      This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
               Sean R. ERIKSON, Specialist
               United States Army, Appellant
                         No. 16-0705
                   Crim. App. No. 20150130
         Argued March 1, 2017—Decided May 9, 2017
                 Military Judge: Andrew Glass
   For Appellant: Captain Matthew D. Bernstein (argued);
   Lieutenant Colonel Christopher Daniel Carrier and Major
   Andres Vazquez Jr. (on brief); Lieutenant Colonel Melissa
   R. Covolesky and Captain Joshua B. Fix.
   For Appellee: Captain John M. Gardella (argued); Colonel
   Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
   and Major Cormac M. Smith (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges STUCKY,
   RYAN, and SPARKS, joined.
                     _______________

   Judge OHLSON delivered the opinion of the Court.
    Contrary to his pleas, Appellant was convicted by a gen-
eral court-martial composed of officer and enlisted members
of two specifications of sexual assault and one specification
of adultery in violation of Articles 120 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934
(2012). The specifications were merged for sentencing pur-
poses and Appellant was sentenced to a bad-conduct dis-
charge, confinement for three years, and reduction in grade
to E-1. The convening authority disapproved and dismissed
one specification of sexual assault, but approved the sen-
tence as adjudged. The United States Army Court of Crimi-
nal Appeals (CCA) summarily affirmed the findings and sen-
tence.
            United States v. Erikson, No. 16-0705/AR
                      Opinion of the Court

   We granted review of the following issue personally as-
serted by Appellant:1
       Whether the military judge erred in excluding evi-
       dence that the victim previously made a false accu-
       sation of sexual contact against another soldier.
United States v. Erikson, 75 M.J. 465, 465–67 (C.A.A.F.
2016).
   We conclude that Appellant failed to carry his burden of
demonstrating that a prior accusation of sexual assault
made by the victim against a different soldier was false. We
further conclude that the military judge correctly applied
the law in not admitting evidence of that accusation. We
therefore hold that the military judge did not abuse his dis-
cretion in the instant case and we affirm the decision of the
CCA.
                         I. Background

   A. Events Leading to the Charges in this Case
    On June 20, 2014, Appellant and the victim, Specialist
(SPC) BG, shared two bottles of vodka with three other indi-
viduals—Mr. F, Private First Class (PFC) F, and PFC W—
after working at the dining facility during a field exercise at
Yakima Training Center, Washington. After about an hour,
SPC BG announced to everyone that she was drunk, and she
then departed the dining facility to go sleep in her barracks.
PFC F and PFC W both testified that SPC BG appeared in-
toxicated. Once at the barracks, SPC BG called her ex-
boyfriend before she passed out in bed. Mr. F testified that
he, Appellant, and PFC W went to SPC BG’s barracks room
to ask her to return to the party. They found SPC BG in bed


   1  United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We al-
so granted review of two issues related to two judges sitting simul-
taneously on the CCA and United States Court of Military Com-
mission Review (USCMCR). In United States v. Ortiz, we held
that the appellate military judge was statutorily authorized to sit
on the CCA and his presidential appointment to sit on the
USCMCR did not violate the Appointments Clause with regard to
his status on the CCA. 76 M.J. ___ (C.A.A.F. 2017). Therefore, we
answer Appellant’s two Grostefon issues in the negative and af-
firm the CCA’s decision accordingly.



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            United States v. Erikson, No. 16-0705/AR
                      Opinion of the Court

and she did not respond when they tried to rouse her by
shaking her and talking to her.
   SPC BG testified that she awoke some time later and
discovered that Appellant was “penetrating” her. She lost
consciousness and then awoke a few moments later to real-
ize Appellant was performing oral sex on her. SPC BG
pulled Appellant’s hair, kicked him off of her, and ran to the
opposite end of the barracks where she called her then-
boyfriend, now-husband. Her first words to her boyfriend
were, “I woke up and he was inside me.” SPC BG returned to
her sleeping area and told Appellant to leave, after which
she passed out while still on the phone.
   The next day, SPC BG talked to PFC F about what had
happened the night before. While crying, SPC BG told PFC
F that she woke up during the night and found Appellant on
top of her. In turn, PFC F then told SPC BG that Appellant
had said that he went to check on SPC BG the previous
night, whereupon SPC BG grabbed Appellant and they had
sex. About fifteen or twenty minutes after ending her con-
versation with PFC F, SPC BG called her command sexual
assault representative and reported that she had been as-
saulted.
   B. PFC W’s Testimony
    At trial, SPC BG’s recitation of the events conflicted with
the testimony of PFC W who lived adjacent to SPC BG in
the barracks. PFC W said that soon after SPC BG left the
dining facility where the group of soldiers had been drink-
ing, she also returned to the barracks and went to bed. She
awoke when Mr. F came to her room to sleep on her floor.
However, PFC W could not fall back asleep because she
heard moaning from SPC BG’s sleeping area and could hear
SPC BG making affirmative and encouraging statements
indicative of consensual sexual activity. PFC W testified
that she then saw SPC BG stumble down the hall to the
bathroom before returning to her sleeping area and starting
a movie on her laptop a few minutes later. PFC W further
testified that she later heard SPC BG say to someone, “Get
up” and “Get dressed,” but PFC W heard no response. PFC
W then heard SPC BG say to someone, “If you tell anybody
this happened I will tell them you have a small dick.” PFC



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           United States v. Erikson, No. 16-0705/AR
                     Opinion of the Court

W then saw Appellant leave SPC BG’s room and walk down
the hall, and she heard SPC BG whispering on the phone.
   Appellant did not testify at his court-martial.
   C. Appellant’s Motion to Admit Evidence at Trial
    The defense moved pretrial to admit evidence that a pri-
or accusation of sexual assault that SPC BG made against
another soldier was false. As evidence of the falsity of this
prior accusation, the defense primarily cited the acquittal of
the other soldier at a summary court-martial. The defense
argued that this evidence “provides evidence of [SPC BG’s]
modus operandi, or her plan, or her pattern, of why and how
she accuses other men of assaulting her even when untrue.”
Specifically, the defense asserted that in both instances the
victim falsely accused a fellow soldier of sexual assault in
order to gain sympathy from a boyfriend and to thereby
mend their rocky relationship. The military judge convened
a closed Article 39(a), UCMJ, § 10 U.S.C. 839(a) (2012), ses-
sion to hear the defense’s argument, the Government’s re-
sponse, and testimony on the matter.
    The military judge ultimately denied the defense motion,
finding that the prior accusation of sexual assault was not
admissible under Military Rule of Evidence (M.R.E.) 412 or
any other rule. The military judge ruled that the prior accu-
sation was not proven false, even though the accused was
acquitted by summary court-martial:
      Parties offering evidence of other allegations of
      sexual assault against third parties to challenge
      the credibility of the victim must establish the fal-
      sity of the prior complaint. See e.g. [sic] [United
      States v. Velez, 48 M.J. 220, 227 (C.A.A.F. 1998)].
      The defense has failed to do so in this case. Having
      observed the demeanor, conduct, mannerisms, and
      deportment during their testimony, I find [SPC BG]
      to be more credible than [the prior accused] on this
      issue. Even if the allegations are classified as un-
      founded by a third party agency, that does not
      equate to recanted or demonstratively false allega-
      tion.
(Citation omitted.)




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            United States v. Erikson, No. 16-0705/AR
                      Opinion of the Court

               II. Applicable Legal Principles

   A. Standard of Review
    We review a military judge’s decision to admit or exclude
evidence for an abuse of discretion. United States v. Olson,
74 M.J. 132, 134 (C.A.A.F. 2015) (citation omitted). “A mili-
tary judge abuses his discretion if his findings of fact are
clearly erroneous or his conclusions of law are incorrect.” Id.
(internal quotation marks omitted) (citation omitted); see
also United States v. Ellerbrock, 70 M.J. 314, 317 (C.A.A.F.
2011) (“Findings of fact are reviewed under a clearly errone-
ous standard and conclusions of law are reviewed de novo.”).
We have previously stated that the abuse of discretion
standard is strict, “calling for more than a mere difference of
opinion. The challenged action must be arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” United States v.
McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (internal quo-
tation marks omitted) (citations omitted).
   B. Right to Confrontation
    “In all criminal prosecutions, the accused shall enjoy the
right … to be confronted with the witnesses against him.”
U.S. Const. amend. VI; see McElhaney, 54 M.J. at 129. “The
right to confrontation includes the right of a military ac-
cused to cross-examine adverse witnesses.” United States v.
Smith, 68 M.J. 445, 447 (C.A.A.F. 2010). “Uncovering and
presenting to court members ‘a witness’ motivation in testi-
fying is a proper and important function of the constitution-
ally protected right of cross examination.’” Id. (quoting Davis
v. Alaska, 415 U.S. 308, 316 (1974)). “A limitation on an ac-
cused’s presentation of evidence related to issues such as bi-
as or motive to fabricate may violate an accused’s right to
confront witnesses.” United States v. Gaddis, 70 M.J. 248,
256 (C.A.A.F. 2011).
   However, “[w]hile the right to cross-examination is
broad, it is not unlimited in scope; nor can it be conducted
without due regard for applicable rules of evidence.” Velez,
48 M.J. at 226 (citing Davis, 415 U.S. at 308). The scope of
cross-examination is limited to “the subject matter of the di-
rect examination and matters affecting the credibility of the
witness.” McElhaney, 54 M.J. at 129 (internal quotation
marks omitted) (citation omitted). Further, a military judge


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            United States v. Erikson, No. 16-0705/AR
                      Opinion of the Court

has “broad discretion to impose reasonable limitations on
cross-examination, ‘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.’” McElhaney, 54 M.J. at 129 (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
   C. Applicable M.R.E.s
    Evidence of an alleged victim’s prior accusation of sexual
assault is only admissible if the prior accusation is shown to
be false. This is true whether the defense seeks to introduce
the evidence as an exception to M.R.E 412, or to show the
alleged victim’s modus operandi, motive, or character evi-
dence for lack of truthfulness. See Velez, 48 M.J. at 226–27;
see also McElhaney, 54 M.J. at 127.
    In the instant case, the parties analyze this issue primar-
ily through the prism of M.R.E. 412.2
           M.R.E. 412 states that evidence offered by the
       accused to prove the alleged victim’s sexual predis-
       positions, or that she engaged in other sexual be-
       havior, is inadmissible except in limited contexts.
       The rule is intended to shield victims of sexual as-
       saults from the often embarrassing and degrading
       cross-examination and evidence presentations
       common to [sexual offense prosecutions].
Ellerbrock, 70 M.J. at 317–18 (alteration in original) (foot-
note omitted) (internal quotation marks omitted) (citation
omitted) (citing Gaddis, 70 M.J. at 252) (quoting Manual for
Courts-Martial, United States, Analysis of the Military
Rules of Evidence app. 22 at A22–35 (2008 ed.) (MCM)
[hereinafter Drafters’ Analysis]).
   One of the exceptions to the general rule outlined in
M.R.E. 412 is that evidence offered by the accused to prove
that the alleged victim engaged in other sexual behavior, or
to prove the alleged victim’s sexual predisposition, may be
admissible at trial if necessary to protect an accused’s Sixth

   2  We question whether M.R.E. 412 actually applies in this
case. We fail to see how the sexual assault of a victim relates to
that victim’s “sexual behavior” or “sexual predisposition.” Howev-
er, because the parties analyze this case in the M.R.E. 412 con-
text, we preliminarily do so also.



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            United States v. Erikson, No. 16-0705/AR
                      Opinion of the Court

Amendment right to confrontation. Ellerbrock, 70 M.J. at
318; see M.R.E. 412(b)(1)(C).
   However, an accused bears the burden of demonstrating
that he is entitled to this exception under M.R.E.
412(b)(1)(C). As this Court has noted:
           Appellant has the burden under M.R.E. 412 of
       establishing his entitlement to any exception to the
       prohibition on the admission of evidence offered to
       prove that any alleged victim engaged in other sex-
       ual conduct. To establish that the excluded evi-
       dence would violate the constitutional rights of the
       accused, an accused must demonstrate that the ev-
       idence is relevant,3 material,4 and favorable to his
       defense, and thus whether it is necessary. The term
       “favorable” as used in both Supreme Court and mil-
       itary precedent is synonymous with “vital.”
Smith, 68 M.J. at 448 (footnotes added) (internal quotation
marks omitted) (citations omitted).
   The Drafters’ Analysis of M.R.E. 412 states that: “Evi-
dence of past false complaints of sexual offenses by an al-
leged victim of a sexual offense is not within the scope of this
rule and is not objectionable when otherwise admissible.”
Drafters’ Analysis app. 22 at A22–41 (MCM Supp. 2012 ed.).
    Consistent with this principle, in McElhaney we upheld a
military judge’s ruling prohibiting defense counsel from call-
ing a witness to testify that the victim’s prior accusation was
false, because “defense counsel proffered no evidence show-
ing the complaint to be false, other than the unsurprising
denial by [the accused].” 54 M.J. at 130.

   3 “‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the de-
termination of the action more probable or less probable than it
would be without the evidence.” M.R.E. 401 (MCM 2012 ed.); see
Ellerbrock, 70 M.J. at 318.
    4 Determining whether evidence is material requires a multi-

factored test looking at “the 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 (internal quotation marks omitted) (citations omit-
ted).



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            United States v. Erikson, No. 16-0705/AR
                      Opinion of the Court

                         III. Discussion

    In light of the above, it is clear that a foundational ques-
tion in this case is the following: Did the defense meet its
burden of demonstrating that the victim’s prior allegation of
sexual assault was false?5 The answer, we conclude, is “No.”
And, we hold, this conclusion is dispositive of the granted
issue in this case.
    At trial, Appellant was required to establish the falsity of
SPC BG’s previous sexual assault accusation in order for it
to be admissible under an M.R.E. 412 exception or for it to
be admissible under any other rationale such as evidence of
a modus operandi, motive, or character evidence for lack of
truthfulness. See Velez, 48 M.J. at 226–27; see also
McElhaney, 54 M.J. at 127.
   In carefully assessing that issue, the military judge con-
vened an Article 39(a), UCMJ, session and heard testimony
from SPC BG, the prior accused, and other witnesses. The
military judge then placed his findings of fact and conclu-
sions of law on the record (appropriately under seal) allow-
ing thorough appellate review.
   The evidence presented by defense counsel to establish
the falsity of the prior accusation consisted of: (1) a sum-
mary court-martial acquittal; (2) the prior accused’s testi-
mony denying the assault; and (3) the testimony of a person
who was present in the room at the time of the alleged inci-
dent and who denied seeing any sexual assault occur.6 In
contrast, SPC BG testified before the military judge and de-
nied that the prior accusation was false and denied fabricat-
ing the incident.
   The military judge was in the best position to determine
the credibility of these witnesses, and there is no evidence
before this Court to suggest that his conclusion that SPC BG


   5 Notably, defense counsel conceded at trial that “it is a neces-
sary predicate that the court believe that it is a false accusation
under the case law for [defense counsel] to be able to elicit” that
evidence.
   6  The military judge found that this person was not in a posi-
tion where he could have seen the alleged prior sexual assault.



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            United States v. Erikson, No. 16-0705/AR
                      Opinion of the Court

was more credible than the prior accused was clearly erro-
neous. See Olson, 74 M.J. at 134.
    Upon a de novo review of the military judge’s finding
that Appellant did not meet his burden of proving that the
prior sexual assault accusation was false, we conclude that
the military judge properly stated and considered the law
and did not err. First, the military judge was correct in con-
cluding that the summary court-martial acquittal regarding
the victim’s prior allegation of sexual assault was not dispos-
itive of the falsity of the allegation. Second, he was correct in
concluding that the denial by the prior accused was no more
persuasive here than in McElhaney. And third, the military
judge did not abuse his discretion in finding that SPC BG
was more credible than the witnesses who testified on behalf
of the defense. Therefore, because the military judge correct-
ly concluded that SPC BG’s prior sexual assault accusation
was not proven false, we hold that he did not err in ruling
that this evidence was not admissible at trial.7
                          IV. Decision

   The decision of the United States Army Court of Crimi-
nal Appeals is affirmed.




   7 We note that in the course of the trial, Appellant was able to
address SPC BG’s truthfulness and motive to lie through cross-
examination.



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