UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201400229

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UNITED STATES OF AMERICA

Appellee

v.

ALONZO BASS III

Aviation Boatswain’s Mate (Equipment) Second Class (E-5), 

U.S. Navy

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Robert J. Crow, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast, Naval 

Air Station, Jacksonville, FL.

Staff Judge Advocate’s Recommendation: Commander Nell O. Evans,

JAGC, USN.

For Appellant: Lieutenant Ryan W. Aikin, JAGC, USN; Lieutenant 

Christopher C. McMahon, JAGC, USN.

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

USN; Major Cory A. Carver, USMC.

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Decided 31 May 2017

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Before CAMPBELL, FULTON, and HUTCHISON, Appellate Military 

Judges

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

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

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FULTON, Judge:

A panel of members with enlisted representation sitting as a general 

court-martial convicted the appellant, contrary to his pleas, of one 

specification of violating a lawful general regulation (sexual harassment), two 
United States v. Bass, No. 201400229

2

specifications of wrongful sexual contact, and two specifications of sodomy, in 

violation of Articles 92, 120, and 125, Uniform Code of Military Justice.1 The 

members sentenced him to seven years’ confinement, total forfeiture of pay 

and allowances, reduction to pay grade E-1, and a dishonorable discharge. 

The convening authority (CA) approved the sentence as adjudged.

This case is before us for a third time. Earlier, we set aside the findings of 

guilty as to Charge III and its two specifications, in which the members found 

the appellant not guilty of forcible sodomy, but guilty of consensual sodomy.2

The government moved for en banc reconsideration. We denied en banc

reconsideration but granted panel reconsideration. We withdrew our original 

opinion and issued a new one in which we again set aside the findings of 

guilty as to Charge III and its two specifications.

3 We affirmed the findings as 

to the general regulation violation and two specifications of wrongful sexual 

contact and returned the case to the Judge Advocate General for a rehearing 

of the appellant’s sentence. At the rehearing, a military judge, sitting as a 

general court-martial, sentenced the appellant to two years’ confinement, 

reduction to pay grade E-1, and a bad-conduct discharge.

The case has now returned to us following that sentencing rehearing. The 

appellant filed an assignment of error, alleging that the military judge erred 

by allowing the government, pursuant to MILITARY RULE OF EVIDENCE (MIL.

R. EVID.) 413, SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.), to use charged sexual misconduct as propensity evidence 

to prove other charged sexual conduct in the same trial and asserted that 

“Hills renders this court’s previous decision on this issue invalid.”4 The 

appellant also filed a supplemental assignment of error, alleging that the 

military judge erred by instructing the members that if, based on their 

consideration of the evidence, they are firmly convinced that the appellant 

was guilty, they must find him guilty.

We first note that the Court of Appeals for the Armed Forces (CAAF) 

recently resolved the supplemental assignment of error against the 

appellant.5 Therefore, the issue lacks merit.

We find merit, however, in the appellant’s initial assignment of error 

alleging that the military judge erred by permitting the government to use 

 

1 10 U.S.C. §§ 892, 920, and 925 (2012).

2 United States v. Bass, 74 M.J. 722 (N-M. Ct. Crim. App. 2015).

3 74 M.J. 806 (N-M. Ct. Crim. App. 2015). 

4 Appellant’s Brief and Assignment of Error of 11 Aug 2016.

5 See United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017).
United States v. Bass, No. 201400229

3

evidence of charged sexual misconduct as propensity evidence to prove other 

charged sexual misconduct.

The appellant faced 14 sex crime specifications at trial in 2013-2014. In 

eight of them, the alleged victim was Petty Officer TM. In the six others, 

Petty Officer MH was the alleged victim. Before trial, the appellant moved to 

sever the offenses. He argued that the presence of two victims on the charge 

sheet would unfairly prejudice the members against him and that the 

military judge should not allow the members to consider evidence of charged 

offenses for their tendency to show propensity to commit such offenses. The 

military judge, consistent with the state of the law at that time, found that 

evidence of sexual assaults against each alleged victim would be admissible 

as propensity evidence in the specifications involving the other alleged victim 

and denied the motion. 

In our last opinion in this case, we found that the military judge did not 

err by permitting the government to use evidence of charged sexual offenses 

as propensity evidence relevant to other charged sexual offenses in 

accordance with MIL. R. EVID 413.6 But “on direct review, we apply the clear 

law at the time of appeal, not the time of trial,”7 and while this case has

remained on direct review, the state of the law changed. In United States v. 

Hills, the CAAF held that using evidence of charged sexual misconduct as

propensity evidence relevant to other charged sexual misconduct is 

inconsistent with an accused’s right to presumed innocence.8

Applying Hills to this case, even though it was not available to the 

military judge at the time of trial, it is clear that the military judge erred. 

Because the error affects the constitutional presumption of innocence, we 

cannot affirm the findings unless we are satisfied that the error was 

harmless beyond a reasonable doubt.9 A constitutional error is harmless

beyond a reasonable doubt if the error complained of did not contribute to the 

verdict.10 In other words, “[t]he government must prove there was no 

reasonable possibility that the error contributed to [the] verdict.”11

In opening statements, the trial counsel told the members how they could 

use the evidence: “You’ll see that he has a propensity to commit sexual 

 

6 Bass, 74 M.J. at 817. 

7 United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010) (citations omitted).

8 75 M.J. 350, 356-57 (C.A.A.F. 2016).

9 United States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005).

10 United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).

11 United States v. Hukill, No. 17-003, 2017 C.A.A.F. LEXIS 305 at *9 (C.A.A.F. 

May 2, 2017) (citations omitted).
United States v. Bass, No. 201400229

4

assault. He has a tendency to do this and to do it in a certain way. You’ll see 

that this is the way he operates, this is what he does.”12 During rebuttal 

argument, trial counsel returned to the theme of propensity twice, reminding 

the members that “if [they] determine[d] that any of these sexual assaults 

happened by a preponderance of the evidence, which means just more likely 

than not, then [they could] use that information to determine that the 

[appellant] ha[d] a tendency, a propensity to commit sexual assault.”13 

Similarly, the military judge instructed the members that if they found by 

a preponderance of evidence that the appellant had committed any of the 

offenses involving Petty Officer TM, they could consider that evidence for its 

tendency to show that the appellant had a propensity to commit the offenses 

against Petty Officer MH. Likewise, he instructed the members that if they 

found by a preponderance of the evidence that the appellant committed any 

of the offenses against Petty Officer MH, they could consider that evidence 

for its tendency to show that the appellant had a propensity to commit the 

offenses against Petty Officer TM.

The members acquitted the appellant of the most serious sex offenses, 

including all those in which Petty Officer TM was the alleged victim and two 

specifications of aggravated sexual assault on Petty Officer MH. But they 

convicted the appellant of two wrongful sexual contact specifications for the 

same alleged conduct. Evidence against the appellant was not overwhelming. 

There was no confession, physical evidence, or eyewitnesses, other than the 

two alleged victims. The defense presented evidence that Petty Officer MH 

was untruthful. The appellant denied the offenses during his testimony. 

Although the members were not convinced beyond a reasonable doubt 

that the accused committed sex offenses against Petty Officer TM, they may 

have considered evidence that the appellant sexually assaulted her for its 

tendency to show that the appellant had a propensity to commit sexual 

assault against Petty Officer MH. Based on the record, we are not convinced 

beyond a reasonable doubt that the instructional error did not prejudice the 

appellant.

The guilty findings to Specification 7 of Charge II and Specification 2 of 

the Additional Charge are set aside, leaving only the findings as to Charge I 

and its sole specification affirmed. The sentence is also set aside. The record 

is returned to the Judge Advocate General for remand to an appropriate 

convening authority with a rehearing on Specification 7 of Charge II and 

Specification 2 of the Additional Charge and the sentence authorized. In the 

 

12 Record at 678.

13 Id. at 1284.
United States v. Bass, No. 201400229

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alternative, we authorize a rehearing on sentence alone as to the remaining 

offense, Charge I and its sole specification. 

Senior Judge CAMPBELL and Judge HUTCHISON concur.

For the Court

R.H. TROIDL

Clerk of Court