UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           MULLIGAN, FEBBO, AND WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Sergeant FRANCIS A. CARISTA
                          United States Army, Appellant

                                   ARMY 20150243

                             Headquarters, Fort Bliss
                       Timothy P. Hayes, Jr., Military Judge
                  Colonel Karen H. Carlisle, Staff Judge Advocate


For Appellant: Captain Joshua B. Fix, JA (argued); Lieutenant Colonel Jonathan F.
Potter, JA; Lieutenant Colonel David E. Coombs, JA (on brief); Major Andres
Vazquez, Jr., JA.

For Appellee: Captain Jennifer A. Donahue, JA (argued); Colonel Mark H.
Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta
Smith, JA; Captain Jennifer A. Donahue, JA (on brief).

                                    18 January 2017
                               ---------------------------------
                                OPINION OF THE COURT
                               ---------------------------------

WOLFE, Judge:

       The victim in this case is a ten year-old girl named JG. In class one day, JG’s
teacher noticed her scratching or rubbing her groin. The teacher pulled her into the
hallway to discuss what she was doing. In response to her teacher’s questions, JG
told her teacher she had been molested by appellant.

        At trial, the government introduced the teacher’s testimony that JG’s behavior
in class was “masturbation.” The defense objected and argued that the evidence of
masturbation was “sexual behavior” by the victim, which was covered by Military
Rule of Evidence [hereinafter Mil. R. Evid.] 412. The military judge overruled the
defense objection. Having preserved the error at trial, the defense asks this court for
relief.

      Today we take up the defense’s assignment of error and address the
application of Mil. R. Evid. 412 to the government. Does Mil. R. Evid. 412 apply to
CARISTA—ARMY 20150243

the government? Yes. Must the government follow the procedural requirements
before introducing evidence that falls under Mil. R. Evid. 412? Again, yes. And,
finally, what happens when the military judge admits government Mil. R. Evid. 412
evidence without first requiring the government to follow the rule’s procedural
requirements? We test for prejudice.

                                  BACKGROUND

       A general court-martial consisting of a military judge sitting alone convicted
appellant, contrary to his pleas, of two specifications of lewd acts with JG, a child
under the age of 12, in violation of Article 120b, Uniform Code of Military Justice,
10 U.S.C. § 920b (2012) [hereinafter, UCMJ]. The trial counsel asked the military
judge to sentence appellant to be confined for seven years. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for eight
years, and a reduction to the grade of E-1.

       The sole issue we discuss on appeal regards the admissibility of JG’s conduct
in class under Mil. R. Evid. 412. 1 At trial, the defense characterized her behavior as
scratching a genital itch. The defense used this characterization to argue that the
allegations of child sexual assault all came from the initial leading questions by the
teacher, which then snowballed into a false accusation. The government, in contrast,
believed that JG had been masturbating in class. The government argued that the
evidence was admissible to explain the initial outcry of sexual assault and to show
unusual sexual behavior by a child.




1
  Although intertwined, appellant does not claim on appeal that JG’s accusatory
statements to her teacher that appellant had assaulted her were inadmissible. At
trial, the defense objected to the statements as hearsay. The government responded
that the statements were an excited utterance and that they constituted a prior
consistent statement offered to rebut an allegation of recent fabrication. While the
government offered to lay a foundation for the excited utterance, the military judge
overruled the defense objection because he found it was a prior consistent statement.
Accordingly, the issue we discuss today is limited to whether the military judge
correctly allowed JG’s teacher to testify that she saw JG masturbating in class.
Appellant’s remaining assignment of error that the findings are factually
insufficient, as well as the matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), do not merit detailed discussion or
relief.


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                              LAW AND DISCUSSION

    A. Goose and Gander: Application of Mil. R. Evid. 412 to Government Evidence.

        At trial, and initially on appeal, the government argued that Mil. R. Evid. 412
does not apply to government evidence. Specifically, and perhaps speciously, at
trial the government stated that they did not believe that JG’s act of masturbation
constituted “sexual behavior” and, that since masturbation happened in an open
classroom, JG had no privacy interest in its exclusion. However, at oral argument
before this court, both parties agreed that Mil. R. Evid. 412 applies to government
evidence. That is, if the government intends to introduce evidence of “other sexual
behavior” by the victim, the government must have an exception to the rule under
Mil. R. Evid. 412(b) and must follow the due process requirements contained in Mil.
R. Evid. 412(c).

       By its own terms the rule clearly applies to both parties. See Mil R. Evid.
412(c)(1) (“A party intending to offer evidence . . . .”). Our superior court has
likewise stated, if in dicta, that Mil. R. Evid. 412 applies to both parties. United
States v. Banker, 60 M.J. 216, 223 (C.A.A.F. 2004) (“M.R.E. 412(a)’s general rape
shield rule is applicable to both parties.”). Guided by the plain language of the rule,
our superior court’s prior decisions, and the agreement of both parties at oral
argument, we also agree. This interpretation is also in alignment with the purpose of
the rule. Id. at 221 (The purpose of Mil. R. Evid. 412 is “to protect alleged victims
of sexual offenses from undue examination and cross-examination of their sexual
history.”) (emphasis added). While a victim’s interests are often in accord with
those of the prosecution, such solidarity of purpose cannot be presumed. When a
party intends to offer evidence of a victim’s sexual behavior that is not part of the
res gestae of the charged offense, 2 a victim’s privacy interest and the concurrent
right to a notice and a hearing are not diminished because the offering party happens
to be the government and not the defense.

                   B. Government Exceptions to Mil. R. Evid. 412.

      Before addressing the military judge’s ruling in this case, we briefly address
the exceptions that could apply to government evidence. Of the three exceptions
contained in Mil. R. Evid. 412(b)(1), it is likely that only the second could arguably


2
 Mil. R. Evid. 412(a)(1) only applies to “other sexual behavior.” As the advisory
committee notes to Federal Rule of Evidence [hereinafter Fed. R. Evid.] 412(a)(1)
make clear, “[t]he word ‘other’ is used to suggest some flexibility in admitting
evidence ‘intrinsic’ to the alleged sexual misconduct.” Advisory Committee Notes,
1994 Amendments, Fed. R. Evid. 412. As the military judge and both parties agree
on appeal that Mil. R. Evid. 412 applies to the classroom masturbation, we do not
discuss in depth the limits of when conduct is intrinsic to the charged offense.


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CARISTA—ARMY 20150243

apply to the government: “evidence of specific instances of sexual behavior by the
alleged victim with respect to the person accused of the sexual misconduct offered
by . . . the prosecution.” Id. (emphasis added). As the italicized language indicates,
the key issue we must decide is what does sexual behavior “with respect to the
person accused” mean? Or, in this case, is post-assault masturbation by a child
while in school “with respect to” appellant?

      At oral argument, appellant argued that we should read “with respect to” to
mean “with.” That is, the exception is limited to circumstances where the victim
and accused engaged in sexual behavior with each other. We do not find that
reading persuasive.

       First, that is not the plain language of the rule. If the drafters had meant
“with” they likely would have said so. Instead, although not a model of clarity, the
rule’s use of “respect to” appears to be broader than just sexual conduct with the
accused.

       Second, appellant’s reading of the rule would serve to exclude victim impact
evidence from sentencing. A victim’s hesitancy to engage in post-assault intimacy
with his or her partner–likely admissible aggravation evidence under Rule for Court-
Martial [hereinafter R.C.M.] 1001(b)–would be excluded from trial if it was not
“with respect to” the person who committed the assault. That is, otherwise
admissible testimony of evidence in direct aggravation of the offenses would be
excluded under appellant’s reading. 3

       Accordingly, we interpret “with respect to the person accused” as requiring a
logical nexus between the accused and the sexual behavior of the alleged victim in
question. This could include post-assault changes in sexual behavior if they are
logically related to the assault. Of course, as with all evidence introduced under
Mil. R. Evid. 412, such evidence must also be logically and legally relevant under
Mil. R. Evid 402 and 403.




3
  This issue likely reflects a difference in how rules of evidence are applied in
federal courts versus courts-martial. The rules of evidence are fully applicable in
court-martial presentencing proceedings, but do not apply to presentencing
proceedings in federal district courts. Compare Mil. R. Evid. 1101 with Fed. R.
Evid. 1101(d)(3). However, changes to the Federal Rules of Evidence are
automatically incorporated into Military Rules of Evidence. Mil. R. Evid. 1102(a).
Thus, rules of evidence that were designed for use only during the guilt phase of a
civilian trial, are automatically incorporated into court-martial presentencing
proceedings.



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CARISTA—ARMY 20150243

                           C. The Military Judge’s Ruling.

      The military judge twice ruled on the defense’s objection to evidence that JG
masturbated in class.

       The first objection was to the government’s opening statement. In this judge
alone case, the trial counsel began his argument by telling the military judge that the
case started when JG’s teacher “observes [her] masturbating during after-class
tutoring.” The military judge overruled the defense’s objection and stated that Mil.
R. Evid. 412 could not be used “as a sword” to prohibit the admission of government
evidence. However, the military judge specifically (and repeatedly) limited his
ruling to the issue of whether it was a proper opening statement.

       Appellant’s second objection came when the government called JG’s teacher
to the stand to testify that she saw the young girl masturbating in class. The military
judge ruled as follows:

             I disagree with the government that this is not sexual
             behavior. I find that it is sexual behavior. However, I
             also find that there is an exception for the prosecution to
             introduce that behavior if it is relevant, material, or
             favorable, and if the proper balancing test is applied. And
             having made those considerations, I find that based on the
             proffer by the government that the evidence is deduced
             [sic] to indicate why the initial outcry was made or why
             the school officials--it was brought to their attention--I
             find it’s probative for that reason and outweighs any
             unfair prejudice to the accused by letting in this alleged
             sexual misconduct by the victim in this case. So I’m
             going to allow [JG’s teacher] to discuss what she saw [JG]
             doing.

       We interpret the military judge’s ruling as having three parts. First, by
stating that the in-class masturbation was “sexual behavior” the military judge
rejected the trial counsel’s arguments that this evidence fell outside of Mil. R. Evid.
412. Second, the military judge found an exception to Mil. R. Evid. 412 for
government evidence that is “relevant, material, or favorable.” Although the
military judge did not explicitly state so, this appears to be an adaptation from the
“constitutional exception” in Mil. R. Evid. 412(b)(1)(C). See United States v.
Ellerbrock, 70 M.J. 314, 318 (CAAF 2011); United States v. Gaddis, 70 M.J. 248
(CAAF 2011). However, as noted above, the constitutional exception by its own
terms does not apply to government evidence. Mil. R. Evid. 412(b)(1)(C) (“evidence
that exclusion of which would violate the constitutional rights of the accused.”)
(emphasis added).



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CARISTA—ARMY 20150243

Third, the military judge appeared to limit the admissibility of the evidence to
explain how appellant’s conduct first came to light–the “initial outcry.” That is, the
military judge appeared to admit the evidence only for the purpose of explaining
why JG ended up in the hallway answering questions from her teacher, and did not
admit the testimony of masturbation as substantive evidence of an offense.

                               D. The Tipsy Coachman.

       On appeal, and clarified during oral argument, the government argues that
while the military judge applied the wrong exception, evidence regarding JG’s
masturbation in class was nonetheless admissible as “sexual behavior by the alleged
victim with respect to the person accused. . . .” In other words, the government
argues that the trial court reached the right results for the wrong reason.

       The principle is sometimes referred to as the “tipsy coachman” doctrine. See,
e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“This long-standing
principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine,
allows an appellate court to affirm a trial court that ‘reaches the right result but for
the wrong reasons’ so long as ‘there is any basis which would support the judgment
in the record.’”) (citation omitted). Georgia Supreme Court Justice Bleckley quoted
Oliver Goldsmith's 1774 poem, Retaliation, to illustrate the concept. 4

             It may be that we would draw very different inferences
             [from those drawn by the trial court], and these
             differences might go to uphold the judgment; for many
             steps in the reasoning of the court below might be
             defective, and still its ultimate conclusion be correct. It
             not infrequently happens that a judgment is affirmed upon
             a theory of the case which did not occur to the court that
             rendered it, or which did occur and was expressly
             repudiated. The human mind is so constituted that in
             many instances it finds the truth when wholly unable to
             find the way that leads to it.

Lee v. Porter, 63 Ga. 345, 346 (1879).




4
 “The pupil of impulse, it forc’d him along,
His conduct still right, with his argument wrong;
Still aiming at honour, yet fearing to roam,
The coachman was tipsy, the chariot drove home.”

Oliver Goldsmith, Retaliation, 45-48.


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CARISTA—ARMY 20150243

        Military courts have in the past given this principle the less colorful
appellation of “right result, wrong reason.” See, e.g., United States v. Robinson, 58
M.J. 429, 433 (C.A.A.F. 2003) (“ . . . the military judge’s error was harmless,
because the military judge reached the correct result, albeit for the wrong reason.”);
United States v. Leiffer, 13 M.J. 337, 345 n.10 (C.A.A.F. 1982) (“however, ‘[I]n the
review of judicial proceedings the rule is settled that, if the decision below is
correct, it must be affirmed, although the lower court relied upon a wrong ground or
gave a wrong reason.’”) (quoting Helvering v. Gowran, 302 U.S. 238, 245 (1937));
see also, Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711, (1996) (“affirm[ing]
on grounds different from those provided by the Ninth Circuit”); Seremeth v. Bd. of
Cnty. Comm’rs Frederick Cnty, 673 F.3d 333, 337 n.2 (4th Cir. 2012) (“[W]e may
affirm a [trial] court's decision on different grounds than those employed by the
[trial] court[.]”); Jordan v. Travelers Ins. Co., 245 So. 2d 151, 153 n.2 (La. 1971)
(“[T]he appellate court may affirm on grounds different than those argued before or
relied upon by the lower court.”); Schmehl v. Helton, 662 S.E.2d 697, 705 n.7 (W.
Va. 2008) (“[T]his Court may in any event affirm the circuit court on any proper
basis, whether relied upon by the circuit court or not.”).

       Here, we find the testimony that JG was masturbating in school to be squarely
within the exception provided in Mil. R. Evid. 412(b)(1)(B). The government’s
theory of the evidence–and the reason the defense opposed it–was that it explained
why JG’s teacher called JG into the hall and gave context to JG’s subsequent
explanation. Thus, although the military judge erred in applying the constitutional
exception to government evidence, we do not disagree with his ultimate conclusion
that the evidence was admissible under an exception to Mil. R. Evid. 412. In other
words, the government showed that the post-assault masturbation was “with respect
to the person accused.”

                  E. Mil. R. Evid. 412(c) Procedural Requirements.

       Notwithstanding that we find under the tipsy coachman doctrine an applicable
exception, we must still address the absence of the threshold procedural steps
required under the rule. If a close reader has noticed that we have failed to mention
what happened during the closed Article 39(a), UCMJ, session held pursuant to Mil.
R. Evid. 412(c)(2), it is because one did not happen. Nor does it appear that JG or
the defense was provided notice of the government’s intent to offer evidence of
“other sexual behavior.” Thus, we do not know how JG felt (or more accurately the
opinion of her parents or guardian) on the testimony in open court about her
classroom masturbation. It could be that they would offer no objection. Or,
alternatively, given their somewhat reluctance to participate in the case, they could
have argued in favor of exclusion given the evidence’s limited probative value. If
the purpose of the rule, at least in part, is to provide victims due process before
discussing their sexual history in open court then its purpose was not well served
here.



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CARISTA—ARMY 20150243

       Of course, appellant lacks standing on appeal to claim any violation of JG’s
procedural rights under Mil. R. Evid. 412. However, appellant himself was entitled
to notice before evidence covered by Mil. R. Evid. 412 could be admitted. Mil. R.
Evid. 412(c)(1)(A). Having received no notice, appellant may justifiably rely on the
absence of notice in planning his trial strategy. And a party can cry foul when,
having received no notice, such evidence is admitted mid-trial.

       Mil. R. Evid. 412(c)(1)(A) requires notice to be filed with the opposing party
“at least 5 days prior to entry of pleas . . . .” The military judge may direct an
alternative time for filing, or allow filing mid trial, but only for “good cause
shown.” We do not believe the trial counsel’s belief that the masturbation in
question did not constitute “sexual behavior” would qualify as “good cause shown.”
Nor, unless the exception were to swallow the rule, would negligence or
forgetfulness qualify as “good cause.” Defense counsel are routinely required to file
motions under Mil. R. Evid. 412(c). When they do not, in the absence of good
cause, the evidence is inadmissible. We see no reason to hold the government to a
lesser standard.

       Here, the military judge did not explain why he was allowing the government
to introduce Mil. R. Evid. 412 evidence mid-trial. It is therefore not clear whether
the military judge found good cause or not. While we would normally give
substantial deference to a military judge’s good cause determination, we cannot give
deference to an unstated, sub silento finding. Reviewing the record ourselves we do
not find any good cause that would excuse the government’s failure to provide
notice under Mil. R. Evid. 412.

      Accordingly, we find that the military judge committed error when, in the
absence of good cause, he allowed the government to present testimony covered by
Mil. R. Evid. 412 without proper notice.

                                      F. Prejudice.

       Having found error, we next turn to whether appellant was prejudiced. We
find no material prejudice to appellant. UCMJ, art. 59(a).

       First, although the defense did object at trial to the lack of notice, they did not
articulate any prejudice stemming from the lack of notice. In our review of the
record, we find none. As the defense admitted at trial, they were well aware of the
evidence of masturbation from the pretrial discovery and preliminary hearing under
Article 32, UCMJ, even if they were not formally served notice that the government
intended to use it.

      Second, it should be noted the defense did not seek to exclude all testimony
about what JG’s teacher saw. Rather, what the teacher described as masturbation the


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CARISTA—ARMY 20150243

defense sought to label as scratching. The defense’s entire theory of the case was
that leading questions from JG’s teacher were the inception for a false report that
then snowballed with each retelling.

       Third, whether testimony about masturbation was admitted or not under Mil.
R. Evid. 412 is unrelated to whether JG’s statement to her teacher accusing appellant
of assault would be admitted. The actual accusation was (and is) by far the more
damaging. In other words, had the military judge sustained the defense objection the
evidence against appellant would have been substantially the same. JG’s teacher,
for example, could have testified that after seeing some unusual behavior (without
mentioning masturbation), she called JG into the hallway for an explanation. JG’s
subsequent explanation–that appellant had sexually assaulted her–would have had
less context, but would have had the same probative value.

       Fourth, the military judge appeared to limit his admission of the testimony
regarding masturbation to explain why JG’s teacher called her into the hall. In
overruling the defense objection, the military judge did not, for example, admit the
testimony as substantive evidence that an eleven-year-old girl who is masturbating
in class must have been sexually assaulted by someone.

                                   CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge FEBBO concur.


                                       FOR THE COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court




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