United States v. St. Jean, 8X M.J. XX (C.A.A.F. 2023)

 

United States v. St. Jean, 8X M.J. XX (C.A.A.F. 2023) 

 

What this case is about, in its most simple terms: This case addresses the application of MRE 412 (prohibition of evidence of sexual behavior or disposition of a victim), but also may be seen as an exploration into the Abuse of Discretion standard that appellate courts apply to trial judge’s rulings on evidence. 

 

Facts of the case (make them as interesting as possible):  

• St. Jean, a specialist in the Army stationed at Fort Sill, Oklahoma, was assigned a sponsor for a soldier named, MC, who is the victim in this case.’s unit sponsor at Fort Sill, Oklahoma. MC was new to the Army and Fort Sill was her first duty station.  A sponsor is generally a military member who helps a newcomer settle into a new duty station.  

• Shortly after arriving at Fort Sill, St. Jean and MC hung out with some other soldiers in a barracks room. After consuming alcohol in the barracks room, St. Jean escorted MC to her room and MC went to bed. Later that night, MC woke up to St. Jean penetrating her vulva with his penis. 

• MC denied the prior kissing incident took place.   

• Subsequent to the assault, MC attempted suicide three separate times. She was later separated from the Army through a Medical Evaluation Board. 

• Before the court martial, Defense moved to admit evidence under Military Rule of Evidence 412, the so-called “rape shield rule.” 

• Military Rule of Evidence (M.R.E.) 412 offered to prove the defense of consent:  

• (1) testimony from Appellant that MC invited Appellant to her room on May 3, 2018, the day before the alleged assault. While in her room, the Appellant and MC reportedly “made out”t;  

• (2) testimony from two witnesses that they saw hickey marks on Appellant the day after the alleged assault, strongly implying those hickeys were not there before;  

• (3) testimony from a witness stating that she saw MC asleep on a fold-out bed beside Appellant the day after the alleged assault; and  

• (4) testimony from Appellant that MC showed Appellant a Polaroid picture of her bare buttocks with a bruise and told Appellant she liked to be spanked, although it was not clear when MC is alleged to have showed the picture or made the comment. 

• Closed article 39(a) – motions session, Motions Judge  

• Initial oral ruling – Evidence of Appellant seen with hickeys the day after the event would be RES GESTAE evidence, not MRE 412 evidence – if the hickeys occurred during the course of the charged offense 

• RES GESTAE - “[t]he events at issue, or other events contemporaneous with them.” 

• Motions Judge subsequently issues a SEVEN-PAGE written ruling denying the defense motion as to the testimony about the consensual kissing incident, the hickeys, the photo, and the spanking comment, but granted the motion as to the testimony that MC and Appellant were observed on the same fold-out bed a day after the sexual assault allegedly occurred. 

• WRITTEN MOTIONS RULING: 

• SOME relevance as to consent under MRE 401 

• if MC “made out with” Appellant, gave him hickeys, showed him the photo of her bare buttocks, and said she liked to be spanked, then the “evidence has a very slight tendency to show . . . [MC] might be willing to consent to having sex” with Appellant. 

• RULED - substantially more prejudicial than probative under M.R.E. 403 

• MJ did not distinguish between hickeys occurring before the alleged sexual assault and those received during the alleged sexual assault. 

• At trial, Defense counsel started a line of questioning to elicit testimony about the hickeys 

• Govt objected under MRE 412 

• Defense sought to distinguish the hickeys from the alleged assault from those occurring from the prior kissing event. The Trial Judge asked Defense if there was any evidence before the court that the Appellant had received a hickey during the alleged sexual assault.  

• Defense conceded there was no evidence currently before the court. 

• The Trial Judge asked if Defense could proffer evidence on the issue. Defense replied “Your Honor, I can move on from this, and I could possibly readdress it later if evidence is presented on that.” 

• Defense never came back to the issue and the Trial Judge never ruled on the objection. 

• Appellant was subsequently convicted of sexual assault and sentenced to 5 years confinement and a dishonorable discharge. 

 

What issue(s) did the CAAF grant:  

• Whether the military judge erred by excluding evidence under Mil. R. Evid. 412 and by preventing the defense from presenting evidence of participation and consent during the res gestae of the charged sexual assault. 

• It’s important to note that generally, M.R.E. 412 is a rule of exclusion.  In fact, the first paragraph of the rule states that evidence of an alleged victim of sexual assault’s other sexual behavior or evidence of a victim’s sexual predisposition is not admissible in any proceeding.  BUT, the rule then goes on to provide three pretty notable exceptions: 

• The first exception is evidence to provide that someone other than the accused was the source of semen, injury, or other physical evidence.  That isn’t really applicable here. 

• The second exception is evidence of specific instances of a victim’s sexual behavior with the accused if offered by the accused to prove consent.  This exception has been interpreted by the courts to be possibly admissible to support the defense of mistake of fact as to consent; and finally 

• The third exception is that not allowing the evidence would violate the accused’s constitutional right to confront his accusers under the Sixth Amendment.  

• In this case, the Defense was trying to admit evidence of consenting sexual behavior between the Appellant and MC to prove consent or mistake of fact as to consent and also argued that this evidence was constitutionally necessary.  

 

Holding/Relevance:  

• CAAF held the military judge did not err by excluding the MRE 412 evidence. 

• Motions judge did not abuse his discretion in excluding evidence of the prior sexual encounter (i.e., the kissing incident between Appellant and MC) because exclusion was within “the range of choices reasonably arising from the applicable facts and the law,” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008) 

• Trial judge did not abuse his discretion in requiring the defense to make a sufficient proffer before the hickey evidence would be deemed admissible at trial. 

 

Synopsis of the important points of the decision:  

• ONLY TWO PIECES OF MRE 412 CHALLENGED BEFORE CAAF: (1) Prior Consensual Kissing the Day Before the Assault, (2) evidence Appellant was Seen with Hickey marks the day after the alleged assault 

• PRIOR CONSENSUAL KISSING: 

• M.R.E. 412(b)(2) makes admissible “evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the misconduct, if offered by the accused to prove consent.”  

• M.R.E. 412(b)(3) makes admissible evidence of other sexual behavior if its exclusion would violate the accused’s constitutional rights. - relevant, material, and favorable to the defense 

• BUT- MRE 403 ALWAYS APPLIES – MJ may exclude if “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the members, undue delay, wasting time, or needlessly presenting cumulative evidence.” 

• SEVEN- PAGE RULING (MENTIONED TWICE) 

• reasonably de-scribed the nature of the evidence 

• He determined the probative value of the evidence was “very slight,” primarily because “ ‘making out’ ” was quite dissimilar to the charged conduct. 

• The military judge then concluded that the evidence’s very slight probative value was substantially outweighed by the concerns enumerated in M.R.E. 403, specifically stating that “M.R.E. 403 concerns abound.” 

• Polaroid picture and MC’s alleged af-finity for spanking, noting the “evidence is unfairly prejudicial in the sense that a factfinder is likely to react emotionally, rather than logically” and the “evidence could likely be construed as an invitation by [MC] to be sexually abused.” 

• Moreover, the motions judge cited M.R.E. 403 and M.R.E. 412 when denying Appellant’s motion to admit the evidence of the “ ‘mak[e] out’ ” session 

• “findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.” Frost, 79 M.J. at 109 (internal quotation marks omitted) (quoting United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)). 

• Didn’t say MJ’s findings of fact were erroneous. 

• ALLEGED ERROR 

• 1 – misapplying Andreozzi saying MRE 412 has to be similar to charged act 

• Court says MJ didn’t say similarity was required but, similarity makes MRE 412 evidence more relevant 

• Court can’t say MJ misapplied Andreozzi as MJ said there was SOME relevance. In this case since acts were very dissimilar, they would not have more relevance. 

• “making out” is simply not comparable to sexual intercourse. Stated differently, the fact that a person consented to kissing on one day is not particularly probative of the issue of whether that person consented to full sexual intercourse a day later. 

• Court “cannot conclude” MJ erred applying the principles of Andreozzi 

• 2- MJ not analyzing 412(b)(3) – constitutional exception 

• Court looks to circumstances surrounding the litigating of the issue 

• Appellant relied heavily on MRE 412(b)(3) in original motion (the Constitutional exception) 

• MJ acknowledged appellant offered evidence under (b)(3) 

• MJ cited case law that applied (b)(3) 

• MJ contrasted case facts with Ellerbrock facts which was decided on (b)(3) grounds 

• Court “cannot conclude” MJ failed to analyze proffered evidence under (b)(3) 

• 3- MJ failed to cite any MRE 403 concerns when excluding evidence 

• “MRE 403 concerns ABOUND” 

• One specific statement - “that a factfinder is likely to react emotionally, rather than logically, to the implication that [MC] enjoys abusive sexual behavior.” - Polaroid picture and MC’s alleged fondness for spanking 

• it can be reasonably inferred that the motions judge had M.R.E. 403 concerns about all the evidence, and merely gave one concrete concern about one piece of evidence to illustrate his point 

• motions judge’s decision to exclude evidence that Appellant and MC “made out” the day before the alleged sexual assault was within the range of choices reasonably arising from the applicable facts and the law. 

•  HICKEY EVIDENCE: 

• trial judge asked the defense what evidence was before the court that the hickeys were from the night of the offense 

• Defense counsel ultimately stated that it “could move on from this” and “could possibly readdress it later.” However, defense counsel seemingly never returned to the matter, and the trial judge never affirmatively excluded the evidence. 

• NO RULING = NOTHING TO REVIEW 

•  

• ABUSE OF DISCRECTION: 

• “This Court reviews a military judge’s decision to admit evidence for an abuse of discretion.” United States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019). 

• “This abuse of discretion standard is a strict one, calling for more than a mere difference of opinion—[t]he challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. Hendrix, 76 M.J. 283, 288 (C.A.A.F. 2017) 

• exclusion was within “the range of choices reasonably arising from the applicable facts and the law,” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008), 

• “findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.” Frost, 79 M.J. at 109 (internal quotation marks omitted) (quoting United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)). 

• MRE 403 DEFERENCE - Military judges receive wide discretion in conducting balancing under M.R.E. 403, but military judges’ rulings receive less deference if they fail to articulate their analysis on the record. United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009). Appellant 

• reasonably described the nature of the evidence 

• and properly stated the legal standard for making an admissibility determination under M.R.E. 403 and M.R.E. 412 

• In light of these circumstances, this Court is not convinced the motions judge’s ruling was so deficient that it only merits minimal deference. 

 

Result: CAAF affirmed the ACCA decision, saying the military judges did not err at the trial level by excluding the MRE 412 evidence. 

 

How this case may affect the field (note other significant cases/rules implicated): 

• This case underlines how important it is to win MRE 412 motions at the trial level. Include the MRE 403 balancing analysis in your MRE 412 motions – if a defense counsel is seeking to admit 412 evidence, they need to show which exceptions apply but also how the evidence supports their theory of the case. In this case, on appeal, the counsel discussed how the 412 evidence put the sexual encounter in MC’s room in context – a burgeoning relationship, going from meeting, to kissing, to sexual intercourse. By showing your cards on your theory, you emphasize the relevance of the evidence. Your goal should be to write a motion where the military judge copies and pastes your findings of fact and conclusions on law when they make their ruling. Remember, in the military and really the civilian world as well, if you want anything from a superior officer, the smartest thing you can do is make it easy for them. As our Vice Chair, LTC Jeremy Broussard would say, being conclusory in these motions can kill your case. 

 

• Stick to your guns and get a ruling.  When TC objects to the defense trying to introduce the evidence of a hickey, the DC says he’ll “move on” and the judge does not rule.  As a result, the issue was not preserved for appeal.  Counsel on both sides often back down and say, “I’ll move on” instead of getting a judge to rule on an objection.  Some judges will sustain/overrule on the record regardless of counsel “moving on,” but this one did not.  The fault is on the defense counsel for not either getting a ruling or “getting back” to the issue during trial, not on the judge for closing the loop by ruling on the (previously ruled) 412 evidence during the trial. 

 

• The charging theory matters.  Based on the fact summation, the government’s theory appeared to be sexual assault while victim was unconscious, asleep, or otherwise unaware.  She woke up to the sex act in progress.  Defense can still raise the consent/MOF as to consent affirmative defenses and the prosecution must still overcome them BRD, but evidence of prior sexual behavior “hits differently” when the government’s theory was that the victim was unable to consent when the sex act began. 

 

• Judges must be thorough in their reasoning.  Judge Ohlson seems to put a lot of weight in the fact that the trial judge for the 412 motion wrote a seven-page ruling, providing a very detailed factual and legal analysis.  If judges summarily deny such motions, it’s important for counsel to request a written ruling explaining why.