In United States v. St. Jean, _ M.J. ___ (C.A.A.F. 2023), the court decided
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.
The court clarifies that the evidence proferred is likely not res gestae, as I interpret their decision. So the court is not addressing evidence that can be credibly shown to be res gestae. That seems a significant distinction for future application of the case to facts.
It is worth clarifying that Appellant is challenging the exclusion of only two pieces of evidence: (A) evidence that Appellant and MC engaged in consensual kissing the day before the alleged sexual assault; and (B) evidence that Appellant was seen with hickey marks the day after the alleged assault. The motions judge excluded the consensual kissing evidence on the basis that it was substantially more prejudicial than probative under M.R.E. 403. The trial judge excluded the hickey evidence because Appellant failed to proffer evidence suggesting Appellant received the hickeys during the alleged assault.
I'm not seeing a discussion of how the defense tried to tie the hickeys to the affirmative defense of mistake as to later consent--perhaps they did but that is not reported in the CAAF decision. The ACCA decision is here. The only issues discused by ACCA were admission of HLD, improper TC argument, and insufficiency to one of the charges. The remaining "multiple claims of error" received the standard footnote that the errors were without merit. The defense at trial seemed to be proceeding solely on the theory that the hickeys showed evidence of consent. Ultimately, it looks like the defense waived off on the issue at the time of trial anyway.
As explained above in greater detail, during trial the Government objected when the defense attempted to elicit testimony about the hickeys, and the trial judge excused the panel to conduct an Article 39(a), UCMJ, session. Appellant sought to explain that the witness would testify as to having observed hickeys arising from the alleged sexual assault, which would constitute res gestae evidence. The 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. Under this circumstance, there was no ruling by the trial judge to be appealed, and hence nothing for this Court to review. See, e.g., United States v. Welch, 25 M.J. 23, 27 (C.M.A. 1987) (noting the military judge did not make a final ruling excluding evidence).
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