CORRECTED COPY 

UNITED STATES ARMY COURT 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, Acting Staff Judge Advocate (pretrial) 

Colonel Erik L. Christiansen, Staff Judge Advocate (post-trial) 

For Appellant: Major Patrick Scudieri, JA (argued); Colonel Mary J. Bradley, JA; 

Major Christopher D. Coleman, JA (on brief); Major Patrick Scudieri, JA; Major 

Christopher D. Coleman, JA (on reply brief). 

For Appellee: Major Edward J. Whitford (argued); Colonel 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 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

WOLFE, Judge: 

In this appeal we address whether the military judge abused his discretion in 

limiting the introduction of post-assault sexual behavior evidence by the alleged 

victim, TJ. What is unusual about this case, and what makes appellant’s position on 

appeal difficult, is that the defense never filed a motion under Military Rule of 

Evidence [hereinafter Mil. R. Evid.] 412. We also address appellant’s claim that the 

military judge erred by preventing the defense from admitting the remaining portions 

of a statement by appellant admitted by the government at trial.1

                                                            

1

 We have considered appellant’s other assigned error that the evidence is legally and 

factually insufficient to support 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 surrounding this case all took place in a home in the early morning 

hours of January 1st, 2014 following a New Year’s Eve party. Two versions of 

events were admitted at trial.2 The first was through partially redacted statements 

that appellant made to the Army Criminal Investigation Command (CID). The 

second was through the testimony of the victim, TJ. 

Appellant told CID that that there had been no prior sexual relationship 

between him and TJ. He stated that after he climbed in the bed where TJ was 

sleeping, he performed oral sex on her while she was still asleep. He then said that 

“[s]he woke up somewhere between me doing 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 out of the room when she 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 testified that when appellant entered 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 presented with alternative charges alleging sexual assault. The 

first specification, based on the testimony of TJ, alleged a sexual assault in which 

appellant mislead TJ into thinking he was another person. The second specification, 

based on appellant’s admissions to CID, alleged that TJ was “asleep, unconscious, or 

otherwise unaware that the sexual act was occurring.” 

The panel rejected both theories and convicted appellant of attempting to 

sexually assault TJ while she was “asleep, unconscious, or otherwise unaware.” The 

panel then sentenced appellant to a dishonorable discharge, four months 

confinement, total forfeiture of pay and allowances, and reduction 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 specification of attempted sexual assault in violation of Article 80, 

Uniform Code of Military Justice, 10 U.S.C. § 880 (2012) [hereinafter UCMJ]. 

3

 Corrected 
SCHELMETTY—ARMY 20150488 

3 

LAW AND DISCUSSION 

A. Military Rule of Evidence 412 

Appellant asks us to review the military judge’s decision to exclude evidence 

of post-assault behavior by the alleged victim. Appellant told CID that after the 

alleged assault, TJ came down stairs and engaged in consensual sexual activity with 

him. During the closed Mil. E. Evid. 412 hearing TJ flatly denied this had 

happened. Accordingly, the only evidence of this behavior would be from appellant 

(either through his testimony or through the admission of his full 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 find that it is. 

According to appellant, TJ kicked him out of the bedroom upon determining 

his true identity and because she feared her boyfriend would discover them in bed. 

He then went downstairs. Shortly afterwards, TJ came downstairs and initiated 

consensual sexual intercourse with appellant on the couch. We do not see this as 

being part of the res gestae of the offense and therefore 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 Mar. 2017). In that case, 

this panel found that the military judge erred when he excluded under Mil. R. Evid. 

412 evidence that appellant and the alleged victim “engaged in highly sexualized 

dancing that simulated sex” and then immediately proceeded to, under appellant’s 

theory, have consensual sexual intercourse. We found the dancing not to have been 

“other sexual behavior” because it was all part of the same course 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 committed 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 mind (i.e., whether he reasonably and honestly believed there was 
SCHELMETTY—ARMY 20150488 

4 

consent). Also unlike in Gaddy, the claimed post-assault sexual intercourse was 

temporally and physically 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 describing the 

evidence and stating the purpose for which it is offered. . . .” (emphasis added). 

Here, no written motion was filed. Rather, given the absence of a defense 

motion, the government made an oral motion to preclude the defense from 

introducing evidence of other sexual behaviors by the victim. At that point, the 

defense counsel stated that he wanted to introduce evidence of TJ’s post-assault 

sexual behavior. Notwithstanding the absence of a motion, the military judge 

conducted a Mil. R. Evid. 412 closed hearing because he found “good cause.” We 

disagree with the military judge’s finding for two reasons. 

First, there is no exception to the requirement for the filing of a written 

motion. While the rule allows “for good cause shown . . . a different time for filing” 

it does not allow for oral motions. 412(c)(1)(A). Within the context of the rule, this 

makes sense. The same evidence under Mil. R. Evid. 412 may have permissible and 

impermissible uses. The specificity required by the motion ensures that the military 

judge knows exactly what the moving party is requesting and why. Additionally, the 

motion is not merely the means of providing information to the military judge. The 

motion also provides due process (notice) 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 was included in appellant’s 

written statements to CID. Nonetheless, the military judge stated that he had found 

“good cause despite neither side providing any notice for 412 evidence.” 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 somewhat troubled by 

this reasoning. Obviously, a military judge 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 orally 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 directly questioned the military judge’s ruling, 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 military judge’s ruling 

on a motion that was never actually made. 

Moreover, by not holding the 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 explain the problem we face. 

First, on appeal appellant asks us to find that the conduct in question was 

admissible under the “consent” exception in Mil. R. Evid. 412(b)(1)(B). Indeed, this 

may be the most relevant exception. However, this exception was never presented or 

articulated to the military judge. The defense at trial argued only the 

“constitutionally required” exception; and even then only on an exceedingly narrow 

basis. 

Second, on appeal appellant asserts new theories as to why the post-assault 

evidence was constitutionally required. Specifically, appellant asserts new reasons 

why the claimed post-assault sexual intercourse was evidence of a motive for TJ to 

fabricate allegations of assault. These theories (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 stating the purpose for which it is offered.” Mil. R. Evid. 

412(c)(1)(A) (emphasis added). 

                                                            

4 The military judge excluded the Mil. R. 412 evidence, in part, because he did not 

find by a preponderance that the subsequent contact between appellant and TJ had 

happened. This was an erroneous view of his role as an evidentiary gate keeper. 

See United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010) (“In applying M.R.E. 

412, the judge is not asked to determine if the proferred 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 

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 time to research the issue, 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 than does appellant. Our job is to determine whether the trial 

judge erred. For purposes of Mil. R. Evid. 412, this means evaluating the trial 

judge’s ruling based on the evidence introduced during the closed hearing, the 

motion (or, here, the arguments) of the moving party, and the law. Often, and in this 

case, when ruling on pretrial motions the military judge has little information about 

the evidence or the defense theory of the case. We cannot find the military judge 

erred in a Mil. R. Evid. 412 ruling based on an exception 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 military judge to sua sponte instruct on 

issues even when not specifically asserted by a party. For example, Rule for CourtMartial [hereinafter R.C.M.] R.C.M. 920(e)(2) requires military judges to instruct on 

lesser-included offenses raised by the evidence regardless of whether a party 

requests such an instruction. Mil. R. Evid. 412, however, is different in several 

regards. To begin with, the plain language of the rule puts the burden on the moving 

party to show they meet the requirements for an exception under the rule. Also, with 

pretrial motions (unlike instructions to the panel) the military judge is often 

unaware of the parties’ theories of the case and the evidence to be admitted. Finally, 

when a military judge admits evidence under Mil. R. Evid. 412 based on reasons that 

were never articulated in a motion, the alleged victim is not provided the notice (i.e., 

due process) that is required under the rule. 

Accordingly, we will limit 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 motion, we will look to the defense counsel’s brief 

summation at the end of the closed Mil. R. Evid. 412 hearing. Appellant’s counsel, 

citing the constitutionally required exception, offered a narrow basis for the 

admissibility of the evidence. Appellant was charged with 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 intercourse was necessary 

because it went directly to appellant’s defense that TJ knew who appellant was 

during the assault. The defense argued that by seeking appellant out post-assault, TJ 

must have clearly known his identity. Again, 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 acquitted appellant of 

sexual assault “by inducing a belief by artifice . . . that the accused was another 

person.” Accordingly, there can be no prejudice from the exclusion of evidence of a 

defense that was applicable only to an offense for which appellant was acquitted. 

Accordingly, we do not find, 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 judge improperly allowed the 

government to introduce redacted versions of appellant’s sworn statements to Army 

CID. Consistent with the military judge’s Mil. R. Evid. 412 ruling discussed above, 

the statements redacted any mention of TJ’s post-assault sexual behavior. At trial, 

appellant argued that full statements should be admitted to “complete the record” 

under both Mil. R. Evid 106 and 304(h)(2). Accordingly, any error in admitting the 

redacted statements is preserved. 

 For purposes of this analysis, we assume the military judge’s ruling under 

Mil. R. Evid. 412 was correct. If the ruling was incorrect, then there would be no 

basis to exclude the information from the statements. Thus we limit our discussion 

here to whether the military judge erred in prohibiting the admission of evidence 

notwithstanding that it was properly 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 statement would be admissible under Rule 304(h)(2), but is 

inadmissible under Rule 412, it remains inadmissible. For Rule 412 to have any 

effect it has to apply to evidence that otherwise would have been admissible. Put 

differently, a rule that serves to exclude evidence only when it was already 

inadmissible would serve no purpose. 

 Unlike Mil. R. Evid. 412, which has its origins in statute,5

 we note that Mil. 

R. Evid. 304(h)(2) is a creature solely of regulation. The rule has no federal 

counterpart and is not based on statute or constitutional law. Rule 304(h)(2) itself 

                                                            

5 See Privacy Protection for Rape Victims Act of 1978, Pub. L. No. 95-540, 93 Stat. 

2046 (1978) (establishing Federal Rule of Evidence 412); see also Mil. R. Evid. 

1102 (unless the President takes action to the contrary, “[a]mendments to the Federal 

Rules of Evidence shall apply to the Military Rules of Evidence 18 months after the 

effective date of the amendments. . . .”). 
SCHELMETTY—ARMY 20150488 

8 

directly contradicts the prohibition of admitting hearsay under Mil. R. Evid. 801 

which operates to prohibit such hearsay in civilian trials throughout the country.6

 However, our determination that Mil. R. Evid. 412 operates to exclude 

evidence that would have been 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 meaning and intent is lost or misleading we 

would encounter a second problem. We would agree with appellant’s argument that 

Mil. R. Evid. 412 cannot 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 prohibited from explaining or putting in context. 

 Appellant argues that in such a circumstance, the evidence that is prohibited 

under Rule 412 should nonetheless be admitted. We disagree. If a statement 

becomes misleading when it is redacted to exclude evidence under Mil. R. Evid. 412 

the answer is not to breach Mil. R. Evid. 412 by finding an unenumerated exception 

to the rule. Rather, the answer is not to admit the statement in the first place. 

Simply put, if the exclusion of Mil. R. Evid. 412 evidence has made the statement 

such that its probative force is substantially outweighed by the danger of unfair 

prejudice, the statement 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. Evid. 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 temporally separate from the admitted portion. The force of 

appellant’s admissions that he had sex with TJ while (he at least believed) she was 

sleeping was not undermined by his statement7

 that she later initiated sexual acts 

with him. 

                                                            

6 Article 36, UCMJ requires the president (“shall”) to implement rules of evidence 

“generally recognized in the trial of criminal cases in the United States district court 

. . . . “ unless he considers it “impracticable.” Going back to at least to 1951—that 

is, predating both the Military Rules of Evidence and Federal Rules of Evidence— 

the Manual for Courts-Martial, ¶ 140a, MCM (1951) provided that “[i]f only part of 

a confession or admission . . . is shown, the defense by cross-examination or 

otherwise may show the remainder of the statement.” 

7

 Appellant claimed that TJ initially kicked him out of the room because she was 

afraid her boyfriend would discover them. He then claimed that afterwards, TJ came 

downstairs and initiated sex on a couch in an open living room and next to a 

sleeping individual. 
SCHELMETTY—ARMY 20150488 

9 

CONCLUSION

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

Senior Judge MULLIGAN and 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: