The first granted issue in Burton is whether the trial counsel improperly argued that Staff Sergeant Burton had a propensity to commit sexual offenses. "The charges against the appellant arose from his alleged improper sexual conduct with two women: first, with SS while he was on leave in Venice, Italy, in September, 2000, and second, with Senior Airman (SrA) H, in Tachikawa City, Japan, in February, 2004." United States v. Burton, No. ACM 36296, slip op. at 2 (A.F. Ct. Crim. App. July 16, 2007). During his findings argument, the trial counsel "urg[ed] the members to compare the testimony from both of the alleged victims, and to use that testimony to examine the appellant's method of operation and his propensity to engage in sexual assault." Id., slip op. at 5. The trial defense counsel didn't object to the argument, so the issue was governed by a plain error standard. Here is Judge Thompson's analysis for AFCCA:
While arguments that an accused has a propensity to commit an offense are generally prohibited, an exception has been made in the case of sexual assault. Under Mil. R. Evid. 413, other acts of sexual assault may be introduced for expansive purposes, including propensity. While Mil. R. Evid. 413 most often deals with prior sexual acts not charged in the ongoing proceedings, it is useful to analyze the present case in terms of Mil. R. Evid. 413. See, e.g., United States v. Myers, 51 M.J. 570 (N.M. Ct. Crim. App. 1999). Where trial counsel's argument regarding propensity could have been made pursuant to Mil. R. Evid. 413 with uncharged prior sex acts, we find it is not plain error to make the same arguments when the prior sex acts are charged offenses.
We further find that the trial counsel's argument did not result in any material prejudice to the rights of the appellant. The trial counsel's argument spans 16 pages in the record of trial. During the course of the argument the trial counsel used the word "propensity" only twice, and while doing so he informed the members "I don't intend for you to take proof of one offense to find him guilty of another . . . ." We consider the argument of a trial counsel in context, and not in isolation. United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000). Viewed in context of the entire court-martial, we are convinced beyond a reasonable doubt that the trial counsel's comments did not prejudice a substantial right of the appellant.
Id., slip op. at 6.
The second granted issue deals with the military judge's responsibility to instruct the members about the use of propensity evidence. The military judge gave a standard spillover instruction. The trial defense counsel neither objected to the spillover instruction nor asked for further propensity instructions. Judge Thompson wrote:
[W]e find the military judge's instruction was sufficient to inform the members how they should view the evidence. Even assuming, arguendo, that the military judge should also have given further instructions specifically mentioning propensity, his failure to do so did not result in material prejudice to a substantial right ofId., slip op. at 7.
Although charged with attempted rape, forcible sodomy, and indecent assault against SS, the members found him guilty only of consensual sodomy and indecent acts. This suggests that the members were not unduly swayed to convict the appellant by the military judge's failure to provide a specific propensity instruction. See, e.g., United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007). Based on the totality of the evidence, the member's findings, and the spillover instruction given the members by the military judge, we are convinced beyond a reasonable doubt that the lack of a specific propensity instruction did not contribute to the appellant's conviction.
Those conclusions are now pending before CAAF.