CORRECTED COPY



## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 EMILIO J. SCHELMETTY United States Army, Appellant

ARMY 20150488

Headquarters, United States Army Alaska Samuel Schubert, Military Judge Lieutenant Colonel Rana D. Wiggins, Ac ting Staff Judge Advo cate (pretrial) Colonel Erik L. Christiansen, St aff Judge Advocate (post-trial)

For Appellant: Major Patrick Scudieri, JA (argued); Colonel Mary J. Bradley, JA; Major Christopher D. Colema n, JA (on brief); Major Patrick Scudieri, JA; Major Christopher D. Coleman, JA (on reply brief).

For Appellee: Major Edward J. Whitford (argued); Colo nel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Anne C. Hsieh, JA; Major Edward J. Whitford, JA (on brief).

30 June 2017

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

In this appeal we address whether the mi litary judge abused his discretion in limiting the introduc tion of post-assault sexual behavior eviden ce by the alleged victim, TJ. What is unusua l about this case, and what makes appellant’s position on appeal difficult, is that the defense never filed a motion under Milit ary Rule of Evidence [hereinafter Mil. R. Evid.] 412. We al so address appellant’s claim that the military judge erred by preventing the defe nse from admitting th e remaining portions of a statement by appellant adm itted by the gover nment at trial. 1

1 We have considered appell ant’s other assigned error that the evidence is legally and factually insufficient to supp ort the finding of guilty and find the argument without merit. Upon consideration, we likewise find the matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982), lack merit.SCHELMETTY—ARMY 20150488

2 BACKGROUND

The events surroundi ng this case all took place in a home in the early morning hours of January 1 st , 2014 following a New Year’s Ev e party. Two versions of
events were admi tted at trial. 2 The first was th rough partially redacted statements that appellant made to th e Army Criminal Investigation Command (CID). The second was through the te stimony of the victim, TJ.

Appellant told CID that that there had been no pr ior sexual relationship
between him and TJ. He st ated that after he climbe d in the bed where TJ was sleeping, he performed oral sex on her while sh e was still asleep. He then said that “[s]he woke up somewhere between me doin g oral sex and having sex with her.” After she awoke, TJ asked if appellant was “JP.” JP was TJ’s boyfriend and appellant’s friend. Appellant then stated he told her “yes” that he was JP. He then
said she kicked him ou t of the room when sh e figured out who he was. He admitted that she was intoxicated, that he had misled her because “I didn’t want to stop,” and that he had sexually assaulted her.

TJ, on the other hand, testified that she was awake. Consistent with her prior statement to CID, she testif ied that when appellant ente red her room she thought he was her boyfriend JP. She asked appellant if he was in fact JP several times and was told “yes.” She said she kicked him out of the bed when she realized his false identity.

The panel was presente d with alternative charges al leging sexual as sault. The first specification, based on the testimony of TJ, alleged a sexu al assault in which appellant mislead TJ into thinking he was an other person. The second specification, based on appellant’s admissions to CID, alleged that TJ was “aslee p, unconscious, or
otherwise unaware that the sexual act wa s occurring.”

The panel rejected both theories and convicted ap pellant of attempting to sexually assault TJ while sh e was “asleep, unconscious, or otherwise unaware.” The panel then sentenced appellant to a di shonorable discharg e, four months confinement, total forfeiture of pay and allowances, and reduc tion to the grade of

E1. 3 The convening authority approved the sentence.

2 At his general court-martial, a panel of officers convicted appellant, contrary to his pleas, of one specific ation of attempted sexual assau lt in violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880 (2012) [hereinafter UCMJ].

3 CorrectedSCHELMETTY—ARMY 20150488

3 LAW AND DISCUSSION

A. Military Rule of Evidence 412

Appellant asks us to review the milita ry judge’s decision to exclude evidence of post-assault behavior by the alleged vict im. Appellant told CID that after the alleged assault, TJ came down stairs a nd engaged in consensual sexual activity with him. During the closed Mi l. E. Evid. 412 hearing TJ flatly denied this had happened. Accordingly, the only evidence of this behavi or would be from appellant (either through his te stimony or through the admission of his fu ll statement to CID).

1

. Other Sexual Behavior

As a threshold matter, we address whether this post-assault sexual behavior is
“other sexual behavior” that falls within the general prohibition of Mil. R. Evid. 412(a)(1). We fi nd that it is.

According to appellant, TJ kicked him out of th e bedroom upon determining his true identity and because she feared her boyfriend would disc over them in bed.
He then went downstairs. Shortly afterwards, TJ ca me downstairs and initiated consensual sexual intercourse with appell ant on the couch. We do not see this as being part of the res gestae of the offense and therefor e agree with the military judge that this was “other sexual behavior” that fell squarely within Mil. R. Evid.

412.

Appellant points us to our own decision in United States v. Gaddy. ARMY 20150227, 2017 CCA LEXIS 179 (Army Ct. Crim. App. 20 Ma r. 2017). In that case, this panel found that the milit ary judge erred when he excl uded under Mil. R. Evid. 412 evidence that appellant and the alleged victim “en gaged in highly sexualized dancing that simulated sex” and then i mmediately proceeded to , under appellant’s theory, have consensual sexual intercourse. We found the danci ng not to have been
“other sexual behavior” because it was all part of the same co urse of conduct. Id. at
*5-*6.

This case, however, is distinguishable from Gaddy for two reasons . Here the conduct in question was post -assault behavior. At the time of the alleged postassault sexual intercourse appellant had co mmitted a criminal act with a guilty mind
or he had not. In Gaddy , by contrast, the pre-assault behavior went directly to the

accused’s state of mi nd (i.e., whether he re asonably and honestly believed there wasSCHELMETTY—ARMY 20150488

4 consent). Also unlike in Gaddy , the claimed post-assault sexual intercourse was temporally and physic ally separate from the charged offense.

2

. The Military Rule of Evidence 412 Motion

Our review of appellant’s assignment of error is frustrated by missteps at the trial level. Mil. R. Evid. 412(c)(1)(A) requires that the “party intending to offer evidence under [the rule] must file a written motion . . . specifically de scribing the
evidence and sta ting the purpose for which it is offered. . . .” (emphasis added).

Here, no written motion was filed. Rath er, given the absence of a defense motion, the government ma de an oral motion to pr eclude the defense from introducing evidence of other sexual behaviors by the victim. At that point, the
defense counsel stated that he wanted to introduce evid ence of TJ’s post-assault
sexual behavior. Notwiths tanding the absence of a motion, the military judge
conducted a Mil. R. Evid. 4 12 closed hearing because he found “good cause.” We disagree with the military ju dge’s finding for two reasons.

First, there is no excepti on to the requir ement for th e filing of a written

motion. While the rule allo ws “for good cause shown . . . a different tim e for filing”
it does not allow for oral mo tions. 412(c)(1)(A). Within the context of the rule, this
makes sense. The same evidence under Mil. R. Evid. 412 may ha ve permissible and impermissible uses. The specificity require d by the motion ensures that the military judge knows exactly what th e moving party is requesting and why. Add itionally, the motion is not merely the means of providi ng information to the military judge. The motion also provides due process (n otice) to the alleged victim. See Mil. R. Evid. 412(c)(1)(B).

Second, there was no “good cause shown. ” The evidence in question was clearly known to the defense counsel before trial—it wa s included in appellant’s
written statements to CI D. Nonetheless, the military judge stated that he had found “good cause despite neither side providing any notice for 412 ev idence.” The good cause, according to the military judge, was that he had been made aware of the issue that morning and that counsel “had figured it out.” We are so mewhat troubled by this reasoning. Obvi ously, a military judg e is only aware of a Mil. R. Evid. 412
issue when it is raised in the course of the proceedings. If neglecting to file a motion pretrial is “good cause ,” then there is little that would not constitute “good

cause.”SCHELMETTY—ARMY 20150488

5 Nonetheless, allowing appellant to oral ly raise a Mil. R. Evid. 412 motion without good cause is likely now the law of the case . Neither the government nor special victim counsel direct ly questioned the military judge’s ru ling, nor did they pursue appellate options. See UCMJ Art. 6b. However, it does present us with a fractured appellate record. Appellant asks us to review the mil itary judge’s ruling on a motion that was never actually made.

Moreover, by not holding th e moving party to the requirements of the rule, the military judge forced himself to rule on a difficult motion without adequate briefing
and without time for contemplation. 4

Two examples may help expl ain the problem we face.

First, on appeal appellant asks us to find that th e conduct in question was admissible under the “consent” exception in Mil. R. Evid. 412(b)(1 )(B). Indeed, this may be the most releva nt exception. However, this ex ception was neve r presented or articulated to the military judge. The defense at trial argued only the “constitutionally requir ed” exception; and ev en then only on an exceedingly narrow
basis.

Second, on appeal appellan t asserts new theories as to why the post-assault
evidence was constitu tionally required. Specifically, appellant asserts new reasons why the claimed post-assault sexual intercourse was evidence of a motive for TJ to fabricate allegations of assa ult. These theori es (involving her pregnancy and fears of being caught cheating on her boyfriend) were never raised or litigated at trial. Again, this is why the rule requires written motions “ specifically describing the
evidence and st ating the purpos e for which it is offered.” Mil. R. Evid. 412(c)(1)(A) (emphasis added).

4 The military judge excl uded the Mil. R. 412 evidence , in part, because he did not find by a prepondera nce that the subsequent contact between appellant and TJ had happened. This was an errone ous view of his role as an evidentiary ga te keeper.
See United Stat es v. Roberts , 69 M.J. 23, 27 (C.A.A.F. 20 10) (“In applying M.R.E. 412, the judge is not asked to determine if the proferred ev idence is true . . . . Rather, the judge serves as gatekeeper deci ding first whether the evidence is relevant and then whether it is otherwise competen t, which is to sa y, admissible under M.R.E. 412.”) (quoting United States v. Banker , 60 M.J. 216, 224 (C.A.A.F. 2004)). By holding the moving party to the strictures of the rule, either by requiring briefing by the parties or by providing himself ti me to research the is sue, the military judge may have avoided this error.SCHELMETTY—ARMY 20150488

6 On appeal appellant asks us to consider these new arguments. We view our role more narrowly th an does appellant. Our job is to determine whether the trial judge erred. For purposes of Mil. R. Evid. 412, this means ev aluating the trial judge’s ruling based on the evidence introduced during the closed hearing, the motion (or, here, th e arguments) of the moving party, an d the law. Often, and in this case, when ruling on pretrial motions th e military judge has little information about
the evidence or th e defense theory of th e case. We can not find the military judge
erred in a Mil. R. Ev id. 412 ruling based on an except ion to the rule that was never
asserted and based on theories of the evidence that were never advanced.

To be sure, other rules do require the milita ry judge to sua sponte instruct on issues even when not specifi cally asserted by a party. For example, Rule for CourtMartial [hereinafter R.C.M.] R.C.M. 920(e)(2 ) requires military judg es to instruct on
lesser-included offenses ra ised by the evidence regard less of whether a party requests such an instructi on. Mil. R. Evid. 412, howev er, is differen t in several regards. To begin with, the plain language of the rule puts the burden on the moving party to show they me et the requirements for an except ion under the rule . Also, with pretrial motions (unlike instructions to th e panel) the militar y judge is often unaware of the parties’ theories of the case and the evid ence to be admitted. Finally, when a military judge ad mits evidence under Mil. R. Evid. 412 ba sed on reasons that
were never artic ulated in a motion, the al leged victim is not prov ided the noti ce (i.e., due process) that is required under the rule.

Accordingly, we will lim it our analysis to facts and arguments that were articulated by the defense at trial. That is , we do not consider those exceptions to
the rule or theories of the case that were advanced by appellant for the first time on appeal.

3

. Analysis

As there was no written mo tion, we will look to th e defense counsel’s brief
summation at the end of the closed Mil. R. Evid. 412 hearing. Appellant’s counsel, citing the constitutionally required exception, offere d a narrow basis for the admissibility of the evidence . Appellant was charged wi th inducing by artifice a belief by the victim that he was someone else in order to have intercourse. Appellant’s counsel claimed that evidence of post-assault interc ourse was necessary because it went directly to appellant’s defense that TJ knew who appellant was during the assault. The defense argued th at by seeking appellant out post-assault, TJ must have clearly known his identity. Agai n, TJ denied this happened. The defense specifically stated that the issue was “not an issue of consent.”SCHELMETTY—ARMY 20150488

7 So limited, our decision here is easy. The court-martial acqu itted appellant of sexual assault “by inducing a belief by ar tifice . . . that the accused was another person.” Accordingly, there can be no prej udice from the exclusio n of evidence of a defense that was appl icable only to an offense for which appe llant was acquitted. Accordingly, we do not fin d, even assuming the military judge erred in denying appellant’s Mil. R. Evid. 412 motion, that appellant is entitled to relief.

B. Completing the Record

Appellant also assigns as error that the military j udge improperly allowed the government to introduc e redacted versions of appellant ’s sworn statements to Army CID. Consistent with the military judge’ s Mil. R. Evid. 412 ru ling discussed above, the statements redacted any mention of TJ’s post-assault sexual be havior. At trial, appellant argued that full statements shou ld be admitted to “complete the record”
under both Mil. R. Ev id 106 and 304(h)(2). Accordingly, any er ror in admitting the redacted statements is preserved.

For purposes of this an alysis, we assume the mi litary judge’s ruling under
Mil. R. Evid. 412 was correct. If the ruli ng was incorrect, then there would be no
basis to exclude the information from the st atements. Thus we limit our discussion here to whether the military judge erred in prohibiting the admission of evidence notwithstanding that it was prop erly excluded under Rule 412.

It seems clear to us that Mil. R. Evid. 412 trumps Mil. R. Evid. 106 and 304(h)(2). That is, if a stat ement would be admissible un der Rule 304(h)(2), but is
inadmissible under Ru le 412, it remains in admissible. For Rule 412 to have any effect it has to apply to evidence that otherwise would have been admissible. Put differently, a rule that se rves to exclude evidence on ly when it was already
inadmissible would serve no purpose.

Unlike Mil. R. Evid. 412, wh ich has its orig ins in statute, 5 we note that Mil. R. Evid. 304(h)(2) is a crea ture solely of regulatio n. The rule has no federal counterpart and is not based on statute or c onstitutional law. Ru le 304(h)(2) itself

5 See Privacy Protection for Rape Victims Act of 1978, Pub. L. No. 95-540, 93 Stat. 2046 (1978) (establi shing Federal Rule of Evidence 412); see also Mil. R. Evid. 1102 (unless the Presid ent takes action to the contrar y, “[a]mendments to the Federal Rules of Evidence shall apply to the Military Rules of Ev idence 18 months after the
effective date of the amendments. . . .”).SCHELMETTY—ARMY 20150488

8 directly contradicts the proh ibition of admittin g hearsay under Mi l. R. Evid. 801 which operates to prohibit such hearsay in civilian tr ials throughout the country. 6

However, our determination that Mil. R. Evid. 412 operates to exclude
evidence that would have be en admissible under Mil. R. Evid. 106 and 304(h)(2) does not end the inquiry. If operation of Mil. R. Evid . 412 would result in the admission of a statement whose original mean ing and intent is lost or misleading we
would encounter a second problem. We would agree with appellant’s argument that
Mil. R. Evid. 412 can not be used simultaneously as a shield to protect the victim’s privacy and a sword that allows for the introduction of misleading evidence which the defense is prohibit ed from explaining or putting in context.

Appellant argues that in such a circumstance, the evidence that is prohibited
under Rule 412 should nonetheless be ad mitted. We disagr ee. If a statement becomes misleading when it is redacted to exclude eviden ce under Mil. R. Evid. 412
the answer is not to breach Mil. R. Evid. 412 by findi ng an unenumerated exception to the rule. Rather, the answer is not to admit the statement in the first place. Simply put, if the exclusi on of Mil. R. Evid . 412 evidence has made the statement such that its probative fo rce is substantially outweig hed by the danger of unfair prejudice, the stat ement should be excluded under Mil. R. Evid. 403.

Applying this analysis to the present case, and setting aside whether appellant has preserved the Mil. R. Evi d. 403 issue for appeal , we do not find that the redacted statements created a misleading document. The excluded portions of the statement were factually and te mporally separate from the ad mitted portion. The force of appellant’s admissions that he had sex with TJ while (he at le ast believed) she was sleeping was no t undermined by his statement 7 that she later ini tiated sexual acts
with him.

6 Article 36, UCMJ requires th e president (“shall”) to implement rules of evidence “generally recognized in the trial of criminal cases in the United States district court
. . . . “ unless he co nsiders it “impracticable.” Goi ng back to at least to 1951—that is, predating both the Milita ry Rules of Eviden ce and Federal Ru les of Evidence— the Manual for Courts-Martial, ¶ 140a, MCM (1951) provided that “[i]f only part of
a confession or admission . . . is shown, the defens e by cross-examination or otherwise may show the rema inder of the statement.”

7 Appellant claimed that TJ initially kicked hi m out of the room because she was afraid her boyfriend would disc over them. He then claimed that afterwards, TJ came
downstairs and initiate d sex on a couch in an open living room and next to a sleeping individual.SCHELMETTY—ARMY 20150488

9 CONCLUSION

Finding no error, we A FFIRM the findings of guilty and the sentence.

Senior Judge MULLIGAN an d Judge FEBBO concur.

FOR THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: