UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 39014

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UNITED STATES

Appellee

v.

Paul L. LEONHARDT

Second Lieutenant (O-1), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 16 August 2017

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Military Judge: L. Martin Powell (arraignment); Vance H. Spath.

Approved sentence: Dismissal and confinement for 5 months. Sentence 

adjudged 11 December 2015 by GCM convened at Eielson Air Force 

Base, Alaska. 

For Appellant: Terri R. Zimmermann, Esquire (argued); Major Mark C. 

Bruegger, USAF; Jack B. Zimmermann, Esquire.

For Appellee: Major Meredith L. Steer, USAF (argued); Major Collin F. 

Delaney, USAF; Major Jeremy D. Gehman, USAF; Major Mary Ellen 

Payne, USAF; Gerald R. Bruce, Esquire.

Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military 

Judges.

Senior Judge JOHNSON delivered the opinion of the court, in which 

Senior Judge MAYBERRY and Judge SPERANZA joined.

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PUBLISHED OPINION OF THE COURT

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United States v. Leonhardt, No. ACM 39014

2

JOHNSON, Senior Judge:

A general court-martial composed of officer members found Appellant 

guilty, contrary to his pleas, of one specification of sexual assault1 and one 

specification of abusive sexual contact in violation of Article 120 of the Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 920. The court-martial sentenced 

Appellant to a dismissal and confinement for five months. The convening authority approved the adjudged sentence but waived the mandatory forfeiture 

of pay for the benefit of Appellant’s spouse and dependent child.

On appeal, Appellant raises four assignments of error: (1) the military 

judge erred in excluding evidence of other sexual behavior between the victim 

and Appellant offered by the Defense pursuant to Military Rule of Evidence 

(Mil. R. Evid.) 412; (2) the military judge erred by not releasing certain mental 

health records of the victim he had reviewed in camera pursuant to Mil. R. 

Evid. 513; (3) senior trial counsel committed plain error in his argument to the 

court members on findings; and (4) the victim impact statement provided to 

the court members in sentencing included improper aggravation evidence. Because we find the military judge abused his discretion with respect to the first 

issue, and we cannot say that error was harmless beyond a reasonable doubt, 

we set aside the findings and sentence and do not address the remaining issues.

I. BACKGROUND

In August of 2012, Appellant and Ms. MG were both cadets at the United 

States Air Force Academy (Academy). At the time of the charged offenses, Appellant and Ms. MG had begun to spend time together socially and had been 

on two dates, but they had not engaged in sexual intercourse. Ms. MG testified 

that, at some point prior to the night in question, she had a conversation in 

which she told Appellant she did not intend to have sex with him. During August 2012, Appellant invited Ms. MG to go with him to meet some of Appellant’s friends at a restaurant and a hookah bar and then “hang out” at the 

home of Appellant’s sponsor family.2 When Appellant met Ms. MG at her dorm 

 

1 The court members excepted the words “on divers occasions” from the specification 

alleging sexual assault, and found Appellant not guilty of the excepted words. 

2 Ms. MG explained during her trial testimony:

[A]t the Air Force Academy, every cadet is assigned a sponsor family, 

and it’s just sometimes it’s an officer or an instructor there, or sometimes it’s just people that live in the city that see the Air Force Academy and they sponsor a cadet and it just gives them a place to go on 

the weekends, or when we have time off so that we’re not always at the 

Academy or on lock down 24/7.
United States v. Leonhardt, No. ACM 39014

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room at the beginning of the evening, he told her to pack an overnight bag just 

in case they ended up spending the night at the sponsor’s home. Ms. MG did 

not consider that “abnormal” because she had spent the night in other sponsor 

homes with other groups of cadets, though never before with Appellant.

As it turned out, no one joined Appellant and Ms. MG at the restaurant and 

only one of Appellant’s friends met them at the hookah bar. According to 

Ms. MG, Appellant and Ms. MG engaged in consensual kissing during the 

evening, but there was no discussion of sexual intercourse. Ms. MG testified 

that neither she nor Appellant consumed any alcohol. Late that night Appellant drove Ms. MG to his sponsor’s house; his friend from the hookah bar did 

not join them.

When they arrived, Appellant woke the sleeping sponsor, Mr. GW, who let 

them into the house. Mr. GW then returned to bed and Appellant led Ms. MG 

to an upstairs bedroom. Once inside the room, according to Ms. MG, Appellant 

began kissing her and he moved his hands up her body to her breasts. Ms. MG

pushed him away and suggested they do something else. Appellant did not respond but he “aggressively” moved her to the bed. Ms. MG testified she told 

him “no” but that he ignored her. Appellant removed her clothes and inserted 

his penis in her vagina. At some point Ms. MG “stopped fighting it” and “just 

kind of checked out mentally.” After Appellant ejaculated, he told her to clean 

up. Ms. MG found the bathroom, cleaned herself, and then returned to the bed 

where Appellant was sleeping. She lay next to him until she eventually fell 

asleep.

When Ms. MG awoke, it was still dark outside. When Appellant woke up, 

he rolled over and again penetrated Ms. MG’s vagina with his penis until he

ejaculated. Ms. MG cleaned herself again, got dressed, and departed with Appellant to return to the Academy.

Ms. MG did not initially report being sexually assaulted, but she testified 

that after this incident she started to “distance” herself from Appellant. Eventually she told Appellant she did not want to have any relationship with him 

other than as a member of the same cadet squadron. Due to a medical issue, 

Ms. MG was later discharged from the Academy before graduating and separated from the Air Force. In the fall of 2014, after she had left the Academy, 

Ms. MG reported the sexual assault, first to a male friend and then to her boyfriend, who was an Air Force officer and had been in her cadet squadron with 

Appellant. This led to Ms. MG being interviewed by the Air Force Office of 

Special Investigations (AFOSI).

Appellant was charged with sexual assault “on divers occasions” based on 

the two instances of intercourse Ms. MG described, and with abusive sexual 

contact by touching Ms. MG’s breasts. Prior to trial, the Defense gave notice of 
United States v. Leonhardt, No. ACM 39014

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its intent to offer evidence in accordance with Mil. R. Evid. 412 that Appellant 

and Ms. MG engaged in “consensual sex” in Appellant’s dorm room “at least 

two times after the charged events.” Trial defense counsel asserted this evidence was “constitutionally required,” explaining in pertinent part: “the state 

of mind of the parties during the charged event can be illustrated through the 

subsequent acts of consensual sexual acts after the alleged charged event.” The 

Defense later filed a pretrial motion to admit this evidence pursuant to Mil. R. 

Evid. 412, invoking Appellant’s Sixth Amendment3 right to cross-examination. 

The written motion asserted, in part: “The defense must be allowed to show 

that the prosecutrix engaged in consensual sex with the accused after the alleged incident because this evidence tends to show she was not sexually assaulted, and did not believe she was sexually assaulted, the first time.” The 

Government opposed the motion, as did Ms. MG through her Special Victim’s 

Counsel.

At trial, the military judge held a closed hearing on the motion pursuant to 

Mil. R. Evid. 412(c)(2). Both Ms. MG and Appellant testified for purposes of the 

motion. Ms. MG testified that after the assault she had no further sexual encounters with Appellant and was never in his dorm room again. In contrast, 

Appellant testified he had consensual sex with Ms. MG at least twice in his 

room after the alleged sexual assault. On cross-examination, Appellant further 

testified that these additional sexual encounters occurred within approximately a week and a half of the alleged assaults, that he told three other lieutenants about these encounters, and that one of these individuals also saw 

Ms. MG in Appellant’s room during this time frame.4

The military judge then heard argument on the motion. Appellant’s civilian

defense counsel asserted the proffered evidence of post-assault consensual sexual activity did not “go to necessarily a mistake of fact as to consent or anything 

along those nature [sic],” but was required “to present the accuser’s state of 

mind after the fact.” He elaborated:

CDC [Civilian Defense Counsel]: . . . [W]e feel that it’s important 

to present this evidence to the jury in order to give them a complete picture of the events leading up to when the relationship 

actually ended; and it shows, you know, what’s going on in 

Ms. [MG’s] mind that she would engage in consensual sex after 

the fact and because she would engage in consensual sex after 

the fact, you have to question whether or not the allegation she’s 

 

3 U.S. CONST. amend. VI.

4 None of these individuals were called to testify for purposes of the motion.
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making is even a truthful allegation. So, that’s the reason we’re 

offering it.

[Military Judge]: For her state of mind?

CDC: Yes, Your Honor.

In response, assistant trial counsel asserted that under Mil. R. Evid. 412 

the Defense was required “to at least prove that the facts that they’re trying to

discuss and elicit are true,” and had failed to do so. She further argued 

Ms. MG’s state of mind after the alleged sexual assaults was irrelevant.

The military judge orally ruled the proffered evidence was inadmissible under Mil. R. Evid. 412 “on the theory proffered by the defense.” He subsequently 

provided a written ruling setting forth his findings of fact and analysis. Therein 

he stated that although a “credibility determination” was not “required” to decide the motion “[b]ased on the Defense assertion that the evidence goes to 

‘state of mind’ of [Ms. MG] vice some credibility on the part of [Ms. MG],” he 

nevertheless opined that Ms. MG gave “credible testimony” on the issue. He 

continued:

The Defense in this case has the burden to demonstrate the profferred evidence to at least a preponderance of the evidence and to 

provide a basis for admissibility.

They have failed on both counts. The alleged victim testified 

credibly that there was no post-event consensual sexual behavior.

Additionally, the Defense did not posit a viable reason to admit 

the evidence. The proffered evidence has no relevance to consent

or mistake of fact to consent on the night in question (like arguably pre-assault consensual behavior). The proffered evidence 

does not offer insight into motive on the part of the alleged victim. Additionally, the proffered evidence is merely an assertion 

by the accused; completely denied by the alleged victim. There 

was no corroborative or independent evidence offered to assist 

this fact finder.

(Emphasis added.)

Accordingly, the trial proceeded without cross-examination of Ms. MG or 

other evidence of post-assault consensual sexual activity between Appellant 

and Ms. MG. Appellant elected not to testify at trial. Appellant was convicted 

of abusive sexual contact and the first alleged instance of sexual assault, but

he was acquitted of sexual assault in the second (morning) instance.
United States v. Leonhardt, No. ACM 39014

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II. DISCUSSION

A. Law

“We review a military judge’s decision to admit or exclude evidence for an 

abuse of discretion.” United States v. Erickson, 76 M.J. 231, 234 (C.A.A.F. 

2017). “A military judge abuses his discretion if his findings of fact are clearly 

erroneous or his conclusions of law are incorrect.” Id. (quoting United States v. 

Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)) (internal quotation marks omitted) 

(citation omitted); see also United States v. Ellerbrock, 70 M.J. 314, 317 

(C.A.A.F. 2011) (citation omitted) (“Findings of fact are reviewed under a 

clearly erroneous standard and conclusions of law are reviewed de novo.”). The 

application of Mil. R. Evid. 412 to proffered evidence is a legal issue that appellate courts review de novo. United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 

2010).

Mil. R. Evid. 412 provides that evidence offered by the accused to show that 

the alleged victim engaged in other sexual behavior is generally inadmissible, 

with three limited exceptions. The third exception provides that the evidence 

is admissible if its exclusion “would violate the constitutional rights of the accused.” Mil. R. Evid. 412(b)(1)(C).5 This exception includes an accused’s Sixth 

Amendment right to confront witnesses against him, including the right to 

cross-examine and impeach those witnesses. Ellerbrock, 70 M.J. at 318. The 

burden is on the defense to overcome Mil. R. Evid. 412’s general rule of exclusion by demonstrating an exception applies. United States v. Carter, 47 M.J. 

395, 396 (C.A.A.F. 1998).

Generally, evidence of other sexual behavior by an alleged victim is constitutionally required and “must be admitted within the ambit of [Mil. R. Evid.] 

412(b)(1)(C) when [it] is relevant, material, and the probative value of the evidence outweighs the dangers of unfair prejudice.” Ellerbrock, 70 M.J. at 318

(citation omitted); see also Roberts, 69 M.J. at 27. Relevant evidence is evidence 

that has any tendency to make the existence of any fact of consequence to determining the case more probable or less probable than it would be without the 

evidence. Mil. R. Evid. 401. Materiality “is a multi-factored test looking at the

 

5 The second exception permits “evidence of specific instances of sexual behavior by the 

alleged victim with respect to the person accused of the sexual misconduct offered by 

the accused to prove consent or by the prosecution.” Mil. R. Evid. 412(b)(1)(B). Although the proffered evidence appears to implicate this exception, the Defense did not 

contend the evidence was admissible on this basis. Nevertheless, the second and third 

exceptions are not mutually exclusive, and the existence of this exception tends to undermine the military judge’s conclusion and Government’s assertion that the proffered 

evidence of consensual sexuality activity between Ms. MG and Appellant was irrelevant.
United States v. Leonhardt, No. ACM 39014

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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.” Ellerbrock, 

70 M.J. at 318 (citations omitted) (internal quotation marks omitted) (alteration in original). The dangers of unfair prejudice to be considered “include concerns about ‘harassment, prejudice, confusion of the issues, the witness’ safety, 

or interrogation that is repetitive or only marginally relevant.’” Id. (quoting 

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

B. Analysis

Appellant contends the military judge abused his discretion by denying the 

Defense motion to offer evidence of consensual post-offense sexual activity. We 

agree. We find the military judge erred both in applying an erroneous burden 

of proof to the Defense and in finding the proffered evidence was not relevant.

1. The Military Judge Applied an Erroneous Burden of Proof

In his written ruling, the military judge asserted the Defense had the burden to “demonstrate the proffered evidence to at least a preponderance of the 

evidence.” He proceeded to find the Defense failed to do so, describing the proffer as “merely an assertion by [Appellant],” noting the absence of corroborating

evidence, and citing Ms. MG’s “credible” testimony that the proffered evidence 

was untrue. In doing so, the military judge abused his discretion by applying 

an erroneous standard.

In Roberts, the United States Court of Appeals for the Armed Forces held 

the military judge abused his discretion when he weighed the credibility of defense witnesses in performing a relevancy analysis under Mil. R. Evid. 412. 

Roberts, 69 M.J. at 27. “‘In applying [Mil. R. Evid.] 412, the judge is not asked 

to determine if the proffered evidence is true . . . . Rather, the judge serves as 

gatekeeper deciding first whether the evidence is relevant and then whether it 

is otherwise competent, which is to say, admissible under [Mil. R. Evid.] 412.’” 

Id. (ellipsis in original) (quoting United States v. Banker, 60 M.J. 216, 224

(C.A.A.F. 2004)). Similarly, in the instant case it is apparent the military 

judge’s ruling relied in part on a determination that Appellant’s motion testimony was not sufficiently credible. This was error. “[I]t is for the members to 

weigh the evidence and determine its veracity.” Banker, 60 M.J. at 224; see also 

United States v. Zak, 65 M.J. 786, 793 (A. Ct. Crim. App. 2007) (“[T]he military 

judge’s ruling on the veracity of the evidence [proffered under Mil, R. Evid. 

412] usurped the role of the panel members, was clear error, and, as a result, 

an abuse of discretion.”) (Citation omitted.)

The military judge’s ruling cited no authority for requiring proof by a preponderance of the evidence. On appeal, the Government cites Rule for Courts-
United States v. Leonhardt, No. ACM 39014

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Martial (R.C.M.) 905(c), but its reliance is misplaced. R.C.M. 905(c)(1) provides: “Unless otherwise provided in this Manual [for Courts-Martial], the burden of proof on any factual issue the resolution of which is necessary to decide 

a motion shall be by a preponderance of the evidence.” (Emphasis added.) The 

flaw in the Government’s reasoning, apparent from Roberts, is that a military 

judge ruling on evidence proffered under Mil. R. Evid. 412 is not required to 

resolve a factual issue. 69 M.J. at 27. Again, the military judge must decide 

whether the proffered evidence is relevant and otherwise admissible, not 

whether it is true.6

2. The Military Judge Erroneously Determined the Proffered Evidence had “no relevance” to Consent

The written Defense motion asserted the proffered evidence of post-assault 

consensual sexual activity was constitutionally required because, inter alia, it 

tended to show Ms. MG was not sexually assaulted and she did not believe she 

was sexually assaulted. During argument on the motion, trial defense counsel 

disavowed offering the evidence to show mistake of fact as to consent; instead, 

he asserted the evidence was relevant to show Ms. MG’s “state of mind.” Although inartfully stated, the Defense motion and argument taken together indicate the evidence was offered to show the charged sexual encounters were in 

fact consensual. The military judge found the Defense failed to demonstrate “a 

basis for admissibility” and asserted, inter alia: “The proffered evidence has no 

relevance to consent . . . on the night in question . . . .” We cannot agree, and we

find this conclusion to be an abuse of discretion.

Relevance is a “low threshold.” Roberts, 69 M.J. at 27. Evidence is relevant 

if it has any tendency to make the existence of a fact more probable or less 

probable than it would be without the evidence. Mil. R. Evid. 401(a). In general, 

willingness to engage in consensual sexual activity has some tendency to indicate that recent prior sexual encounters between two individuals were also 

consensual. See United States v. Sousa, 72 M.J. 643, 648 (A.F. Ct. Crim. App. 

2013) (“Evidence that [the victim] engaged in consensual sexual activity with 

the appellant after the date she alleged she was forcibly sodomized was constitutionally required to be admitted on the issue of consent . . . .”); United States 

v. Leak, 58 M.J. 869, 876–77 (A. Ct. Crim. App. 2003), rev’d on other grounds,

61 M.J. 234 (C.A.A.F. 2004); United States v. Parker, 54 M.J. 700, 708 (A. Ct. 

Crim. App. 2001). We find no reason to conclude otherwise in Appellant’s case.

 

6 The Government also cites Mil. R. Evid. 104(b), relating to evidence the relevance of 

which depends on the existence of another fact; but this rule is similarly inapposite 

because the relevance of the evidence proffered here stands alone and is not contingent 

on the existence of any other fact.
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The Government argues that because Appellant’s motion testimony “lacked 

corroboration” and was “wholly contested” by Ms. MG, it therefore lacked any 

probative value as to the charged offenses. Like the military judge, the Government fails to appreciate that such credibility assessments are not an appropriate element of the military judge’s Mil. R. Evid. 412(b)(1)(C) analysis. As 

discussed above, the Defense is not required to convince the military judge that 

its evidence is true, only that it is relevant. Relevance depends on the substance of the evidence, not its relative strength in relation to other evidence in 

the case. It may be that in extreme cases the content of proffered evidence on 

a matter of “consequence in determining the action” is so patently improbable 

that it lacks relevance—for example, if Appellant had claimed the subsequent 

consensual sexual encounters took place on the moon. But that is not this case; 

there is nothing inherently incredible about two cadets having consensual sex 

in a dorm room. 

3. The Proffered Evidence was Material and its Probative Value 

Outweighed the Danger of Unfair Prejudice

In addition to being relevant, the proffered evidence was material. Properly 

understood, the issue on which the evidence was offered—whether Ms. MG in 

fact consented to the charged sexual encounters—was of fundamental significance to determining whether Appellant was guilty. Similarly, that issue was 

certainly in dispute. Furthermore, after the military judge’s ruling, there was 

no other evidence of consensual sexual encounters introduced at the trial; the 

Defense did elicit and introduce other testimony in an effort to demonstrate 

Ms. MG consented, but its efforts were obviously insufficient with respect to 

the offenses Appellant was convicted of. This is not a case where the excluded 

evidence was essentially redundant with the weight of other evidence before 

the court.

Furthermore, we find the probative value of the proffered evidence outweighs any danger of unfair prejudice. See Ellerbrock, 70 M.J. at 318. Notably, 

the military judge did not identify any such dangers in this case, and the Government’s brief to this court identifies none. We can discern no palpable risk of

harassment, unfair prejudice, or witness safety. The evidence would not have 

been unduly confusing to the court members because it involved the same two 

individuals at a point near in time to the charged offense; it addressed the same 

sequence of events, time frame, and actors that Ms. MG testified about on direct examination. Finally, as discussed above, the proffered evidence was more 

than marginally relevant, and it was not superfluous in light of other evidence 

adduced at trial.
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4. The Erroneous Exclusion of the Proffered Evidence was Not 

Harmless Beyond a Reasonable Doubt

Because the proffered evidence was relevant, material, and its probative 

value outweighed the danger of unfair prejudice, it met the exception for constitutionally-required evidence and was admissible under Mil. R. Evid. 

412(b)(1)(C). See Ellerbrock, 70 M.J. at 318. The military judge abused his discretion by excluding it. Therefore, we must test for prejudice which, because 

the error was constitutional, requires a determination whether it was harmless 

beyond a reasonable doubt. Id. at 320. In other words, the question is whether 

there is a “reasonable possibility” the error “might have contributed to the conviction.” Id.

The Government case had weaknesses. Ms. MG had been dating Appellant 

and ultimately agreed to go alone to a room away from the Academy to spend 

the night with him. She stayed with him in the same bed after the first sexual 

assault. She did not report the sexual assault until over two years after the 

fact. There was no physical evidence nor any witness she contemporaneously 

informed of the assault. Ms. MG admitted that, after the assault and while she 

was still at the Academy, she wrote a character letter on behalf of Appellant. 

The Defense called Mr. GW, the sponsor, as a witness; he testified he did not 

hear anything that made him “uneasy” the night of the assault, and in the 

morning he heard “rhythmic moaning sounds” from the room Appellant and 

Ms. MG occupied and assumed they were having sex. In addition, the Defense 

proposed Ms. MG had a motive to falsely allege sexual assault after Appellant 

told Ms. MG’s subsequent—and, at the time of trial, current—boyfriend, soon 

after the charged events and purported consensual sexual encounters, that Appellant had had sex with Ms. MG after dating her briefly. Ms. MG testified this 

made her boyfriend “really upset” with her, and made her “really mad” at Appellant.

The Government notes that Ms. MG would presumably have denied the 

proffered post-offense consensual sexual encounters if she had been cross-examined about them. However, it is possible the members might not have believed her, or might have harbored greater doubts about her testimony and 

credibility more generally. In addition, if the military judge had not excluded 

the proffered evidence, Appellant might have testified in findings and the 

members might have found him credible enough to raise reasonable doubts 

about Ms. MG’s testimony.

The Government also asserts Appellant made a “litany of incriminating

statements” during a pretext phone call monitored by AFOSI that Ms. MG 

made to him in December 2014. It is true that Appellant apologized to Ms. MG, 

admitted that he had been “a terrible person” and “an a[**]hole,” and said he 
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wished he “could go back and . . . change a lot of things.” However, the conversation fell far short of a confession. Appellant said he did not remember

Ms. MG telling him she did not want to have sex prior to the evening in question, he repeatedly insisted he did not remember Ms. MG telling him “no” during the alleged assaults, and he stated he recalled her enjoying having sex.

The court members found Appellant not guilty of one of the alleged sexual 

assaults. We cannot be certain beyond a reasonable doubt that evidence 

Ms. MG engaged in consensual sex with Appellant a few days after the alleged 

assault would not have raised additional reasonable doubts in the members’ 

minds. Accordingly, we cannot sustain Appellant’s convictions.

III. CONCLUSION

The findings of guilt and the sentence are SET ASIDE. A rehearing is authorized. Article 66(c), UCMJ, 10 U.S.C. § 866.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court