CAAFlog » October 2017 Term » 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).

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Carpenter, No. 0476/AF (CAAFlog case page): Oral argument audio. (link fixed)

United States v. Mooney, No. 17-0405/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. Carpenter, No. 0476/AF (CAAFlog case page), on Wednesday, January 10, 2018, at 9:30 a.m. CAAF granted review of a single issue:

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.

The briefs are sealed, so there’s not much to preview. But from the Air Force CCA’s opinion (available here) we can see that 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. Carpenter’s defense was that he mistakenly believed the boy was 16.

To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts (soliciting sexual encounters) in which the boy claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Case Links:
AFCCA decision
• Blog post: CAAF grant
• Appellant’s brief (sealed)
• Appellee’s (A.F. Gov’t App. Div.) answer (sealed)
• Blog post: Argument preview

Yesterday CAAF granted review of an oddly-worded issue involving Mil. R. Evid. 412 – the military’s rape shield rule:

No. 17-0476/AF. U.S. v. David C. Carpenter II. CCA 38995. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

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.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. The appellant’s defense was that he mistakenly believed the boy was 16. To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts soliciting sexual encounters in which he claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Considering this, it’s strange that the granted issue challenges both the CCA’s limitation of cross-examination (when it was the judge) and the invocation of Mil. R. Evid. 412 (when the real issue seems to be relevance).

Another 412 issue on CAAF’s docket for next term is the constitutionally-required exception to the rule, which will be considered in United States v. Robinson, No. 17-0231/AR (grant discussed here).