U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201500230
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.

                      ANDREW P. SHOLTES
      Lieutenant Commander (O-4), Chaplain Corps, U.S. Navy
                           Appellant
                    _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

  Military Judge: Captain Bethany Payton-O’Brien, JAGC, USN.
  Convening Authority: Commander, Navy Region Southwest, San
                         Diego, California.
 Staff Judge Advocate’s Recommendation: Lieutenant Commander,
   Jonathan Dowling, JAGC, USN. Addendum: Commander D.J.
                        Jones, JAGC, USN.
    For Appellant: Lieutenant Jacqueline Leonard, JAGC, USN.
       For Appellee: Lieutenant Taurean Brown, JAGC, USN.
                      _________________________

                       Decided 18 January 2017
                       _________________________

   Before PALMER, C AMPBELL , and H UTCHISON , Appellate Military
                               Judges
                      _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   CAMPBELL, Senior Judge:
   At a contested general court-martial, officer members convicted the
appellant of four indecent liberty with a child specifications and three
conduct unbecoming an officer and a gentleman specifications, violations of
Articles 120, 133, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 920, 933, and 934 (2012).1 The convening authority approved the
adjudged sentence of a dismissal and 44 months’ confinement.
    In two original assignments of error (AOEs), the appellant contends the
military judge abused her discretion by failing to admit evidence of the
victim’s prior sexual history and drug use. In a supplemental AOE, he further
argues the military judge erred in providing findings instructions to the
court-martial members regarding the standard of proof required for
conviction.2 Having carefully considered the record of trial and the parties’
submissions, we conclude the findings and sentence are correct in law and
fact and find no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
    In 2003, the appellant, a Navy chaplain, began dating then ten-year-old
T.R.’s mother, with whom T.R. lived. The appellant and T.R.’s mother
married in early 2005. After the wedding they all lived together in Nevada for
a few months until they all moved to the appellant’s new duty station in
Guam that summer.
    At the end of the following year, during December 2006, when she was 13
years old, T.R. remained in Guam with the appellant while her mother
visited family in Nevada. During his wife’s absence, the appellant handed
T.R. a bag of her mother’s lingerie from a bedroom closet. He then assisted
T.R. in putting on some of the items. He was in the bedroom as she changed
into and modeled three different outfits. T.R. recalled the appellant telling
her that she had “a perfect ass and that [she] looked sexy” in the lingerie.3
    A few months afterwards, according to T.R.’s testimony, the appellant
talked to her about photographs. He explained that a woman with a body
very similar to T.R.’s posted pictures of herself in provocative clothing on the
internet for money. He suggested that T.R. should earn income the same way.
   Later in 2007, as the appellant and his wife were leaving home for a
command function, he told T.R. she could watch a video to “learn how to give


   1  Three indecent liberty specifications involve violations of the pre-October 2007
version of Article 134, UCMJ, and one involves a violation of the October 2007
version of Article 120, UCMJ.
   2  We found no error in the use of the same challenged reasonable doubt
instruction in United States v. Rendon, 75 M.J. 908, 916-17 (N-M. Ct. Crim. App.
2016), petition for review filed, __ M.J. __ (C.A.A.F. Dec. 30, 2016) (No. 17-0168/MC)
and in accordance with that holding, we summarily reject the appellant’s
supplemental AOE here. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
   3   Record at 416.

                                          2
blow jobs.”4 Although their accounts differed about whether he physically
handed the instructional video of adults performing oral sex to her, both the
appellant and T.R. testified that the tape was in their living room and the
appellant at least suggested T.R. view it while she was home alone. The
appellant admitted at trial that the video was not appropriate for a 14-year-
old. But he explained that at the time he thought it was an effective tool for
educating his step-daughter about potential health risks of oral sex.
    During 2010, after the family moved to California, the appellant began
crediting T.R., now at least s 16 years old, ten dollars per page to write about
her sexual encounters as payment towards her automobile repair and
insurance expenses. He testified that finding her sexually graphic personal
diary entries in 2009 had revealed T.R.’s risky behavior. He hoped journaling
for him would help her recognize the self-destructive nature of her actions
and also provide research material for a book he intended to write about
teenage sexuality.
   The appellant deployed in April 2010, but T.R. continued writing journal
entries and editing them based on the appellant’s feedback—provided via
audio recordings and Facebook messages, in which he requested additional
sexual details. T.R.’s extended family learned about the journaling during the
summer of 2010. Their concerns resulted in T.R. moving to live with her
grandparents before the appellant returned from deployment. While T.R.’s
mother initially remained with the appellant, they divorced in 2012.
                                  II. DISCUSSION
A. Evidence regarding T.R.’s prior sexual behavior
   1. Trial proceedings
    In a pretrial motion, the trial defense counsel moved to introduce evidence
of T.R.’s prior sexual activities, including the journal entries about her teen-
aged sexual encounters, under MILITARY RULE OF EVIDENCE (MIL. R. EVID.)
412(b)(1)(C), SUPPLEMENT TO THE MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), which excepts evidence “the exclusion of which would
violate the constitutional rights of the accused,” from the rule’s general
prohibition of evidence of an alleged victim’s “sexual behavior or
predisposition.”5 The defense sought use of this evidence to demonstrate that

   4   Id. at 420.
    5 The defense included five categories of T.R.’s alleged prior sexual behavior and

predisposition in the motion in limine: (1) teenaged sexual acts with persons other
than the appellant; (2) preteen or teenaged “mooning” people; (3) teenaged
masturbation; (4) victimization in a non-consensual sexual encounter by a person
other than the appellant; and (5) recording journal entries about teenaged sexual
acts with persons other than the appellant. Appellate Exhibit XXV.

                                          3
the appellant’s motives for establishing boundaries on T.R.’s behavior were
within the lawful bounds of parenting.
    The government did not oppose, and actually sought, admission of the
journal entries made at the appellant’s behest. So as an initial matter, the
military judge determined the government could admit the journal entries,
with the court giving the members a limiting instruction, for the sole purpose
of supporting the allegation that the appellant solicited T.R. to write and
provide the entries to him in exchange for money as conduct unbecoming an
officer and gentlemen, in violation of Article 133, UCMJ—Charge II,
Specification 2. She found all of the other sexual activities, including
teenaged sexual acts with persons other than the appellant, irrelevant under
MIL. R. EVID. 412(b)(1)(C). But she further ruled that if the appellant
“testifie[d] as the defense proffer[ed, some of] the evidence would then become
relevant to show the [appellant’s] state of mind as to the reasoning behind
the journal entry-keeping.”6 Specifically, T.R.’s prior sexual acts with persons
other than the appellant were deemed “conditionally relevant upon the
[appellant’s] testimony . . . that he believed T.R. was engaging in reckless
sexual behavior . . . .”7
    Trial defense counsel twice asked for reconsideration of the MIL. R. EVID.
412 ruling—once after the prosecution’s opening statement and again after
T.R.’s direct examination. Both times the military judge left unaltered her
requirement for the appellant’s testimony on his concerns about T.R.’s sexual
acts with other people before allowing defense questions about the
circumstances of that sexual behavior.
    T.R. was then cross-examined about the following: (1) the level of
involvement her mother and the appellant had in her life while they were a
couple, including their discussions with her about sex; (2) the difference
between compliments about her physique she received from her mother and
the appellant; (3) her virginity and sexuality; (4) the surrounding
circumstances of her viewing the oral sex instructional video; (5) the
appellant’s disapproval of her behavior at times and his corrective actions; (6)
the journal entries written for the appellant; (7) the appellant’s giving her sex
toys as gifts; (8) the circumstances leading to the reports to law enforcement
during 2013 and her family’s influence on her story; and (9) conversations
with her biological parents about potentially filing a civil suit against the
appellant.
    The appellant later testified that none of his interactions with T.R. were
intended to arouse his or her sexual desires and, in fact, he only attempted to

   6   Id. at 6.
   7   Id. (emphasis in original).

                                       4
deescalate hers.8 Inconsistently, at times, with the MIL. R. EVID. 412 ruling,
he testified that he had felt obligated to curb various disturbing sexual
behaviors T.R. specifically displayed: recording entries in her personal diary
about having sex; having her initial sexual experience occur on a school bus;
masturbating with kitchen utensils and her mother’s vibrator; electronically
sharing her sexually suggestive pictures; and “sexting.”9
    At the resulting Article 39(a), UCMJ, session, the military judge
admonished the civilian defense counsel for eliciting testimony directly
contravening her ruling (some of the history of masturbation), and for
introducing new alleged sexual behavior (additional masturbation and
sexting) without complying with the MIL R. EVID. 412 notice requirements.
When the members returned, she advised them to disregard those portions of
the appellant’s testimony.


    8The appellant specifically testified about his motivations regarding the decision
to ask T.R. to journal about her sexual experiences:
               To deescalate her sexual experiences, because she was like a
          runaway train. I—I had a chance to either slow her down or just
          stand by the tracks and try to flag her down to jump on the train. . . .
          It’s a well[-]established known therapeutic method when we required
          a patient to face their [sic] pattern of risky or damaging or self-
          harming behavior to keep a journal so they can—one, they will find
          their actions accountable, that they will have to write about this.
Record at 632. The appellant further explained what happens when those journaling
later read their entries as part of this therapeutic model:
              They go through a negotiating phase when they—when they try
          to explain why they are doing what they are doing, and it’s the—the
          therapist’s job to—to guide that conversation so they will realize what
          is acceptable and what is not acceptable as opposed to telling them
          what is acceptable and not acceptable.
Id. at 633. Part of the appellant’s direct examination unambiguously addressed the
defense theory articulated during the MIL. R. EVID. 412 litigation:
             Q: This mode that you chose to deal with burgeoning sexuality,
          runaway sexuality, that’s a fairly unusual thing for a father to do?
              A: In America, yeah, I guess so. It’s a weird position. It’s—can
          look creepy.
              Q: Did you believe that the danger was so great that you had to
          do something different and unusual?
              A: Yes, sir, absolutely.
Id. at 634.
    9   Id. at 626-46.

                                             5
   2. Alleged abuse of discretion
    The trial court’s decision to admit or exclude evidence under MIL. R. EVID.
412 is reviewed for an abuse of discretion. United States v. Ellerbrock, 70 M.J.
314, 317 (C.A.A.F. 2011) (citing United States v. Roberts, 69 M.J. 23, 26
(C.A.A.F. 2010)). “A military judge abuses h[er] discretion when: (1) the
findings of fact upon which [s]he predicates h[er] ruling are not supported by
the evidence of record; (2) if incorrect legal principles were used; or (3) if h[er]
application of the correct legal principles to the facts is clearly unreasonable.”
United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citation omitted). An
abuse of discretion also occurs when “the military judge’s decision on the
issue at hand is outside the range of choices reasonably arising from the
applicable facts and the law.” United States v. Miller, 66 M.J. 306, 307
(C.A.A.F. 2008) (citations omitted). We review the findings of fact under a
clearly erroneous standard and the conclusions of law de novo. Roberts, 69
M.J. at 26.
   The appellant now argues the military judge abused her discretion, in
that: 1) preventing the appellant from cross-examining T.R. about an oral sex
encounter on a school bus before the appellant provided the instructional
video to her violated the appellant’s constitutional rights to confrontation
under the Sixth Amendment, and due process; 2) determining evidence of
T.R.’s masturbation was neither relevant nor constitutionally required to
defend against the allegations of the appellant gifting T.R. sex toys,10
resulted from a misapplication of the MIL. R. EVID. 412 balancing test; and 3)
excluding evidence of T.R.’s prior sexual acts with persons other than the
appellant “impeded [the appellant] from effectively challenging the
Government’s evidence . . . [on] the intent element” for “more than half of the
charges—Charges I and III and all specifications thereunder.”11 We agree



   10  Gifts of sex toys, given on different dates and at different locations, were
alleged as a violation of Article 120, UCMJ, in the indecent liberty with a child
specification under Charge I, and as a violation of Article 133, UCMJ, in one of the
conduct unbecoming an officer and gentleman specifications under Charge II.
    11 Appellant’s Brief of 19 Jan 2016 at 20-22. The sole specification under Charge I

alleged an indecent liberty with a child in violation of Article 120, UCMJ, by giving
T.R., a female under the age of 16, a sex toy (dildo) with the intent to arouse the
appellant’s or her sexual desires. The three specifications under Charge III alleged
indecent liberties with a child in violation of Article 134, UCMJ—by respectively
having T.R. put on and wear her mother’s lingerie for the appellant while he said
“you look sexy,” with the intent to arouse his sexual desires; encouraging T.R. to take
sexually suggestive photographs of herself and publish them online, with the intent
to appeal to his sexual desires; and giving T.R. a video depicting adults performing
oral sex, with the intent to appeal to her sexual desires.

                                          6
that the military judge abused her discretion, but only regarding exclusion of
the masturbation evidence presented in the MIL. R. EVID. 412 motion.
   a. Admissibility of prior oral sex evidence
   The appellant avers it was an abuse of discretion to exclude T.R.’s cross-
examination “on the school bus incident, which prompted [the appellant] to
give her the oral sex video.”12 However, the record and the pleadings clearly
indicate such evidence was not actually excluded from the trial.
   According to the appellant, in unsuccessfully renewing the motion to
reconsider the MIL. R. EVID. 412 ruling after T.R.’s direct examination, “[t]he
defense wanted to cross-examine” her about “whether her parents may have
had reason to be concerned” and “what may have motivated [the appellant] to
respond.”13 Even though the military judge denied the motion to reconsider,
the trial defense counsel nonetheless addressed those very concerns during
T.R.’s cross-examination:
         Q: You also talked about the topic of losing your virginity and
         how it came up yesterday. You mentioned that Lieutenant
         Commander Sholtes initiated these conversations, is that
         right?
         A: Yes.
         Q: Just you and him?
         A: He did bring it up with my mom once in a restaurant, and
         then after that he did bring it up along [sic] with myself.
         Q: Okay. So I’m clear now. So the—at one point the three of
         you were there communicating about loss of virginity, right?
         A: Yes.
         Q: Okay. All right. So this—this sex video thing came up
         yesterday?
         A: Yes.
         Q: You described it in detail?
         A: Yes.
         Q: Your house—do you have more than one video in your
         house?
         A: Yes.


   12   Id. at 14.
   13   Id. (footnote omitted).

                                          7
         Q: Everybody’s digitally downloading now, but at that time did
         you have like a bookshelf of videos?
         A: Yes.
         Q: That’s in your family room?
         A: Yes.
         Q: Near wherever the—the DVD player or something?
         A: Yes.
         Q: One of those videos was this sex education video, right?
         A: I don’t recall it being out in the open. I believe that he
         grabbed it from his room.
         Q: Right. That’s what you said yesterday.
         A: Yes.
         Q: Okay. So you have this video. You asked your mom and
         Lieutenant Commander Sholtes if you could watch it, right?
         A: No. He told—he handed the video to me, and he told me to
         watch this so I could learn how to give blow jobs.
         Q: So—thank you. So your testimony is that he handed you the
         video to watch?
         A: Yes.
         Q: You didn’t get it yourself?
         A: No.
         Q: Didn’t talk to your parents about it?
         A: Not that I recall.
         Q: They didn’t bring anything up about a concerned behavior?
         A: No.14
    The appellant also notes that “[t]he military judge’s ruling made evidence
of T[.]R[.]’s prior sexual acts with persons other than [the appellant]
conditionally relevant on his testimony[,]” so he “was not precluded from
testifying about his knowledge of T[.]R[.]’s sexual activity.”15 Consequently,
evidence regarding T.R.’s prior oral sex was part of the appellant’s testimony
during his direct examination by the civilian trial defense counsel:


   14   Record at 485-87.
   15   Appellant’s Brief of 19 Jan 2016 at 19.

                                            8
      Q: How early did—were there reports by T.R. of shocking
      behavior that concerned you, at what point?
      A: I think 2007 was the first time when I came back from
      Vladivostok with the ship and I was told that T.R. had her first
      sexual experience on a school bus.
      Q: Shocking?
      A: Absolutely. And [T.R.’s mother] told me that, “Now, don’t
      discipline her. Don’t yell at her. Just be supportive. It’s going to
      happen.”
      Q: Were other behaviors reported?
      A: After that incident, we established that modus operandi in
      the family that “T.R., we don’t want to find out from someone
      else. Come to us. We can protect you. We can back you up, but
      don’t lie to us.[”]16
      ....
      Q: Did you give your daughter an oral sex video?
      A: We did.
      Q: Describe the circumstances.
      A: It was after that we were made aware that she has already
      had that kind of an experience. She was also friends with—on
      base. We lived on base.
      Q: Uh-huh.
      A: There was a girl that she hung out with . . . [ ] who actually
      got caught in the teen center----
      Q: I understand. But----
      A: So the danger was there.
      Q: You believed there was a danger?
      A: Yes, sir; and her mother and I were very concerned.
      Q: Did you believe, based on your experience, education, and
      any other indices that your daughter might be involved in such
      behavior?
      A: Yes, sir.17

16   Record at 625.
17   Id. 647-48.

                                       9
         ....
         Q: Was this interaction designed to insight [sic] your sexual
         desire or hers?
         A: No, sir.
         Q: What was the purpose of making this video available?
         A: To protect her from doing something that would harm her.
         That’s my job, to protect her.
         Q: And how did seeing an instructional video on oral sex do
         that, sir?
         A:   Well, sir, I heard some very bizarre stories in my
         counseling, and one of her friends actually got into—got barred
         from a Navy facility for doing something crazy like that.
         Q: Can you be more specific about what your intention was in
         terms of protecting your daughter and how you believed that
         this act would protect your daughter?
         A: That she will know that this is part of human sexuality, it
         is—it is normal, but it is precious. It’s not something that boys
         can just ask for and you will give it to them and—and she will
         feel comfortable with it to—to talk about it.
         Q: Did you believe that that was effective?
         A: She was very surprised to hear when we talked about it
         that you can actually get STD’s with oral sex. She didn’t know
         that.
         Q: And that was part of what was portrayed in the film?
         A: That was part of it, yes, sir.18
    Similarly, during cross-examination by the trial counsel, the appellant
further discussed learning that T.R. had engaged in oral sex shortly before he
allowed her to view the oral sex video:
         Q: So when you met T.R., she was not open sexually?
         A: Right, correct.
         Q: You say you—when T.R. was 14 years old, you had found
         out she was sexually active?
         A: Correct.


   18   Id. at 649-50.

                                          10
         Q: When you found this out, you were floored?
         A: Yes.19
         ....
         Q: Concerned because it was happening on base, is that right?
         You were concerned about the location?
         A: Yeah.
         Q: Because you’re an officer?
         A: Yes.
         Q: Chaplain?
         A: Yes.
         Q: You have a reputation?
         A: Every chaplain has a reputation.
         Q: And it was after that that you gave your stepdaughter a
         video on oral sex?
         A: Yes.
         Q: This video contained real people having oral sex?
         A: Yes.20
    Finally, having triggered the conditional relevance of T.R.’s prior sexual
acts though the appellant’s testimony, the defense had opportunities to
further examine T.R. regarding the evidence related to the appellant’s belief
that T.R. was engaging in reckless sexual behavior. The fact that the defense
neither recalled her before resting nor cross-examined her as a government
rebuttal witness prevents the appellant from properly claiming error now.
See United States v. Shaw, 71 M.J. 557, 558-60 (A. Ct. Crim. App. 2012)
(dismissing the appellant’s claim that exclusion of cross-examination
testimony violated MIL. R. EVID. 412 and the Confrontation Clause of the
Sixth Amendment, because after the witness opened the door in response to a
member’s question to a line of inquiry prohibited by a previous ruling, the
defense “never . . . follow[ed]-up with cross-examination”).
   Even if the military judge abused her discretion in ruling to exclude this
specific evidence in the MIL. R. EVID. 412 motion, no relief is required in the
context of this case. The subject evidence was presented to the court-martial
members at trial despite the military judge’s ruling.

   19   Id. at 661.
   20   Id. at 662-63.

                                         11
    b. Admissibility of prior masturbation evidence litigated before trial
    During the MIL. R. EVID. 412 motion session, the civilian trial defense
counsel articulated a theory of relevance for evidence that the appellant knew
T.R. masturbated in Guam with a hand massager that related to the
allegations of the appellant giving T.R. sex toys as gifts:
          “Wait a minute. She’s already masturbating. She’s already
          doing this. Why shouldn’t I provide her with the means to do
          something she’s already doing and they make a device to do
          that”? So the fact that he actually saw her use the device, and
          now so the Government charges he’s providing her with [a]
          different device certainly provides information and insight
          about masturbation, provides information and insight, “Okay.
          Probably time for me to do something about this. Let’s keep her
          home. Let’s keep her doing what is safe, and I will provide her
          the means.” That’s an explanation for why, assuming the
          Government can demonstrate that he rather than somebody
          else provided those particular items.21
   Without further analysis, the military judge concluded that this incident
was “wholly private behavior [that was] not relevant for any purpose” and
therefore inadmissible.22
    The written ruling properly addressed the burden, standards, and legal
analysis framework applicable to each category of T.R.’s alleged prior sexual
behavior and predisposition that the defense raised, including the teenaged
masturbation. The appellant contends the military judge misapplied the law,
in that she “failed to: (1) evaluate whether evidence that [the appellant] knew
T[.]R[.] engaged in potentially physically harmful behavior was relevant or
material; or (2) evaluate whether [the appellant] had a constitutional right to
confront T[.]R[.] about potential reasons for her step-father to be
concerned.”23
    As a rule of exclusion, MIL. R. EVID. 412(a) makes evidence of an alleged
victim’s sexual propensity and evidence offered to prove an alleged victim
engaged in other sexual behavior generally inadmissible. United States v.

    21   Id. at 90-91.
    22 AE XXV at 7 (emphasis added). We note that because evidence properly
admitted despite MIL. R. EVID. 412’s general prohibition must be conjunctively
“relevant, material, and . . . [have] probative value . . . [which] outweighs the dangers
of unfair prejudice,” Ellerbrock, 70 M.J. at 318, the military judge may validly
determine that evidence is inadmissible upon failure to meet any of the
requirements.
    23   Appellant’s Brief of 19 Jan 2016 at 19.

                                             12
Banker, 60 M.J. 216, 221 (C.A.A.F. 2004). An accused must establish that
“the evidence is relevant, material, and the probative value of the evidence
outweighs the dangers of unfair prejudice” in order to properly admit it under
the MIL. R. EVID. 412(b)(1)(C) constitutionally required exception. Ellerbrock,
70 M.J. at 318 (citing United States v. Gaddis, 70 M.J. 248, 255 (C.A.A.F.
2011)). Despite the rule’s language, our superior court has held that an
alleged victim’s privacy interest, while relevant for MIL. R. EVID. 412
balancing test purposes, is not the dispositive factor, and that such “interests
cannot preclude the admission of evidence ‘the exclusion of which would
violate the constitutional rights of the accused.’” Gaddis, 70 M.J. at 250
(citation omitted); see also id. at 254 (“[T]he rule nowhere provides that if the
privacy interest is high, [MIL. R. EVID.] 412 turns into a rule of absolute
privilege . . . .”).
   “Evidence is relevant if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence and . . . the fact is of
consequence in determining the action.” MIL. R. EVID. 401. Testimony is
material if it is “‘of consequence to the determination of appellant’s guilt.’”
United States v. Dorsey, 16 M.J. 1, 6 (C.M.A. 1983) (citing MIL. R. EVID. 401,
Analysis).
   Having determined that evidence of T.R.’s prior teenaged masturbation in
Guam was not relevant “for any purpose,” the military judge did not address
whether the evidence was material, and whether its probative value
outweighed the unfair prejudice. So we examine the record ourselves in
conducting our de novo review.
    We conclude the evidence that the appellant saw T.R. using a hand
massager to masturbate before he gave her a dildo has a direct and
substantial link to a material fact at issue—whether or not his gift in 2007,
as alleged in the specification under Charge I, was an indecent act or an
attempt to address legitimate parental concerns. The hand massager incident
T.R. described in her NCIS statement may have established a non-indecent
context for the gift. “Because the evidence has a tendency to prove or disprove
a substantial issue in question, it is both relevant and material.” Ellerbrock,
70 M.J. at 321. The conclusion that this evidence was not relevant because it
involved “wholly private behavior,” reflects application of an incorrect legal
principle in light of Gaddis, 70 M.J. at 250, and thus was an abuse of
discretion. See Ellis, 68 M.J. at 344.
    Balancing the probative value of the evidence against the dangers of
unfair prejudice, including the consideration of prejudice to the victim’s
legitimate privacy interests, we further find the evidence was highly
probative. The masturbation incident was essential to the appellant’s



                                       13
opportunity to put on the defense that the civilian trial defense counsel
articulated during the MIL. R. EVID. 412 motion session.
   Consequently, exclusion of relevant and material evidence with probative
value that outweighed the dangers of unfair prejudice violated the appellant’s
constitutional rights to cross-examination and to present evidence of a
defense. In light of this constitutional error, we test whether “there is a
reasonable possibility that the evidence or error complained of might have
contributed to the conviction”—that is, “whether it was harmless beyond a
reasonable doubt.” Ellerbrock, 70 M.J. at 320 (citations and internal quotion
marks omitted). We are satisfied beyond a reasonable doubt the error was
harmless with respect to the court members’ finding that the appellant giving
T.R. the dildo in 2007 was an indecent act as defined by Article 120, UCMJ.
   T.R. testified that in 2007, when she was 14 years old, she received a
purple, six-inch dildo from the appellant at their home in Guam while her
mother was away. She further testified that he claimed it was from his older
daughter, A.R. According to T.R., “[h]e said that [she] could use this to find
out what [she] like[d] in the bedroom and to practice.”24 Afterwards, she hid it
from her mother in numerous places within her room and never showed it to
her mother.
    Before the appellant testified, A.R. was a defense witness. On cross-
examination, she denied ever sending or mailing T.R. any sexual devices.
During his testimony, while maintaining his actions were all done for
legitimate parental purposes, the appellant admitted to showing T.R. the oral
sex video, to giving her three of the four other alleged sex toy gifts after she
turned 16, and to doing all the other alleged actions except one—he
completely denied giving T.R. a dildo before she was 16. He explained that
when they lived in Guam during 2007, “[s]he was a virgin. I wouldn’t do that.
I didn’t. I didn’t want her to lose her virginity to a toy.”25
   The appellant again denied giving T.R. a purple dildo during cross-
examination, stating “[s]he was still a virgin in Guam.”26 He also explained
that he was referring to the dildo T.R. received during 2009 when he
mistakenly told her in a January 2014 pretext phone call that, while he
handed her the dildo, it was actually from A.R. He later talked about it with
A.R., reviewed his online shopping account, and verified that he and his wife
purchased two dildos that they gave T.R in December 2009 and February
2010, as well as vibrating underwear.


   24   Record at 422.
   25   Id. at 637.
   26   Id. at 664.

                                      14
    During the government’s case in rebuttal, the Naval Criminal
Investigative Service (NCIS) special agent who conducted the pretext phone
call testified about T.R. and the appellant’s discussion of the purple dildo in
Guam during the call. She explained that the appellant told T.R. he recalled
the item. When T.R. expressed her doubts that the dildo had really come from
A.R., the appellant responded, “‘No, no, no, that was—it was—definitely it
was from [A.R..]’”27
    Even if the military judge had not excluded the masturbation incident,
the appellant’s consistent denial that he gave T.R. a dildo in Guam
throughout the NCIS investigation and trial testimony convince us that the
court-martial members would not have acquitted the appellant of this
indecent liberty with a child offense. The members, like this court, would
surely find that the appellant did, in fact, give T.R. the dildo in Guam, when
she was 14 years old, under circumstances wholly inconsistent with
legitimate parental concerns.
    c. Admissibility of prior masturbation evidence not litigated before trial
    Beyond the hand-massager masturbation incident, in testifying about the
allegation that giving T.R. a vibrator, vibrating underwear, anal balls and a
dildo after she was 16 years old was conduct unbecoming an officer and
gentleman—Charge II, Specification 3—the appellant explained there were
three reasons he and his former wife gave T.R. this vibrator:
          One, she admitted to us that she was using some of the kitchen
          utensils from Pampered Chef that had kind of girth that—
          appropriate for her. We were grossed out by that. Second is
          that [T.R.’s mother] was concerned that T.R. has been using
          her vibrator. . . . And the third reason was to provide her a safe
          environment where she can curb her sexual urges and she will
          not be going out and looking for another boy.28
    The specific evidence of masturbation that the appellant provided as the
first two reasons, and that the military judge addressed in a curative
instruction for the members to not consider,29 was not part of the defense’s

    27   Id. at 716.
    28   Id. at 640-41.
    29 Id. at 658 (“During the direct examination as conducted by defense counsel of
[the appellant], there was testimony elicited that indicated that T.R. had been
masturbating utilizing household tools, a vibrator of her mother, and words to that
effect. That was impermissible testimony. It was not admissible testimony; and, as
such, you are to completely disregard it and cast it out of your minds as if you had
never heard it. I will tell you that that testimony is not for your consideration on any
matter before this court-martial.”).

                                          15
MIL. R. EVID. 412 motion. While a military judge has the discretion to permit
a motion to be filed during trial under MIL. R. EVID. 412(c)(1)(A), in this case
the defense never even attempted to address the admissibility of additional
prior sexual behaviors beyond those included in the litigated motion before
the members received the appellant’s testimony about them.30
    Consequently, the military judge did not abuse her discretion in excluding
those portions of the appellant’s testimony that violated MIL. R. EVID. 412’s
procedural requirements for advanced notice and litigation. See United States
v. Brown, No. NMCCA 9901754, 2005 CCA LEXIS 188, at *9-15 (N-M. Ct.
Crim. App. 23 Jun 2005) (upholding the military judge’s ruling that “MIL. R.
EVID. 412 barred the [appellant’s] proffered” cross-examination “testimony” of
“prior attempted sexual contact with [the alleged] victim” partially “due to
the trial defense counsel’s failure to file a written motion at least five days
prior” and thereby “failing to provide the required notice under MIL. R. EVID.
412”).
   d. Admissibility of prior sexual acts with persons other than the appellant
    The appellant contends that “[e]xcluding evidence of T[.]R[.]’s prior sexual
acts impeded [the appellant] from effectively challenging the Government’s
evidence because he could not defend against the intent element.”31 However,
like the evidence of the oral sex discussed above, this evidence was not
actually excluded from the trial testimony.
    For example, T.R. testified that her sexual partners included within the
journal entries for which the appellant compensated her were real people and
were her actual sexual partners. She also admitted, “I wouldn’t put it past
myself to put a list of my sexual partners in a diary, yes” in response to
questions about her personal journal that the appellant found in her room.32
The appellant also testified to various prior sexual acts by T.R. and that they
concerned him. He explained that her behavior and his concerns are why he
took the measures with her that resulted in his charges at trial.
   So, once again, even if the military judge abused her discretion in the
MIL. R. EVID. 412 ruling, no relief is required when that ruling did not
actually prevent the appellant from presenting this evidence at trial.


   30 Id. at 655-56 (“[I]n your motion you provided no such indication of the evidence
that you elicited from your client on the stand today, contrary to [MIL. R. EVID.] 412.
You gave the Court no notice that there was going to be any testimony elicited
regarding the matters of masturbation . . . . I plan to give the members an instruction
to completely disregard that testimony . . . .”).
   31   Appellant’s Brief of 19 Jan 2016 at 22.
   32   Record at 507.

                                            16
B. Evidence regarding T.R.’s prior drug use
   1. Trial proceedings
    In a pretrial motion, the trial defense counsel sought production of T.R.’s
mental health records under MIL. R. EVID. 513 in order to identify
inconsistent statements and conditions impacting T.R.’s competence to
testify. The redacted portions of the mental health records that the military
judge deemed relevant and released following an in camera review noted
methamphetamine use by T.R. and her mother. Before trial, T.R. testified
about those references. She confirmed monthly methamphetamine use with
her mother during mid-2012 through August 2013, and that she had also
used cocaine and marijuana on various occasions during her high school
years. The trial defense counsel’s only follow-up to the military judge’s
examination was about T.R.’s preferred method of methamphetamine use.
    Just before opening statements, the trial counsel moved to exclude
evidence of T.R.’s methamphetamine use, arguing that such evidence was
irrelevant, unduly prejudicial, and confusing to the members. The trial
defense counsel argued the evidence was admissible based upon its relevance
regarding T.R.’s potentially impaired perception, competency, and memory as
a witness. In an Article 39(a), UCMJ, session following T.R.’s direct
examination, T.R. testified outside of the members’ presence that she had not
used any methamphetamine between the time she met with the mental
healthcare provider and when she met with NCIS officials in November 2013.
She further testified that she had not been under the influence of any illicit
drugs anytime since her November 2013 meeting with NCIS. The trial
defense counsel noted that a therapist diagnosed T.R. as having
amphetamine dependence on 21 October 2013. The military judge further
noted that during “subsequent visits” the treating psychologist indicated that
T.R.’s thoughts were “clear and linear” and found “no indication that [T.R.]
has any other psychological problems.”33
   After considering a defense expert’s affidavit regarding the potential
impacts of methamphetamine use, evidence that T.R. was not using any
drugs around the time of reporting allegations to NCIS, and the lack of
evidence that T.R. suffered from any cognitive impairment, the military judge
concluded evidence of T.R’s drug use was irrelevant. She further concluded,
“even if it was minimally relevant, under [MIL. R. EVID.] 403 this is just a
smear campaign. [The defense] want[s] to show that [T.R.]’s a drug user. I
won’t allow the testimony.”34 The military judge also determined there was
no “material inconsistency” between T.R.’s Article 32, UCMJ, testimony

   33   Id. at 470.
   34   Id.

                                      17
about drug use during an earlier, specific time frame and the subsequent
methamphetamine use.35
   2. Alleged abuse of discretion
    The appellant argues the military judge abused her discretion when she
excluded evidence of T.R.’s drug use and thereby denied him the fundamental
rights to confront and cross-examine T.R. Specifically, he claims this ruling
“prevented the defense from attacking T[.]R[.]’s allegations against [him] and
exploring her motive to fabricate or embellish the nature of the charges.”36
    Again, we review the military judge’s ruling to exclude this evidence for
an abuse of discretion. Roberts, 69 M.J. at 26. To constitute an abuse of
discretion, the challenged ruling must be “arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” United States v. Travers, 25 M.J. 61, 62-
63 (C.M.A. 1987) (citations and internal quotation marks omitted). We review
findings of fact under a clearly erroneous standard and conclusions of law de
novo. United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011). An appellant’s
Sixth Amendment rights are violated when a “reasonable jury might have
received a significantly different impression of [a witness’] credibility had
[the trial defense counsel] been permitted to pursue his proposed line of
cross-examination.” United States v. Jasper, 72 M.J. 276, 281 (C.A.A.F. 2013)
(citation and internal quotation marks omitted).
   The trial defense counsel argued T.R.’s drug use was relevant to challenge
her memory association and perception, impeach her credibility, and reveal a
motive to fabricate—to “protect[] mom from potential redress I guess for her
[drug] use.”37
    We do not find the military judge’s decision “outside the range of choices
reasonably arising from the applicable facts and the law.” Miller, 66 M.J. at
307; see United States v. Weeks, 17 M.J. 613, 614-15, (N.M.C.M.R. 1983) (per
curiam), rev’d on other grounds, 20 M.J. 22 (C.M.A. 1985) (upholding the
military judge’s decision to preclude the appellant from cross-examining a
witness on “incidents of past drug usage or sale” because they “do not
necessarily demonstrate” either “character for truthfulness” or “motive or
bias . . . under [MIL. R. EVID.] 608(c),” unless there are “unique
circumstances” producing “a recognizable motive to” testify falsly) (internal
quotation omitted).




   35   Id. at 471.
   36   Appellant’s Brief of 19 Jan 2016 at 9.
   37   Record at 370.

                                            18
                           III. CONCLUSION
    The findings and sentence as approved by the convening authority are
affirmed.
   Chief Judge PALMER and Judge HUTCHISON concur.
                                    For the Court



                                    R.H. TROIDL
                                    Clerk of Court




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