## UNITED STATES ARMY COUR T 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, Milit ary Judge (arraignment and pretrial motions) Gregory R. Bockin, Mi litary Judge (pretria l motions and trial) Colonel Christopher T. Fredrikson, Staff Judge Advocate (pretrial)

Colonel E. Edmund Bowen, Jr. St aff Judge Advocat e (post-trial)

For Appellant: Major Aaron R. Inkenbrand t, JA; Captain Heat her L. Tregle, JA.

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

29 April 2016

---------------------------------- MEMORANDUM OPINION

----------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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 sent enced appellant to a dishonorab le discharge, confinement for four years, forfeiture of al l 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 wi thout confinement bu t otherwise approved the sentence as adjudged. The automatic forfeitures were waived for a period of six months. The adjudged forfeitures were defe rred until action. At action, the ad judged forfeituresLOVETT—ARMY 20140580

2 were suspended for forty-thre e days at which point, as they had not been earlier vacated, they were remitted. 1

Appellant’s case is now be fore this court for review pursuant to Article 66, UCMJ. Appellant submitted th is case on its meri ts. However, we find two matters
warrant detailed discussio n, including matters raised by appellant pu rsuant 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 appellan t’s dependents recei ved the otherwise forfeited pay for a pe riod 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 protec tion rights we re 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 rele vant to whether he
committed the offense. See Rule for Courts-Martial [her einafter R.C.M.] 916(l)(2) (“evidence of a ny degree of voluntar y intoxication may be introduced for the purpose of raising a reason able doubt as to th e existence of ac tual knowledge, specific intent, or premeditat ed design to kill . . . .”)

Second, appellant argu es the military judge erroneousl y denied his request for an expert consultant in forensic psychology. We find the military judg e’s denial of the
motion was within his discretion.

Third, appellant co mplains that the mi litary judge impermissibly restricted appellant’s general voir dire questions. Neithe r party followed the military judge’s pretrial order on the submissi on of general voir dire qu estions. We find that the military judge did not abuse his discreti on in limiting the general voir dire questions, and in any event, any error was harmless given the liberal individual voir dire of every pa nel member.

Fourth, appellant avers that the military ju dge improperly exclud ed the recording of
a 911 call that summoned th e 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 th e government’s cross-examinati on of the witness opened the door to admitting the recording, appellant did not ask the mi litary 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 live d on Fort Knox, Kentucky . Specialist WL was a platoon mate, battle buddy, fri end, and neighbor of appellant. Both of their wives were also friends. Specia list WL was the primary witness for the government in testifying as to the charged offense and testified as follows:

On 30 May 2013, afte r the unit had been given time off to spend with family in anticipation of an upc oming deployment, SPC WL ha d a barbecue at his house. SPC WL and appellant together purchased beer and hard li quor for the get-together. SPC WL, appellant, both of their wives, as well as ot her 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 st opped 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 be droom. 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, attemp ted 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 testim ony of the neighbor who calle d 911 and test ified for the
defense as to what he saw and heard.

Fifth, appellant complains that the military judge improp erly gave an instruction limiting the permissible us es of Sergeant (SGT) Arco vio’s testimony. The limiting instruction was crafted by bo th parties and appellant’s c ounsel 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 ou r review of the post-t rial matters, it appear s 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 prov ide for clemency. We fi nd no error in providing appellant a copy of the proposed action. Pr oviding the proposed action before he submitted clemency matters made transpar ent the potential effect of the SJAR’s
recommendation. Even assumi ng error, appellant forfeit ed the issue by failing to object and he has not demonstr ated 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 he r. And she wasn’t res ponding to anything.” Appellant was with SPC WL the entir e time he was assisting his wife.

Specialist WL then turned off the bedroom lights, le ft the door cracked open,
and went outside to have a cigarette with appe llant. As the pa rty 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 dru nk guest home, SPC WL did not se e appellant for about the next twenty minutes.

When SPC WL returned to his house, he found the bedroom doo r he had left ajar was now shut and locked. Unlock ing and opening the door, SPC WL saw appellant on top of Mrs. SL having sex with her. Speciali st WL yelled a vulgarity at appellant, who then rolled off of Mrs. SL and began buttoning hi s pants. Appellant attempted to ex plain 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 testif ied that “she didn’t seem like she knew what was going on.”

Appellant and SPC WL then began a verbal an d physical fight that started in the bedroom and continued outside. Speciali st WL testified that appellant continued to try to tell him that what he had seen was something ot her than what it appeared
and asked SPC WL not to in volve the military police. While outside, the two continued to shout expletives at each othe r. The altercation ended when the military police, summoned by a neighb or, arrived just as appellant was putting a hacksaw
blade to his neck and thr eatening to kill himself.

Mrs. SL testified that she had only a hazy recollection of the evening. She remembers hearing her husba nd yelling in the room and hearing the fighting, but without opening her eyes or tr ying 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 ha ving sex with her husband.

In addition to the testim ony of SPC WL and Mrs. SL, the government called neighbors (to include appell ant’s wife) and first respo nders to testify to their
observations about how much alcohol Mrs. SL consume d, how drunk she appeared,
and some of her statements made to medical pe rsonnel. Th e government also called a toxicologist and a DNA examiner. The DNA examiner testifie d that swabs taken from appellant’s genitals ha d DNA consistent with that of Mrs. SL. Finally, the government called a law enfo rcement agent who testified that appellant presented evolving stories about the ni ght in question as he was confronted with evidence before ultimately admitting that Mrs. SL wa s not an active participant in the sexual
intercourse.LOVETT—ARMY 20140580

5 In defense, appellant pres ented witness and expert ev idence that Mrs. SL was not as drunk as the governm ent witnesses claimed. Add itionally, the defense called Sergeant (SGT) Arcovio, the neighbor who dialed 911. Sergeant Arcovio testified
that he called 911 after hear ing 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 coul d not identify the speakers, it was clear that SGT Arcovio was describing the a ltercation between SPC WL a nd appellant. The defense argued that SPC WL’s threat to kill his spouse created a motive for he r to fabricate her claims of incapaci ty 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 part ies. The defense complain ed that the instructions contained “insufficient gu idance from the court conc erning impairment.” The defense asked the military judge to provide additional instructions on “what impairment means” and “und er what circumstances a dr unk person can consent.” The defense did not propose any specific instruction. 3 The government opposed any
deviation from the in structions contained in the Military Judges’ Benchbook. See Dep’t of Army, Pam. 27-9, Legal Servic es: Military Judges’ Benchbook [hereinafter Benchbook], para. 3-45 -14 (1 Jan. 2010 ). The military judg e noted the defense’s

3 Separately, the defense did propose an alternate instru ction regarding the element that appellant “knew, or reasonably s hould have known” th at the victim was incapable of cons enting. The defense claime d 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 in stead. The military judge rejected the defense’s proposed
instruction. The defense’ s motion aptly foresh adowed 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 Cour t’s decision in Elonis was clear that the holding
of that case was limi ted to cases where the statute was silent on mens rea. Id . at 2010.LOVETT—ARMY 20140580

6 objection but did not provide additional instruct ion 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 appellan t objected at trial, the issue is preserve d on appeal. Nonetheless, we find the milita ry judge did not err in declining to further instruct the panel on when ex actly 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 mil itary judge “has wide discreti on” 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 revi ewed de novo. United States v. Ivey , 53 M.J. 685, 699 (Arm y 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, 201 6 CCA LEXIS 235 (C.A.A.F. 17 Mar. 2016), ou r superior court addresse d a similar issue. In Pease , it was the panel members (not, as here, the defense) who re quested that the military judge provide additional instruction on what is meant by the words “competent person,” as included in th e military judge’s ex planation of the te rm “consen t.” 75 M.J. at __, 2016 CCA LEXIS 235, at *6. On intermedia te appeal, th e Navy-Marine Corps Court of Criminal Appeals (NMCCA ) defined what was meant by “incapable of consenting” and, in applying that definition, found the eviden ce factually
insufficient. As offered by the NMCCA, and as subseque ntly affirmed by the United States Court of Appeals fo r the Armed Forces (CAAF), “incapable of consenting” was defined as “lack[ing] th e cognitive ability to appreciate the sexual conduct in question or [lacking] the physi cal or mental ability to ma ke [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 init ial matter, Pease provides clearer guidance on the applicable legal
definitions that we should em ploy when conducting our fact ual sufficiency review in this case. However, we must still addr ess appellant’s questi on of whether the military judge erre d by not further defining the term for the panel. We determine he
did not.

First, we note that, in Pease , neither the NMCCA no r the CAAF found the military judge erred in failing to define “incapable of consenting.” Pease , 75 M.J. at

4 So defined, the definition sh ares 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 qual ity . . . 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 specifi cally requested such guidance.

Second, we do not interpret Pease as requiring the military judge to provide
additional instruction on th e 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 or dinary meaning of the lang uage, [and] th e 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 En glish. Whether “incapable of consenting” sh ould be further explai ned to the panel will likely depe nd on the degree to which the evidence puts the matt er at issue, whether the panel requests additional guidance, and is ultimately within th e sound discretion of the military judge.

Finally, we note in our reading of Pease

, the CAAF appears to leave the door open for additional developmen t in case law. The cour t appeared to allow for a
broader definition in some circumstan ces. Considering whether the NMCCA’s definition of a “freely given agreement” was overly limitin g, the CAAF stated:

the CCA’s definition of that phrase may be viewed as not accounting for those situatio ns where a victim has the ability to appreciate the cond uct, 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 compulsi on counteracting voluntariness.

Id. at *13 (emphasis in orig inal). The CAAF conclude d 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 subs tantial chasm betw een finding the
absence of reversible error and creating an affirmativ e instructional obligation.

Accordingly, we do not find the military judge abused his discreti on by not further defining the term “inc apable 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 defens e moved under Militar y Rule of Eviden ce [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 pr ior affair by Mrs. SL. In a closed hearing Mrs. SL testified that the prior affair occurred th ree-to-four years earlier while she and her husband were separated. Sh e further testified that sh e voluntarily disclosed the
affair without incident as part of their subsequent reconciliation.LOVETT—ARMY 20140580

8 We review the military judge’s ruli ng 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 eviden ce offered by the accused to prove the alleged victim’s se xual predispositi ons, 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 ‘shi eld victims of sexual assaults from the often embarrassing and degr ading cross-examination and evidence presentations co mmon to [sexual offense prosecutions].’” United States v. Gaddis, 70 M.J. 248, 252 (C.A.A.F. 2011) (alterati on in origin al) (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) incl udes 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 ri ght 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 th e 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 what ever way, and to whatever extent, the defense might wish.’” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89LOVETT—ARMY 20140580

9 L.Ed.2d 674 (19 86) (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 th e 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 effectiv e cross-examination. See Van Arsdall, 475 U.S. at 6 79, 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 be st reading of the rule is that, as in its prior iteration, the probativ e 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.”). Releva nt evidence is any evidence that has “any tendency to make the exis tence of any fa ct . . . more probable or less probable th an it would be without the
evidence.” M.R. E. 401. The eviden ce must also be material, which is a multi-fact ored test looking at “‘the importance of the issue fo r 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)). Fi nally, if
evidence is material and releva nt, 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, c onfusion of th e 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 ju dge properly found this ca se distinguish able from
Ellerbrock. The facts in Ellerbrock regarding the prior affair involved a “hot tempered” husband who kicked in th e door of his wife’s paramour. Id. at 317. Omitting the prior affair in Ellerbrock deprived the court-martia l from learning that the victim would likely fear a similarly violent reacti on from her husband if there was a second transgression. That is, her hus band’s violent reacti on (and hot temper)
could create a reasonable infe rence that she lied to cove r up a second instance of adultery. Prohibiting the defense from ex ploring the victim’s motive to fabricate during cross-examination unconstitutionally limited Private First Class Ellerbrock from confronting the wi tnesses against him. Id. at 320.

Here, on the other hand, the prior affair di d not result in threats or violence. By all accounts, the prior affair was reso lved without c onfrontation or disharmony. To be sure, there was am ple evidence that SPC WL responded violently and aggressively when he found appella nt on top of hi s 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 pa nel to infer that SPC WL’s violent response was a ba sis for Mrs. SL to fabricat e her claims of incapacity.

In Ellerbrock the CAAF stated that “[i]t is a fair inference that a second
consensual sexual event outs ide 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 evid ence in the record supported that inference.” Id. The supporting evidence the CAAF then cite d was the husband’s “hot temper[]” and violent response to the previous affair; ex actly 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 affa irs as a matter of course. Whet her such evidence is admissible
under Mil. R. Evid. 412(b)(2)(C) will depend on ho w strongly the prior affair supports a reasonable inference that the a lleged 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 th e facts presented in
Ellerbrock. In other words, a military judge mu st weigh the probative value of the
Mil. R. Evid. 412 evidence against the danger of unfair prejudice, conf usion of the issues, misleading the member s, 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 er ror in the military j udge 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: