UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201500163

_________________________

UNITED STATES OF AMERICA

Appellee

v.

MICHAEL K. ELLIS

Chief Information Systems Technician (E-7), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Robert D. Blazewick, JAGC, USN.

For Appellant: Gary Myers, Esq.; Lieutenant Christopher C. 

McMahon, JAGC, USN.

For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC, 

USN; Major Suzanne M. Dempsey, USMC.

_________________________

Decided 30 August 2016

_________________________

Before BRUBAKER,

1 MARKS, and FULTON, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

MARKS, Senior Judge:

A panel of members with enlisted representation, sitting as a general 

court-martial, convicted Chief Information Systems Technician (Chief) 

Michael K. Ellis, contrary to his pleas, of two specifications of sexual assault, 

three specifications of abusive sexual contact, and two specifications of 

assault consummated by battery in violation of Articles 120 and 128, Uniform 

 

1 Chief Judge BRUBAKER participated in the decision of this case prior to 

commencing terminal leave.
United States v. Ellis, No. 201500163

2

Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 928. The members 

sentenced Chief Ellis to two years’ confinement, reduction to pay grade E-1, 

and a dishonorable discharge. The convening authority (CA) approved the 

sentence as adjudged.

Chief Ellis assigns the following as error:

(1) The military judge erred in denying Chief Ellis his right to 

confront his accusers about victim-victim advocate discussions

pursuant to the Sixth Amendment, U.S. Constitution, Military 

Rules of Evidence 608(c) and 514(d)(6).

(2) The evidence is legally and factually insufficient.

(3) Chief Ellis was subjected to unlawful pretrial punishment 

under Article 13, UCMJ, when the Government denied him 

privileges it provided to other court-martial participants.

(4) Allowing the Government to use charged sexual misconduct 

as propensity evidence for other charged sexual misconduct in 

the same trial violated Chief Ellis’s rights to a presumption of 

innocence and due process.

In light of the United States Court of Appeals for the Armed Forces’

(CAAF) recent decision in United States v. Hills, __ M.J. __, No. 15-0767, 

2016 CAAF LEXIS 512 (C.A.A.F. Jun. 27, 2016), we find prejudicial error 

with regard to the use of charged misconduct as propensity evidence. We 

have considered the second assignment of error, regarding legal and factual 

sufficiency, but decline to grant relief. The remaining two assignments of 

error are moot.

I. BACKGROUND

This case presents two incidents separated by nine months in time but 

otherwise inextricably linked. Chief Ellis and the two women he was 

convicted of assaulting worked together in the same department of the same 

command and socialized in the same circle. Social gatherings at the same 

sports bar preceded both incidents, which occurred after Chief Ellis returned

to the victims’ homes. The first victim, Chief TA, accused Chief Ellis of 

sexually assaulting her in her bathroom, kitchen, and bedroom while friends 

were gathered at her home after the Army-Navy football game on 8 December 

2012. The second victim, Ms. LW, alleged that Chief Ellis raped her in her 

bedroom on 21 September 2013. Days after her incident, Ms. LW sought 

information and advice from the command sexual assault victim advocate, 

Chief TA. Five weeks later, Ms. LW reported her sexual assault, accompanied 

by Chief TA. Chief TA then came forward to report her nearly 11-month-old 

sexual assault a week later.
United States v. Ellis, No. 201500163

3

II. DISCUSSION

Chief Ellis challenges the military judge’s instruction to the members that 

they could consider charged sexual misconduct as propensity evidence, 

pursuant to MILITARY RULE OF EVIDENCE 413, MANUAL FOR COURTSMARTIAL, UNITED STATES (2012).

2

We review a military judge’s admission of evidence for an abuse of 

discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). We 

review instructional errors de novo and evaluate an allegedly erroneous 

instruction “‘in the context of the overall message conveyed’ to the members.”

Hills, 2016 CAAF LEXIS 512 at *16 (quoting United States v. Prather, 69 

M.J. 338, 344 (C.A.A.F. 2011)) (additional citation omitted).

In sexual assault cases only, MIL. R. EVID. 413(a) permits a military judge

to “admit evidence that the accused committed any other sexual offense. The 

evidence may be considered on any matter to which it is relevant.” The rule 

does not distinguish between charged and uncharged misconduct, and 

prosecutors have proffered both under it. The Military Judges’ Benchbook

offers standardized instructions for both scenarios—when the other sexual 

offense is uncharged misconduct and when it is charged misconduct. Before 

the CAAF’s ruling in Hills, military judges instructed members how to 

consider multiple charged sexual offenses relative to each other, in 

accordance with MIL. R. EVID. 413, using the following instruction: 

(Further), evidence that the accused committed the (sexual) . . .

offense(s) alleged in (state the appropriate Specification(s) and 

Charge(s)) may have no bearing on your deliberations in 

relation to (state the appropriate Specification(s) and 

Charge(s)), unless you first determine by a preponderance of 

the evidence, that is more likely than not, the offense(s) alleged 

in (state the appropriate Specification(s) and Charge(s)) 

occurred. If you determine by a preponderance of the evidence

the offense(s) alleged in (state the appropriate Specification(s) 

and Charge(s)) occurred, even if you are not convinced beyond a 

reasonable doubt that the accused is guilty of (that) (those) 

offense(s), you may nonetheless then consider the evidence of 

(that) (those) offense(s) for its bearing on any matter to which 

it is relevant in relation to (list the offense(s) for which the 

members may consider the evidence). . . .

Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 1105-06 (10 

Sep. 2014) (emphasis added). Military judges then instructed the members

that if they were convinced of one sexual offense by a preponderance of the 

 

2 As amended by Exec. Order 13,643, 78 Fed. Reg. 29,559, 29,577 (15 May 2013).
United States v. Ellis, No. 201500163

4

evidence, they “may also consider the evidence of such other (sexual) . . .

offense(s) for its tendency, if any, to show the accused’s propensity or 

predisposition to engage in (sexual) . . . offenses.” Id. at 1106. 

The CAAF examined MIL. R. EVID. 413 and these instructions in Hills

nearly a year and a half after Chief Ellis’s court-martial. Despite MIL. R.

EVID. 413’s silence as to charged or uncharged misconduct, the CAAF 

unequivocally held that the rule cannot be applied to evidence of a charged 

sexual offense. Hills, 2016 CAAF LEXIS 512, at *10 (“[N]either the structure 

of M.R.E. 413 and its relationship to M.R.E. 404(b) nor the legislative history 

of the federal rule upon which it is based suggests that M.R.E. 413 and its 

attendant instructions may be applied to evidence of charged misconduct.”)

The opinion distinguished charged misconduct from prior sexual assault 

convictions and uncharged sexual offenses, which remain admissible under 

MIL. R. EVID. 413. Id. at *8. But using MIL. R. EVID. 413, a “rule of 

admissibility for evidence that would otherwise not be admissible,” to admit 

evidence already before the fact finder as proof of charged offenses was an 

abuse of discretion. Id. at *2, *6, and*7.

The erroneous Military Judges’ Benchbook instruction exacerbated the 

abuse of discretion. The CAAF definitively identified the instructional error—

the introduction of the lower standard of proof in the consideration of

evidence of charged offenses. Judge Ryan drew a distinction between Hills

and a California case in which “‘[T]he instruction clearly told the jury that all 

offenses must be proven beyond a reasonable doubt, even those used to draw 

an inference of propensity.’” Id. at * 17 (quoting People v. Villatoro, 281 P.3d 

390, 400 (Cal. 2012)) (emphasis added). Describing Hills, Judge Ryan 

continued, “[i]n contrast, the instructions in this case invited the members to 

bootstrap their ultimate determination of the accused’s guilt with respect to 

one offense using the preponderance of the evidence burden of proof with 

respect to another offense.” Id. at *17-*18. Despite the military judge’s

reminder to the members that the Government must prove each element of 

each offense beyond a reasonable doubt and recitation of the spillover 

instruction, the CAAF held that the introduction of the preponderance of the 

evidence standard compromised the instructions as a whole. Id. at *16-*17 

(“Evaluating the instructions in toto, we cannot say that Appellant’s right to 

a presumption of innocence and to be convicted only by proof beyond a 

reasonable doubt was not seriously muddled and compromised by the 

instructions as a whole.”)
United States v. Ellis, No. 201500163

5

Not only did this application of MIL. R. EVID. 413 to evidence of charged 

conduct constitute an abuse of discretion and induce instructional error, it 

infringed on Chief Hills’s constitutional right to due process. The CAAF held

that admitting charged misconduct as propensity evidence under MIL. R.

EVID. 413 “violated Appellant’s presumption of innocence and right to have 

all findings made clearly beyond a reasonable doubt, resulting in 

constitutional error.” Id. at *13. Also, “the muddled accompanying 

instructions implicate ‘fundamental conceptions of justice’ under the Due 

Process Clause by creating the risk that the members would apply an 

impermissibly low standard of proof, undermining both ‘the presumption of 

innocence and the requirement that the prosecution prove guilt beyond a 

reasonable doubt.’” Id. at *18 (quoting United States v. Wright, 53 M.J. 476, 

481 (C.A.A.F. 2000)).

Instructional error with constitutional implications is prejudicial unless it 

is harmless beyond a reasonable doubt. United States v. Wolford, 62 M.J. 418, 

420 (C.A.A.F. 2006) (“If instructional error is found, because there are 

constitutional dimensions at play, [the appellant’s] claims ‘must be tested for 

prejudice under the standard of harmless beyond a reasonable doubt.’”)

(citation omitted). The more specific inquiry required is whether the

instructional error contributed to the members’ decision to convict. “An error 

is not harmless beyond a reasonable doubt when ‘there is a reasonable 

possibility that the [error] complained of might have contributed to the 

conviction.’” Hills, 2016 CAAF LEXIS 512 at *18-*19 (quoting United States 

v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (citation omitted) (alteration in 

original)). The CAAF declined to minimize the import of the instructional

error in Hills, commenting that “[t]he juxtaposition of the preponderance of 

the evidence standard with the proof beyond a reasonable doubt standard 

with respect to the elements of the same offenses would tax the brain of even 

a trained lawyer.” Id. at *19. Considering the facts in Hills and noting the 

lack of eyewitness testimony from third party witnesses, the absence of 

conclusive physical evidence, and the members’ acquittal of the accused on 

some of the allegations, the CAAF concluded they “cannot know whether the 

instructions may have tipped the balance in the members’ ultimate 

determination.” Id. at *20. As a result, the CAAF set aside the findings and

sentence in Hills and authorized a rehearing. Id.

Without the benefit of the CAAF’s Hills decision, the military judge

presiding over Chief Ellis’s court-martial followed the then-current state of 

the law and unwittingly committed the same abuse of discretion and error. 

He documented the Government’s adherence to MIL. R. EVID. 413’s disclosure 

requirement, conducted the required balancing tests in accordance with MIL.

R. EVID. 401, 402, and 403, and meticulously recorded his admission of the 

evidence before the members as proof of charged offenses under MIL. R. EVID.
United States v. Ellis, No. 201500163

6

413 as well. Contrary to the Government’s argument, the difference in factual 

circumstances between this case and Hills is irrelevant to the application of 

MIL. R. EVID. 413 to charged offenses. The abuse of discretion arises from the 

complete conflation of the evidence of charged sexual offenses and the 

evidence of other, similar sexual offenses.

The military judge then repeated the instructional error in Hills, reciting

the flawed language from the Military Judges’ Benchbook verbatim. First, he 

instructed the members that they could consider the evidence of Chief Ellis’s 

assaults on Ms. LW for its bearing on Chief TA’s allegations, if they first 

determined by a preponderance of the evidence that the assaults on Ms. LW

occurred. Then the military judge advised the members they could consider 

the evidence of Chief Ellis’s assaults on Chief TA for its bearing on Ms. LW’s 

allegations if they first determined by a preponderance of the evidence that 

the assaults on Chief TA occurred. In doing so, the military judge uttered 

“preponderance of the evidence” four times, defining it twice and 

distinguishing it from the higher beyond a reasonable doubt standard twice.

Having found abuse of discretion and error, we must assess the prejudice 

to Chief Ellis and determine whether the instructional error was harmless 

beyond a reasonable doubt. While the Government presented a strong case 

against Chief Ellis, it suffered some of the same weaknesses that concerned 

the CAAF in Hills. There was no physical evidence. Other than Ms. LW and 

Chief TA, none of the eyewitnesses observed sexual contact or sexual acts. 

Evidence of the actus reus of all but one specification consisted solely of the 

accuser’s testimony. Trial defense counsel impeached Ms. LW’s allegation 

that Chief Ellis penetrated her vagina with his penis using her initial 

statements that he performed oral sex but only attempted vaginal

intercourse. The members acquitted Chief Ellis of one specification of abusive 

sexual contact involving Chief TA, convicting him instead of the lesser 

included offense of assault consummated by battery and revealing their

reasonable doubt about Chief TA’s claim that Chief Ellis touched her breast 

and buttocks in the bathroom. Finally, trial defense counsel challenged Chief

TA on her possible bias, prejudice, or motive to misrepresent stemming from

her role as Ms. LW’s victim advocate and her subsequent decision to report 

her 11-month-old encounter with Chief Ellis as a sexual assault. 

The facts of this case prevent us from being certain, beyond a reasonable 

doubt, that error did not contribute to Chief Ellis’s convictions. 
United States v. Ellis, No. 201500163

7

III.CONCLUSION

The findings and sentence are set aside. The record is returned to the 

Judge Advocate General of the Navy for remand to an appropriate CA with a 

rehearing authorized.

Chief Judge BRUBAKER and Judge FULTON concur.

 For the Court 

 R.H. TROIDL 

 Clerk of Court