              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                         v.

                                   Senior Airman PAUL Y. STEPHAN
                                         United States Air Force

                                                   ACM 38568

                                                25 August 2015

            Sentence adjudged 11 December 2013 by GCM convened at Presidio of
            Monterey, California. Military Judge: Todd E. McDowell.

            Approved Sentence: Bad-conduct discharge, confinement for 1 month, and
            reduction to E-3.

            Appellate Counsel for the Appellant: Major Thomas A. Smith.

            Appellate Counsel for the United States:                Major Matthew J. Neil and
            Gerald R. Bruce, Esquire.

                                                      Before

                                     ALLRED, HECKER, and TELLER
                                        Appellate Military Judges

                                         OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



TELLER, Judge:

       The appellant was convicted by a panel of officer members, contrary to his pleas,
of abusive sexual contact and assault consummated by a battery, in violation of Articles
120 and 128, UCMJ, 10 U.S.C. §§ 920, 928.* The court sentenced him to a bad-conduct
discharge, confinement for 1 month, and reduction to the grade of E-3. The sentence was
approved as adjudged.

*
 The appellant was acquitted of one specification of abusive sexual contact and one specification of sexual assault
by causing bodily harm.
       The appellant argues that the military judge erred by excluding certain evidence
under Mil. R. Evid. 412. Finding no error that materially prejudices a substantial right of
the appellant, we affirm the findings and sentence.

                                       Background

       The appellant, a cryptologic language analyst, had returned to the Defense
Language Institute for training in an additional language specialty. While at an on-base
community center, he met a group of first-time language training students and offered to
let them share a theater room he had reserved. After the group watched a movie at the
center, the appellant offered to continue the party in his hotel room. Several male
soldiers and one female soldier, the victim, agreed.

       Once at the appellant’s room, the party took a different turn. Between drinks at
the community center and drinks consumed at the hotel room, many of the attendees had
consumed a significant amount of alcohol. Within a short time after arriving at the room,
both the appellant and the victim were substantially intoxicated. Two of the soldiers
suggested they watch a movie, one they knew included substantial nudity. For a period
of time, several of the attendees engaged in a drinking game where the participants would
all take a drink every time a movie scene depicted nudity. During this time, several of
the males flirted with the victim, often through physical attention.

       The appellant, who was on the bed along with the victim and some others, made
overtures towards her. He touched her on the arm and was moving his hand towards her
breast when she told him to stop. Later, he placed his hand on her leg and slid it up and
touched her groin over her clothes before she told him to stop. Other attendees also
touched the victim while they were on the bed, including one soldier who massaged her
shoulders and back.

       Throughout the night, the victim and one of the male soldiers became increasingly
intimate. After the end of the movie, the two began kissing and touching each other.
This foreplay escalated to consensual sexual intercourse on the bed in view of the other
attendees. At one point during intercourse, the victim squeezed the hand of a third
soldier who was on or near the bed.

       At some point after having sex, the male soldier got up to go to the bathroom and
the victim began to doze off. The appellant went to the foot of the bed, slid his hands up
the victim’s legs and, hooking his fingers over the waistline, attempted to remove the
victim’s pants. The victim’s paramour returned from the bathroom and intervened, along
with another soldier who had witnessed the victim’s previous objections to the
appellant’s advances, causing the appellant to abandon the effort.




                                             2                                   ACM 38568
       For this conduct, the appellant was convicted of abusive sexual contact for
touching the victim’s groin with his hand and of assault consummated by a battery for
pulling on the victim’s pants.

                  Exclusion of Evidence of the Victim’s Sexual Conduct

       The appellant argues that the military judge erred when he ruled that Mil. R. Evid.
412 prohibited the appellant from introducing evidence about the victim’s sexual conduct
at the hotel with her paramour and the soldier holding her hand. The appellant asserts
that the evidence was constitutionally required to support a defense of mistake of fact as
to consent because “it tends to show [the victim] was comfortable with multiple men
touching her in an intimate manner simultaneously.”

       We review a military judge’s ruling whether to exclude evidence under
Mil. R. Evid. 412 for abuse of discretion. United States v. Ellerbrock, 70 M.J. 314, 317
(C.A.A.F. 2011). Findings of fact are subject to a clearly erroneous standard of review,
while conclusions of law are reviewed de novo. Id.

       Mil. R. Evid. 412, often referred to as a rape-shield law, protects complaining
witnesses from “the often embarrassing and degrading cross-examination and evidence
presentations common to [sexual offense prosecutions].” Drafter’s Analysis, Supplement
to Manual for Courts-Martial, United States (MCM), A22-41 (2012 ed.); see also United
States v. Gaddis, 70 M.J. 248, 252 (C.A.A.F. 2011). Mil. R. Evid. 412 provides that
evidence offered by the accused to prove the alleged victim engaged in other sexual
behavior is generally inadmissible. The rule incorporates three exceptions, only one of
which is relevant to this case.

       Mil. R. Evid. 412(b)(1)(C) states that evidence otherwise covered by Mil. R. Evid.
412 is admissible if “the exclusion of [such evidence] would violate the constitutional
rights of the accused.” Evidence falls under the exception in Mil. R. Evid. 412(b)(1)(C)
when the evidence is relevant, material, and the probative value of the evidence
outweighs the dangers of unfair prejudice. Ellerbrock, 70 M.J. at 318.          Relevant
evidence is any evidence that has “any tendency to make a fact [of consequence] more or
less probable than it would be without the evidence.” Mil. R. Evid. 401(a).

       The military judge found the defense had failed to meet its burden to demonstrate
how the proffered evidence fit under the constitutionally required exception. He
addressed the relevance of the proffered evidence in his written ruling, finding “[a]s a
threshold matter, that [the victim] engaged in consensual sexual intercourse with
someone other than the Accused and squeezed the hand of a third person at the same time
does not rationally support a mistake of fact as to consent theory and is therefore
irrelevant.”




                                            3                                   ACM 38568
       The fundamental question is whether the victim’s sexual conduct with others, in
the presence of the appellant, makes the existence of her consent to contact by the
appellant, or a reasonable belief of such consent, more or less probable. We find it does
not. Consent to sexual contact is based on the identity of the partner, not on the victim’s
willingness to engage in any specific type of contact with others. See United States v.
Booker, 25 M.J. 114, 116 (C.M.A. 1987). Without question, Mil. R. Evid. 412 rejects the
notion that a lack of chastity in general raises a reasonable inference of consent to any
other act. Whether the victim was “comfortable” with contact with any other attendee,
alone or simultaneously, is not rationally related to whether she consented to any contact
with the appellant. We find the military judge did not abuse his discretion in excluding
the evidence at issue.

                                       Conclusion

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



              FOR THE COURT



              STEVEN LUCAS
              Clerk of the Court




                                             4                                   ACM 38568
