       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
        David C. CARPENTER II, Senior Airman
            United States Air Force, Appellant
                          No. 17-0476
                      Crim. App. No. 38995
       Argued January 10, 2018—Decided March 20, 2018
               Military Judge: Matthew P. Stoffel
   For Appellant: Stephen H. Carpenter Jr. Esq. (argued);
   Major Allen S. Abrams.
   For Appellee: Major J. Ronald Steelman III (argued);
   Colonel Katherine E. Oler and Lieutenant Colonel Joseph
   Kubler (on brief); Mary Ellen Payne, Esq.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, Judges RYAN and
   SPARKS, and Senior Judge COX, joined.
                    _______________

   Judge OHLSON delivered the opinion of the Court.
   Contrary to his pleas, a military judge sitting as a gen-
eral court-martial convicted Appellant of a consolidated
specification of sexual assault of a child who had reached the
age of twelve years but had not reached the age of sixteen
years in violation of Article 120b, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920b (2012). The military judge
sentenced Appellant to a dishonorable discharge, confine-
ment for two years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The United States Air Force
Court of Criminal Appeals (CCA) affirmed the findings and
sentence. We granted review pursuant to Article 67, UCMJ,
10 U.S.C. § 867 (2012).
                        I. Background
   Appellant’s conviction stems from his sexual activity
with a then-thirteen-year-old male, J.M. Appellant an-
swered a sexually explicit ad posted by J.M. on Craigslist.
           United States v. Carpenter, No. 17-0476/AF
                      Opinion of the Court

The ad listed J.M.’s age as twenty and his height as five feet
ten inches,1 and it stated in graphic detail the sexual en-
counters J.M. was seeking.
    Appellant responded to J.M.’s Craigslist ad and the two
began e-mailing one another. After multiple e-mails, they
initiated a Skype chat where they could see each other over
video and communicate via typed chat messages. In his tes-
timony at trial, J.M. later acknowledged that the sexually
explicit language he used in the Skype chat could be viewed
as “shocking.”
   After more e-mail communication, Appellant and J.M.
arranged to meet. J.M. informed Appellant that he did not
have a car and that Appellant would need to pick him up at
the side of the house with the car lights turned off. When
Appellant arrived, J.M. ducked under the windows of the
house and ran to Appellant’s car. J.M. was barefoot and
wearing only boxer shorts and a t-shirt, and Appellant told
J.M. he looked young for his age. Once inside Appellant’s
room, Appellant and J.M. engaged in oral and anal sex.
    J.M. had other sexual encounters with adult men before
and after his meeting with Appellant.2 In each instance,
J.M. posted Craigslist ads which contained extremely graph-
ic and explicit descriptions of the sexual activities in which
he wanted to engage. Each ad listed his age to be around
twenty and his height at five feet ten inches.
    One of those men, R.K., testified at Appellant’s
court-martial. He testified that after Appellant’s sexual en-
counter with J.M., Appellant sent R.K. a copy of Appellant’s
and J.M.’s Skype chat messages. R.K. also testified that Ap-
pellant expressed some suspicion about J.M.’s age because
he had seen J.M. outside of a high school wearing a back-


   1 J.M. testified that his actual height at the time was five feet
eight inches.
   2 Information about J.M.’s other sexual encounters in both the
record and appellate briefs were sealed pursuant to Military Rule
of Evidence (M.R.E.) 412(c)(2) and Rule for Courts-Martial
(R.C.M.) 1103A. Those records and briefs remain sealed and any
discussion of sealed material in this opinion is limited to that
which is necessary for the analysis. See R.C.M. 1103A(b)(4).



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             United States v. Carpenter, No. 17-0476/AF
                        Opinion of the Court

pack. R.K.’s initial testimony was used to introduce the
Skype chat into evidence.
    After R.K.’s initial testimony, J.M. testified that he en-
gaged in oral and anal sex with R.K. and that they met
through Craigslist.3 R.K. was again called to the stand and
trial defense counsel questioned him on whether Appellant
seemed worried about J.M.’s age when he sent R.K. the copy
of the Skype chat. Trial defense counsel did not ask R.K. any
questions about his personal belief about J.M.’s apparent
age.
    Trial defense counsel filed a motion in limine seeking to
present evidence of J.M.’s sexual encounters with other
adult men pursuant to Military Rule of Evidence (M.R.E.)
412.4 Trial defense counsel wanted to introduce this evi-
dence through cross-examination of J.M. The military judge
held that the evidence was inadmissible because it was not
relevant to Appellant’s mistake of fact as to J.M.’s age.
    The CCA affirmed Appellant’s conviction and sentence,
concluding in part that J.M.’s other sexual encounters were
irrelevant because Appellant did not know of them at the
time of his sexual acts with J.M.5 2017 CCA LEXIS 273, at
*9, 2017 WL 1735175, at *3.



   3   J.M. responded to a Craigslist ad posted by R.K.
   4  “M.R.E. 412 states that evidence offered by the accused to
prove the alleged victim’s sexual predispositions, or that [he] en-
gaged in other sexual behavior, is inadmissible except in limited
contexts. The rule is intended to shield victims of sexual assaults
from the often embarrassing and degrading cross-examination and
evidence presentations common to [sexual offense prosecutions].”
United States v. Ellerbrock, 70 M.J. 314, 317–18 (C.A.A.F. 2011)
(second set of brackets in original) (internal punctuation omitted)
(footnote omitted) (citations omitted).
   5  The CCA was mistaken in concluding that J.M.’s sexual en-
counters were irrelevant because Appellant did not know of them
at the time of his sexual acts with J.M. However, we repeatedly
have held that when reviewing a military judge’s ruling for an
abuse of discretion, we pierce the CCA’s opinion and examine the
military judge’s ruling directly. E.g., United States v. Shelton, 64
M.J. 32, 37 (C.A.A.F. 2006). The CCA also held that the evidence
would have been too speculative. United States v. Carpenter, No.


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          United States v. Carpenter, No. 17-0476/AF
                     Opinion of the Court

   We granted review of the following issue:
      Whether the [CCA] erred in limiting the cross-
      examination of the complaining witness under
      Military Rule of Evidence 412 on an issue showing
      that Appellant’s subjective mistake of fact as to the
      complaining witness’s age was objectively
      reasonable.

    United States v. Carpenter, 76 M.J. 432 (C.A.A.F. 2017)
(order granting review).
                         II. Analysis
    On appeal before this Court, Appellant argues two inter-
related points. Appellant first argues that an accused cannot
be convicted in a case such as this one if the accused demon-
strates both that he subjectively believed that the person
with whom he had sex had attained the age of consent, and
that his belief was objectively reasonable. United States v.
Goodman, 70 M.J. 396, 401 (C.A.A.F. 2011). Appellant next
argues that the military judge erred in his application of
M.R.E. 412 in this case because he prevented trial defense
counsel from eliciting from J.M. testimony that would have
directly supported the objective prong of Appellant’s mistake
of fact defense.
    We conclude that there is a foundational problem with
Appellant’s position. Namely, the argument that Appellant
now makes before this Court is not the argument he made
before the military judge. Specifically, Appellant argues on
appeal that “the more often J.M. successfully convinced oth-
er adult men that he was as old as he claimed to be in his
on-line personal ads, the more Appellant’s subjective mis-
take turns objectively reasonable.” Brief for Appellant at 7,
United States v. Carpenter, No. 17-0476 (C.A.A.F. Aug. 14,
2017). However, in a motion in limine at the court-martial,
trial defense counsel argued that J.M.’s “sexual activity with
someone other than the accused prior to the charged offense
is relevant to show the alleged victim had knowledge beyond
his tender years before engaging in sexual acts with the ac-
cused.”


ACM 38995, 2017 CCA LEXIS 273, at *9–10, 2017 WL 1735175,
at *3 (A.F. Ct. Crim. App. April 21, 2017) (unpublished).



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           United States v. Carpenter, No. 17-0476/AF
                      Opinion of the Court

    The distinction between the defense argument made at
trial and the defense argument now made on appeal cannot
be attributed to inartful drafting of the motion in limine. Ra-
ther, several factors contained in the record make it evident
that Appellant was employing a different legal strategy at
trial than the one he now seeks to employ on appeal.
    First, the plain language of Appellant’s motion in limine
is quite clear. Appellant was seeking to have J.M. testify
about his other sexual experiences with adult men in order
to bolster Appellant’s testimony that: (a) J.M. was the one
who brazenly initiated the sexual encounter through the use
of a Craigslist ad that was extremely graphic and that mis-
represented J.M.’s age; and (b) once J.M.’s sexual encounters
began, J.M. acted in a sexual manner that was “beyond his
tender years.”
   Second, during his ruling from the bench regarding the
defense’s motion, the military judge characterized the de-
fense position as follows:
        The Defense desires to cross-examine J.M. on the
      contents of all Craigslist postings J.M. made … specifi-
      cally as it relates to J.M.’s stated age in these posts and
      the specificity in J.M.’s sexual desires/demands. The
      defense argues that such cross-examination is constitu-
      tionally required as it is relevant to a mistake of fact as
      to age defense, demonstrates the maturity level of J.M.,
      and makes the accused more believable.
        ….
        The defense desires to admit evidence of J.M.’s sexu-
      al encounters with other adult males prior to the al-
      leged sexual assaults as evidence of J.M.’s sexual histo-
      ry as being greater than a 13-year-old would normally
      experience to demonstrate why the accused would have
      an honest and reasonable belief that J.M. was not un-
      der 16 years of age. The defense proffers that J.M.’s
      past experiences would provide him more confidence in
      sexual activity than would be expected from a 13-year-
      old.
   Trial defense counsel did not object regarding the mili-
tary judge’s characterization of his argument, and did not
seek to recast his argument in a manner more consistent
with the defense argument now made on appeal.




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           United States v. Carpenter, No. 17-0476/AF
                      Opinion of the Court

    And third, when he had the opportunity to question R.K.,
trial defense counsel’s line of inquiry was consistent with the
contours of his motion in limine and not with the framework
of the defense argument now made on appeal. In other
words, Appellant now avers that the military judge abused
his discretion because the judge did not permit him to ask
J.M. questions regarding what J.M.’s adult sexual partners
initially thought about J.M.’s age based on factors other than
the Craigslist ad. And yet, when an adult male with whom
J.M. had sex was on the witness stand, trial defense counsel
did not even attempt to ask R.K. those types of questions.
    We are obligated to review a “military judge’s ruling on
whether to exclude evidence pursuant to M.R.E. 412 for an
abuse of discretion.” Ellerbrock, 70 M.J. at 317. That is a
stringent standard of review. Moreover, our review for error
is properly based on a military judge’s disposition of the mo-
tion submitted to him or her—not on the motion that appel-
late defense counsel now wishes trial defense counsel had
submitted. See United States v. Lloyd, 69 M.J. 95, 100–01
(C.A.A.F. 2010) (“In reviewing a military judge’s ruling for
abuse of discretion … we review the record material before
the military judge. We find that the military judge did not
abuse her discretion by failing to adopt a theory that was
not presented in the motion at the trial level.”); United
States v. Palmer, 55 M.J. 205, 208 (C.A.A.F. 2001) (“If de-
fense counsel had two theories of admissibility, it was in-
cumbent on him to alert the military judge to both theo-
ries …. ”).
    In the context of the argument made by trial defense
counsel in the motion in limine, we conclude that the mili-
tary judge’s decision to exclude evidence pursuant to M.R.E.
412 was not clearly erroneous. J.M. testified to engaging in
sexual activity with R.K.—who was an adult male like Ap-
pellant—and to initiating the sexual encounter with Appel-
lant through an extremely graphic Craigslist ad. Therefore,
it was not an abuse of discretion for the military judge to
conclude that additional evidence regarding J.M.’s prior
sexual encounters with other adult males, and details about
J.M.’s consequent advanced sexual knowledge, was not rele-
vant to the question of whether it was objectively reasonable
for Appellant to initially engage in sexual conduct with J.M.


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          United States v. Carpenter, No. 17-0476/AF
                     Opinion of the Court

See United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004)
(“An abuse of discretion means that ‘when judicial action is
taken in a discretionary matter, such action cannot be set
aside by a reviewing court unless it has a definite and firm
conviction that the [trial court] committed a clear error of
judgment in the conclusion it reached upon weighing the
relevant factors.’ ” (citation omitted)).
                       III. Decision
   The decision of the United States Air Force Court of
Criminal Appeals is affirmed.




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