Opinion Analysis: Based on the defense argument at trial (not the different argument on appeal), the military judge did not abuse his discretion in United States v. Carpenter
CAAF decided the Air Force case of United States v. Carpenter, 77 M.J. 285, No. 0476/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 20, 2018. Reviewing the military judge’s restriction of the defense cross-examination of the alleged victim (based on Mil. R. Evid. 412), CAAF finds that the military judge did not abuse his discretion based on the defense argument at trial, despite the defense making a different argument on appeal. Accordingly, CAAF affirms the findings, sentence, and decision of the Air Force CCA.
Judge Ohlson writes for a unanimous court.
Senior Airman (E-4) Carpenter was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy (identified by the initials J.M.). Carpenter’s defense was that he mistakenly believed the boy was at least 16. In an effort to prove this mistaken belief, Carpenter’s defense counsel filed a motion in limine seeking to present evidence of J.M.’s sexual encounters with other adult men. The military judge denied the motion, however, holding “that the evidence was inadmissible because it was not relevant to Appellant’s mistake of fact as to J.M.’s age.” Slip op. at 3.
The Air Force CCA affirmed and CAAF granted review to determine:
Whether the Air Force Court of Criminal Appeals erred in limiting the cross-examination of the complaining witness under Military Rule of Evidence 412 on an issue showing that Appellant’s subjective mistake of fact as to the complaining witness’s age was objectively reasonable.
Emphasizing that “when reviewing a military judge’s ruling for an abuse of discretion, [CAAF] pierce[s] the CCA’s opinion and examine[s] the military judge’s ruling directly,” slip op. at 3 n.5, Judge Ohlson explains that “in the context of the argument made by trial defense counsel in the motion in limine, we conclude that the military judge’s decision to exclude evidence pursuant to M.R.E. 412 was not clearly erroneous,” slip op. at 6 (emphasis added).
The heart of this decision is the following passage:
We are obligated to review a “military judge’s ruling on whether to exclude evidence pursuant to M.R.E. 412 for an abuse of discretion.” Ellerbrock, 70 M.J. at 317. That is a stringent standard of review. Moreover, our review for error is properly based on a military judge’s disposition of the motion submitted to him or her—not on the motion that appellate defense counsel now wishes trial defense counsel had submitted.
Slip op. at 6 (citations omitted). The focus on the motion made at trial, rather than the argument advanced on appeal, is dispositive because:
there is a foundational problem with Appellant’s position. Namely, the argument that Appellant now makes before this Court is not the argument he made before the military judge. Specifically, Appellant argues on appeal that “the more often J.M. successfully convinced other adult men that he was as old as he claimed to be in his on-line personal ads, the more Appellant’s subjective mistake turns objectively reasonable.” Brief for Appellant at 7, United States v. Carpenter, No. 17-0476 (C.A.A.F. Aug. 14, 2017). However, in a motion in limine at the court-martial, trial defense counsel argued that J.M.’s “sexual activity with someone other than the accused prior to the charged offense is relevant to show the alleged victim had knowledge beyond his tender years before engaging in sexual acts with the accused.”
Slip op. at 4. Put differently, Carpenter’s appellate defense counsel is challenging the military judge’s ruling with an argument not presented to the military judge. CAAF, however, reviews the military judge’s ruling based on the argument presented to the military judge.
Judge Ohlson’s opinion for the unanimous CAAF also observes that another adult (R.K.) who also had a sexual relationship with J.M. testified at trial, but Carpenter’s defense counsel did not ask that man what he thought about J.M.’s age:
Appellant now avers that the military judge abused his discretion because the judge did not permit him to ask J.M. questions regarding what J.M.’s adult sexual partners initially thought about J.M.’s age based on factors other than the Craigslist ad. And yet, when an adult male with whom J.M. had sex was on the witness stand, trial defense counsel did not even attempt to ask R.K. those types of questions.
Slip op. at 6. Put differently, Carpenter’s defense counsel had – but didn’t take – the opportunity at trial to introduce the evidence that Carpenter now complains on appeal he was denied the opportunity to present.
• AFCCA decision
• Blog post: CAAF grant
Appellant’s brief (sealed)
Appellee’s (A.F. Gov’t App. Div.) answer (sealed)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis