       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
            Torrence A. ROBINSON, Specialist
               United States Army, Appellant
                          No. 17-0231
                    Crim. App. No. 20140785
       Argued November 29, 2017—Decided March 26, 2018
                Military Judge: John T. Rothwell
   For Appellant: Captain Cody Cheek (argued); Lieutenant
   Colonel Christopher D. Carrier, Major Patrick J. Scudieri,
   Captain Scott Ashby Martin, and Captain Ryan T. Yoder
   (on brief); Major Christopher D. Coleman and Major Julie
   L. Borchers.
   For Appellee: Captain Cassandra M. Resposo (argued);
   Colonel Mark H. Sydenham and Major Cormac M. Smith
   (on brief); Captain John M. Gardella.
   Amicus Curiae for Appellee: Peter Coote, Esq. (on brief) —
   for Protect Our Defenders.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN and
   SPARKS, joined. Senior Judge EFFRON filed a separate
   opinion concurring in part and in the result.
                       _______________

   Judge OHLSON delivered the opinion of the Court.
    Contrary to his pleas, a general court-martial with en-
listed representation convicted Appellant of one specification
of violating a general order for engaging in a prohibited rela-
tionship in violation of Article 92, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 892 (2012), and one specifica-
tion of sexual assault in violation of Article 120, UCMJ,
10 U.S.C. § 920 (2012). 1 The panel sentenced Appellant to a

   1  The Government’s Article 92, UCMJ, specification, and the
Army regulation on which the Article 92, UCMJ, offense is based,
refer to Appellant’s misconduct with junior enlisted soldiers as
“fraternization.” Dep’t of the Army, Reg. 600-20, Personnel-
           United States v. Robinson, No. 17-0231/AR
                     Opinion of the Court

bad-conduct discharge, reduction in rank to E-1, and forfei-
ture of all pay and allowances. The convening authority ap-
proved the sentence and the United States Army Court of
Criminal Appeals summarily affirmed the findings and sen-
tence as approved.
   We granted review of the following issues:
       I. Whether the military judge erred by failing to
       admit constitutionally required evidence under Mil-
       itary Rule of Evidence 412(b)(1)(C).
       II. Whether the military judge committed plain er-
       ror when he failed to instruct the panel on the
       mens rea required for The Specification of Charge I,
       which involved an Article 92, UCMJ, violation of
       Army Regulation 600–20.
       III. Whether the evidence was legally sufficient to
       establish that Appellant knew or reasonably should
       have known that SPC VM was too intoxicated to
       consent to a sexual act.
United States v. Robinson, 76 M.J. 178 (C.A.A.F. 2017) (or-
der granting review).
    We affirm the findings and sentence in this case for the
reasons set forth below. First, the trial evidence was legally
sufficient to establish that Appellant knew or reasonably
should have known that Specialist (SPC) VM was too intoxi-
cated to consent. Second, assuming without deciding that
the military judge erred in excluding constitutionally re-
quired evidence of the victim’s flirtatious relationship with
Appellant, the error was harmless beyond a reasonable
doubt. And third, the military judge did not plainly err in
instructing the members on the Article 92, UCMJ, prohibit-
ed relationship offense. Accordingly, we affirm the judgment
of the lower court.




General, Army Command Policy para. 4-16 (Mar. 18, 2008) [here-
inafter AR 600-20]. However, to avoid any confusion with the Arti-
cle 134, UCMJ, 10 U.S.C. § 934 (2012), offense of fraternization,
which only applies to relationships between officers and enlisted
members, this opinion will refer to Appellant’s Article 92, UCMJ,
violation as “engaging in a prohibited relationship.”



                                2
          United States v. Robinson, No. 17-0231/AR
                    Opinion of the Court

                          I. Facts
    Appellant’s convictions stem from events in July of 2013.
At that time Appellant was “a newly promoted E[-]5.” He
attended a party hosted by a specialist (E-4) where other
junior enlisted soldiers were present. SPC VM was one of
those soldiers and she was the only female at the party. Pri-
or to the party SPC VM had consumed one mixed alcoholic
beverage, and she drank another five or six mixed alcoholic
beverages during the party. SPC VM appeared intoxicated to
many of the partygoers, including Appellant. SPC VM ab-
ruptly left the party after she became uncomfortable with
another guest’s behavior and drove back to her barracks.
    In her barracks room, SPC VM felt “really dizzy and
lightheaded” and vomited twice in the kitchen sink. She
placed a trashcan next to her bed and removed her clothes
before falling asleep. A few hours later, Appellant entered
SPC VM’s barracks room where he saw a trashcan and a
bottle of water next to SPC VM’s bed. SPC VM did not re-
member Appellant entering her room. Instead, her next
memory was of Appellant “on top of” her with his penis in-
side her vagina. SPC VM also remembered turning her head
toward the trashcan while Appellant was on top of her. She
had no other memories of the sexual assault and only re-
called waking up around noon feeling “confused, extremely
disgusted and upset.”
   Appellant provided a statement to the United States
Army Criminal Investigations Command (CID) about what
happened in the barracks room with SPC VM. In this CID
statement, Appellant admitted that SPC VM was
intoxicated at the party and almost hit a stop sign as she
drove away, and that he thought she might have been “too
drunk to have sex.”
    Appellant’s conduct resulted in the convening authority
referring two charges against Appellant—an Article 92,
UCMJ, charge for engaging in a prohibited relationship by
attending a party with junior enlisted soldiers, and an Arti-
cle 120, UCMJ, sexual assault charge for the sexual conduct
with SPC VM in her barracks room. The Government’s theo-
ry for the sexual assault offense was not that Appellant “be-
gan having sex with [SPC VM] while she was asleep.” In-



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           United States v. Robinson, No. 17-0231/AR
                     Opinion of the Court

stead, the Government’s theory was that SPC VM was “too
intoxicated to consent.”
    Prior to trial, the defense filed a motion in limine to ad-
mit evidence under Military Rule of Evidence (M.R.E.) 412
that SPC VM had flirted with Appellant for several months
before July 2013. 2 At an Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2012), hearing on this motion, the defense argued
that this flirtation evidence was constitutionally required
under M.R.E. 412(b)(1)(C). The defense posited that this ev-
idence went to Appellant’s “mistake of fact that [SPC VM]
did consent to sex on that night.” The military judge denied
the defense motion in part. He concluded that the evidence
of SPC VM’s flirting on the night of the party was admissi-
ble, but not the evidence of flirting in the months leading up
to the party.
   At trial, the defense proceeded under the theory that
SPC VM consented to the sexual conduct by initiating the
sexual encounter or that Appellant reasonably believed she
consented to the sexual activity based on her conduct in the
barracks room. On cross-examination, SPC VM repeatedly
stated that she didn’t remember many aspects of what hap-
pened in the barracks room. In regard to whether it was
possible that she had consented to having sex with Appel-
lant but just didn’t remember that fact, SPC VM stated: “I
guess anything is possible.”
   Appellant testified in his defense that SPC VM “reached
up from the bed[,] . . . grabbed [his] wrist[,] . . . pulled [him]
back,” and asked him to stay. Appellant further testified
that once on SPC VM’s bed, the two of them began kissing
and then SPC VM tried to remove Appellant’s shirt,
motioned for him to remove his belt, took off his clothing,
and opened her legs, whereupon they engaged in sexual
intercourse.
    Following the close of evidence, the defense raised no ob-
jections to the military judge’s findings instructions. These
instructions, which were later read to the panel, included


    2 We save for another day the question of whether “flirting”
can properly be considered “sexual behavior” under the provisions
of M.R.E. 412. Neither party raised this issue on appeal.



                                4
          United States v. Robinson, No. 17-0231/AR
                    Opinion of the Court

the following language for the Article 92, UCMJ, prohibited
relationship offense:
      In the Specification of Charge I, the accused is
      charged with the offense of violating a Lawful Gen-
      eral Regulation, in violation of Article 92, UCMJ.
      In order to find the accused guilty of this offense,
      you must be convinced by legal and competent evi-
      dence beyond a reasonable doubt:
        One, that there was in existence a certain lawful
      general regulation in the following terms: Army
      Regulation 600-20, dated 18 March 2008, Rapid Ac-
      tion Revision, dated 20 September 2012, paragraph
      4-14(b);
        The second element is that the accused had a du-
      ty to obey such regulation; and
        The third element is that on or about 27 July
      2013, at or near Fort Stewart, Georgia, the accused
      violated this lawful general regulation by wrongful-
      ly fraternizing with junior enlisted Soldiers.
        ....
        Panel Members . . . Prosecution Exhibit 1 consists
      of several pages. However, I would focus your at-
      tention in reading to obviously paragraph 4-14(b).
Paragraph 4-14(b) of AR 600-20 stated:
      Relationships between Soldiers of different rank
      are prohibited if they—
      (1) Compromise, or appear to compromise, the in-
      tegrity of supervisory authority or the chain of
      command.
      (2) Cause actual or perceived partiality or unfair-
      ness.
      (3) Involve, or appear to involve, the improper use
      of rank or position for personal gain.
      (4) Are, or are perceived to be, exploitative or coer-
      cive in nature.
      (5) Create an actual or clearly predictable adverse
      impact on discipline, authority, morale, or the abil-
      ity of the command to accomplish its mission.
After deliberating, the members returned findings of guilty
for the Article 92, UCMJ, prohibited relationship offense
and the Article 120, UCMJ, sexual assault offense.


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           United States v. Robinson, No. 17-0231/AR
                     Opinion of the Court

                        II. Discussion
                    A. Legal Sufficiency
    The first issue we address is whether the trial evidence
was legally sufficient to establish that Appellant knew or
reasonably should have known that SPC VM was incapable
of consenting.
                      1. Applicable Law
    “We review questions of legal sufficiency de novo.” United
States v. Wilson, 76 M.J. 4, 6 (C.A.A.F. 2017). “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 States v. Rosario,
76 M.J. 114, 117 (C.A.A.F. 2017) (citations omitted) (internal
quotation marks omitted). This legal sufficiency assessment
“draw[s] every reasonable inference from the evidence of
record in favor of the prosecution.” United States v. Plant,
74 M.J. 297, 301 (C.A.A.F. 2015) (internal quotation marks
omitted) (quoting United States v. Bright, 66 M.J. 359, 365
(C.A.A.F. 2008)).
   The elements of sexual assault as they relate to this case
are as follows:
       (1) The accused committed a sexual act upon an-
       other by causing penetration, however slight, of the
       vulva by the penis;
       (2) The other person was incapable of consenting to
       the sexual act due to impairment by an intoxicant;
       and
       (3) The accused knew or reasonably should have
       known that the person could not consent due to the
       impairment by intoxicant.
Article 120(b)(1)–(3)(A), (g)(1)(A), UCMJ; see also United
States v. Teague, 75 M.J. 636, 637 (A. Ct. Crim. App. 2016).
In light of the scope of the granted issue, only the third ele-
ment is relevant to our analysis.
                          2. Analysis
    We conclude that the trial evidence was legally sufficient
to establish that Appellant knew or reasonably should have
known that SPC VM was incapable of consenting. First, SPC


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            United States v. Robinson, No. 17-0231/AR
                      Opinion of the Court

VM had consumed a large quantity of alcohol at the party,
and it was apparent to the partygoers—to include Appel-
lant—that SPC VM was intoxicated. Specifically, various
witnesses later testified at the court-martial that they wit-
nessed SPC VM stumbling, slurring her speech, and almost
hitting a stop sign when driving from the party. Moreover,
later that night Appellant told his wife that he was leaving
home to go check on a “drunk Soldier” in the barracks.
    Second, Appellant testified that when he entered SPC
VM’s barracks room he saw a trashcan and a bottle of water
next to SPC VM’s bed. 3 And third, Appellant admitted to
CID that SPC VM was “pretty much asleep” when he arrived
at her barracks room and that he later thought that SPC
VM “was probably too intoxicated to consent” to have sex. 4


   3  Appellant testified that upon seeing these items he did not
surmise that SPC VM was concerned about vomiting due to her
intoxication. Rather, he asserted that he assumed that SPC VM
had placed the trash can and water bottle next to her bed because
she was concerned about vomiting due to being emotional. Specifi-
cally, Appellant testified on cross-examination: “A lot of people get
sick when they become emotional, ma’am.”
   4 To put the latter admission in its full context, below is an ex-
cerpt of Appellant’s questioning by defense counsel:
       Q. Now, at some point, did you tell the CID agent
       that you thought maybe she was too drunk to have
       sex?
       A. Yes, ma’am.
       Q. Why did you tell the agent that?
       A. He proceeded to ask the question repeatedly and
       when he didn’t get the answer he wanted, I guess
       he decided to tell me to put myself in her position if
       she was my daughter or my family member, how I
       would feel about the situation.
       Q. And when you answered that question, when
       you said―was that based on being in the perspec-
       tive of her family member?
       A. Yes, ma’am.
       Q. When you said that you thought she might have
       been too drunk, did you mean that you thought
       that at the time you were having sex with her?



                                 7
           United States v. Robinson, No. 17-0231/AR
                     Opinion of the Court

Viewing this evidence in the light most favorable to the
prosecution, the Government presented sufficient evidence
to establish that Appellant knew or reasonably should have
known that SPC VM was incapable of consenting to sexual
intercourse due to her impairment by intoxication.
Therefore, Appellant’s conviction for sexual assault is legally
sufficient.
                       B. M.R.E. 412
    We next turn to the issue of whether evidence of SPC
VM’s alleged long-standing flirtatious relationship with Ap-
pellant prior to the night of the offense should have been
admitted at trial under the constitutionally required excep-
tion of M.R.E. 412(b)(1)(C). For the purposes of this opinion,
we will assume without deciding that it was error for the
military judge to exclude this evidence, and we will solely
address whether the error was harmless beyond a reasona-
ble doubt. See United States v. Allison, 63 M.J. 365, 370
(C.A.A.F. 2006) (“[I]ssues involving possible constitutional
error can be resolved by assuming error and concluding that
the error is harmless beyond a reasonable doubt.”).
   Pursuant to this analysis, the Government bears the
burden of establishing harmlessness beyond a reasonable
doubt. See United States v. Savala, 70 M.J. 70, 77 (C.A.A.F.
2011). In assessing harmlessness, our inquiry evaluates the
entire record to determine whether there is a reasonable
possibility that this evidentiary error contributed to Appel-
lant’s conviction. See United States v. Ellerbrock, 70 M.J.
314, 321 (C.A.A.F. 2011).



      A. Yes, ma’am.
      Q. So, at the time that you were having sex with
      her, you didn’t think she was too drunk?
      A. No, ma’am.
      Q. But only after when CID was asking you to put
      yourself in her father’s shoes is when you gave that
      answer?
      A. Yes, ma’am.




                               8
           United States v. Robinson, No. 17-0231/AR
                     Opinion of the Court

    Because of the strength of the Government’s case, we
conclude that the military judge’s presumed error in exclud-
ing evidence that SPC VM had flirted with Appellant prior
to the night of the offense was harmless beyond a reasonable
doubt. First, the Government introduced ample evidence not
only that SPC VM was significantly intoxicated, but also
that Appellant knew that SPC VM was significantly intoxi-
cated. Specifically, the record clearly shows that Appellant
witnessed SPC VM’s consumption of alcohol, he observed her
slurred speech and stumbling, he admitted to seeing SPC
VM almost hit a stop sign as she drove away from the party,
he informed his wife about going to the barracks to check on
a drunk soldier, and he admitted that when he arrived at
SPC VM’s barracks room he had to ask her, “Do you know
who I am?” Further—and importantly—Appellant admitted
to CID that he recognized that SPC VM was probably too
intoxicated to consent. Therefore, even if the flirtation evi-
dence had been admitted at the court-martial, there is no
reasonable probability that it would have changed the result
of the trial. Accordingly, the military judge’s presumed error
in excluding the flirtation evidence under M.R.E. 412 was
harmless beyond a reasonable doubt.
                  C. Member Instructions
   We finally examine whether the military judge plainly
erred in instructing the members on the mens rea for the
Article 92, UCMJ, prohibited relationship offense.
                      1. Applicable Law
    Because Appellant did not object to the military judge’s
instructions at trial, we review for plain error “based on the
law at the time of appeal.” United States v. Guardado,
77 M.J. 90, 93 (C.A.A.F. 2017). Appellant bears the burden
of establishing: (1) there is error; (2) the error is clear or ob-
vious; and (3) the error materially prejudiced a substantial
right. United States v. Davis, 76 M.J. 224, 230 (C.A.A.F.
2017). To establish plain error, “all three prongs must be
satisfied.” United States v. Gomez, 76 M.J. 76, 79 (C.A.A.F.
2017) (internal quotation marks omitted) (quoting United
States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)). The
third prong is satisfied if the appellant shows “a reasonable
probability that, but for the error [claimed], the outcome of



                                9
           United States v. Robinson, No. 17-0231/AR
                     Opinion of the Court

the proceeding would have been different.” United States v.
Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017) (citation omitted)
(internal quotation marks omitted).
                         2. Analysis
    During the past two terms this Court has written exten-
sively about mens rea requirements for military offenses.
See United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017);
United States v. Caldwell, 75 M.J. 276 (C.A.A.F. 2016);
United States v. Rapert, 75 M.J. 169 (C.A.A.F. 2016); United
States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016). We need not
do so here. Simply stated, the third prong of the plain error
analysis resolves the issue before us. Specifically, even if we
were to assume without deciding that “recklessness”—or
even “knowledge”—was the appropriate mens rea for this
Article 92, UCMJ, offense and that the military judge erred
in failing to instruct the panel accordingly, Appellant has
failed to meet his burden of showing that “but for [this er-
ror], the outcome of the proceeding would have been differ-
ent.” Lopez, 76 M.J. at 154.
    It is uncontroverted that Appellant: knew he was attend-
ing a party with junior enlisted soldiers; knew he was the
only noncommissioned officer at the party; knew that four of
the junior enlisted soldiers at the party were in the same
company as he; knew that all of the junior enlisted members
were drinking alcohol, including at least one who was un-
derage; knew that one of the junior enlisted members was
intoxicated; and knew the noncommissioned officer’s creed
and the standards for noncommissioned officers. Therefore,
even if the military judge had provided the panel members
with the appropriate mens rea instruction, it is clear that
the panel would have found that Appellant knew that his
presence as an E-5 compromised, or appeared to compro-
mise, the integrity of supervisory authority, caused actual or
perceived partiality, or created a clearly predictable adverse
impact on authority. Because Appellant has not demonstrat-
ed that the military judge’s failure to instruct on the mens
rea requirement would have changed the outcome of the
court-martial, we hold that the military judge did not plainly
err in instructing the members.




                              10
          United States v. Robinson, No. 17-0231/AR
                    Opinion of the Court

                       III. Decision
   For the reasons cited above, we affirm the judgment of
the United States Army Court of Criminal Appeals.




                             11
            United States v. Robinson, No. 17-0231


   Senior Judge EFFRON, concurring in part and concur-
ring in the result.

    The granted issues challenge three aspects of Appellant’s
court-martial: (1) the content of the instructions on the
Article 92 charge that Appellant violated a lawful order by
engaging in a prohibited relationship; (2) the legal
sufficiency of the evidence on the Article 120 charge that
Appellant committed sexual assault when he knew or
reasonably should have known that SPC VM was incapable
of consent due to impairment by an intoxicant; and (3) the
exclusion of evidence under Military Rule of Evidence
(M.R.E.) 412 regarding certain interactions between
Appellant and SPC VM prior to the date of the sexual
assault charged under Article 120.
                              I.
   I agree that the military judge did not err in instructing
the members on the general intent mens rea for the Article
92 offense for the reasons set forth in the majority opinion.
United States v. Robinson, __ M.J. __ , __ (9–10) (C.A.A.F.
2018). In view of the very low threshold for sustaining a
conviction challenged for legal sufficiency, I also agree with
the majority opinion’s conclusion that the evidence is legally
sufficient to support the conviction for sexual assault under
Article 120. __ M.J. at __ (7–8).
                             II.
   With respect to the military judge’s ruling on the exclu-
sion of evidence under M.R.E. 412, I respectfully disagree
with the majority opinion’s conclusion that this case may be
resolved by concluding that the evidence in support of the
Article 120 conviction was so strong that any error by the
military judge in excluding the evidence was harmless be-
yond a reasonable doubt. __ M.J. at __ (10–12). For the rea-
sons set forth below, we should address the substance of the
military judge’s ruling under M.R.E. 412, and we should
conclude that the military judge did not err in excluding the
evidence under the circumstances of this case.
                   A. Legal sufficiency
   With respect to the legal sufficiency of the evidence, I
agree with the majority opinion’s focus on cases that rely on
             United States v. Robinson, No.17-0231
         Senior Judge EFFRON, concurring in part and
                   concurring in the result.

the long-standing precedents of this Court which establish a
very low threshold for sustaining a conviction on legal
sufficiency grounds. __ M.J. at __ (8). As noted in the
majority opinion, the legal sufficiency issue here can be
resolved by addressing the third element of the Article
120(b)(3)(A) offense—the requirement for the Government to
establish evidence upon which a reasonable panel could find
that Appellant engaged in a sexual act with SPC VM when
he knew or reasonably should have known that SPC VM was
incapable of consenting due to impairment by an intoxicant.
__ M.J. at __ (9–10).
    In that context, the question of legal sufficiency focuses
on Appellant’s knowledge of SPC VM’s condition. The Gov-
ernment was required to prove that Appellant knew or rea-
sonably should have known that SPC VM “ ‘lack[ed] the cog-
nitive ability to appreciate the sexual conduct in question or
[that she lacked] the physical or mental ability to make and
to communicate a decision about whether they agreed to the
conduct.’ ” United States v. Pease, 75 M.J. 180, 185 (C.A.A.F.
2016) (quoting United States v. Pease, 74 M.J. 763, 770 (N.-
M. Ct. Crim. App. 2015)).
    The record contains evidence of the observations of SPC
VM by Appellant and others in the vicinity of Appellant dur-
ing the evening of the charged offense showing that SPC VM
consumed at least five or six alcoholic drinks at the party.
She was variously described as “tipsy,” “sloppy,” “loud,”
stumbling, slurring her speech, drunk, and showing signs of
intoxication. Eventually, she decided to leave, ran down a
flight of stairs, drove away, and swerved to avoid a stop sign.
   The host, concerned about her condition, followed her in
another car. He returned to the party and told the other
guests, including Appellant, that SPC VM had safely re-
turned to the barracks. Later that evening, Appellant told
his wife that he was going to the barracks to check on a
drunk soldier. The evidence to that point demonstrated that
Appellant knew SPC VM was drinking heavily and that she
exhibited the behavior of a person who had been drinking to
excess. It also demonstrated Appellant knew that the level
of drinking had not impaired her ability to communicate
with others, her ability to make and act on a decision to




                              2
             United States v. Robinson, No.17-0231
         Senior Judge EFFRON, concurring in part and
                   concurring in the result.

leave the party, or her ability to navigate herself home in a
vehicle.
    The evidence of what transpired in SPC VM’s barracks
room is mixed. At trial, Appellant testified that he did not
think SPC VM was intoxicated when he arrived at her bar-
racks room two or more hours later. He described her as be-
ing “pretty much asleep,” then reaching out to him, grabbing
his wrist, asking him to stay, and initiating physical activi-
ty. He testified that when he subsequently was asked by a
United States Army Criminal Investigations Command
(CID) agent to put himself in the position of a parent and
consider how he would feel about the situation, he responded
that he “thought maybe she was too drunk to have sex.” In
response to questions from both the defense and the prose-
cution, Appellant acknowledged that he made that state-
ment, reiterated that he had made the statement in the con-
text of how a parent might view the situation, and added
that at the time of the sexual act he did not believe that she
was too intoxicated to consent. The CID report of Appellant’s
statement was not introduced into evidence and the CID
agent did not testify on this matter.
    SPC VM testified she did not hear him enter the bar-
racks room and that she did not become aware of his pres-
ence until he had penetrated her as part of the sexual act, at
which point she recognized him. She further testified that
she felt intoxicated when she returned to her room and
when he penetrated her. She added that she blacked out
soon after she perceived the penetration and his presence. In
response to a question about the possibility that he might
have perceived their interaction as manifesting consent, she
stated, “I guess anything is possible.” In response to ques-
tions about her specific interactions with Appellant at that
time, she repeatedly stated that she did not remember any
details.
   The panel, in deciding whether Appellant reasonably
should have known that SPC VM was too intoxicated to
consent, had the responsibility to determine how much
weight to give to the evidence in the case, particularly how
much weight to give the conflicting testimony from
Appellant and SPC VM about what transpired before,




                              3
             United States v. Robinson, No.17-0231
         Senior Judge EFFRON, concurring in part and
                   concurring in the result.

during, and after the sexual act. Under the low threshold for
sustaining a conviction on the issue of legal sufficiency, a
reasonable panel could have given greater weight to the
testimony of SPC VM and less weight to Appellant’s
testimony in the course of concluding that at the time of the
act, SPC VM was intoxicated and Appellant reasonably
should have known that she was incapable of consent due to
the impairment by an intoxicant.

                        B. M.R.E. 412
                     1. Harmless error

    The standard for legal sufficiency is lower than the
threshold for finding that an error is harmless beyond a rea-
sonable doubt. The record before us presents conflicting tes-
timony and a witness who recalls little of the events at issue.
As such, this case does not present the type of record that
permits us to avoid addressing the M.R.E. 412 issue on the
theory that any mistake in the exclusion of evidence under
M.R.E. 412 was so inconsequential that the error was harm-
less beyond a reasonable doubt. See United States v.
Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011). In this case, before
addressing the question of prejudice, we must first assess
whether there was error.

            2. Consideration of the evidence
               excluded under M.R.E. 412

   In a sex offense case, “[e]vidence offered to prove that
any alleged victim engaged in other sexual behavior” is not
admissible, subject to specific exceptions. M.R.E. 412(a)(1).
The granted issue in this case asks whether the military
judge erred in failing to admit constitutionally required evi-
dence under M.R.E. 412(b)(1)(C), which provides for the ad-
missibility of “evidence the exclusion of which would violate
the constitutional rights of the accused.”
    At trial, the defense filed a motion under M.R.E. 412
seeking to introduce evidence regarding various interactions
between Appellant and SPC VM in the months prior to the
charged offense. The defense contended that the evidence at
issue was relevant to the defenses of consent and mistake of




                              4
             United States v. Robinson, No.17-0231
         Senior Judge EFFRON, concurring in part and
                   concurring in the result.

fact as to consent. The question of whether any of that evi-
dence was outside the scope of M.R.E. 412 was discussed at
trial but is not at issue in this appeal.
    As reflected in the parties’ briefs, the military judge’s
findings of fact noted that the evidence on the motion in-
cluded Article 32 testimony from witnesses who had seen
SPC VM showing affection, smiling, flirting, and trying to
grab Appellant; testimony from witnesses who had seen
them hugging and flirting; testimony that SPC VM “wanted”
Appellant and was “trying to get with” him; and Appellant’s
statement to CID that he and SPC VM had talked numerous
times about having sex.
    The military judge excluded all of the evidence at issue
under M.R.E. 412 with respect to the Article 120 charge
except for evidence of Appellant’s interactions with SPC VM
on the night before and the morning of the charged offense.
Under our case law, evidence is constitutionally required
under M.R.E. 412(b)(1)(C) if the defense demonstrates that
the evidence is relevant and material and the probative
value of the evidence outweighs the danger of unfair
prejudice. Ellerbrock, 70 M.J. at 318–19. The test is case-
specific, depending on the issues arising under the charged
offense and the circumstances of the case. As such, the issue
before us is not whether the types of interactions at issue in
this case are admissible as a general matter under M.R.E.
412, but instead whether the evidence identified in the
M.R.E. 412 proceeding was required to be admitted into
evidence in this case.
    As noted earlier, the charged offense required the Gov-
ernment to prove that Appellant knew or reasonably should
have known that SPC VM was incapable of consent due to
impairment by an intoxicant. Appellant’s motion at trial re-
ferred generally to acts such as smiling, hugging, flirting,
and grabbing—words that encompass a wide range of behav-
ior from mild teasing to sexual innuendo. Without further
details as to the specific conduct, the evidence was, at best,
marginally relevant to the charged offense and relevant de-
fenses. Likewise, the general reference to talking about sex
encompasses a wide range of topics from a vague expression
of interest to a specific discussion of time, place, and man-




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             United States v. Robinson, No.17-0231
         Senior Judge EFFRON, concurring in part and
                   concurring in the result.

ner. It is not apparent from the record whether these were
necessarily discussions of mutual interest or merely casual
banter. Likewise, without further detail as to the specific
content of the discussions, the evidence that they talked
about sex was, at best, marginally relevant to the charged
offense and relevant defenses. Whether this would be neces-
sarily admissible under M.R.E. 412 in another case is not
before us. In this case, Appellant has not offered details as to
the nature of the conduct or the content of the conversations
sufficient to demonstrate that the probative value of the evi-
dence outweighed the danger of unfair prejudice. See
Ellerbrock, 70 M.J. at 319. Appellant has not demonstrated
that the military judge erred by excluding this evidence un-
der M.R.E. 412.




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