## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant GENE N. WILLIAMS United States Army, Appellant

ARMY 20130582

Headquarters, Fort Bragg Karin G. Tackaberry, Milit ary Judge (arraignment and pretrial motions) Tara A. Osborne, Military Judge (pretrial motions) Stephen E. Castlen, M ilitary Judge (trial) Colonel Paul S. Wilson, Sta ff Judge Advocate (pretrial) Colonel Michael O. Lacey, Staf f Judge Advocate (recommendation)
Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Ju dge Advocate (addendum)

For Appellant: Captai n Patrick A. Crocker, JA; Mr . Frank J. Spi nner, Esq. (on brief); Captain Patrick J. Scudieri, JA; Mr . Frank J. Spinner, Esq. (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien (on brief).

12 January 2017

---------------------------------- SUMMARY DISPOSITION

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HERRING, Judge:

On 8 August 2016 the Co urt of Appeals for th e Armed Forces (CAAF)
remanded this case to this court for reconsideration of th e following issu e in light of
United States v. Hills , 75 M.J. 350 (C .A.A.F. 2016):

WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION BY GIVING A MILITARY RULE OF
EVIDENCE 413 INSTRUCTION TO THE PANEL
BECAUSE NO EVIDENCE HAD BEEN ADMITTED TO
THE MILITARY JUDGE FOR 413 PURPOSES.WILLIAMS — ARMY 20130582

2 The facts and circumstances in this case are availabl e in our original opinion
United States v. Williams , 75 M.J. 621 (Army Ct . Crim. App. 2016). For the reasons stated below, we again AFFI RM the findings and sentence.

In this case, the military judge instructed the panel that if they found that appellant had committed the offense alleged in Specification of Charge I, they could use that finding “on any matter to which it is relevant” including “the accused’s propensity or predisposition to engage in sexual assault” with regards to the specifications alleged in Char ge II. Here, the military judge’s Mil. R. Evid. 413 instruction was improper based on Hills . Where an instructional error rises to a constitutional dimension, we review the e rror to determine if it was harmless beyond
a reasonable doubt. United States v. Kreutzer , 61 M.J. 293, 298 (C.A.A.F. 2005) (citations omitted).

This case is distinguishable from Hills in that the prope nsity instruction flowed in only one direction. That is, while the judge allowed the panel to consider appellant’s commission of the offense in th e Specification of Charge I “for its bearing on any matter to which it is rele vant in relation to the forcible sodomy alleged in Charge II,” no instruction was given that allowed the panel to consider propensity evidence from Char ge II when determining appe llant’s guilt to the single specification of Charge I. Appellant was convic ted of the Specific ation to Charge I without reliance on propensit y evidence. In ot her words, appellant was convicted of the Specification of Charge I, beyond a reasonable doubt , without any reliance or taint stemming from propensity.

Thus, as an initial matter, the Specification of Ch arge I is entirely unaffected by Hills. When deliberating on evid ence with regards to the Specification of Charge I, the panel was not al lowed to consider pr opensity. Additional ly, with regards to the forcible sodomy specifi cations contained in Charge II, the only propensity evidence the panel was allowed to co nsider stemmed from a specification that had been independently proven b eyond a reasonable doubt.

In Hills , the CAAF distinguished that case from the case of People v.
Villatoro , 281 P.3d 390, 400 (C al. 2012). In Villatoro , a propensity instruction stemming from charged offenses was permissible because th e offense had to first be proven beyond a reasonable dou bt. This, in the CAAF’s view, avoided the concerns about eroding the presumption of innocence . Or stated diffe rently, there is no erosion in the presum ption of innocen ce when an offense is first proven beyond a
reasonable doubt.

Accordingly, this case is an exception to Hills , an exception specifically anticipated by the CAAF in that case. Hills at 357; See also United States v.
Guardado , 75 M.J. 889, 896 n. 9 (Army Ct. Crim. App. 2016) (noting possible exception to Hills when an offense is first proven beyond a reasonable doubt). WeWILLIAMS — ARMY 20130582

3 find beyond a reasonable doubt that the error, un der the circumstance s of this case,
was harmless and did not contribute to appellant’s conviction or sentence.

The findings and sentence are therefore AFFIRMED.

Senior Judge CAMPANELLA and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: