UNITED STATES ARMY COURT 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, Military Judge (arraignment and pretrial motions) 

Tara A. Osborne, Military Judge (pretrial motions) 

Stephen E. Castlen, Military Judge (trial) 

Colonel Paul S. Wilson, Staff Judge Advocate (pretrial) 

Colonel Michael O. Lacey, Staff Judge Advocate (recommendation) 

Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate (addendum) 

For Appellant: Captain Patrick A. Crocker, JA; Mr. Frank J. Spinner, 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 

---------------------------------- 

HERRING, Judge: 

On 8 August 2016 the Court of Appeals for the Armed Forces (CAAF) 

remanded this case to this court for reconsideration of the following issue 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 available in our original opinion 

United States v. Williams, 75 M.J. 621 (Army Ct. Crim. App. 2016). For the 

reasons stated below, we again AFFIRM 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 Charge 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 error 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 propensity instruction 

flowed in only one direction. That is, while the judge allowed the panel to consider 

appellant’s commission of the offense in the Specification of Charge I “for its 

bearing on any matter to which it is relevant in relation to the forcible sodomy 

alleged in Charge II,” no instruction was given that allowed the panel to consider 

propensity evidence from Charge II when determining appellant’s guilt to the single 

specification of Charge I. Appellant was convicted of the Specification to Charge I 

without reliance on propensity evidence. In other 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 Charge I is entirely unaffected 

by Hills. When deliberating on evidence with regards to the Specification of Charge 

I, the panel was not allowed to consider propensity. Additionally, with regards to 

the forcible sodomy specifications contained in Charge II, the only propensity 

evidence the panel was allowed to consider stemmed from a specification that had 

been independently proven beyond a reasonable doubt. 

In Hills, the CAAF distinguished that case from the case of People v. 

Villatoro, 281 P.3d 390, 400 (Cal. 2012). In Villatoro, a propensity instruction 

stemming from charged offenses was permissible because the offense had to first be 

proven beyond a reasonable doubt. This, in the CAAF’s view, avoided the concerns 

about eroding the presumption of innocence. Or stated differently, there is no 

erosion in the presumption of innocence 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). We 
WILLIAMS — ARMY 20130582 

3 

find beyond a reasonable doubt that the error, under the circumstances 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: