              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                        JIM D. VILLANUEVA
          SHIP'S SERVICEMAN SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201400212
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 14 February 2014.
Military Judge: CAPT B.L. Payton-O’Brien, JAGC, USN.
Convening Authority: Commander, Naval Medical Center, San
Diego, CA.
Staff Judge Advocate's Recommendation: CDR K.M. Messer,
JAGC, USN.
For Appellant: LT Jessica L. Ford, JAGC, USN.
For Appellee: LT Ian D. MacLean, JAGC, USN; Capt Matthew
Harris, USMC.

                             19 March 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

HOLIFIELD, Judge:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of forcible sodomy in violation of Article 125, Uniform
Code of Military Justice, 10 U.S.C. §925. 1 The members sentenced

1
  The appellant was acquitted of a second specification of forcible sodomy
involving a different alleged victim on an occasion several years earlier.
the appellant to one year of confinement and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged. 2
      The appellant raises four assignments of error (AOE):
      (1) that the evidence is legally and factually
      insufficient to support his conviction;
      (2) that the military judge erred in excluding
      evidence under MILITARY RULE OF EVIDENCE 412, MANUAL FOR
      COURTS-MARTIAL, UNITED STATES (2012 ed.);
      (3) that the CA was subject to unlawful command
      influence in his decision to refer the charges to
      court-martial; and
      (4) that the military judge improperly denied a
      challenge for cause against a member.
     After careful consideration of the record of trial, the
appellant’s AOEs, and the submissions of the parties, we find
merit in the appellant’s second AOE. We address the remedy in
our decretal paragraph. This corrective action moots the
appellant's fourth AOE. The remaining assignments of error
raised by the appellant merit neither relief nor further
analysis. United States v. Clifton, 35 M.J. 79, 81 (C.M.A.
1992) (citing United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987).

                                 Background

     The appellant and the complaining witness, Hospitalman (HN)
P, both males, were stationed at Naval Station, Guantanamo Bay
in late 2011. The appellant expressed a romantic interest in HN
P to a mutual friend, Missile Technician Second Class (MT2) W,
who responded by informing the appellant that HN P was not
homosexual. During a separate conversation, MT2 W told HN P of
the appellant’s interest. HN P indicated he did not share the
interest, but was willing to meet the appellant, as the
appellant was well-known for his extravagant parties.
Approximately one week later, HN P was invited to join the

2
  On 29 January 2015, the court released an opinion in which we set aside the
findings and sentence and returned the record of trial to the Judge Advocate
General for remand to an appropriate CA with a rehearing authorized. By
Order dated 27 February 2015, the court determined that it would sua sponte
reconsider its 29 January 2015 opinion. The court’s 29 January 2015 opinion
is hereby withdrawn and replaced with this opinion, reaching the same
conclusion but clarifying the reasoning supporting it.
                                      2
appellant and Master-at-Arms Second Class (MA2) R at their table
in the chow hall. During this initial conversation with the
appellant and MA2 R, HN P described things he had done while
drunk, including placing his penis in another man’s hand during
a penis measuring contest.

     Later that night, the appellant, HN P, MA2 R and a group of
others met for a barbecue at a block of trailers used as
barracks. Shortly thereafter, they proceeded to an on-base bar,
where they consumed various alcoholic beverages until the bar
closed. HN P then invited the group back to his trailer to
continue drinking. At the time they arrived at the trailer, HN
P had consumed less than one drink per hour throughout the
evening. He would have at least five more drinks in the next 90
minutes.
     While outside HN P’s trailer, the appellant and HN P
conversed with each other as the others in the party slowly
departed. HN P’s last memory of the party involves taking off
his shirt to show the appellant his tattoos. His next
recollection is a brief moment of lucidity when he realized the
appellant was attempting to anally penetrate him as he lay in
his trailer. Although he recalls being in pain, he does not
remember saying anything. He also has a brief memory of the
appellant fully penetrating him and kissing him on the lips. HN
P remembers nothing else until he awoke alone the following
morning, naked and in pain. He initiated the reporting process
later that day.
     During the alleged assault, HN P’s trailer-mate, Sergeant
(Sgt) B, heard what he described as “sexual noises” coming from
HN P’s room. 3 Record at 883. Among these noises, Sgt B
testified that he heard HN P say, “Oh, baby, that feels good.”
Id. at 892.
     At trial, the Government commented on HN P’s purported
heterosexuality in both its opening statement and closing
argument. In response to the prosecution’s questioning, HN P
testified that he was not homosexual. He also testified that
MT2 W had informed the appellant of HN P’s aversion to
homosexual activity. The military judge, finding some evidence
in support a mistake-of-fact defense, provided the relevant
instruction to the members. The appellant, however, was
precluded from using the “penis measuring contest” statement to
challenge HN P’s claimed heterosexuality, either to impeach HN
P’s testimony or to challenge the Government’s argument that HN

3
    The trailers consisted of two rooms joined by a common bathroom.
                                        3
P’s known heterosexuality rendered any mistaken belief of
consent unreasonable.
          Exclusion of Evidence under MIL. R. EVID. 412

     Prior to trial, the appellant’s trial defense counsel filed
a motion to admit evidence of the statement HN P made to the
appellant and MA2 R at lunch the day before the alleged assault.
The defense argued that HN P’s statement concerning his placing
his penis in another man’s hand was constitutionally required,
in that it showed a motive to fabricate, impeached HN P’s
testimony that he was not gay, and was relevant to the
appellant’s mistake of fact as to consent. The military judge,
in a brief e-mail to counsel, issued the following ruling: “The
defense MAY ask ONE QUESTION of [HN P] as to confirm his sexual
orientation, under MRE 608(c) to demonstrate bias, prejudice or
motive to misrepresent. . . . Pursuant to MRE 412(c), the
defense MAY NOT inquire as to [HN P’s] prior act with another
male in which he exposed his penis in some sort of ‘penis
measuring’ contest.” Appellate Exhibit XXXV. No additional
findings of fact or conclusions of law are included in the
record.
     We review the military judge’s ruling on whether to exclude
evidence pursuant to MIL. R. EVID. 412 for an abuse of discretion.
United States v. Roberts, 69 M.J. 23, 26 (C.A.A.F. 2010). We
review the findings of fact under a clearly erroneous standard
and the conclusions of law de novo. Id. The abuse of
discretion standard “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. Freeman, 65 M.J. 451, 453
(C.A.A.F. 2008) (citations and internal quotation marks
omitted).
     Under MIL. R. EVID. 412, evidence offered by the accused to
show that the alleged victim engaged in other sexual behavior is
inadmissible, with three limited exceptions. The third
exception states that the evidence is admissible if “the
exclusion of [it] would violate the constitutional rights of the
accused.” MIL. R. EVID. 412(b)(1)(C). If there is a theory of
admissibility under one of the exceptions, the military judge,
before admitting the evidence, must conduct a balancing test as
outlined in MIL. R. EVID. 412(c)(3) and clarified by United States
v. Gaddis, 70 M.J. 248, 250 (C.A.A.F. 2011).
     The test is whether the evidence is “relevant, material,
and [if] the probative value of the evidence outweighs the
dangers of unfair prejudice.” United States v. Ellerbrock, 70

                                4
M.J. 314, 318 (C.A.A.F. 2011) (citation omitted). Relevant
evidence is any evidence that has “any tendency to make the
existence of any fact . . . more probable or less probable than
it would be without the evidence.” MIL. R. EVID. 401. Evidence
is material if it is “of consequence to the determination of
appellant’s guilt[.]” United States v. Dorsey, 16 M.J. 1, 6
(C.M.A. 1983) (citations and internal quotation marks omitted).
     In determining whether evidence is of consequence to
     the determination of appellant’s guilt, we consider
     the importance of the issue for which the evidence was
     offered in relation to the other issues in this case;
     the extent to which this issue is in dispute; and the
     nature of the other evidence in the case pertaining to
     the issue.
United States v. Smith, 68 M.J. 445, 448 (C.A.A.F. 2010)
(citation and internal quotation marks omitted).
     If evidence is relevant and material, it must be admitted
where its probative value outweighs the dangers of unfair
prejudice. See MIL. R. EVID. 412(c)(3). “Those dangers include
concerns about ‘harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only
marginally relevant.’” Ellerbrock, 70 M.J. at 319 (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). If the
evidence survives the inquiry, a final consideration is whether
the evidence in the record supports the inference on which the
moving party is relying. Id.
     MIL. R. EVID. 412 “is intended to protect the privacy of
victims of sexual assault while at the same time protecting the
constitutional right of an accused to a fair trial through his
right to put on a defense.” Id. at 322 (Baker, J., dissenting).
This right necessarily includes the ability to cross-examine and
to impeach or discredit a witness. The cross-examination,
however, need not be “‘in whatever way, and to whatever extent,
the defense might wish[,]’” and the military judge may limit the
scope of such cross-examination when its relevance is outweighed
by concerns of harassment, prejudice, or confusion of the
issues. Id. at 318 (quoting Van Arsdall, 475 U.S. at 679)
(additional citation omitted). “But no evidentiary rule can
deny an accused of a fair trial or all opportunities for
effective cross-examination.” Id. (citation omitted).
     Applying the above test to the facts of this case, we find
the military judge erred in excluding the statement.


                                5
Mistake of Fact as to Consent
     An alleged victim’s sexual orientation, standing alone, is
not relevant under MIL. R. EVID. 412. See United States v. Grant,
49 M.J. 295, 297 (C.A.A.F. 1998). In the present case, however,
the Government made it relevant. The Government elicited from
HN P testimony that he was not homosexual, presented evidence
that the appellant had been told that HN P “doesn’t swing that
way,” Record at 799, successfully argued for the exclusion of
all evidence that suggested otherwise, and then sought the
benefit of the resulting incomplete picture by arguing that the
appellant’s knowledge of HN P’s sexual orientation did not
support that the appellant “was reasonably mistaken somehow,”
id. at 1051. In effect, the Government used HN P’s sexual
orientation as a sword, then sought to hide behind MIL. R. EVID.
412’s shield when the appellant attempted to question the
Government’s case. Where the Government uses sexual orientation
in a way that implies the impossibility of consent, or a
reasonable mistake of fact as to consent, the defense must be
allowed to rebut that inference. To do otherwise denies the
appellant his right to mount a defense, and allows the
Government to meet its burden based on an incomplete description
of events.
Actual Consent and the Importance of Credibility
     The Government also had to prove that HP did not, in fact,
consent to the sexual act. HN P’s credibility was the key to
answering that question. HN P testified during the trial that
he “was straight.” Id. at 859. This could only have left the
members with the impression that, since HN P was not gay, he
would not have consented to the sodomy. The appellant’s
inability to confront and impeach him on this critical point
severely impacted his ability to present a defense. Compounding
the problem, the military judge’s ruling only served to further
hamstring the defense’s ability to impeach HN P’s statement that
he was not homosexual. The likely result of asking the one
question allowed by the military judge – “to confirm his sexual
orientation” - would have been only to reinforce HN P’s earlier
testimony to the members.
Not Harmless Beyond a Reasonable Doubt
     Based upon the Government’s affirmative use of HN P’s
sexual orientation to meet its burden of proof, as well as HN P
placing his sexual orientation in evidence, we find HN P’s
statement to the appellant to be relevant and material. As we
also find its probative value to outweigh the dangers of unfair

                                6
prejudice, 4 and that the appellant’s theory of admissibility is
supported by the record, the statement’s admission was
constitutionally required. We, therefore, must test whether
exclusion of this evidence was harmless beyond a reasonable
doubt. In doing so, we apply the five nonexclusive factors
developed in Van Arsdall:
      [T]he importance of the witness’ testimony in the
      prosecution’s case, whether the testimony was
      cumulative, the presence or absence of evidence
      corroborating or contradicting the testimony of the
      witness on material points, the extent of cross-
      examination otherwise permitted, and, of course, the
      overall strength of the prosecution’s case.
475 U.S. at 684 (citations omitted).
     The only evidence presented by the Government in this case
to prove what happened in HN P’s trailer on the night in
question was HN P’s testimony. HN P’s statements that he was
straight and did not consent to the sodomy were crucial to the
appellant’s conviction. The trial defense counsel was not
allowed to cross-examine HN P on his claim of heterosexuality.
While the military judge did permit the defense’s expert to
testify regarding why a victim of sexual assault may invent
facts in order to deal with behavior of which the person might
be ashamed, this theoretical discussion was clearly eclipsed by
HN P’s unchallenged, sworn testimony that he was not gay and did
not consent to the sodomy. Finally, the Government’s case was
far from overwhelming, there being little, if any, evidence to
corroborate HN P’s description of events in the trailer.
     We find that, had the military judge admitted HN P’s
statement, the members could have “received a significantly
different impression” of both HN P’s credibility and the
reasonableness of any mistaken belief held by the appellant.
Ellerbrock, 70 M.J. at 321 (citations and internal quotation
marks omitted). Furthermore, we are convinced that there is “a
reasonable possibility that the [exclusion of the evidence]
might have contributed to the conviction.” Id. (citation and

4
  While the prosecution warned of distraction and the need for a “trial within
a trial” should the statements be admitted, these concerns are unfounded.
First, the only issue relevant to the appellant’s belief as to consent was
whether and in what context the appellant heard HN P make the statement; it
does not matter on this point whether the statement was true. Second, had
the appellant been allowed to attack HN P’s credibility by challenging his
claims of heterosexuality, we do not doubt the military judge could have
fashioned proper limits on the questioning regarding HN P’s sexual
orientation.
                                      7
internal quotation marks omitted). This is particularly true
when the statement is combined with the sounds and words
overheard in the trailer that night by Sgt B. Accordingly, we
find this error was not harmless beyond a reasonable doubt.

                           Conclusion

     The findings of guilty and the sentence are set aside. The
record of trial is returned to the Judge Advocate General of the
Navy for remand to an appropriate CA with a rehearing
authorized.

     Senior Judge MCFARLANE and Judge BRUBAKER concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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