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v.
Rob B. YAMMINE, Sergeant
U.S. Marine Corps, Appellant
No. 09-0720
Crim. App. No. 200800052
United States Court of Appeals for the Armed Forces
Argued March 4, 2010
Decided June 10, 2010
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ., joined. BAKER, J., filed a
separate opinion concurring in the result.
Counsel
For Appellant:
Military Judge:
Raymond E. Beal II
The
Facts
JP said
Okay, put his bicycle into the trunk of Appellants car, and
the two drove together to Appellants barracks.
Afterwards, Appellant
JP called
that the two talked in his room for about ten to fifteen
minutes, he stated that his door was not even closed during that
brief period because the air conditioner was broken.
On July 23, 2006, JP relayed his version of the events to
his brother-in-law, who contacted the military police.
The case
JP
During a consensual
DCFL
discovered three types of evidence on the hard drive -filenames, one frame of a movie file, and remnants of Internet
searches using the term Lolita.
deleted and overwritten.
All that
Id. at 730
Id. at
726.
II.
Discussion
A.
M.R.E. 414
M.R.E. 414.
While we review a
DeCologero, 530 F.3d 36, 58 (1st Cir. 2008), cert. denied, 129
S. Ct. 513 (2008) (citing United States v. Munoz-Franco, 487
See United States v. Seymour, 468 F.3d 378, 385 (6th Cir.
2006).
Yammine, 67 M.J. at
Id.
10
bestiality;
(3)
masturbation;
(4)
United States v.
M.R.E. 414, the filename evidence must fall within the specific
definition of an offense of child molestation set out in
M.R.E. 414.
Id.
11
We
have noted before the inherent tension between the Rule and
traditional concerns regarding convictions based on bad
character evidence.
Id.
Thus, we have
Id.
12
M.R.E.
M.R.E.
These
Thus,
The military
But while
13
See,
Yammine, 67 M.J. at
This includes
14
See
By
M.R.E. 101(b)(1).
M.R.E. 404(b)
That
It
M.R.E.
16
17
In this case,
the military judge performed his M.R.E. 401, M.R.E. 402, and
M.R.E. 403 analyses under the assumption that the evidence was
admissible in the first instance under M.R.E. 414, and he did
not separately undertake the three-part Reynolds test before
admitting the uncharged misconduct under M.R.E. 404(b).
We will assume without deciding that the filename evidence
reasonably supported a determination by the factfinder that . . .
appellant committed the prior misconduct of possession or
attempted possession of child pornography.
Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006).
United States v.
What remains
18
M.R.E. 404(b).
The military
United
But the
And
the military judge, because the evidence was treated first and
foremost as M.R.E. 414 evidence, rather than as M.R.E. 404(b)
evidence, allowed it to be used expansively.
19
10 U.S.C. 859(a) (2006) (A finding or sentence of a courtmartial may not be held incorrect on the ground of an error of
law unless the error materially prejudices the substantial
rights of the accused); Thompson, 63 M.J. at 231.
The question
See United
In
(1) the
Id. (citing
When
20
Id.
the filename evidence, which had nothing to do with JP, for its
tendency, if any, to show the accuseds propensity to engage in
sodomy or indecent acts or liberties with a child.
And they
The
Id. at 730.
While the
Decision
22
The
The record
Therefore,
This, in my view, is
M.R.E. 414(d)(2).
Citing
By analogy, this
omitted).
The Courts conclusion rules out the possession of any
child pornography as a qualifying offense under the rule unless
the accused himself is physically engaged in the child
pornography with the victim in a picture or video.
This
The