United States v. Lee

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40258
________________________
UNITED STATES
Appellee
v.
Jordan R. LEE
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 27 July 2023
________________________
Military Judge: Matthew N. McCall (pretrial motions and arraignment);
Jason M. Kellhofer.
Sentence: Sentence adjudged 9 December 2021 by GCM convened at Sey-
mour Johnson Air Force Base, North Carolina. Sentence entered by mil-
itary judge on 4 February 2022: Bad-conduct discharge, confinement for
24 months, forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major David L. Bosner, USAF; Major Alexandra K.
Fleszar, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major John P. Patera, USAF; Major
Brittany M. Speirs, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen
Payne, Esquire.
Before RICHARDSON, CADOTTE, and ANNEXSTAD, Appellate Mili-
tary Judges.
Senior Judge RICHARDSON delivered the opinion of the court, in which
Judge CADOTTE and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Lee, No. ACM 40258
RICHARDSON, Senior Judge:
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of three specifications of abusive sexual con-
tact in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920. 1 The military judge sentenced Appellant to a bad-conduct dis-
charge, confinement for 24 months, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority took no action on the
findings or sentence.
Appellant raises seven issues on appeal, which we have reordered and con-
solidated as follows: (1) whether Appellant’s convictions are legally and factu-
ally sufficient; 2 (2) whether the military judge abused his discretion in failing
to compel the Defense’s character witness and in excluding that witness’ testi-
mony; (3) whether the military judge improperly excluded constitutionally re-
quired statements; (4) whether the military judge abused his discretion in de-
ciding Specifications 1 and 2 of the Charge were not unreasonably multiplied
at findings; and (5) whether Appellant was deprived of a constitutional right
to a unanimous verdict. We have carefully considered issues (4) and (5) and
find they do not require discussion or warrant relief. See United States v.
Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021) (citing United States v. Matias, 25
M.J. 356, 361 (C.M.A. 1987)). We find no error materially prejudicial to Appel-
lant’s substantial rights, and we affirm the findings and sentence. 3
I. BACKGROUND 4
MC served his first four years in the Air Force overseas. MC arrived at
Seymour-Johnson Air Force Base in late November 2020; Appellant was MC’s
sponsor. The two became friends.
1 Unless otherwise noted, all references in this opinion to the UCMJ, Military Rules of
Evidence, and Rules for Courts-Martial are to the Manual for Courts-Martial, United
States (2019 ed.).
2 Appellant raises legal sufficiency pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982).
3 In sentencing argument, trial defense counsel argued that, in contrast to trial coun-
sel’s recommendation for a dishonorable discharge, “a BCD is a much more appropriate
sentence.” The record does not indicate whether trial defense counsel’s argument for a
bad-conduct discharge comported with Appellant’s wishes. See United States v. Dresen,
40 M.J. 462, 465 (C.M.A. 1994) (when trial defense counsel concedes the appropriate-
ness of a punitive discharge, “counsel must make a record that such advocacy is pur-
suant to the accused’s wishes.”). Appellant has not claimed error or prejudice, and we
find relief is not warranted.
4 Unless otherwise noted, the facts in this section are derived from MC’s testimony.
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United States v. Lee, No. ACM 40258
MC spent the evening of Christmas 2020 with Appellant, KP, and KP’s
husband Staff Sergeant (SSgt) WP, who three shared a home. After KP and
SSgt WP turned in for the night, Appellant and MC went to Appellant’s room
to watch a movie. They reclined on Appellant’s king-size bed, with their backs
to the wall, watching a movie on a television across the room.
MC fell asleep. At some point he woke up but kept his eyes closed. He
thought “something didn’t feel right” and “something was going on.” He real-
ized his “hand was wrapped around [Appellant’s] penis, with [Appellant’s]
hand over [his hand], [Appellant] was pleasing himself, masturbating while
using [MC] to do it for him.” Appellant’s penis was erect, and Appellant was
naked from the waist down. Appellant then used Appellant’s other hand to
unbutton MC’s pants and “pull [MC’s] penis out too.” MC explained his reac-
tion:
So, after those, after the panic, I decided you know, in a split
second, I just need to show that I’m awake, I just need to show
that I know what’s going on. Pretending to wake up eventually,
you know, I opened my eyes. As my eyes were opened, everything
seemed to stop. My hand wasn’t moving anymore, his hand
wasn’t moving anymore. I opened my eyes, you know, I looked
over and he, in my mind, pretended to be asleep. My eyes were
closed, but my hand was still on his penis. You know, he was
under the blanket, I just, I didn’t really understand what was
going on, I just had to look. I had to know. And so, of course I lift
up the blanket and I see everything I just described with my own
eyes.
MC did not consent to the sexual activity by Appellant. MC got off the bed,
buttoned his pants and put on his shoes, and went to his car.
While the windshield of his car was defrosting, MC texted his best friend,
Ms. MH, who called him back about five minutes later. MC was “ugly crying”
as he was talking to her. Ms. MH testified MC sounded “very upset and dis-
traught” and “frantic and like he was crying,” and she “knew something bad
had happened.” MC told her “what happened, back on [Appellant’s] bed.”
Ms. MH testified about what MC told her during that call:
He told me that he . . . fell asleep while watching a movie with
[Appellant], and he had woken up with his hand on [Appellant’s]
penis and [Appellant’s] hand moving around on his, and when
he kind of woke up and moved around a little bit, [Appellant]
pretended like he was asleep, and that’s when he got up and left,
and then he went out and called me.
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United States v. Lee, No. ACM 40258
While MC was on the phone with Ms. MH, Appellant came up to MC’s car.
MC berated Appellant, saying things like “how could you, why would you, what
were you thinking[.]” Without looking up at MC, Appellant said, “I’m sorry. I’m
sorry.” Ms. MH testified about what she heard:
While we were talking on the phone, he said that [Appellant]
had come outside and had said either [MC] had asked him in a
very loud, almost yelling, very upset way, like, “why did you do
this, why did you think this was okay?” And it was hard to hear,
but it was either he answered with “I’m sorry” or “I don’t know.”
MC drove home, and the next day talked to his roommate SSgt CN “about
what happened the night previous.” SSgt CN testified to the effect that MC
told him Appellant had committed a sexual act upon him while MC was at
Appellant’s house, and that it was without MC’s consent.
Another witness, SSgt DR, testified she was friends with MC and called
him around Christmas 2020. During that call, MC told her that he was as-
saulted at Appellant’s house, without MC’s consent.
On 6 January 2021, MC’s supervisor, Technical Sergeant (TSgt) CS, orally
provided initial supervisory feedback to MC. TSgt CS repeatedly reminded MC
that as a supervisor himself, he should not forget to take care of himself. MC
“broke down and started crying” and “just told [TSgt CS] everything that hap-
pened.” TSgt CS testified MC told him that on Christmas 2020, Appellant com-
mitted a non-consensual sexual act on MC. TSgt CS informed MC that he was
a mandatory reporter, and called the base Sex Assault Prevention and Re-
sponse office. Ultimately, MC reported Appellant’s actions to agents from the
Office of Special Investigations (OSI).
At the court-martial, three witnesses testified about MC’s character for
truthfulness: Ms. MH, SSgt CN, and TSgt CS. They all opined he was truthful.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021)
(citation omitted), rev. denied, 82 M.J. 312 (C.A.A.F. 2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
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United States v. Lee, No. ACM 40258
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (citation omitted).
“[T]he term ‘reasonable doubt’ does not mean that the evidence must be free
from any conflict . . . .” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(citation omitted). In resolving questions of legal sufficiency, we are “bound to
draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Bright, 66 M.J. 359, 365 (C.A.A.F. 2008) (inter-
nal quotation marks and citations omitted). The evidence supporting a convic-
tion can be direct or circumstantial. See United States v. Long, 81 M.J. 362,
368 (C.A.A.F. 2021) (citing Rule for Courts-Martial (R.C.M.) 918(c) (additional
citation omitted)). “[A] rational factfinder[ ] could use his ‘experience with peo-
ple and events in weighing the probabilities’ to infer beyond a reasonable
doubt” that an element was proven. Id. at 369 (quoting Holland v. United
States, 348 U.S. 121, 140 (1954)). The “standard for legal sufficiency involves
a very low threshold to sustain a conviction.” King, 78 M.J. at 221 (internal
quotation marks and citation omitted).
“The test for factual sufficiency is ‘whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.’” Rodela, 82 M.J. at 525 (second alteration in original) (quoting United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this unique
appellate role, we take ‘a fresh, impartial look at the evidence,’ applying ‘nei-
ther a presumption of innocence nor a presumption of guilt’ to ‘make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.’” United States v. Wheeler,
76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting
Washington, 57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
To convict Appellant of abusive sexual contact as alleged in Specification 1,
the Government was required to prove the following elements beyond a rea-
sonable doubt: (1) Appellant committed a sexual contact upon MC, specifically
by causing MC to touch Appellant’s penis with MC’s hand with an intent to
gratify Appellant’s sexual desire, (2) MC was asleep, and (3) Appellant knew
or reasonably should have known that MC was asleep. See 10 U.S.C. § 920(d);
Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV,
¶ 60.b.(4)(e).
To convict Appellant of abusive sexual contact as alleged in Specification 2,
the Government was required to prove the following elements beyond a rea-
sonable doubt: (1) Appellant committed a sexual contact upon MC, specifically
by causing MC to touch Appellant’s penis with MC’s hand with an intent to
5
United States v. Lee, No. ACM 40258
gratify Appellant’s sexual desire, and (2) Appellant did so without MC’s con-
sent. See 10 U.S.C. § 920(d); MCM, pt. IV, ¶ 60.b.(4)(d). 5
To convict Appellant of abusive sexual contact as alleged in Specification 3,
the Government was required to prove the following elements beyond a rea-
sonable doubt: (1) Appellant committed a sexual contact upon MC, specifically
touching MC’s penis with Appellant’s hand with an intent to gratify Appel-
lant’s sexual desire, and (2) Appellant did so without MC’s consent. See 10
U.S.C. § 920(d); MCM, pt. IV, ¶ 60.b.(4)(d).
2. Analysis
Appellant personally asserts the findings of guilty to the Charge and its
specifications are legally insufficient because no reasonable factfinder could
have found beyond a reasonable doubt that (1) MC was asleep as charged in
Specification 1, and (2) MC did not consent to the conduct alleged in Specifica-
tions 2 and 3. Through counsel, Appellant asserts the findings of guilty are
factually insufficient because MC was not a credible witness. We are unper-
suaded.
A rational finder of fact could have found the Government proved each ele-
ment of each offense beyond a reasonable doubt. Importantly, corroboration of
a witness’s testimony is not required for legal sufficiency. See United States v.
Rodriguez-Rivera, 63 M.J. 372, 383 (C.A.A.F. 2006) (“The testimony of only one
witness may be enough . . . so long as the members find that the witness’s tes-
timony is relevant and is sufficiently credible.”). MC credibly testified that he
awoke to find Appellant holding MC’s hand rubbing Appellant’s penis, that
Appellant touched MC’s penis, and MC did not consent to this sexual activity
with Appellant. MC immediately reported the incidents to a friend, whose tes-
timony confirmed MC was distressed. The next day and week MC made con-
sistent reports to other people. Additionally, multiple witnesses opined MC had
a very good character for truthfulness.
We considered Appellant’s specific assertions on these issues. Whether MC
had turned conversations to a sexual topic, chose to spend Christmas with Ap-
pellant, may have been sexually interested in men, voluntarily went into Ap-
pellant’s bedroom, fell asleep sitting upright on the bed, or did not move during
the sexual conduct are not incompatible with, and do not cause us to doubt, the
findings of guilt in this case. We conclude that viewing the evidence produced
at trial in the light most favorable to the Prosecution demonstrates a rational
trier of fact could have found the essential elements of the convicted offenses
5 The Government did not charge Specifications 1 and 2 in the alternative. Rather,
Specification 1 addresses Appellant’s conduct while MC was asleep, and Specification
2 addresses Appellant’s conduct that continued after MC awoke.
6
United States v. Lee, No. ACM 40258
beyond a reasonable doubt. See Robinson, 77 M.J. at 297−98. Furthermore,
after weighing the evidence in the record of trial and making allowances for
not having personally observed the witnesses, we are ourselves convinced of
Appellant’s guilt beyond a reasonable doubt. See Rodela, 82 M.J. at 525.
B. Character Witness
On 19 November 2021, the Defense filed a motion to compel production of
Mr. JS, a character witness. On 23 November 2021, the Prosecution filed an
opposition to the defense motion and filed a motion in limine to prevent Appel-
lant from introducing impermissible character evidence, specifically Mr. JS’s
testimony. On 29 November 2021, in a consolidated ruling the military judge
denied the defense motion and granted the government motion. 6 Appellant as-
serts the military judge abused his discretion in ruling against him. We find
the military judge did not abuse his discretion in not compelling the presence
of the witness or in ruling the expected testimony inadmissible in findings.
1. Additional Background
During its investigation of Appellant, OSI agents interviewed Mr. JS, with
whom Appellant had had a sexual relationship. Appellant sought to have
Mr. JS testify as a witness to Appellant’s character. Specifically, the Defense
proffered in its motion that Mr. JS would testify Appellant “has a character for
being sexually guarded” as well as “reserved” and “unassertive.” The Defense
sought to elicit both opinion and evidence of specific instances. Appellant
stated the evidence was relevant and necessary to his defense in that the evi-
dence would contradict, refute, or impeach MC. 7 In its motion in limine, the
Prosecution argued that the expected testimony was inadmissible.
In his written ruling, the military judge found testimony from Mr. JS that
Appellant “was reserved, unassertive, and never initiated sexual intercourse”
and Mr. JS’s opinion that Appellant was “‘sexually guarded’” were “irrelevant
to the charges at hand.” The military judge found the scope of Mr. JS’s founda-
tion for his opinion was limited to Appellant’s interactions with Mr. JS only.
Similarly, he found Mr. JS’s testimony would be “lacking factual assistance”
6 The military judge did not grant Appellant’s request for a hearing on the motion. In
his written ruling, the military judge noted that no facts were in dispute. When he
marked his ruling on the record, the military judge implied that a reason he did not
hold a hearing was to more quickly resolve an issue relating to ordering the presence
of a potential witness. He asked, “is there anything further to be heard on that motion,
or with regard to that motion,” and both parties answered in the negative. Appellant
has not claimed error or prejudice, and we find none.
7 Appellant did not assert that the evidence was relevant to whether MC consented to
the charged conduct, or to show that Appellant reasonably believed MC consented.
7
United States v. Lee, No. ACM 40258
as it would not address Appellant’s interactions with MC. The military judge
found under Mil. R. Evid. 403 that any possible relevance of the expected tes-
timony “is substantially outweighed by the confusing nature of introducing
such evidence.” 8
On appeal, Appellant asserts error only with respect to the military judge
denying him the ability to ask Mr. JS his opinion of Appellant’s character for
being reserved, unassertive, and sexually guarded. 9
2. Law
We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)
(citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). We also re-
view a military judge’s decision to deny production of a witness for an abuse of
discretion. United States v. Shelton, 62 M.J. 1, 7 (C.A.A.F. 2005). We find an
abuse of discretion when the military judge’s “findings of fact are clearly erro-
neous, the court’s decision is influenced by an erroneous view of the law, or the
military judge’s decision on the issue at hand is outside the range of choices
reasonably arising from the applicable facts and the law.” United States v. Mil-
ler, 66 M.J. 306, 307 (C.A.A.F. 2008) (citations omitted). “[U]nder the last of
these tests,” we must find “‘more than a mere difference of opinion’; rather, the
military judge’s ruling ‘must be arbitrary, fanciful, clearly unreasonable or
clearly erroneous.’” United States v. Uribe, 80 M.J. 442, 451 (C.A.A.F. 2021)
(quoting United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009)).
At a court-martial, relevant evidence is generally admissible. Mil. R. Evid.
402. Evidence is relevant when it has any tendency to make a fact of conse-
quence in determining the action more probable or less probable than it would
be without the evidence. Mil. R. Evid. 401. Nevertheless, Mil. R. Evid. 403 per-
mits a military judge to “exclude relevant evidence” at a court-martial “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the members, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
8 In a footnote in his ruling, the military judge asserted he “tends to find that Mr. [JS’s]
testimony would likely be admissible in some regard for sentencing and could certainly
be accomplished telephonically if found admissible and is so requested.” The Defense
did not call Mr. JS as a witness in sentencing.
9 Further, Appellant does not assert before us that he could have elicited evidence of
specific instances of the proffered character traits. He also does not assert the military
judge erred in his consideration of other character traits (including being selfless, help-
ful, and putting others before himself), or that Mr. JS had not witnessed Appellant
engage in the type of conduct with which he was charged.
8
United States v. Lee, No. ACM 40258
An accused may offer reputation or opinion testimony of an accused’s per-
tinent character trait. Mil. R. Evid. 404(a)(2), 405(a). In this context, “perti-
nent” means “relevant” to the misconduct charged. See United States v. Ever-
age, 19 M.J. 189, 192 (C.M.A. 1985) (citation omitted). “Whether the particular
trait is ‘pertinent’ depends on the relationship of the accused’s defense to the
charged crime.” United States v. Pruitt, 43 M.J. 864, 867 (A.F. Ct. Crim. App.
1996) (citing United States v. Gagan, 43 M.J. 200 (C.A.A.F. 1995)), aff’d, 43
M.J. 148 (C.A.A.F. 1997). Only when a specific character trait “is an essential
element of a charge, claim, or defense” may the trait be proved by specific in-
stances of the person’s conduct. Mil. R. Evid. 405(b); United States v. Schelkle,
47 M.J. 110, 112 (C.A.A.F. 1997).
At a court-martial, “[e]ach party is entitled to the production of evidence
which is relevant and necessary.” R.C.M. 703(e)(1). “Relevant evidence is ‘nec-
essary when it is not cumulative and when it would contribute to a party’s
presentation of the case in some positive way on a matter in issue.’” United
States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (quoting R.C.M. 703(f)(1),
Discussion, Manual for Courts-Martial, United States (2000 ed.)); see also
R.C.M. 703(b)(1), Discussion. This includes witness testimony. See United
States v. Powell, 49 M.J. 220, 225 (C.A.A.F. 1998). Testimony is material if it
is of consequence to the determination of guilt. See United States v. Bishop, 76
M.J. 627, 639 (A.F. Ct. Crim. App. 2017) (citation omitted). “A witness whose
testimony is necessary and material must be produced or the proceedings
abated, unless the testimony ‘would be merely cumulative to the testimony of
other defense witnesses.’” Powell, 49 M.J. at 225 (quoting United States v. Mil-
ler, 47 M.J. 352, 359 (C.A.A.F. 1997)).
A ruling that denies production of a witness should be reversed only if, “on
the whole,” denial was improper. United States v. McElhaney, 54 M.J. 120, 126
(C.A.A.F. 2000) (quoting United States v. Ruth, 46 M.J. 1, 3 (C.A.A.F. 1997)).
Moreover, we will not reverse a military judge’s denial of a witness request
unless we have “a definite and firm conviction that the [military judge] com-
mitted a clear error of judgment in the conclusion [he or she] reached upon a
weighing of the relevant factors.” Id. (citing United States v. Houser, 36 M.J.
392, 397 (C.M.A. 1993)). 10
10 These factors “include: the issues involved in the case and the importance of the
requested witness to those issues; whether the witness is desired on the merits or the
sentencing portion of the case; whether the witness’s testimony would be merely cu-
mulative; and the availability of alternatives to the personal appearance of the witness,
such as depositions, interrogatories, or previous testimony.” United States v. McEl-
haney, 54 M.J. 120, 127 (C.A.A.F. 2000).
9
United States v. Lee, No. ACM 40258
3. Analysis
Appellant claims the military judge abused his discretion in both denying
Appellant’s motion to compel Mr. JS as a witness and in granting the Prosecu-
tion’s motion to preclude Mr. JS’s testimony as impermissible character evi-
dence in findings at Appellant’s court-martial. We begin our analysis with the
latter.
Our first question is whether the character traits of Appellant “being re-
served, unassertive, and sexually guarded” were pertinent and therefore rele-
vant. The military judge focused on the limited foundation for Mr. JS’s opin-
ion—that Mr. JS apparently had no knowledge of Appellant’s interactions with
other people or with MC in particular. The military judge found the expected
testimony about the character traits was “irrelevant to the charges at hand,”
but ultimately found enough relevance to conduct balancing under Mil. R.
Evid. 403. We find the military judge’s ruling was not influenced by an errone-
ous view of the law, and was not arbitrary, fanciful, clearly unreasonable, or
clearly erroneous.
We struggle to see how a character for being reserved, unassertive, or sex-
ually guarded counters the allegation that Appellant initiated sexual activity
with someone who was asleep. Appellant argues, “A reserved, unassertive, sex-
ually guarded person is not going to engage in sex without knowing where they
stand in a relationship. A reserved, unassertive, and in particular, sexually
guarded person is going to be less likely to initiate sex at all, and much less so
against someone’s consent.” On the contrary, someone who is hesitant to initi-
ate sexual activity with a conscious person—like Appellant, as per Mr. JS’s
expected testimony—may be more comfortable initiating sexual activity with
a sleeping person. Moreover, that same reserved, unassertive, or sexually
guarded person arguably is more likely to pretend to be asleep when the other
person awakes during the sexual conduct. At best for Appellant, the nature of
the expected testimony on the character traits cuts both ways; at worst, it fa-
vors the Prosecution. We find the military judge did not abuse his discretion in
prohibiting the expected testimony based on its low probative value and the
risk of confusion.
For similar reasons, we cannot conclude the military judge abused his dis-
cretion in denying the Defense motion to compel Mr. JS’s production for find-
ings. Having ruled that the expected testimony about Appellant’s character
traits was inadmissible, we appreciate why he did not separately analyze the
factors relevant to witness production, including the importance of the re-
quested witness to the issues involved in the case, and whether the witness’s
10
United States v. Lee, No. ACM 40258
testimony would be merely cumulative. 11 We find no clear error of judgment in
not compelling the witness, see McElhaney, 54 M.J. at 127, and no abuse of
discretion.
C. Constitutionally Required Statements
Appellant contends the military judge erred in limiting the scope of testi-
mony about a statement of a sexual nature that MC purportedly made prior to
the time of the offenses. We find no error.
1. Additional Background
The following exchange took place during trial counsel’s direct examination
of MC:
Q. Now, prior to going back in [Appellant’s] room that night,
were there any conversations between you and [Appellant] that
were sexual in nature or any discussions or conversations that
were sexual in nature?
A. I don’t think so, no.
Before beginning cross-examination of MC, the Defense raised an issue
with this testimony under Mil. R. Evid. 412; the military judge considered the
issue in a closed hearing. The Defense proffered that “[MC] had a conversation
with [witnesses] and [Appellant] that he enjoys [a certain type of sexual act]
. . . and that would be an act that would be – that is open to both male on male
relationships and male on female relationships.” 12 The Defense asserted that
the specific statement was relevant to whether MC conveyed to Appellant that
he was open to sexual acts with a male, specifically that certain type of sexual
act. In contrast, the Government proffered that the witnesses instead would
testify that Appellant made the statement, and suggested the witnesses be
called to testify in a closed hearing.
The military judge ruled the Defense could question MC in cross-examina-
tion on “whether or not conversations of a sexual nature took place” involving
him and Appellant, but “not get into the substance.” The military judge found
any question “getting into” particular “sex acts . . . risks the concern of becom-
ing prejudicial, or individuals being uncomfortable with hearing that language
11 In the Law section of his written ruling, the military judge identified a non-exhaus-
tive list of factors. The case he cited for these factors, United States v. Bennett, 12 M.J.
463, 466 (C.M.A. 1982), and the case Appellant cites in his brief, McElhaney, 54 M.J.
at 127, both cite United States v. Tangpuz, 5 M.J. 426, 429 (C.M.A. 1978).
12 The exact nature of the sexual act is contained in sealed materials. The act is not of
the type Appellant was charged with committing against MC. It is not necessary for
our resolution of the issues in this opinion to provide more detail.
11
United States v. Lee, No. ACM 40258
or holding it against somebody when it’s not necessary to get into the exact
language.” As the hearing progressed, the Defense stated they did not intend
to confront MC on cross-examination with a prior inconsistent statement, but
instead intended to call SSgt WP and KP as witnesses.
After the Government rested, the Defense again raised this issue to the
military judge. The Defense explained that they “don’t intend to go further
than our discussion at the [Mil. R. Evid.] 412 motion” and believed the military
judge ruled that they “could not get into specifics” but “were permitted to get
into . . . the general nature of what was discussed, or more to the point if there
was a discussion had.” The military judge related he was not allowing the wit-
nesses’ testimony as a prior inconsistent statement of MC, but instead “to rebut
th[e] inference” that discussion of a sexual nature never happened. He added,
[B]ecause the only reason any of this was brought up by [the
Government] or would be is because it goes to the issue of con-
sent. . . . I do find that it is constitutionally permissible in the
limited fashion under [Mil. R. Evid.] 412.
....
There’s no reason to be getting into specifics, again, the only
point here is whether or not . . . such conversation took place
which . . . has some rebuttal of assistance to that inference left
by the direct examination.
The Defense did not ask the military judge to reconsider his ruling and allow
them to get into specifics, and instead said, “All [they] intend to get out of the
witnesses is, did those conversations take place, where they took place, and
how often.”
Ultimately, the witnesses were not called to testify in a closed hearing
about the details of any prior statements. On the merits, the Defense called
only one of the two witnesses, SSgt WP, who testified that in group settings
with Appellant present, “oftentimes [MC] would change the subject to those of
a sexual nature, even if it wasn’t the previous topic.” He testified it happened
on the date of the alleged offenses.
2. Law
“We review the military judge’s ruling on whether to exclude evidence pur-
suant to [Mil. R. Evid.] 412 for an abuse of discretion.” United States v. Eller-
brock, 70 M.J. 314, 317 (C.A.A.F. 2011) (citing United States v. Roberts, 69 M.J.
23, 26 (C.A.A.F. 2010)). The military judge’s findings of fact are reviewed for
clear error and his conclusions of law are reviewed de novo. Id. (citing Roberts,
69 M.J. at 26).
12
United States v. Lee, No. ACM 40258
A military accused has a constitutional right to confrontation of his or her
accusers, including the right to cross-examination. McElhaney, 54 M.J. at 129–
30 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). This right is not
absolute, however. Id. A military judge has “broad discretion to impose reason-
able limitations . . . ‘based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.’” Id. at 129 (quoting Van Arsdall, 475
U.S. at 679). Further, a military judge has the power to “exercise reasonable
control over the mode and order of examining witnesses and presenting evi-
dence so as to . . . protect witnesses from harassment or undue embarrass-
ment.” Mil. R. Evid. 611(a).
Mil. R. Evid. 412 provides that in any proceeding involving an alleged sex-
ual offense, evidence offered to prove the alleged victim engaged in other sexual
behavior or has a sexual predisposition is generally inadmissible, with three
limited exceptions. The burden is on the defense to overcome the general rule
of exclusion by demonstrating an exception applies. See United States v.
Carter, 47 M.J. 395, 396 (C.A.A.F. 1998).
The third exception under Mil. R. Evid. 412 provides that the evidence is
admissible if its exclusion “would violate the constitutional rights of the ac-
cused.” Mil. R. Evid. 412(b)(3). Generally, evidence of sexual predisposition of
an alleged victim is constitutionally required “when [it] is relevant, material,
and the probative value of the evidence outweighs the dangers of unfair preju-
dice.” Ellerbrock, 70 M.J. at 318 (citation omitted). The dangers of unfair prej-
udice to be considered “include concerns about ‘harassment, prejudice, confu-
sion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.’” Id. (quoting Van Arsdall, 475 U.S. at 679). “Military
judges receive wide discretion” in balancing probative value and danger of un-
fair prejudice, and “less deference if they fail to articulate their analysis on the
record,” but “an absence on the record of a military judge’s reasoning does not
– by itself provide a basis for finding error.” United States v. St. Jean, 83 M.J.
109, 113 (C.A.A.F. 2023) (citation omitted).
3. Analysis
Appellant asserts the military judge erred in not allowing him “to place on
the record that [MC] in fact had multiple conversations with [Appellant] where
he repeatedly volunteered the information that he enjoyed [the certain type of
sexual act] and was open to male-male relationships.” We find Appellant did
not meet his burdens at trial to show such evidence existed and was constitu-
tionally required to be presented to the factfinder.
At the closed hearing, trial defense counsel and trial counsel had different
proffers of what the defense witnesses would say under oath. Contrary to his
13
United States v. Lee, No. ACM 40258
assertion on appeal, at trial the Defense did not proffer that this sexual act was
discussed on multiple occasions, or that MC said he was open to sexual acts
with a male. Instead, the Defense asserted just one “conversation,” “that he
enjoys [the certain type of sexual act],” and such act “is open to both male on
male relationships and male on female relationships.” The Government coun-
tered with its proffer that it was Appellant who made the statement about the
certain type of sexual act, and suggested the witnesses testify at a closed hear-
ing to clarify the facts.
The Defense did not meet its burden of persuasion on this contested factual
issue. See R.C.M. 905(c) (unless otherwise provided in the MCM, the burden of
persuasion is on the party raising the motion). The Defense offered the military
judge a contested proffer of facts, but did not support its proffer with testimony
or other evidence, despite having the time and opportunity. The military judge
accepted this proffer as a good faith basis to cross-examine MC with prior state-
ments. However, the military judge did not accept the Defense proffer for im-
peachment of MC about the sexual act through the witnesses. Instead, the mil-
itary judge left open the possibility he would reconsider his ruling limiting the
scope of the testimony after hearing the witnesses and prior to their testimony
before the members. From our read, the Defense seemed content with the scope
of the ruling, and did not pursue testimony on the specific language of any
alleged sexual conversation.
Even if we found the Defense’s proffer sufficient for the military judge to
find as fact that MC may have made a specific statement about the certain type
of sexual act, we find the military judge did not abuse his discretion in limiting
the scope of testimony about prior sexual conversations involving Appellant
and MC. During the closed session, the military judge acknowledged both the
probative value and the danger of unfair prejudice in the alleged specific state-
ment. He found the specifics of “the language being used or getting into sex
acts” increased the likelihood of prejudice, but did not significantly increase
the impeachment value—whether a sexual conversation even occurred. The
Defense asserted the value was more than impeachment: their single argu-
ment was that the specific language would tend to make it more likely that MC
would have engaged in a consensual sexual act with Appellant. 13 Considering
the facts at issue in Appellant’s case, the military judge determined that evi-
dence MC may have enjoyed the certain type of sexual act did not outweigh the
danger of unfair prejudice—that is, making the members “uncomfortable” or
13 Unlike on appeal, the Defense did not argue this statement provided evidence of a
mistake of fact as to consent.
14
United States v. Lee, No. ACM 40258
“holding it against somebody when it’s not necessary.” 14 Indeed, whether MC
said he enjoyed the certain type of sexual act does not make it more or less
likely he would consent to sexual conduct of a different type as charged in this
case with a person of a certain gender or with Appellant in particular. The
Defense had the opportunity to explore in a closed hearing the context of the
alleged specific comment and the sexual conversations overall to show the pro-
bative value was higher, but did not.
The military judge’s findings of fact were not clearly erroneous, his deter-
minations were not influenced by an erroneous view of the law, and his decision
was inside the range of choices reasonably arising from the applicable facts
and the law. See Miller, 66 M.J. at 307. Understanding that “a mere difference
of opinion” is insufficient to find an abuse of discretion, we do not find the mil-
itary judge’s ruling limiting the scope of testimony about prior sexual conver-
sations involving MC to have been arbitrary, fanciful, clearly unreasonable, or
clearly erroneous. See Uribe, 80 M.J. at 451.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
FLEMING E. KEEFE, Capt, USAF
Acting Clerk of the Court
14 On this point, we are reminded the Government proffered that Appellant and not
MC brought up the certain type of sexual act, and testimony to that effect could un-
fairly prejudice Appellant.
15