            U NITED S TATES AIR F ORCE
           C OURT OF C RIMINAL APPEALS
                       ________________________

                           No. ACM 39014
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                      Paul L. LEONHARDT
         Second Lieutenant (O-1), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                      Decided 16 August 2017
                       ________________________

Military Judge: L. Martin Powell (arraignment); Vance H. Spath.
Approved sentence: Dismissal and confinement for 5 months. Sentence
adjudged 11 December 2015 by GCM convened at Eielson Air Force
Base, Alaska.
For Appellant: Terri R. Zimmermann, Esquire (argued); Major Mark C.
Bruegger, USAF; Jack B. Zimmermann, Esquire.
For Appellee: Major Meredith L. Steer, USAF (argued); Major Collin F.
Delaney, USAF; Major Jeremy D. Gehman, USAF; Major Mary Ellen
Payne, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge SPERANZA joined.
                       ________________________

              PUBLISHED OPINION OF THE COURT
                       ________________________
                     United States v. Leonhardt, No. ACM 39014


JOHNSON, Senior Judge:
    A general court-martial composed of officer members found Appellant
guilty, contrary to his pleas, of one specification of sexual assault 1 and one
specification of abusive sexual contact in violation of Article 120 of the Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920. The court-martial sentenced
Appellant to a dismissal and confinement for five months. The convening au-
thority approved the adjudged sentence but waived the mandatory forfeiture
of pay for the benefit of Appellant’s spouse and dependent child.
    On appeal, Appellant raises four assignments of error: (1) the military
judge erred in excluding evidence of other sexual behavior between the victim
and Appellant offered by the Defense pursuant to Military Rule of Evidence
(Mil. R. Evid.) 412; (2) the military judge erred by not releasing certain mental
health records of the victim he had reviewed in camera pursuant to Mil. R.
Evid. 513; (3) senior trial counsel committed plain error in his argument to the
court members on findings; and (4) the victim impact statement provided to
the court members in sentencing included improper aggravation evidence. Be-
cause we find the military judge abused his discretion with respect to the first
issue, and we cannot say that error was harmless beyond a reasonable doubt,
we set aside the findings and sentence and do not address the remaining is-
sues.

                                    I. BACKGROUND
    In August of 2012, Appellant and Ms. MG were both cadets at the United
States Air Force Academy (Academy). At the time of the charged offenses, Ap-
pellant and Ms. MG had begun to spend time together socially and had been
on two dates, but they had not engaged in sexual intercourse. Ms. MG testified
that, at some point prior to the night in question, she had a conversation in
which she told Appellant she did not intend to have sex with him. During Au-
gust 2012, Appellant invited Ms. MG to go with him to meet some of Appel-
lant’s friends at a restaurant and a hookah bar and then “hang out” at the
home of Appellant’s sponsor family. 2 When Appellant met Ms. MG at her dorm

1The court members excepted the words “on divers occasions” from the specification
alleging sexual assault, and found Appellant not guilty of the excepted words.
2   Ms. MG explained during her trial testimony:
          [A]t the Air Force Academy, every cadet is assigned a sponsor family,
          and it’s just sometimes it’s an officer or an instructor there, or some-
          times it’s just people that live in the city that see the Air Force Acad-
          emy and they sponsor a cadet and it just gives them a place to go on
          the weekends, or when we have time off so that we’re not always at the
          Academy or on lock down 24/7.


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                 United States v. Leonhardt, No. ACM 39014


room at the beginning of the evening, he told her to pack an overnight bag just
in case they ended up spending the night at the sponsor’s home. Ms. MG did
not consider that “abnormal” because she had spent the night in other sponsor
homes with other groups of cadets, though never before with Appellant.
   As it turned out, no one joined Appellant and Ms. MG at the restaurant and
only one of Appellant’s friends met them at the hookah bar. According to
Ms. MG, Appellant and Ms. MG engaged in consensual kissing during the
evening, but there was no discussion of sexual intercourse. Ms. MG testified
that neither she nor Appellant consumed any alcohol. Late that night Appel-
lant drove Ms. MG to his sponsor’s house; his friend from the hookah bar did
not join them.
    When they arrived, Appellant woke the sleeping sponsor, Mr. GW, who let
them into the house. Mr. GW then returned to bed and Appellant led Ms. MG
to an upstairs bedroom. Once inside the room, according to Ms. MG, Appellant
began kissing her and he moved his hands up her body to her breasts. Ms. MG
pushed him away and suggested they do something else. Appellant did not re-
spond but he “aggressively” moved her to the bed. Ms. MG testified she told
him “no” but that he ignored her. Appellant removed her clothes and inserted
his penis in her vagina. At some point Ms. MG “stopped fighting it” and “just
kind of checked out mentally.” After Appellant ejaculated, he told her to clean
up. Ms. MG found the bathroom, cleaned herself, and then returned to the bed
where Appellant was sleeping. She lay next to him until she eventually fell
asleep.
    When Ms. MG awoke, it was still dark outside. When Appellant woke up,
he rolled over and again penetrated Ms. MG’s vagina with his penis until he
ejaculated. Ms. MG cleaned herself again, got dressed, and departed with Ap-
pellant to return to the Academy.
    Ms. MG did not initially report being sexually assaulted, but she testified
that after this incident she started to “distance” herself from Appellant. Even-
tually she told Appellant she did not want to have any relationship with him
other than as a member of the same cadet squadron. Due to a medical issue,
Ms. MG was later discharged from the Academy before graduating and sepa-
rated from the Air Force. In the fall of 2014, after she had left the Academy,
Ms. MG reported the sexual assault, first to a male friend and then to her boy-
friend, who was an Air Force officer and had been in her cadet squadron with
Appellant. This led to Ms. MG being interviewed by the Air Force Office of
Special Investigations (AFOSI).
   Appellant was charged with sexual assault “on divers occasions” based on
the two instances of intercourse Ms. MG described, and with abusive sexual
contact by touching Ms. MG’s breasts. Prior to trial, the Defense gave notice of


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                     United States v. Leonhardt, No. ACM 39014


its intent to offer evidence in accordance with Mil. R. Evid. 412 that Appellant
and Ms. MG engaged in “consensual sex” in Appellant’s dorm room “at least
two times after the charged events.” Trial defense counsel asserted this evi-
dence was “constitutionally required,” explaining in pertinent part: “the state
of mind of the parties during the charged event can be illustrated through the
subsequent acts of consensual sexual acts after the alleged charged event.” The
Defense later filed a pretrial motion to admit this evidence pursuant to Mil. R.
Evid. 412, invoking Appellant’s Sixth Amendment 3 right to cross-examination.
The written motion asserted, in part: “The defense must be allowed to show
that the prosecutrix engaged in consensual sex with the accused after the al-
leged incident because this evidence tends to show she was not sexually as-
saulted, and did not believe she was sexually assaulted, the first time.” The
Government opposed the motion, as did Ms. MG through her Special Victim’s
Counsel.
    At trial, the military judge held a closed hearing on the motion pursuant to
Mil. R. Evid. 412(c)(2). Both Ms. MG and Appellant testified for purposes of the
motion. Ms. MG testified that after the assault she had no further sexual en-
counters with Appellant and was never in his dorm room again. In contrast,
Appellant testified he had consensual sex with Ms. MG at least twice in his
room after the alleged sexual assault. On cross-examination, Appellant further
testified that these additional sexual encounters occurred within approxi-
mately a week and a half of the alleged assaults, that he told three other lieu-
tenants about these encounters, and that one of these individuals also saw
Ms. MG in Appellant’s room during this time frame. 4
    The military judge then heard argument on the motion. Appellant’s civilian
defense counsel asserted the proffered evidence of post-assault consensual sex-
ual activity did not “go to necessarily a mistake of fact as to consent or anything
along those nature [sic],” but was required “to present the accuser’s state of
mind after the fact.” He elaborated:
          CDC [Civilian Defense Counsel]: . . . [W]e feel that it’s important
          to present this evidence to the jury in order to give them a com-
          plete picture of the events leading up to when the relationship
          actually ended; and it shows, you know, what’s going on in
          Ms. [MG’s] mind that she would engage in consensual sex after
          the fact and because she would engage in consensual sex after
          the fact, you have to question whether or not the allegation she’s




3   U.S. CONST. amend. VI.
4   None of these individuals were called to testify for purposes of the motion.


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                 United States v. Leonhardt, No. ACM 39014


       making is even a truthful allegation. So, that’s the reason we’re
       offering it.
       [Military Judge]: For her state of mind?
       CDC: Yes, Your Honor.
    In response, assistant trial counsel asserted that under Mil. R. Evid. 412
the Defense was required “to at least prove that the facts that they’re trying to
discuss and elicit are true,” and had failed to do so. She further argued
Ms. MG’s state of mind after the alleged sexual assaults was irrelevant.
    The military judge orally ruled the proffered evidence was inadmissible un-
der Mil. R. Evid. 412 “on the theory proffered by the defense.” He subsequently
provided a written ruling setting forth his findings of fact and analysis. Therein
he stated that although a “credibility determination” was not “required” to de-
cide the motion “[b]ased on the Defense assertion that the evidence goes to
‘state of mind’ of [Ms. MG] vice some credibility on the part of [Ms. MG],” he
nevertheless opined that Ms. MG gave “credible testimony” on the issue. He
continued:
       The Defense in this case has the burden to demonstrate the prof-
       ferred evidence to at least a preponderance of the evidence and to
       provide a basis for admissibility.
       They have failed on both counts. The alleged victim testified
       credibly that there was no post-event consensual sexual behavior.
       Additionally, the Defense did not posit a viable reason to admit
       the evidence. The proffered evidence has no relevance to consent
       or mistake of fact to consent on the night in question (like argu-
       ably pre-assault consensual behavior). The proffered evidence
       does not offer insight into motive on the part of the alleged vic-
       tim. Additionally, the proffered evidence is merely an assertion
       by the accused; completely denied by the alleged victim. There
       was no corroborative or independent evidence offered to assist
       this fact finder.
(Emphasis added.)
    Accordingly, the trial proceeded without cross-examination of Ms. MG or
other evidence of post-assault consensual sexual activity between Appellant
and Ms. MG. Appellant elected not to testify at trial. Appellant was convicted
of abusive sexual contact and the first alleged instance of sexual assault, but
he was acquitted of sexual assault in the second (morning) instance.




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                  United States v. Leonhardt, No. ACM 39014


                                  II. DISCUSSION
A. Law
    “We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” United States v. Erickson, 76 M.J. 231, 234 (C.A.A.F.
2017). “A military judge abuses his discretion if his findings of fact are clearly
erroneous or his conclusions of law are incorrect.” Id. (quoting United States v.
Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)) (internal quotation marks omitted)
(citation omitted); see also United States v. Ellerbrock, 70 M.J. 314, 317
(C.A.A.F. 2011) (citation omitted) (“Findings of fact are reviewed under a
clearly erroneous standard and conclusions of law are reviewed de novo.”). The
application of Mil. R. Evid. 412 to proffered evidence is a legal issue that ap-
pellate courts review de novo. United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F.
2010).
    Mil. R. Evid. 412 provides that evidence offered by the accused to show that
the alleged victim engaged in other sexual behavior is generally inadmissible,
with three limited exceptions. The third exception provides that the evidence
is admissible if its exclusion “would violate the constitutional rights of the ac-
cused.” Mil. R. Evid. 412(b)(1)(C). 5 This exception includes an accused’s Sixth
Amendment right to confront witnesses against him, including the right to
cross-examine and impeach those witnesses. Ellerbrock, 70 M.J. at 318. The
burden is on the defense to overcome Mil. R. Evid. 412’s general rule of exclu-
sion by demonstrating an exception applies. United States v. Carter, 47 M.J.
395, 396 (C.A.A.F. 1998).
    Generally, evidence of other sexual behavior by an alleged victim is consti-
tutionally required and “must be admitted within the ambit of [Mil. R. Evid.]
412(b)(1)(C) when [it] is relevant, material, and the probative value of the evi-
dence outweighs the dangers of unfair prejudice.” Ellerbrock, 70 M.J. at 318
(citation omitted); see also Roberts, 69 M.J. at 27. Relevant evidence is evidence
that has any tendency to make the existence of any fact of consequence to de-
termining the case more probable or less probable than it would be without the
evidence. Mil. R. Evid. 401. Materiality “is a multi-factored test looking at the


5The second exception permits “evidence of specific instances of sexual behavior by the
alleged victim with respect to the person accused of the sexual misconduct offered by
the accused to prove consent or by the prosecution.” Mil. R. Evid. 412(b)(1)(B). Al-
though the proffered evidence appears to implicate this exception, the Defense did not
contend the evidence was admissible on this basis. Nevertheless, the second and third
exceptions are not mutually exclusive, and the existence of this exception tends to un-
dermine the military judge’s conclusion and Government’s assertion that the proffered
evidence of consensual sexuality activity between Ms. MG and Appellant was irrele-
vant.


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                 United States v. Leonhardt, No. ACM 39014


importance of the issue for which the evidence was offered in relation to the
other issues in this case; the extent to which the issue is in dispute; and the
nature of the other evidence in the case pertaining to th[at] issue.” Ellerbrock,
70 M.J. at 318 (citations omitted) (internal quotation marks omitted) (altera-
tion in original). The dangers of unfair prejudice to be considered “include con-
cerns about ‘harassment, prejudice, confusion of the issues, the witness’ safety,
or interrogation that is repetitive or only marginally relevant.’” Id. (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
B. Analysis
    Appellant contends the military judge abused his discretion by denying the
Defense motion to offer evidence of consensual post-offense sexual activity. We
agree. We find the military judge erred both in applying an erroneous burden
of proof to the Defense and in finding the proffered evidence was not relevant.
   1. The Military Judge Applied an Erroneous Burden of Proof
    In his written ruling, the military judge asserted the Defense had the bur-
den to “demonstrate the proffered evidence to at least a preponderance of the
evidence.” He proceeded to find the Defense failed to do so, describing the prof-
fer as “merely an assertion by [Appellant],” noting the absence of corroborating
evidence, and citing Ms. MG’s “credible” testimony that the proffered evidence
was untrue. In doing so, the military judge abused his discretion by applying
an erroneous standard.
    In Roberts, the United States Court of Appeals for the Armed Forces held
the military judge abused his discretion when he weighed the credibility of de-
fense witnesses in performing a relevancy analysis under Mil. R. Evid. 412.
Roberts, 69 M.J. at 27. “‘In applying [Mil. R. Evid.] 412, the judge is not asked
to determine if the proffered 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 [Mil. R. Evid.] 412.’”
Id. (ellipsis in original) (quoting United States v. Banker, 60 M.J. 216, 224
(C.A.A.F. 2004)). Similarly, in the instant case it is apparent the military
judge’s ruling relied in part on a determination that Appellant’s motion testi-
mony was not sufficiently credible. This was error. “[I]t is for the members to
weigh the evidence and determine its veracity.” Banker, 60 M.J. at 224; see also
United States v. Zak, 65 M.J. 786, 793 (A. Ct. Crim. App. 2007) (“[T]he military
judge’s ruling on the veracity of the evidence [proffered under Mil, R. Evid.
412] usurped the role of the panel members, was clear error, and, as a result,
an abuse of discretion.”) (Citation omitted.)
   The military judge’s ruling cited no authority for requiring proof by a pre-
ponderance of the evidence. On appeal, the Government cites Rule for Courts-



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                  United States v. Leonhardt, No. ACM 39014


Martial (R.C.M.) 905(c), but its reliance is misplaced. R.C.M. 905(c)(1) pro-
vides: “Unless otherwise provided in this Manual [for Courts-Martial], the bur-
den of proof on any factual issue the resolution of which is necessary to decide
a motion shall be by a preponderance of the evidence.” (Emphasis added.) The
flaw in the Government’s reasoning, apparent from Roberts, is that a military
judge ruling on evidence proffered under Mil. R. Evid. 412 is not required to
resolve a factual issue. 69 M.J. at 27. Again, the military judge must decide
whether the proffered evidence is relevant and otherwise admissible, not
whether it is true. 6
    2. The Military Judge Erroneously Determined the Proffered Evi-
    dence had “no relevance” to Consent
    The written Defense motion asserted the proffered evidence of post-assault
consensual sexual activity was constitutionally required because, inter alia, it
tended to show Ms. MG was not sexually assaulted and she did not believe she
was sexually assaulted. During argument on the motion, trial defense counsel
disavowed offering the evidence to show mistake of fact as to consent; instead,
he asserted the evidence was relevant to show Ms. MG’s “state of mind.” Al-
though inartfully stated, the Defense motion and argument taken together in-
dicate the evidence was offered to show the charged sexual encounters were in
fact consensual. The military judge found the Defense failed to demonstrate “a
basis for admissibility” and asserted, inter alia: “The proffered evidence has no
relevance to consent . . . on the night in question . . . .” We cannot agree, and we
find this conclusion to be an abuse of discretion.
     Relevance is a “low threshold.” Roberts, 69 M.J. at 27. Evidence is relevant
if it has any tendency to make the existence of a fact more probable or less
probable than it would be without the evidence. Mil. R. Evid. 401(a). In general,
willingness to engage in consensual sexual activity has some tendency to indi-
cate that recent prior sexual encounters between two individuals were also
consensual. See United States v. Sousa, 72 M.J. 643, 648 (A.F. Ct. Crim. App.
2013) (“Evidence that [the victim] engaged in consensual sexual activity with
the appellant after the date she alleged she was forcibly sodomized was consti-
tutionally required to be admitted on the issue of consent . . . .”); United States
v. Leak, 58 M.J. 869, 876–77 (A. Ct. Crim. App. 2003), rev’d on other grounds,
61 M.J. 234 (C.A.A.F. 2004); United States v. Parker, 54 M.J. 700, 708 (A. Ct.
Crim. App. 2001). We find no reason to conclude otherwise in Appellant’s case.



6The Government also cites Mil. R. Evid. 104(b), relating to evidence the relevance of
which depends on the existence of another fact; but this rule is similarly inapposite
because the relevance of the evidence proffered here stands alone and is not contingent
on the existence of any other fact.


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                 United States v. Leonhardt, No. ACM 39014


    The Government argues that because Appellant’s motion testimony “lacked
corroboration” and was “wholly contested” by Ms. MG, it therefore lacked any
probative value as to the charged offenses. Like the military judge, the Gov-
ernment fails to appreciate that such credibility assessments are not an appro-
priate element of the military judge’s Mil. R. Evid. 412(b)(1)(C) analysis. As
discussed above, the Defense is not required to convince the military judge that
its evidence is true, only that it is relevant. Relevance depends on the sub-
stance of the evidence, not its relative strength in relation to other evidence in
the case. It may be that in extreme cases the content of proffered evidence on
a matter of “consequence in determining the action” is so patently improbable
that it lacks relevance—for example, if Appellant had claimed the subsequent
consensual sexual encounters took place on the moon. But that is not this case;
there is nothing inherently incredible about two cadets having consensual sex
in a dorm room.
   3. The Proffered Evidence was Material and its Probative Value
   Outweighed the Danger of Unfair Prejudice
    In addition to being relevant, the proffered evidence was material. Properly
understood, the issue on which the evidence was offered—whether Ms. MG in
fact consented to the charged sexual encounters—was of fundamental signifi-
cance to determining whether Appellant was guilty. Similarly, that issue was
certainly in dispute. Furthermore, after the military judge’s ruling, there was
no other evidence of consensual sexual encounters introduced at the trial; the
Defense did elicit and introduce other testimony in an effort to demonstrate
Ms. MG consented, but its efforts were obviously insufficient with respect to
the offenses Appellant was convicted of. This is not a case where the excluded
evidence was essentially redundant with the weight of other evidence before
the court.
    Furthermore, we find the probative value of the proffered evidence out-
weighs any danger of unfair prejudice. See Ellerbrock, 70 M.J. at 318. Notably,
the military judge did not identify any such dangers in this case, and the Gov-
ernment’s brief to this court identifies none. We can discern no palpable risk of
harassment, unfair prejudice, or witness safety. The evidence would not have
been unduly confusing to the court members because it involved the same two
individuals at a point near in time to the charged offense; it addressed the same
sequence of events, time frame, and actors that Ms. MG testified about on di-
rect examination. Finally, as discussed above, the proffered evidence was more
than marginally relevant, and it was not superfluous in light of other evidence
adduced at trial.




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                 United States v. Leonhardt, No. ACM 39014


   4. The Erroneous Exclusion of the Proffered Evidence was Not
   Harmless Beyond a Reasonable Doubt
    Because the proffered evidence was relevant, material, and its probative
value outweighed the danger of unfair prejudice, it met the exception for con-
stitutionally-required evidence and was admissible under Mil. R. Evid.
412(b)(1)(C). See Ellerbrock, 70 M.J. at 318. The military judge abused his dis-
cretion by excluding it. Therefore, we must test for prejudice which, because
the error was constitutional, requires a determination whether it was harmless
beyond a reasonable doubt. Id. at 320. In other words, the question is whether
there is a “reasonable possibility” the error “might have contributed to the con-
viction.” Id.
    The Government case had weaknesses. Ms. MG had been dating Appellant
and ultimately agreed to go alone to a room away from the Academy to spend
the night with him. She stayed with him in the same bed after the first sexual
assault. She did not report the sexual assault until over two years after the
fact. There was no physical evidence nor any witness she contemporaneously
informed of the assault. Ms. MG admitted that, after the assault and while she
was still at the Academy, she wrote a character letter on behalf of Appellant.
The Defense called Mr. GW, the sponsor, as a witness; he testified he did not
hear anything that made him “uneasy” the night of the assault, and in the
morning he heard “rhythmic moaning sounds” from the room Appellant and
Ms. MG occupied and assumed they were having sex. In addition, the Defense
proposed Ms. MG had a motive to falsely allege sexual assault after Appellant
told Ms. MG’s subsequent—and, at the time of trial, current—boyfriend, soon
after the charged events and purported consensual sexual encounters, that Ap-
pellant had had sex with Ms. MG after dating her briefly. Ms. MG testified this
made her boyfriend “really upset” with her, and made her “really mad” at Ap-
pellant.
    The Government notes that Ms. MG would presumably have denied the
proffered post-offense consensual sexual encounters if she had been cross-ex-
amined about them. However, it is possible the members might not have be-
lieved her, or might have harbored greater doubts about her testimony and
credibility more generally. In addition, if the military judge had not excluded
the proffered evidence, Appellant might have testified in findings and the
members might have found him credible enough to raise reasonable doubts
about Ms. MG’s testimony.
    The Government also asserts Appellant made a “litany of incriminating
statements” during a pretext phone call monitored by AFOSI that Ms. MG
made to him in December 2014. It is true that Appellant apologized to Ms. MG,
admitted that he had been “a terrible person” and “an a[**]hole,” and said he



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                 United States v. Leonhardt, No. ACM 39014


wished he “could go back and . . . change a lot of things.” However, the conver-
sation fell far short of a confession. Appellant said he did not remember
Ms. MG telling him she did not want to have sex prior to the evening in ques-
tion, he repeatedly insisted he did not remember Ms. MG telling him “no” dur-
ing the alleged assaults, and he stated he recalled her enjoying having sex.
   The court members found Appellant not guilty of one of the alleged sexual
assaults. We cannot be certain beyond a reasonable doubt that evidence
Ms. MG engaged in consensual sex with Appellant a few days after the alleged
assault would not have raised additional reasonable doubts in the members’
minds. Accordingly, we cannot sustain Appellant’s convictions.

                              III. CONCLUSION
   The findings of guilt and the sentence are SET ASIDE. A rehearing is au-
thorized. Article 66(c), UCMJ, 10 U.S.C. § 866.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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