United States v. Leonhardt, 76 M.J. 821

Background

Appellant, a cadet, was convicted at a general court-martial of one specification of sexual assault and one of abusive sexual contact based on two episodes with Ms. MG; sentence: dismissal and five months confinement (approved).
Defense sought to admit evidence under Mil. R. Evid. 412 that Appellant and Ms. MG had consensual sex at least twice after the charged incidents to show her state of mind and undermine the assault allegations.
At an in-camera Mil. R. Evid. 412 hearing both parties testified: Appellant said post-offense consensual sex occurred; Ms. MG denied any post-offense sexual encounters. Defense did not call proposed corroborating witnesses at the hearing.
Military judge excluded the proffered evidence, stating the defense had to prove it by a preponderance, found Ms. MG’s denial credible, and ruled the evidence irrelevant to consent.
On appeal the Court of Criminal Appeals found the military judge abused his discretion by (1) applying an erroneous burden (requiring proof by preponderance/credibility finding) and (2) wrongly concluding the proffered post-offense consensual-sex evidence lacked relevance; the exclusion was not harmless beyond a reasonable doubt, so findings and sentence were set aside and a rehearing authorized.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Admissibility under Mil. R. Evid. 412 of post-offense consensual sexual activity	Evidence was constitutionally required under Mil. R. Evid. 412(b)(1)(C) because it bore on Ms. MG’s state of mind and consent	Evidence lacked corroboration, was controverted by victim’s testimony, and thus irrelevant or unprovable	Court: Exclusion was an abuse—evidence was relevant and potentially constitutionally required; should have been admitted unless other admissibility grounds applied
Standard of proof for Mil. R. Evid. 412 proffer	Defense: need only show relevance/admissibility, not prove truth	Government: R.C.M. 905(c) supports preponderance for motion facts	Court: Military judge erred by applying a preponderance/credibility standard; judge must gatekeep relevance, not resolve veracity
Relevance of subsequent consensual sex to consent at charged time	Subsequent consensual sex tends to make consensualness at charged time more probable; bears on state of mind and credibility	Government: Proffer was uncorroborated and contested, thus lacking probative value	Court: Relevance threshold is low; proffer had at least some tendency to make consent more or less probable—thus relevant
Prejudice / Harmlessness of exclusion	Exclusion likely affected members’ assessment of credibility; could have led to different outcome including Appellant testifying	Government: Other incriminating evidence and statements made error harmless	Court: Error was constitutional and not harmless beyond a reasonable doubt; reasonable possibility excluded evidence contributed to conviction

Key Cases Cited

United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010) (military judge may not weigh credibility when deciding Mil. R. Evid. 412 relevance)
United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) (constitutional exception to R. 412 requires admission when evidence is relevant, material, and probative value outweighs unfair prejudice)
United States v. Erickson, 76 M.J. 231 (C.A.A.F. 2017) (standard of review for admission/exclusion of evidence)
United States v. Olson, 74 M.J. 132 (C.A.A.F. 2015) (abuse of discretion standard articulated)
United States v. Carter, 47 M.J. 395 (C.A.A.F. 1998) (defense bears burden to show an exception to R. 412 applies)
United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004) (judge is gatekeeper on relevance and admissibility, not trier of truth for R. 412 proffers)
United States v. Zak, 65 M.J. 786 (A. Ct. Crim. App. 2007) (military judge erred by resolving veracity of R. 412 proffer)
United States v. Sousa, 72 M.J. 643 (A.F. Ct. Crim. App. 2013) (post-offense consensual sexual activity can be constitutionally required on consent issue)
United States v. Leak, 58 M.J. 869 (A. Ct. Crim. App. 2003) (post-offense sexual activity relevant to consent)
United States v. Parker, 54 M.J. 700 (A. Ct. Crim. App. 2001) (similar principle that subsequent consensual conduct bears on consent at earlier date)
Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (factors to consider when limiting cross-examination and impeachment)