UNITED STATES, Appellee 

v. 

William R. SAVALA, Torpedoman’s Mate Second Class 

U.S. Navy, Appellant 

No. 10-0317 

Crim. App. No. 200800818 

United States Court of Appeals for the Armed Forces

Argued January 11, 2011 

Decided May 17, 2011 

EFFRON, C.J., delivered the opinion of the Court, in which 

ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a separate 

dissenting opinion in which BAKER, J., joined. 

Counsel

For Appellant: Philip D. Cave, Esq. (argued); Major Kirk 

Sripinyo, USMC (on brief). 

For Appellee: Captain Mark V. Balfantz, USMC (argued); Colonel 

Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief); 

Commander Kimberly D. Hinson, JAGC, USNR. 

Military Judges: David S. Oliver and John Wooldridge 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Savala, No. 10-0317/NA 

2

Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of officer and enlisted 

members, convicted Appellant, contrary to his pleas, of 

attempted larceny, rape, unlawful entry, and adultery, in 

violation of Articles 80, 120, 130, and 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 880, 920, 930, 934 (2006). 

The sentence adjudged by the court-martial and approved by the 

convening authority included a dishonorable discharge, 

confinement for seven years, forfeiture of $898.00 pay per month 

for eighty-four months, and reduction to the pay grade of E-1. 

United States v. Savala, No. NMCCA 200800818, 2010 CCA LEXIS 9, 

at *1, 2010 WL 317687, at *1 (N-M. Ct. Crim. App. Jan. 28, 2010) 

(unpublished). 

On Appellant’s petition, we granted review of the following 

issue: 

WHETHER THE LOWER COURT ERRED WHEN IT HELD 

THAT THE DENIAL OF APPELLANT’S RIGHT TO 

CROSS-EXAMINE HIS ACCUSER WAS HARMLESS 

BEYOND A REASONABLE DOUBT. 

 

For the reasons set forth below, we conclude that the 

restriction on the scope of cross-examination constituted 

prejudicial error. 

 
United States v. Savala, No. 10-0317/NA 

3

I. EXCLUSION OF EVIDENCE UNDER M.R.E. 412 

 Military Rule of Evidence (M.R.E.) 412 limits the 

admissibility of specified forms of evidence in sexual offense 

cases. The rule serves “to protect victims of sexual offenses 

from the degrading and embarrassing disclosure of intimate 

details of their private lives while preserving the 

constitutional rights of the accused to present a defense.” 

United States v. Banker, 60 M.J. 216, 219 (C.A.A.F. 2004). 

 The present case concerns M.R.E. 412(a), which generally 

prohibits the introduction of evidence regarding the alleged 

victim’s prior sexual behavior or the victim’s sexual 

predisposition. The rule contains a number of exceptions to the 

general prohibition, including a provision for the admissibility 

of “evidence the exclusion of which would violate the 

constitutional rights of the accused.” M.R.E. 412(b)(1)(C). 

See Banker, 60 M.J. at 221 (noting that this exception 

“addresses an accused’s Sixth Amendment right of confrontation 

and Fifth Amendment right to a fair trial”). 

 The Sixth Amendment right of confrontation includes “the 

constitutionally protected right of cross-examination.” See

Davis v. Alaska, 415 U.S. 308, 316-17 (1974). The right of 

cross-examination includes the opportunity to inquire into 

otherwise inadmissible matters if the prosecution, through its 

presentation, opens the door to consideration of such matters. 
United States v. Savala, No. 10-0317/NA 

4

See United States v. Moulton, 47 M.J. 227, 228-29 (C.A.A.F. 

1997); United States v. Welch, 25 M.J. 23, 26-27 (C.M.A. 1987); 

cf. 1 Kenneth S. Broun et al., McCormick on Evidence § 57, at 

291 (6th ed. 2006) (discussing judicial approaches to “opening 

the door” for otherwise inadmissible evidence). The right of 

confrontation is subject to limitations, including the authority 

of the court to restrict the scope of cross-examination to avoid 

problems such as harassment, prejudice, confusion of the issues 

or repetitive interrogation. Delaware v. Van Arsdall, 475 U.S. 

673, 679 (1986). 

 M.R.E. 412 constitutes a rule of exclusion. Banker, 60 

M.J. at 221. The defense bears the burden of demonstrating the 

admissibility of evidence that falls within the category of 

otherwise excludable evidence under M.R.E. 412. Id. at 222. 

II. TRIAL PROCEEDINGS 

 The present appeal focuses on the evidence pertinent to the 

offenses of rape, unlawful entry, and adultery. Much of the 

evidence presented at trial involved matters not in dispute. 

The primary differences at trial involved the circumstances of 

Appellant’s entry into the barracks room of Seaman ARM and the 

ensuing encounter between Appellant and Seaman ARM. 

 The granted issue involves two defense motions at trial 

under M.R.E. 412. The defense offered the first motion prior to 
United States v. Savala, No. 10-0317/NA 

5

the introduction of evidence. The defense offered a second 

motion during the prosecution’s case-in-chief at a point where 

the defense contended that the prosecution had opened the door 

to the evidence at issue. The military judge denied both 

motions. The Court of Criminal Appeals subsequently ruled that 

the military judge erred in the disposition of the second 

motion, but treated the error as harmless. Savala, 2010 CCA 

LEXIS 9, at *23-*24, 2010 WL 317687, at *9. 

 We begin with background information pertinent to the 

decisions by the military judge and the Court of Criminal 

Appeals. Part II.A. sets forth the competing views of the 

parties as to the facts with respect to the underlying offenses. 

Part II.B. summarizes the first defense motion and ruling by the 

military judge. Part II.C. summarizes the second defense motion 

and ruling by the military judge. 

A. THE COMPETING POSITIONS OF THE PROSECUTION 

 AND THE DEFENSE REGARDING THE CHARGED OFFENSES 

 

1. Events prior to the barracks encounter -- matters not in 

dispute

 On the evening of the incident, Seaman ARM consumed a 

substantial number of alcoholic beverages at several different 

locations, including two clubs. Testimony from multiple 

witnesses indicated that she was visibly drunk and that her 

speech was impaired. Seaman ARM testified that at some point 
United States v. Savala, No. 10-0317/NA 

6

while at the second club, her perception of her surroundings 

began to get hazy. 

 Appellant and his friend Seaman Townsel each testified that 

they observed Seaman ARM in the second club. Appellant 

testified that he observed Seaman ARM drinking. He had not 

previously encountered her, and did not speak to her in the 

club. Seaman Townsel testified that he had met Seaman ARM the 

previous week, and that he spoke to her briefly in the club on 

the night in question. 

 Seaman Townsel testified that at some point during the 

visit to the second club, Seaman ARM fell onto a table, and her 

friends assisted her in getting up. Eventually Seaman ARM and 

several friends left the second club and went to a karaoke bar. 

Afterwards, they returned to the base. One of those friends 

testified that she stumbled as she approached the door to her 

room at about 1:30 a.m., while another friend testified that 

they returned from the karaoke bar at 4:30 a.m. 

 Appellant and Seaman Townsel returned to the barracks 

sometime after 5:00 a.m. As they arrived at the barracks, the 

two men discussed Seaman ARM. At the end of the discussion, 

Appellant suggested that they visit her room. The full details 

of the conversation do not appear on the record. Appellant 

testified that he was left with the impression that Seaman ARM 

“might be willing to have sexual intercourse.” Seaman Townsel, 
United States v. Savala, No. 10-0317/NA 

7

who knew where Seaman ARM lived, led Appellant to her room. 

Seaman Townsel remained in a nearby common area while Appellant 

knocked on the door. 

2. Matters in dispute

a. The testimony of Seaman Townsel and Seaman ARM 

concerning the events in the room 

 During the prosecution’s case-in-chief, Seaman Townsel 

testified that when they approached the room, Appellant 

suggested that Seaman Townsel knock on Seaman ARM’s door. 

Seaman Townsel declined to do so, and sat in a nearby common 

area while Appellant knocked on the door. According to Townsel, 

after knocking on the door Appellant remarked that the door was 

open. While the door was open, Townsel observed that the room 

was dark. Townsel came to the door and urged Appellant to leave 

with him. Appellant closed the door, and they both departed. 

Townsel testified that they returned to their rooms, and he had 

no further knowledge of Appellant’s activities that morning. 

 Seaman ARM testified that she left the second club and had 

no memory of returning to her room or getting into bed. She 

next recalled being in her bed, on her back, looking at the 

chest of a person raping her. She did not recognize the person 

but could tell that he had tanned or darker skin. She testified 

that after her initial confusion upon waking, she said “no” and 

tried to push the person away. She did not recall what happened 
United States v. Savala, No. 10-0317/NA 

8

at that point. She testified that she subsequently woke up in 

the shower with the water running. After showering, she 

returned to her bed and then slept until 2:30 p.m. that 

afternoon. 

After awakening in the afternoon, Seaman ARM went to an 

emergency room, where she received medical treatment. She did 

not report the incident as a rape at that time. On the 

following day, after speaking with a fellow airman and her 

mother, she returned to the hospital and reported the incident 

as a rape. At that point, she received a full sexual assault 

and rape test (SART). She also provided authorities with her 

bedding and a hat she had found in her room. Subsequent 

forensic analysis connected DNA from the bedding to Appellant. 

In addition, investigators determined that the door to Seaman 

ARM’s room did not lock properly as a result of a broken locking 

mechanism. 

b. Appellant’s testimony concerning the events in the 

room 

 The defense presented the court-martial panel with 

different evidence regarding the events in the room. Appellant 

testified that he knocked and Seaman ARM opened the door. He 

introduced himself as a friend of Seaman Townsel, “the guy that 

she met the previous week at” the club. According to Appellant, 

Seaman ARM acknowledged having met Seaman Townsel, but stated 
United States v. Savala, No. 10-0317/NA 

9

that “she wasn’t really interested in him.” After more 

conversation, she expressed interest in Appellant and noted that 

he was “cute.” Appellant asked if he could come back and Seaman 

ARM said yes. He then left her room, and Appellant and Seaman 

Townsel then proceeded to their perspective rooms. 

 Appellant testified that after he “freshened up” in his 

room, he returned alone to Seaman ARM’s room. After entering 

the room, Appellant and Seaman ARM engaged in a fifteen- to 

twenty-minute conversation. During the conversation Seaman ARM 

began to touch Appellant’s arm and then legs, which eventually 

led to kissing and sexual intercourse. According to Appellant, 

at some point during intercourse Seaman ARM began to act 

strangely and told Appellant to stop. After Appellant stopped, 

Seaman ARM “got up, [and] ran to the bathroom,” which was 

located across the hall from her room. Appellant dressed 

himself, and went across the hall towards the bathroom. He 

testified that he could hear the shower running, but when he 

knocked on the door, there was no answer. Appellant then 

returned to his own room. 

B. THE FIRST DEFENSE MOTION UNDER M.R.E. 412 

 Prior to the presentation of evidence on the merits, 

defense counsel provided notice under M.R.E. 412(c)(1) that the 

defense intended to offer evidence at trial subject to M.R.E. 
United States v. Savala, No. 10-0317/NA 

10

412. Pursuant to M.R.E. 412(c)(2), the military judge conducted 

a hearing on the motion under Article 39(a), UCMJ, 10 U.S.C. § 

839(a) (2006). During the hearing, defense counsel contended 

that the evidence proffered in connection with the motion 

constituted proof of an incident in which Seaman ARM had 

fabricated an allegation of rape in the aftermath of sexual 

activity in order to protect her reputation. 

 The prior incident took place in Virginia Beach a year 

before the events leading to the charges in the present case. 

The proffered evidence included a police report of the prior 

incident, a sworn statement provided by Seaman ARM to the 

investigators in the present case, and unofficial statements 

made by the alleged perpetrator in the prior incident. 

 The police report concerning the prior incident noted that 

Seaman ARM had been drinking at a private party, and that the 

last thing she remembered before the alleged incident was 

leaving the party at 3:30 a.m. The next thing she remembered 

was being in her car, half dressed, outside of a gas station, 

with an open condom in the back seat. She did not remember 

having sexual intercourse, but she believed that sex had 

occurred. The next day, she reported the event as a sexual 

assault and provided police with the phone number of a person 

she identified as having accompanied her when she left the 

party. When the police interviewed the suspect, he admitted to 
United States v. Savala, No. 10-0317/NA 

11

having consensual sexual intercourse with Seaman ARM. He noted 

that she had been intoxicated and generally flirtatious when he 

arrived at the party and that she had initiated sexual contact 

with him while in her car. According to the police report, when 

the investigators explained the suspect’s version to Seaman ARM, 

“she did not doubt that it could have happened that way, she 

just does not remember.” The case disposition recorded the 

report of sexual assault from Seaman ARM as “unfounded.” 

 During the investigation of the current case, Seaman ARM 

made a sworn statement to investigators. In response to a 

question of whether she had ever been sexually assaulted Seaman 

ARM stated, “Yes . . . About a year ago . . . . I was sexually 

assaulted by this guy named P[].” (First ellipsis in original.) 

She added, “I told my dad that I needed to go to the hospital 

and my sister took me. The hospital staff called [the] Virginia 

Beach Police Department. Police responded and I filed a 

complaint against P[].” When asked whether that case had gone 

to trial, Seaman ARM stated, “Charges were never filed because 

they told me it was a ‘he said she said’ case.” 

 According to the defense proffer, the individual accused of 

the prior incident believed that Seaman ARM had fabricated the 

rape charge to divert attention away from the fact that she was 

found by police, half dressed, in a convenience store parking 

lot after a night of drinking and drug use. 
United States v. Savala, No. 10-0317/NA 

12

 During the Article 39(a) hearing, trial counsel stated 

that, “The government opposes all mention of this Virginia Beach 

incident.” Counsel argued that the incident was irrelevant to 

the current case. 

Relying on United States v. McElhaney, 54 M.J. 120 

(C.A.A.F. 2000), the military judge concluded that the proffered 

evidence would require litigation of collateral issues and any 

probative value of the evidence would be outweighed by its 

prejudicial effect. The military judge ruled that mention of 

the Virginia Beach incident would not be allowed during the 

substantive portion of trial, but reserved the issue of whether 

it would be allowed during any possible sentencing phase. 

C. THE SECOND DEFENSE MOTION UNDER M.R.E. 412 

 During the Government’s case-in-chief, the prosecution 

asked Seaman ARM about her delay in reporting the charged 

incident as a rape. Seaman ARM replied that she did not “want 

anybody to know,” adding that she “felt really kind of disgusted 

and [she] just didn’t think that people would believe [her].” 

The prosecution then asked, “Why didn’t you think people would 

believe you.” Seaman ARM responded, “Because it had actually 

happened to me before and it didn’t get resolved back in the 

states.” 

 In a subsequent closed session under Article 39(a), UCMJ, 

the defense contended that the Government’s question to Seaman 
United States v. Savala, No. 10-0317/NA 

13

ARM about delayed reporting, which she addressed by referring to 

the prior incident, had opened the door to cross-examination of 

Seaman ARM about the earlier incident. Defense counsel 

contended that once the prosecution relied on the prior incident 

as the explanation for Seaman ARM’s delay in reporting the 

incident as a rape, the defense was “now entitled to challenge 

that and to challenge the credibility of that reason by 

exploring the circumstances of the prior false allegation.” 

 In response, the prosecution contended that the examination 

of Seaman ARM had not opened the door to such evidence, and 

that, in any case the probative value of the evidence was 

outweighed by the danger of unfair prejudice. The military 

judge then ruled against the defense, stating: 

Your request to go into it is denied. 

The military judge determines on the basis of the 

hearing, the previous hearing and during the course 

today, that the evidence that the accused seeks to 

offer is not relevant for the purpose of this session 

and that the probative value of such evidence 

outweighs [sic] the danger of unfair prejudice to the 

alleged victim’s privacy. 

And, further, specifically for the purpose in which it 

arose has nothing to do with 412. There is no 

relevancy of alleged victim’s sexual behavior, sexual 

predisposition, which is prohibited under 412. 

And, finally, the evidence, the exclusion of which 

does not violate any constitutional rights of the 

accused to cross-examine those matters when you weigh 

the balancing test of all the evidence together. 
United States v. Savala, No. 10-0317/NA 

14

 The defense counsel inquired as to the scope of the 

military judge’s ruling, asking, “So I can’t challenge the fact 

that she is already educated on how to falsify a presentation in 

a sexual assault examination, for example, based on prior 

experience?” The military judge responded, “That’s correct.” 

In a further inquiry, defense counsel asked whether the military 

judge’s ruling meant that he could not “challenge her 

credibility based on the facts and circumstances and lies that 

she made the first time?” The inquiry led to the following 

colloquy between the military judge and defense counsel: 

MJ: Let me back up and just say I don’t get to 

explain my rulings, counselor. I ruled, so –- and I 

don’t get to explain and tell you how to try your 

case. 

Anything else? 

CC: Sir, I do that because I want to be careful that 

I’m doing things correctly. 

MJ: You understand that you cannot get into any 

sexual –- you cannot get into any matters under 412. 

 During the ensuing cross-examination of Seaman ARM, defense 

asked various questions probing Seaman ARM’s motive and 

propensity to lie, including making false statements on various 

government forms. Pursuant to the ruling by the military judge 

under M.R.E. 412, defense counsel did not ask any questions 

regarding the earlier incident involving Seaman ARM’s prior 

allegation of sexual assault. 
United States v. Savala, No. 10-0317/NA 

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III. REVIEW IN THE COURT OF CRIMINAL APPEALS 

 On appeal, the Court of Criminal Appeals discussed the two 

defense motions under M.R.E. 412. The court concluded that the 

military judge erred in denying the second motion, irrespective 

of the merits of the first motion, because “the evidence should 

have been admitted when the Government opened the door to the 

evidence at trial.” 2010 CCA LEXIS 9, at *14, 2010 WL 317687, 

at *5. 

After finding error, the court determined that the error 

was harmless beyond a reasonable doubt, citing the “overwhelming 

evidence of the appellant’s guilt.” Id. at *17, 2010 WL 317687, 

at *7. The court noted that “the testimony of an alleged victim 

is often the critical component of a successful prosecution for 

rape,” but concluded that the present case required a different 

view. Id. at *18, 2010 WL 317687, at *7. The court focused on 

the testimony of Appellant’s friend, Seaman Townsel, “who 

directly contradicted the appellant’s already implausible 

version of the events,” particularly with respect to Appellant’s 

description of his initial encounter at the door to Seaman ARM’s 

room. Id. In addition, the court stated that “the presence of 

DNA evidence, the testimony of the victim’s companion’s that 

night, and the testimony of the appellant himself leave no room 

to doubt that the appellant committed this crime.” Id. The 

court also placed “great weight” on the fact that Appellant, by 
United States v. Savala, No. 10-0317/NA 

16

his own admission, had not met Seaman ARM prior to knocking on 

her door at 5:00 a.m. and “engaging in sexual intercourse with 

her shortly thereafter.” Id. at *18-*19, 2010 WL 317687, at *7. 

Viewing Appellant’s version of the events as “highly 

implausible,” and as contradicted in important detail by Seaman 

Townsel, the court concluded that further opportunity to crossexamine Seaman ARM about her prior allegation of sexual assault 

“would not have altered the outcome of the trial,” applying a 

harmless beyond a reasonable doubt standard. Id. at *21-*23, 

2010 WL 317687, at *8-*9. In that regard, the court noted that 

the defense had the opportunity on cross-examination to inquire 

into the fact that she was engaged, that she abused alcohol, 

that she had promised her fiancé that she would stop drinking, 

that she had broken this promise on the night of the incident, 

and that she had been untruthful in filling out her security 

clearance form. Id. at *23, 2010 WL 317687, at *9. The court 

also addressed the credibility of Seaman Townsel, noting that 

“he initially lied to the police and was himself a suspect.” 

Id. The court discounted these considerations, stating that “we 

believe that he had no real reason to lie at trial. Any 

maladies in the version of events he presented to the police 

were fully resolved prior to tr[ia]l. We find his testimony, 

and not that of the appellant, to be credible.” Id. 

 
United States v. Savala, No. 10-0317/NA 

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IV. DISCUSSION 

In the present appeal, Appellant contends that the court 

below erred in its prejudice analysis. The Government contends 

that the military judge did not err in his M.R.E. 412 rulings; 

that the court below incorrectly found error; and that if there 

was error, the court below correctly concluded that any error 

was harmless beyond a reasonable doubt. 

At the outset, we note that the Government has not appealed 

the conclusion of the court below that the military judge erred 

in denying the second defense motion under M.R.E. 412. “When a 

party does not appeal a ruling, the ruling of the lower court 

normally becomes the law of the case.” United States v. Parker, 

62 M.J. 459, 464 (C.A.A.F. 2006). The law-of-the-case doctrine 

involves the exercise of appellate discretion rather than 

binding legal doctrine. See id. As this court has previously 

noted: 

[T]he law-of-the-case doctrine does not preclude this 

Court from examining the legal ruling of a subordinate 

court in a case where the Judge Advocate General has 

not certified the issue. However, we are reluctant to 

exercise this power and, as a rule, reserve it for 

those cases where the lower court’s decision is 

clearly erroneous and would work a manifest injustice 

if the parties were bound by it. 

United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) 

(citations and quotation marks omitted). 
United States v. Savala, No. 10-0317/NA 

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The Government has not established in the present appeal 

that “the lower court’s decision is clearly erroneous and would 

work a manifest injustice.” Id. (citations and quotation marks 

omitted). The lower court relied on the record of trial to 

demonstrate that the prosecution introduced into evidence Seaman 

ARM’s prior allegation of sexual assault. Savala, 2010 CCA 

LEXIS 9, at *12-*13, 2010 WL 317687, at *5. The lower court 

further relied on the record of trial to demonstrate that such 

evidence bolstered Seaman ARM’s credibility with respect to the 

reasons for her delayed reporting, thereby benefiting the 

prosecution. Id. at *13-*16, 2010 WL 317687, at *6. Under 

these circumstances, the lower court did not clearly err in 

concluding that the prosecution opened the door to crossexamination of Seaman ARM with respect to the prior incident. 

Therefore, we shall proceed to address the granted issue, which 

raises the question of whether the ruling by the military judge 

constituted prejudicial error. 

 “We review the prejudicial effect of an erroneous 

evidentiary ruling de novo.” United States v. Toohey, 63 M.J. 

353, 358 (C.A.A.F. 2006). “For constitutional errors, the 

Government must persuade us that the error was harmless beyond a 

reasonable doubt.” United States v. Hall, 56 M.J. 432, 436 

(C.A.A.F. 2002). In this case the constitutional error was a 

violation of the Confrontation Clause. As the Supreme Court 
United States v. Savala, No. 10-0317/NA 

19

noted while assessing the potential prejudicial impact of a 

Confrontation Clause violation, “[w]hether such an error is 

harmless in a particular case depends upon a host of factors.” 

Van Arsdall, 475 U.S. at 684. The Court, in Van Arsdall, 

identified five potential factors, without limiting a reviewing 

court in the identification and application of factors in a 

particular case. Id. (noting that factors could include, the 

importance of the witness’s testimony to the government’s case, 

whether the testimony was cumulative, the presence of 

contradictory or corroborating evidence, the extent of other 

cross-examination allowed, and the strength of the government 

case). This Court has applied a four-part test in assessing 

prejudice in the event of an evidentiary error, balancing (1) 

the strength of the government’s case; (2) the strength of the 

defense case; (3) the materiality of the excluded evidence; and 

(4) the quality of the evidence in question. See, e.g., United 

States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985); Hall, 56 M.J. at 

437; Toohey, 63 M.J. at 358. Regardless of factors employed, 

the balancing test involves consideration of whether, “assuming 

that the damaging potential of the cross-examination were fully 

realized, a reviewing court might nonetheless say that the error 

was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. 

at 684. 
United States v. Savala, No. 10-0317/NA 

20

In the present case, the Government contends that its case 

against Appellant was strong and that the Seaman ARM’s testimony 

comprised only a small part of the evidence which led to the 

conviction. The Government, like the court below, relies on 

physical evidence, such as the presence of Appellant’s DNA in 

the room and the malfunctioning lock on the door to Seaman ARM’s 

room to support the Government’s theory that Appellant 

unlawfully entered the room and sexually assaulted Seaman ARM. 

The Government relies on the lower court’s view that Seaman 

Townsel’s testimony, which contradicts Appellant’s testimony 

about the onset of his entry in Seaman ARM’s room, provided 

critical evidence upon which the panel could have convicted in 

this case. 2010 CCA LEXIS 9, at *23, 2010 WL 317687, at *9. 

Although the prosecution presented a strong circumstantial 

case at trial, the defense identified significant facts for 

consideration by the court-martial panel on the question of 

whether the Government proved its case beyond a reasonable 

doubt. Seaman ARM and Appellant were the only individuals 

present at the time of intercourse. Her testimony was the 

Government’s only direct evidence on the disputed issue of 

consent. Seaman Townsel, the critical witness in the lower 

court’s analysis, was not present when Appellant was inside the 

room with Seaman ARM, and he had no knowledge of what transpired 

between Appellant and Seaman ARM at the time of the charged 
United States v. Savala, No. 10-0317/NA 

21

acts. Moreover, the credibility of Seaman Townsel was placed at 

issue by the fact that he had been an initial suspect, and by 

the fact that he had misled law enforcement officials during the 

initial investigation and subsequently changed his version of 

the events. The question of delayed reporting by Seaman ARM, 

and the impact on her credibility, was placed at issue by the 

prosecution when the trial counsel interjected the issue of her 

prior sexual assault allegation against another individual. The 

prosecution’s physical evidence did not reflect any indication 

of trauma. 

Appellant, in his testimony, described the events of the 

evening and his early morning encounter with Seaman ARM. 

Although the circumstances may have been out of the ordinary, 

the events he described were not so unusual as to warrant the 

lower court’s dismissal of his testimony as being “highly 

implausible” -- a characterization that led the court below to 

treat Appellant’s version of the events as not worthy of 

consideration by the court-martial panel. 

The balance of factors on the question of prejudice 

requires consideration not only of the strength of the 

prosecution’s case, but the potential vulnerabilities on the 

issue of reasonable doubt. The vulnerabilities included the 

prosecution’s reliance on the testimony of Seaman Townsel, a 

witness who had misled investigators about the underlying 
United States v. Savala, No. 10-0317/NA 

22

events, and who did not observe the sexual encounter at issue; 

the hazy memory of Seaman ARM, impacted by her excessive 

consumption of alcohol; and the issues concerning the 

credibility of Seaman ARM, including her motive to lie and her 

past deception in dealing with official records, and her delayed 

reporting of the alleged rape. The Government’s circumstantial 

evidence could not negate these vulnerabilities, including the 

fact that Seaman ARM and Appellant provided conflicting 

testimony about what happened at the critical time when they 

were the only two people present. Under the circumstances, 

assessment of credibility was a critical issue in the case. The 

strength of the Government’s circumstantial case in other 

respects does not overcome these considerations. 

The responsibility at trial for determining whether to 

believe the version of events provided by the prosecution or the 

defense rested with the panel members, and the ruling by the 

military judge enabled the prosecution to enhance the 

credibility of its version while handcuffing the defense. 

Issues of witness credibility and motive are matters for the 

members to decide. United States v. Moss, 63 M.J. 233, 239 

(C.A.A.F. 2006). When assessing prejudice, we assume that the 

“damaging potential of the cross-examination were fully 

realized.” Van Arsdall, 475 U.S. at 684. In that light, we 

assume, without reaching a conclusion on the merits of the 
United States v. Savala, No. 10-0317/NA 

23

charges at issue, that Appellant’s cross-examination could have 

convinced the panel that the prior allegation was false. If the 

members believed that Seaman ARM had made a prior false 

allegation of rape it “may have tipped the credibility balance 

in Appellant’s favor.” Moss, 63 M.J. 239. Under these 

circumstances, the decision of the military judge to permit use 

of the past event by the prosecution to enhance her credibility, 

while denying the defense an opportunity to explore the impact 

of that event on her credibility, constituted prejudicial error. 

V. CONCLUSION 

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals as it concerns the convictions of rape, 

unlawful entry, and adultery is reversed, and a rehearing is 

authorized. 
United States v. Savala, No. 10-0317/NA 

 STUCKY, Judge, with whom BAKER, Judge, joins (dissenting): 

 I disagree with the majority’s application of the law of 

the case doctrine in this case. I further do not believe that 

the alleged error was prejudicial. Therefore, I respectfully 

dissent. 

I. 

 The United States Navy-Marine Corps Court of Criminal 

Appeals (CCA) concluded that the military judge erred by barring 

Appellant from cross-examining the prosecutrix, Seaman ARM. 

United States v. Savala, No. 200800818, 2010 CCA LEXIS 9, 2010 

WL 317687 (N-M. Ct. Crim. App. Jan. 28, 2010) (unpublished). 

Nevertheless, the CCA held that the error was harmless beyond a 

reasonable doubt and affirmed Appellant’s conviction for rape. 

2010 LEXIS 9, at *17-*18, 2010 WL 317687, at *6-*7. The 

Government did not appeal the CCA’s finding of error but 

asserted as much in its reply to Appellant’s appeal. The 

majority applies the law of the case doctrine to bar 

consideration of this issue. United States v. Savala, __ M.J. 

__ (17–18) (C.A.A.F. 2011). 

 The law of the case doctrine holds “that a decision 

rendered in a former appeal of a case is binding in a later 

appeal.” Black’s Law Dictionary 966 (9th ed. 2009). The 

Supreme Court has made clear that just as the prevailing party 
United States v. Savala, No. 10-0317/NA 

2

at trial may assert on appeal any ground in support of a 

judgment, 

whether or not that ground was relied upon or even 

considered by the trial court[,] . . . . [it] is 

likewise settled that the appellee may, without taking 

a cross-appeal, urge in support of a decree any matter 

appearing in the record, although his argument may 

involve an attack upon the reasoning of the lower 

court or an insistence upon matter overlooked or 

ignored by it. 

Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) (quotation 

marks and citations omitted); accord Schiro v. Farley, 510 U.S. 

222, 228-29 (1994) (“recogniz[ing] that the State, as 

respondent, is entitled to rely on any legal argument in support 

of the judgment below”). 

 This interpretation of the law of the case doctrine is 

logical. It makes no sense to expect a party that prevails in a 

lower court to appeal the judgment of that court. Such a 

requirement would waste valuable attorney and judicial 

resources. While I agree with the majority that the door was 

opened to cross-examination of Seaman ARM, I would hold that the 

Government was not barred by the law of the case doctrine from 

contesting the issue. 

II. 

 The majority holds that the military judge’s error in 

prohibiting cross-examination of Seaman ARM on her previous 
United States v. Savala, No. 10-0317/NA 

3

allegation of rape was not harmless beyond a reasonable doubt. 

I disagree. 

 “[T]he Constitution entitles a criminal defendant to a fair 

trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S. 

673, 681 (1986). Constitutional errors involving the denial of 

an accused’s opportunity to impeach a witness will result in 

reversal unless the error was harmless beyond a reasonable 

doubt. “The correct inquiry is whether, assuming that the 

damaging potential of the cross-examination were fully realized, 

a reviewing court might nonetheless say that the error was 

harmless beyond a reasonable doubt.” Id. at 684. In 

determining whether an error was harmless beyond a reasonable 

doubt, we consider 

a host of factors . . . . includ[ing] the importance 

of the witness’ testimony in the prosecution’s case, 

whether the testimony was cumulative, the presence or 

absence of evidence corroborating or contradicting the 

testimony of the witness on material points, the 

extent of cross-examination otherwise permitted, and, 

of course, the overall strength of the prosecution’s 

case. 

Id. In applying these factors, the Court’s overarching goal is 

to determine “whether there is a reasonable possibility that the 

evidence [or error] complained of might have contributed to the 

conviction.” United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 

2007) (brackets in original) (quotation marks and citation 

omitted). 
United States v. Savala, No. 10-0317/NA 

4

III. 

 In this case, there was considerable testimony that Seaman 

ARM was drinking and became heavily intoxicated. The evidence 

also showed that Appellant and his friend, Seaman Townsel, went 

to one of the same bars as Seaman ARM. Seaman Townsel spoke 

with Seaman ARM for a few moments at the bar because they had 

met the previous week. Appellant and Seaman ARM, conversely, 

had never met and did not meet each other at the bar. 

 At approximately 4:30 A.M., Seaman ARM left a karaoke bar 

to return to her barracks room. After leaving the bar, 

Appellant convinced Seaman Townsel that they should go to Seaman 

ARM’s room so that Seaman Townsel could speak with her. When 

they arrived at Seaman ARM’s room, Appellant knocked on the 

door, which was open. Seaman Townsel convinced Appellant to 

leave because the room was dark and no one was answering the 

door. The next morning Seaman ARM filed a report claiming she 

had been raped the previous night by an unknown assailant. 

Appellant readily admitted that he had sex with Seaman ARM, but 

he contended that it was consensual. Seaman ARM testified that 

it was not. 

IV. 

 Seaman ARM’s testimony was important because she and 

Appellant were the only witnesses to the sexual acts. Seaman 

ARM admitted she was intoxicated and awoke to someone having sex 
United States v. Savala, No. 10-0317/NA 

5

with her whom she could not identify. Indeed the majority 

relies on the victim’s “hazy memory” and “excessive consumption 

of alcohol” to suggest that her testimony was unreliable, which 

also tends to diminish the importance of her testimony. 

Furthermore, Appellant impeached Seaman ARM’s credibility by 

pointing out that she had lied on military forms and had broken 

a no-alcohol pact with her fiancé. Other than limiting 

questions about the previous rape allegation, the military judge 

permitted Appellant full and free cross-examination of 

Seaman ARM. 

 The evidence also corroborated some of Seaman ARM’s 

testimony. She testified that she did not know Appellant, had 

not invited him into her room, and had not consented to have sex 

with him. In accord with Seaman ARM’s testimony, Seaman Townsel 

and Appellant both testified that Appellant had never met nor 

spoken with Seaman ARM before the night of the events. As 

discussed below, Seaman Townsel also disputed Appellant’s 

unsupported description of meeting Seaman ARM at her room. 

 The evidence further established that Appellant wanted to 

contact Seaman ARM after leaving the bar, that he learned the 

location of her room from Seaman Townsel, and that he knew her 

door was not latched because it opened when he knocked on it. A 

Naval Criminal Investigative Service agent later confirmed the 

fact that Seaman ARM’s door would not properly latch. 
United States v. Savala, No. 10-0317/NA 

6

Furthermore, evidence, including expert testimony, indicated the 

likelihood that Seaman ARM was still heavily intoxicated at the 

time of the incident, which would explain her failure to respond 

to a knock at the door or an unauthorized entrance into her 

barracks room. The Government was thus able to provide a 

convincing explanation for how Appellant gained access to Seaman 

ARM’s room. 

 As the majority recognizes, “the prosecution presented a 

strong circumstantial case at trial.” United States v. Savala, 

__ M.J. __ (20). Although the strength of the case may depend 

on whether the evidence is circumstantial or direct, a strong 

case is a strong case regardless of the nature of the evidence. 

Indeed, trial counsel provided a coherent and convincing picture 

of Appellant’s criminal actions. 

 The strength of the Government’s case becomes more apparent 

when contrasted with the weakness of Appellant’s case. 

According to Appellant’s testimony, he knocked on Seaman ARM’s 

door at some time after five in the morning with Seaman Townsel 

nearby. Despite being quite intoxicated, Seaman ARM supposedly 

came to the door, met Appellant for the first time, and told him 

that although she was not interested in Seaman Townsel, whom 

Appellant was attempting to speak highly of, she thought 

“[Appellant] was cute” and wondered why “[he] wouldn’t talk to 

her.” According to Appellant, he and Seaman ARM agreed he would 
United States v. Savala, No. 10-0317/NA 

7

return after he went back to his room to freshen up. When he 

returned, the two had a short conversation, which, according to 

Appellant, resulted in consensual sex. 

 Regardless of the plausibility of the story standing alone, 

Appellant’s defense is weak because it is both (1) unsupported 

by the evidence and, more importantly, (2) contradicted by 

testimony from his friend Seaman Townsel, who testified that 

they did not see Seaman ARM at her room and Appellant never 

spoke with Seaman ARM in his presence. It is uncontradicted 

that Seaman Townsel was present and in a location where he would 

have heard any conversation had one occurred. 

 It is Seaman Townsel’s testimony that is critical in 

assessing prejudice, as his testimony was the most damaging to 

Appellant’s case. In finding prejudicial error, the majority 

relies on the fact that Seaman Townsel’s credibility had been 

called into question at trial based on his initial statements to 

investigators concerning the incident: He claimed he saw an 

unidentified person enter Seaman ARM’s room. Certainly the fact 

that he changed his story is relevant to Seaman Townsel’s 

credibility. But it might also be indicative of someone seeking 

to deflect attention from himself or a friend. The members had 

an opportunity to observe Seaman Townsel and consider his 

testimony in light of all the other evidence before the court, 
United States v. Savala, No. 10-0317/NA 

8

including the fact that Appellant admitted having sex with 

Seaman ARM. 

Finally, cross-examination on the prior Virginia Beach 

incident would not have bolstered Appellant’s attack on Seaman 

ARM’s credibility. In that incident, Seaman ARM awoke from a 

night of partying and could not remember what happened. The 

circumstances suggested that someone had sexual intercourse with 

her. She reported the incident as a rape. When confronted with 

the alleged perpetrator’s version of events that it was 

consensual, Seaman ARM admitted that the alleged perpetrator’s 

version might be true, but she could not remember. That is not 

a false statement. Without something more in the record, I fail 

to see how the majority can conclude that the members could have 

found anything false about the prior allegation. Under the 

circumstances, evidence of the previous allegation would, if 

anything, have bolstered her credibility with the court members: 

When confronted with the evidence, she was able to evaluate the 

facts and conclude that she may have been wrong in her 

assessment of the situation. The excluded evidence would not 

have “tipped the credibility balance in Appellant’s favor.” 

United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006). 

Regardless of whether the military judge erred in not 

permitting Appellant to cross-examine Seaman ARM about her 

previous rape allegation, such evidence would not have bolstered 
United States v. Savala, No. 10-0317/NA 

9

his anemic defense. I am confident that even if “the damaging 

potential of the cross-examination were fully realized,” it 

would not have affected Appellant’s conviction, and, therefore, 

it was harmless beyond a reasonable doubt. See Van Arsdall, 475 

at 684. 

V. 

 I would affirm the judgment of the United States NavyMarine Corps Court of Criminal Appeals.