UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            JOHNSON, KRAUSS, and BURTON
                                Appellate Military Judges

                            UNITED STATES, Appellant
                                          v.
                            Specialist RYAHN P. SHAW
                            United States Army, Appellee

                                   ARMY 20100158

                   Headquarters, 21st Theater Sustainment Command
                             Wendy Daknis, Military Judge
              Colonel Claes H. Lewenhaupt, Staff Judge Advocate (pretrial)
    Lieutenant Colonel J. Harper Cook, Acting Staff Judge Advocate (recommendation
                                     & addendum)

For Appellant: Captain James P. Curtin, JA (argued); Colonel Mark Tellitocci, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Captain
Meghan M. Poirier, JA (on brief); Major Richard E. Gorini.

For Appellee: Captain Stephen E. Latino, JA (argued); Major Ellen S. Jennings, JA;
Captain Stephen E. Latino, JA (on brief).


                                      18 May 2012

                              -----------------------------------
                                OPINION OF THE COURT
                              -----------------------------------

KRAUSS, Judge:

       A general court-martial, composed of officer and enlisted members, convicted
appellant of attempted forcible sodomy, false official statement, abusive sexual
contact, rape, and aggravated sexual contact in violation of Articles 80, 107, and
120, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 907, 920 (2006 & Supp.
III 2009) [hereinafter UCMJ]. Appellant was acquitted of attempted aggravated
sexual contact alleged in violation of Article 80, UCMJ. 1 The convening authority
approved the adjudged sentence of a dishonorable discharge, six months


1
  The military judge dismissed specifications alleging indecent exposure and
indecent language, under Articles 120 and 134, respectively, prior to the entry of
pleas.
SHAW—ARMY 20100158

confinement, total forfeiture of all pay and allowances, and reduction to the grade of
E-1.

        Appellant’s case is now before this court for review under Article 66, UCMJ.
His crimes involved two victims; we here concern ourselves with one. He raises
three assignments of error, one of which merits discussion, none of which warrant
relief.

                                  BACKGROUND

       Here we are presented with a case where the defense provided notice under
Military Rule of Evidence [hereinafter Mil. R. Evid.] 412 of one thing, attempted to
ask the victim about something else under 412 at trial, and now complains about yet
a third matter under 412 on appeal.

        Having enjoyed a brief relationship with one of the victims in this case,
appellant later imposed himself on this fellow military policeman on two different
occasions, resulting in convictions for rape, attempted sodomy, and aggravated
sexual contact. On both occasions appellant persisted with sexual advance and
demand, despite the victim’s demurral, and perpetrated the acts for which he stands
convicted.

       During the few weeks of their previous consensual sexual relationship,
appellant apparently made a habit of persistent sexual demand, despite the victim’s
lack of interest, when the victim would ultimately relent. Indeed, several months
before the incidents leading to appellant’s court-martial, the victim put an end to any
such further intimate relations with appellant because of this unpleasant dynamic.

        Appellant now complains the judge erred by excluding evidence, under Mil.
R. Evid. 412, that the victim previously consented to sex with appellant despite
initially telling him to stop. In essence, he complains he was denied a fair trial
because the military judge refused him opportunity to effectively cross-examine the
victim about whether she was in the habit of initially resisting the sexual advances
of appellant and then relenting and consenting to sex. Appellant therefore contends
the military judge prevented him from undermining the government’s case and
properly presenting his defenses of consent and mistake of fact as to consent.

        The defense neither posed the questions necessary nor articulated the desire to
elicit that particular testimony from the victim at the Article 32, UCMJ,
investigation, either of two Mil. R. Evid. 412 hearings on the subject, or when given
the opportunity to do so at trial. In fact, the defense did not include this particular
sort of expected information in the Mil. R. Evid. 412 notice provided before trial. 2
2
  The defense did attach to that notice a sworn statement of the victim in which she
stated: “I had to end [my past relationship with appellant] because he wouldn’t stop


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SHAW—ARMY 20100158

That notice merely expressed the intent to offer evidence of the fact of sexual
intercourse and oral sex, the number of times they engaged in sexual intercourse and
the fact that it involved multiple sexual positions.

       During the first Mil. R. Evid. 412 hearing, the military judge actually asked
the victim a question akin to what appellant now complains about: whether she ever
told appellant no and then acquiesced to sex with him later. The victim responded,
“No.” The defense did not follow up with any questions on this matter when given
the opportunity to do so. At that hearing, the judge essentially ruled that the fact of
their sexual relationship was admissible but the details of their sexual relations were
not.

       During their cross-examination of the victim, testifying as part of the
government’s case-in-chief, the defense asked: “Now, sometimes when you would
have sex with Private Shaw, you weren’t always—I mean, you really liked him, but
you weren’t always in the mood?” To which the victim responded: “Yes.” The
defense continued: “But, you would still have sex with him anyways?” To which
the government objected, the victim responded “Yes,” and the judge sustained the
objection and instructed the panel: “[Y]ou will not consider that question as to any
details of a prior sexual relationship.” 3

       In light of above, an Article 39(a), UCMJ, hearing, in the absence of
members, ensued. The military judge rebuked the defense for the impropriety of
raising Mil. R. Evid. 412 matters contrary to her previous ruling and the government
objected to same and added objection to the lack of proper and timely notice to raise
such matters at trial. 4 Though the rules permitted exclusion of such evidence on

(. . . continued)
when I told him to,” and, “Whenever he wanted to have sex, because we were a
couple, he would think and even if I didn’t want to, it would happen.” However, no
mention of these particular statements was made in either their actual Mil. R. Evid.
412 notice or the associated motion nor did the defense raise either of these
statements during either the initial or subsequent Mil. R. Evid. 412 hearings in the
case. Proper 412 notice requires the party intending to offer such evidence to
specifically describe that evidence and state the purpose for which it is offered. Mil.
R. Evid. 412(c)(1)(A). Simply attaching a statement which may contain evidence a
party may want to offer does not suffice.
3
  For the sake of this decision we will consider the panel to have understood that
instruction as an instruction to disregard the question and answer just rendered.
4
 Suggestion during argument before this court that the defense did not consider such
evidence to fall under Mil. R. Evid. 412 is unpersuasive. The defense never
articulated any such position at trial, though enjoying ample opportunity to do so,
but, rather, responded to the court and government in a fashion that relied upon the


                                           3
SHAW—ARMY 20100158

these grounds, the military judge prudently permitted the defense the opportunity to
litigate the matter. Here again, the defense did not express any desire or intent to
ask whether the victim would consent after saying stop, but rather expressed the
intent to establish that she would have sex when she wasn’t in the mood. The judge
ultimately ruled against admission of the latter, reasoning that the probative value of
the evidence was outweighed by the danger of unfair prejudice.

       Not long thereafter, despite the government’s objection, the judge conveyed
the following question from a member of the panel to the victim: “[W]hy did your
relationship with the accused end?” The victim responded: “It had ended because,
um, about 3 weeks into our relationship, um, whenever he wanted to have sex and I
didn’t, I would tell him I wouldn’t—I wasn’t in the mood. But, um, he would just
end up taking it anyways and I just didn’t want that to go any further.” The judge
then queried counsel whether they had any questions based on those from the panel
members. The defense replied that they did not.

                                LAW AND DISCUSSION

       While appellant fashions an argument that sounds in Mil. R. Evid. 412, the
issue presented is resolved by the Confrontation Clause of the Sixth Amendment.
The facts and circumstances relevant to the resolution of this matter were
determined by the defense’s choices at trial as well as the testimony ultimately
elicited from the victim despite any intervening limitation on cross-examination
imposed by the judge below. Whether the evidence at issue might fall under
Mil. R. Evid. 412(b)(1)(B) or (C) is unimportant under the circumstances because in
either case, appellant enjoyed a full and fair opportunity to cross-examine the
witness on the matter and chose not to so examine. In addition, the victim
ultimately answered the question actually posed by the defense at trial, and the
defense refused opportunity to examine on the matter further.

       The defense here complains that they were prevented from asking the victim
whether she previously consented to sex with appellant despite initially telling him
to stop. However, when given multiple opportunities, before trial, during Article
39(a) sessions on the matter, and during trial, to ask that question, they never did.
Instead, for the first time during cross-examination of the victim at trial, the defense



(. . . continued)
notion that their Mil. R. Evid. 412 notice was sufficient. The defense also
responded positively to the judge’s invitation to make a motion for the admission of
this evidence under Mil. R. Evid. 412 in a context portraying all involved presumed
that Mil. R. Evid. 412 applied. Before this court, appellant does not dispute the
applicability of Mil. R. Evid. 412 to this evidence.



                                           4
SHAW—ARMY 20100158

asked a different question, essentially whether she would have sex with the accused
despite the fact that she wasn’t in the mood. 5

       Weakening appellant’s position is the fact that the judge posed a question to
the victim during the initial Mil. R. Evid. 412 hearing that was rather more similar
to that argued by appellant here than the questions actually posed and attempted by
the defense at trial. The response to that question was apparently not one the
defense preferred and arguably one different than previously offered in a sworn
statement. However, the defense did not seek to clarify, impeach, or embellish.
Instead, the defense stood mute and when opportunity next arose asked the victim
whether she would have sex when not in the mood rather than whether she told the
victim to stop (or told him no) and then consented to sex anyway. This is not a
minor distinction but, rather, the potential difference between ambiguity and clarity.

       Further weakening appellant’s position on appeal is the fact that during the
second Mil. R. Evid. 412 hearing, the defense never articulated a desire or intent to
pursue a line of questioning about which he now complains. Instead, again, the
defense merely reiterated their desire to ask the victim about whether she had sex
with appellant when she was not in the mood. Whether it was an abuse of discretion
for the judge to prevent such questioning we need not answer because, despite the
judge’s limitation, the witness answered the question posed in response to a
member’s inquiry. Apparently, the defense was satisfied with the response because
they again and for the last time chose not to exploit the opportunity to cross-examine
the witness on the matter.

       An essential element of any fair trial is the opportunity of the accused to
effectively cross-examine the witnesses against him. U.S. C ONST . amend. VI, cl. 2;
UCMJ art. 36(a); See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); Delaware
v. Fensterer, 474 U.S. 15, 19–20 (1985); Davis v. Alaska, 415 U.S. 308, 315–16
(1974); United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011); Mil. R. Evid.
611(a), (b). Where that opportunity is consciously refused or where the opportunity
for appropriate cross-examination is not effectively limited by the judge at trial,
appellant will not enjoy relief on appeal. See Fensterer, 474 U.S. at 19–20; United
States v. Rhodes, 61 M.J. 445, 449 (C.A.A.F. 2005) (citing United States v. Owens,
484 U.S. 554 (1988)).




5
  We will not address the possible propriety of denying the defense opportunity to so
examine because of untimely notice. Mil. R. Evid. 412(c)(1). Instead we applaud
the judge’s forbearance and prudent decision to permit further litigation of the
matter, under the circumstances, where credibility of the victim and the matters of
consent and mistake as to consent were critical to the defense of the case.



                                          5
SHAW—ARMY 20100158

       Here the defense enjoyed several opportunities to cross-examine the witness
in the manner appellant describes. 6 They never did. What’s more, the defense never
articulated their desire or intent to cross-examine the witness in the fashion now
asserted by appellant. Never did the defense state they wanted to ask the witness
whether she told the appellant to stop but then would consent to sex with him.
Never did the defense state that they wanted to impeach the witness with her
previous statement that could be read to contradict her testimony at the initial Mil.
Rule Evid. 412 hearing. Never did the defense follow-up with cross-examination at
either the initial Mil. R. Evid. 412 hearing or in light of a member’s question. The
defense neither requested permission of the judge to follow-up with any further such
questions or to impeach based on the victim’s previous statement when offered the
opportunity after the victim answered the defense’s question in response to a
member’s question.

       We are left to conclude that the defense chose not to cross-examine the
witness in this fashion. Therefore, having enjoyed the opportunity for effective
cross-examination, including opportunity to pose the questions appellant here states
are at issue, relief is not warranted. See Fensterer, 474 U.S. at 20 (citing Ohio v.
Roberts, 448 U.S. 56, 73 (1980)). “Having thus eschewed confrontation, appellant
cannot now claim a denial of it.” United States v. McGrath, 39 M.J. 158, 163
(C.M.A. 1993).
                                     CONCLUSION

       On consideration of the entire record, we find appellant’s arguments to be
without merit. We hold the findings of guilty and the sentence as approved by the
convening authority correct in law and fact. Accordingly, the findings of guilty and
the sentence are AFFIRMED.

      Senior Judge JOHNSON and Judge BURTON concur.


                                        FOR THE COURT:
                                       FOR      COURT:




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




6
  The record establishes the willingness of the victim to answer the questions posed
to her. Nothing suggests a reluctance or refusal to testify in any sense.


                                          6
