Petition for Writ of Certiorari — Banker v. United States (No. 06-1544)

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IN THE

Supreme Court of the United States

STAFF SERGEANT GREGORY P. BANKER.

Petitioner

UNITED STATES OF AMERICA.

Respondent

On Petition for Writ of Certiorari to the

Cnited States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JOHN S. FREDLAND MARK R. STRICKLAND

CAPTAIN, US. AIR FORCI Lr CoLoNnec, U.S. AIR FORCI

Counsel of Record Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE LEGAL OPFRATIONS AGENCY

112 LUKE AVENUE, Strre 343

BOLLING AFB. DC 20332-8000

(202) 767-1562

May 2007

QUESTION PRESENTED

A general court-martial tried and convicted the

petitioner, an active duty member of the United

States Air Force, of two specifications of sodomy

with LGG under Article 125, Uniform Code of

Military Justice. The first specification covered acts

allegedly occurring when LGG was “under the age

of 16°: the second addressed acts allegedly

occurring when. LGG was age 16-19. After this

Court’s ruling in Lawrence v. Texas, 539 U.S. 558

(2003), the Air Force Court of Criminal Appeals

affirmed the petitioner’s conviction for the second °

specification on the grounds that the petitioner’s

“progressive grooming of his — subordinate

babysitter, when she was 14 and 15 years old,

spawned a relationship where [LGG’s] consent at

the age of 16 and older might not easily be refused.”

United States v. Banker, 63 M.J. 657, 660 (A.F. Ct.

Crim. App. 2006). The Court of Appeals for the

Armed Forces summarily granted and affirmed the

Court of Criminal Appeals’ ruling. The question

presented in this case is:

Whether the Court of Criminal Appeals denied the

petitioner's right to advance notice of the nature and

cause of the accusation against him and right to

have all essential facts determined by a panel of

members beyond a reasonable doubt when it used a

“grooming finding, neither alleged in the

specification nor presented and contested at trial, to

affirm his conviction for the alleged acts of

consensual sodomy when LGG was age 16-19?

TABLE OF CONTENTS

Page

TABLE QF AUs PPR PIR eS BRGP csccschcisccsvssanisasessscceess. IV

OP TIT eee bide piathastatesgwinsasisrssssccesss. |

FUT EIE Re raat ar ethtirenetaictavesssss.. l

CONSTITUTIONAL AND STATUTORY

PRO VIUESIOINSS FIA VIFE HIER sisncsisesnceeccsssencsenesssens |

STATE MEELIS Gib Fate Seis ccsenaversscpssarssrccccscccss 2

REASONS FOR GRANTING THE WRIT ............ 7

I. THE AIR FORCE COURT OF

CRIMINAL APPEALS DENIED THE

PETITIONER’S RIGHT TO ADVANCE

NOTICE OF THE NATURE AND

CAUSE OF THE ALLEGATION

AGAINST FREI vcsscasesecessvensestenccsccccsceesesezes 8

Ii. THE AIR FORCE COURT OF

CRIMINAL APPEALS DENIED THE

PETITIONER’S RIGHT TO HAVE ALL

ESSENTIAL FACTS DETERMINED BY

A PANEL OF MEMBERS BEYOND A

REAONABLE DOUBT. ...........cccscseesesees 10

CONC UII Fr ey centre erat itisanatscanvaciasess.. 12

APPENDIX A

Opinion of the United States Air Force Court of

Criminal Appeals (8 October 2002)...................... la

APPENDIX B

Opinion of the United States Court of Appeals for

the Armed Forces (23 August 2004)................... 29a

APPENDIX C

Opinion of the United States Air Force Court of

Criminal Appeals (29 June 2006) ............0......... 62a

APPENDIX D

Opinion of the United States Court of Appeals for

the Armed Forces (20 February 2007)................ 75a

TABLE OF AUTHORITIES

Page

Constitutional Provisions

ee ASS NOE Eee: 2

es ae 2,11

fe SE epee een he me Oe See D ese InN 2

Decisions of the Supreme Court of the United

States

Apprendi v. New Jersey, 530 U.S. 466 (2002)......10

Blakely v. Washington, 542 U.S. 296 (2004) .....9-10

Dunn v. United States, 442 U.S. 100 (1979)......9-10

Lawrence v. Texas, 539 U.S. 558 (2003).......... 3.6-9

Ring v. Arizona, 530 U.S. 466 (2000)..............0..... 10

Weiss v. United States, 510 U.S. 163 (1994)......9-10

Military Court Decisions

United States v. Banker,

63 M.J. 657 (A.F. Ct. Crim. App. 2006)....... 1.6-8

United States v. Banker,

GO BAS. ZIG CAA. PO iiss ciceesisciescsicccssn 1,6

United States v. Banker,

57 M.J. 699 (A.F. Ct. Crim. App. 2002).......... 1.6

United States v. Marcum,

OP O41. FSSC. ALA. BORD... ccciccseecccccsscccs 6.9

United States v. New,

nk eS ae | | |) en 10

Federal Statutes

BR Brees I a iksjp aon Socoakkansps noma dees eacdaanipstdes

GN e Sa +. REAR earn Seton NITE ORI Oe oe

Be ry Oe i insula sac ciciols bach aaieonsaee ea epaneanens 3-4

*: LA eS SSE Oe ©. ERR AERPerenbs srIcNTttn Ramla Sater aON MHRNSE I |

Miscellaneous

Manual for Courts-Martial, United States (MCM).

er isis acsscctssuicantonnieese anne 4-5

The petitioner, Staff Sergeant Gregory P. Banker,

respectfully prays that-a writ of certiorari issue to

review the order and judgment of the United States

Court of Appeals for the Armed Forces entered in his

case on February 20, 2007.

OPINIONS BELOW

The Air Force Court of Criminal Appcals’

earlier opinion is reported at 57 M.J. 699 (Appendix

A). The Court of Appeals for the Armed Forces’

opinion is reported at 60 M.J. 216 (Appendix B).

The-Court of Criminal Appeals’ opinion on remand

is reported at 63 M.J. 657 (Appendix C).

JURISDICTION

On February 20, 2007, the Court of Appeals for

the Armed Forces granted the petitioner's petition

for grant of review of the Court of Criminal

Appeals’ decision and affirmed the lower court.

(Appendix D) The jurisdiction of this Court ts

invoked under 28 U.S.C. § 1259(3) and 10 U.S.C. §

867a(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides that “[nJo person shall ...be

deprived of life, liberty or property, without due

process of law....”. The Sixth Amendment to the

United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed...and to be informed of the

nature and cause of the accusation....” The

Fourteenth Amendment to the United States

Constitution provides that “nor shall any State

deprive any person of life, liberty or property,

without due process of law....”

Article 66, Uniform Code of Military Justice

(UCMJ), Section 866 of Title 10, United States

Code [hereinafter Article 66], provides:

...In a case referred to it, the Court

of Criminal Appeals may...affirm

only such findings of guilty...as it

finds correct in law and fact and

determines, on the basis of the entire

record, should be approved. In

considering the record, it

may...defermine controverted

questions of fact:...

Article 125, UCMJ, Section 925 of Title 10,

United States Code [hereinafter Article 125],

provides:

...Any person subject to this chapter

who engages in unnatural carnal

copulation with another person of the

same or opposite sex or with an

animal is guilty of sodomy.

STATEMENT OF THE CASE

A general court-martial tried and convicted the

petitioner, an active duty member of the United

States Air Force. of two specifications of sodomy

with LGG under Article 125, UCMJ. The first

specification covered acts allegedly occurring

when LGG was “under the age of 16°: the second

addressed acts allegedly occurring when LGG was

age 16-19. Subsequently, this Court issued its

opinion in Lawrence y. Texas, 539 U.S. 558 (2003),

ruling that a Texas statute criminalizing certain

intimate acts between consenting adults violated the

Due Process Clause of the Fourteenth Amendment.

The Air Force Court of Criminal Appeals responded

by affirming the petitioner’s conviction for the

second specification on the grounds that his

“progressive grooming of his subordinate

babysitter, when she was 14 and 15 years old.

spawned a relationship where [L.GG’s] consent at

the age of 16 and older might not easily be refused”

— even though the government did not include that

theory in the specification or present it to be

contested at trial. Because this ruling denied the

petitioner his right to advance notice of the nature

and cause of the accusation against him and right to

have all essential facts determined by a panel of

members beyond a reasonable doubt, it merits

review. |

1. Factual Background

In the summer of 1999, LGG, who had babysat

the petitioner's two children from December 1994

‘ty 1999, accused the petitioner of a variety of

Scacal Offenses. See R. 178, 197-98. The

convening authority referred several charges and

specifications against the petitioner, including the

two specifications of Charge II under Article

125, UCMJ:

SPECIFICATION 1: In that STAFF

SERGEANT GREGORY P.

BANKER, United States Air Force,

82d Medical Support Squadron,

Sheppard Air Force Base. Texas, did.

at or near Sheppard Air Force Base,

Texas, and ator near Wichita Falls,

Texas, on divers occasions between

on or about 23 August 1995 and on

or about 27 April 1996, commit

sodomy with [LGG], a child under

the age of 16 years.

SPECIFICATION 2: In that STAFF

SERGEANT GREGORY P.

BANKER, United States Air Force,

82d Medical Support Squadron,

Sheppard Air Force Base, Texas, did.

at or near Sheppard Air Force Base,

Texas, and at or near Wichita Falls,

Texas, on divers occasions between

on or about 28 April 1996 and on or

about | July 1999, commit sodomy

with [LGG].

See R. 9.1. Article 125, UCMJ defines “sodomy”

as “unnatural carnal copulation with another person

of the same or opposite sex or with an animal”; the

Manual for Courts-Martial further defines

“unnatural carnal copulation” as occurring when a

person “take[s] into that person’s mouth or anus

the sexual organ of another person or of an animal;

or [places] that person’s sexual organ in the mouth /

or anus of another person or of an animal; or [has]

carnal copulation in any opening of the body,

except the sexual parts, with another person; or

{has} carnal copulation with an animal.” Manual

for Courts-Martial, United States (MCM), Part IV,

{ 51(c) (2005 ed.). Because LGG was born on 28

April 1980, she was at least 16 years old during the

time frame of Specification 2. See R. 177.

The petitioner elected to be tried before a panel

of officer and enlisted members; he pled not guilty

to all charged offenses. See R. 9-10. At trial, LGG

testified that the petitioner had performed oral

sodomy on her “[a] few” times between October

1995 and July 1999, that she had performed oral

sodomy on him “{sjeveral” times between

approximately October 1995 and July 1999, and

that he had performed anal sodomy on_ her

“{sJeveral” times between summer 1996 and July

1999. See R. 178, 189-92, 195-96.

2. Proceedings Below

On February 9, 2001, the panel of officer and

enlisted members found the petitioner guilty of both

specifications of the sodomy charge, as well as

snecifications of indecent acts with a person under

10, indecent acts with another and adultery. See R.

317-318. The panel sentenced him to a bad-conduct

discharge, two years of confinement and reduction

to the lowest enlisted grade. See R. 354. The

convening authority approved the adjudged findings

and sentence. See General Court-Martial Order No.

19, dated 20 April 2001, Record of Trial, Vol. 1.

The petitioner appealed to the Air Force Court

of Criminal Appeals, which modified the language

of his conviction for indecent acts with a person

under 16 and set aside and dismissed his conviction

for indecent acts with another. United States v.

Banker, 57 M.J. 699 (A.F. Ct. Crim. App. 2002).

He then appealed to the Court of Appeals for the

Armed Forces. While his appeal was pending, this

Court issued its opinion in Lawrence vy. Texas; the

Court of Appeals for the Armed Forces responded

with United States v. Marcum, 60 MJ. 198

(C.A.A.F. 2004), an attempt to apply Lawrence’s

framework to Article 125, UCM/J.

In light of its opinion in Marcum, the Court of

Appeals for the Armed Forces elected to return the

petitioner’s case to the Air Force Court of Criminal

Appeals for consideration of a supplemental issue:

“WHETHER APPELLANT’S CONVICTION FOR

VIOLATING ARTICLE 125, UCMJ. BY

ENGAGING IN CONSENSUAL SODOMY

MUST BE SET ASIDE IN LIGHT OF THE

UNITED STATES SUPREME COURT'S

HOLDING IN LAWRENCE V. TEXAS, 123 S.CT.

2472 (2003).” United States v. Banker, 60 M.J. 216

(C.A.A.F. 2004). On 29 June 2006, the Court of

Criminal Appeals affirmed the same findings and

sentence that it had affirmed in its 2002

opinion. United States v. Banker, 63 M.J. 657 (A.F.

Cr. Crim. App. 2006). The Court made the judicial

finding that the petitioner's “progressive grooming

of his subordinate babysitter, when she was 14 and

1S years old, spawned a relationship where [LGG’s]

consent at the age of 16 and older might not easily

be refused.” Appendix C, page 64a. Consequently,

the Court concluded that the petitioner's alleged

conduct with LGG when she was age 16-19 fell

outside of the liberty interest that this Court

identified in Lawrence. See id., page 63a.

On February 20. 2007, the Court of Appeals for

the Armed Forces granted the petitioner's petition

for grant of review of the Air Force Court of

Criminal Appeals’ decision and affirmed the lower

court in asummary opinion. Appendix D.

REASONS FOR GRANTING THE WRIT

This Court's ruling in Lawrence renders the

petitioner's conviction of Specification 2 of Charge

Il unconstitutional. The specification did not allege

that LGG was a minor. It did not allege that LGG

was susceptible to injury or coercion. It did not

allege that LGG was situated in a relationship where

consent might not easily be refused. It did not

allege public conduct or prostitution. It did not

allege that the petitioner had somehow “groomed”

LLGG for these acts.

At trial, the members heard LGG’s description

of the alleged acts. They did not hear expert

testimony about how the relationship between the

petitioner and LGG or their disparity in age may

have impacted LGG’s ability to consent. No

witness provided evidence of what constitutes

“grooming,” how long it lasts, and whether LGG

could make her own decisions at age 16. Upon

hearing the evidence, the members found the

petitioner guilty of consensual sodomy — essentially

the same offense that this Court regarded as

constitutionally infirm in Lawrence.

Nevertheless, the Air Force Court of Criminal

Appeals affirmed the petitioner's conviction. The

Court based its ruling on the judicial finding that the

petitioner's “progressive grooming of his

subordinate babysitter, when she was 14 and 15

years old, spawned a relationship where [LGG’s]

consent at the age of 16 and older might not easily

be refused.” Its approach contravened two

Constitutional guarantees: advance notice of the

“nature and cause of the accusation” and the right to

have a jury of members find every essential fact

beyond a reasonable doubt. These flaws demand

reversal of the petitioner's conviction.

I. THE AIR FORCE COURT OF CRIMINAL

APPEALS DENIED THE PETITIONER’S

RIGHT TO ADVANCE NOTICE OF THE

NATURE AND CAUSE OF THE

ALLEGATION AGAINST HIM

As drafted. the specification gave the

petitioner notice that he would have to defend

against LGG’s accusations that he had committed

sodomy with her between 28 April 1996 and | July

1999. It failed to provide notice that he had to

defend against any of the factors articulated in

Lawrence ot Marcum, or any of the theories that the

government might draw from those factors. It

failed to provide notice that he might have to cross-

examine witnesses or call experts to rebut those

factors or theories, testify against them on his own

behalf, or argue against them in closing argument.

As this Court indicated in Blakely vy.

Washington, 542 U.S. 296, 341 (2004), “an

accusation which lacks any particular fact which the

law makes essential to the punishment. is...no

accusation within the requirements of the common

law, and it is no accusation in reason.” Concededly,

this Court has ruled that not every civilian-court due

process protection must be transplanted into the

military setting; the test is "whether the factors

militating in favor of [a given due process

safeguard] are so extraordinarily weighty as to

overcome the balance struck by Congress." Weiss

v. United States, 510 U.S. 163, 178 (1994).

Nevertheless, this Court's precedent demands the

conclusion that the notification requirement is

necessary for a fair court-martial: in Dunn v. United

States, 442 U.S. 100. 106-07 (1979), this Court

concluded that “|f]Jew constitutional principles are

more firmly established than a defendant's right

to be heard on the specific charges of which he is

accused...” By affirming the _ petitioner’s

conviction based on a “grooming” theory, the Court

of Criminal Appeals disregarded this fundamental

aspect of our criminal justice system.

Il. THE AIR FORCE COURT OF CRIMINAL

APPEALS DENIED THE PETITIONER’S

RIGHT TO HAVE ALL ESSENTIAL FACTS

DETERMINED BY A PANEL OF MEMBERS

BEYOND A REASONABLE DOUBT

Moreover, the Court of Criminal Appeals

violated the petitioner’s right to have all essential

facts determined by a panel of members beyond a

reasonable doubt. It is true that the Court of

Appeals tor the Armed Forces has ruled that the full

Sixth Amendment right to a jury trial does not apply

in courts-martial. See United States v. New, 55 M.J.

95, 104 (C.A.A.F. 2001). Nevertheless. this Court

has been adamant about the unconstitutionality of

sentencing arrangements that included mixed jury-

judge fact-finding. See, e.g., Blakely, 542 U.S. 296;

Ring v. Arizona, 536 U.S. 584 (2002): Apprendi v.

New Jersey, 530 U.S. 466 (2000). This Court's

emphasis on the deeply seated Constitutional

-underpinning of this right suggests that it, like the

notice requirement, is “extraordinarily weighty”

enough, under this Court’s formulation in Weiss, for

due process to require it.

The military judge did not ask the members

to make any relevant findings beyond whether the

petitioner and LGG had committed consensual

sodomy between 28 April 1996 and 1 July 1999: the

members returned no relevant findings beyond

guilty as charged. Consequently, the petitioner's

conviction currently stands on a shaky two-legged

foundation: the members’ finding that he committed

consensual sodomy and the Court of Criminal

Appeals’ finding that “grooming” produced a

relationship where LGG might not be able to refuse

consent. This is precisely the outcome that this

Court’s recent precedent should preclude.

While Article 66, UCMJ, does allow the courts

of criminal appeals some authority to determine

factual matters, the Court of Criminal Appeals’

ruling in the petitioner’s case disregarded the text

and purpose of Article 66. Whether the petitioner

“esroomed” LGG was not a controverted question of

fact at trial, subject to the procedural safeguards that

due process and the Sixth Amendment require. The

Court used Article 66 to make an end run around

the court-martial panel, not to protect the

petitioner's rights. The Court of Criminal Appeals

misused its fact-finding power to deny one of the

petitioner's most fundamental and cherished rights:

the right to have his case actually determined by a

court-martial panel. His conviction for consensual

sodomy should not stand.

CONCLUSION

The petitioner therefore respectfully requests

that this Court grant his petition for a writ of

certiorari.

Respectfully submitted,

JOHN S. FREDLAND

CaPTAIN, U.S. AIR FORCE

Counsel of Record

MARK R. STRICKLAND

LT COLONEL, U.S. ATR FORCE

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Operations Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

May 2007

Appendix A

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Staff Sergeant GREGORY P. BANKER

United States Air Force

ACM 34531

57 M.J. 699

8 October 2002

Sentence adjudged 9 February 2001 by GCM

convened at Sheppard Air Force Base, Texas.

Military Judge: Gregory E. Pavlik.

Approved sentence: Bad-conduct discharge,

confinement for 2 years, and reduction to E-1

Appellate Counsel for Appellant: Captain

Patrick J. Dolan (argued, Colonel Beverly B.

Knott, Lieutenant Colonel Timothy W. Murphy,

Major Maria A. Fried, Major Jefferson B.

Brown and Major Jeffrey A. Vires.

Appellate Counsel for the United States:

Captain Adam B. Oler (argued), Colonel

Anthony P. Dattilo and Lieutenant Colonel

Lance B. Sigmon.

Before

SCHLEGEL, BURD, and PECINOVSKY

Appellate Military Judges

OPINION OF THE COURT

BURD, Senior Judge:

On 7-9 February 2001, the appellant was

tried by general court-martial composed of

officer and enlisted members at Sheppard Air

Force Base (AFB), Texas. Contrary to his pleas,

he was found guilty of sodomy with-a child

under the age of 16 years on divers occasions

and sodomy on divers occasions, in violation of

Article 125, UCMJ, 10 U.S.C. § 925, indecent

acts with a child under the age of 16 years on

divers occasions, indecent acts with another on

divers occasions, and adultery on divers

occasions, in violation of Article 134, UCMJ. 10

U.S.C. § 934. He was found not guilty of

carnal knowledge under Article 120, UCMJ, 10

U.S.C. § 920. The court members sentenced the

appellant to a bad-conduct discharge,

confinement for 2 years, and reduction to E-1.

The convening authority approved the adjudged

sentence.

The appellant has raised three issues before

us.' The appellant attacks the legal and factual

sufficiency of the evidence on all the offenses

and claims the military judge made two separate

erroneous evidentiary rulings. We will modify

the findings on the specification of indecent acts

with a child because the evidence does not show

that the offense occurred as alleged. We agree

with the appellant that the evidence on the

offense of indecent acts with another ts not

legally sufficient and will set aside the findings

on that specification. We otherwise disagree

with the appellant’s assertions. Finally, we will

reassess the sentence. We will begin our

discussion with a statement of the relevant facts

established by the evidence.

' We heard oral argument on the issues on 29 May 2002.

The Facts

In December 1994, LG began babysitting

for the appellant and his wife.’ LG was 14 years

old at that time. Her birth date was 28 April

1980. The appellant had a son (MB), who was

then 9 years old, and a daughter, who was

younger than the son. The appellant’s spouse

(CB) worke¢ at-a business in the local

community with LG’s mother. It was through

this connection that the Bankers obtained LG’s

services as a babysitter.

LG babysat for the Bankers once or twice a

month until March 1996. At that time, LG

became, what she called, “a _ full-time

babysitter.” which meant that anytime LG and

the Bankers’ children weren’t in school, she

would be at the Bankers’ home. She often

participated in family activities, e.g., dinners,

shopping. attending church activities, watching

movies. She would occasionally stay overnight.

Sometime in early 1995, the appellant began

to sexually groom LG. While driving her home

? The appellant’s age was not introduced into evidence

until the sentencing phase of the court-martial. In

December 1994, the appellant was 34 years old.

one evening after babysitting, the

appellant parked the car while pretending to be

lost, and kissed LG and stuck his tongue into her

mouth. Apparently. the appellant interpreted

LG's reaction as a green light because he soon

advanced to deliberately brushing his hand

against her breasts and buttocks as they passed

in a hallway or doorway. He also introduced LG

to pornography by showing her magazines.

pictures on his computer, and videotapes, both

professionally made and “homemade.” Over

time, the appellant progressed to more overt

indecent acts, sodomy (both oral and anal), and

sexual intercourse. The indecent acts, sodomy,

and sexual intercourse occurred on multiple

occasions. Often, the appellant would initiate

these acts in his home while his wife was at

work and his children were playing outside or in

another part of the house. He also used a van

while driving LG home to carry out his

lasciviousness.

The appellant continued his sexual abuse of

LG until July 1999, when she _ stopped

babysitting for the Bankers. That summer, LG

saw the movie American Pie. She was disturbed

by the movie's portrayal that some men were

preoccupied “with getting females’ virginity.”

LG later asked the appellant whether the

portrayal was accurate and the appellant

confirmed that, at least for him, it was true. LG

was very upset by the appellant’s response and

she stopped babysitting for the Bankers and

engaging in sexual acts with the appellant.

After breaking off relations with the

Bankers, LG told a friend about her sexual

relationship with the appellant. The friend

recommended that LG tell her mother, which

she did. LG’s_ mother insisted on_ telling

authorities. Thereafter, the Air Force Office of

Special Investigations (AFOSI) opened an

investigation into the appellant’s activities.

When interviewed by an AFOSI agent, LG,

after initially minimizing the appellant’s

conduct, revealed the details of his acts.

Legal and Factual Sufficiency

The appellant claims that the evidence is

both legally and factually insufficient to support

the findings of guilty. This broad claim is

essentially based on the fact that all of the

appellant’s sexual misconduct is alleged to have

occurred with LG, the appellant’s assertion that

the testimony of LG is not worthy of belief, and

that her accusations are inherently improbable.

We disagree. We find the testimony of LG to be

credible. Further, when considering all the

evidence admitted on findings, we conclude

that her testimony was the truth.

The appellant makes additional claims in the

event we find LG to be credible. He asserts that

the evidence of the appellant’s sodomy with a

child on divers occasions is insufficient. The

appellant claims that the evidence on each of the

indecent acts specifications is insufficient. He

also asserts that none of the acts encompassed

within Specification 2 of Charge III were

indecent because LG was at least 16 years old,

the acts were consensual, and were not viewed

by a third person.”

“The test for legal sufficiency requires

courts to review the evidence in the light most

favorable to the Government. If any rational

trier of fact could have found the essential

elements of the crime beyond a reasonable

doubt, the evidence 1s legally sufficient.” United

States v. Reed, 54 M.J. 37, 41 (2000) (citing

Jackson yv. Virginia, 443 U.S. 307, 319 (1979)

and United States vy. Turner, 25 MJ. 324

* While we see reason to disagree with the appellant on

the issue of indecency, we need not reach this issue

because of our conclusion that the evidence 1s legally

insufficient to prove the appellant’s guilt of Specification

2 of Charge III

(C.M.A. 1987)). The test for factual

sufficiency is “whether, after weighing the

evidence in the record of trial and making

allowances for not having personally observed

the witnesses, the members of the [Court of

Criminal Appeals] are themselves convinced of

the accused’s guilt beyond a reasonable doubt.”

Turner, 25 M.J. at 325, quoted in Reed, 54 M.J.

at 41.

The appellant’s sexual misconduct with LG

occurred over four and one-half years, it started

when I.G was 14 and continued until she was

19. The allegations of sodomy and indecent acts

reflect a break in time, 28 April 1996. which is

the day LG turned 16.

The prosecution introduced enough evidence

and conducted a sufficiently specific direct

examination of LG to establish the legal and

factual sufficiency of the two specifications of

sodomy under Charge II and the adultery under

Charge IV. However, we conclude that the trial

counsel failed to ask the questions of LG

necessary to establish with sufficient specificity

that the indecent acts occurred as specifically

charged.

Both Specification | and Specification 2 of

Charge III allege that the appellant committed

indecent acts with LG on divers occasions

during the separate time periods alleged

by “fondling her breasts and private parts with

his hands and digitally penetrating her vagina.”

LG testified that the appellant, among other

things, put his fingers in her vagina in the spring

of 1995. The trial counsel failed to ask whether

the appellant ever did that on any other

occasion, e.g., within the time periods alleged in

the first two specifications of Charge III and not

outside the statute of limitations. We are

Satisfied that the evidence is legally and

factually sufficient to sustain a modified finding

of guilty under Specification | of Charge III,

which alleges indecent acts with a child.

deleting reference to “digitally penetrating her

vagina.” Regarding Specification 2 of Charge

Ill, the trial counsel failed to ask whether any of

the indecent acts, which LG described in her

testimony as occurring when she was 15 years

old, continued to occur after she tumed 16.

Although the clear inference of guilt arises from

the evidence because of the number of various

sexual acts that occurred during the years of the

appellant's abuse of LG, we hold the evidence

on Specification 2 of Charge III is legally

insufficient. Reed, 54 M.J. at 41: Turner, 25

M.J. at 324.

10a

Mil. R. Evid. 412 Evidence

The appellant claims that the military judge

erred by preventing the defense from presenting

evidence concerning LG’s purported motive to

fabricate her allegations against the appellant.

We disagree.

The defense moved at trial, pursuant to Mil.

R. Evid. 412(b)(1)(C), to offer evidence of LG’s

past sexual behavior. The defense theory of

admissibility of the purported other sexual

behavior by LG was that it showed LG’s motive

to fabricate the allegations she made against the

appellant and that exclusion of the evidence

would violate the constitutional rights of the

appellant. Pursuant to Mil. R. Evid. 412(c)(2),

the military judge held a closed hearing to

receive the evidence. LG elected to be present

during the hearing and to testify.

The evidence consisted of the testimony of

MB, the appellant’s 13-year-old son. MB

claimed that LG sexually molested him about 60

times from sometime during the first year of her

babysitting until she stopped babysitting in July

1999. MB said he was 9 years old when LG first

molested him. MB admitted that the first time

he told anyone about the molestations was in

lla

March 2000, while he was in a counseling

session with Walter Swinhoe, a_ licensed

psychotherapist’ and counselor. He explained

that his parents wanted him to see _ this

counselor’ because he had engaged in improper

sexual behavior, i.e., touched the vaginas and

buttocks of two 7-year-old cousins, got on the

roof of the house to watch his mother take a

shower, and got in the shower with his younger

sister. MB also admitted he asked the counselor

to report his allegations about LG to the police.

After MB testified, the military judge gave LG

the opportunity to testify. She took the stand and

testified that she had not engaged in any sexual

activity with MB.

The defense claimed that the evidence

presented by MB's testimony was relevant to

attack LG’s credibility by showing a motive for

her to fabricate the allegations she made about

the appellant. The military judge ruled the

evidence was not-relevant because it did not

suggest a motive to fabricate. The fact cited by

the military judge as important in_ this

conclusion was that LG made her allegations

S «

The appellant-had—been in counseling with the same

psychotherapist. See Appellate Exhibit XJ, Stipulation of

Expected Testimony of Walter Swinhoc.

12a

about the appellant about eight months

before MB made his allegations about LG. In

addition to finding the evidence irrelevant, the

military judge also ruled the evidence “clearly

not constitutionally required under these

circumstances.”

In arguing the motion at trial and the issue

on appeal, the appellant has claimed that Mil. R.

Evid. 412 does not apply. We will address this

question before turning to the question of

relevance.

As amended in 1998, Mil. R. Evid. 412(a)

provides:

(a) Evidence generally

inadmissible. The — following

evidence is not admissible in any

proceeding involving alleged

sexual misconduct except as

provided in subdivisions (b) and

(c):

(1) Evidence offered to prove

that any alleged victim

engaged in other sexual

behavior.

(2) Evidence offered to prove

any alleged victim’s sexual

predisposition.

l3a

(Emphasis added.)

The 1998 amendment has created a question

of what type of alleged sexual misconduct was

intended to be covered by the rule. Prior to

1998, the language of Mil. R. Evid. 412

supported the conclusion that the rule only

applied in cases wherein nonconsensual sexual

offenses were alleged. With the 1998

amendment, use of the term “nonconsensual

sexual offense” was replaced with “involving

alieged sexual misconduct.” However, the title

of the rule still contains reference to

“nonconsensual sexual offenses” and the term,

even though not used in the text of the rule, is

defined at the end of the rule. Mil. R. Evid.

412(e). A fair appraisal of the 1998 changes to

the rule would seem to require the concession

that the intentions behind the changes are

clouded tn ambiguity.

Our colleagues in the Coast Guard have

resolved the question for themselves, stating:

“However, as the title of the rule, itself, and

subparagraph (e) make plain, the rule properly

> Until the 1998 amendment, Mil. R. Evid. 412 was

superceded by Fed. R. Evid. 412 in 1994 by operation of

Mil. R. Evid. 1102. U/nited States v. Sanchez, 44 M.J. 174,

177, n. 4 (1996).

applies only to nonconsensual sexual

misconduct.” United States v. Stirewalt, 53 M.J.

582, 588 (C.G. Ct. Crim. App. 2000). We do not

agree with this conclusion. We certainly do not

see the applicability of the rule as plainly stated

within it.

Mil. R. Evid. 412(e) states:

A “nonconsensual sexual

offense” is a sexual offense in

which consent by the victim is an

affirmative defense or in which

the lack of consent is an element

of the offense. This term includes

rape, forcible sodomy, assault

with intent to commit rape or

forcible sodomy, indecent

assault, and attempts to commit

such offenses.

Why would the drafters of the 1998

amendment leave the words “nonconsensual

sexual offenses” in the title of the rule and

continue to define the term without change but

otherwise delete reference to the term in the text

of the rule? We are not in a position to

definitively answer this question. The rationale

offered by our Coast Guard colleagues is

unconvincing: “The inclusion of a definition of

‘nonconsensual sexual offense’ is unique to the

i5a

military version of the ‘rape shield’ — rule.

Adultery is a crime under the UCMSJ, but it is

not otherwise a federal criminal offense. Thus,

the need for differentiating nonconsensual

sexual offenses is largely confined to the

military context.” Stirewalt, 53 M.J. at 588, n. 6.

The unfortunate implication of this viewpoint is

that consensual sexual offenses have no victims

within the meaning of the rule. We decline to

interpret the rule in this manner. Our view is

that victims deserve protection regardless of the

nature of the alleged sexual misconduct.

The 1998 amendment to Mil. R. Evid. 412

incorporated changes made to Federal Rule of

Evidence 412 in 1994. See Manual for Courts-

Martial, United States (MCM), A22 (2000 ed.).

As amended by Congress,

[Federal] Rule 412 applies in all

civil and criminal cases

“involving alleged sexual

misconduct.” This term is left

undefined. Clearly it applies to

cases alleging rape and sexual

abuse, whether civil or criminal.

But the breadth of the term

“involving alleged sexual

misconduct” seems also to cover

such claims as_ for sexual

16a

harassment in employment.

As such, the amended Rule ts far

broader tha[n] the original Rule,

which was limited to criminal

cases in which a sex crime was

charged.

Stephen A. Saltzburg, et al., Federal Rules of

Evidence Manual, Vol. 2, § 412.02[1] (8th ed.

2002) (citations omitted).

We believe. the impact of the 1998

amendment changed the focus of the question of

the substantive applicability of the rule from the

nature of the alleged sexual misconduct to the

status of the person against whom the Mil. R.

Evid. 412 evidence is offered.° The question is

whether the person is a victim of alleged sexual

misconduct, not whether the alleged sexual

misconduct is nonconsensual. As stated in the

Analysis of the Military Rules of Evidence on

the 1998 amendment to Mil. R. Evid. 412. “Rule

412 does not, however, apply unless the person

against who the evidence is offered can

° An equally interesting procedural issue is in what

forums does Mil. R. Evid. 412 apply. 1e., what was

intended by the 1998 amendment changing the language

of the rule from “in a case” to “in any proceeding”? This

issue 1s not now before us.

17a

reasonably be characterized as a

‘victim of alleged sexual misconduct.”*~” MCM.

22-36. This makes applicability of the rule

consistent with the purpose of the rule, 1.e., to

protect alleged victims of sexual misconduct

from unwarranted invasions of privacy and

character assassinations. See /d. See also

Michigan v. Lucas, 500 U.S. 145, 150 (1991)

(“rape victims deserve heightened protection

against surprise, harassment, and unnecessary

invasions of privacy’).

In the appellant’s case, as we described

earlier, the appellant’s offenses constituted a

course of conduct that occurred over a period of

time that extended to when LG was under 16

years of age and, therefore, a child, and

continued past her sixteenth birthday. We have

previously held that Mil. R. Evid. 412

protections apply to cases involving alleged

child victims of sexual abuse. United States v.

Johnson, 17 M.J. 517 (A.F.C.M.R. 1983)

(rejecting appellant’s argument that 412 was not

applicable to carnal knowledge because it was

not a “nonconsensua! sexual offense’). Under

the circumstances of this case, we see no serious

question whether LG was a victim of the alleged

sexual misconduct—given her status as a child

when the appellant began his pattern of criminal

18a

sexual abuse of LG, she clearly was a

victim. Therefore, we hold Mil. R. Evid. 412 ts

applicable to the resolution of the issue raised

by the appellant.

We review a military judge's decision on

admission of evidence for a clear abuse of

discretion. United States v. Johnson, 46 M.J. 8,

10 (1997). The judge’s decision must be

“arbitrary,” “clearly unreasonable,” or “clearly

erroneous” to be reversed on appeal. United

States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987).

Mil. R. Evid. 412 has been described by our

superior court as primarily a rule of relevance.

United States v. Saipaia, 24 M.J. 172, 175

(C.M.A. 1987), cited in United States v.

Williams, 37 M.J. 352. 359 (C.M.A. 1993). See

United States -v. Jensen, 25 M.J. 284, 286

(C.M.A. 1987) (“Relevance-is the key to

determining when the ~ evidence is

‘constitutionally required to be admitted.””),

cited in United States v. Carter, 47 M.J. 395,

396 (1998). See also United States y.

Buenaventura, 45 M.J. 72, 79-80 (1996) and

cases cited therein: United States v. Sanchez, 44

M.J. 174 (1996) and cases cited therein.

To overcome the prohibition of

Mil. R. Evid. 412, the defense

must establish a foundation

19a

demonstrating

constitutionally required

relevance, such as “testimony

proving the existence of a sexual

relationship that would have

provided significant evidence on

an issue Of major importance to

the case ....” “[DJefense counsel

has the burden of demonstrating

why the general prohibition in

Mil. R. Evid. 412 should be lifted

to admit evidence of the sexual

behavior of the victim....”

Carter, 47 M.J. at 396 (citations omitted).

The military judge conducted the necessary

hearing to permit the defense to satisfy their

burden to show the admissibility of the

proffered evidence. We agree with the military

judge that the evidence was irrelevant. Mil. R.

Evid. 401, 402. And, as the military judge

implied, even if there may have been relevance

to the evidence. that relevance was so tenuous

as to not require its admission. The appellant

claims the testimony of his son shows that LG

had a motive to fabricate the allegations she

made about the appellant. The circumstances do

not support this claim. To the contrary, the

motive to fabricate was with the appellant’s son.

20a

His claims about LG molesting him came

nearly 8 months after LG told authorities about

the appellant's crimes. And the son’s claims

about LG were communicated to the appellant’s

counselor and were made with a request that the

counselor report the claims to the police. The

son's claims were a desperate attempt to save

his father by attacking the character of LG.

Even were we to give any credence to the son’s

allegations, we fail to see how the behavior

provides a motive for LG to fabricate. If the

allegations are true, the behavior is likely a bi-

product of the appellant’s sexual abuse of LG,

not evidence that she ts a liar. In short, the

appellant has not met his burden of showing

why the prohibition in Mil. R. Evid. 412 should

have been lifted to admit his son’s testimony

about LG. Carter. We hold that the military

judge did not abuse his discretion in refusing to

admit the evidence. Johnson.

Appellant’s Statements to Psychotherapist

The appellant was in counseling with Walter

Swinhoe, a psychotherapist, from 1 November

1995 to 19 August 1997. The prosecution

sought to introduce as a business record the

psychotherapist’s notes of admissions made by

the appellant during counseling sessions with

him. The defense objected, claiming the notes

2la

were itrelevant and protected by _ the

psychotherapist-patient privilege of Mil. R.

Evid. 513. The military judge refused to allow

the notes in evidence and informed the trial

counsel that. unless the parties agreed to a

substitute, they would need to call Walter

Swinhoe as a witness if they wanted to

introduce the substance of the admissions

reflected in the notes. It is apparent from the

military judge's remarks that he concluded that

the appellant's admissions were relevant and the

rules of evidence, particularly Mil. R. Evid. 403

and 513, did not require exclusion of Walter

Swinhoe’s testimony. The parties later agreed to

a stipulation of Walter Swinhoe’s expected

testimony. The stipulation provided _ the

following:

1. | am Walter Swinhoe. I am a

licensed psychotherapist and

counselor. The [a]ccused was in

counseling under my care from |

November 1995 to 19 August

1997. During the sessions |

would take notes concerning our

discussions immediately after

each session ended. When I

prepared these notes the events |

recorded were fresh in my mind.

22a

When [ prepared the

notes, they were accurate. |

cannot now completely and

accurately recall all of the facts

in my notes from this time

period.

2. My notes for 1 November

1995 state that “Greg's affect and

mood even—he debriefed

increased anger toward man that

had affair with wife.” My notes

for 24 November 1995 state that

“Increased discussed voiced with

increased “urges” when not

sexual with wife.”

3. My notes for 19 November

1996 state that Greg stated “]

give up myself out of fear she'll

leave.”

4. My notes for 17 December

1996 state that “He voiced

having 22 disc of pornographic

matertal.”

5. My notes for 25 March 1997

state that “He voiced how

difficult it was for him not to be

sexual “at this time of year.” “I

think about it 24 hours a day.”

23a

6. My notes for 1 April

1997 state that “Greg voiced that

he was told by God to get rid of

sexual devices, tapes, disc and

photograph. “I erased 13 disc, 5

tapes, threw away devices and

burnt pictures.” He voiced a

sense Of loss and relief from

behavior. [le went out and report

that he got off America On-Line

and threw away Playboys.”

The appellant concedes that the Mil. R.

Evid. 513 psychotherapist-patient privilege is

not applicable to his court-martial because the

communications in question were not made after

1 November 1999. United States v. Rodriguez,

54 M.J. 156. 160 (2000). See also United States

v. Paaluhi, 54 M.J. 181 (2000). The appellant

claims the military judge should have excluded

the communications contained in the stipulation

of Walter Swinhoe’s expected testimony

because they were irrelevant or so unfairly

prejudicial as to require exclusion under Mil. R.

Evid. 403. We disagree.

As stated previously, we review a military

judge’s decision on admission of evidence for a

clear abuse of discretion. Johnson, 46 M.J. at

10. The judge’s decision must be “arbitrary,”

24a

“clearly unreasonable.” or

“clearly erroneous” to be reversed on appeal.

Travers, 25 MJ. at 62 (C.M.A. 1987). A

military judge has wide discretion under Mil. R.

Evid. 403. United States v. Tyndale, 56 M.J.

209, 215 (2001) (citing United States v. Phillips.

52 M.J. 268, 272 (2000)). Where the military

judge weighs the evidence under Mil. R. Evid.

403 and states the reasons for admitting the

evidence, the judge will be reversed only for a

clear abuse of discretion. /d. (citing United

States v. Browning, 54 M.J. 1, 7 (2000)).

In the appellant’s case, the military judge

did not state that he conducted a Mil. R. Evid.

403 analysis and did not specifically state his

reasons for concluding that the information in

the stipulation of expected testimony was

admissible. The military judge likely gave no

thought to such an analysis because the parties

agreed to the stipulation. While the military

judge did not ask what the defense position was

regarding the earlier objections, the defense

counsel also did not say anything about

preserving the issucs.

We need not decide whether the appellant

waived his previous objections to the evidence

by entering mto a stipulation of expected

testimony covering that evidence because we

25a

hold the evidence relevant and _ not

unfairly prejudicial to the appellant. However,

to avoid the application of waiver, the better

practice is for defense counsel to state on the

record the intention of the defense regarding

previous objections. to evidence subsequently

stipulated to. Cf United States v. Bridges, 52

M.J. 795, 801 (A.F. Ct. Crim. App. 2000) (when

defense freely stipulates to what a witness

would testify, defense waives confrontation on

matters contained in stipulation absent a specific

objection to the contrary at trial).

The relevance of the appellant’s admissions

to his psychotherapist, as evidenced in the

stipulation of expected testimony, is that they

show a motive for the appellant's acts with LG

and they corroborate the testimony of LG

regarding those subjects. The appellant admitted

to harboring anger over his wife's adultery and

to having increased urges when not sexual with

his wife—easily understood factors that might

motivate the appellant to act on his anger and

urges by cultivating a sexual relationship with

his teenage babysitter. The appellant admitted to

’ possessing various forms of pornography and

sexual devices—eonsistent with LG's testimony

about the appellant's introduction of LG to

those perversities. While admittedly prejudicial,

26a

we hold the probative — value of such evidence

to not be substantially outweighed by the danger

of unfair prejudice. Mil. R. Evid. 403.

Sentence Reassessment

In light of our decision to modify

Specification | of Charge III and to set aside the

conviction under Specification 2 of Charge III,

and to dismiss this specification, we have

decided to reassess the sentence rather than

return the case for a rehearing. United States v.

Eversole, 53 M.J. 132 (2000). We “may purge

the prejudicial impact of an error at trial if [we]

can determine that ‘the accused’s sentence

would have been at least of a certain

magnitude.’” United States v. Harris, 53 M.J.

86, 88 (2000) (quoting United States v. Jones,

39 M.J. 315, 317 (C.M.A. 1994) and United

States vy. Sales, 22 M.J. 305, 307 (C.M.A.

1986)). “No sentence higher than that which

would have been adjudged absent error will be

allowed to stand.” Harris, 53 M.J. at 88

(quoting Jones, 39 M.J. at 317 (citing United

States v. Peoples, 29 M.J. 426, 428 (C.M.A.

1990))).

We are confident that, even with the

modifications in the findings, the appellant

would have received the same sentence as that

which was adjudged. The evidence the members

27a

would have received would not have

changed. Absent the one specification, the

maximum confinement would have been 33

years rather than 38 years as the court members

were instructed. This difference would not have

changed the sentence imposed and approved. In

making our decision, particularly because the

appellant's lengthy service, we have carefully

considered the pronouncements of our superior

court in Eversole. We do not view this case as

presenting the “unique type of dilemma [that]

ought to be resolved by a trial court if an

accused's fundamental right to trial is to be

vindicated.” Eversole, 53 M.J. at 134.

The appellant had 21 years, 4 months active

service at the time of his court-martial. But,

given the appellant's age, status as a

noncommissioned officer, and the serious nature

of his repeated criminal acts, we find no

miscarriage of justice in affirming his approved

sentence. Eversole, 53 M.J. at 133.

Conclusion

The finding of guilty of Specification | of

Charge ill is modified as_ follows: Of

Specification | of Charge HI, guilty, except the

words “and digitally penetrating her vagina.” Of

the excepted words, not guilty. The finding of

guilty of Specification 2 of Charge !II is set

28a

aside and Specification 2 of

Charge III is dismissed.

The approved findings, as modified, and

sentence, as reassessed, are correct in law and

fact. Article 66(c), UCMJ, 10 U.S.C § 866(c);

Reed, 54 M.J. at 41 and cases cited therein.

Accordingly, the approved findings. as

modified, and the sentence are

AFFIRMED.

OFFICIAL

FELECIA M. BUTLER, TSgt, USAF

Chief Court Administrator

29a

Appendix B

UNITED STATES, Appellee

GREGORY P. BANKER,

Staff Sergeant U.S. Air Force,

Appellant

No. 03-0128

Crim. App. No. 34531

60 M.J. 216

United States Court of Appeals for the

Armed Forces

Argued October 2, 2003

Decided August 23, 2004

BAKER, J., delivered the opinion of the Court,

in which CRAWFORD, C.J., GIERKE and

ERDMANN, JJ.. joined. EFFRON, J., filed a

30a

separate opinion concurring in part and

the result.

Counsel

For Appellant: Captain Antony B. Kolenc

(argued); Colonel Beverly B. Knott, and Major

Terry L. McElyea (on brief).

For Appellee: Captain C. Taylor Smith

(argued); Colonel LeEllen Coacher, Lieutenant

Colonel Lance B. Sigmon, Captain Matthew J.

Mulbarger (on brief); Lieutenant Colonel Robert

V. Combs.

Amicus Curiae: Margaret A. Olsen (law

student)(argued); Nancy Lawler Dickhute, Esq.

(supervising attorney)(on brief) — for the

Creighton University Law School. |

Military Judge: Gregory E. Pavlik

Judge BAKER delivered the opinion of the

Court.

Appellant was tried by a general court-

martial composed of officer and enlisted

members at Sheppard Air Force Base, Texas.

Contrary to his pleas, Appellant was convicted

of sodomy with a child under the age of 16

years on divers occasions, sodomy on divers

occasions, indecent acts with a child under the

3la

age of 16 years on divers occasions,

indecent acts on divers occasions, and adultery

on divers occasions in violation of Articles 125

and 134, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 925, 934

(2000), respectively. Appellant was found not

guilty of carnal knowledge under Article 120,

UCMJ, 10 U.S.C. § 920 (2000). The adjudged

and approved sentence provided for a bad-

conduct discharge, confinement for two years,

and reduction to the lowest enlisted grade. We

granted review of the following issues: '

WHETHER THE ATR FORCE

COURT OF CRIMINAL

APPEALS ERRED BY

FINDING THAT MIL.R.EVID.

412 APPLIES TO

CONSENSUAL SEXUAL

MISCONDUCT, AN

INTERPRETATION THAT

DIRECTLY CONTRADICTS

THE FINDING OF THE

' We heard oral argument in this case at Creighton

University School of Law, Omaha, NE, as part of the

Court’s “Project Outreach.” See United States v.

Mahonev, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003).

32a

COAST GUARD

COURT OF CRIMINAL

APPEALS IN UNITED STATES

V. STIREWALT, 53 MJ. 582

(C.G. CT. CRIM. APP. 2000).

WHETHER THE MILITARY

JUDGE ERRED BY USING

MIL.R.EVID. 412 TO

EXCLUDE EVIDENCE

CONCERNING THE

ALLEGED VICTIM’S MOTIVE

TO FABRICATE

ALLEGATIONS AGAINST

APPELLANT WHERE

MIL.R.EVID. 412 DOES NOT

APPLY TO CONSENSUAL

SEXUAL MISCONDUCT AND

THE PROFERRED DEFENSE

EVIDENCE WAS

CONSTITUTIONALLY

REQUIRED.

We conclude that neither the Court of Criminal

Appeals (CCA) nor the military judge erred.

BACKGROUND

In December 1994. LG, who was 14 years

old, began babysitting for Appellant and his

33a

wife. Appellant was 34 years old at the

time and had a nine-year old son (MB) and a

five-year old daughter. Appellant and his family

resided in on-base housing at Sheppard Air

Force Base during most of the years LG

babysat. LG babysat for the Bankers on a

regular basis and participated in other family

activities such as attending dinner and church.

In early 1995, Appellant initiated sexual

contact with LG. While driving her home one

evening after babysitting, Appellant parked the

car, pretended to be lost, and kissed LG sticking

his tongue in her mouth. Appellant’s physical

contact with LG steadily increased as he would

deliberately brush his hand against her breasts

and buttocks when they passed in a hallway or

doorway. Appellant also introduced LG to

pomography by showing her magazines,

pictures on his computer, and videotapes. Over

time, Appellant progressed to more overt

indecent acts including oral and anal sodomy

and sexual intercourse. LG considered the

relationship with Appellant to be consensual

testifying, “] thought that this was a consensual

relationship”.

Appellant's sexual contact with LG

continued until July 1999. During that summer,

LG saw the movie “American Pie” and was

34a

disturbed by the movie's portrayal that

some men were preoccupied “with getting

[females’] virginity.” LG later asked Appellant

whether the portrayal was accurate and

Appellant confirmed that, at least for him, it was

true. Upset by Appellant’s response, LG stopped

engaging in sexual acts with Appellant and

subsequently quit babysitting for the Bankers.

LG eventually told a friend about her sexual

relationship with Appellant and the friend

convinced LG to tell her mother. Upon learning

of Appellant’s conduct, LG’s mother insisted on

informing the authorities. As a result, the Air

Force Office of Special Investigations (AFOSI])

investigated Appellant’s activities. Although LG

initially minimized Appellant’s conduct when

interviewed by an AFOSI agent, she later

revealed the details of his acts.

During trial, Appellant moved pursuant to

Military Rule of Evidence 412(b)(1)(c)

[hereinafter M.R.E.] to offer evidence of LG’s

alleged sexual behavior with Appellant’s son

MB. who was 13 years old at the time of trial.

Appellant sought to admit MB’s allegations in

an attempt to prove that LG had a motive for

fabricating the accusations against Appellant.

Appellant further argued that excluding MB's

testimony violated Appellant's constitutional

35a

rights. The military judge subsequently

held a closed hearing where both LG and MB

testified.

The only testimony presented at the hearing

regarding LG’s purported sexual behavior was

the testimony of MB. Despite defense counsel’s

claim that MB’s testimony was relevant to

attack LG’s credibility, the military judge found

the evidence not relevant.

ISSUE I

M.R.E. 412 states:

Rule 412. Nonconsensual sexual

offenses: relevance of victim’s

behavior or sexual predisposition

(a) Evidence _ generally

inadmissible. The following

evidence is not admissible in

any proceeding involving

alleged sexual misconduct

except as provided’ in

subdivisions (b) and (c):

(1) Evidence offered to

prove that any alleged

victim engaged in other

sexual behavior.

(2) Evidence offered to

prove any alleged

36a

— victim’s sexual

predisposition.

(b) Exceptions.

(1) In a proceeding, the

following evidence is

admissible, if otherwise

admissible under these

rules:

(A) evidence of

specific instances of

sexual behavior by the

alleged victim offered

to prove that a person

other than the accused

was the source of

semen, injury, or other

physical evidence:

(B) evidence of

specific instances of

sexual behavior by the

alleged victim’ with

respect to the person

accused of the sexual

misconduct offered by

the accused to prove

consent or by the

prosecution; and

exclusion of which

would violate __ the

constitutional rights of

- the accused.

admissibility.

(3)If the military judge

determines on the basis of

the hearing described in

paragraph (2) of this

subdivision that _ the

evidence that the accused

seeks to offer is relevant

and that the probative

value of such evidence

outweighs the danger of

unfair prejudice, such

evidence shall be

admissible in the trial to

the extent an order made

by the military judge

specifies evidence that

may be offered and areas

with respect to which the

alleged victim may be

38a

examine or

cross-examined.

(e) A “nonconsensual sexual

offense” is a sexual offense

in which consent by the

victim is an_ affirmative

defense or in which the lack

of consent is an element of

the .offense. This term

includes rape, forcible

sodomy, assault with intent

to commit rape or forcible

sodomy, indecent assault,

and attempts to commit such

offenses.

M.R.E. 412 is modeled after Federal Rule of

Evidence 412 [hereinafter Fed. R. Evid.]. Like

the federal rule. M.R.E. 412 was intended to

“safeguard the alleged victim against the

invasion of privacy and potential embarrassment

that is associated with public: disclosure of

intimate sexual details and the infusion of

sexual innuendo into the fact-finding process.”

Manual for Courts-Martial, United States (2002

ed.) [hereinafter MCM], Analysis of the

Military Rules of Evidence _ [hereinafter

Drafter’s Analysis] at A22-36. “By affording

39a

victims protection in most instances, the

rule encourages victims of sexual misconduct to

institute and to participate in legal proceedings

against alleged offenders.” Notes of Advisory

Committee on proposed 1994 amendment,

F.R.E. 412, 28 U.S.C.S. Appx 412 at 87. M.R.E.

412 was intended to protect victims of sexual

offenses from the degrading and embarrassing

disclosure of intimate details of their private

lives while preserving the constitutional rights

of the accused to present a defense. See United

States v. Sanchez, 44 M.J. 174, 178 (C.A.A.F.

1996); MCM, Drafter’s Analysis at A22-36.

Appellant maintains, however, that M.R.E. 412

is not applicable to his case since the rule only

applies to nonconsensual sexual offenses and he

was not charged with any nonconsensual sexual

offenses._In making this argument, Appellant

relies on the title to the rule, “nonconsensual

sexual offenses,” as well as the presence within

the text of a definition of “nonconsensual sexual

offense.” M.R.E. 412(e). Furthermore. the Coast

Guard court in Stirewalt, 53 M.J. at 587, found

that M.R.E. 412 only applies when there is an

alleged victim of a nonconsensual sexual

offense.

Despite the Coast Guard court’s ruling in

Stirewalt, the Air Force Court of Criminal

; 40a

Appeals determined in _ this case that the 1998

amendments to M.R.E. 412 “changed the focus

of the question of the substantive applicability

of the rule from the nature of the alleged sexual

misconduct to the status of the person against

whom the evidence is offered pursuant to

M.R.E. 412. The question is whether the person

is a victim of alleged sexual misconduct, not

whether the alleged sexual misconduct is

nonconsensual.” United States v. Banker, 57

M.J. 699, 703 (A.F. Ct. Crim. App. 2002).

Specifically, in 1998, M.R.E. 412 was amended

substituting within the text of the rule the phrase

“alleged sexual misconduct” in lieu of

“nonconsensual sexual offense.” —s This

amendment reflected the 1995 amendments to

Fed. R. Evid. 412. Violent Crime Control and

Law Enforcement Act of 1994 § 40141, Pub. L.

No. 103-322, 108 Stat. 1796, 1918-19 (1994).

Nonetheless, the tithe and definition at the

end of M.R.E. 412 still refer to “nonconsensual

sexual offenses.” As a_ result, Appellant's

argument warrants further analysis.

M.R.E. 412 defines a nonconsensual sexual

offense as “a sexual offense in which consent by

the victim is an affirmative defense or in which

the lack of consent is an element of the offense.

This term includes rape, forcible sodomy,

4la

assault with intent to commit = rape — or

forcible sodomy, indecent assault, and attempts

to commit such offenses.” M.R.E. 412(e).

Significantly, the list of offenses cited within the

rule is presented as an inclusive rather than an

exclusive list. Moreover, courts have interpreted

the rule in this manner.’ As importantly, the

Dratier’s Analysis makes clear M.R.E. 412 was

intended to apply broadly because “[t]here is

thus no justification for limiting the scope of the

Rule, intended to protect human dignity and to

ultimately encourage the reporting and

prosecution of sexual offenses, only to rape

and/or assault with intent to commit rape.”

MCM, Drafter’s Analysis at A22-36.

In our view, the 1998 amendment to M.R.E.

412 was intended to shift the focus of the rule to

the presence and protection of a victim rather

than the nature of the sexual conduct. This

intent is reflected in the Manual for Courts-

* Although consent is not an element of carnal knowledge

because victims of the crime are legally incapable of

consent, carnal knowledge is the type of offense

contemplated by M.R.E. 412(e) which was intended to be

broader in its application than the federal rule. See MCM.

Drafter’s Analysis at A22-36; see also United States v.

Vega, 27 M.J. 744, 746 (A.C.M.R. 1988). rev. denied, 28

M.J. 336 (C.M.A. 1989).

42a

Martial as well as case law. See Vega, 27

M.J. at 746: see also Sanchez. 44 M.J. at 177-

78. The analysis of the rule explains, “The

‘terminology ‘alleged victim’ is used because

there will frequently be a factual dispute as to

whether the sexual misconduct occurred. Rule

412 does not, however. apply unless the person

against whom the evidence is offered can

reasonably be characterized as a ‘victim of

alleged sexual misconduct.”” MCM, Drafter’s

Analysis at A22-36.

As amended, M.R.E. 412 1s not limited to

nonconsensual sexual offenses, but applies to

proceedings involving _—_ alleged sexual

misconduct. As a result, we conclude, as did the

CCA, that following the 1998 amendments, the

applicability of M.R.E. 412 hinges on whether

the subject of the proferred evidence was a

victim of the alleged sexual misconduct and not

on whether the alleged sexual misconduct was

consensual or nonconsensual. Therefore, as a

threshold matter, we must determine whether

the CCA appropniately classified LG as a victim

of Appellant's sexual misconduct.

Appellant asserts LG consented to the sexual

activity- in light of her testimony that “the

relationship was consensual.” This Court,

however, has distinguished between factual and

43a

legal consent where children are involved.

See United States v. Baker 11, 57 M.J. 330, 335

(C.A.A.F. 2002). In Baker //, a case involving-a

15 year old and an 18 year old Airman who

engaged in factually consensual sexual activity,

this Court concluded that prior to determining

the decency of the acts or whether legal consent

existed, the court must consider the child’s age,

relationship with the accused, and the nature of

the sexual acts. /d. at 335-36. Thus, this Court

declined to adopt a per se rule regarding the age

an individual can consent to certain forms of

sexual activity. /d. “[T]here is no magic line of

demarcation between decent acts and indecent

acts based precisely on the age of the sex

partner.” Id. at 335 (quoting United States v.

Strode, 43 M.J. 29, 32 (C.A.A.F. 1995)).

However. while the Baker // Court concluded

that a child under the age of 16 may factually

consent to certain sexual activity, this Court has

never recognized the ability of a child to legally

consent to sexual intercourse or sodomy.

At the time Appellant’s sexual activity

began with LG, LG was 14 years old. Appellant

was 34 years old. Although the UCMJ does not

explicitly provide an age of consent for sodomy

or indecent acts, the age of consent for sexual

intercourse 1s 16. Arts. 120, 125, UCMSJ.

44a

Because both sodomy — and sexual intercourse

with a child under the age of 16 are indecent

acts involving penetration, we conclude that LG

was not capable of legally consenting to

Appellant's conduct.

As a result, based on the facts of this case

and the purpose behind M.R.E. 412, we

conclude LG was a “victim” of the sexual

misconduct for which Appellant was found

guilty. Therefore, Appellant’s proffer of MB’s

testimony falls within the scope of M.R.E. 412.

The question remains, however, whether MB’s

testimony was admissible in light of the rule’s

relevancy and balancing requirements.

ISSUE II

A. Factual Context

During the military judge’s closed hearing to

adjudicate Appellant's M.R.E. 412 motion, MB

testified that LG began sexually molesting him

during her first year of babysitting when MB

was nine years old. According to MB, LG

molested him approximately 60 times and

continued to abuse him until she stopped

babysitting for the family in July 1999. MB

initially disclosed these allegations during a

counseling session he attended following his

inappropriate sexual behavior with his cousins.

his sister, and his mother. MB revealed these

45a

allegations eight months after

Appellant’s conduct with LG was reported to

AFOSI. The military judge denied admission of

MB’s testimony under M.R.E. 412 after finding

the evidence not relevant.

During the trial, Appellant’s counsel argued

that MB’s testimony was relevant because it

went “directly to [l-G’s] credibility and motive

to fabricate.” On appeal, Appellant maintains

LG’s allegations of sexual abuse against

Appellant were made in an effort to protect her

from future allegations involving her sexual

misconduct with MB. Appellant further

contends on appeal that LG made _ this

preemptive strike so that any allegations by MB

wouid be considered suspect and disregarded as

not credible.

B. Legal Context

M.R.E. 412 in popular nomenclature is a

“rape shield law.” As noted above, its purpose is

to protect alleged victims of sexual offenses

from undue examination and cross-examination

of their sexual history. Thus, M.R.E. 412 is a

rule of exclusion. Although Fed. R. Evid. 412 ts

generally understood to address evidence of

sexual propensity, M.R.E. 412 1s broader in its

reach than its federal counterpart. See MCM,

Drafter’s Analysis at A22- 35 (stating that

46a

“la|lthough substantially similar in

substantive scope to Federal Rule of Evidence

412. the application of [M.R.E. 412] has been

somewhat broadened and the procedural aspects

of the Federal Rule have been modified to adapt

them to military practice”). Under M.R.E. 412,

not only is evidence of the alleged victim’s

sexual propensity generally inadmissible,

evidence offered to prove an alleged victim

engaged in “other sexual behavior” is also

generally excluded.

However, this rule is not absolute because

there are three exceptions to M.R.E. 412. First,

evidence of specific instances of sexual conduct

is admissible to prove that a person other than

the accused was the source of semen, physical

injury, or other physical evidence. M.R-E.

412(b)(1)(A). Second, evidence of specific

instances of sexual behavior by the alleged

victim with the accused may be offered to prove

consent. M.R.E. 412(b)(1)(B) — expressly

contemplates that such evidence might be

offered by an “accused to prove consent or by

the prosecution.” /d.

“[E]vidence the exclusion of which would

violate the constitutional rights of the accused”

is also admissible as the third exception to the

_tule. M.R-E. 412(b)(1)(C). This exception

47a

addresses an accused’s Sixth

Amendment right of confrontation and Fifth

Amendment right to a fair trial. Weinstein’s

Federal Evidence, § 412.03[4] [a] (2d ed. 2003).

The text itself, however, is presented in the form

of legal conclusion rather than analytic

framework. As a result, where evidence is

offered pursuant to this exception, it is

important for defense counsel to detail an

accused's theory of relevance and constitutional

necessity. -

In order to overcome the exclusionary

purpose of M.R.E. 412, an accused must

“demonstrat[e] why the general prohibition in

[M.R.E.] 412 should be lifted to admit evidence

of the sexual behavior of the victim].]” United

States v. Moulton, 47 M.J. 227, 228 (C.A.A.F.

1997). In particular, the proponent must

demonstrate how the evidence fits within one of

the exceptions to the rule. /d. at 228-29. In light

of the important and potentially competing

constitutional and privacy claims incumbent in

M.R.E. 412, the rule requires a closed hearing to

consider the admission of the evidence. Among

other things “[t]he victim must be afforded a

reasonable opportunity to attend and be heard”

at this closed hearing. M.R.E. 412(c)(2).

48a

Based on the evidence presented at

the closed hearing, the military judge applies a

two-part process of review to determine if the

evidence is admissible. M.R.E. 412(c)(3). First,

pursuant to M.R.E. 401, the judge must

determine whether the evidence is relevant.

Evidence is relevant if it has “any tendency to

make the existence of any fact...more probable

or less probable than it would be without the

evidence.” M.R.E. 401. Where the military

judge determines that evidence is relevant, the

judge employs a second analytic step by

conducting a balancing test to determine

whether “the probative value of such evidence

outweighs the danger of unfair prejudice[.|”

M.R.E. 412(c)(3). The accused has a right to put

on testimony relevant to his theory of defense.

However, “the right to present relevant

testimony is not without limitation. The right

may, in appropriate cases, bow to accommodate

other legitimate interests in the criminal trial

process.” Michigan v. Lucas, 500 U.S. 145, 149

(1991)(citations omitted).

Although this two-part relevance-balance

analysis is applicable to all three of the

enumerated exceptions, evidence offered under

the constitutionally required exception is subject

to distinct analysis. Under M.R.E. 412(b)(1)(c),

49a

the accused has the right to present

evidence that is- “relevant, material, and

favorable to his defense.” United States v.

Dorsey, 16 M.J. 1, 5 (C.M.A. 1983)(citing

United States v. Valenzuela-Bernal, 458 U.S.

858(1982)). While the relevancy portion of this

test is the same as that employed for the other

two exceptions of the rule, if the evidence is

relevant, the military judge must then decide if

the evidence offered under the “constitutionally

required” exception is material and favorable to

the accused's defense, and thus whether it is

“necessary.” United States v. Williams, 37 M.J.

352, 361 (C.M.A. 1993)(Gierke, J., concurring).

in determining whether evidence is material.

the military judge looks at “the importance of

the issue for which the evidence was offered in

relation to the other issues in this case; the

extent to which this issue is in dispute; and the

nature of the other evidence in the case

pertaining to this issue.” United States v. Colon-

Angueira, 16 MJ. 20. 26 (C.MA.

1983 )(quoting Dorsey, 16 M.J. at 6).

After determining whether the evidence

offered by the accused is relevant and material.

the judge employs the M.R.E. 412 balancing test

in determining whether the evidence is

favorable to the accused’s defense. While the

50a

term “favorable” may not lend itself to a

specific definition, we believe that based on

Supreme Court precedent and our own Court’s

rulings in this area, the term is synonymous with

“vital.” Valenzuela-Bernal, 458 U.S. at 867

(quoting Washington v. Texas, 388 U.S. 14, 16

(1967)); Dorsey, 16 M.J. at 8.

Although the M.R.E. 412 balancing test

bears resemblance to the M.R.E. 403 balancing

test, the two tests are distinct. This is evident

from the text and intent of the two rules.

M.R.E. 412(c)(3) states:

If the military judge determines

on the basis of the hearing

described in paragraph (2) of this

subdivision that the evidence that

the accused seeks to offer is

relevant and that the probative

value of such evidence outweighs

the danger of unfair prejudice,

such evidence shall be admissible

in the trial to the extent an order

made by the military judge

specifies evidence that may be

offered and areas with respect to

which the alleged victim may be

examined or cross-examined.

Sla

(Emphasis added. )

The M.R.E. 403 balancing test states:

Although relevant, evidence may

be excluded if its probative value

is substantially outweighed by

the danger of unfair prejudice.

confusion of the issues, or

misleading the members, or by

considerations of undue delay,

waste of time, or needless

presentation of cumulative

evidence.

(Emphasis added. )

The balancing test contained in M.R.E.

412(c)(3) differs in two critical respects from

that contained in M.R.E. 403. First, under the

M.R.E. 403 balancing test, a presumption of

admissibility exists since the burden is on the

opponent to show why the evidence is

inadmissible. M.R.E. 403 is a rule of inclusion.

In contrast, M.R.E. 412 ts a rule of

exclusion. The burden of admissibility shifts to

the proponent of the evidence to demonstrate

why the evidence is admissible. United States v.

Greaves, 40 M.J. 432, 438 (C.M.A. 1994)(citing

United States v. Elvine, 16 M.J. 14 (CMA

1983)). 1 Stephen A. Saltzburg et al., Military

52a

Rules of Evidence Manual 4-189-90 (Sth

ed. 2003). Thus, the two rules lean in different

directions: i.e., toward inclusion in the case of

M.R.E. 403 and toward exclusion in the case of

M.R.E. 412(c)(3).

Second, M.R.E. 403 is generally applicable

to evidence offered by either the government or

the accused. To exclude evidence under M.R.E.

403 the military judge must find “substantial

prejudice” leading to one of a number of

enumerated harms, including “unfair prejudice”

io the accused. M.R.E. 412(a)'s general rape

shield rule is applicable to both parties.

However, in contrast to M.R.E. 403, the

balancing test that M.R.E. 412(c)(3) establishes

for exceptions to the general rule contemplates

“evidence that the accused seeks to offer[.]”

M.R.E. 412(c)(3).

Thus, M.R.E. 412(c)(3) requires the military

judge to determine “on the basis of the hearing

described in paragraph (2) of this subdivision

that the evidence that the accused seeks io offer

is relevant and that the probative value of such

evidence outweighs the danger of unfair

prejudice[.]” M.R.E. 412(c)(3)(emphasis

added). It would be illogical if the judge were to

evaluate evidence “offered by the accused” for

unfair prejudice to the accused. Rather, in the

53a

context of this rape shield — statute, — the

prejudice in question is, in part, that to the

privacy interests of the alleged victim. Sanchez,

44 M.J. at 178 (“[I]n determining admissibility

there must be a weighing of the probative value

of the evidence against the interest of shielding

the victim’s privacy. ”).

As a result, when balancing the probative

value of the evidence against the danger of

unfair prejudice under M.R.E. 412, the military

judge must consider not only the M.R.E. 403

factors such as confusion of the issues,

misleading the members, undue delay, waste of

time, needless presentation of cumulative

evidence, but also prejudice to the victim's

legitimate privacy interests.’ See Sanchez, 44

M.J. at 178; 2 Christopher B. Mueller & Laird

C. Kirkpatrick, Federal Evidence § 160 (2d ed.

1994).

C. As Applied in Appellant's Case

Having considered the textual framework of

M.R.E. 412 and _ established our analytic

framework, our next step is to apply this

*M.R.E. 412 does not wholly supplant M.R.E. 403 since

the military judge may exclude evidence on M.R.E. 403

grounds even if that evidence would otherwise be

admissible under M.R.E. 412.

54a

analysis to Appellant’s case.* We

review a judge’s decision to exclude evidence

under M.R.E. 412 for abuse of discretion.

Appellant argued at trial that M.R.E. 412

was not applicable to his case based on the

arguments presented in Issue | of this opinion.

Arguing in the alternative, Appellant offered the

testimony of MB under M.R.E. 412 because it

went “directly to [“LG’s“] credibility and

motive to fabricate.” However, other than

maintaining that MB’s testimony went to LG's

credibility in a general sense, defense counsel

failed to articulate a specific theory or motive as

to why LG might have fabricated the allegations

against Appellant. In response, trial counsel

argued “there’s no evidence of motive. so our

position is that it is not relevant.”

As a threshold matter, the judge correctly

determined that M.R.E. 412 was the applicable

rule of evidence. As noted above, M.R.E. 412

applies not only to propensity evidence, but also

to evidence of the victim’s “other sexual

behavior.” An allegation of sexual molestation

by the child LG was babysitting fits within the

category of “other sexual behavior.” That is not

* Consistent with the purposes of M.R.E. 412, the trial

record of the M.R.E. 412(b) hearing is sealed.

55a

to say that M.R.E. 412 | bars inquiry regarding

a victim’s alleged sexual misconduct. Rather,

the M.R.E. 412 is intended to shield a victim

from having their own sexual conduct and

history placed at issue, unless the military judge

first determines in the closed hearing that such

inquiry is warranted by the rule. The military

judge did just that in Appellant's case. holding a

closed hearing concerning MB’s putative

testimony.

During the closed hearing, the military judge

noted that MB made his allegations eight

months after LG made her allegations against

Appellant. When pressed by the military judge

as to how this evidence related to any motive to

fabricate, defense counsel responded as follows:

“Your honor, she made her allegations months

after this supposed relationship with my client

started and yet the same kind of principle-and it

does go directly--.” After hearing this evidence,

the judge ruled MB’s testimony was not

relevant and, therefore, inadmissible.

Specifically, the judge stated:

This evidence is not relevant to

the findings portion, regardless

of its truth. And there's serious

question as to whether it’s true

based upon the lack of credibility

56a

of [MB], specifically the

circumstances under which this

was disclosed after he, himself

was in trouble. But _ that

notwithstanding, because _ that

would not be determinative of

the issue as far as this Court ts

concerned, as to whether the

evidence would get before the

court members. I have to assume

for the purpose of the motion that

the allegations that [MB] makes

are true. Nevertheless, they are

not relevant and they're clearly

not constitutionally required

under these circumstances.

Notably, while expressing reservations

about the veracity of MB’s putative testimony,

the judge correctly identified credibility as an

issue for the members. In applying M.R.E. 412,

the judge is not asked to determine if the

proferred evidence is true: it is for the members

to weigh the evidence and determine its

veracity. Rather, the judge serves as gatekeeper

deciding first whether the evidence is relevant

and then whether it 1s otherwise competent,

which is to say, admissible under M.R.E. 412.

Thus, in the case of the third exception argued

57a

by Appellant, the judge determined

whether admission of MB’s allegations would

be constitutionally required if there was

evidence sufficient to support a finding that they

were true. United States v. Platero, 72 F.3d 806,

812 (10th Cir. 1995).

While evidence of a motive to fabricate an

accusation is generally constitutionally required

to be admitted, the alleged motive must itself be

articulated to the military judge in order for him

to properly assess the threshold requirement of

rélevance. See Dorsey, 16 M.J. at 4. Before this

Court, Appellant argues that LG_ fabricated

allegations against him in order to preemptively

discredit any allegations that MB might

ultimately have made regarding LG’s sexual

conduct with MB. However. at trial, when

pressed by the military judge for a theory of

admissibility, defense counsel stated only that

MB’s testimony went “directly to [“LG’s*]

credibility and motive to fabricate”. The

> “In deciding a competency question, the Judge is not

usurping the function of the jury. The Judge is not

addressing the merits of the case and deciding whether

one side or the other is truthful. Rather, the Judge is

assuring that the evidence meets the usual evidentiary

standards.” P/atero, 72 F.3d at 812 (citation omitted).

58a |

question remained whether Appellant’s

proffer was adequate to show support for his

theory. Sanchez, 44 M.J. at 182 (Everett and

Grerke, JJ., concurring).

In the context of M.R.E. 412, it was within

the judge’s discretion to determine that such a

cursory argument did not sufficiently articulate

how the testimony reasonably established a

motive to fabricate. Moreover, based on the

analytic structure of M.R.E. 412, in ruling on

relevancy the military judge was not also

required to address the constitutional exception

or the application of the balancing test.

Therefore, without more, it was within the

discretion of the military judge to conclude that

the offered testimony was not relevant. As a

result, we hold the military judge did not abuse

his discretion in refusing to admit MB’s

testimony since Appellant did not meet his

burden of proving why the MRE. 412

prohibition should be lifted.

SUPPLEMENTAL ISSUE

While this case was under review in this

Court, Appellant filed a motion for grant of

review of a supplemental issue.” That motion is

* WHETHER APPELLANT'S CONVICTION FOR

VIOLATING ARTICLE 125, UCMJ, BY ENGAGING

59a

granted. Therefore, notwithstanding our

resolution of the granted issues, we remand the

case to the Court of Criminal Appeals for that

court’s consideration of the supplemental issue

in light of this Court’s decision in United States

v. Marcum, MJ. (C.A.A.F. 2004).

DECISION

The decision of the United States Air Force

Court of Criminal Appeals is set aside. The

record of trial is returned to the Judge Advocate

General of the Air Force for remand to that

court for consideration-of the supplemental issue

and for action not otherwise inconsistent with

this opinion.

EFFRON, Judge (concurring in part and in the

result):

| agree with the lead opinion that: (1)

Military Rule of Evidence 412 [hereinafter

M.R.E.} is not limited to cases involving

nonconsensual sexual offenses: (2) in

considering whether evidence is admissible

IN CONSENSUAL SODOMY MUST BE SET ASIDE

IN LIGHT OF THE UNITED STATES SUPREME

COURT’S HOLDING IN LAWRENCE V. TEXAS, 123

S.CT. 2472 (2003).

: 60a

under the rule, the military judge must

first consider whether the evidence is relevant:

(3) if the evidence is not relevant, it is not

admissible: and (4) the military judge in this

case did not err in concluding that the evidence

offered by defense was inadmissible because it

was not relevant.

After concluding that the military judge did

not err, the lead opinion offers a variety of

observations regarding the treatment of relevant

evidence under M.R.E. 412. Although there are

many instances in which it is appropriate for an

appellate court to discuss matters beyond the

narrowest possible holding, a degree of caution

may be in order when dealing with a developing

area of law that is highly fact-dependent. The

treatment of relevant evidence under M.R.E.

412 is such an area.

M.R.E. 412 involves numerous unresolved

interpretative matters. Perhaps the most difficult

aspect of the rule involves the issue of when

relevant evidence that is otherwise excluded

under the rule must nonetheless be admitted

because exclusion of the evidence “would

violate the constitutional rights of the accused.”

M.R.E. 412(b)(1)(C). See, e.g., 1 Stephen A.

Saltzburg et al., Military Rules of Evidence

Manual 4-186-88 (5th ed. 2003). Stephen A.

6la

Saltzburg et al. 2 Federal Rules of

Evidence Manual 412-7-10 (8th ed. 2002). This

is an area in which most cases are likely to

involve evidentiary considerations common to

both civilian and military trials. In that context,

we should not constrain military judges in future

trials from considering a wide range of judicial

opinions from other courts, as well as scholarly

works, when confronting M.R.E. 412 relevancy

issues not governed by our precedents. Under

these circumstances, I respectfully decline to

join that portion of the lead opinion that

addresses admissibility of relevant evidence

under M.R.E. | 4}2.

62a

Appendix C

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Staff Sergeant GREGORY P. BANKER

United States Air Force

ACM 34531 (f rev)

63 M.J. 657

29 June 2006

Sentence adjudged 9 February 2001 by GCM

convened at Sheppard Air Force Base, Texas.

Military Judge: Gregory E. Pavlik.

Approved sentence: Bad-conduct discharge,

confinement for 2 years, and reduction to E-1]

Appellate Counsel for Appellant: Major Sandra

K. Whittington (argued), Colonel Beverly B.

Knott, Colonel Carlos L. McDade, Lieutenant

63a

Colonel Timothy W. Murphy, Lieutenant

Colonel Andrew S. Williams, Major Terry L.

McElyea, Major Jeffrey A. Vires, Major

Jefferson B. Brown, Major Patrick J. Dolan,

Major Antony B. Kolenc, and Major Maria A.

Fried.

Appellate Counsel for the United States: Mayor

Lane A. Thurgood (argued), Colonel Anthony

P. Dattilo; Colonel LeEllen Coacher, Colonel

Lance B. Sigmon, Colonel Gary F. Spencer,

Lieutenant Colonel Robert V. Combs, Major

Adam Oler, Major Matthew J. Mulbarger, and

Major C. Taylor Smith.

Before

ORR, JOHNSON, and JACOBSON

Appellate Military Judges

OPINION OF THE COURT

UPON FURTHER REVIEW

JOHNSON, Judge:

Contrary to his pleas, the appellant was

convicted by a general court-martial composed

of officer and enlisted members of sodomy with

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a child under the age of 16 years on divers

occasions (Specification |, Charge Il), sodomy

on divers occasions (Specification 2, Charge II),

indecent acts with a child under the age of 16

years on divers occasions (Specification 1,

Charge III), indecent acts on divers occasions

(Specification 2, Charge IIJ), and adultery on

divers occasions (Specification 3, Charge III), in

violation of Articles 125 and 134, UCMJ, 10

U.S.C. §8§ 925, 934. In accordance with his

pleas, he was found not guilty of carnal

knowledge (Charge I), in violation of Article

120, UCMJ, 10 U.S.C. § 920. The adjudged

and approved sentence included a bad-conduct

discharge, confinement for 2 years, and

reduction to E-1.

This case is before our Court for the second

time. In United States v. Banker, 57 M.J. 699

(A.F. Ct. Crim. App. 2002), we set aside and

dismissed Specification 2 of Charge Ill,

modified Specification 1 of Charge III, and

affirmed the findings, as modified, and the

sentence, as reassessed. On appeal, our superior

court set aside our decision and returned the

record of trial to The Judge Advocate General of

the Air Force for remand to our Court for

consideration of a supplemental issue and for

action not otherwise inconsistent with their

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opinion. United States v. Banker, 60

M.J. 216 (C.A.A.F. 2004). The appellant

subsequently asked our superior court to

reconsider their decision. On 4 January 2005,

the Court of Appeals for the Armed Forces

(CAAF) denied the request for reconsideration.

United States v. Banker, 60 M.J. 452 (C.A.A.F.

2005).

CAAF specified the following _ issue:

Whether the appellant’s conviction for violating

Article 125, UCMJ, 10 U.S.C. § 925. by

engaging in consensual sodomy must be set

aside in light of Lawrence v. Texas, 539 US.

558 (2003). On 20 April 2005, this Court

specified the following additional issues: (1)

Whether the disparity in age between the victim

and the appellant, as well as the appellant's

prior grooming of the victim to engage in sexual

conduct while she was under the age of consent,

placed the victim in a relationship where

consent might not easily be refused in light of

United States v. Marcum, 60 M.J. 198 (C.A.A.F.

2004). Should the Court apply an objective or

subjective test in answering this question? (2)

Whether a 16-year-old is a minor in the context

of Lawrence v. Texas, 539 U.S. 558 (2003).'

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Oral argument was heard on 9 November 2005 on all

three issues.

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Background

In December 1994, LG, who was 14 years

old. began babysitting for the appellant and his

wife. The appellant was 34 years old. LG

babysat for the appellant on a regular basis and

often participated in other family activities. In

early 1995, the appellant initiated sexual contact

with LG by kissing her and sticking his tongue

in her mouth. Over time, the appellant

increased his contact with LG from deliberately

touching her breasts and buttocks, to engaging

in overt indecent activities, including oral and

anal sodomy and sexual intercourse. LG

considered the relationship with the appellant to

be consensual. In fact, she testified, “I thought

that this was a consensual relationship.” In July

1999, LG, now a 19-year-old, became upset

with the appellant and stopped engaging in

sexual acts with him. She subsequently stopped

babysitting for the appellant’s family altogether.

Constitutionality of Article 125, UCMJ

Lawrence protects private sodomy between

two consenting adults. Jd. However, the

Supreme Court has determined in certain

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situations, consensual sodomy may _ not

qualify for such protection. /d. at 578.

Constitutional challenges to Article 125, UCMJ,

based on the Lawrence decision must be

addressed on a case-by-case basis. United

States v. Stirewalt, 60 M.J. 297, 304 (C.A.A.F.

2004) (citing United States v. Marcum, 60 M.J.

198 (C.A.A.F. 2004), cert. denied, 544 U.S. 923

(2005). In Marcum, the CAAF identified a

tripartite framework for addressing these

challenges within the military context:

First, was the conduct that the

accused was found guilty of

committing of a nature to bring it

within the liberty interest

identified by the Supreme Court?

Second, did the conduct

encompass any behavior or

factors identified by the Supreme

Court as outside the analysis in

Lawrence? Third, are there

additional factors relevant solely

in the military environment that

affect the nature and reach of the

Lawrence liberty interest?

Marcum, 60 M.J. at 206-07 (Citations omitted.)

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The first prong addresses whether the

appellant’s conduct involved private, consensual

sexual activity between adults. /d. at 207. LG

was 16 years old and factually, consented to the

sodomy. She testified at trial that their

relationship was consensual. Furthermore, the

evidence established the sexual activity took

place in a private location, generally in the

appellant's home. We will assume without

deciding that the panel’s verdict, finding the

appellant guilty of consensual sodomy, satisfies

the question raised by the first prong. See id.

The second prong addresses whether the

appellant’s conduct falls outside a_ liberty

interest identified by the Supreme Court in

Lawrence. For example, “did the conduct

involve minors? Did it involve public conduct

or prostitution? Did it involve persons who

might be injured or coerced or who are situated

in relationships where consent might not easily

be refused?” Id. We will also assume that the

appellant’s conduct involved someone who is

arguably not a minor’ because LG was not

The appellant was convicted of forcible sodomy,

Specification | of Charge II], when LG was under the age

of 16. The conduct that is at issue here, non-forcible or

consensual sodomy, Specification 2 of Charge I],

happened after LG turned 16 years old.

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under the age of 16 years old. The

appellant's conduct did not take place in public

and it did not involve prostitution. Even after

making these assumptions we find that the

appellant's conduct falls outside a_ liberty

interest identified by the Supreme Court because

it involved a person who was “situated in [a]

relationship[] where consent might not easily be

refused.” See Lawrence, 539 U.S. at 578.

The appellant was LG’s employer and was

20 years older than LG. LG viewed the

appellant as a father figure. She was an integral

part of the appellant’s family--spending

weekends with the family, attending church, and

shopping with the family. When LG started

babysitting for the appellant she was a 14-year-

old virgin. Over several years, the appellant

aggressively encouraged LG to engage in sexual

activities with him. These activities started with

kissing, then escalated to fondling and brushing

up against her breasts and body. The appellant

showed LG pornography, to include videos and

magazines, then later exposed his penis in front

of her, and placed a vibrator inside her vagina.

The activities then progressed from oral sex, to

sexual intercourse, and finally to anal sodomy.

LG testified that she was concerned about

pleasing the appellant and sought his approval.

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She also testified on several occasions

that she was confused about her relationship

with the appellant. The appellant’s progressive

grooming of his subordinate babysitter, when

she was 14 and I5 years old, spawned a

relationship where LG’s consent at the age of 16

and older might not easily be refused. ‘This is

not the type of private sexual relationship that

qualifies for protection under Lawrence. Article

125, UCMJ., is constitutional as applied to this

appellant. 2

The appellant argues this Court cannot find

criminal liability because he was not pui on

notice or given an opportunity to oppose the

prosecution’s evidence concerning the concept

of grooming. As a result, the appellant claims

he was denied due process. We find the

appellant’s argument unpersuasive. This

Court’s finding of a pattern of grooming is

merely a conclusion we reached after careful

review of the evidence in this case. LG’s tender

age of 14 when the appellant first approached

her sexually, the age disparity between the

appellant and LG, the progressive and

aggressive nature of the sexual activity over

time, as well as LG’s admitted confusion about

her relationship with the appellant, were all facts

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presented at trial. Therefore, the

appellant was most certainly on notice of this

evidence.

Likewise, the appellant’s complaint that he

was denied an opportunity to oppose the

evidence on the theory that LG was in a

relationship where consent could not easily be

refused lacks merit. Specifically, the defense’s

theory of the case was that LG totally fabricated

the accusations against the appellant. They

asserted that these events never happened. In

light of the other charges pending against him,

we find it disingenuous for the appellant to now

argue the sodomy was consensual, when at trial,

he denied the other closely related sexual

offenses ever occurred.

We also analyzed this case in light of United

States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F.

2006). Assuming arguendo the defense were

given an opportunity to contest the

government’s evidence that LG was a person

who might not easily refuse consent, we are not

convinced that any additional evidence would

have overcome the Lawrence factors not in

dispute. For example LG's age, employment

status, and the age disparity between the

appellant and LG could not be _ refuted.

Morcover, the appellant's trial defense counsel

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vehemently attacked those facts that could

be contradicted by impugning LG’s credibility.

They challenged LG’s ability to recall certain

details and revealed to the panel members that

LG had lied under oath numerous times in the

past. Trial defense counsel argued in his closing

statement that LG was clearly not credible and

was a “confessed liar.” And trial defense

counsel suggested possible motives for why LG

would lie about the sexual encounters. The

panel members heard the extensive cross-

examination of LG, and they determined that the

events occurred. Under these circumstances,

coupled with the absence of any proposed

evidence the defense would have used to

counter the prosecution’s evidence that LG was

groomed and lacked the ability to easily refuse

consent, we are convinced beyond a reasonable

doubt that the members would have arrived at

the same conclusion.

Legal and Factual Sufficiency

Finally, the appellant argues the sodomy

conviction is factually insufficient.” We have

conscientiously read the record of trial and

determined the specification is legally and

factually sufficient. See Jackson v. Virginia,

* This assignment of error was raised by the appellant

during oral argument, but was not breted.

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443 U.S. 307, 319 (1979); United States

v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987).

Specifically, LG testified that the appellant

anally sodomized her several times beginning in

the summer of 1996. She said the appellant

wanted to try something new, so she “allowed

him.” She indicated the anal sodomy ended in

July 1999. As a result, we are convinced of the

appellant’s guilt beyond a reasonable doubt.

Conclusion

For the reasons set forth in Banker, 57 M.J.

at 706, and those contained herein, the finding

of guilty of Specification 1 of Charge III is

modified as follows: Of Specification 1 of

Charge III, guilty, except the words “and

digitally penetrating her vagina” Of the

excepted words, not guilty. The finding of

guilty of Specification 2 of Charge Ill is set

aside and dismissed. We are still confident that,

even with the modification in the findings, the

appellant would have received the same

sentence as that which was adjudged. See

United States v. Peoples, 29 M.J. 426, 428

(C.M.A. 1990); United States vy. Sales, 22 M.J.

305, 307 (C.M.A. 1986). We also find this

sentence appropriate.

The approved findings. as modified, and

sentence, as reassessed, are correct in law and

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fact. Article 66(c), UCMJ, 10 US.C §

866(c); United States v. Reed, 54 M.J. 37, 41

(C.A.A.F. 2000). Accordingly, the approved

findings, as modified, and the sentence, as

reassessed, are

AFFIRMED.

OFFICIAL

LOUIS T. FUSS, TSgt, USAF

Chief Court Administrator

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Appendix D

UNITED STATES, Appellee

Vv.

GREGORY P. BANKER,

Staff Sergeant U.S. Air Force,

Appellant .

No. 03-0128

Crim. App. No. 34531

M.S.

—_— oe

United States Court of Appeals for the

Armed Forces

Decided February 79, 2007

On consideration of the petition for grant of

review of the decision of the United States Air

Force Court of Criminal Appeals, said petition

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is granted and the decision of the United

States Air Force Court of Criminal Appeals is

affirmed.

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