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

                             No. ACM 38995
                         ________________________

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

       Appeal from the United States Air Force Trial Judiciary
                          Decided 21 April 2017
                         ________________________

Military Judge: Matthew P. Stoffel.
Approved     sentence: Dishonorable discharge, confinement for 2 years,
forfeiture   of all pay and allowances, and reduction to E-1. Sentence
adjudged     9 December 2015 by GCM convened at Joint Base Lewis-
McChord,     Washington.
For Appellant: Captain Allen S. Abrams, USAF; Stephen H. Carpenter,
Jr., Esquire.
For Appellee: Colonel Katherine E. Oler, USAF; Major Jeremy D.
Gehman, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, SANTORO, and HARDING, Appellate Military
Judges.
Judge SANTORO delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge HARDING joined.
                         ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________
                 United States v. Carpenter, No. ACM 38995


SANTORO, Judge:
    A military judge sitting as a general court-martial convicted Appellant,
contrary to his pleas, of sexually assaulting a 13-year-old boy, in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b. The
adjudged and approved sentence was a dishonorable discharge, confinement
for two years, forfeiture of all pay and allowances, and reduction to E-1.
   Appellant raises two assignments of error: (1) the evidence is factually
and legally insufficient to sustain his convictions and (2) the military judge
abused his discretion by excluding evidence offered pursuant to Mil. R. Evid.
412. We disagree and affirm.

                               I. BACKGROUND
    JM was the 13-year-old son of an active-duty Air Force technical sergeant
living at Kadena Air Base, Japan. Appellant responded to a message JM
posted on Craigslist seeking a sexual encounter. After communicating via
Skype, Appellant and JM met and engaged in mutual fellatio and anal inter-
course.

                               II. DISCUSSION
A. Legal and Factual Sufficiency
    Appellant argues that the evidence is legally and factually insufficient to
sustain his convictions. We review issues of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test
for legal sufficiency is “whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.” United States v. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 324,
324 (C.M.A. 1987)). In applying this test, “we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001); see also United
States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of [Appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presump-
tion of innocence nor a presumption of guilt” to “make [our] own independent
determination as to whether the evidence constitutes proof of each required
element beyond a reasonable doubt.” Washington, 57 M.J. at 399. The phrase
“beyond a reasonable doubt,” however, does not mean that the evidence must


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                 United States v. Carpenter, No. ACM 38995


be free from conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.
1986). Our assessment of legal and factual sufficiency is limited to the evi-
dence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993).
    Appellant concedes that the charged conduct occurred. He contends, how-
ever, that he believed JM was at least 16 years old and therefore able to con-
sent to sexual activity. Although the prosecution was not required to prove
Appellant knew that JM had not attained the age of 16 years at the time the
sexual acts occurred, Appellant’s honest and reasonable mistake of fact as to
JM’s age would be a defense. Article 120b(d)(2), UCMJ. Under this defense,
JM must actually have been above the age of 12 and Appellant must have
had an incorrect belief that JM was at least 16 years old. Id. The ignorance or
mistake must have existed in Appellant’s mind and must have been reasona-
ble under all the circumstances as known to him. See United States v. Good-
man, 70 M.J. 396, 399 (C.A.A.F. 2010); United States v. Strode, 43 M.J. 29,
32-33 (C.A.A.F. 1995). To be reasonable the ignorance or mistake must have
been based on information, or lack of it, which would indicate to a reasonable
person that JM was at least 16 years old, and the ignorance or mistake can-
not be based on a negligent failure to discover the true facts. Department of
the Army Pamphlet 27-9, Military Judges’ Benchbook, ¶ 3–45b–2, Note 3 (10
Sep. 2014); see also United States v. True, 41 M.J. 424, 425 (C.A.A.F. 1995)
(applying mistake of fact defense to a charge of rape of an adult and stating
that “for one reasonably to believe something, one must have taken such
measures as to not be reckless or negligent with respect to the truth of the
matter.”). Appellant bears the burden of proof to establish the defense by a
preponderance of the evidence. Article 120b(d)(2), UCMJ.
    It was not disputed that JM told Appellant he was either 19 or 20 years
old. The Government’s evidence included testimony that Appellant told JM
he looked young for his age, that JM told Appellant he was on active duty and
living in base housing (when Appellant knew that an adult single Airman
would not be authorized to live in base housing). Finally, an Air Force Office
of Special Investigations agent testified that Appellant lied to them about
whether he had sex with JM.
    Appellant testified that he believed JM was 19 years old and that had he
known JM’s true age, he would not have engaged in sexual conduct with him.
He also testified that during a Skype session, JM told him that his drunk
friend was nearby, causing Appellant to think that Appellant was old enough
to have a friend who could consume alcohol. Additionally, Appellant testified
that JM had pubic hair and seemed more sexually aware than one would ex-
pect of a 13-year old.



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                 United States v. Carpenter, No. ACM 38995


   Both the Government and Appellant introduced photographs of JM. Un-
surprisingly, the photographs selected depict JM in a light consistent with
each side’s theory of the case (i.e., the Government’s photos make JM appear
younger whereas Appellant’s photos make JM appear older). The record does
not contain a photograph of JM as he appeared at trial.
    This case turns entirely on two things: the credibility of Appellant and
JM’s appearance and demeanor. Both are difficult—if not impossible—to di-
vine from a cold reading of words in a transcript. This is why we give great
deference to the trial court’s ability to hear and see the witnesses when we
conduct a factual-sufficiency review. “[T]he degree to which we ‘recognize’ or
give deference to the trial court’s ability to see and hear the witnesses will
often depend on the degree to which the credibility of the witness is at issue.”
United States v. Davis, 75 M.J. 537, 546 (Army Ct. Crim. App. 2015) (en
banc).
   A reasonable factfinder could have concluded that Appellant failed to
meet his burden to establish that he was both honestly and reasonably mis-
taken about JM’s age. The evidence is therefore legally sufficient to support
Appellant’s convictions.
    We have reviewed the evidence offered at trial, paying particular atten-
tion to Appellant’s arguments and the evidence with respect to JM’s purport-
ed age. Giving appropriate deference to the trial court’s ability to see and
hear the witnesses, and after our own independent review of the record, we
are ourselves convinced of Appellant’s guilt beyond a reasonable doubt.
B. Admissibility of Craigslist Messages
    The actual Craigslist message to which Appellant responded was appar-
ently no longer available and not admitted into evidence. However, in addi-
tion to the message to which Appellant responded, JM posted several addi-
tional messages soliciting sexual encounters and stating that his age was var-
iously 18, 19, or 20. These additional messages were posted after Appellant’s
encounter with JM, and Appellant never saw them. Trial defense counsel
wanted to cross-examine JM to establish both that he lied about his age in
those other messages and that he had sexual encounters with as many as six
additional adult men he met as a result. The military judge precluded that
testimony.
    Appellant contends the military judge erred. We review a military judge’s
decision to admit or exclude evidence for an abuse of discretion. United States
v. White, 69 M.J. 236, 239 (C.A.A.F. 2010). “The abuse of discretion standard
is a strict one, calling for more than a mere difference of opinion. The chal-
lenged action must be ‘arbitrary, fanciful, clearly unreasonable, or clearly er-



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                 United States v. Carpenter, No. ACM 38995


roneous.’” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (quoting
United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000)).
    Under the version of Mil. R. Evid. 412 in effect at the time of Appellant’s
trial, evidence offered by the accused to show that the alleged victim engaged
in other sexual behavior was inadmissible with three limited exceptions. The
third exception stated 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). This exception includes an accused’s Sixth Amendment right to
confront witnesses against him, including the right to cross-examine and im-
peach those witnesses. United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F.
2011).
    If there is a theory of admissibility under one of the exceptions, the mili-
tary judge must conduct the 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 the proba-
tive value of the evidence outweighs the dangers of unfair prejudice.” Eller-
brock, 70 M.J. at 318. Evidence is relevant if it 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 con-
sequence to the determination of appellant’s guilt.” United States v. Dorsey,
16 M.J. 1, 6 (C.M.A. 1983) (citations and quotation marks omitted).
    Based on the posture of the case, JM’s testimony that he lied to Appellant
about his age, and Appellant’s admission the sexual conduct occurred, the
only remaining fact of consequence to the determination of Appellant’s guilt
was whether he mistakenly and reasonably believed at the time of the sexual
acts that JM was at least 16 years old. We agree with the military judge that
Craigslist messages JM posted after his encounter with Appellant, of which
Appellant had no knowledge, could not possibly be relevant to Appellant’s ac-
tual belief about JM’s age.
     Appellant also argued, however, that the sexualized language JM used in
the messages and subsequent emails JM sent to other men suggested that he
had knowledge beyond that of the ordinary 13-year old. This, he argues,
would corroborate his subjective belief that JM was older than 13 and sug-
gest that his subjective belief was objectively reasonable because JM “was
adept at concealing his age.” As noted by the military judge, this argument
also fails because the relevant inquiry with regard to whether Appellant’s be-
lief about JM’s age was objectively reasonable is based on the facts known to
Appellant at the time of the conduct. Appellant was unaware of JM’s messag-
es or interaction with other men so that conduct was not relevant to Appel-
lant’s mistake-of-fact defense.



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                 United States v. Carpenter, No. ACM 38995


    Finally, Appellant argues that other adult men’s decisions to engage in
sexual conduct with JM establish that Appellant’s belief was objectively rea-
sonable because, he posits, those other men would not have engaged in the
conduct had they known JM’s true age. Whatever probative value this argu-
ment might have—and we believe it has very little, if any—is undercut by the
fact that Appellant sought to introduce this evidence through cross-
examination of JM. However, JM would not have been able to testify about
his paramours’ subjective belief about his age or speculate as to whether they
would have engaged in sexual conduct had they known his true age.
   We agree with the military judge that the proffered evidence was irrele-
vant to the mistake-of-fact defense. The military judge therefore did not
abuse his discretion by excluding it.

                              III. CONCLUSION
    The findings of guilt and the 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
findings and sentence are AFFIRMED.



                FOR THE COURT



                MICAH L. SMITH
                Deputy Clerk of the Court




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