

Case: U.S. v. Wright No. 99-0318

Date Of Appeal: October 20, 1999

Plea: Not Guilty

Charges: Indecent assault

Military Branch: U.S. Air Force

Listed In National Sex Offenders Registry? NO

Appellant was tried by a general court-martial from March 26 to 29, 1997, at Kadena Air Base, Japan. He was convicted in accordance with his pleas, of indecent assault on Airman First Class (A1C) P in October 1996; and contrary to his pleas, of indecent assault1 on A1C D in April 1996; housebreaking2 of the dormitory room of A1C P in October 1996; and assault consummated by a battery3 on A1C D in August 1996, in violation of Articles 134, 130, and 128, Uniform Code of Military Justice, 10 USC §§ 934, 930, and 928, respectively. A panel composed of officer members sentenced him to a bad-conduct discharge, confinement for 6 months, 3 months’ hard labor without confinement, and reduction to the grade of E-3. The convening authority approved the sentence except for hard labor without confinement exceeding one month.

In this case the Government sought to use evidence pertaining to the indecent assault on A1C P in October 1996 as propensity evidence to prove that appellant also indecently assaulted A1C D in April 1996. Trial defense counsel conceded that evidence of the assault on A1C P would properly come in under Mil.R.Evid. 404(b) to prove intent with respect to the charge of housebreaking of AlC P’s dormitory room. The defense made a motion in limine, however, to protest admission of such evidence to prove propensity and to request that the military judge "preclud[e] trial counsel and any Government witness from testifying about, mentioning or otherwise alluding to the proffered evidence."

Trial counsel asserted that the propensity evidence was admissible in order to prove the accused’s intent to sexually assault A1C P after breaking into her room. Noting that the members would already know of the assault by virtue of appellant’s guilty plea to that assault, trial counsel reasoned that "Rule 403 should not exclude the evidence because it’s going to be in front of the members anyway, hence any prejudicial impact is going to be there, no matter what."

Trial counsel supported its admission to prove propensity under Rule 413, noting the misconduct evidence was charged, so it was not subject to Mil.R.Evid. 404(b).

The military judge determined that the alleged assault against A1C P could be admitted for the purpose of demonstrating appellant’s propensity to commit similar sex offenses as charged. The following findings of fact and law were made:

1. The Accused has been found guilty, pursuant to his pleas, of unlawful entry of Airman [P]’s dormitory room on 18 October 1996 and indecent assault on Airman [P] once he was inside the room.

2. The indecent assault occurred while Airman [P] was asleep on her bed in the early morning hours at approximately 0500. The Accused committed the assault by placing his hand inside her underwear and touching her vaginal area.

3. The Accused is also charged with rape of Airman [D] on 26 April 1996, indecent assault of Airman [D] in August 1996, as well as housebreaking of Airman [P]’s room on 16 [sic] October 1996, that is, unlawfully entering her room with the intent to commit the criminal offense of indecent assault.

4. In order to prove the housebreaking offense, the facts of the indecent assault to which the accused has pleaded guilty would be entered into evidence as part of the facts and circumstances surrounding the commission of the offense to try and prove the Accused’s intent.

5. With regard to the alleged rape, the proffer in Trial Counsel’s brief states that Airman [D] will testify that the alleged rape occurred while she was asleep in the early morning hours. This allegedly occurred approximately six months prior to the indecent assault of Airman [P].

6. With regard to the alleged indecent assault of Airman [D], it is proffered that she will testify that the assault occurred when the Accused placed his hand on her vaginal area when she was bending over at work in the Dental Clinic. This allegedly occurred approximately two months prior to the assault on Airman [P].

7. In the instant case, it is charged misconduct that the Government contends the triers of fact should be entitled to consider for its bearing on the offenses to which the Accused has pleaded not guilty.

8. The spill over instruction states that each offense must stand on its own, and the trier of fact must keep the evidence of each offense separate. In other words, proof of one offense carries with it no inference that the Accused is guilty of any other offense.

9. Subsequently, M.R.E. 413 was enacted which states that [sic] in a criminal case in which a defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible and may be considered for its bearing on any matter which is relevant. In other words, even uncharged misconduct of another sexual assault could be admissible to show an Accused’s propensity to commit the charged sexual assault.

10. The Court finds that the indecent assault committed upon Airman [P] on 18 October 1996 - and I may have misspoke and said 16 October in one of my earlier findings, but I meant 18 October. The Court finds that the indecent assault committed upon Airman [P] on 18 October 1996 may be considered by the Court members, along with any other evidence properly admitted on the other charged offenses, for its bearing on the guilt or innocence of the Accused.

The Court finds that the indecent assault is a charged offense which will be admitted into evidence in order to try and prove the Specification of Charge II, that it is sufficiently similar to the alleged rape in that it occurred in the early morning hours while the victim was asleep, that it is sufficiently similar to the alleged assault on Airman [D] in that it involved an assault by touching the vaginal area, and that the indecent assault of Airman [P] was sufficiently proximate in time to the other offenses, so therefore the probative value of considering this sexual assault for its bearing on the other offenses is not substantially outweighed by the danger of unfair prejudice.

What I will do is devise a modified spill over instruction because I still intend to advise the Court members of the spill over instruction and that, while they may consider this evidence for its possible bearing on the other offenses, they must do so with caution in view of the concern expressed in the spill over instruction.

In conclusion, the military judge asserted the constitutionality of Rule 413, recognizing other jurisdictions’ allowance of admission of such evidence.