UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

HAIGHT, PENLAND, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class JARRID R. LOVETT 

United States Army, Appellant 

ARMY 20140580 

Headquarters, Fort Knox 

Steven E. Walburn, Military Judge (arraignment and pretrial motions) 

Gregory R. Bockin, Military Judge (pretrial motions and trial) 

Colonel Christopher T. Fredrikson, Staff Judge Advocate (pretrial) 

Colonel E. Edmund Bowen, Jr. Staff Judge Advocate (post-trial) 

For Appellant: Major Aaron R. Inkenbrandt, JA; Captain Heather L. Tregle, JA. 

For Appellee: Major A.G. Courie, III, JA. 

29 April 2016 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge: 

A general court-martial composed of officer members convicted appellant, 

contrary to his pleas, of one specification of sexual assault, in violation of Article 

120(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 920(b)(2) [hereinafter 

UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement for 

four years, forfeiture of all pay and allowances, reduction to the grade of E-1, and 

hard labor without confinement for three months. The convening authority 

disapproved the hard labor without confinement but otherwise approved the sentence 

as adjudged. The automatic forfeitures were waived for a period of six months. The 

adjudged forfeitures were deferred until action. At action, the adjudged forfeitures 
LOVETT—ARMY 20140580 

2 

were suspended for forty-three days at which point, as they had not been earlier 

vacated, they were remitted.1

 

Appellant’s case is now before this court for review pursuant to Article 66, 

UCMJ. Appellant submitted this case on its merits. However, we find two matters 

warrant detailed discussion, including matters raised by appellant pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).2 

 

1

 The combined effect of the deferment, suspension, and waiver of the adjudged and 

automatic forfeitures was that appellant’s dependents received the otherwise 

forfeited pay for a period of six months. 

2

 The Grostefon matters raised by appellant but not discussed in detail are as 

follows: 

First, appellant claims that his due process and equal protection rights were violated 

with regards to the issue of “voluntary intoxication.” We agree with the military 

judge that when, as here, the sexual act does not involve a specific intent 

requirement, appellant’s voluntary intoxication is not legally relevant to whether he 

committed the offense. See Rule for Courts-Martial [hereinafter R.C.M.] 916(l)(2) 

(“evidence of any degree of voluntary intoxication may be introduced for the 

purpose of raising a reasonable doubt as to the existence of actual knowledge, 

specific intent, or premeditated design to kill . . . .”) 

Second, appellant argues the military judge erroneously denied his request for an 

expert consultant in forensic psychology. We find the military judge’s denial of the 

motion was within his discretion. 

Third, appellant complains that the military judge impermissibly restricted 

appellant’s general voir dire questions. Neither party followed the military judge’s 

pretrial order on the submission of general voir dire questions. We find that the 

military judge did not abuse his discretion in limiting the general voir dire 

questions, and in any event, any error was harmless given the liberal individual voir 

dire of every panel member. 

Fourth, appellant avers that the military judge improperly excluded the recording of 

a 911 call that summoned the police to the scene of the assault and subsequent 

altercation. We do not find error in the military judge’s ruling at the time he made 

it. To the extent that the government’s cross-examination of the witness opened the 

door to admitting the recording, appellant did not ask the military judge to revisit his 

ruling. Even assuming error, we find no prejudice given that the 911 recording was 

(continued...) 
LOVETT—ARMY 20140580 

3 

I. BACKGROUND 

Specialist (SPC) WL lived on Fort Knox, Kentucky. Specialist WL was a 

platoon mate, battle buddy, friend, and neighbor of appellant. Both of their wives 

were also friends. Specialist WL was the primary witness for the government in 

testifying as to the charged offense and testified as follows: 

On 30 May 2013, after the unit had been given time off to spend with family 

in anticipation of an upcoming deployment, SPC WL had a barbecue at his house. 

SPC WL and appellant together purchased beer and hard liquor for the get-together. 

SPC WL, appellant, both of their wives, as well as other neighbors attended the 

party. During the course of the evening, SPC WL’s wife, Mrs. SL, became grossly 

intoxicated after drinking beer and hard liquor on an empty stomach. 

After Mrs. SL fell down outside and vomited in the yard, SPC WL assisted his 

wife to the house. Inside the house, she continued to vomit in the bathroom, 

eventually emptying the contents of her stomach. After she stopped throwing up for 

a minute, SPC WL decided he needed to get her into bed. With her arm around him, 

he walked her towards the bedroom. Once in the bedroom, Mrs. SL vomited bile and 

began to “dry-heave.” She then urinated on herself. SPC WL removed his wife’s 

shorts and underwear, attempted to clean her up, and placed her in her bed and 

covered her with blankets. From the point they entered the bedroom, SPC WL 

 

(...continued) 

cumulative with the testimony of the neighbor who called 911 and testified for the 

defense as to what he saw and heard. 

Fifth, appellant complains that the military judge improperly gave an instruction 

limiting the permissible uses of Sergeant (SGT) Arcovio’s testimony. The limiting 

instruction was crafted by both parties and appellant’s counsel specifically agreed 

that the instruction was “an appropriate limiting instruction.” We find appellant 

waived the issue. 

Sixth, appellant complains that he was served two different convening authority 

actions. In our review of the post-trial matters, it appears that the staff judge 

advocate forwarded with the post-trial recommendation (SJAR) an unsigned draft 

version of the proposed convening authority action. The SJAR and the draft action 

did not recommend or provide for clemency. We find no error in providing 

appellant a copy of the proposed action. Providing the proposed action before he 

submitted clemency matters made transparent the potential effect of the SJAR’s 

recommendation. Even assuming error, appellant forfeited the issue by failing to 

object and he has not demonstrated the material prejudice of any substantial rights. 

See R.C.M. 1106(f)(6). 
LOVETT—ARMY 20140580 

4 

testified that he “was trying to talk to her. And she wasn’t responding to anything.” 

Appellant was with SPC WL the entire time he was assisting his wife. 

Specialist WL then turned off the bedroom lights, left the door cracked open, 

and went outside to have a cigarette with appellant. As the party wound down, SPC 

WL told appellant that “[t]he party’s pretty much over” and that appellant should 

help himself to whatever beer there was in the refrigerator to take home. Because he 

escorted another drunk guest home, SPC WL did not see appellant for about the next 

twenty minutes. 

When SPC WL returned to his house, he found the bedroom door he had left 

ajar was now shut and locked. Unlocking and opening the door, SPC WL saw 

appellant on top of Mrs. SL having sex with her. Specialist WL yelled a vulgarity at 

appellant, who then rolled off of Mrs. SL and began buttoning his pants. Appellant 

attempted to explain to SPC WL that it wasn’t what it looked like and that appellant 

had only been “dry humping” Mrs. SL. When asked if his wife appeared conscious 

at the time of the incident, SPC WL testified that “she didn’t seem like she knew 

what was going on.” 

Appellant and SPC WL then began a verbal and physical fight that started in 

the bedroom and continued outside. Specialist WL testified that appellant continued 

to try to tell him that what he had seen was something other than what it appeared 

and asked SPC WL not to involve the military police. While outside, the two 

continued to shout expletives at each other. The altercation ended when the military 

police, summoned by a neighbor, arrived just as appellant was putting a hacksaw 

blade to his neck and threatening to kill himself. 

Mrs. SL testified that she had only a hazy recollection of the evening. She 

remembers hearing her husband yelling in the room and hearing the fighting, but 

without opening her eyes or trying to get up. She stated that she had no memory of 

having sex with appellant but did remember having some vaginal pain the next day. 

On cross examination, Mrs. SL testified that she told someone, but could not 

remember as to whom, that she had thought she was having sex with her husband. 

In addition to the testimony of SPC WL and Mrs. SL, the government called 

neighbors (to include appellant’s wife) and first responders to testify to their 

observations about how much alcohol Mrs. SL consumed, how drunk she appeared, 

and some of her statements made to medical personnel. The government also called 

a toxicologist and a DNA examiner. The DNA examiner testified that swabs taken 

from appellant’s genitals had DNA consistent with that of Mrs. SL. Finally, the 

government called a law enforcement agent who testified that appellant presented 

evolving stories about the night in question as he was confronted with evidence 

before ultimately admitting that Mrs. SL was not an active participant in the sexual 

intercourse. 
LOVETT—ARMY 20140580 

5 

In defense, appellant presented witness and expert evidence that Mrs. SL was 

not as drunk as the government witnesses claimed. Additionally, the defense called 

Sergeant (SGT) Arcovio, the neighbor who dialed 911. Sergeant Arcovio testified 

that he called 911 after hearing the following exchange: 

Person 1: “I’m going to kill you,” 

Person 2: “I don’t know . . . what you’re talking about” 

Person 1: “I walked in on you. You were butt naked on 

top of my wife. I’m gonna f**king kill you, and I’m 

gonna f**king kill her.” 

 Although SGT Arcovio could not identify the speakers, it was clear that SGT 

Arcovio was describing the altercation between SPC WL and appellant. The defense 

argued that SPC WL’s threat to kill his spouse created a motive for her to fabricate 

her claims of incapacity in order to avoid her husband’s anger. 

II. DISCUSSION 

A. Defense Request That the Military Judge 

Define “Incapable of Consenting.” 

 During an Article 39(a), UCMJ, session, the military judge discussed 

instructions with both parties. The defense complained that the instructions 

contained “insufficient guidance from the court concerning impairment.” The 

defense asked the military judge to provide additional instructions on “what 

impairment means” and “under what circumstances a drunk person can consent.” 

The defense did not propose any specific instruction.3

 The government opposed any 

deviation from the instructions contained in the Military Judges’ Benchbook. See 

Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter 

Benchbook], para. 3-45-14 (1 Jan. 2010). The military judge noted the defense’s 

 

3

 Separately, the defense did propose an alternate instruction regarding the element 

that appellant “knew, or reasonably should have known” that the victim was 

incapable of consenting. The defense claimed that this imposed an 

unconstitutionally low mens rea standard of negligence on appellant and proposed 

that the military judge instruct the panel that a “reckless” or “culpably negligent” 

standard be used instead. The military judge rejected the defense’s proposed 

instruction. The defense’s motion aptly foreshadowed much of the thinking and 

logic of the Supreme Court’s subsequent decision in Elonis v. United States, 135 S. 

Ct. 2001 (2015). However, the Court’s decision in Elonis was clear that the holding 

of that case was limited to cases where the statute was silent on mens rea. Id. at 

2010.
LOVETT—ARMY 20140580 

6 

objection but did not provide additional instruction beyond what was provided in the 

Benchbook. 

 On appeal, appellant claims that the military judge erred to his prejudice by 

failing to define the terms “incapable” and “impairment.” As appellant objected at 

trial, the issue is preserved on appeal. Nonetheless, we find the military judge did 

not err in declining to further instruct the panel on when exactly a victim is 

incapable of consenting. 

A military judge has a sua sponte duty to instruct on the elements. R.C.M. 

920(e)(1). While a military judge “has wide discretion” as to the “form” of the 

instruction, United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012), whether an 

instruction is a correct statement of the law is reviewed de novo. United States v. 

Ivey, 53 M.J. 685, 699 (Army Ct. Crim. App. 2000) aff’d on other grounds, 55 M.J. 

251, 257 (C.A.A.F. 2001). 

Recently, in United States v. Pease 75 M.J. 180, 2016 CCA LEXIS 235 

(C.A.A.F. 17 Mar. 2016), our superior court addressed a similar issue. In Pease, it 

was the panel members (not, as here, the defense) who requested that the military 

judge provide additional instruction on what is meant by the words “competent 

person,” as included in the military judge’s explanation of the term “consent.” 75 

M.J. at __, 2016 CCA LEXIS 235, at *6. On intermediate appeal, the Navy-Marine 

Corps Court of Criminal Appeals (NMCCA) defined what was meant by “incapable 

of consenting” and, in applying that definition, found the evidence factually 

insufficient. As offered by the NMCCA, and as subsequently affirmed by the United 

States Court of Appeals for the Armed Forces (CAAF), “incapable of consenting” 

was defined as “lack[ing] the cognitive ability to appreciate the sexual conduct in 

question or [lacking] the physical or mental ability to make [or] to communicate a 

decision about whether they agreed to the conduct.”4 Pease, 75 M.J. at __, 2016 

CCA LEXIS 235, at *13 (C.A.A.F. 17 Mar. 2016) (alteration in original) (quoting 

United States v. Pease, 74 M.J. 763, 770 (N.M. Ct. Crim. App. 2015)). 

As an initial matter, Pease provides clearer guidance on the applicable legal 

definitions that we should employ when conducting our factual sufficiency review in 

this case. However, we must still address appellant’s question of whether the 

military judge erred by not further defining the term for the panel. We determine he 

did not. 

First, we note that, in Pease, neither the NMCCA nor the CAAF found the 

military judge erred in failing to define “incapable of consenting.” Pease, 75 M.J. at 

 

4

 So defined, the definition shares a similarity with the defense of lack of mental 

responsibility. See R.C.M. 916(k)(1) (the defense includes that the accused was 

“unable to appreciate the nature and quality . . . of his acts”) (emphasis added). 
LOVETT—ARMY 20140580 

7 

__, 2016 CCA LEXIS 235; Pease, 74 M.J. 763. Notably, Pease involved a case 

where the panel members specifically requested such guidance. 

Second, we do not interpret Pease as requiring the military judge to provide 

additional instruction on the definition of “incapable of consenting.” As the 

CAAF’s decision in Pease makes clear, the definitions used by CAAF and the 

NMCCA are based on “the ordinary meaning of the language, [and] the context in 

which it is used . . . .” 75 M.J. at __, 2016 CCA LEXIS 235, at *15. That is, the 

definitions used in Pease are those used in every-day English. Whether “incapable 

of consenting” should be further explained to the panel will likely depend on the 

degree to which the evidence puts the matter at issue, whether the panel requests 

additional guidance, and is ultimately within the sound discretion of the military 

judge. 

Finally, we note in our reading of Pease, the CAAF appears to leave the door 

open for additional development in case law. The court appeared to allow for a 

broader definition in some circumstances. Considering whether the NMCCA’s 

definition of a “freely given agreement” was overly limiting, the CAAF stated: 

the CCA’s definition of that phrase may be viewed as not 

accounting for those situations where a victim has the 

ability to appreciate the conduct, and the mental and 

physical ability to communicate the decision, but does not 

articulate non-consent out of fear or due to some other 

external compulsion counteracting voluntariness. 

Id. at *13 (emphasis in original). The CAAF concluded that “any imprecision” in 

the NMCCA’s definition did not amount to reversible error. Id. Accordingly, we do 

not interpret Pease as a mandate. There is a substantial chasm between finding the 

absence of reversible error and creating an affirmative instructional obligation. 

Accordingly, we do not find the military judge abused his discretion by not 

further defining the term “incapable of consenting.” 

B. Did the Military Judge Err in Excluding Evidence 

Under Military Rule of Evidence 412 of a Prior Affair by Mrs. SL 

Prior to trial, the defense moved under Military Rule of Evidence [hereinafter 

Mil. R. Evid.] 412(b)(2)(C) and based upon United States v. Ellerbrock. 70 M.J. 314 

(C.A.A.F. 2011), to admit a prior affair by Mrs. SL. In a closed hearing Mrs. SL 

testified that the prior affair occurred three-to-four years earlier while she and her 

husband were separated. She further testified that she voluntarily disclosed the 

affair without incident as part of their subsequent reconciliation. 
LOVETT—ARMY 20140580 

8 

We review the military judge’s ruling on whether to exclude evidence 

pursuant to Mil. R. Evid. 412 for an abuse of discretion. United States v. Roberts, 

69 M.J. 23, 26 (C.A.A.F. 2010). 

As this case raises the same issues as in Ellerbrock, we cite our superior 

court’s explanation of the law in that case at length. 

M.R.E. 412 states that evidence offered by the accused to 

prove the alleged victim’s sexual predispositions, or that 

she engaged in other sexual behavior, is inadmissible 

except in limited contexts. M.R.E. 412(a)–(b). The rule 

“is intended to ‘shield victims of sexual assaults from the 

often embarrassing and degrading cross-examination and 

evidence presentations common to [sexual offense 

prosecutions].’” United States v. Gaddis, 70 M.J. 248, 

252 (C.A.A.F. 2011) (alteration in original) (quoting 

Manual for Courts–Martial, United States, Analysis of the 

Military Rules of Evidence app. 22 at A22–35 (2008 ed.)). 

While there are three exceptions set out in the rule, we are 

concerned only with the third, which states that the 

evidence is admissible if “the exclusion of . . . [it] would 

violate the constitutional rights of the accused.” M.R.E. 

412(b)(1)(C). 

The exception for constitutionally required evidence 

in M.R.E. 412(b)(1)(C) includes the accused’s Sixth 

Amendment right to confrontation. Banker, 60 M.J. at 

216, 221 (citing Weinstein's Federal Evidence § 

412.03[4][a] (2d ed. 2003)). An accused has a 

constitutional right “to be confronted by the witnesses 

against him.” U.S. Const. amend. VI. That right 

necessarily includes the right to cross-examine those 

witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 

1105, 39 L.Ed.2d 347 (1974) (citing Douglas v. Alabama,

380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). 

In particular, the right to cross-examination has 

traditionally included the right “‘to impeach, i.e., discredit 

the witness.’” Olden v. Kentucky, 488 U.S. 227, 231, 109 

S.Ct. 480, 102 L.Ed.2d 513 (1988) (quoting Davis, 415 

U.S. at 316, 94 S.Ct. 1105). 

However, an accused is not simply allowed “‘crossexamination that is effective in whatever way, and to 

whatever extent, the defense might wish.’” Delaware v. 

Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 
LOVETT—ARMY 20140580 

9 

L.Ed.2d 674 (1986) (quoting Delaware v. Fensterer, 474 

U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per 

curiam)). Indeed, “‘trial judges retain wide latitude’ to 

limit reasonably a criminal defendant’s right to crossexamine a witness ‘based on concerns about, among other 

things, harassment, prejudice, confusion of the issues, the 

witness’ safety, or interrogation that is repetitive or only 

marginally relevant.’” Michigan v. Lucas, 500 U.S. 145, 

149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (quoting Van 

Arsdall, 475 U.S. at 679, 106 S.Ct. 1431). But no 

evidentiary rule can deny an accused of a fair trial or all 

opportunities for effective cross-examination. See Van 

Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. 

Generally, evidence must be admitted within the 

ambit of M.R.E. 412(b)(1)(C) when the evidence is 

relevant, material, and the probative value of the evidence 

outweighs the dangers of unfair prejudice. See Gaddis, 70 

M.J. at 255 (“[T]he best reading of the rule is that, as in 

its prior iteration, the probative value of the evidence must 

be balanced against and outweigh the ordinary 

countervailing interests reviewed in making a 

determination as to whether evidence is constitutionally 

required.”). Relevant evidence is any evidence that 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. The evidence must also be 

material, which is a multi-factored test looking 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 the issue is in dispute; and the nature of 

the other evidence in the case pertaining to th[at] issue.’” 

Banker, 60 M.J. at 222 (quoting United States v. Colon–

Angueira, 16 M.J. 20, 26 (C.M.A. 1983)). Finally, if 

evidence is material and relevant, then it must be admitted 

when the accused can show that the evidence is more 

probative than the dangers of unfair prejudice. See M.R.E. 

412(c)(3). Those dangers include concerns about 

“harassment, prejudice, confusion of the issues, the 

witness’ safety, or interrogation that is repetitive or only 

marginally relevant.” Van Arsdall, 475 U.S. at 679, 106 

S.Ct. 1431. 

United States v. Ellerbrock, 70 M.J. 314, 317-19 (C.A.A.F. 2011). 
LOVETT—ARMY 20140580 

10 

We find that the military judge properly found this case distinguishable from 

Ellerbrock. The facts in Ellerbrock regarding the prior affair involved a “hot 

tempered” husband who kicked in the door of his wife’s paramour. Id. at 317. 

Omitting the prior affair in Ellerbrock deprived the court-martial from learning that 

the victim would likely fear a similarly violent reaction from her husband if there 

was a second transgression. That is, her husband’s violent reaction (and hot temper) 

could create a reasonable inference that she lied to cover up a second instance of 

adultery. Prohibiting the defense from exploring the victim’s motive to fabricate 

during cross-examination unconstitutionally limited Private First Class Ellerbrock 

from confronting the witnesses against him. Id. at 320. 

Here, on the other hand, the prior affair did not result in threats or violence. 

By all accounts, the prior affair was resolved without confrontation or disharmony. 

To be sure, there was ample evidence that SPC WL responded violently and 

aggressively when he found appellant on top of his wife. Unlike Ellerbrock, 

however, that evidence was presented to the fact finder as part of the res gestae of 

the offense. Appellant was not prohibited from asking the panel to infer that SPC 

WL’s violent response was a basis for Mrs. SL to fabricate her claims of incapacity. 

In Ellerbrock the CAAF stated that “[i]t is a fair inference that a second 

consensual sexual event outside a marriage would be more damaging to a marriage 

than would a single event . . . .” Id. at 319. However, that “fair inference” was 

based on “assuming the evidence in the record supported that inference.” Id. The 

supporting evidence the CAAF then cited was the husband’s “hot temper[]” and 

violent response to the previous affair; exactly the evidence that is not present here 

with regards to the prior affair. 

In short, we do not read Ellerbrock as requiring the per se admissibility of 

extra-marital affairs as a matter of course. Whether such evidence is admissible 

under Mil. R. Evid. 412(b)(2)(C) will depend on how strongly the prior affair 

supports a reasonable inference that the alleged victim is fabricating the allegation 

of assault. For example, an “open marriage” in which sex outside the marriage is 

routine, is less likely to support such an inference than the facts presented in 

Ellerbrock. In other words, a military judge must weigh the probative value of the 

Mil. R. Evid. 412 evidence against the danger of unfair prejudice, confusion of the 

issues, misleading the members, undue delay, waste of time, or cumulative evidence. 

United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011); Mil. R. Evid. 403. 

Accordingly, we find no error in the military judge excluding evidence 

of Mrs. SL’s prior affair. 
LOVETT—ARMY 20140580 

11 

III. CONCLUSION 

The findings and sentence are AFFIRMED. 

Senior Judge HAIGHT and Judge PENLAND concur. 

FOR THE COURT: 

JOHN P. TAITT 

 Chief Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: