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

                           No. ACM 39223
                       ________________________

                          UNITED STATES
                              Appellee
                                  v.
                    Matthew C. HARRINGTON
            Senior Airman (E-4), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                     Decided 25 September 2018
                       ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Dishonorable discharge, forfeiture of $1,066.00 pay
per month until completion of appellate review, reduction to E-1, and a
reprimand. Sentence adjudged 20 November 2016 by GCM convened at
Nellis Air Force Base, Nevada.
For Appellant: Major Patricia Encarnación Miranda, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Pe-
ter F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, JOHNSON and DENNIS, Appellate Military
Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Judge DENNIS joined. Senior Judge JOHNSON filed a separate dis-
senting opinion.
                       ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________
                  United States v. Harrington, No. ACM 39223


MAYBERRY, Chief Judge:
    A general court-martial composed of officer and enlisted members found
Appellant guilty, contrary to his pleas, of one specification of sexual assault in
violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
920. The court-martial sentenced Appellant to a dishonorable discharge, hard
labor without confinement for three months, total forfeiture of pay and allow-
ances, reduction to the grade of E-1, and a reprimand. The convening authority
deferred the forfeitures until he took action on the court-martial and approved
only the dishonorable discharge, forfeiture of $1,066.00 pay per month until
completion of appellate review, reduction to E-1, and a reprimand.
    On appeal, Appellant raises a single issue: whether the military judge
abused his discretion by applying Military Rule of Evidence (Mil. R. Evid.) 412
to exclude evidence the Defense sought to admit. We find the military judge
abused his discretion by excluding the evidence, and we set aside the findings
and sentence. 1

                                  I. BACKGROUND
    In January 2016, Appellant and Senior Airman (SrA) FC were co-workers
stationed at Creech Air Force Base (AFB), Nevada. On 30 January 2016, SrA
FC and her then-boyfriend agreed to end their relationship. Later that day,
SrA FC attended a party at the off-base residence of another co-worker, Staff
Sergeant (SSgt) KW. Appellant and several other individuals, mostly Airmen,
also attended the party. SrA FC’s recently-estranged boyfriend and Appellant’s
wife did not attend. SrA FC and Appellant had no prior sexual relationship.
    Appellant, SrA FC, and several others played adult party games. Of note,
one game was an “adult” or “drinking” version of Jenga that involved removing
individual blocks from a tower of blocks. In the version of the game they played,
each block had an instruction printed on it for the participant to perform, often
of a titillating nature—for example, removing an article of clothing or electing
to take a “body shot” of alcohol from a location on another player’s body. In the
course of the game, SrA FC removed her pants, and Appellant elected to take
“body shots” from SrA FC’s mouth, from her cleavage, and from between her
buttocks. SrA FC permitted Appellant to do so.




1 All pretrial motions regarding Appellant’s request to introduce evidence under Mili-
tary Rule of Evidence 412 were sealed as were the transcripts of the multiple hearings
involving the motions. As a result of our finding the military judge abused his discre-
tion in excluding this evidence, the opinion contains discussion of sealed material nec-
essary for our analysis.


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                United States v. Harrington, No. ACM 39223


    The partygoers consumed alcohol before and during the games, and SrA FC
became highly intoxicated. SrA FC had to leave the games at certain points
because she felt sick, and she vomited at least three times over the course of
the evening. Eventually, SSgt KW and another partygoer, SSgt RD, put SrA
FC to bed in an upstairs bedroom as the party continued downstairs. According
to SSgt RD, the party began to “wrap up” a short time thereafter. Later, as the
party was ending, SSgt RD noticed Appellant lying on the bed next to SrA FC.
SSgt RD described SrA FC as appearing “intoxicated [and] falling asleep” at
that point, but not “completely asleep.” SSgt RD briefly made eye contact with
Appellant, who was awake but also appeared “drunk” and “about to fall
asleep.” SSgt RD “didn’t think much of it” when he saw Appellant on the bed.
    SrA FC testified that when she awoke, her pants were lowered to around
her thighs. Appellant was lying behind her with his penis inside her and his
hand on her hip. SrA FC initially “froze.” As she lay immobile, Appellant
“thrusted a few times” and kissed her on the shoulder. When SrA FC moved
slightly, Appellant withdrew and moved away from her on the bed. When eve-
rything was “still,” SrA FC arose, pulled her pants up, and looked back at Ap-
pellant, who was lying on the bed with his eyes closed. SrA FC went downstairs
with her phone and sent a text message to a friend. Shortly thereafter, Appel-
lant came downstairs and said to SrA FC, “Man, last night was crazy.” SrA FC
went out to her car to speak with her friend, who she informed of the sexual
assault. SrA FC then went to a hospital and underwent a sexual assault foren-
sic examination later that day. Subsequent analysis of evidence collected dur-
ing the exam disclosed the presence of semen on vaginal, cervical, rectal, and
external genital swabs. DNA testing of the cervical and rectal swabs matched
Appellant’s DNA profile.
    Appellant was charged with a single specification of sexual assault by caus-
ing bodily harm. Before trial, the Defense filed a motion pursuant to Mil. R.
Evid. 412(c) regarding its intent to offer evidence of, inter alia, SrA FC’s be-
havior during the Jenga game. Trial defense counsel contended such evidence
was admissible under Mil. R. Evid. 412(b)(1)(B) as evidence of sexual behavior
by the alleged victim which Appellant offered to prove consent, as well as under
Mil. R. Evid. 412(b)(1)(C) as evidence the exclusion of which would violate Ap-
pellant’s constitutional rights. Specifically, the trial defense counsel argued:
   •   The intimate nature of the Jenga game activities between Appellant
       and SrA FC “go[es] to the likelihood that she would be willing to consent
       to further sexual behavior later on in the evening.”
   •   For similar reasons, the evidence “goes to show a mistake of fact as to
       consent,” which would be relevant under both the (b)(1)(B) and (C) ex-
       ceptions to Mil. R. Evid. 412, and exclusion of the evidence mischarac-
       terizes the facts and circumstances, bolstering the conclusion there may


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                United States v. Harrington, No. ACM 39223


       be no reasonable mistake of fact, thereby depriving Appellant the abil-
       ity to put on his theory of the case.
   •   The evidence is relevant as to SrA FC’s credibility regarding her ex-
       pected testimony that she did not consent. Specifically, the evidence
       available established that neither SrA FC nor Appellant remembered
       what happened, and the defense would be prejudiced by not being able
       to argue that based on the facts and circumstances, her failure to re-
       member is not independent evidence that she did not consent.
    The Government and SrA FC (through her Special Victims’ Counsel) op-
posed the motion. After receiving evidence and argument in a closed hearing,
the military judge denied the motion in a written ruling. The military judge
permitted evidence that SrA FC and other participants played party games
that involved drinking alcohol, but did not permit references to anyone’s spe-
cific individual behavior during the games.
    The Defense sought reconsideration of this ruling multiple times as the
trial progressed. The Defense requested reconsideration after a prosecution ex-
pert witness testified that the number of sperm cells found inside SrA FC was
indicative of a full ejaculation; after a court member submitted a question as
to whether Appellant and SrA FC had engaged in consensual sexual contact
prior to the alleged offense; and after another court member submitted a ques-
tion regarding the rules for “drunk Jenga.” The military judge denied each of
these requests to modify his ruling.
    The Defense also requested reconsideration after SrA FC testified regard-
ing Appellant’s “last night was crazy” remark. Trial defense counsel argued the
Government had opened the door to the excluded evidence. Trial defense coun-
sel contended that, without further information of the facts and circumstances
of what happened the night before, the members might interpret the comment
as some sort of admission to sexual intercourse when instead Appellant may
have been referring to the risqué activities associated with the Jenga game.
Based on the judge’s ruling, at the time SrA FC testified, the members knew
only that the party included drinking games, not that the games also included
nudity and touching between Appellant and SrA FC. The military judge agreed
that trial counsel had opened the door to the Mil. R. Evid. 412 evidence, but
declined to change his ruling excluding the evidence. Instead, he gave the fol-
lowing instruction prior to the cross-examination of SrA FC:
       You may or may not have heard [SrA FC] testify about a state-
       ment that [Appellant] may or may not have made to her at [SSgt
       KW’s] house during the charged timeframe. You are to com-
       pletely disregard any and all statements you may have heard in
       that regard. This includes any and all statements [SrA FC] may
       or may not have testified that she heard [Appellant] make at

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                United States v. Harrington, No. ACM 39223


       [SSgt KW’s] house on 30 and 31 January 2016. You may not con-
       sider them for any purpose or discuss them amongst yourselves.
       You may not consider the contents of the statements, nor may
       you consider whether a statement was, in fact, made. I cannot
       give you any more specifics on this matter, and you may not
       make any inferences about why this instruction is being given.
       To the extent that any other statements of the accused came into
       evidence through other witnesses, you may consider them along
       with the other evidence in this case. In short, anything said by
       [SrA FC] during her testimony about statements by [Appellant]
       at [SSgt KW’s] house cannot be considered by you as evidence in
       this case.
    Only after giving this instruction did the military judge realize that the
Sexual Assault Nurse Examiner (SANE), a witness for the Government, had
also testified as to the “crazy night” statement SrA FC attributed to Appellant
and that a page from the SANE report offered by the defense also contained
the same language. The military judge ruled that based on his prior rulings,
he would preclude the Government from arguing “any inference from that
statement being made, to the extent that it was made by the accused” and he
would further instruct the members that “any reference that may or may not
have been made by [Appellant] to [SrA FC] that it was a ‘crazy night’ was not
in reference to the sexual act that may or may not have occurred between
them.”
    During his instructions on findings, the military judge repeated the in-
struction above to disregard the testimony of SrA FC and also included an in-
struction regarding the testimony of the SANE:
       Additionally, you may or may not have heard testimony from
       Ms. [TR] that, while conducting her forensic examination of [SrA
       FC], [SrA FC] told her that, after the alleged incident, the ac-
       cused told her that the night of 30 and 31 January 2016 was a
       “crazy night.” That statement is also summarized in Defense Ex-
       hibit Alpha, a summary which Ms. [TR] made. To the extent you
       believe the accused made that statement to [SrA FC] and to the
       extent you believe that [SrA FC] subsequently and accurately
       relayed that statement to Ms. [TR], and that Ms. [TR] accurately
       summarized that statement, you shall not infer that the state-
       ment “it was a crazy night” was in any way referring to the sex-
       ual act alleged, and you shall not infer that it was referring in
       any way to any consensual or nonconsensual sexual contact with
       [SrA FC].



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                 United States v. Harrington, No. ACM 39223


                                 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)
(citation omitted). “A military judge abuses his discretion when: (1) the find-
ings of fact upon which he predicates his ruling are not supported by the record;
(2) if incorrect legal principles were used; or (3) if his application of the correct
legal principles to the facts was clearly unreasonable.” United States v. Ellis,
68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198,
199 (C.A.A.F. 2008)). The application of Mil. R. Evid. 412 to proffered evidence
is a legal issue that appellate courts review de novo. United States v. Roberts,
69 M.J. 23, 27 (C.A.A.F. 2010).
    Mil. R. Evid. 412 provides that in any proceeding involving an alleged sex-
ual offense, evidence offered to prove the alleged victim engaged in other sexual
behavior or has a sexual predisposition is generally inadmissible, with three
limited exceptions, the second and third of which are pertinent to this case.
The burden is on the defense to overcome the general rule of exclusion by
demonstrating an exception applies. United States v. Carter, 47 M.J. 395, 396
(C.A.A.F. 1998).
    The second exception under Mil. R. Evid. 412 includes “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 . . . .”
Mil. R. Evid. 412(b)(1)(B). Evidence that fits this exception may nevertheless
be excluded if the probative value of the evidence is outweighed by the danger
of unfair prejudice to the alleged victim’s privacy. Mil. R. Evid. 412(c)(3). In
addition, like other evidence, evidence otherwise admissible under Mil. R.
Evid. 412(b)(1)(B) may be excluded “if its probative value is substantially out-
weighed by a danger of . . . unfair prejudice, confusing the issues, misleading
the members, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Mil. R. Evid. 403. Where a military judge conducts a proper balanc-
ing test under Mil. R. Evid. 403, an appellate court will not overturn the ruling
absent a clear abuse of discretion. United States v. Ediger, 68 M.J. 243, 248
(C.A.A.F. 2010) (quoting United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F.
1998)).
    The third exception under Mil. R. Evid. 412 provides that the evidence is
admissible if its exclusion “would violate the constitutional rights of the ac-
cused.” Mil. R. Evid. 412(b)(1)(C). Generally, evidence of other sexual behavior
by an alleged victim is constitutionally 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 evidence outweighs the dangers of unfair prejudice.”


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                 United States v. Harrington, No. ACM 39223


United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (citation omitted).
Relevant evidence is evidence that has any tendency to make the existence of
any fact of consequence to determining 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 importance of the issue for which the evi-
dence 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 per-
taining to th[at] issue.” Ellerbrock, 70 M.J. at 318 (alteration in original) (cita-
tions omitted) (internal quotation marks omitted). The dangers of unfair prej-
udice to be considered “include concerns about ‘harassment, prejudice, confu-
sion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.’” Id. (citation omitted) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)).
B. Analysis
   Appellant contends the military judge abused his discretion by excluding
evidence the Defense sought to admit under two exceptions to Mil. R. Evid.
412’s general rule of exclusion. We conclude that the military judge’s reasoning
was flawed and his decision to exclude the evidence was an abuse of discretion.
We further find the error was not harmless beyond a reasonable doubt.
   1. “Sexual Behavior”
    The military judge began his analysis by finding the evidence of SrA FC’s
actions during the Jenga game qualified as evidence of “sexual behavior” or
“sexual predisposition” for purposes of Mil. R. Evid. 412(a). Because the behav-
ior in question may have had a “sexual connotation for the factfinder,” we
agree. See Manual for Courts-Martial, United States (2016 ed.) (MCM), App.
22, at A22–42 (explaining that Mil. R. Evid. 412(a) is intended to “exclude evi-
dence that does not directly refer to sexual activities or thoughts but that the
accused believes may have a sexual connotation for the factfinder”). Therefore,
the evidence was inadmissible unless an exception applied.
   2. Mil. R. Evid. 412(b)(1)(B): Behavior by the Alleged Victim with
   Respect to the Accused Offered to Prove Consent
    The military judge then found this evidence did not meet the exception for
specific instances of sexual behavior by the alleged victim with respect to Ap-
pellant offered to prove consent under Mil. R. Evid. 412(b)(1)(B). He reasoned
that SrA FC was “merely playing a party game similar to truth or dare” ac-
cording to its rules, and her actions “were not sexual advances towards [Appel-
lant].” We find this analysis flawed. To meet criteria for admissibility under
Mil. R. Evid. 412(b)(1)(B), evidence of the alleged victim’s behavior must be
“with respect to” the accused and offered to prove consent or mistake of fact as
to consent. See United States v. Gordon, 2007 CCA LEXIS 415 (N.M. Ct. Crim.


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                 United States v. Harrington, No. ACM 39223


App. 27 Sep. 2007), rev. denied, 2008 CAAF LEXIS 939 (C.A.A.F. 12 Jun. 2008).
We find the behavior in question was sufficiently “with respect to” Appellant
to meet the exception. True, SrA FC was playing a game according to its rules;
however, it was a sexually provocative game that SrA FC voluntarily partici-
pated in generally, but she specifically permitted Appellant to drink alcohol
from sexually suggestive parts of her body. This was sexual behavior between
SrA FC and Appellant. For the exception to be satisfied there is no requirement
that evidence offered under Mil. R. Evid. 412(b)(1)(B) must amount to a “sexual
advance” by an alleged victim. The Defense offered this evidence in order to
prove consent or mistake of fact as to consent. The theory of the case presented
by trial defense counsel was that SrA FC and Appellant “had consensual sex
while they were both blacked out” at some point between the end of the party
and when SrA FC awoke the following morning, and that SrA FC’s testimony
regarding Appellant penetrating her as she awoke reflected a faulty recon-
structed memory. Accordingly, we find the offered evidence met the Mil. R.
Evid. 412(b)(1)(B) exception.
    The military judge further found evidence of SrA FC’s behavior during the
Jenga game “not logically relevant to whether she consented to vaginal inter-
course with [Appellant] later that evening.” We agree with the military judge
that evidence meeting an exception under Mil. R. Evid. 412(b) must also be
relevant to be admissible. See Mil. R. Evid. 402(b) (“Irrelevant evidence is not
admissible.”); 412(c)(3) (stating evidence meeting a Mil. R. Evid. 412(b) excep-
tion may be admissible if, inter alia, it is “relevant” for such a purpose). Yet
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). We conclude SrA
FC’s willingness to remove her pants and in particular to permit Appellant to
drink alcohol from her mouth, breasts, and buttocks has some tendency to lead
the court members to find she may also have consented to engage in sexual
intercourse with Appellant later that night, or that Appellant may have be-
lieved she would consent. Although we agree with the military judge that these
prior activities do not by themselves constitute consent to sexual intercourse,
see Article 120(g)(8)(A), UCMJ, 10 U.S.C. § 920(g)(8)(A), that is not the test for
relevance. It is enough that the evidence had a tendency to support the De-
fense’s case.
   The military judge’s analysis did not end there. Assuming arguendo the
evidence was relevant to whether SrA FC consented to vaginal intercourse, the
military judge found its probative value was “substantially outweighed by the




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                  United States v. Harrington, No. ACM 39223


danger of unfair prejudice to the trial process.” 2 See Mil. R. Evid. 403. The mil-
itary judge explained the risk was “the old [unfair] argument” that Mil. R.
Evid. 412 was designed to prevent, that “simply because of [SrA FC’s] actions
during the Jenga game, she must have wanted to engage in sexual acts with
[Appellant] that night.”
    We find the military judge erred in his application of Mil. R. Evid. 403. The
military judge failed to fully appreciate the relevance and materiality of this
evidence to the Defense’s case. Though he assumed relevance on the issue of
consent in weighing the probative value, his analysis omitted any considera-
tion of the probative value that Appellant could have had the mistaken belief
that she consented. The excluded evidence of the sexual behavior between SrA
FC and Appellant prior to the sexual assault precluded the Defense from es-
tablishing evidence that SrA FC may have consented to sexual intercourse,
and that Appellant may have reasonably believed SrA FC did so.
    The events taking place after the military judge’s ruling further highlight
the error. The court members’ specific questions about whether there were any
prior sexual interactions between Appellant and SrA FC and about what hap-
pened during the Jenga game underscore the significance of the excluded evi-
dence. Their questions were not surprising given how interwoven the Jenga
game was into the evening’s events. The efforts to resolve SrA FC’s “crazy
night” comment serve as another example of the potential significance of this
evidence. Yet, when both parties indicated they would potentially recall wit-
nesses to provide previously prohibited facts and circumstances to provide con-
text to the “crazy night” statement, the military judge stood by his original
determination as to the limited probative value of the evidence and supple-
mented his Mil. R. Evid. 403 analysis to say “. . . just to go into this issue that
the court has already ruled has marginal benefit to either prove consent, or to
prove anything else for that matter other than sexual predisposition or sexual
behavior. . . . it would be time consuming, and also a waste of time, under the
analysis of 403, for that to happen on a matter that the court has already ruled
has limited probative value.”
    Without this evidence, the Defense was left with little more than specula-
tion based on generalized expert testimony regarding memory and the effects

2 Significantly, the military judge did not base his prejudice analysis on “the danger of
unfair prejudice to the alleged victim’s privacy.” Mil. R. Evid. 412(c)(3). In part, this
appears to be because the military judge was reluctant to invoke the victim’s privacy
interest as a countervailing interest to be weighed in light of United States v. Gaddis,
70 M.J. 248, 256 (C.A.A.F. 2011), although Gaddis dealt specifically with the “consti-
tutionally required exception” of Mil. R. Evid. 412(b)(1)(C) rather than Mil. R. Evid.
412(b)(1)(B). Instead, the military judge focused on the prejudice to the truth-seeking
purpose of the trial process itself.


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                 United States v. Harrington, No. ACM 39223


of alcohol with which to counter SrA FC’s testimony at trial that Appellant
penetrated her while she was asleep. Again, SrA FC’s behavior during the
game did not need to independently prove consent to sexual intercourse in or-
der to be relevant, material, and important to the Defense’s case. Moreover,
the absence of the evidence forced the Defense to offer only an incomplete pic-
ture of the events leading up to the charged sexual assault.
   Accordingly, we find the military judge’s conclusion that the risk of unfair
prejudice “substantially outweighed” the probative value of this otherwise ad-
missible evidence to be a clear abuse of discretion. See Ediger, 68 M.J. at 248.
   3. Mil. R. Evid. 412(b)(1)(C): Constitutionally Required Evidence
    Our analysis of the application of the “constitutionally required” exception
under Mil. R. Evid. 412(b)(1)(C) follows a similar track. Generally, evidence of
the alleged victim’s prior sexual behavior or predisposition must be admitted
when it “is relevant, material, and the probative value of the evidence out-
weighs the dangers of unfair prejudice.” Ellerbrock, 70 M.J. at 318 (citation
omitted). For the reasons stated above, we find the evidence was relevant to
the questions of whether SrA FC consented to sexual intercourse with Appel-
lant or whether Appellant may have reasonably believed she consented. Simi-
larly, we find the evidence was material. In this case, the evidence was offered
on the critical disputed issue of whether SrA FC consented to sexual inter-
course with Appellant, and no other evidence fulfilled the same purpose for the
Defense.
    With respect to the “dangers of unfair prejudice,” we acknowledge the
standard for admissibility articulated in Ellerbrock is more demanding than
that imposed by Mil. R. Evid. 403. Specifically, the probative value must out-
weigh the dangers of unfair prejudice, rather than simply not be “substantially
outweighed” by such dangers as under Mil. R. Evid. 403. To be clear, we do not
take lightly the purpose Mil. R. Evid. 412 serves. We agree with the military
judge’s assessment that it would have been improper for the Defense to argue
that “simply because of [SrA FC’s] actions during the Jenga game, she must
have wanted to engage in sexual acts with [Appellant] that night.” We disagree
with his failure to consider the probative value of SrA FC’s actions on whether
Appellant could have reasonably, but mistakenly, believed that she consented.
In conducting such an analysis, the military judge could have curbed the coun-
tervailing Mil. R. Evid. 412 concern that the court members would misapply
this evidence with an appropriate limiting instruction.
    Nevertheless, for the reasons articulated above, we find the probative value
of the evidence outweighed such dangers. The materiality of the evidence to
the Defense’s case coupled with the availability of limiting instructions to guide
the court members’ deliberations required the admission of the evidence in this


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                 United States v. Harrington, No. ACM 39223


case. Accordingly, we conclude the evidence of SrA FC’s behavior during the
Jenga game was admissible under Mil. R. Evid. 412(b)(1)(C) exceptions, and
the military judge abused his discretion by excluding it.
   4. Harmless Error Analysis
    Having concluded the military judge erred in excluding the evidence, we
must test that error for prejudice. Where the proffered evidence was constitu-
tionally required and admissible under Mil. R. Evid. 412(b)(1)(C), we test for
prejudice by determining whether the error was harmless beyond a reasonable
doubt. Ellerbrock, 70 M.J. at 318. In other words, we must assess whether
there is a “reasonable possibility” the error “might have contributed to the con-
viction.” Id. We find there was such a possibility.
    The Government’s case, although solid, was not overwhelming. The Gov-
ernment introduced compelling evidence of sexual intercourse, but its proof
that SrA FC did not consent hinged primarily on her testimony. The Govern-
ment introduced no incriminating statements by Appellant, other than SrA
FC’s testimony regarding Appellant’s arguably prejudicial “crazy night” com-
ment, which the military judge instructed the court members not to consider.
The excluded evidence was relevant and material to the Defense’s contention
that Appellant and SrA FC may have engaged in consensual intercourse, and
that SrA FC’s trial testimony was based on a faulty reconstructed memory re-
sulting from an alcohol-induced blackout. In particular, the court members’
questions suggested they believed evidence of prior sexual contact between SrA
FC and Appellant and of SrA FC’s behavior during “drunk Jenga” would have
been significant. We cannot say there was no “reasonable possibility” that the
excluded evidence of sexual behavior earlier in the evening might have affected
the court members’ findings.
   Accordingly, because of our holdings that the military judge erred in ex-
cluding the evidence under both Mil. R. Evid. 412(b)(1)(B) and b(1)(C) we can-
not sustain Appellant’s conviction.

                               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.


JOHNSON, Senior Judge (dissenting)
    I concur with my colleagues that the proffered evidence met the exception
for sexual behavior by an alleged victim with respect to the accused and offered
to prove consent under Military Rule of Evidence (Mil. R. Evid.) 412(b)(1)(B),
and that the military judge erred in finding otherwise. Likewise, I agree the


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                 United States v. Harrington, No. ACM 39223


evidence met the low threshold for relevance under Mil. R. Evid. 401(a). How-
ever, because I cannot say the military judge’s determination that the dangers
of unfair prejudice substantially outweighed the probative value under Mil. R.
Evid. 403 was a clear abuse of discretion, I respectfully dissent.
    In my view, our decision in this case would turn on the standard of review.
The relevant question is not whether the judges of the appellate court would
have made the same ruling the trial judge did. Rather, we examine whether
the military judge abused the discretion entrusted to him. “The abuse of dis-
cretion standard is a strict one, calling for more than a mere difference of opin-
ion. 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) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)); United
States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987). In particular, as the majority
notes, where a military judge articulates a proper balancing test under Mil. R.
Evid. 403, an appellate court will not overturn the ruling absent a “clear” abuse
of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010) (quoting
United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F. 1998)).
    In this case, the military judge explained his Mil. R. Evid. 403 analysis in
his written ruling. For purposes of the test, he assumed the proffered evidence
had relevance. Nevertheless, he could reasonably conclude the probative value
was low. Permitting someone to drink alcohol off one’s body as part of a risqué
drinking game in the presence of co-workers and friends is a far cry from con-
senting to sexual intercourse. In addition, the evidence tended to show Appel-
lant was focusing his attention on SrA FC rather than vice versa, and was
therefore more probative of Appellant’s intent than SrA FC’s. Furthermore,
the evidence was that SrA FC became intoxicated to the point of being physi-
cally ill and was put to bed. SrA FC testified that when she awoke, Appellant
had already penetrated her as she slept. As the military judge instructed the
court members, a sleeping or unconscious person is not competent to consent
to sexual activity. See Article 120(g)(8)(B), Uniform Code of Military Justice,
10 U.S.C. § 920(g)(8)(B).
    “[T]he abuse of discretion standard of review recognizes that a judge has a
range of choices and will not be reversed so long as the decision remains within
that range.” United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citation
omitted). The military judge concluded the probative value of the excluded ev-
idence was low. For the reasons stated above, I believe that conclusion was
reasonable and within the range of choices available to the military judge. At
the same time, the military judge’s concern that the court members might mis-
apply this evidence to conclude that SrA FC’s consent to Appellant’s actions
during the Jenga game implied consent to sexual intercourse hours later was
not arbitrary, fanciful, or clearly unreasonable. See McElhaney, 54 M.J. at 130.


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                 United States v. Harrington, No. ACM 39223


Therefore, I would hold the military judge did not abuse his discretion in ex-
cluding the evidence under Mil. R. Evid. 403 with respect to the Mil. R. Evid.
412(b)(1)(B) exception. Furthermore if, as the military judge concluded, the
danger of unfair prejudice substantially outweighed the probative value of the
evidence, the evidence would also necessarily fail to meet the “constitutionally
required” exception of Mil. R. Evid. 412(b)(1)(C). See United States v. Eller-
brock, 70 M.J. 314, 318 (citation omitted) (stating evidence is constitutionally
required if it is “relevant, material, and the probative value of the evidence
outweighs the dangers of unfair prejudice”).
    Regarding the Defense’s request for reconsideration, I concede the military
judge’s handling of the court member instructions regarding Appellant’s “crazy
night” remark was awkward. Nevertheless, court members are presumed to
follow the military judge’s instructions absent evidence to the contrary. United
States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012) (quoting United States v. Tay-
lor, 53 M.J. 195, 198 (C.A.A.F. 2000)). Ultimately, the military judge instructed
the members to completely disregard SrA FC’s testimony regarding Appel-
lant’s statement, and not to consider the Sexual Assault Nurse Examiner’s tes-
timony regarding it as referring to the charged offense or any consensual or
nonconsensual sexual contact between Appellant and SrA FC. I do not find any
evidence the members failed to follow this instruction, and therefore I would
presume the members did not draw the unfair inference that this remark was
a reference to sexual intercourse, which was the basis for the Defense’s claim
that the Government had opened the door.
   Accordingly, I would affirm the findings and sentence.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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