         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201600098
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.

                       ANDREW J. WRIGHT
        Aviation Electrician’s Mate Airman (E-3), U.S. Navy
                              Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Commander Heather Partridge, JAGC, USN.
   Convening Authority: Commander, Navy Region Mid -Atlantic,
                             Norfolk, VA.
Staff Judge Advocate’s Recommendation: Captain Andrew R. House,
                             JAGC, USN.
    For Appellant: Lieutenant Derek C. Hampton, JAGC, USN .
      For Appellee: Lieutenant Taurean K. Brown, JAGC, USN;
            Lieutenant James M. Belforti, JAGC, USN.
                       _________________________

                        Decided 17 March 2017
                        _________________________

   Before M ARKS , F ULTON , and J ONES , Appellate Military Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   PER CURIAM:
   A military judge sitting as a general court-martial convicted the
appellant, consistent with his pleas, of one specification each of assault
consummated by a battery on a child under 16, obstruction of justice, and
wrongfully transporting a person under 16 onto Naval Air Station Oceana in
the trunk of his car, in violation of Articles 128 and 134, Uniform Code of
                     United States v. Wright, No. 201600098


Military Justice (UCMJ), 10 U.S.C. §§ 928 and 934 (2012). The military judge
sentenced the appellant to ten months’ confinement, reduction to the pay
grade of E-1, and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged.
    The appellant assigns two errors: (1) the military judge abused her
discretion by using MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 412,
SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES
(2012 ed.) to limit her consideration of mitigation evidence to its tendency to
rebut the victim’s claim of psychological or other injury; and (2) in the
alternative, the military judge erred by excluding this same evidence because
it was constitutionally required under MIL. R. EVID. 412(b)(1)(C). We disagree
and, finding no error materially prejudicial to the substantial rights of the
appellant, affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                               I. BACKGROUND
   The appellant met A.C., a 15-year-old girl, on a dating website. A.C.
presented herself as an adult on the site, but after she started corresponding
with the appellant, she revealed her actual age. The appellant had sexual
intercourse with A.C. at least twice despite knowing that she was 15. On one
occasion, he snuck A.C. onto Naval Air Station Oceana, Virginia, by
transporting her through the gate in the trunk of his car. After learning that
Naval Criminal Investigative Service (NCIS) was investigating him, the
appellant told A.C. to delete evidence of their relationship from her phone.
    The NCIS investigation revealed that A.C. had had similar relationships
with at least six other service members. Each time, she represented herself
as over 18 on a dating site. She had sex with four of the service members and
exchanged nude photos with the other two.
    At trial, the appellant pleaded not guilty to committing sexual acts upon a
child, but guilty to the lesser included offense of assault consummated by a
battery on a child under 16. During the presentencing phase of the court-
martial, the trial counsel submitted an unsworn statement from A.C. The
military judge considered the statement in accordance with RULE FOR
COURTS-MARTIAL (R.C.M.) 1001A, MCM (2012 ed.),1 which permits the victim
of an offense to present an unsworn statement to the court-martial. In the
unsworn statement, A.C. discussed how she felt about the offenses and how
they had affected her:
       I also admit that I was not at all innocent in the situation but I
       know he was an adult and had very high standards because he


   1 As amended by Executive Order 13696, 80 Fed. Reg. 35783, 35807-08 (17 Jun.
2015).


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                         United States v. Wright, No. 201600098


         was in the military. I hated myself for almost a whole year and
         cried whenever I thought of what I put myself through and no
         one did it but me. I couldn’t even look at myself in the mirror
         and accept who I was knowing I did such horrible things and
         let my parents down.2
    Following admission of A.C.’s unsworn statement, trial defense counsel
offered Defense Exhibit C, a portion of the NCIS investigation, including
A.C.’s account of her sexual relationships with other service members. Trial
counsel objected, arguing that the evidence was irrelevant. The defense
argued that evidence of A.C.’s relationships with numerous adult men tended
to rebut the inference that the appellant was primarily responsible for the
psychological trauma A.C. described in her unsworn statement. The defense
also pointed to other minor discrepancies between A.C.’s statement and the
account she gave during the criminal investigation. The military judge
admitted Defense Exhibit C, but stated she would only consider it for its
tendency to rebut A.C.’s unsworn statement without drawing “any type of
inappropriate inference” about A.C.’s character “as the [MIL. R. EVID.] 412
rules indicated.”3
    The appellant now alleges the military judge erred by applying MIL. R.
EVID. 412 to this case. He notes that although the appellant was originally
charged with sexual offenses (violations of Articles 120 and 125, UCMJ), the
government withdrew those charges following the military judge’s acceptance
of the guilty pleas for the remaining offenses. As only assault, obstruction of
justice, and a novel Article 134 specification remained on the charge sheet,
the case was no longer a “proceeding involving an alleged sexual offense,” and
MIL. R. EVID. 412 no longer controlled evidence of A.C.’s past sexual conduct.
Had the military judge considered the evidence without applying the MIL. R.
EVID. 412 filter, the appellant argues, she would have considered as
mitigating the fact that A.C. had a “modus operandi”4 of pretending while
online to be older than she was, and then having sex with service members
that she met on dating websites. In the alternative, the appellant contends
that even if MIL. R. EVID. 412 was properly applied to this case, the evidence
of A.C.’s pattern of using deception to meet and have sex with service
members was constitutionally required and should have been admitted as
mitigation.




   2   Prosecution Exhibit 2.
   3   Record at 66.
   4   Appellant’s Brief of 14 Jun 2016 at 6.


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    The government argues that MIL. R. EVID. 412 applies because the case
involves patently sexual acts with a child too young to consent to them. The
government further argues that evidence of A.C.’s pattern of using deception
to date service members is not relevant as mitigation.
                               II. DISCUSSION
   We review a military judge’s evidentiary ruling for abuse of discretion.
United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999). The military
judge’s findings of fact receive deference and will only be overturned if they
are clearly erroneous; we review conclusions of law de novo. Id.
    In addition to rebutting material presented by the government, an
accused is permitted to present matters in extenuation and mitigation during
the presentencing phase of a court-martial. R.C.M. 1001(c)(1). Matters in
extenuation serve “to explain the circumstances surrounding the commission
of an offense, including those reasons for committing the offense which do not
constitute a” legal defense. R.C.M. 1001(c)(1)(A). Matters in mitigation are
matters that tend “to lessen the punishment to be adjudged by the court-
martial, or to furnish grounds for a recommendation of clemency,” including
“particular acts of good conduct or bravery and evidence of the reputation or
record of the accused in the service for efficiency, fidelity, subordination,
temperance, courage, or any other trait that is desirable in a servicemember.”
R.C.M. 1001(c)(1)(B).
    The military judge considered the subject evidence for its tendency to
rebut A.C.’s unsworn statement and show that the appellant was not solely
responsible for any psychological harm resulting from A.C.’s relationships
with men. While the appellant argues that A.C.’s pattern of relationships
with service members is relevant mitigation, there is no evidence that the
appellant knew about A.C.’s conduct with other men, and this information
would not help inform the sentencing authority about any relevant
characteristics of the appellant. Nor would it provide evidence in extenuation,
as it sheds no light on the appellant’s reasons for committing the offenses.
Evidence of a victim’s past sexual behavior is generally not relevant to
determining an appropriate sentence. See United States v. Fox, 24 M.J. 110,
112 (C.M.A. 1987) (“Whether the victim was in fact a promiscuous 16-year-
old girl or whether she had such a reputation was not relevant or material to
an appropriate sentence.”). We find that A.C.’s account of her sexual history
was not relevant for any purpose other than those accepted by the military
judge. Therefore, we need not consider the applicability of MIL. R. EVID. 412.




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                            III. CONCLUSION
   Accordingly, the findings and the sentence, as approved by the CA, are
approved.
                                    For the Court




                                    R.H. TROIDL
                                    Clerk of Court




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