UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              HAIGHT, PENLAND, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                       Private First Class JARRID R. LOVETT
                            United States Army, Appellant

                                      ARMY 20140580

                            Headquarters, Fort Knox
       Steven E. Walburn, Military Judge (arraignment and pretrial motions)
           Gregory R. Bockin, Military Judge (pretrial motions and trial)
        Colonel Christopher T. Fredrikson, Staff Judge Advocate (pretrial)
          Colonel E. Edmund Bowen, Jr. Staff Judge Advocate (post-trial)


For Appellant: Major Aaron R. Inkenbrandt, JA; Captain Heather L. Tregle, JA.

For Appellee: Major A.G. Courie, III, JA.


                                        29 April 2016
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       A general court-martial composed of officer members convicted appellant,
contrary to his pleas, of one specification of sexual assault, in violation of Article
120(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 920(b)(2) [hereinafter
UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement for
four years, forfeiture of all pay and allowances, reduction to the grade of E-1, and
hard labor without confinement for three months. The convening authority
disapproved the hard labor without confinement but otherwise approved the sentence
as adjudged. The automatic forfeitures were waived for a period of six months. The
adjudged forfeitures were deferred until action. At action, the adjudged forfeitures
LOVETT—ARMY 20140580

were suspended for forty-three days at which point, as they had not been earlier
vacated, they were remitted. 1

       Appellant’s case is now before this court for review pursuant to Article 66,
UCMJ. Appellant submitted this case on its merits. However, we find two matters
warrant detailed discussion, including matters raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2

1
 The combined effect of the deferment, suspension, and waiver of the adjudged and
automatic forfeitures was that appellant’s dependents received the otherwise
forfeited pay for a period of six months.
2
 The Grostefon matters raised by appellant but not discussed in detail are as
follows:

First, appellant claims that his due process and equal protection rights were violated
with regards to the issue of “voluntary intoxication.” We agree with the military
judge that when, as here, the sexual act does not involve a specific intent
requirement, appellant’s voluntary intoxication is not legally relevant to whether he
committed the offense. See Rule for Courts-Martial [hereinafter R.C.M.] 916(l)(2)
(“evidence of any degree of voluntary intoxication may be introduced for the
purpose of raising a reasonable doubt as to the existence of actual knowledge,
specific intent, or premeditated design to kill . . . .”)

Second, appellant argues the military judge erroneously denied his request for an
expert consultant in forensic psychology. We find the military judge’s denial of the
motion was within his discretion.

Third, appellant complains that the military judge impermissibly restricted
appellant’s general voir dire questions. Neither party followed the military judge’s
pretrial order on the submission of general voir dire questions. We find that the
military judge did not abuse his discretion in limiting the general voir dire
questions, and in any event, any error was harmless given the liberal individual voir
dire of every panel member.

Fourth, appellant avers that the military judge improperly excluded the recording of
a 911 call that summoned the police to the scene of the assault and subsequent
altercation. We do not find error in the military judge’s ruling at the time he made
it. To the extent that the government’s cross-examination of the witness opened the
door to admitting the recording, appellant did not ask the military judge to revisit his
ruling. Even assuming error, we find no prejudice given that the 911 recording was

                                                                         (continued…)


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                                 I. BACKGROUND

       Specialist (SPC) WL lived on Fort Knox, Kentucky. Specialist WL was a
platoon mate, battle buddy, friend, and neighbor of appellant. Both of their wives
were also friends. Specialist WL was the primary witness for the government in
testifying as to the charged offense and testified as follows:

       On 30 May 2013, after the unit had been given time off to spend with family
in anticipation of an upcoming deployment, SPC WL had a barbecue at his house.
SPC WL and appellant together purchased beer and hard liquor for the get-together.
SPC WL, appellant, both of their wives, as well as other neighbors attended the
party. During the course of the evening, SPC WL’s wife, Mrs. SL, became grossly
intoxicated after drinking beer and hard liquor on an empty stomach.

       After Mrs. SL fell down outside and vomited in the yard, SPC WL assisted his
wife to the house. Inside the house, she continued to vomit in the bathroom,
eventually emptying the contents of her stomach. After she stopped throwing up for
a minute, SPC WL decided he needed to get her into bed. With her arm around him,
he walked her towards the bedroom. Once in the bedroom, Mrs. SL vomited bile and
began to “dry-heave.” She then urinated on herself. SPC WL removed his wife’s
shorts and underwear, attempted to clean her up, and placed her in her bed and
covered her with blankets. From the point they entered the bedroom, SPC WL


(…continued)
cumulative with the testimony of the neighbor who called 911 and testified for the
defense as to what he saw and heard.

Fifth, appellant complains that the military judge improperly gave an instruction
limiting the permissible uses of Sergeant (SGT) Arcovio’s testimony. The limiting
instruction was crafted by both parties and appellant’s counsel specifically agreed
that the instruction was “an appropriate limiting instruction.” We find appellant
waived the issue.

Sixth, appellant complains that he was served two different convening authority
actions. In our review of the post-trial matters, it appears that the staff judge
advocate forwarded with the post-trial recommendation (SJAR) an unsigned draft
version of the proposed convening authority action. The SJAR and the draft action
did not recommend or provide for clemency. We find no error in providing
appellant a copy of the proposed action. Providing the proposed action before he
submitted clemency matters made transparent the potential effect of the SJAR’s
recommendation. Even assuming error, appellant forfeited the issue by failing to
object and he has not demonstrated the material prejudice of any substantial rights.
See R.C.M. 1106(f)(6).
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testified that he “was trying to talk to her. And she wasn’t responding to anything.”
Appellant was with SPC WL the entire time he was assisting his wife.

       Specialist WL then turned off the bedroom lights, left the door cracked open,
and went outside to have a cigarette with appellant. As the party wound down, SPC
WL told appellant that “[t]he party’s pretty much over” and that appellant should
help himself to whatever beer there was in the refrigerator to take home. Because he
escorted another drunk guest home, SPC WL did not see appellant for about the next
twenty minutes.

       When SPC WL returned to his house, he found the bedroom door he had left
ajar was now shut and locked. Unlocking and opening the door, SPC WL saw
appellant on top of Mrs. SL having sex with her. Specialist WL yelled a vulgarity at
appellant, who then rolled off of Mrs. SL and began buttoning his pants. Appellant
attempted to explain to SPC WL that it wasn’t what it looked like and that appellant
had only been “dry humping” Mrs. SL. When asked if his wife appeared conscious
at the time of the incident, SPC WL testified that “she didn’t seem like she knew
what was going on.”

        Appellant and SPC WL then began a verbal and physical fight that started in
the bedroom and continued outside. Specialist WL testified that appellant continued
to try to tell him that what he had seen was something other than what it appeared
and asked SPC WL not to involve the military police. While outside, the two
continued to shout expletives at each other. The altercation ended when the military
police, summoned by a neighbor, arrived just as appellant was putting a hacksaw
blade to his neck and threatening to kill himself.

      Mrs. SL testified that she had only a hazy recollection of the evening. She
remembers hearing her husband yelling in the room and hearing the fighting, but
without opening her eyes or trying to get up. She stated that she had no memory of
having sex with appellant but did remember having some vaginal pain the next day.
On cross examination, Mrs. SL testified that she told someone, but could not
remember as to whom, that she had thought she was having sex with her husband.

       In addition to the testimony of SPC WL and Mrs. SL, the government called
neighbors (to include appellant’s wife) and first responders to testify to their
observations about how much alcohol Mrs. SL consumed, how drunk she appeared,
and some of her statements made to medical personnel. The government also called
a toxicologist and a DNA examiner. The DNA examiner testified that swabs taken
from appellant’s genitals had DNA consistent with that of Mrs. SL. Finally, the
government called a law enforcement agent who testified that appellant presented
evolving stories about the night in question as he was confronted with evidence
before ultimately admitting that Mrs. SL was not an active participant in the sexual
intercourse.

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LOVETT—ARMY 20140580

       In defense, appellant presented witness and expert evidence that Mrs. SL was
not as drunk as the government witnesses claimed. Additionally, the defense called
Sergeant (SGT) Arcovio, the neighbor who dialed 911. Sergeant Arcovio testified
that he called 911 after hearing the following exchange:

             Person 1: “I’m going to kill you,”

             Person 2: “I don’t know . . . what you’re talking about”

             Person 1: “I walked in on you. You were butt naked on
             top of my wife. I’m gonna f**king kill you, and I’m
             gonna f**king kill her.”

       Although SGT Arcovio could not identify the speakers, it was clear that SGT
Arcovio was describing the altercation between SPC WL and appellant. The defense
argued that SPC WL’s threat to kill his spouse created a motive for her to fabricate
her claims of incapacity in order to avoid her husband’s anger.

                                 II. DISCUSSION

                      A. Defense Request That the Military Judge
                           Define “Incapable of Consenting.”

       During an Article 39(a), UCMJ, session, the military judge discussed
instructions with both parties. The defense complained that the instructions
contained “insufficient guidance from the court concerning impairment.” The
defense asked the military judge to provide additional instructions on “what
impairment means” and “under what circumstances a drunk person can consent.”
The defense did not propose any specific instruction. 3 The government opposed any
deviation from the instructions contained in the Military Judges’ Benchbook. See
Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook], para. 3-45-14 (1 Jan. 2010). The military judge noted the defense’s


3
  Separately, the defense did propose an alternate instruction regarding the element
that appellant “knew, or reasonably should have known” that the victim was
incapable of consenting. The defense claimed that this imposed an
unconstitutionally low mens rea standard of negligence on appellant and proposed
that the military judge instruct the panel that a “reckless” or “culpably negligent”
standard be used instead. The military judge rejected the defense’s proposed
instruction. The defense’s motion aptly foreshadowed much of the thinking and
logic of the Supreme Court’s subsequent decision in Elonis v. United States, 135 S.
Ct. 2001 (2015). However, the Court’s decision in Elonis was clear that the holding
of that case was limited to cases where the statute was silent on mens rea. Id. at
2010.
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LOVETT—ARMY 20140580

objection but did not provide additional instruction beyond what was provided in the
Benchbook.

        On appeal, appellant claims that the military judge erred to his prejudice by
failing to define the terms “incapable” and “impairment.” As appellant objected at
trial, the issue is preserved on appeal. Nonetheless, we find the military judge did
not err in declining to further instruct the panel on when exactly a victim is
incapable of consenting.

       A military judge has a sua sponte duty to instruct on the elements. R.C.M.
920(e)(1). While a military judge “has wide discretion” as to the “form” of the
instruction, United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012), whether an
instruction is a correct statement of the law is reviewed de novo. United States v.
Ivey, 53 M.J. 685, 699 (Army Ct. Crim. App. 2000) aff’d on other grounds, 55 M.J.
251, 257 (C.A.A.F. 2001).

       Recently, in United States v. Pease 75 M.J. 180, 2016 CCA LEXIS 235
(C.A.A.F. 17 Mar. 2016), our superior court addressed a similar issue. In Pease, it
was the panel members (not, as here, the defense) who requested that the military
judge provide additional instruction on what is meant by the words “competent
person,” as included in the military judge’s explanation of the term “consent.” 75
M.J. at __, 2016 CCA LEXIS 235, at *6. On intermediate appeal, the Navy-Marine
Corps Court of Criminal Appeals (NMCCA) defined what was meant by “incapable
of consenting” and, in applying that definition, found the evidence factually
insufficient. As offered by the NMCCA, and as subsequently affirmed by the United
States Court of Appeals for the Armed Forces (CAAF), “incapable of consenting”
was defined as “lack[ing] the cognitive ability to appreciate the sexual conduct in
question or [lacking] the physical or mental ability to make [or] to communicate a
decision about whether they agreed to the conduct.” 4 Pease, 75 M.J. at __, 2016
CCA LEXIS 235, at *13 (C.A.A.F. 17 Mar. 2016) (alteration in original) (quoting
United States v. Pease, 74 M.J. 763, 770 (N.M. Ct. Crim. App. 2015)).

       As an initial matter, Pease provides clearer guidance on the applicable legal
definitions that we should employ when conducting our factual sufficiency review in
this case. However, we must still address appellant’s question of whether the
military judge erred by not further defining the term for the panel. We determine he
did not.

       First, we note that, in Pease, neither the NMCCA nor the CAAF found the
military judge erred in failing to define “incapable of consenting.” Pease, 75 M.J. at

4
  So defined, the definition shares a similarity with the defense of lack of mental
responsibility. See R.C.M. 916(k)(1) (the defense includes that the accused was
“unable to appreciate the nature and quality . . . of his acts”) (emphasis added).

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LOVETT—ARMY 20140580

__, 2016 CCA LEXIS 235; Pease, 74 M.J. 763. Notably, Pease involved a case
where the panel members specifically requested such guidance.

       Second, we do not interpret Pease as requiring the military judge to provide
additional instruction on the definition of “incapable of consenting.” As the
CAAF’s decision in Pease makes clear, the definitions used by CAAF and the
NMCCA are based on “the ordinary meaning of the language, [and] the context in
which it is used . . . .” 75 M.J. at __, 2016 CCA LEXIS 235, at *15. That is, the
definitions used in Pease are those used in every-day English. Whether “incapable
of consenting” should be further explained to the panel will likely depend on the
degree to which the evidence puts the matter at issue, whether the panel requests
additional guidance, and is ultimately within the sound discretion of the military
judge.

       Finally, we note in our reading of Pease, the CAAF appears to leave the door
open for additional development in case law. The court appeared to allow for a
broader definition in some circumstances. Considering whether the NMCCA’s
definition of a “freely given agreement” was overly limiting, the CAAF stated:

             the CCA’s definition of that phrase may be viewed as not
             accounting for those situations where a victim has the
             ability to appreciate the conduct, and the mental and
             physical ability to communicate the decision, but does not
             articulate non-consent out of fear or due to some other
             external compulsion counteracting voluntariness.

Id. at *13 (emphasis in original). The CAAF concluded that “any imprecision” in
the NMCCA’s definition did not amount to reversible error. Id. Accordingly, we do
not interpret Pease as a mandate. There is a substantial chasm between finding the
absence of reversible error and creating an affirmative instructional obligation.

       Accordingly, we do not find the military judge abused his discretion by not
further defining the term “incapable of consenting.”

               B. Did the Military Judge Err in Excluding Evidence
          Under Military Rule of Evidence 412 of a Prior Affair by Mrs. SL

        Prior to trial, the defense moved under Military Rule of Evidence [hereinafter
Mil. R. Evid.] 412(b)(2)(C) and based upon United States v. Ellerbrock. 70 M.J. 314
(C.A.A.F. 2011), to admit a prior affair by Mrs. SL. In a closed hearing Mrs. SL
testified that the prior affair occurred three-to-four years earlier while she and her
husband were separated. She further testified that she voluntarily disclosed the
affair without incident as part of their subsequent reconciliation.




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LOVETT—ARMY 20140580

      We review the military judge’s ruling on whether to exclude evidence
pursuant to Mil. R. Evid. 412 for an abuse of discretion. United States v. Roberts,
69 M.J. 23, 26 (C.A.A.F. 2010).

       As this case raises the same issues as in Ellerbrock, we cite our superior
court’s explanation of the law in that case at length.

             M.R.E. 412 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 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, 70 M.J. 248,
             252 (C.A.A.F. 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, 94 S.Ct.
             1105, 39 L.Ed.2d 347 (1974) (citing Douglas v. Alabama,
             380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (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, 109
             S.Ct. 480, 102 L.Ed.2d 513 (1988) (quoting Davis, 415
             U.S. at 316, 94 S.Ct. 1105).

                   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, 106 S.Ct. 1431, 89
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LOVETT—ARMY 20140580

            L.Ed.2d 674 (1986) (quoting Delaware v. Fensterer, 474
            U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (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, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (quoting Van
            Arsdall, 475 U.S. at 679, 106 S.Ct. 1431). 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, 106 S.Ct. 1431.

                    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, 70
            M.J. at 255 (“[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 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, 106
            S.Ct. 1431.

United States v. Ellerbrock, 70 M.J. 314, 317-19 (C.A.A.F. 2011).

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LOVETT—ARMY 20140580

       We find that the military judge properly found this case distinguishable from
Ellerbrock. The facts in Ellerbrock regarding the prior affair involved a “hot
tempered” husband who kicked in the door of his wife’s paramour. Id. at 317.
Omitting the prior affair in Ellerbrock deprived the court-martial from learning that
the victim would likely fear a similarly violent reaction from her husband if there
was a second transgression. That is, her husband’s violent reaction (and hot temper)
could create a reasonable inference that she lied to cover up a second instance of
adultery. Prohibiting the defense from exploring the victim’s motive to fabricate
during cross-examination unconstitutionally limited Private First Class Ellerbrock
from confronting the witnesses against him. Id. at 320.

       Here, on the other hand, the prior affair did not result in threats or violence.
By all accounts, the prior affair was resolved without confrontation or disharmony.
To be sure, there was ample evidence that SPC WL responded violently and
aggressively when he found appellant on top of his wife. Unlike Ellerbrock,
however, that evidence was presented to the fact finder as part of the res gestae of
the offense. Appellant was not prohibited from asking the panel to infer that SPC
WL’s violent response was a basis for Mrs. SL to fabricate her claims of incapacity.

       In Ellerbrock the CAAF stated that “[i]t 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 . . . .” Id. at 319. However, that “fair inference” was
based on “assuming the evidence in the record supported that inference.” Id. The
supporting evidence the CAAF then cited was the husband’s “hot temper[]” and
violent response to the previous affair; exactly the evidence that is not present here
with regards to the prior affair.

       In short, we do not read Ellerbrock as requiring the per se admissibility of
extra-marital affairs as a matter of course. Whether such evidence is admissible
under Mil. R. Evid. 412(b)(2)(C) will depend on how strongly the prior affair
supports a reasonable inference that the alleged victim is fabricating the allegation
of assault. For example, an “open marriage” in which sex outside the marriage is
routine, is less likely to support such an inference than the facts presented in
Ellerbrock. In other words, a military judge must weigh the probative value of the
Mil. R. Evid. 412 evidence against the danger of unfair prejudice, confusion of the
issues, misleading the members, undue delay, waste of time, or cumulative evidence.
United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011); Mil. R. Evid. 403.

      Accordingly, we find no error in the military judge excluding evidence
of Mrs. SL’s prior affair.




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                        III. CONCLUSION

    The findings and sentence are AFFIRMED.

    Senior Judge HAIGHT and Judge PENLAND concur.


                                 FOR THE COURT:
                                FOR THE COURT:



                                JOHN P. TAITT
                                 JOHN
                                Chief   P. TAITT
                                      Deputy Clerk of Court
                                 Chief Deputy Clerk of Court




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