UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             OLMSCHEID, ∗ GALLUP, and KIRBY
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Specialist JONATHAN R. ZAK
                             United States Army, Appellant

                                     ARMY 20050051

                          Headquarters, 1st Infantry Division
                             Robin Hall, Military Judge
                 Major William D. Smoot, Staff Judge Advocate (trial)
       Lieutenant Colonel Michael E. Mulligan, Staff Judge Advocate (post-trial)


For Appellant: Major Teresa L. Raymond, JA; Matthew S. Freedus, Esq. (on brief).

For Appellee: Lieutenant Colonel Francis C. Kiley, JA; Captain Michael C. Friess,
JA; Captain Andrew C. Baum, JA (on brief).

                                       5 October 2007

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

KIRBY, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of rape and adultery, in violation of Articles 120,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, and 934 [hereinafter
UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement for
six years, forfeiture of all pay and allowances, and reduction to Private E1. Pursuant
to the staff judge advocate’s (SJA) recommendation (SJAR), the convening authority
approved only sixty-nine months of the sentence to confinement, but otherwise
approved the adjudged sentence. 1

∗
    Senior Judge Olmscheid took final action in this case prior to leaving the court.
1
 In his addendum to the SJAR, the SJA denied legal error in the case processing, but
recommended the convening authority reduce the accused’s period of confinement
by three months to “moot any issue regarding the post-trial processing of this case.”
ZAK − ARMY 20050051

       This case is before the court for review pursuant to Article 66, UCMJ. We
have considered the record of trial, appellant’s assignments of error, the matters
appellant personally raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), the government’s reply thereto, and appellant’s brief in response.
Appellant asserts, inter alia, that the military judge erred in excluding evidence of
the “victim’s prior sexual behavior towards appellant.” We agree, in part, and will
grant appropriate relief in our decretal paragraph.

                                         FACTS

       Appellant was charged with raping (Charge I and its Specification), forcibly
sodomizing (Charge II and its Specification), 2 and committing adultery (Charge III
and its Specification) with his “best friend” and fellow soldier, Specialist (SPC) C,
on the early morning of 8 May 2004. The government’s theory with respect to the
alleged rape and forcible sodomy relied upon SPC C’s inability to consent due to
intoxication on the night in question and the lack of prior sexual history between
appellant and SPC C. The defense theory was that, over time, appellant and SPC C’s
relationship became increasingly sexual in nature, culminating in consensual sexual
activity, or at least what appeared to appellant to be consensual sexual activity, on
the night in question. The defense further tried to establish that SPC C could not
remember that she had, in fact, consented to sexual intercourse because she had
acted while in an alcohol-induced blackout. 3

I. Military Rule of Evidence (Mil. R. Evid.) 412(c)(2) Hearing

      In support of the defense theory, prior to the start of trial, appellant moved to
admit evidence relating to four incidents of SPC C’s prior “sexual” activities with
appellant and with another married noncommissioned officer. 4 First, appellant
sought to offer evidence concerning an adulterous affair SPC C had with a married
noncommissioned officer in the spring of 2002. Second, appellant wanted to testify

2
    Appellant was acquitted of Charge II and its Specification.
3
 The defense expert, Doctor (Dr.) Warvarovsky, supported this theory. We find,
contrary to appellant’s assertion, Dr. Warvarovsky appropriately qualified as an
expert in the fields of medicine and psychiatry and provided substantial
underpinning to appellant’s theory that SPC C had consented to sexual intercourse
while in a blackout.
4
 The first three incidents were addressed in the defense’s written Motion for
Appropriate Relief (Appellate Exhibit IV). The fourth incident, regarding
appellant’s massaging SPC C, was first introduced at the trial level during oral
argument on the motion.



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about a videotape he made in March 2004, but later erased, of SPC C who, in
reenacting a scene from a movie, went into appellant’s kitchen, removed her top and
brassiere, and sprayed whipped cream over her breasts. When she spun around to
face appellant, the whipped cream slid off. Specialist C left the kitchen to clean
herself up and appellant proceeded to clean the kitchen. They then continued
watching a movie and no sexual activity followed. Third, appellant wanted to testify
that the videotape of the whipped cream incident also showed an intoxicated SPC C
performing simulated oral sex with the groin area of an M&M figurine candy
dispenser. Finally, appellant sought to offer his own testimony that two to four
weeks after the whipped cream incident, he had given SPC C a full, mostly-nude,
body massage. 5 Although fully clothed when the massage started, according to
appellant, SPC C, who was lying face down, removed her shirt and brassiere so that
he could massage her back. When appellant began to massage her legs, she also
took off her pants, but left on her panties. She remained face down during the
massage and got dressed when it was finished. No further sexual activity followed
the massage.

       In response to appellant’s motion to admit evidence regarding the four
instances of SPC C’s alleged prior sexual activity, the government argued inter alia
that admittance of the evidence should be denied under Mil. R. Evid. 412(a), the
“rape shield” rule. The military judge determined the evidence of SPC C’s alleged
affair with a married noncommissioned officer two years earlier and SPC C’s
activity with the candy dispenser were not relevant and, therefore, inadmissible
under Mil. R. Evid. 412. She determined the evidence concerning the whipped
cream incident was both relevant and admissible under Mil. R. Evid. 412(b)(1)(B).
The military judge disposed of appellant’s testimony concerning the massage
incident in the following footnote to her findings:

               I do not believe that this incident happened. I find the
               accused’s testimony to be self-serving and incredible. If
               such an incident had happened, surely it would have been
               mentioned by the accused before now, and surely it would
               have been part of the original defense motion for the [Mil.
               R. Evid.] 412 relief. The accused admitted as much in
               cross[-]examination when he stated that he considers a
               massage given in a semi-nude state to be “sexual activity.”

II. Government’s Argument

         In his opening statement to the panel, government counsel argued:




5
    In testimony, SPC C denied this massage incident ever took place.


                                            3
ZAK − ARMY 20050051

             [Appellant and SPC C] were best friends . . . . But what
             you won’t hear is that any of their experiences, from the
             time they met until the night of 7 May [2004] and the
             early morning hours of 8 May [2004], that there was any
             sexual activity between the two of them.

             Specialist [C]’s going to tell you; other witnesses are
             going to tell you that, yeah, they’ve never seen any sexual
             activity between the two of them. None of their friends
             have, people who have observed them on several
             occasions . . . are going to get up here and say “I’ve never
             seen any sexual activity between the two of them.”

      During closing argument, government counsel similarly argued:

             Never once did [SPC C], from the day they met in 2002 to
             this very day, talk to the accused about having sex, never
             once did she consent to having sex with him, never once
             did she make a comment to him like, “I love you; I want
             you; you look good.”

             ....

             Lots of people have seen the accused and [SPC C] together
             . . . . Specialist Vollmer used the words, “It was a purely
             platonic relationship. They were friends.” Nobody has
             ever seen any type of sexual activity or displays between
             the two of them, and both of them say it has never
             happened before. They were friends.

III. The Government Case

       The victim, SPC C, testified for the government at trial. According to her
testimony, she and appellant were “best friends.” On 7 May 2004, appellant met her
at her barracks and drove her to his on post quarters for “taco soup night.” She
believed they were going to have dinner and watch movies with friends. Prior to
meeting appellant, SPC C had two or three rum and Cokes. While waiting for their
other friends to arrive, SPC C had another rum and Coke. Once the others arrived,
they started drinking a mixture of beer and Amaretto and ate dinner. Specialist C
estimated that she consumed a total of seven to eight drinks of rum and Coke, the
beer and Amaretto mixture, and straight Amaretto shots over the course of the
evening. She testified that she became drunk very quickly. She explained that she
“went from a buzz, so to speak, to being obliterated within an hour [from arriving at




                                          4
ZAK − ARMY 20050051

 appellant’s quarters]. . . . I just became extremely nauseous, unable to do anything,
. . . walking into doorways, couldn’t dial the phone, couldn’t do anything.”

       Sometime during the evening, SPC C tried to call a male acquaintance to set
up a date for later that evening. She could not see the numbers on her cellular
phone, however, so appellant dialed the number for her. 6 During the telephone
conversation, she realized that she was already extremely drunk. The party moved
into the living room to watch movies and appellant made fun of her for tripping over
a trash can, saying, “You drunk, you’re such a lush.” Due to limited seating, she sat
on appellant’s knee and had to put her arm around him to hold herself up.

        Later, because she was too intoxicated to walk home and appellant was too
intoxicated to drive her, she asked appellant if she could sleep in his guest room.
Once in the room, she took her shoes off, got into bed, and fell asleep. The next
thing she remembered is that she thought she was dreaming about something
entering her vagina and seemed to be coming in and out of consciousness. When she
felt a sharp pain in her rectum, she screamed, “Ouch, get off of me.” She tried to
get up, but because appellant’s hands pinned her wrists down, she could not. She
was then rolled onto her back where she recognized appellant as her attacker.
Appellant then penetrated her vaginally again. When he penetrated her anally a
second time, she again screamed, “Ouch stop it. Get off of me.” While appellant
tried to roll her onto her stomach, she rolled out from underneath him and pulled her
pants up. Appellant was completely nude.

       Specialist C grabbed her belongings, left the house, and walked toward the
barracks. Outside the shoppette, she ran into Staff Sergeant (SSG) Brown. When he
asked if she was alright, she responded “I don’t understand what’s going on. I don’t
know why he did this. I don’t know what’s going on.” Staff Sergeant Brown helped
her try to call her roommate and walked her back to her barracks. On the way to the
barracks, she stumbled and fell backwards. Upon their arrival, SSG Brown helped
her to her room and told the CQ to call the first sergeant. The military police (MPs)
came to interview her.

       On cross-examination, SPC C admitted to having experienced, since the age
of seventeen, at least seven drug-induced blackout periods in which she could not
remember her actions. She also admitted to enrolling in a drug treatment program
shortly before deploying, to drinking heavily when she returned from the
deployment, and to the aforementioned whipped-cream incident, 7 which occurred
shortly after appellant told her that his wife would not be joining him in Germany.

6
 In testimony, appellant denied this occurred.
7
 Her testimony concerning this incident differs from appellant’s testimony in that
according to her, she quickly covered her breasts with her arm when she realized the
whipped cream was not sticking to her breasts.


                                           5
ZAK − ARMY 20050051

She testified that she thought of appellant as a brother and went to his quarters to
talk, watch movies, eat meals, and sometimes drink alcohol three or four times a
week.
       Through a stipulation of expected testimony, Ms. Kostich, one of the other
individuals at the party the night in question, testified that she and SPC C became
very intoxicated at the party and were both loud and obnoxious. She had never seen
appellant and SPC C engage in any type of sexual activity.

      Ms. Kostich’s husband, PFC Kostich, was also at the party and testified that,
because he was the designated driver, he did not drink any alcohol that evening. It
appeared to him that his wife, SPC C, and appellant seemed intoxicated because they
were emotional, loud, and obnoxious. He never saw any sexual activity between
appellant and SPC C.

       Staff Sergeant Brown testified that he saw SPC C crying outside the shoppette
at 0130 hours. He asked her if she was alright, and she said “no.” He could tell she
had been drinking, but could not judge her level of intoxication. Because SPC C
said that she wanted to call her roommate and go home, SSG Brown took her inside
the shoppette to use the store’s phone to call her roommate. Either because of her
level of intoxication or because it was a German phone, SPC C could not dial the
numbers, so the clerk dialed them for her. When she told SSG Brown that her
roommate was not home, he walked her back to the barracks.

       Along the way she slipped and fell in the mud. During the walk, SPC C told
SSG Brown that an unnamed person from their battalion would not let her go or
leave the room and had sex with her. Once SSG Brown got her back to her room, he
told the CQ to call the first sergeant. He then told the first sergeant that, based upon
his conversation with SPC C, he thought she might have been sexually assaulted.
Pursuant to the first sergeant’s direction, SSG Brown called the MPs. Staff Sergeant
Brown never witnessed any sexual activity between appellant and SPC C.

       Finally, SPC C’s roommate, SPC Vollmer, testified that when she returned to
the room, SPC C was upset and told SPC Vollmer that appellant raped her.
Specialist C seemed a little disoriented, but it was hard for SPC Vollmer to
determine whether the disorientation was caused by intoxication or the force of the
tears. According to SPC Vollmer, SPC C and appellant acted like they had a “purely
platonic” friendship. She had never seen any sexual activity between them.

IV. The Defense Case

      The defense began its case by bringing in appellant’s first sergeant and
company commander who testified that appellant was a great soldier with a
reputation for peacefulness and respect toward women. Then appellant testified on
his own behalf.



                                           6
ZAK − ARMY 20050051

       According to appellant, he met SPC C in Germany. When they deployed to
Iraq for twelve months, they spent a lot of time together and became very close.
Upon their return to Germany, they continued to spend a lot of time together. He
soon learned that his wife had decided to extend her contract with the Army Corps of
Engineers and would not be coming back to Germany. He confided this to SPC C
who tried to comfort him. After describing the aforementioned whipped cream
incident to the panel, he then explained his version of what transpired on the evening
of the alleged crimes.

       According to appellant, he invited SPC C and some friends over for dinner.
During the course of the evening, he could tell that SPC C was intoxicated because
she became loud and obnoxious, and did “playful things — like run around and act
silly.” After everyone else left, he saw SPC C falling asleep in her chair, so he
asked her if she wanted to go home. She did not want to walk home, and accepted
his invitation to sleep in his guest room. He got her some pajama bottoms and she
went upstairs to go to sleep. After he straightened things up from the party, he went
upstairs to check on SPC C. Because she had been acting more flirtatious than
usual, he decided to see how far he could go sexually with her. He turned on the
lights and shook her shoulder. When she opened her eyes and smiled, he began to
rub her breasts. She kept smiling and “squirming,” so he fondled her genitalia. She
continued smiling, rubbed his arm and tugged on his shirt and pajama bottoms, so he
took off his shirt. She kept tugging on his pants, so he took off his pants and
continued rubbing her genitalia. She tugged at her pants, so he helped her take them
off.

       He began having vaginal sex with her. According to appellant, she was
moaning, looking at him, and smiling. She rolled over onto her hands and knees and
they continued to have vaginal intercourse. His penis slipped out of her vagina and
hit something hard, which hurt him and seemed to hurt SPC C, as she grimaced. He
resumed having vaginal intercourse with SPC C, but before ejaculating realized he
did not have on a condom. He left the room briefly to get a condom, and when he
returned, SPC C was standing up, putting on her clothes, and crying. He reached for
her and she pushed his hand away saying “Zak, no.” She then asked for a ride home,
but he told her that he was too drunk to drive, and she left. Appellant thought SPC
C consented to vaginal sexual intercourse, and they had not, to his knowledge,
engaged in anal sexual intercourse.

       On cross-examination, appellant admitted that SPC C probably did seem
intoxicated and that she may have had seven to eight alcoholic drinks. He also
admitted that SPC C had never asked him to have sexual intercourse with her or told
him she was sexually attracted to him. Also, she did not tell him that she was
sexually attracted to him or that she wanted to have sexual intercourse with him that
night. She was asleep when he went upstairs and entered the guest room. The
following colloquy ensued between appellant and government counsel:



                                          7
ZAK − ARMY 20050051

             Q.     So you initiated sex with a drunk soldier who had
             never told you that she was sexually attracted to you, and
             she’d never told you that she wanted to have sex with you,
             correct?

             A.    Yes, sir.

             Q.    Okay. And during this sexual encounter, the first
             words you remember her saying to you were, “no,” is that
             correct?

             A.    No, it was “Zak, no,” sir.

       The defense then called Special Agent Ferrer, who interviewed SPC C early
on 8 May 2004. He testified that although SPC C smelled like alcohol, she did not
appear to be intoxicated. The defense also called Major (MAJ) Bell, who conducted
the rape kit examination of SPC C. Major Bell found no signs of ejaculation, blunt
force or trauma on the vagina or rectal area. Major Bell did find vaginal secretions
which he said were normal when sexually stimulated.

       Finally, the defense called Doctor (Dr.) Warvarovsky. He testified as an
expert witness in the fields of medicine and psychiatry. His testimony focused on
how alcohol could affect the transfer of sensory and short-term memory to the long-
term memory. He also testified that alcohol consumption and a history of blackouts
increases the likelihood of future blackouts. According to him, a “blackout” is a
period of time where an individual is receiving sensual perceptions, or short-term
memory, but these either do not get processed into the long-term memory, or only
get partially processed into the long-term memory. He differentiated a blackout
period from a period where a person is completely unconscious, or passed out. As
Dr. Warvarovsky explained:

             There are people that can blackout for like two to . . . five
             hours and remember nothing, but during that time period,
             they appear normal, or you really can’t tell they are
             intoxicated. They can do things, they can drive their car,
             go shopping, spend money, engage in activities that they
             can’t remember, and then also engage in activities that
             they wish they didn’t have to remember, so if-if-they don’t
             remember it as so.

After interviewing both SPC C and appellant, reviewing their medical records, and
listening to their testimony, Dr. Warvarovsky was “very confident” it was “highly
probable” that SPC C had a blackout on the night in question.




                                          8
ZAK − ARMY 20050051

      The panel found appellant guilty of rape and adultery.

                                       LAW

     Military Rule of Evidence 412 provides, in pertinent part with underlined
emphasis added:

            (a) Evidence generally inadmissible. The following
            evidence is not admissible in any proceeding involving
            alleged sexual misconduct except as provided in
            subdivisions (b) and (c):

            (1) Evidence offered to prove that any alleged victim
            engaged in other sexual behavior.

            (2) Evidence offered to prove any alleged victim’s sexual
            predisposition.

            (b) Exceptions.

            (1) In a proceeding, the following evidence is admissible,
            if otherwise admissible under these rules:

            ....

            (B) evidence of specific instances of sexual behavior by
            the alleged victim with respect to the person accused of
            the sexual misconduct offered by the accused to prove
            consent or by the prosecution; and

            (C) evidence the exclusion of which would violate the
            [C]onstitutional rights of the accused.

            (c) Procedure to determine admissibility.

            ....

            (2) Before admitting evidence under this rule, the military
            judge must conduct a hearing, which shall be closed. At
            this hearing, the parties may call witnesses, including the
            alleged victim, and offer relevant evidence. The victim
            must be afforded a reasonable opportunity to attend and be
            heard. In a case before a court-martial composed of a
            military judge and members, the military judge shall



                                         9
ZAK − ARMY 20050051

             conduct the hearing outside the presence of the members
             pursuant to Article 39(a)[, UCMJ]. The motion, related
             papers, and the record of the hearing must be sealed and
             remain under seal unless the court orders otherwise.

             (3) If the military judge determines on the basis of the
             hearing described in paragraph (2) of this subdivision that
             the evidence that the accused seeks to offer is relevant and
             that the probative value of such evidence outweighs the
             danger of unfair prejudice, such evidence shall be
             admissible in the trial to the extent an order made by the
             military judge specifies evidence that may be offered and
             areas with respect to which the alleged victim may be
             examined or cross-examined.

             ....

             (d) For purposes of this rule, the term “sexual behavior”
             includes any sexual behavior not encompassed by the
             alleged offense. The term “sexual predisposition” refers
             to an alleged victim’s mode of dress, speech, or lifestyle
             that does not directly refer to sexual activities or thoughts
             but that may have a sexual connotation for the factfinder.

             (e) A “nonconsensual sexual offense” is a sexual offense
             in which consent by the victim is an affirmative defense or
             in which the lack of consent is an element of the offense.
             This term includes rape, forcible sodomy, assault with
             intent to commit rape or forcible sodomy, indecent assault,
             and attempts to commit such offenses.

       As our superior court has noted, “[Mil. R. Evid.] 412 was intended to protect
victims of sexual offenses from the degrading and embarrassing disclosure of
intimate details of their private lives while preserving the [C]onstitutional rights of
the accused to present a defense.” United States v. Banker, 60 M.J. 216, 219
(C.A.A.F. 2004) (citing United States v. Sanchez, 44 M.J. 174, 178 (C.A.A.F. 1996);
[Manual for Courts-Martial (MCM)], Drafter’s Analysis at A22-36). A judge’s
decision to exclude evidence under Mil. R. Evid. 412 is reviewed under an abuse of
discretion standard. Id. at 223. If we determine that the military judge excluded
Constitutionally required evidence, we may not affirm a finding of guilty unless we
are convinced that the error was harmless beyond a reasonable doubt. United States
v. Andreozzi, 60 M.J. 727, 738 (Army Ct. Crim. 2004), pet. denied, 62 M.J 309
(C.A.A.F. 2005).




                                          10
ZAK − ARMY 20050051

       As Mil. R. Evid. 412 is a rule of exclusion, at a hearing held pursuant to Mil.
R. Evid. 412(c)(2), the party seeking to admit such evidence has the burden of
establishing under which exception of the rule the evidence is admissible. Banker,
60 M.J. at 222; Andreozzi, 60 M.J. at 739. In analyzing admissibility, the military
judge must first determine whether the evidence is relevant under Mil. R. Evid. 401,
and then apply the balancing test under Mil. R. Evid. 412(c)(3). Banker, 60 M.J. at
222; Andreozzi, 60 M.J. at 739.

      The military judge must keep in mind that:

             Although this two-part relevance-balance analysis is
             applicable to all three of the enumerated exceptions,
             evidence offered under the [C]onstitutionally required
             exception is subject to distinct analysis. Under [Mil. R.
             Evid.] 412(b)(1)(C), the accused has the right to present
             evidence that is relevant, material, and favorable to his
             defense. While the relevancy portion of this test is the
             same as that employed for the other two exceptions of the
             rule, if the evidence is relevant, the military judge must
             then decide if the evidence offered under the
             [C]onstitutionally required exception is material and
             favorable to the accused’s defense, and thus whether it is
             necessary.

             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.

             After determining whether the evidence offered by the
             accused is relevant and material, the judge employs the
             [Mil. R. Evid.] 412 balancing test in determining whether
             the evidence is favorable to the accused’s defense. While
             the term favorable may not lend itself to a specific
             definition, we believe that based on Supreme Court
             precedent and our own Court’s rulings in this area, the
             term is synonymous with vital.

Banker, 60 M.J. at 222 (internal quotation marks and citations omitted).

        Finally, we must emphasize our superior court’s admonition: “In applying
Mil. R. Evid. 412, the judge is not asked to determine if the proferred evidence is
true; it is for the members to weigh the evidence and determine its veracity.” Id. at


                                          11
ZAK − ARMY 20050051

224 (emphasis added). As the Tenth Circuit Court of Appeals stated in analyzing
Federal Rule of Evidence 412:

             If a rule were to say that a defense may not offer evidence
             in defense unless the Judge believes it, that rule would
             violate the right to the jury trial. This is what Rule 412
             would tend to do if it is read to allow the Judge to bar
             reasonable defense evidence that the Judge personally
             concludes is not credible.”

United States v. Platero, F.3d 806, 813 (10th Cir. 1995) (quoting 1 Stephen A.
Saltzburg & Michael M. Martin, Federal Rules of Evidence Manual: A Complete
Guide to the Federal Rules of Evidence 396 (5th ed. 1990) (emphasis added)), cert.
denied, 514 U.S. 1041 (1995).

                                    ANALYSIS

       We agree with the military judge that SPC C’s affair with a married man two
years prior to the evening in question and her activity with the candy dispenser were
not relevant to the charges in this case and were, therefore, not admissible under
Mil. R. Evid. 412. We disagree, however, with the military judge’s exclusion of
evidence of appellant’s mostly-nude massage of SPC C. The footnote to the military
judge’s findings referencing the massage clearly reveals that she did not evaluate the
evidence under the two-prong analysis required under Mil. R. Evid. 412 and the
Banker and Andreozzi decisions, discussed above. Rather, she excluded the evidence
because she did not “believe that this incident happened” and found appellant’s
“testimony to be self-serving and incredible.” As highlighted above, the military
judge’s ruling on the veracity of the evidence usurped the role of the panel members,
was clear error, and, as a result, an abuse of discretion. Banker, 60 M.J. at 224;
Patero, 72 F.3d at 812. At a Mil. R. Evid. 412(c)(2) hearing, the military judge is to
determine whether the evidence is relevant and falls into one of the listed exceptions
— not whether the evidence is true. Banker, 60 M.J. at 224.

       Appellant’s massage of SPC C, who, according to him, voluntarily stripped
down to her panties while they were alone in his house, within a month or two of the
alleged forcible sexual activity, was clearly relevant and admissible both as
“evidence of specific behavior by the alleged victim with respect to the person
accused of sexual misconduct offered by the accused to prove consent . . . [,]” under
Mil. R. Evid. 412(b)(1)(B), and as “evidence the exclusion of which would violate
the [C]onstitutional rights of the accused[,]” under Mil. R. Evid. 412(b)(1)(C).

       Furthermore, knowing the judge had excluded evidence of the mostly-nude
massage, the government nonetheless relied heavily upon the lack of evidence of
prior sexual activity between appellant and SPC C in its opening statement and



                                         12
ZAK − ARMY 20050051

closing argument and made sure that each of its witnesses testified to that effect at
trial. Appellant certainly had a right to testify in an attempt to fully rebut this
assertion. Moreover, appellant’s defense of mistake of fact as to consent certainly is
much less credible absent any evidence that SPC C felt comfortable stripping down
to her panties and allowing appellant to massage her mostly-nude body. The
military judge’s exclusion of this evidence, therefore, violated appellant’s
Constitutional right to present a defense.

       This does not end our analysis however; we must now determine whether the
error was harmless beyond a reasonable doubt. Andreozzi, 60 M.J. at 738. To do so,
we must evaluate a number of factors including the overall strength of the
government’s case and the importance of the evidence to the defense’s case. Id. at
741.

       The government’s case was not particularly strong. Specialist C admitted that
she and appellant were “best friends” who spent a lot of time alone together.
Although several witnesses from the party testified that SPC C consumed alcohol
that evening, they could not testify as to her level of intoxication, but only that she
was loud and obnoxious. The government presented very little independent
evidence, other than from SPC C’s own testimony, that she was intoxicated to the
point where she could not function, or at least appear to be functioning. Even
according to her own testimony, she had the wherewithal to interact with people, ask
appellant if she could stay in his guestroom, and put herself to bed. When she
awoke, she was able to stand, dress herself, ask appellant for a ride home, and walk
toward the barracks. She was also able to interact with SSG Brown, her roommate,
and the MPs after the incident. Although these witnesses testified that she smelled
of alcohol and was clearly upset, they all stated they could not tell her level of
intoxication. Nobody checked her blood alcohol content. Furthermore, the rape kit
did not reveal any evidence of physical trauma or appellant’s DNA.

       The defense, on the other hand, provided very strong scientific evidence that,
given her history of drug-induced blackouts, it was “highly probable” SPC C was in
a blackout state where she appeared to be consenting to sexual activity. The
evidence the government admitted at trial showed only that SPC C and appellant
were very good friends who spent a lot of time together, but had never engaged in
any “sexual activity.” The only evidence presented to contradict the notion that
their relationship was “purely platonic” prior to the night in question, was the
incident where SPC C took off her shirt and brassiere and sprayed her breasts with
whipped cream. By itself, this incident may appear to be an isolated incident of
mere immaturity as opposed to sexual behavior, which would not support a
reasonable belief that SPC C would later consent to sexual activity with appellant.
If one adds, however, appellant’s testimony concerning the subsequent, mostly-nude
massage, then the panel may have believed that this was a friendship with escalating




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sexually charged events. As a result, the panel may have accepted as reasonable
appellant’s belief that SPC C consented to sexual activity on the night in question.

       As a result, we cannot conclude beyond a reasonable doubt that the military
judge’s exclusion of this evidence was harmless and did not contribute to the finding
of guilty to rape. We, therefore, cannot affirm the finding of guilty to rape. We
find, however, sufficient evidence to support a finding of guilty to the charge and
specification of adultery.

                                   CONCLUSION

       The findings of guilty to Charge I and its Specification (rape), and the
sentence are set aside. The findings of guilty to Charge III and its Specification
(adultery) are affirmed. The same or different convening authority may order a
rehearing on Charge I and its Specification and the sentence. If the convening
authority determines that a rehearing on Charge I and its Specification is
impractical, he may dismiss Charge I and its Specification and order a rehearing on
the sentence only.

      Senior Judge OLMSCHEID and Judge GALLUP concur.

                                        FOR THE COURT:




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




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