                        UNITED STATES, Appellee

                                     v.

             David C. ELLERBROCK, Private First Class
                       U.S. Army, Appellant

                               No. 10-0483
                        Crim. App. No. 20070925

       United States Court of Appeals for the Armed Forces

                        Argued January 25, 2011

                        Decided August 31, 2011

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER, J., filed a dissenting
opinion. RYAN, J., filed a dissenting opinion.


                                  Counsel


For Appellant: Captain Barbara A. Snow-Martone (argued);
Colonel Mark Tellitocci, Lieutenant Colonel Imogene M. Jamison,
Lieutenant Colonel Jonathan F. Potter, and Major Peter Kageleiry
(on brief); Captain Shay Stanford and Captain Sarah E. Wolf.


For Appellee: Captain Frank E. Kostik Jr. (argued); Major
Christopher B. Burgess and Major LaJohnne A. White (on brief);
Captain Christopher B. Witwer.


Military Judges:    Tara A. Osborn and Donna M. Wright


        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ellerbrock, No. 10-0483/AR


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether the military judge

erred in applying Military Rule of Evidence (M.R.E.) 412 to

prevent Appellant from introducing evidence of the alleged

victim’s first marital affair to show a motive to fabricate the

accusation against Appellant.1   We hold that the evidence was

constitutionally required, that the military judge abused her

discretion by refusing to admit the evidence, and that it was

not harmless beyond a reasonable doubt.

                                 I.

                                 A.

     In accordance with his pleas, Appellant was found guilty of

conspiracy, destruction of military property, larceny of

military property, larceny, and housebreaking in violation of

Articles 81, 108, 121, and 130, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 881, 908, 921, 930 (2006).   Contrary to his

pleas, Appellant was found guilty of rape and sodomy by force in

violation of Articles 120, 125, UCMJ, 10 U.S.C. §§ 920, 925

(2006).   This appeal is limited to the latter charges.

Appellant was sentenced to a dishonorable discharge, twenty-five

years of confinement, forfeiture of all pay and allowances, and


1
  We also granted review of the constitutionality of M.R.E.
412(c)(3), an issue this Court addressed in United States v.
Gaddis, No. 10-0512, 2011 CAAF LEXIS 669, 2011 WL 3518169
(C.A.A.F. Aug. 10, 2011).

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United States v. Ellerbrock, No. 10-0483/AR


reduction to the lowest enlisted grade.      The convening authority

approved the sentence, and the United States Army Court of

Criminal Appeals (CCA) affirmed.       United States v. Ellerbrock,

No. ARMY 20070925, 2010 CCA LEXIS 32, at *16, 2010 WL 3931488,

at *5 (A. Ct. Crim. App. Mar. 26, 2010).

                                 B.

      On April 10, 2007, the victim, CL, was spending time with a

family friend, Specialist (SPC) Jackson.      CL’s husband had just

deployed, and her husband had asked SPC Jackson to look after

CL.   At 8:30 p.m., CL put her child to bed, and at around 9:00,

she began to drink and ultimately consumed about a third of a

pint of gin, which is three to four shots.      After SPC Jackson

decided to go home, CL testified that she took 2.5 milligrams of

Xanax2 to help her sleep.   She had also taken .75 milligrams of

Effexor3 earlier in the day.

      Shortly thereafter, CL’s friend, Ms. Vantrease, called and

said that she was coming over.   She brought with her Mr. Page

and Appellant; SPC Jackson also stayed.      CL had met Appellant

earlier in the year when Ms. Vantrease introduced them to one

another.


2
  According to the toxicologist’s testimony, Xanax is prescribed
for anxiety disorders. As the expert explained, Xanax affects
on neurotransmitters in the brain to increase sedation.
3
  According to the toxicologist’s testimony, Effexor affects the
neurotransmitters in the brain to combat anxiety and depression.
Mild sedation is also a possible side effect.

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United States v. Ellerbrock, No. 10-0483/AR


     After her friends arrived, CL drank two hard lemonades.        As

the CCA noted, there was conflicting testimony about whether CL

had also snorted lines of Xanax, but, by 11:00 p.m., CL was “‘a

little louder than usual, kind of stumbling, but other than

that, fine . . . maybe slightly intoxicated.’”      Ellerbrock, 2010

CCA LEXIS 32, at *2-*3, 2010 WL 3931488, at *1.

     Sometime after 11:00 p.m., SPC Jackson and Ms. Vantrease

went to the shoppette.   Mr. Page, Appellant, and CL remained in

the house, but Mr. Page soon left to sit in his car and await

the return of SPC Jackson and Ms. Vantrease.      When Mr. Page

left, he stated that CL did not look drunk, passed out, blacked

out, or otherwise incapacitated.       By contrast, Ms. Vantrease

testified that, before she left for the shoppette, CL was passed

out in the bathroom.   SPC Jackson testified that, before he left

with Ms. Vantrease, CL was either on the couch or the bathroom

floor, but he could not remember which.

     Approximately thirty minutes passed while Mr. Page sat in

his car awaiting the return of SPC Jackson and Ms. Vantrease.

When they returned, Ms. Vantrease went to find CL in the

apartment, while SPC Jackson and Mr. Page stayed outside.      In

less than a minute, Ms. Vantrease returned and told Mr. Page and

SPC Jackson that she had heard sexual noises coming from the

bedroom.   Mr. Page’s testimony contradicted Ms. Vantrease’s

testimony on this point, as he claimed that she told them that


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United States v. Ellerbrock, No. 10-0483/AR


CL was passed out in the bathroom when she went to check on her.

When the three went inside, they heard sexual noises, which were

described as the bed squeaking and people moaning.

     Ms. Vantrease opened the bedroom door and turned on the

lights, revealing Appellant having sex with CL.   The testimony

from the witnesses regarding CL’s mental awareness ranged from

SPC Jackson’s testimony that he saw her flinch to Mr. Page’s

testimony that he saw no movement from CL and believed she had

no control over her mental or physical faculties.    A

toxicologist testified that CL likely “exhibit[ed] anywhere from

minimal effects of sedation . . . to being precomatose,” all of

which was dependent on numerous factors, few of which are

discussed in the evidence.

     Someone told Appellant to get off CL.    Appellant allegedly

responded by telling the group to leave because he was “almost

done.”   The three witnesses left the room and the apartment.

When CL finally spoke with SPC Jackson the next morning, she

said that she remembered having sex with Appellant and said

something to the effect of, “I can’t believe I did that” and “I

fe[el] horrible.”

                                II.

     At trial, Appellant moved under M.R.E. 412 to introduce

testimony that CL had engaged in a prior extramarital affair to

support his theory that CL had a motive to lie about the


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United States v. Ellerbrock, No. 10-0483/AR


consensual nature of the sex with him, which was to protect her

marriage.   The military judge considered the following evidence

in making her decision.

                                A.

     At the time of the alleged rape, CL had been married to her

husband for approximately three years, but they had known each

other for five years before they married.   Approximately six

months into the marriage, CL was living with a female roommate

in Jacksonville, Florida, while her husband was stationed at

Fort Stewart.   At some point, a man ended up living in the

apartment with them.   After a month of living with the man, CL

had an affair with him that lasted for three months.   After

ending the affair out of guilt, she told her husband about it.

     When CL’s husband learned of his wife’s affair, he kicked

down the door of the former paramour.   CL’s husband testified

that although he had not told anyone what he would do if his

wife had another affair, “a lot of people that know me know that

I’m hot tempered.”   Despite the fact of the first affair, CL

testified that it tended to make their marriage stronger, and

her husband testified that the marriage was “all good.”    At the

time of trial, they also had a two-year-old child.

                                B.

     The military judge ruled that the proffered evidence was

inadmissible under M.R.E. 412 and determined that it was


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United States v. Ellerbrock, No. 10-0483/AR


marginally relevant to show that CL had a motive to lie.      In

particular, the military judge concluded that the evidence of

the previous affair was stale because it had occurred two and

one-half years earlier.   She further determined that CL had no

reason to believe that a second affair would have led to a

divorce, because CL’s marriage was stronger after the first

affair, and the couple now had a child.    She stated that it was

speculative to conclude that a second affair would have resulted

in a divorce.

     Furthermore, the military judge concluded that the

probative value of the evidence did not outweigh its dangers to

CL’s privacy interests.   She also determined that under M.R.E.

403, the dangers of unfair prejudice -- waste of time and

confusion of the issues -- substantially outweighed the

probative value of this evidence.    For these reasons, the

military judge concluded that the evidence was not

constitutionally required.

     The CCA held that the military judge did not abuse her

discretion in excluding the evidence.   Ellerbrock, 2010 CCA

LEXIS 32, at *9, 2010 WL 3931488, at *3.   The CCA further held

that even if the military judge erred, any error was harmless

beyond a reasonable doubt, because defense counsel could and did

argue that CL had a motive to fabricate about the consensual




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United States v. Ellerbrock, No. 10-0483/AR


nature of the sex even without evidence of the prior affair.

Id. at *15-*16, 2010 WL 3931488, at *5.

                              III.

                               A.

     We review the military judge’s ruling on whether to exclude

evidence pursuant to M.R.E. 412 for an abuse of discretion.

United States v. Roberts, 69 M.J. 23, 26 (C.A.A.F. 2010).

Findings of fact are reviewed under a clearly erroneous standard

and conclusions of law are reviewed de novo.   Id.

                               B.

     M.R.E. 4124 states that evidence offered by the accused to

prove the alleged victim’s sexual predispositions, or that she

engaged in other sexual behavior, is inadmissible except in



4
  Appellant’s trial was completed on August 15, 2007. Executive
Order 13,447, which amended M.R.E. 412(c)(3) to include the
problematic language of “to the alleged victim’s privacy,” was
not released until September 28, 2007, more than a month after
the trial. Exec. Order No. 13,447, 3 C.F.R. 243 (2008). The
military judge, however, still conducted a balancing that relied
heavily on the victim’s privacy interest, a position this Court
appeared to adopt in United States v. Banker, 60 M.J. 216
(C.A.A.F. 2004). See Manual for Courts-Martial, United States,
Analysis of the Military Rules of Evidence app. 22 at A22-36
(2008 ed.) (noting that the amended language in M.R.E. 412(c)(3)
was meant to “highlight current practice” in military law,
citing Banker as inspiration). Therefore, even though the
military judge did not apply the current version of M.R.E. 412,
she applied a balancing test consistent with how the rule is
currently written. Therefore, the balancing conducted by the
military judge in this case raises the same concerns as if the
balance had been conducted in accordance with the 2007 amendment
to the rule.

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United States v. Ellerbrock, No. 10-0483/AR


limited contexts.   M.R.E. 412(a)-(b).    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.

Gaddis, No. 10-0512, 2011 CAAF LEXIS 669, at *9, 2011 WL

3518169, at *3 (C.A.A.F. Aug. 10, 2011) (alteration in original)

(quoting Manual for Courts-Martial, United States, Analysis of

the Military Rules of Evidence app. 22 at A22-35 (2008 ed.)).

While there are three exceptions set out in the rule, we are

concerned only with the third, which states that the evidence is

admissible if “the exclusion of . . . [it] would violate the

constitutional rights of the accused.”     M.R.E. 412(b)(1)(C).

     The exception for constitutionally required evidence in

M.R.E. 412(b)(1)(C) includes the accused’s Sixth Amendment right

to confrontation.   Banker, 60 M.J. at 216, 221 (citing

Weinstein’s Federal Evidence § 412.03[4][a] (2d ed. 2003)).       An

accused has a constitutional right “to be confronted by the

witnesses against him.”   U.S. Const. amend. VI.    That right

necessarily includes the right to cross-examine those witnesses.

Davis v. Alaska, 415 U.S. 308, 315 (1974) (citing Douglas v.

Alabama, 380 U.S. 415, 418 (1965)).      In particular, the right to

cross-examination has traditionally included the right “‘to

impeach, i.e., discredit the witness.’”      Olden v. Kentucky, 488

U.S. 227, 231 (1988) (quoting Davis, 415 U.S. at 316).


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United States v. Ellerbrock, No. 10-0483/AR

     However, an accused is not simply allowed “‘cross-

examination that is effective in whatever way, and to whatever

extent, the defense might wish.’”    Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S.

15, 20 (1985) (per curiam)).   Indeed, “‘trial judges retain wide

latitude’ to limit reasonably a criminal defendant’s right to

cross-examine a witness ‘based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.’”   Michigan v. Lucas, 500 U.S. 145, 149

(1991) (quoting Van Arsdall, 475 U.S. at 679).   But no

evidentiary rule can deny an accused of a fair trial or all

opportunities for effective cross-examination.   See Van Arsdall,

475 U.S. at 679.

     Generally, evidence must be admitted within the ambit of

M.R.E. 412(b)(1)(C) when the evidence is relevant, material, and

the probative value of the evidence outweighs the dangers of

unfair prejudice.   See Gaddis, 2011 CAAF LEXIS 669, at *20, 2011

WL 3518169, at *6 (“[T]he best reading of the rule is that, as

in its prior iteration, the probative value of the evidence must

be balanced against and outweigh the ordinary countervailing

interests reviewed in making a determination as to whether

evidence is constitutionally required.”).   Relevant evidence is

any evidence that has “any tendency to make the existence of any


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United States v. Ellerbrock, No. 10-0483/AR

fact . . . more probable or less probable than it would be

without the evidence.”   M.R.E. 401.   The evidence must also be

material, which is a multi-factored test looking at “‘the

importance of the issue for which the evidence was offered in

relation to the other issues in this case; the extent to which

the issue is in dispute; and the nature of the other evidence in

the case pertaining to th[at] issue.’”   Banker, 60 M.J. at 222

(quoting United States v. Colon-Angueira, 16 M.J. 20, 26 (C.M.A.

1983)).   Finally, if evidence is material and relevant, then it

must be admitted when the accused can show that the evidence is

more probative than the dangers of unfair prejudice.   See M.R.E.

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.”

Van Arsdall, 475 U.S. at 679.

                                IV.

     In this case, the record indicated that CL did not want her

marriage to end, which tends to show that she had a motive to

fabricate about whether the sexual intercourse with Appellant

was consensual, namely to protect her marriage.   See United

States v. Smith, 68 M.J. 445, 448-49 (C.A.A.F. 2010)

(recognizing that protecting an established relationship

provides a motive to lie about the consensual nature of sexual

encounters).   The issue presented is whether Appellant was


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United States v. Ellerbrock, No. 10-0483/AR

denied his rights under the constitutionally required exception

in M.R.E. 412(c)(3), when the military judge prevented him from

presenting a theory that a previous affair made it more likely

that CL would have lied in this case.

     It is a fair inference that a second consensual sexual

event outside a marriage would be more damaging to a marriage

than would a single event, assuming the evidence in the record

supported that inference.   The primary concern expressed by the

dissents is that Appellant did not present sufficient evidence

to make such an inference relevant and probative in this case.

We disagree.

     Although common sense is the guiding principle for

Appellant’s theory for admitting evidence of CL’s prior affair,

see 1 Kenneth S. Broun et al., McCormick on Evidence § 185 (6th

ed. 2006) (stating that determinations of relevancy must be

based on “personal experience, general knowledge, and

understanding of human conduct and motivation”), the evidence in

this case sufficiently supports Appellant’s theory.   After her

prior affair, CL admitted that she was afraid that her husband

would divorce her.   Her concerns would not abate after a

potentially second illicit sexual encounter, especially in light

of her husband’s reaction to her first affair -- kicking down

the former paramour’s door.




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United States v. Ellerbrock, No. 10-0483/AR

     CL’s knowledge of her husband’s reaction to her first

affair makes it more likely she would have lied than if she did

not know these facts.   Her husband underscored this point when

the military judge asked, “Specialist [L], have you ever told

anyone what you would do if your wife had had an affair?”    He

responded, “Not to my knowledge, ma’am, but a lot of people that

know me know that I’m hot tempered.”    A reasonable reading of

the husband’s response is that his “hot tempered” reaction to

the first affair was not an aberration, which is something that

“a lot of people” knew, including CL.   The military judge’s

conclusion that CL had no additional motivation to lie about a

potential second affair because her marriage was stronger after

the first was erroneous because it ignored the evidence and

oversimplified the situation.

     Furthermore, the military judge was incorrect to conclude

that this evidence was too stale to be relevant.   Time does not

affect all evidence equally.    See United States v. Kane, 726

F.2d 344, 348 (7th Cir. 1984) (recognizing that mere passage of

time does not make evidence irrelevant, as it will also depend

on the nature of the evidence and its relation to what is to be

proven).   If CL engaged in consensual sexual intercourse with

Appellant, then her previous affair, which was only two and one-

half years old at the time, might well have been a relevant

consideration to her husband’s decision in whether to continue


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United States v. Ellerbrock, No. 10-0483/AR

on with the marriage.   In light of her husband’s reaction to the

previous affair, one cannot discount that CL likely knew of the

real danger a second affair might cause to her marriage.

     Therefore, contrary to the military judge’s ruling,

evidence of CL’s prior affair, including her husband’s reaction

to it, has a direct and substantial link to CL’s credibility, a

material fact at issue.   See United States v. Stavely, 33 M.J.

92, 94 (C.M.A. 1991) (noting that evidence directly probative of

a witness’s truthfulness is always relevant to the issue of

credibility).   Here, the existence of a prior affair may have

established a greater motive for CL to lie about whether her

sexual encounter with Appellant was consensual.   Because the

evidence has a tendency to prove or disprove a substantial issue

in question, it is both relevant and material.

     The final step in deciding whether evidence of CL’s first

affair was required to be admitted is to balance the probative

value of the evidence against the dangers of unfair prejudice.

Gaddis, 2011 CAAF LEXIS 669, at *20, 2011 WL 3518169, at *6.

Here, the probative value of this evidence is high.   Since the

other witnesses’ testimony was conflicting, the credibility of

CL’s testimony about whether she consented was crucial to

Appellant’s conviction.   And, as discussed above, evidence of

CL’s prior affair has a direct and substantial link to CL’s

credibility; thus, this evidence is highly probative.


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United States v. Ellerbrock, No. 10-0483/AR

     Furthermore, the military judge overstated the M.R.E. 403

concerns in this case.   There is no dispute as to whether the

affair occurred.   As such, this evidence was unlikely to result

in a waste of time or lead to a trial within a trial to

determine whether past events actually occurred.      Confusion of

the issues was also unlikely, given that the theory of relevance

was relatively straightforward.    And with proper instructions

from the military judge on how the members could use this

evidence, there is little concern that the members would have

been misled.   See United States v. Walker, 42 M.J. 67, 74

(C.A.A.F. 1995) (recognizing that the military judge’s

instructions to members on the proper use of testimony could

have resolved M.R.E. 403 issues).

     Because evidence of CL’s prior affair was relevant,

material, and the probative value of the evidence outweighed the

dangers of unfair prejudice, the evidence of CL’s prior affair

was constitutionally required in this case.      The exclusion of

CL’s prior affair constituted a constitutional error, which

means we must test the error to see if it was harmless beyond a

reasonable doubt -- whether “‘there is a reasonable possibility

that the evidence [or error] complained of might have

contributed to the conviction.’”       United States v. Moran, 65

M.J. 178, 187 (C.A.A.F. 2007) (quoting Chapman v. California,

386 U.S. 18, 24 (1967)).


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United States v. Ellerbrock, No. 10-0483/AR

                                V.

     To determine whether an error affecting an accused’s right

to cross-examination was harmless beyond a reasonable doubt, we

apply the test developed in Van Arsdall, which states the

following nonexclusive, five factors:

     [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.

     In this case, CL’s testimony was important to the

Government’s case.   Although three eyewitnesses saw CL and

Appellant having sex, they did not provide a coherent picture of

her mental capacity before, during, or after the alleged rape.

This is problematic, since the sole issue in this case was

whether CL consented.   As such, CL’s testimony about consent was

crucial to Appellant’s conviction.   This factor weighs in favor

of finding harm.   Furthermore, absolutely no evidence of CL’s

prior marital affair was admitted; therefore, cross-examination

on this subject would not have been cumulative.   This factor

also weighs in favor of finding harm.

     Although some evidence corroborated CL’s version of events,

there were significant contradictions in the witnesses’

testimony.   For instance, there was varying testimony about how


                                16
United States v. Ellerbrock, No. 10-0483/AR

much Xanax CL actually ingested or whether she snorted any.

Ellerbrock, 2010 CCA LEXIS 32, at *2-*3, 2010 WL 3931488, at *1.

There was conflicting testimony as to when and if CL passed out

and vomited.    Indeed, the toxicologist called by trial counsel

summarized the degree of doubt over CL’s intoxication in

testifying that she “exhibit[ed] anywhere from minimal effects

of sedation . . . to being precomatose.”    Based on the

Government’s theory, the difference between CL’s being minimally

sedated and precomatose may have been the difference between

consensual sex and rape.    This factor also leans in favor of

finding harm.

        Even though CL was subjected to substantial cross-

examination, none of the questions were about her previous

affair.    As such, this factor also leans towards a finding of

harm.    See Roberts, 69 M.J. at 29 (recognizing that extensive

cross-examination of the witness alone is not enough, if the

cross-examination permitted did not include questions on the

issue constitutionally required).

        Finally, the prosecution’s case was not overwhelming.    Even

though the witnesses saw Appellant and CL having sex, they

failed to provide a coherent picture of CL’s mental capacity

before, during, or after the alleged rape.    Because the only

issue at trial was whether she could and did consent, her

testimony on that issue became crucial to Appellant’s


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United States v. Ellerbrock, No. 10-0483/AR

conviction.    This factor also leans towards finding harm,

especially since evidence of CL’s previous affair could have

reasonably called into question the credibility of CL’s

testimony.

     Under the circumstances of this case, “‘[a] reasonable jury

might have received a significantly different impression of [the

witness’s] credibility had [defense counsel] been permitted to

pursue his proposed line of cross-examination.’”     Smith, 68 M.J.

at 451 (alterations in original) (quoting United States v.

Collier, 67 M.J. 347, 352 (C.A.A.F. 2009)).    As such, we are

convinced that there is a “reasonable possibility that the

evidence [or error] complained of might have contributed to the

conviction.”   United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F.

2009) (alteration in original) (citation and quotation marks

omitted).    Therefore, we find this error was not harmless beyond

a reasonable doubt.

                                 VI.

     The judgment of the United States Army Court of Criminal

Appeals is reversed as to the findings of guilty of rape and

sodomy by force. Those findings and the sentence are set aside.

The findings of guilty of the offenses to which Appellant pled

guilty are affirmed.   A rehearing may be ordered.




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United States v. Ellerbrock, No. 10-0483/AR


     BAKER, Judge (dissenting):

     I respectfully dissent.   I do not believe the military

judge abused her discretion in applying Military Rule of

Evidence (M.R.E.) 412 to the evidence at issue in this case.

The evidence had low probative value, raised significant M.R.E.

412 balancing concerns, and was not vital to the defense;1

therefore it fell within the military judge’s discretion to

exclude the evidence.

     Appellant failed to produce an evidentiary foundation for

introducing the proffered evidence that is otherwise excluded

under M.R.E. 412.   In particular, defense counsel failed to show

a direct nexus between the evidence the defense sought to

introduce, and the incident at issue in this case.   As a result,

exclusion of this evidence did not deprive Appellant of the

opportunity to present a defense.

     The circumstances of CL’s affair with JH and the incident

with Appellant were very different:   rather than an ongoing

affair, this was a one-night sexual encounter with varying

accounts as to the victim’s consciousness.    The victim, CL, has

no history of false allegations of rape -- on the contrary, it

was she who told her husband of her consensual affair with JH a

few days after it ended.   Moreover, the defense theory of

1
  I use the word vital to mean that which is consistent with the
constitutional guarantee of “a fair opportunity to present a
defense.” Crane v. Kentucky, 476 U.S. 683, 687 (1986).
United States v. Ellerbrock, No. 10-0483/AR


admissibility rested on just the sort of presumption M.R.E. 412

is intended to address, namely, that “a previous affair made it

more likely that CL would have lied.”   United States v.

Ellerbrock, __ M.J. __ (12) (C.A.A.F. 2011).     As a result, the

military judge correctly required a direct factual nexus between

the prior affair and the incident with Appellant before

permitting testimony about the affair with JH.    Appellant did

not provide such a nexus.   Neither the victim nor her husband

testified that either of them expected, threatened, or feared

“what would happen if there was further infidelity in” the

marriage.   Defense counsel had the opportunity to question each

witness on these points, and neither made a statement that

supported the defense theory that the marriage would not survive

another incident, or that the victim feared this.

     The majority bridges this evidentiary gap with a conclusion

about human nature, stating that “common sense is the guiding

principle for Appellant’s theory for admitting evidence of CL’s

prior affair . . . determinations of relevancy must be based on

‘personal experience, general knowledge, and understanding of

human conduct and motivation.’”   Id. at __ (12) (citations

omitted).   The majority postulates, “[T]he existence of a prior

affair may have established a greater motive for CL to lie about

whether her sexual encounter with appellant was consensual.”

Id. at __ (14).   It may have done so, but there is no evidence


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United States v. Ellerbrock, No. 10-0483/AR


it did do so.     The link appears to be based on a “common sense”

understanding that a married person who has had an affair is

more likely to later fabricate a rape allegation with a stranger

than someone who has not.    That is the type of presumption about

the sexual propensity and moral character of a sexual assault

victim that M.R.E. 412 is intended to exclude.     Moreover, the

logic of the argument implies that any prior fact that would

place additional stress on a marriage is constitutionally

required to be admitted where a married woman is the victim of a

sexual assault and the defense is based on consent.

      M.R.E. 412 requires significantly more.     It requires a

concrete evidentiary proffer rather than just a theory.     This

proffer must demonstrate why the evidence offered is material,

the manner in which it is material and probative, and why its

probative value outweighs the privacy interests of the victim.

                              DISCUSSION

A.   M.R.E. 412

      M.R.E. 412 is a rape shield law.     It 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.     It accomplishes

the first objective by limiting the opportunity of an accused to

inquire into the past sexual conduct of the victim and from

using innuendo and propensity to demonstrate consent.     It


                                   3
United States v. Ellerbrock, No. 10-0483/AR


accomplishes the second objective by expressly recognizing that

some evidence, which otherwise would fall within the parameters

of M.R.E. 412, is essential to a fair trial and is thus

constitutionally required.

      The rule’s constitutional foundation rests upon the Supreme

Court’s determination in Michigan v. Lucas that “The right to

present relevant testimony is not without limitation.   The right

may, in appropriate cases, bow to accommodate other legitimate

interests in the criminal trial process.”   500 U.S. 145, 149

(1991) (quotation marks omitted).

      In the military context, these legitimate interests extend

beyond those recognized in the civilian context.   They include a

societal interest in the reporting and prosecution of sexual

offenses and maintenance of a justice system that is fair to

both the accused and to the victims.   They also include

maintenance of good order and discipline in the military as well

as the morale and welfare of those who serve in the armed

forces.   M.R.E. 412 is a rule of exclusion in light of the

societal interests at stake.   Manual for Courts-Martial, United

States, Analysis of the Military Rules of Evidence app. 22 at

A22-35 (2008 ed.) (MCM) [hereinafter Drafters’ Analysis].

B.   The M.R.E. 412(c)(3) Exception

      The plain text of M.R.E. 412 establishes a three-part test

to determine whether evidence is constitutionally required.


                                 4
United States v. Ellerbrock, No. 10-0483/AR


First, the evidence must be relevant.2   This, of course, is a

baseline and not a finish line.3

     Second, the evidence must be material, as determined by

“the importance of the issue for which the evidence was offered

in relation to the other issues in the case; the extent to which

this issue is in dispute; and the nature of the other evidence

in the case pertaining to this issue.”   United States v. Banker,

60 M.J. 216, 223 (C.A.A.F. 2004) (quotation marks and citation

omitted).

     Finally, in general the probative weight of the evidence

must outweigh the privacy interests of the victim.   It is true

that M.R.E. 412(c)(3) evidence may be sufficiently relevant and

material -- its probative value sufficiently high -- that it may

be essential to an accused’s constitutional right to put on a


2
  Relevance is “any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” M.R.E. 401. While this is a low bar, I remain
unconvinced that the defense demonstrated that the prior affair
made any fact in the current charges more or less likely because
they failed to submit any reason other than sexual propensity
(an impermissible use) or speculations regarding CL’s motivation
as a married woman (an unsubstantiated theory of admission).
3
  See United States v. Sullivan, in which this Court upheld the
need for a basic show of relevance in order to admit evidence
even in a case that did not implicate the additional
restrictions of M.R.E. 412: “An accused does not have a right
to cross-examine a witness on any subject solely because he
describes it as one of credibility, truthfulness, or bias.
There must be a direct nexus to the case that is rooted in the
record.” 70 M.J. 110, 115 (C.A.A.F. 2011).

                                   5
United States v. Ellerbrock, No. 10-0483/AR


defense regardless of how it balances against the victim’s

privacy.   If so, its probative weight will necessarily outweigh

any privacy interests of the victim.   Such evidence in the

vernacular of case law is termed “favorable,” or “vital” to the

accused, and is constitutionally required because the accused

has a right to a fair trial and an opportunity to put on a

defense.

     Determining if a piece of evidence meets this standard can

be made in deliberate and sequential fashion as the military

judge works through the rule.    Alternatively, based on the facts

of a case it might appear so obvious to the military judge that

on the face of the evidence it is vital to the defense,

obviating the need to engage in any balancing.   However, not all

evidence that is relevant and material is essential to the right

to put on a defense.   Otherwise, the drafters of the MCM would

not have structured the rule in a manner that had the balancing

test textually follow the military judge’s threshold

determinations on relevance and materiality.   Indeed, most

M.R.E. 412 evidence proffered in connection with a viable

constitutional theory of admission will not fall crisply into

black and white categories of constitutional inclusion or

privacy exclusion.   Neither do most M.R.E. 412 cases involve

singular proffers of evidence.   The M.R.E. 412 balancing test

promulgated by the President therefore serves as a mechanism for


                                  6
United States v. Ellerbrock, No. 10-0483/AR


military judges to accommodate multiple and weighty

constitutional issues and values without dealing in all-or-

nothing absolutes of inclusion or exclusion.   As a result, where

the balancing is close, a military judge will not necessarily

abuse her or his discretion by including or excluding evidence.

A military judge does not abuse her or his discretion in

excluding evidence if the defense proffer is relevant and

material but of such low probative value that it is outweighed

by the privacy interest of the victim.   Likewise, if in applying

the balancing test the military judge determines that the

probative value of the evidence outweighs the risk of unfair

prejudice, then it is also within the military judge’s

discretion to admit the evidence -- after, of course, applying

any other applicable rules of evidence, such as M.R.E. 403.

However, it is also important to note that evidence may not

emerge as “vital” until after an initial M.R.E. 412 ruling.

Thus, it is possible for a military judge to correctly apply

M.R.E. 412 in excluding evidence, but err by not later

reconsidering that ruling.

     In sum, M.R.E. 412 does not preclude an accused from

putting on evidence related to a spouse’s prior extramarital

affair.   It does provide for a military judge, in her or his

discretion, to preclude an accused from doing so absent a direct

material and evidentiary connection between the theory of


                                 7
United States v. Ellerbrock, No. 10-0483/AR


admissibility and the facts of the specific case -- in other

words, a showing that the evidence is relevant, material, and

potentially vital.

C.   Applying the Test in This Case

      In this case, the evidence indicates the following as

reflected in the military judge’s findings of fact and

conclusions:

      CL and Corporal BL married in August 2004.   Approximately

two to three months later, CL commenced a consensual sexual

relationship with JH.    This occurred two and one half years

prior to the incident at issue.   JH was a friend of CL’s female

roommate who temporarily moved in to their apartment.    The

relationship was ongoing and continuous and ended “of its own

accord in December 2004.”   CL “voluntarily informed her husband

of the affair immediately after it ended.   She also confided in

her parents, friends, and a neighbor.”   She felt guilty.   As the

military judge stated in her findings:

      Upon learning of the affair, he [BL] did not threaten to
      leave CL, but he kicked down a door and was incarcerated
      for three days in a local jail. BL and CL worked out their
      marital problems and remain married to the present day.
      Both CL and BL believe their marriage is stronger because
      of the affair.

With respect to the incident for which Appellant was charged,

the military judge found that CL did not know Appellant before

the night in question.   In addition, the expert toxicologist



                                  8
United States v. Ellerbrock, No. 10-0483/AR


testified that CL’s consumption of drug and alcohol would leave

CL inebriated somewhere between sedated and comatose; and

different witnesses perceived different sounds upon their return

to the house.4

     This Court reviews a military judge’s decision to exclude

evidence subject to M.R.E. 412 for an abuse of discretion.

Banker, 60 M.J. at 223.

     (1)   Probative Value

     At trial, Appellant sought to introduce evidence of CL’s

affair with JH for the purpose of showing CL’s motive to

fabricate because she feared a similar and more severe reaction

to the discovery of another extramarital sexual encounter and

more generally to protect her marriage.

     In response, the military judge made the following

conclusions on the record:

     [CL]’s extramarital affair is remote in both time and
     manner to the rape and forcible sodomy charges before the
     court. Not only did the affair occur two and a half years
     ago, but it began after [CL] became intimate with a man she
     saw on a daily basis for a month. . . . [CL] and the
     accused did not previously know one another.

4
  Private Page testified that he recognized the voice moaning and
it was “Just the sound of [Appellant].” SPC Jackson stated that
he heard “sexual noises” that “sounded like a female type voice”
but when they opened the door, he saw the victim, eyes closed,
“[h]er head just laying there limp.” When the defense counsel
stated that “the complainant was moaning prior to the
individuals coming into the room seeing her in there with PFC
Ellerbrock,” the military judge responded, “That’s a proffer on
your part. There’s been no evidence so far before this court to
that whatsoever.”

                                9
United States v. Ellerbrock, No. 10-0483/AR

     . . . .

     There is no pattern of rape allegations; [CL]’s allegation
     of rape against the accused is the first rape allegation
     she has lodged. There is no pattern of extramarital
     affairs by [CL]; the affair occurred 2 1/2 years ago is the
     only incident of infidelity in the [L]’s marriage. There
     is no evidence that the affair destroyed or even weakened
     [the] marriage; in fact, they remain married, have had a
     child since the revelation of the affair, and the evidence
     shows their marriage is now stronger.

     There is no evidence that [BL] told [CL] that if she had
     another affair, he would leave her, end the marriage, or
     react in any other way.

The majority does not find the military judge’s findings of fact

clearly erroneous.   However, the majority concludes that “the

military judge erred in applying [M.R.E.] 412 to prevent

Appellant from introducing evidence of the alleged victim’s

first marital affair.”    Ellerbrock, __ M.J. at __ (2) (emphasis

added).   In my view, the military judge did not abuse her

discretion for four reasons.

     (a) First, there is no evidence to suggest, as the majority

does, that the encounter between Appellant and CL was a second

marital affair.    The logic of Appellant’s argument changes

significantly if the incident with Appellant is viewed as a

“second affair.”   There is no doubt that a prior sexual affair

could be probative in assessing someone’s credibility and motive

to fabricate.   As a matter of logic, for example, a “second”

affair would be more damaging to a marriage than would a single

affair, if other factors remain the same and the evidence


                                 10
United States v. Ellerbrock, No. 10-0483/AR

indicates as much.   However, there is no evidence whatsoever in

the record that CL was engaged in an affair with Appellant.

     (b) Second, if one does not treat the incident with

Appellant as a second affair, then it was either a rape or a

one-night stand.   In that case the theory of admission

necessarily rests on the view that a married woman who has had

an affair is more likely to falsely allege rape to protect her

marriage two years later than a woman who has not had a prior

affair.

     This theory of admission is inherently problematic because

it is not based on the facts in evidence, but rather on a

presumption about human nature.    There is no evidence in the

record that the prior affair put the marriage on tenterhooks at

the time of the rape.   The evidence seems to suggest otherwise.

The military judge stated on the record, “There is no evidence

that the affair destroyed or even weakened [the] marriage; in

fact . . . the evidence shows their marriage is now stronger.”

This finding may be counterintuitive, but it is supported by

facts in the record.    Neither is there evidence in the record

that either CL or BL made statements or raised concerns about

what might happen to their marriage in the event of a subsequent

sexual encounter outside the marriage or other stressful event.

The notion that their marriage would end if an additional

stressor occurred was either not factually accurate or was not


                                  11
United States v. Ellerbrock, No. 10-0483/AR

elicited by counsel, even though counsel was given the

opportunity to establish a factual basis for this claim in the

Article 39(a)5 session.

     Furthermore, the extramarital affair was not consistent in

time, place, manner or (perhaps most importantly) manner of

discovery, with the charges that were before the court-martial.

The affair was over two years prior, JH was a person whom CL

knew and was living with for a period of months, and CL did not

end the prior relationship with an allegation of rape.    She

ended it voluntarily, and then told her husband about the

relationship.   The incident in this case involved two strangers,

one of whom was inebriated and either engaged in consensual sex

or was raped.   Therefore, we are not dealing here with a pattern

of conduct, or a pattern of conduct indicative of deceit.

     (c) Third, to the extent the defense theory rested on more

than a presumption about human nature, which M.R.E. 412

precludes, it depended on Appellant’s angry reaction to the

affair with JH.   The defense argued that BL’s previous angry

reaction when he broke a door was the specific evidence they

sought to bring in (as distinct from the general existence of

the affair or CL’s propensity to engage in extramarital sex).

However, the defense did not demonstrate that this evidence was


5
  Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 939(a)
(2006).

                                12
United States v. Ellerbrock, No. 10-0483/AR

both material and highly probative, and thus vital, to

Appellant’s opportunity to put on a defense.6

     It is intuitive that a spouse might express anger toward

someone who engages in consensual sex with his spouse.   Indeed,

one might expect a husband to show equal if not greater anger in

the event that his spouse was raped as opposed to engaging in a

consensual one-night stand.   Moreover, BL was deployed in Iraq

at the time; thus the prospect of an immediate and violent

reaction to the incident was geographically removed.   And CL did

not testify that she feared BL’s response to learning of the

incident.

     (d) Finally, even if Appellant’s theory of admission was

valid, the evidence offered by Appellant in support of the

theory was of little probative value.   It is intuitive that a

spouse might have a motive to hide a consensual sexual encounter

outside the marriage regardless of any past affair.    As the

majority notes, it is common sense that a married man or woman

might lie about a consensual sexual event in order to protect a

marriage.   However, it is not clear why the existence of a prior

affair alone makes it any more likely the offending spouse would

6
  The military judge explicitly gave defense counsel opportunity
to explain the relevance of the evidence, that is, to
demonstrate its tendency to prove or disprove a fact at issue in
the case. M.R.E. 401. In the M.R.E. 412 session, the military
judge repeatedly asked for the defense counsel to establish
relevance. It is the military judge’s responsibility to make
determinations of admissibility in an ongoing trial.

                                13
United States v. Ellerbrock, No. 10-0483/AR

do so.   One could even argue based on the facts in this case

that it made it less likely because CL reported the affair

herself.

     As a result, evidence standing alone that CL had once had

an extramarital affair that prompted BL to kick a door down was

not essential, i.e., vital, to Appellant’s opportunity to put on

a defense.    Therefore, the military judge appropriately sought

to balance the probative weight of the proffer against the

privacy interests of the victim.

     (2) CL’s Privacy Interest

     The record contains two statements directly addressing the

victim’s privacy interests.   First, in response to the military

judge’s question, “How would you feel about [the fact that you

had this extramarital affair] coming out in open court today?”

CL responded:   “Well, honestly, I don’t see it having any

relevance to him raping me.   I don’t see how that –- you know –-

matches up.   If it was to come out, then it comes out.   There’s

nothing I can do about that.”    In response to the military

judge’s question “about these perfect strangers in this

courtroom finding out that you had an affair,” CL responded:    “I

don’t think it is any of their business.”   She also told defense

counsel, “I’m not afraid for it to come out, but it would still

be embarrassing because it’s defacing my character in front of

people I don’t know.”


                                 14
United States v. Ellerbrock, No. 10-0483/AR

     The majority does not address CL’s privacy interest.

Presumably this is because CL had told others about the affair

with JH, appeared to have reconciled to the fact of its

occurrence, and seemed aware of the possibility that it would

come out at trial.   The victim’s privacy interest in this case

is not as compelling as in some cases.   However, the fact that

one has told family and friends something does not mean that the

information would not result in “defacing [one’s] character” “in

front of people [one] do[esn’t] know.”   CL said as much.

     Thus, on this record, the military judge did not abuse her

discretion in excluding the evidence on probative or privacy

grounds.   She certainly did not do so in the context of the

purpose of M.R.E. 412 or in the manner in which she applied the

M.R.E. 403 balancing test to the evidence.

     In my view, the military judge correctly considered the

broader implications of her ruling on the privacy interests

intended to be protected by M.R.E. 412, as reflected in the

military judge’s conclusion that “[t]o allow evidence of [CL]’s

previous extramarital affair [without a specific predicate]

would mean that anytime a married woman alleges rape, her

complete sexual history during the marriage becomes relevant to

show bias.”   Under the majority’s reasoning, in the case of a

sexual assault trial, it would seem constitutionally required to

permit inquiry on any stressor upon the marriage, past or


                                15
United States v. Ellerbrock, No. 10-0483/AR

present, sexual or not, because such stressors might always

serve as a basis to protect the marriage or made the other

spouse angry.    In my view, something more is needed, or the

legitimate privacy interests that the rule seeks to balance and

protect will be swept aside.

     Further, the military judge’s M.R.E. 403 concerns about

confusing the issues appear well founded, and in any event, are

not erroneous.     This Court has discouraged the introduction of

evidence which results in a “distracting mini-trial on a

collateral issue.”    United States v. Berry 61 M.J. 91, 97

(C.A.A.F. 2005) (quoting United States v. Bailey, 55 M.J. 38, 41

(C.A.A.F. 2001) (quotation marks omitted).    That appears to be

exactly what has occurred in this case at all levels of judicial

process.   M.R.E. 412 derives in part from recognition that this

interest in avoiding the mini-trial is heightened when the

evidence has a tendency to embarrass or degrade the

witness/victim.7

     In conclusion, because the military judge’s findings of

fact are not clearly erroneous and her application of the law on

the record is sound and consistent with the legitimate purposes

of M.R.E. 412 and the constitutional interests it seeks to


7
  M.R.E. 412 “is intended to shield victims of sexual assaults
from the often embarrassing and degrading cross-examination and
evidence presentations common to prosecutions of such offenses.”
Drafters’ Analysis app. 22 at A22-35).

                                  16
United States v. Ellerbrock, No. 10-0483/AR

protect, she did not abuse her discretion in excluding the

evidence at issue in this case.




                                  17
United States v. Ellerbrock, No. 10-0483/AR


     RYAN, Judge (dissenting):

     I respectfully disagree that the military judge’s

limitation on cross-examination in this case was an abuse

of discretion.

     With respect to the Sixth Amendment’s Confrontation

Clause,1 “trial judges retain wide latitude . . . to impose

reasonable limits on . . . cross-examination based on

concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally

relevant.”   Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986); see also Delaware v. Fensterer, 474 U.S. 15, 20

(1985) (per curiam); United States v. Collier, 67 M.J. 347,

353 (C.A.A.F. 2009); United States v. James, 61 M.J. 132,

136 (C.A.A.F. 2005).   The question is whether a reasonable

panel would have received “a significantly different

impression” of CL’s credibility had Appellant been

permitted to cross-examine her on the prior affair.    See

Van Arsdall, 475 U.S. at 680.

     I agree with Judge Baker that such evidence was

marginally relevant and probative, and precisely the sort

of evidence that Military Rule of Evidence 412 was intended

1
  “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI.
United States v. Ellerbrock, No. 10-0483/AR


to exclude.   United States v. Ellerbrock, __ M.J. __, __-__

(1-3) (C.A.A.F. 2011) (Baker, J., dissenting).   The defense

counsel was permitted to cross-examine CL on the numerous

self-evident bases for her motive to fabricate and to argue

the same to the members.   On cross-examination, the defense

established that CL had been married to her husband (who

was deployed to Iraq at the time of the alleged rape) for

three years at the time of trial, and that Specialist

Jackson -- who had witnessed the alleged rape -- was very

good friends with her husband.    The defense also

established that CL had ingested Xanax and alcohol while

socializing with friends on the night of the alleged rape.

Finally, the defense established that CL’s initial sworn

statement to investigators differed from her court-martial

testimony in that she had not told investigators that

Appellant had anal sex with her in the middle of the night

and that she had told him to stop.   Having established all

this, defense counsel argued as follows during closing

argument:

     When you look at the Complainant, what’s her
     motive to fabricate? She’s married; living on
     post; husband is deployed; [s]he has friends over
     [at] the house on a Tuesday night; start
     drinking. How does she explain these events to
     her husband, who’s deployed? . . . Why would she
     have to explain that to her husband? Well,
     because his best friend, his close friend, is
     Specialist Jackson.


                              2
United States v. Ellerbrock, No. 10-0483/AR


Defense counsel then argued, “how do we know that [the sex]

wasn’t consensual?   We don’t know that.”   Thus, the defense

established the rather self-evident proposition that a

married woman whose husband is deployed would have a motive

to allege that sex with another -- occurring after a social

event at which her husband’s good friend was present -- was

not consensual.

     “When reviewing the adequacy of a cross-examination,

the question is whether the jury had sufficient information

to make a discriminating appraisal of the witness’s motives

and bias.”   United States v. Nelson, 39 F.3d 705, 708 (7th

Cir. 1994) (quotation marks and citations omitted).   Here,

the members had sufficient information to make a

discriminating appraisal of CL’s motive to lie to protect

her marriage.   Cf. Davis v. Alaska, 415 U.S. 308, 317-18

(1974) (finding a Confrontation Clause violation where the

defense was not permitted to present its theory of bias so

that the jury could make “an informed judgment” as to that

theory).   Evidence of CL’s prior affair would have added

little or nothing to this motive for the reasons set forth

in Judge Baker’s separate opinion.   Ellerbrock, __ M.J. at

__-__ (10-15) (Baker, J., dissenting).   “Additional cross-

examination on this topic would not have established a

potential motive to lie but merely would have embellished


                              3
United States v. Ellerbrock, No. 10-0483/AR


facts already showing that motive.”   Nelson, 39 F.3d at

709; see also United States v. Carruthers, 64 M.J. 340, 344

(C.A.A.F. 2007).    Thus, the military judge provided

Appellant with “what he was due under the Confrontation

Clause:   an opportunity to impeach the complainant’s

credibility.”   See United States v. Smith, 68 M.J. 445, 448

(C.A.A.F. 2010).

     For these reasons, and because military judges have

“wide discretion to limit repetitive cross-examination or

to prohibit cross-examination that may cause confusion,”

James, 61 M.J. at 136, evidence of CL’s prior affair was

not constitutionally required to be admitted, and the

military judge correctly excluded it.   I would therefore

affirm the decision of the United States Army Court of

Criminal Appeals.




                               4
