This opinion is subject to administrative correction before final disposition.




                               Before
                 FULTON, CRISFIELD, and HITESMAN,
                      Appellate Military Judges
                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                         Corey J. SMITH
                  Sergeant, (E-5), U.S. Marine Corps
                              Appellant

                             No. 201800042

                           Decided: 29 May 2019.
 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judges: Lieutenant Colonel Mark D. Sameit, USMC (ar-
 raignment, trial); and Major John L. Ferriter, USMC (motions). Sen-
 tence adjudged 20 October 2017 by a general court-martial convened
 at Marine Corps Air Station Miramar, California, and Marine Corps
 Air Station Yuma, Arizona, consisting of officer and enlisted members.
 Sentence approved by convening authority: reduction to pay grade
 E-1, confinement for three years, forfeiture of all pay and allowances,
 and a dishonorable discharge.
 For Appellant: Lieutenant Commander Jeremy J. Wall, JAGC, USN.
 For Appellee: Lieutenant George R. Lewis, JAGC, USN; Lieutenant
 Kimberly Rios, JAGC, USN.
 Judge HITESMAN delivered the opinion of the Court, in which Senior
 Judge FULTON and Judge CRISFIELD joined.
                        _________________________

       This opinion does not serve as binding precedent, but
            may be cited as persuasive authority under
           NMCCA Rule of Practice and Procedure 30.2
                        United States v. Smith, No. 201800042


                             _________________________

HITESMAN, Judge:
    The appellant was convicted, contrary to his pleas, of three specifications
of sexually assaulting two Marines in violation of Article 120, Uniform Code
of Military Justice (UCMJ). 1 In his sole assignment of error, the appellant
asserts that the military judge improperly restricted the trial defense coun-
sel’s cross-examination of both victims. We agree the military judge abused
his discretion but find that the error was harmless beyond a reasonable doubt
and affirm the findings and sentence.

                                 I. BACKGROUND

    Two female Marines, MC and AS, were drinking alcohol, talking, and
watching videos in AS’s barracks room when the appellant invited AS to his
room around 0200 in the morning. AS declined but invited appellant over to
her room to drink and hang out with her and MC. The appellant was senior
to both AS and MC and had been friends with AS for more than 18 months
but had not talked to MC prior to that night. The three drank, talked, and
watched videos until MC fell asleep around 0400. The appellant and AS
continued to drink and talk for another hour until AS asked appellant to
leave so she could sleep. Instead of the leaving the room, the appellant got
into bed with MC who was still sleeping. The appellant penetrated her vagina
with his fingers until MC awoke and told him, “[n]o, leave me alone.” 2 Appel-
lant got up and moved across the room and got into bed with AS who was
now asleep. The appellant penetrated AS’s vagina with his fingers until she
awoke and told him to leave because the “bed was too small.” 3 The appellant
then left AS’s room and returned to his own room.
   MC woke up later that morning and immediately went to the appellant’s
room and confronted him. Appellant “looked scared” 4 and told MC that he
“thought it was a dream.” 5 While MC went to confront the appellant, AS



   1  10 U.S.C. §§ 920 (2016). The military judge merged the two specifications per-
taining to one of the victims for findings and sentencing leaving the Court to review
one specification of sexual assault for each victim. Appellate Exhibit (AE) XXVII;
Record at 882, 996-98.
   2   R. at 670-672.
   3   R. at 873.
   4   R. at 677.
   5   Id.


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                           United States v. Smith, No. 201800042


reported the sexual assault to her unit uniformed victim advocate (UVA).
After MC had returned to AS’s room, the appellant texted AS stating that he
was “scared,” “thinking about killing” himself, and that he was “so sorry.” 6
The appellant next texted his best friend that he “did the dumbest shit ever” 7
and “thought it was all a f***ing dream.” 8 Finally, appellant drafted an
apology note to MC stating “I apologize for my actions that night. I feel
embarrassed, disgusted, and pitiful for even thinking it was the right thing to
do.” 9
   When Naval Criminal Investigative Service (NCIS) agents interviewed
the appellant, he was cooperative in recounting the facts of the evening. He
provided detailed information about having consensual sexual intercourse
with MC to include his belief that he used a condom. However, he provided no
detail about his interaction with AS and appeared surprised when NCIS
agents informed him that AS was also reporting that he sexually assaulted
her.
    Less than 12 hours prior to the assault, AS and MC exchanged text mes-
sages discussing getting “super high” 10 on “those little pills” 11 concluding the
conversation with: “Haha well maybe.” 12 The appellant’s trial defense counsel
sought to use these text messages to cross-examine MC and AS to expose
their suspected drug use during the time of the assault. When asked by the
trial counsel, both witnesses denied using drugs prior to the assault and
neither remembered exchanging text messages about getting high. 13 For
tactical reasons relating to the relationship between AS and the appellant,
the trial defense counsel did not initially cross-examine AS at all. However,
during cross-examination of MC, the military judge sustained a government
objection to the trial defense counsel’s question: On “[t]he afternoon of the



    6   R. at 651; Prosecution Exhibit (PE) 2.
    7   R. at 651; PE 2.
    8   R. at 630-31; PE 7 at 1.
    9   PE 10.
    10   AE LXXXIII.
    11   AE LXXXIII.
    12   Id.
    13 Just prior to closing for deliberations, a member asked the court “in reference
to the question of drugs, was this inadmissible, or is this pertinent to the case?” R. at
852. The military judge then instructed the members, without clarifying which drug
statements were being addressed, that he “ruled that that is inadmissible, and you
should not consider that in any way.” R. at 854.


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                     United States v. Smith, No. 201800042


incident, at one point, you were asked if you wanted to get super high that
night?” 14 The military judge only permitted the trial defense counsel to ask
MC if “she was on any illicit substances that night.” 15
    After closing arguments, the members asked to review AS’s statements to
NCIS and her text message report to the UVA. The military judge reopened
the court-martial and allowed the trial counsel to recall AS to lay a founda-
tion for her statements and text messages to the UVA. Because the trial
defense counsel asserted that they had made a tactical decision not to cross-
examine AS during her initial testimony, the military judge allowed an
expanded cross-examination of AS during her recall testimony. However, the
military judge again restricted the cross-examination by not allowing the
trial defense counsel to “go into the drug statement, regarding drugs.” 16 The
trial defense counsel cross-examined AS but did not ask about the text
message exchange in accordance with the military judge’s instructions.
   Additional facts necessary to resolve the assigned error are included be-
low.

                               II. DISCUSSION

A. Excluding Relevant Evidence
    We review a military judge’s evidentiary rulings for an abuse of discre-
tion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). The military
judge “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the members, undue delay, wasting time, or
needlessly presenting cumulative evidence.” MILITARY RULE OF EVIDENCE
(MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016
ed.). When a military judge balances the competing interests in admitting or
excluding evidence, the ruling will not be overturned unless there is a clear
abuse of discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).
When a military judge fails to articulate a MIL. R. EVID. 403 balancing
analysis on the record, the ruling receives less deference. Id. When the judge
fails to even conduct the MIL. R. EVID. 403 analysis, the ruling receives no
deference at all. Id.




   14   R. at 685.
   15   R. at 686.
   16   R. at 860.


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                         United States v. Smith, No. 201800042


    Here, the military judge acknowledged that trial counsel first elicited tes-
timony from AS about drug use and the discussion about getting high, but
ruled that the trial defense counsel was not to “draw out any inferences that
[MC’s] been using [drugs] or anything like that.” 17 The military judge went on
to state explicitly, “I find that the probative value of [the text messages are]
substantially outweighed by the danger of unfair prejudice. The real proba-
tive value is . . . whether or not her ability to perceive was being [a]ffected.” 18
    However, the military judge did not specifically identify the prejudicial
impact of the inference that MC was using drugs, and therefore did not, on
the record, balance that impact against the correctly identified probative
value of “whether [MC’s] ability to perceive was being affected.” 19 Likewise,
after reopening the case, the military judge reminded trial defense counsel
that she was prohibited from cross-examining AS on “the drug statement” 20
referring to the text message exchange discussing the use of “little pills” to
get “super high.” 21 The military judge neither identified the prejudicial
impact nor attempted to balance the impact with the probative value of
attacking AS’s ability to perceive.
    Since the military judge failed to conduct a complete MIL. R. EVID. 403
balancing test and articulate his analysis on the record for limiting the cross-
examination of both witnesses, we afford his ruling less deference and exam-
ine the record for ourselves. The military judge’s rulings only allowed the
trial defense counsel to ask AS and MC whether they had used “illicit sub-
stances” 22 on the evening of the assault. This did not allow the trial defense
counsel the opportunity to explore and expose the weaknesses in AS’s or MC’s
credibility by confronting them with their own statements that suggested
they intended to use drugs that evening. Instead, the military judge’s ruling
limited the appellant to the witnesses’ uncontested denial. Had the military
judge allowed the trial defense counsel to confront the witnesses with their
own text messages, the members might have been less inclined to believe
them when they both claimed that they did not remember the text message
exchange. If, after being shown the text message exchange, the witnesses still
denied having any memory of it, their credibility might have been further



   17   R. at 686.
   18   R. at 686-687.
   19   Id.
   20   R. at 860.
   21   AE LXXXIII.
   22   R. at 686.


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                     United States v. Smith, No. 201800042


undercut in the eyes of the members. Additionally, the military judge’s ruling
did not permit the trial defense counsel to attack the reliability of the wit-
nesses’ testimony or their ability to perceive the events occurring around
them by arguing that they may have been under the influence of drugs
during the assault, despite their testimony to the contrary.
     The government argues that the appellant was permitted to cross-
examine both witnesses on the only relevant fact – whether they were using
illicit drugs that night. The appellant argues that the text messages were
critical to their case because there was no other evidence that the witnesses’
actually used drugs that night prior to the assault. Moreover, the appellant
argues that the members should have been made aware of the text messages
because it may have explained the erratic behavior of the witnesses prior to
and after the assault.
    MIL. R. EVID. 403 “addresses prejudice to the integrity of the trial process,
not prejudice to a particular party or witness.” United States v. Collier, 67
M.J. 347, 354 (C.A.A.F. 2009). Here, the military judge asserted that the
content of the text messages was “certainly extremely prejudicial” without
further explanation. 23 The military judge made no findings on the record
regarding the specific potential prejudicial impact to either MC, AS, or to the
trial process that might be created by the cross-examination of the two
witnesses regarding their discussion about getting high just hours before
they were sexually assaulted. From the record, it appears that the military
judge was incorrectly concerned with only the prejudice to the individual
witnesses, and gave no consideration to the prejudicial impact on the trial
process of the fact-finder determining the veracity of the evidence. Presuma-
bly the potential prejudicial impacts to the process are that the members
would be predisposed against MC and AS if they were painted as drug users
and therefore generally bad people, the members would confuse the issues, or
the members would be misled by that characterization. None of these were
articulated by the military judge, and yet all of these potential impacts could
be easily dispelled by appropriate instructions to the members. See Collier, 67
M.J. at 355 (“Members are presumed to follow the military judge’s instruc-
tions to consider evidence for a proper purpose . . . and not let personal beliefs
or feelings affect their determinations about witness credibility.”).
   The trial defense counsel’s proposed line of questioning, and the infer-
ences fairly drawn from it, are relevant to the issue of the witnesses’ ability
to perceive. We find that the probative value of the proposed cross-
examination is not substantially outweighed by the danger of unfair preju-



   23   R. at 686.


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                     United States v. Smith, No. 201800042


dice, confusing the issues, or misleading the members. Accordingly, we find
that the military judge abused his discretion because his ruling lacked an
articulated and supportable legal basis.

B. Constitutional Error
    Finding that the military judge’s ruling was an abuse of discretion, our
focus now turns to whether that error violated the appellant’s right to con-
front the witnesses against him under the Sixth Amendment. 24 The right of
confrontation under the Sixth Amendment includes the “constitutionally
protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-17
(1974). The right to confront witnesses through cross-examination is an
essential component of due process in a court-martial. United States v.
Sullivan, 70 M.J. 110, 123 (C.A.A.F. 2011) (Effron, C.J., dissenting) (citing
Chambers v. Mississippi, 410 U.S. 284, 294 (1973)). “Cross examination
allows the accused to expose to the [members] the facts from which
[they] . . . could appropriately draw inferences relating to the reliability of the
witness.” Collier, 67 M.J. at 352. An accused has the right to attack the
credibility of a witness through cross-examination and extrinsic evidence
showing “bias, prejudice, or any motive to misrepresent,” MIL. R. EVID.
608(c), or by showing that the witness lacked a capacity to observe and
perceive. See United States. v. Sojfer, 47 M.J. 425, 427 (C.A.A.F. 1998) (find-
ing the “capacity to observe, remember, and recollect . . . are grounds for
impeachment” similar to bias.).
         While trial judges retain wide latitude insofar as the Confron-
         tation Clause is concerned to impose reasonable limits on . . .
         cross-examination, an accused’s Confrontation Clause rights
         are violated when a reasonable jury might have received a sig-
         nificantly different impression of the witness’s credibility had
         defense counsel been permitted to pursue his proposed line of
         examination.
United States v. Jasper, 72 M.J. 276, 281 (C.A.A.F. 2013) (internal citations
and quotation marks omitted).
   In this case, the credibility of AS and MC and the reliability of their tes-
timony was central to the government’s case and critical to the appellant’s
defense. This is especially true with regards to AS because the appellant
admitted to having sex with MC but had no recollection of any sexual activity
with AS. The trial defense counsel effectively cross-examined both witnesses,
drawing out numerous beneficial facts, inconsistent statements, and biases



   24   U.S. CONST. amend. VI.


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                   United States v. Smith, No. 201800042


that tended to impeach their credibility as well as cast doubt on the reliabil-
ity of their testimony and their ability to perceive.
    At the time of the military judge’s erroneous ruling, it should have been
apparent that the additional cross-examination regarding the text message
discussion about getting high in the hours before the assault might have
resulted in the members’ having a “significantly different impression of the
witnesses’ credibility.” United States v. Moss, 63 M.J. 233, 237 (C.A.A.F.
2006). Accordingly, we find that the military judge’s erroneous ruling violated
the appellant’s Sixth Amendment confrontation rights because the witnesses’
testimony was central to the government’s case especially with respect to AS,
the appellant’s theory of the case was that AS and MC were both lying, and
the limitation on cross-examination prevented him from further exposing the
witnesses’ lack of credibility and inability to perceive.

C. Harmless Beyond Reasonable Doubt
    Finding constitutional error, we now test for prejudice using a harmless
beyond reasonable doubt standard. United States v. Davis, 73 M.J. 268, 271
(C.A.A.F. 2014) (quoting United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F.
2006)). Constitutional error is harmless if “it appears ‘beyond reasonable
doubt that the error complained of did not contribute to the verdict ob-
tained.’” United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). “Whether a constitutional
error was harmless beyond a reasonable doubt is a question of law reviewed
de novo.” United States v. Jasper, 72 M.J. 276, 282 (C.A.A.F. 2013) (quoting
United States v. Tearman, 72 M.J. 54, 62 (C.A.A.F. 2013)).
    When a military judge erroneously limits an accused’s ability to cross-
examine a witness, the government must “show that there is no reasonable
possibility that the error contributed to the contested findings of guilty.”
Jasper, 71 M.J. at 282 (quoting Collier, 67 M.J. at 355). “[T]he inquiry should
focus on whether the military judge’s ruling essentially deprived Appellant of
his best defense that may have tipped the credibility balance in Appellant’s
favor.” Id. (quoting Collier, 67 M.J. at 356). To determine whether the error
warrants relief, we do not need to conclude that the appellant’s strategy
would have succeeded, rather we weigh:
       [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 testimo-
       ny of the witness on material points, the extent of cross-
       examination otherwise permitted, and, of course, the over-all
       strength of the prosecution’s case.
Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).


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                    United States v. Smith, No. 201800042


    The appellant’s case hinged on the credibility and reliability of AS and
MC. The appellant’s theory was that AS and MC were both mistaken about
the identity of their assailant—that there was an unknown male who actual-
ly assaulted them, 25 that MC was lying to avoid accountability for underage
drinking and fraternization, and that AS was lying because she felt sorry for
MC. Undercutting the credibility of AS was especially important for the
appellant because he admitted to NCIS that he had sexual intercourse with
MC but not AS. Likewise the government’s case with respect to AS hinged on
her credibility as there were no other witnesses and no physical evidence
supporting her testimony. The government also relied on MC’s testimony to
show that after assaulting her, the appellant left her bed and moved to AS’s
bed where he assaulted AS. Casting doubt on both witnesses’ credibility,
ability to perceive, and ability to identify the assailant was very important to
the appellant’s case.
    The expected cross-examination would not have been cumulative because
only AS and MC could answer the questions about drugs and the meaning
and effect of the text messages. Other than the text messages, there was no
other evidence to determine whether AS and MC were under the influence of
an illicit drug during the assault. However, with regard to the ability of the
witnesses to perceive the events occurring around them, the record clearly
supports the fact that AS, MC, and the appellant were intoxicated and tired
at the time of the assaults.
    The appellant was otherwise permitted to cross-examine AS and MC to
expose inconsistencies in their testimony, bias, and motive to lie. Trial
defense counsel impeached AS exposing her frequent use of her roommate’s
identification to buy alcohol and gain admittance to clubs. Using a text
message exchange between AS and MC, the defense counsel was able to show
that on the evening immediately prior to the assault, AS purchased alcohol at
a liquor store and that AS lied to NCIS about how the alcohol was purchased.
AS was confronted with her unduly familiar relationship with the second
lieutenant UVA to whom she reported her assault. Finally, AS was confront-
ed with the counterintuitive facts that she never told the appellant to stop
touching her and she told him to leave because her bed was too small. As for
MC, she was confronted with her inconsistent statements to local law en-
forcement, NCIS, the sexual assault forensic examiner (SAFE) nurse, and the
crisis response interviewer regarding her description of AS’s room, how many
times the appellant penetrated her with his penis, whether he was wearing a



   25 Forensic evidence showed the presence of male DNA, not the appellant’s, on
both AS’s genitals and MC’s underwear. The appellant was acquitted of sexual
assault by penetrating MC’s vulva with his penis.


                                       9
                        United States v. Smith, No. 201800042


condom or not, and what she did when the appellant left her bed and moved
towards AS’s bed. Additionally, MC was cross-examined on her underage
drinking and fraternization with AS.
    Nevertheless, the government’s case was strong despite the effective
cross-examination of AS and MC. The appellant admitted to NCIS that he
had sexual intercourse with MC despite the absence of any flirting, kissing,
dirty dancing, or any other conduct that would lead him to believe that either
AS or MC was interested in him sexually. The appellant surmised that he
used a condom because the one he carried in his wallet was gone. MC woke
up later that morning and immediately went to the appellant’s room to
confront him. MC testified that the appellant “looked scared” 26 and told MC
that he “thought it was a dream.” 27 Meanwhile AS immediately reported the
sexual assault to her unit UVA. Later that same morning, the appellant
texted AS stating that he was “scared,” “thinking about killing” himself, and
that he was “so sorry.” 28 The appellant next texted his best friend that he “did
the dumbest shit ever” 29 and “thought it was all a [f***ing] dream.” 30 The
appellant also drafted an apology note to MC stating “I apologize for my
actions that night. I feel embarrassed, disgusted, and pitiful for even think-
ing it was the right thing to do.” 31 Finally, AS and MC gave statements to the
crisis response interviewer, SANE nurse, local law enforcement, and NCIS
that were consistent on the material facts of the assault.
    Given the over-all strength of the government’s case, the appellant’s oth-
erwise effective cross-examination, and the relatively limited contribution to
undercutting the credibility of AS and MC even if “the damaging potential of
the cross-examination were fully realized,” Collier, 67 M.J. at 355 (quoting
Van Arsdall, 475 U.S. at 684), the military judge’s error did not contribute to
a finding of guilty because it was relatively “unimportant in relation to
everything else the jury considered on the issue” of credibility and ability to
perceive. Id. (quoting Yates v. Evatt, 500 U.S. 391 (1991), overruled on other
grounds by Estelle v. McGuire, 502 U.S. 62, 72 n4 (1991)). Likewise, we are
not compelled to conclude that even if AS and MC were also under the influ-
ence of an illicit drug while being sexually assaulted or that their credibility



   26   R. at 677.
   27   Id.
   28   R. at 651; PE 2.
   29   R. at 651; PE 2.
   30   R. at 630-31; PE 7 at 1.
   31   PE 10.


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                   United States v. Smith, No. 201800042


was further diminished because they exchanged text messages about getting
high and then lied about remembering the text message conversation, it
would have “tipped the credibility balance” any more in favor of the appel-
lant. Moss, 63 M.J. at 239. We find that the government has carried its
burden to show that the military judge’s erroneous limitation on the cross-
examination of both AS and MC was harmless beyond a reasonable doubt.

                             III. CONCLUSION

    After careful consideration of the record of proceedings and the briefs of
appellate counsel, we have determined that the approved findings and
sentence are correct in law and fact and that no error materially prejudicial
to the appellant’s substantial rights occurred. Arts. 59 and 66, UCMJ. Ac-
cordingly, the findings and sentence are AFFIRMED.
   Senior Judge FULTON and Judge CRISFIELD concur.


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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