United States v. Cannon, No. ARMY 20180580, 2020 BL 294916 (A. Ct. Crim. App. July 31, 2020)
A military judge sitting as a general court-martial convicted appellant of one specification of desertion and one specification of absence without leave (AWOL) terminated by apprehension, in violation of Articles 85 and 86, Uniform Code of Military Justice, 10 U.S.C §§ 885 and 886 [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for twenty-four months, and reduction to the grade of E-1. On appeal, appellant asserts that he was prejudiced when the military judge considered inadmissible sentencing evidence. In a unanimous opinion, the court found that appellant was prejudiced with the admission of erroneous evidence.
Government’s Rebuttal and the Testimony of Command Sergeant Major (CSM) TD
To rebut testimony that appellant was a “good soldier,” Command Sergeant Major TD explained the basis for this disagreement by citing investigations related to appellant's alleged misconduct. Also in rebuttal, the government sought to introduce five “Prosecution Exhibits” evidencing appellant’s criminal history, which included many uncharged acts of misconduct. The military judge admitted the evidence saying the defense had “opened the door.”
On appeal, the Court found that the military judge “erred when she allowed CSM TD to testify about specific instances of uncharged misconduct by the accused, which involved a positive urinalysis, theft from the mailroom, and drinking in violation of an order.” The Court conceded that the government was permitted to attack the witnesses’ opinion, but was not permitted to introduce extrinsic evidence of these specific instances, which were not otherwise admissible under any basis allowed by Rule for Courts-Martial [R.C.M.] 1001(b).
Regarding the admission of the instances of uncharged conduct, the Court found that the military judge did not err. The Court explains that “the military judge explicitly indicated that she would not consider any portion of Pros. Ex. 9 other than information pertaining to his civilian convictions, which were otherwise admissible under R.C.M. 1001(a)(1)(A)(iii). Thus, even if the military judge erred by admitting portions of Pros. Ex. 9, we are confident that any error is harmless given her stated limitation to consider only the convictions.”
The Kerr Test
In evaluating the influence of erroneously admitted evidence the Court weighed the following factors: (1) the strength of the Government's case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question." United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017) (citing United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)).
Applying the Kerr factors, the Court found that “appellant was prejudiced by the introduction of various acts of uncharged misconduct. The cumulative nature of the substantial amount of uncharged misconduct, coupled with the government's specific argument asking the military judge to consider the uncharged misconduct, compels us to find that the erroneous evidence impacted the adjudged sentence.”
The Court affirmed the sentence for a bad-conduct discharge, confinement for twenty-three months, and reduction to the grade of E-1 and set aside any remaining portions.
 The opinion was authored by Judge Salussolia.
 To include: (1) a positive urinalysis, (2) theft of credit cards from the unit mailroom, and (3) drinking alcohol in violation of an order.
 A criminal history of civilian arrests that resulted in “a few” convictions (Pros. Ex. 9), appellant’s civilian arrest history and report relating to his desertion and initial AWOL (Pros. Ex. 10), an excerpt of a CID report pertaining to appellant's positive urinalysis for methamphetamines, which was never charged (Pros. Ex. 11), and “[CID’s] final reports stating not only that appellant was the subject of the charged AWOL and desertion offenses, but also that he was the subject of several uncharged UCMJ violations, including larceny of private funds, larceny of mail, making a false official statement, and failure to obey a regulation (Pros. Ex. 12-13)”