                       UNITED STATES, Appellee

                                    v.

              Christopher J. ROBERTS, Staff Sergeant
                     U.S. Air Force, Appellant

                              No. 10-0030

                         Crim. App. No. 36905

       United States Court of Appeals for the Armed Forces

                       Argued January 13, 2010

                         Decided May 13, 2010

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Major Darrin K. Johns (argued); Colonel James B.
Roan and Major Shannon A. Bennett (on brief).

For Appellee: Captain Jamie L. Mendelson (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief).

Military Judge:   Gary M. Jackson


       This opinion is subject to revision before final publication.
United States v. Roberts, No. 10-0030/AF

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Christopher J. Roberts pleaded guilty to one

specification of assault consummated by a battery upon his wife

(ER) and not guilty to the following three specifications:     a

separate assault consummated by a battery upon ER; the rape of

ER; and communicating a threat to ER.    A military judge sitting

as a general court-martial found him guilty of all charges.     The

United States Air Force Court of Criminal Appeals affirmed the

findings and the approved sentence.1    United States v. Roberts,

No. ACM 36905, 2009 CCA LEXIS 251, at *21, 2009 WL 2209206, at

*7 (A.F. Ct. Crim. App. July 24, 2009).

     Generally, evidence of a victim’s past sexual behavior is

inadmissible in a sexual offense case under Military Rule of

Evidence (M.R.E.) 412.   The purpose of the rule is to “shield

victims of sexual assaults from the often embarrassing and

degrading cross-examination and evidence presentations common to

prosecutions of such offenses.”   Manual for Courts-Martial,

United States, Analysis of the Military Rules of Evidence app.

22 at A22-35 (2008 ed.).   There are three exceptions to this

general rule of exclusion, the third of which allows the

admission of evidence if “the exclusion of which would violate

1
  Roberts was sentenced to a dishonorable discharge, four years
of confinement, forfeiture of all pay and allowances, reduction
to E-1, and a reprimand. The convening authority approved the
sentence, but suspended a portion of the forfeitures and waived



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United States v. Roberts, No. 10-0030/AF

the constitutional rights of the accused.”   M.R.E. 412(b)(1)(C).

We granted review in this case to determine whether the military

judge erred in excluding evidence of ER’s relationship with

another man (FL), evidence that Roberts asserts would have

established a motive for ER to fabricate the rape allegation

against him.2

     We agree with the Court of Criminal Appeals that under the

circumstances presented in this case, the proffered evidence of

ER’s alleged sexual relationship with FL was not admissible

under M.R.E. 412.   2009 CCA LEXIS 251, at *7, 2009 WL 2209206,

at *3.   We also agree with the lower court that the military

judge erred in limiting the cross-examination of ER concerning

the general relationship between ER and FL and specifically by

not allowing any cross-examination of ER as to her cell phone

call to FL immediately after the incident.   2009 CCA LEXIS 251,

at *8, 2009 WL 2209206, at *3.   However, we find those errors to


the automatic forfeitures for six months for the benefit of
Roberts’s wife and the three children.
2
  We granted review of the following issue:

     Whether the military judge’s denial of Appellant’s
     Sixth Amendment right to confront a witness against
     him was harmless error when the judge prohibited
     Appellant from demonstrating that his wife, the
     alleged rape victim, had a motive to fabricate the
     issue of consent based on her extramarital romantic
     relationship that gave her an incentive to either get
     Appellant out of the picture or protect her
     extramarital relationship.




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United States v. Roberts, No. 10-0030/AF

be harmless beyond a reasonable doubt and affirm the lower

court.

                            Background

     Roberts and ER started having marital problems before he

was deployed to Iraq and those problems continued during and

after his deployment, which resulted in the couple contemplating

divorce.   Roberts was convinced that ER was having an affair,

although he initially did not know with whom.   The charges

against Roberts arose out of an incident that occurred shortly

after he returned from his deployment.   One night ER’s cell

phone rang after she had gone to sleep and when Roberts answered

it, the caller would not identify himself.   Roberts then called

the number back but the caller still would not identify himself.

Roberts later learned that the individual was FL.

     Roberts woke ER and confronted her with the phone call and

asked her who the caller was.    When ER responded that it was

nobody -- just a friend, Roberts became “angry and outraged” and

started to choke her.3   Following the choking incident Roberts

and ER had sexual intercourse.   ER claimed that she was raped

while Roberts claimed that they had “rough,” but consensual




United States v. Roberts, 68 M.J. 240 (C.A.A.F. 2009) (order
granting review).
3
  This incident provided the basis for the assault consummated by
a battery specification to which Roberts pleaded guilty.

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United States v. Roberts, No. 10-0030/AF

intercourse.   ER testified that during the rape Roberts was

yelling at her to “shut up,” that she “deserved it,” that she

“needed to take it,” and that “he wanted to hurt [her] like

[she] hurt him.”   ER also testified that during the rape Roberts

told her that she couldn’t tell anyone and if anybody did find

out, he was going to kill her.   Expert medical testimony and

photographs taken after the incident documented multiple

injuries to ER, including injuries to her cervix, chest, wrist,

forearm, side, leg, face, mouth, ear, and neck.

     After the sexual intercourse, ER testified that she got

dressed and picked up their youngest child from her crib.

Roberts took the child from her and shoved her down the hall,

telling her to get out of his house.4   ER went to a nearby park

where she made and received several cell phone calls.   When

asked on cross-examination if she spoke with FL on her cell

phone while at the park, trial counsel objected based on a lack

of relevance and the military judge sustained the objection.    ER

testified that she then went to Roberts’s supervisor’s house

where she reported the incident for the purpose of getting

Roberts out of the house.

     The defense filed a M.R.E. 412 notice requesting that the

military judge permit the introduction of evidence concerning an

alleged relationship between ER and FL for the purpose of




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United States v. Roberts, No. 10-0030/AF

attacking ER’s credibility and to demonstrate her bias and

motive to lie.     The defense theory was that ER’s motive to

fabricate the rape was to get Roberts out of the house in order

to protect her relationship with FL.

         The military judge held an evidentiary hearing on Roberts’s

M.R.E. 412 motion.     To establish ER’s motive to fabricate her

story, Roberts sought to introduce evidence of a relationship

between ER and FL in several forms:

    1.    The back room incident.5 Roberts wanted to call DT as
          a witness at trial to testify that he had accompanied
          FL to a house where a woman who shared ER’s first
          name resided. During the M.R.E. 412 hearing, DT
          testified that the woman and FL spent 1½-2 hours in a
          back room of the house while DT sat in the living
          room and watched TV. It was DT’s impression that
          they were having sex. DT could not recall the
          location of the house other than that it was in
          Valdosta, Georgia, but he did testify that he and FL
          had to be escorted to the house.6 While DT could not
          identify ER as the woman at the house, he did testify
          that there were photographs of that woman and Roberts
          in the house. DT did not know Roberts at the time of
          his visit to the house, but prior to trial he had
          been incarcerated with Roberts. He admitted at the
          M.R.E. 412 hearing that he had lied to the trial
          counsel about whether he was guilty of possessing
          marijuana, which he had pled guilty to before a
          civilian judge.

    2.    Testimony of a sexual relationship. Roberts wanted
          to call his ex-wife, LH, to testify that FL and ER
          had a sexual relationship. LH testified at the

4
  This incident provided the basis for the second assault
consummated by a battery specification.
5
  While the military judge and the Court of Criminal Appeals
refer to a “bedroom,” the testimony at the M.R.E. 412 hearing
only referred to it as a “back room.”
6
  Appellant’s quarters were located on Moody Air Force Base,
which is in Valdosta, Georgia.

                                    6
United States v. Roberts, No. 10-0030/AF

        M.R.E. 412 hearing that FL had told her that he and
        ER had been “spending a lot of time together” and she
        interpreted that to mean that they had a sexual
        relationship. LH knew FL well and they had a child
        together.

  3.    Weekend in Florida. Roberts also sought to introduce
        evidence that while he was deployed in Iraq, ER and
        FL took a weekend trip to Florida together. While
        Roberts did not introduce evidence of this trip at
        the M.R.E. 412 hearing, the Government did concede at
        that hearing that ER admitted that she went to
        Florida with FL but denied that they spent the night
        together.

       The military judge made the following findings of fact

related to the above evidence:

        g. There is no credible evidence that the accused
   was deployed nor evidence that while the accused was
   deployed, [ER] allowed [FL] into her home and into her
   bedroom with the door closed for a period of several
   hours. Specifically, the court notes that the only
   witness on this issue -- [DT]: does not know and cannot
   identify [ER] as the [person] he allegedly met on the one
   occasion during the September-October 2005 timeframe; he
   does not know and cannot say whether he has ever visited
   the alleged scene of the tryst -- the Roberts’ on-base
   residence; and, more importantly, he, having been caught
   in a lie on the stand and admittedly lying to trial
   counsel during a pretrial interview, lacks credibility on
   this issue;

        h. There is no evidence that the accused was
   deployed nor while the accused was deployed that [ER] and
   [FL] took a weekend trip to Florida together;

          . . . .

        l. There is no credible evidence that in early
   February 2006, [LH] received a phone call from [FL]
   wherein he related that he had a romantic and/or sexual
   relationship with [ER]. Specifically, the court notes
   that when questioned [LH] asserted that at no time did
   [FL] tell her he was involved in a romantic and/or sexual
   relationship with [ER] and she simply assumed he was
   based on his use of the phrase “spending time with her.”


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United States v. Roberts, No. 10-0030/AF

     The military judge denied the M.R.E. 412 motion on the

basis that the proffered evidence was not relevant as there

was no credible evidence as to any of the allegations.     We

review a military judge’s decision to admit or exclude

evidence for an abuse of discretion.     United States v. Ayala,

43 M.J. 296, 298 (C.A.A.F. 1995).    In doing so, we review

findings of fact under a clearly erroneous standard and

conclusions of law under a de novo standard.    Id.

     We note that the proffered evidence as to the “back room

incident” and the “sexual relationship” both contained

allegations of ER’s prior sexual behavior and were therefore

appropriate for a M.R.E. 412 analysis.    The “Florida trip”

allegation, however, merely alleged that ER and FL traveled

to Florida together but contained no direct allegation or

evidence of a sexual relationship.    As no evidence was

offered by Roberts to prove that ER engaged in sexual

activity with FL during the Florida trip, those allegations

fell outside the scope of M.R.E. 412.7


7
  In light of the Government’s evidentiary concession for
purposes of the M.R.E. 412 motion, the military judge, in his
gatekeeping role, erroneously ruled that there was no evidence
presented of the Florida trip. During the presentation of
evidence on the merits, however, that evidence was offered by
the Government and admitted without objection through the DVD of
Roberts’s interview with the Office of Special Investigations
(OSI). Evidence of a relationship between ER and FL was
therefore before the military judge as factfinder. We assume
that military judges know the law and there is no indication
that the military judge did not consider the evidence once it

                                8
United States v. Roberts, No. 10-0030/AF

                               Discussion

M.R.E. 412 Evidence

     Except as otherwise provided in M.R.E. 412, evidence of a

victim’s sexual behavior is inadmissible in trials by court-

martial.   M.R.E. 412(a).   As a rule of exclusion, the burden of

demonstrating why the general prohibition of M.R.E. 412(a)

should have been lifted was on Roberts.     United States v.

Banker, 60 M.J. 216, 222 (C.A.A.F. 2004) (citing United States

v. Moulton, 47 M.J. 227, 228 (C.A.A.F. 1997)).     In his attempt

to meet this burden at trial, Roberts relied on M.R.E.

412(b)(1)(C), which provides an exception to the general rule of

exclusion if the evidence sought to be admitted is otherwise

admissible under the rules and is “evidence the exclusion of

which would violate the constitutional rights of the accused.”

     In order to properly determine whether evidence is

admissible under the constitutionally required exception to

M.R.E. 412(a), the military judge must evaluate whether the

evidence is relevant, material, and favorable to the defense.

Banker, 60 M.J. at 222.     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.”       M.R.E.



was properly admitted. United States v. Martinez, 65 M.J. 431
(C.A.A.F. 2007) (summary disposition) (“‘[M]ilitary judges are
presumed to know the law and follow it absent clear evidence to
the contrary.’” (quoting United States v. Erickson, 65 M.J. 221,
225 (C.A.A.F. 2007))).

                                   9
United States v. Roberts, No. 10-0030/AF

401.   “In determining whether evidence is material, the military

judge looks 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 this issue is in dispute; and the

nature of the other evidence in the case pertaining to this

issue.’”   Banker, 60 M.J. at 222 (quoting United States v.

Colon-Angueira, 16 M.J. 20, 26 (C.M.A. 1983)).    Finally, if the

military judge determines that the evidence is relevant and

material, he then performs the M.R.E. 412(b)(3) balancing test

(whether the probative value of the evidence outweighs the

danger of unfair prejudice to the victim’s privacy) to determine

whether the evidence is favorable to the accused’s defense.8    Id.

at 223.

       At the M.R.E. 412 hearing the military judge found that the

evidence proffered by Roberts as to the “back room incident” and

the “sexual relationship” was not relevant because no credible

evidence had been presented.   “In applying M.R.E. 412, the judge

is not asked to determine if the profered evidence is true . . .

. Rather, the judge serves as gatekeeper deciding first whether

the evidence is relevant and then whether it is otherwise

competent, which is to say, admissible under M.R.E. 412.”     Id.

at 224.    To the degree the military judge weighed the

8
  In addition to considering the prejudice to the victim’s
legitimate privacy interests, the military judge must also



                                 10
United States v. Roberts, No. 10-0030/AF

credibility of DT and LH in performing his relevancy analysis

under M.R.E. 412, he abused his discretion and his findings were

clearly erroneous.   In addition, given the low threshold for

relevant evidence, the military judge’s conclusion that the

testimony of DT and LH was not relevant was also error.

     As the application of M.R.E. 412 to proffered evidence

presents a legal issue that we review de novo, we can perform

the analysis at this level.   See United States v. Dorsey, 16

M.J. 1 (C.M.A. 1983).   However, even if we were to assume that

the proffered evidence was relevant and material, its exclusion

was ultimately proper as the probative value of the evidence did

not outweigh the danger of unfair prejudice to ER’s legitimate

privacy interests under the M.R.E. 412 balancing test.    Banker,

60 M.J. at 223.

     LH’s testimony of ER’s alleged sexual relationship with FL

was pure conjecture based upon her impression of an innocuous

hearsay statement by FL.   LH testified that it was her

“impression” that ER and FL were having a sexual relationship

based on FL’s statement that he and ER were “spending a lot of

time together.”   As noted during the cross-examination of LH, FL

never told LH that he was having sex with ER, nor did he use any

euphemism for sex.




consider the M.R.E. 403 balancing factors.   Banker, 60 M.J. at
223.

                                11
United States v. Roberts, No. 10-0030/AF

     As to the “back room incident,” DT’s testimony had a low

probative value.   He did not know if the house he was in was

ER’s, nor could he identify ER as the woman in the house.   He

could not even identify where the house was located, other than

in Valdosta.   DT did not testify that FL and the woman went into

a “bedroom,” but rather testified that they went into a “back

room” where it was his impression that they were having sex.

     In weighing the probative value of the proffered evidence

it is helpful to note the purpose for which the evidence was

offered.   Here Roberts sought to introduce evidence of a sexual

relationship between ER and FL to support his theory that ER

fabricated the rape allegation in order to get him out of the

house so that she could protect that relationship.   The

evidence, however, established that Roberts had already asked ER

for a divorce.   If ER was seeking to end her relationship with

Roberts, she simply could have acquiesced to the divorce rather

than fabricate a rape allegation.    Although we assume that DT’s

and LH’s testimony was true, its speculative nature when

combined with the improbability of the underlying purpose for

the admission of the evidence, leads us to conclude that the

proffered testimony had minimal probative value.

     In balancing this low probative value against the danger of

unfair prejudice to the legitimate privacy interests of ER, we

agree with the Court of Criminal Appeals that this evidence is



                                12
United States v. Roberts, No. 10-0030/AF

precisely the type of evidence that M.R.E. 412 was designed to

exclude.   2009 CCA LEXIS 251, at *7, 2009 WL 2209206, at *3.

Both witnesses’ allegations as to the alleged sexual activity

between ER and FL were based upon speculation and conjecture.9

Accordingly, we conclude that Roberts did not meet his burden of

demonstrating that the probative value of the proffered evidence

outweighed the danger of unfair prejudice to ER’s legitimate

privacy interests.   Excluding the evidence of the alleged sexual

relationship and the back room incident did not violate

Roberts’s constitutional right to confrontation.

Limitation on Cross-Examination of ER

     Finally we consider whether the lower court correctly

concluded that the military judge erred in limiting the cross-

examination of ER, but that the errors were harmless beyond a

reasonable doubt.    2009 CCA LEXIS 251, at *8-*13, 2009 WL

2209206, at *3-*4.   Roberts wanted to establish that ER’s

relationship with FL was a motive for her to fabricate her

allegation of rape against him.    As part of that effort, Roberts

wanted to cross-examine ER generally as to her relationship with

FL and specifically as to the phone conversation she had with FL

immediately after the incident.    The military judge did not


9
  We also note that the evidence may have been excluded pursuant
to M.R.E. 602 (“A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.”). See also
United States v. Bush, 68 M.J. 96, 100 (C.A.A.F. 2009).

                                  13
United States v. Roberts, No. 10-0030/AF

permit Roberts to pursue this line of questioning even though

questions concerning ER’s relationship with FL that did not

involve sexual behavior allegations would not implicate the

exclusionary rule of M.R.E. 412.     Cross-examination of the

Government’s primary witness may have established a motive for

ER to fabricate her allegation of rape.    See Dorsey, 16 M.J. at

4; see also M.R.E. 608(c).   We therefore agree with the CCA that

the military judge erred in excluding this cross-examination.

     To determine whether an error was harmless beyond a

reasonable doubt, this court applies the five-part balancing

test articulated by the Supreme Court in Delaware v. Van

Arsdall, 475 U.S. 673 (1986).

     [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 testimony of the
     witness on material points, the extent of cross-
     examination otherwise permitted, and, of course the
     overall strength of the prosecution’s case.

United States v. Collier, 67 M.J. 347, 356 (C.A.A.F. 2009)

(quoting Van Arsdall, 475 U.S. at 684).

     (1)   The importance of the witness’s testimony:    ER’s

testimony as the victim of the offenses was critical to the

prosecution’s case.   She was the only witness to the incident

other than Roberts and as such her credibility was essential.

This factor weighs in favor of Roberts.




                                14
United States v. Roberts, No. 10-0030/AF

        (2)   Whether the testimony was cumulative:   There was other

evidence admitted as to the relationship between ER and FL.      In

addition to ER’s testimony concerning the telephone call that

was the catalyst for the assault and rape incidents, Roberts’s

DVD statement in which he discussed the weekend trip to Florida

and his belief that ER was having an affair was admitted into

evidence.     Roberts’s neighbor also testified that Roberts told

him that he had caught ER cheating on him.     Although Roberts was

not allowed to cross-examine ER as to her relationship with FL,

there was other evidence in the record that established a

relationship between the two.     This factor weighs slightly in

favor of the Government.

     (3) The presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points:

The pretrial DVD interview of Roberts by the OSI provided

corroboration of ER’s testimony and much of her account of the

rape.    Roberts admitted that he became angry after the telephone

call from FL.     He admitted that he forcefully held the blanket

over ER’s head during the sexual intercourse and told her that

since she had hurt him, he was going to hurt her.      He also

admitted that ER accused him of rape shortly after the incident.

Significantly, the evidence of ER’s extensive physical injuries

corroborated her testimony.     This factor weighs in favor of the

Government.




                                   15
United States v. Roberts, No. 10-0030/AF

     (4)   The extent of cross-examination otherwise permitted:

Attempting to minimize the inference to be drawn from ER’s

injuries, Roberts’s defense counsel thoroughly cross-examined ER

and the Government’s expert in sexual assault examination about

ER’s history of vaginal bleeding and her increased

susceptibility to injury due to an abnormal friable cervix,

anemia, and other medical issues.10   Although ER was also cross-

examined extensively by the defense counsel on the substance of

the offenses alleged, cross-examination of ER concerning any

relationship with FL (including the telephone conversation with

FL while ER was at the park immediately after the incident) was

not allowed.   This factor weighs in favor of Roberts.

     (5)   The overall strength of the prosecution’s case:    The

Government’s case against Roberts was strong.   The pretrial DVD

interview of Roberts by the OSI was consistent with much of ER’s

testimony and was admitted into evidence without objection.    As

part of that interview, Roberts specifically admitted choking

ER, telling her moments before the sexual intercourse that he

was going to hurt her, and that he had “rough” sex with her


10
  The effectiveness of the cross-examination of ER as to her
history of vaginal bleeding during normal intercourse was
diminished by Roberts’s assertion that the couple had “rough”
sex after the assault. We also note that while Roberts’s
defense was based in part on the assertion that the couple had a
history of consensual “rough” sex, the only evidence on this
issue in the record is ER’s denial of ever having engaged
previously in “rough” sex with Roberts.



                                16
United States v. Roberts, No. 10-0030/AF

while holding her down with a blanket over her head.   The

Government presented a neighbor who testified that Roberts

admitted to him that “He had jumped [ER].”   As noted, Roberts

admitted that ER accused him of rape shortly after the incident.

In addition, the Government presented extensive evidence

supporting the violent nature of the incident and the resulting

injuries suffered by ER.11   This factor weighs heavily in favor

of the Government.

     Balancing the strength of the factors set out in Van

Arsdall, we conclude that the military judge’s errors were

harmless beyond a reasonable doubt.

                              Summary

     The military judge did not abuse his discretion in

excluding evidence of the “back room incident” and the

allegation of a sexual relationship between ER and FL under

M.R.E. 412.   While the military judge did err in limiting cross-

examination of ER as to her relationship with FL and

specifically her cell phone call with FL immediately after the

incident, under the Van Arsdall factors those errors were

harmless beyond a reasonable doubt.




11
  The Government presented testimony of the sexual assault nurse
examiner and multiple photographs of ER’s injuries.

                                 17
United States v. Roberts, No. 10-0030/AF

                           Conclusion

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                18
