The NMCCA reverses a forcible sodomy conviction due to the erroneous exclusion of evidence under M.R.E. 412
In United States v. Villanueva, No. 201400212 (N-M. Ct. Crim. App. Jan. 29, 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses the appellant’s conviction for male-on-male forcible sodomy after finding that the military judge erred by denying the defense the opportunity to question the alleged victim about the “things he had done while drunk, including placing his penis in another man’s hand during a penis measuring contest.” Slip op. at 2.
At trial, the alleged victim was allowed to testify that he was a heterosexual. The Government then used the alleged victim’s sexual orientation as proof of the charged offense:
In its opening statement, the Government described HN P as someone who “was all about meeting whoever knew the good looking girls,” and was “not into [homosexual activity].” HN P testified during the trial that he “was straight.” This could only have left the members with the impression that, since HN P was not gay, he would not have consented to the sodomy.
Slip op. at 5 (modification in original) (citations to record omitted). But despite this testimony and argument, the appellant was not allowed to cross-examine the alleged victim about his sexuality or his conduct while intoxicated (notably, the alleged victim was intoxicated at the time of the alleged forcible sodomy). Writing for the panel, Judge Holifield explains that this was error because:
These statements go directly to the appellant’s ability to challenge the Government’s proof that the appellant did not hold a reasonable and honest belief that HN P was consenting to the sexual activity. . . . By excluding them, the military judge denied the appellant his right to mount a defense, and allowed the Government to meet its burden based on an incomplete description of events.
Slip op. at 5. The CCA reverses the conviction and authorizes a rehearing.
In addition to the 412 issue, the prohibition of M.R.E. 404(a)(1) immediately comes to mind:
Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
I’m aware of precedent that holds that heterosexuality is a pertinent character trait of the accused that may be presented by the defense under M.R.E. 401(a)(2). See United States v. Gagan, 43 M.J. 200 (C.A.A.F. 1995). But I’m not aware of any caselaw that supports the Government’s implication in this case that the alleged victim was heterosexual and therefore did not consent to the sodomy with the appellant. That seems to be a clear invocation of improper propensity evidence.