          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                Master Sergeant THOMAS J. FRY
                                     United States Air Force

                                               ACM 38687

                                            4 February 2016

         Sentence adjudged 26 June 2014 by GCM convened at Scott Air Force
         Base, Illinois. Military Judge: Lynn Watkins (arraignment) and Shaun
         Speranza.

         Approved Sentence: Bad-conduct discharge, confinement for 7 months,
         reduction to E-4, and a reprimand.

         Appellate Counsel for Appellant: Major Thomas A. Smith.

         Appellate Counsel for the United States: Captain J. Ronald Steelman III;
         Major Mary Ellen Payne; and Gerald R. Bruce, Esquire.

                                                  Before

                              MITCHELL, DUBRISKE, and BROWN
                                   Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



BROWN, Judge:

       At a general court-martial composed of officer members, Appellant was convicted,
contrary to his pleas, of three specifications of sexual assault and one specification of
abusive sexual contact, in violation of Article 120, UCMJ, 10 U.S.C. § 920. The
members sentenced Appellant to a bad-conduct discharge, confinement for seven months,
reduction to E-4, and a reprimand. The convening authority approved the sentence as
adjudged, except mandatory forfeitures were deferred until action and then waived for six
months from the date of action for the benefit of Appellant’s dependents.
       On appeal, Appellant raises two issues: (1) that it was constitutionally required
under Mil. R. Evid. 412(b)(1)(C) for the defense to introduce evidence that the victim
engaged in consensual, unrelated heterosexual sexual contact two years earlier to rebut an
implied impossibility of consent based on her homosexual orientation, and (2) that the
staff judge advocate (SJA) incorrectly relied on evidence not admitted at trial when
concluding in the staff judge advocate’s recommendation (SJAR) that the evidence was
legally sufficient. We disagree and affirm the findings and sentence.

                                      Background

       Appellant was a Master Sergeant and former section chief of Senior Airman (SrA)
DR. In 2013, they were both reassigned to Scott Air Force Base, Illinois. In October
2013, about a month after SrA DR arrived at Scott Air Force Base, Appellant invited her
to his on-base house to socialize with him and his then-pregnant wife. Appellant’s son
was also at the house.

       During the course of the evening, the group watched a movie and ate pizza.
Appellant and SrA DR drank alcohol. The pre-arranged plan was for SrA DR to sleep in
the guest bedroom. Through the course of the evening, SrA DR had approximately three
and a half drinks that consisted of a mix of vodka and an energy drink. At some point,
Appellant’s son and wife went to their bedrooms to sleep. Appellant and SrA DR stayed
up talking until approximately 0100 or 0130 when SrA DR realized that she was
intoxicated and sleepy.

        Appellant escorted SrA DR to the guest bedroom, turned off the lights, and closed
the door behind him as he left. SrA DR testified that the next thing she recalled was
waking up to Appellant on top of her having sex. SrA DR had her bra on, but one leg of
her pants was off and her underwear was pulled down on the side. SrA DR testified that,
when she awoke, she was confused and just lay there. Appellant, at some point, stopped
having sex with her and rolled off her. Appellant got on top of her a second time and
again began having sex with SrA DR. Afterward, Appellant placed his fingers into
SrA DR’s vagina. SrA DR also recalled Appellant kissing her on the lips. SrA DR
testified that she never told Appellant that she wanted to engage in sexual activity with
him and that she never wanted it to occur. These incidents resulted in the charges in this
case.

        After the incident, Appellant left the guest room. SrA DR then texted her
girlfriend, Ms. MB, and told her that she woke up to Appellant having sex with her. At
the time of the incident, SrA DR was in a romantic, same-sex relationship with Ms. MB.
SrA DR collected her belongings and left Appellant’s house in the middle of the night to
return home.




                                            2                                   ACM 38687
                        Mil. R. Evid. 412—Admissibility of Sexual Orientation

       The trial defense counsel filed a timely motion to admit evidence under Mil. R.
Evid. 412. The defense specifically sought to question SrA DR about a consensual,
heterosexual relationship two years prior to the charged offenses. The defense explained
that the purpose of these questions would be to rebut any implication by the prosecution
that SrA DR would be less likely to consent to a sexual act with a male because of her
sexual orientation. On appeal, Appellant challenges the military judge’s decision to
suppress this evidence.

       Appellant now asserts this evidence was necessary because the Government
introduced SrA DR’s sexual orientation into the trial in several ways. On two occasions,
Ms. MB was referred to as SrA DR’s girlfriend. In the opening statement, trial counsel
told the members that they would hear that, immediately after the offenses, SrA DR
texted “her girlfriend” about what happened. Later, during SrA DR’s testimony, in
response to whether she called anyone as she left Appellant’s house after the attack,
SrA DR said, “Yes, I had been texting and calling my girlfriend [Ms. MB].” There were
no additional questions, comments, or discussions about the nature of SrA DR’s
relationship with Ms. MB, or what the term “girlfriend” meant.

       In addition, the Government offered into evidence, without defense objection or
request for redaction, a photograph of SrA DR’s phone screen that displayed text
messages between SrA DR and Ms. MB shortly after the alleged incidents. At the top of
the exhibit was a concluding sentence from a prior text conversation that ended with the
phrase “choice to date a woman.” 1

        During SrA DR’s testimony, she testified that she and Ms. MB were texting each
other throughout the night and identified the exhibit as containing text messages between
her and Ms. MB. There was no testimony or discussion regarding the context of the prior
text conversation that ended with, “choice to date a woman.” At the conclusion of her
direct testimony, the Government provided this exhibit to the members for their review.

        After the exhibit was provided to the members, the defense argued that the two
references to “girlfriend” and the “choice to date a woman” text opened the door to
SrA DR’s sexual predisposition. This purportedly made it necessary for the defense to
question SrA DR about her past sexual relationships with men so as to “rebut the
presumption that . . . because she’s a lesbian she would not engage in heterosexual sexual
activity.” The defense explained the purpose of this questioning as follows:


1
  Appellant’s counsel assert that, although the line was mostly blocked, it is possible to decipher the full sentence as,
“He doesn’t understand my choice to date a woman.” From reviewing the original exhibit, this court determined
that such an interpretation, while possible, was neither clear nor easily identifiable. Regardless, this is not critical to
the court’s resolution of this issue.


                                                            3                                                ACM 38687
              The Government created a presumption by putting the
              evidence out there, by opening up—putting [SrA DR’s]
              sexuality into play in this court. Her predisposition of
              sexuality and that comes with a presumption that if she has a
              girlfriend she is a lesbian. And that presumption is correct
              and that presumption must be rebutted at some point or this
              witness is improperly bolstered.

       The military judge determined that questions regarding Ms. DR’s prior sexual
behavior with another male were inadmissible under Mil. R. Evid. 412. The military
judge concluded that the exclusion of this evidence did not violate Appellant’s
constitutional rights, that any probative value was substantially outweighed by the danger
of unfair prejudice, that the evidence was only marginally relevant, and that it would
“infuse the fact-finding process with the sexual innuendo that [Mil. R. Evid.] 412 seeks to
prevent.” In reaching this conclusion, the military judge reasoned that the use of the
word “girlfriend” did not have a sexual connotation as the term is often used to describe
platonic, non-sexual, female friendships. As to the “choice to date a woman” portion of
the text message, the military judge noted that the phrase was written by Ms. MB rather
than SrA DR, and there was no context for the members to make any assumptions about
what it meant.

        “We review the military judge’s ruling on whether to exclude evidence pursuant to
[Mil. R. Evid.] 412 for an abuse of discretion. Findings of fact are reviewed under a
clearly erroneous standard and conclusions of law are reviewed de novo.” United States
v. Ellerbrock, 70 M.J. 314, 317 (C.A.A.F. 2011) (citation 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.” Ellerbrock, 70 M.J. at 318.
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).




                                              4                                    ACM 38687
              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) (quoting Dorsey, 16 M.J. at 6)
(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. Ellerbrock, 70 M.J. at 318 (quoting Van Arsdall, 475 U.S. at
679) (internal quotation marks omitted). “But no evidentiary rule can deny an accused of
a fair trial or all opportunities for effective cross-examination.” Id.

        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 certain
situations, however, an alleged victim’s sexual orientation could become relevant and
material so that its exclusion would violate the constitutional rights of an accused. The
issue before us is whether this is such a case. We conclude it is not. The military judge
did not abuse his discretion in excluding this evidence under the facts and circumstances
of this case.

       Appellant urges this court to adopt the rationale used by the Navy-Marine Corps
Court of Criminal Appeals in United States v. Villanueva, NMCCA 201400212 (N.M. Ct.
Crim. App. 19 March 2015) (unpub. op.). There, the Navy court concluded that when the
government uses sexual orientation in a way that implies the impossibility of consent, or
the impossibility of reasonable mistake of fact as to consent, the defense must be allowed
to rebut that inference when to do otherwise would deny an accused the ability to mount a



                                              5                                     ACM 38687
defense. Id. unpub. op. at 6–7. As to this general proposition, this court does not
disagree, and such a conclusion does not constitute a novel legal concept.

        In Villanueva, a male accused was alleged to have forcibly sodomized another
male military member victim while that member was intoxicated. Id. unpub. op. at 1–2.
The victim testified at trial that he was not gay and that he had previously told the
accused he was not gay. Id. unpub. op. at 3–4. After the military judge prohibited the
defense from questioning the victim regarding statements that could be interpreted as
having some interest in homosexuality, trial counsel repeatedly relied on the victim’s
assertion that he was not gay as a reason that the victim would not have consented to
homosexual conduct. Id. Trial counsel affirmatively referenced in the opening statement
that the victim was a heterosexual, and argued that the accused could not have been
reasonably mistaken as to consent because the victim told the accused he was not gay.
Id. In this situation, the Navy court concluded that contrary information about the
victim’s sexual orientation impacted the credibility of the witness and could have
impacted whether the accused was reasonably mistaken as to consent. Id. unpub. op. at
6–7. Under the facts of that case, exclusion of this information impacted the defense’s
ability to mount a defense and rebut the inferences and arguments that the government
and the victim were affirmatively putting forward as an issue in the trial. Id.

        In this case, however, the Government did not use sexual orientation in such a
manner. Unlike Villanueva, the Government’s theory of the case did not rely in whole, or
in part, on SrA DR’s sexual orientation or the nature of the relationship between her and
Ms. MB. Trial counsel never referenced SrA DR’s sexual orientation nor argued that
SrA DR would have been less likely to consent to the sexual activity with Appellant
because of her sexual orientation or her relationship with Ms. MB. There was no proffer
from the defense that SrA DR told Appellant anything that evening about prior sexual
activity that could have reasonably contributed to a reasonable mistake of fact claim as to
consent.

       The three isolated references that Appellant clings to are not sufficient to raise
impossibility of consent based on SrA DR’s sexual orientation. The military judge was
correct in identifying that the term “girlfriend,” as used here, is often used to signify a
platonic, rather than sexually intimate, relationship. The text message that ended with
“choice to date a woman” was from Ms. MB, not SrA DR, and did not contain enough
context for the members to draw any conclusions about its meaning.

       This is not a case of the Government smuggling in veiled references of a victim’s
sexual orientation with the hope or intent that the members would rely on it in
deliberations. The Government’s theory was relatively straight forward: SrA DR and
Appellant were nothing more than friends in the context of a professional working
relationship, SrA DR did not have any interest in engaging in sexual activity with
Appellant, and SrA DR did not behave in any way toward Appellant that night that would


                                             6                                   ACM 38687
make him reasonably believe otherwise. In short, the Government neither intentionally,
nor inadvertently, used SrA DR’s sexual orientation to argue that she was less likely to
consent to sexual activity with Appellant.

       Furthermore, regardless of the intent of the prosecution, the record does not
support that the members were focused in any way on SrA DR’s sexual orientation.
Although the members asked several questions to SrA DR about her alcohol use, they
never questioned her or Ms. MB about the nature of their relationship or what
precipitated the text conversation that ended with the phrase “choice to date a woman.”
The three references relied upon by Appellant were, at most, ambiguous. If the members
believed that such ambiguous statements were critical to their resolution of the case, they
presumably would have included that line of questioning amongst the other questions
they asked the witnesses. The members’ silence speaks volumes and reinforces the
military judge’s conclusions that the members would be unlikely to draw such
conclusions from the evidence as presented.

        Even if one assumes, for the purposes of argument, that the three references were
sufficient to imply that that SrA DR and Ms. MB were in an intimate relationship, it was
still not an abuse of discretion for the military judge to exclude testimony about
SrA DR’s unrelated, heterosexual relationship two years earlier. Even if SrA DR were in
an intimate relationship, there was absolutely nothing to suggest to the members that
SrA DR and Ms. MB were in an exclusive relationship or that SrA DR was a lesbian
rather than a bi-sexual. Admittedly, if SrA DR or Ms. MB would have testified during
findings that they were in an exclusive, lesbian relationship and that, therefore, SrA DR
would never have consented to sexual activity with Appellant, the analysis would be very
different. That did not happen. Here, unlike Villanueva, the Government did not use the
victim’s sexual orientation as a sword against Appellant that he was constitutionally
entitled to rebut. The military judge correctly applied the law, and it was not an abuse of
discretion to exclude the evidence under Mil. R. Evid. 412.

                                       SJAR Error

       The SJAR advised the convening authority that the primary evidence in this case
consisted of “witness testimony, documentary and scientific evidence, photographic
evidence, and a text message between the Accused and the victim.” (Emphasis added).
The SJA then advised the convening authority that he was satisfied that the evidence used
to support the conviction was legally sufficient. The SJAR was served on the defense
and the defense did not object to the SJAR or raise any specific legal errors.

       The prosecution never offered into evidence a text message between Appellant
and the victim, as referenced in the SJAR. Consequently, such a text message could not
be a basis for the conviction. There was a text message, however, that the prosecution
did use at trial––the previously described text messages from SrA DR to Ms. MB


                                             7                                   ACM 38687
immediately following the sexual assault. It was this text message between SrA DR and
Ms. MB, where SrA DR claimed she awoke to Appellant having sex with her, that trial
counsel used at trial.

        Nevertheless, Appellant suggests this reference is more than a mere typographical
error, as there were also text messages between Appellant and SrA DR a week following
the sexual assaults. Those text messages were included in the Article 32, UCMJ, 10
U.S.C. § 832, report but not offered into evidence at trial. In those messages, SrA DR
confronted Appellant about what happened that night. In response, Appellant claimed he
had little memory of what happened that night, other than claiming that he realized
afterwards that he had mistaken SrA DR for his wife. The court reviews allegations of
improper completion of post-trial processing de novo. United States v. Kho, 54 M.J. 63,
65 (C.A.A.F. 2000). Where consideration of the sufficiency of the trial evidence of guilt
is undertaken, that consideration must be limited to the trial evidence. United States v.
Drayton, 40 M.J. 447, 451 (C.M.A. 1994). If defense counsel does not make a timely
comment on an error or omission in the SJA’s recommendation, that error is waived
unless it is prejudicial under a plain error analysis. United States v. Scalo, 60 M.J. 435,
436 (C.A.A.F. 2005). To avoid waiver based upon plain error, the appellant must
demonstrate three things: “(1) There was an error; (2) it was plain or obvious, and (3) the
error materially prejudiced a substantial right.” Id. (quoting Kho, 54 M.J. at 65).

       “Because of the highly discretionary nature of the convening authority’s clemency
power, the threshold for showing [post-trial] prejudice is low.” United States v. Lee, 52
M.J. 51, 53 (C.A.A.F. 1999). Only a colorable showing of possible prejudice is
necessary. Id. Nevertheless, an error in the SJAR “does not result in an automatic return
by the appellate court of the case to the convening authority.” United States v. Green, 44
M.J. 93, 95 (C.A.A.F. 1996). “Instead, an appellate court may determine if the accused
has been prejudiced by testing whether the alleged error has any merit and would have
led to a favorable recommendation by the SJA or corrective action by the convening
authority.” Id.

       Neither in the clemency submission, nor in Appellant’s assignment of errors to
this court, does he attack the legal sufficiency of his conviction. Appellant’s only request
in clemency was a reduction in confinement to allow him to return home to his family. 2
Although the convening authority elected not to reduce Appellant’s confinement, there is
nothing to suggest that the text message between Appellant and SrA DR would have had
any bearing on that decision. The SJAR did not recite the contents of that text message––
or describe any of the evidence––in detail. Even if the convening authority would have
affirmatively sought out the referenced email in the record of trial, it would have
provided no additional basis to question the legal sufficiency of the conviction. It would
also have provided no additional basis to either grant or deny Appellant’s request for a

2
    Automatic forfeitures were both deferred until action and waived for six months from the date of action.


                                                            8                                             ACM 38687
reduction in confinement. Appellant, in that text message, merely repeated his claims
that he had little to no recollection of what occurred that night.

        Under the facts of this case, we find that Appellant forfeited this issue by failing to
raise the error in clemency, and the error, regardless of whether it was plain and obvious,
did not materially prejudice a substantial right of Appellant.

                                 Promulgating Order Error

        Although not raised by the parties, we note the report of result of trial
memorandum attached to the SJAR is erroneous in that it incorrectly states that Appellant
pleaded not guilty to Specification 3 of the Charge. Appellant instead deferred entry of
pleas prior to the military judge dismissing the specification as a lesser-included offense
of another charged offense. This was error. See R.C.M. 1106(d)(3); Air Force
Instruction (AFI) 51-201, Administration of Military Justice, ¶ 9.2.1 (6 June 2013).
Additionally, the initial court-martial promulgating order (CMO) contained the same
error. See R.C.M. 1114(c)(1); AFI 51-201, ¶ 10.8.2.2. Although we find Appellant is not
entitled to additional post-trial processing given he suffered no material prejudice from
the error, we direct completion of a corrected CMO to properly reflect that Appellant did
not enter a plea to Specification 3 of the Charge.

                                         Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



               FOR THE COURT


               LAQUITTA J. SMITH
               Appellate Paralegal Specialist




                                                9                                   ACM 38687
10   ACM 38687
