United States v. Carpenter ( 2018 )


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  •        This opinion is subject to revision before publication
    UNITED STATES COURT OF APPEALS
    FOR THE    ARMED FORCES
    _______________
    UNITED STATES
    Appellee
    v.
    David C. CARPENTER II, Senior Airman
    United States Air Force, Appellant
    No. 17-0476
    Crim. App. No. 38995
    Argued January 10, 2018—Decided March 20, 2018
    Military Judge: Matthew P. Stoffel
    For Appellant: Stephen H. Carpenter Jr. Esq. (argued);
    Major Allen S. Abrams.
    For Appellee: Major J. Ronald Steelman III (argued);
    Colonel Katherine E. Oler and Lieutenant Colonel Joseph
    Kubler (on brief); Mary Ellen Payne, Esq.
    Judge OHLSON delivered the opinion of the Court, in
    which Chief Judge STUCKY, Judges RYAN and
    SPARKS, and Senior Judge COX, joined.
    _______________
    Judge OHLSON delivered the opinion of the Court.
    Contrary to his pleas, a military judge sitting as a gen-
    eral court-martial convicted Appellant of a consolidated
    specification of sexual assault of a child who had reached the
    age of twelve years but had not reached the age of sixteen
    years in violation of Article 120b, Uniform Code of Military
    Justice (UCMJ), 10 U.S.C. § 920b (2012). The military judge
    sentenced Appellant to a dishonorable discharge, confine-
    ment for two years, forfeiture of all pay and allowances, and
    reduction to the grade of E-1. The United States Air Force
    Court of Criminal Appeals (CCA) affirmed the findings and
    sentence. We granted review pursuant to Article 67, UCMJ,
    
    10 U.S.C. § 867
     (2012).
    I. Background
    Appellant’s conviction stems from his sexual activity
    with a then-thirteen-year-old male, J.M. Appellant an-
    swered a sexually explicit ad posted by J.M. on Craigslist.
    United States v. Carpenter, No. 17-0476/AF
    Opinion of the Court
    The ad listed J.M.’s age as twenty and his height as five feet
    ten inches,1 and it stated in graphic detail the sexual en-
    counters J.M. was seeking.
    Appellant responded to J.M.’s Craigslist ad and the two
    began e-mailing one another. After multiple e-mails, they
    initiated a Skype chat where they could see each other over
    video and communicate via typed chat messages. In his tes-
    timony at trial, J.M. later acknowledged that the sexually
    explicit language he used in the Skype chat could be viewed
    as “shocking.”
    After more e-mail communication, Appellant and J.M.
    arranged to meet. J.M. informed Appellant that he did not
    have a car and that Appellant would need to pick him up at
    the side of the house with the car lights turned off. When
    Appellant arrived, J.M. ducked under the windows of the
    house and ran to Appellant’s car. J.M. was barefoot and
    wearing only boxer shorts and a t-shirt, and Appellant told
    J.M. he looked young for his age. Once inside Appellant’s
    room, Appellant and J.M. engaged in oral and anal sex.
    J.M. had other sexual encounters with adult men before
    and after his meeting with Appellant.2 In each instance,
    J.M. posted Craigslist ads which contained extremely graph-
    ic and explicit descriptions of the sexual activities in which
    he wanted to engage. Each ad listed his age to be around
    twenty and his height at five feet ten inches.
    One of those men, R.K., testified at Appellant’s
    court-martial. He testified that after Appellant’s sexual en-
    counter with J.M., Appellant sent R.K. a copy of Appellant’s
    and J.M.’s Skype chat messages. R.K. also testified that Ap-
    pellant expressed some suspicion about J.M.’s age because
    he had seen J.M. outside of a high school wearing a back-
    1 J.M. testified that his actual height at the time was five feet
    eight inches.
    2 Information about J.M.’s other sexual encounters in both the
    record and appellate briefs were sealed pursuant to Military Rule
    of Evidence (M.R.E.) 412(c)(2) and Rule for Courts-Martial
    (R.C.M.) 1103A. Those records and briefs remain sealed and any
    discussion of sealed material in this opinion is limited to that
    which is necessary for the analysis. See R.C.M. 1103A(b)(4).
    2
    United States v. Carpenter, No. 17-0476/AF
    Opinion of the Court
    pack. R.K.’s initial testimony was used to introduce the
    Skype chat into evidence.
    After R.K.’s initial testimony, J.M. testified that he en-
    gaged in oral and anal sex with R.K. and that they met
    through Craigslist.3 R.K. was again called to the stand and
    trial defense counsel questioned him on whether Appellant
    seemed worried about J.M.’s age when he sent R.K. the copy
    of the Skype chat. Trial defense counsel did not ask R.K. any
    questions about his personal belief about J.M.’s apparent
    age.
    Trial defense counsel filed a motion in limine seeking to
    present evidence of J.M.’s sexual encounters with other
    adult men pursuant to Military Rule of Evidence (M.R.E.)
    412.4 Trial defense counsel wanted to introduce this evi-
    dence through cross-examination of J.M. The military judge
    held that the evidence was inadmissible because it was not
    relevant to Appellant’s mistake of fact as to J.M.’s age.
    The CCA affirmed Appellant’s conviction and sentence,
    concluding in part that J.M.’s other sexual encounters were
    irrelevant because Appellant did not know of them at the
    time of his sexual acts with J.M.5 
    2017 CCA LEXIS 273
    , at
    *9, 
    2017 WL 1735175
    , at *3.
    3   J.M. responded to a Craigslist ad posted by R.K.
    4  “M.R.E. 412 states that evidence offered by the accused to
    prove the alleged victim’s sexual predispositions, or that [he] en-
    gaged in other sexual behavior, is inadmissible except in limited
    contexts. The rule is intended to shield victims of sexual assaults
    from the often embarrassing and degrading cross-examination and
    evidence presentations common to [sexual offense prosecutions].”
    United States v. Ellerbrock, 
    70 M.J. 314
    , 317–18 (C.A.A.F. 2011)
    (second set of brackets in original) (internal punctuation omitted)
    (footnote omitted) (citations omitted).
    5  The CCA was mistaken in concluding that J.M.’s sexual en-
    counters were irrelevant because Appellant did not know of them
    at the time of his sexual acts with J.M. However, we repeatedly
    have held that when reviewing a military judge’s ruling for an
    abuse of discretion, we pierce the CCA’s opinion and examine the
    military judge’s ruling directly. E.g., United States v. Shelton, 
    64 M.J. 32
    , 37 (C.A.A.F. 2006). The CCA also held that the evidence
    would have been too speculative. United States v. Carpenter, No.
    3
    United States v. Carpenter, No. 17-0476/AF
    Opinion of the Court
    We granted review of the following issue:
    Whether the [CCA] 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.
    United States v. Carpenter, 
    76 M.J. 432
     (C.A.A.F. 2017)
    (order granting review).
    II. Analysis
    On appeal before this Court, Appellant argues two inter-
    related points. Appellant first argues that an accused cannot
    be convicted in a case such as this one if the accused demon-
    strates both that he subjectively believed that the person
    with whom he had sex had attained the age of consent, and
    that his belief was objectively reasonable. United States v.
    Goodman, 
    70 M.J. 396
    , 401 (C.A.A.F. 2011). Appellant next
    argues that the military judge erred in his application of
    M.R.E. 412 in this case because he prevented trial defense
    counsel from eliciting from J.M. testimony that would have
    directly supported the objective prong of Appellant’s mistake
    of fact defense.
    We conclude that 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 oth-
    er adult men that he was as old as he claimed to be in his
    on-line personal ads, the more Appellant’s subjective mis-
    take 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 ac-
    cused.”
    ACM 38995, 
    2017 CCA LEXIS 273
    , at *9–10, 
    2017 WL 1735175
    ,
    at *3 (A.F. Ct. Crim. App. April 21, 2017) (unpublished).
    4
    United States v. Carpenter, No. 17-0476/AF
    Opinion of the Court
    The distinction between the defense argument made at
    trial and the defense argument now made on appeal cannot
    be attributed to inartful drafting of the motion in limine. Ra-
    ther, several factors contained in the record make it evident
    that Appellant was employing a different legal strategy at
    trial than the one he now seeks to employ on appeal.
    First, the plain language of Appellant’s motion in limine
    is quite clear. Appellant was seeking to have J.M. testify
    about his other sexual experiences with adult men in order
    to bolster Appellant’s testimony that: (a) J.M. was the one
    who brazenly initiated the sexual encounter through the use
    of a Craigslist ad that was extremely graphic and that mis-
    represented J.M.’s age; and (b) once J.M.’s sexual encounters
    began, J.M. acted in a sexual manner that was “beyond his
    tender years.”
    Second, during his ruling from the bench regarding the
    defense’s motion, the military judge characterized the de-
    fense position as follows:
    The Defense desires to cross-examine J.M. on the
    contents of all Craigslist postings J.M. made … specifi-
    cally as it relates to J.M.’s stated age in these posts and
    the specificity in J.M.’s sexual desires/demands. The
    defense argues that such cross-examination is constitu-
    tionally required as it is relevant to a mistake of fact as
    to age defense, demonstrates the maturity level of J.M.,
    and makes the accused more believable.
    ….
    The defense desires to admit evidence of J.M.’s sexu-
    al encounters with other adult males prior to the al-
    leged sexual assaults as evidence of J.M.’s sexual histo-
    ry as being greater than a 13-year-old would normally
    experience to demonstrate why the accused would have
    an honest and reasonable belief that J.M. was not un-
    der 16 years of age. The defense proffers that J.M.’s
    past experiences would provide him more confidence in
    sexual activity than would be expected from a 13-year-
    old.
    Trial defense counsel did not object regarding the mili-
    tary judge’s characterization of his argument, and did not
    seek to recast his argument in a manner more consistent
    with the defense argument now made on appeal.
    5
    United States v. Carpenter, No. 17-0476/AF
    Opinion of the Court
    And third, when he had the opportunity to question R.K.,
    trial defense counsel’s line of inquiry was consistent with the
    contours of his motion in limine and not with the framework
    of the defense argument now made on appeal. In other
    words, 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.
    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 mo-
    tion submitted to him or her—not on the motion that appel-
    late defense counsel now wishes trial defense counsel had
    submitted. See United States v. Lloyd, 
    69 M.J. 95
    , 100–01
    (C.A.A.F. 2010) (“In reviewing a military judge’s ruling for
    abuse of discretion … we review the record material before
    the military judge. We find that the military judge did not
    abuse her discretion by failing to adopt a theory that was
    not presented in the motion at the trial level.”); United
    States v. Palmer, 
    55 M.J. 205
    , 208 (C.A.A.F. 2001) (“If de-
    fense counsel had two theories of admissibility, it was in-
    cumbent on him to alert the military judge to both theo-
    ries …. ”).
    In the context of the argument made by trial defense
    counsel in the motion in limine, we conclude that the mili-
    tary judge’s decision to exclude evidence pursuant to M.R.E.
    412 was not clearly erroneous. J.M. testified to engaging in
    sexual activity with R.K.—who was an adult male like Ap-
    pellant—and to initiating the sexual encounter with Appel-
    lant through an extremely graphic Craigslist ad. Therefore,
    it was not an abuse of discretion for the military judge to
    conclude that additional evidence regarding J.M.’s prior
    sexual encounters with other adult males, and details about
    J.M.’s consequent advanced sexual knowledge, was not rele-
    vant to the question of whether it was objectively reasonable
    for Appellant to initially engage in sexual conduct with J.M.
    6
    United States v. Carpenter, No. 17-0476/AF
    Opinion of the Court
    See United States v. Gore, 
    60 M.J. 178
    , 187 (C.A.A.F. 2004)
    (“An abuse of discretion means that ‘when judicial action is
    taken in a discretionary matter, such action cannot be set
    aside by a reviewing court unless it has a definite and firm
    conviction that the [trial court] committed a clear error of
    judgment in the conclusion it reached upon weighing the
    relevant factors.’ ” (citation omitted)).
    III. Decision
    The decision of the United States Air Force Court of
    Criminal Appeals is affirmed.
    7
    

Document Info

Docket Number: 17-0476-AF

Filed Date: 3/20/2018

Precedential Status: Precedential

Modified Date: 3/20/2018