## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, 1 and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant AARON L. BRIDGES United States Army, Appellant

ARMY 20120714

Headquarters, I Corps (Rear)(Provisional) Kwasi Hawks, Military Judge (arraignment) David L. Conn, Military Judg e (motions hearing & trial)
Lieutenant Colonel John T. Rothwell, Acting Staff Ju dge Advocate (pretrial) Colonel William R. Martin, Sta ff Judge Advocate (post-trial)

For Appellant: Mr. Ch arles D. Swift, Esqu ire; Captain Robert H. Meek, III, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Major Daniel D. Derner, JA; Major Daniel M. Goldberg, JA (on brief).

27 July 2015

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OPINION OF THE COURT

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KRAUSS, Judge:

An enlisted panel sitting as a genera l court-martial convicted appellant, contrary to his plea s, of wrongful sexua l contact, forcible sodomy, and assault consummated by a battery in violation of Articles 12 0, 125, and 128 Uniform Code of Military Justice, 10 U.S.C. §§ 92 0, 925 and 928 (2012) [hereinafter UCMJ]. 2 The court-martial sentenced appellant to a di shonorable discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to the gr ade of E-1. The

1 Senior Judge LIND and Judg e KRAUSS took final action in this case prior to their
retirement.

2 Appellant was convicte d of sexual offenses involving two victims.BRIDGES — ARMY 20120714

2 convening authority reduced the sentence to confinement by tw o months, approving seventy months of confinemen t, but otherwise approved th e adjudged sentence.

This case is before the court for review under Article 66, UC MJ. Appellant assigns three errors and ra ises matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). Appe llant’s complaint re lative to the use of a prior act of misconduct against him warrants brief discussion and relief. We find that appellant’s remaining co mplaints, including thos e raised pursuant to Grostefon , do
not warrant relief.

DISCUSSION

What we have in this case is a n oncommissioned officer (NCO) who exploited his position in a Warrior Transition Battal ion to seek sexual gratification from not only those suffering the trauma of wounds, his co-worke rs, but also from their
families. The case would not be complicated in terms of appellate review except for
the fact that the United States relied in me rits and sentencing, in part, upon a fifteenyear old allegation of rape against appellant that had been subject to trial and
resulted in acquittal.

Appellant objected to it s admission and requested that, if admitted, the military judge should “include a strong ly worded limiting instruction to guard against the problems associat ed with propensity evidence .” In support of this request, appellant made re ference to and quoted from United States v. Mundell , 40 M.J. 704 (A.C.M.R. 1994), en dorsing an instruction to the panel that he had previously been acqu itted of the charge. The judge denied appellan t’s motion and admitted the evidence of the prior allegati on as propensity evid ence, evidence of modus operandi, and evidence of absence of accident or mistake under Military Rule of Evidence [hereinafter Mi l. R. Evid.] 413 and 404(b). In hi s ruling, he also prohibited any reference to the previous court-martial “[t]o minimize the danger of any unfair prejudice to the ac cused,” but never informed or instructed th e panel that appellant had been acquitted on that allega tion.

The initial difficulty lies in the fact that the milita ry judge’s analysis of the acquitted charge essentially began and en ded with the recogn ition that a prior acquittal on a charge of sexual assault do es not bar subsequent admission of the same allegation under Mil. R. Evid. 413. While this is correct, it serves only as
introduction to the more ne ttlesome problem of consider ing the acquittal in weighing the probative value of the propensity eviden ce against any unfair prejudice that may
result from its admission. See United States v. Wright, 53 M.J. 476 (2000). As appellant points out and our superior court noted in a similar circumstance, “There is a need for great sens itivity when making the determination to admit evidence of prior acts that have been th e subject of an acquittal.” United States v. Griggs , 51 M.J. 418, 420 (C .A.A.F. 1999)

. More recently, our superi or court reiterated itsBRIDGES — ARMY 20120714

3 expectation that judges deal with the admission of evidence previously the subject of an acquitted charge very carefully. See United States v. Solomon , 72 M.J. 176 (C.A.A.F. 2013).

Here, the judge failed to consider the fact that af ter a fair tria l appellant was found not guilty of the prior ch arge when evaluating its probative valu e under Mil.
R. Evid. 403. In fa iling to address the propriety of informing the panel of that acquittal, the judge also did not consider the danger of unfair prejudicial confusion
over the extent to wh ich a panel might co nsider the evidence without running an unacceptable danger of convicting or punish ing appellant for a charge that resulted in appellant’s acquittal. Instead, the judge seems to have considered the only potential prejudice to appellant to be that of mentio ning the prior acquittal.

Contrary to the judge’s re asoning at trial here, both the Supreme Court and the Court of Appeals for the Armed Forces have expressed approval and satisfaction
with admission of such evid ence as long as the judge carefully instructed the panel
that the accused in each case had been acquitted on a char ge of the same allegation and the necessity to conscienti ously limit consideration of that evidence accordingly.
United States v. Dowling , 493 U.S. 342, 348-49 (1990); Solomon , 72 M.J. at 182; Griggs, 51 M.J. at 420

. Indeed, in this case, the panel posed questions during the findings portion wondering what became of the allegation first levied fifteen years ago. The judge only permitte d testimony to the effect that a formal report was made
but otherwise left the panel hanging by not in forming them of the no t guilty finding.

The government effectively concedes this error and makes reference to United
States v. Cuellar , 27 M.J. 50, 56 (C.M .A. 1988), for th e proposition th at the judge should not prevent an accused from ensuri ng a panel is informed that he was acquitted when tried for the prior misconduct. We agre e with appellant and the government that the j udge erred by failing to properly consider the effect of the acquittal when resolvi ng admission of the ev idence under Mil. R. Evid. 413 and 403, and further erred, in light of its admission, by failing to inform and instruct the panel of the acquittal accord ingly. Therefore we must test for pr ejudice. See Griggs, 51 M.J. at 420

.

As to findings, we find little tro uble in resolving th e question against appellant. Despite the judge leaving the panel wondering and the government’s reliance on the propensity evidence to argue “[H]ow el se do we know that some of these crimes were committed? Because he’s done it before,” with underlined
reference to the al leged victim of th e acquitted charge, appellant essentially
admitted to the acts of char ged misconduct resulting in his convictions. Those admissions, in conjunction with the credible testimony of the victims describing the charged acts, convince us th at the erroneous ad mission of the prio r rape allegation, and failure to instruct the panel proper ly, did not substan tially influence the findings. Id

.BRIDGES — ARMY 20120714

4 As to the sentence, we come to a different conc lusion. Thou gh the judge provided a standard in struction advising the panel that appellant should only be punished for the crimes fo r which he was found guilt y, such instruction was
insufficient under the circumst ances of this case. As described ab ove, the panel already expressed curi osity as to the outcome of th e previous alle gation and the government argued in findi ngs that the panel could be confident that appellant committed the charged acts because he had don e it before. In se ntencing, though the government referred to three victims, trial counsel argue d that appellant required severe punishment in the fo rm of lengthy conf inement because “he’s going to do it again. . . [h]e is predis posed to sexual assaul t. It’s wired in his identity.” Absent appropriate instruction to ensure the panel conscientiously avoided punishing appellant for the alleged crime of which he was previously acquitted, we cannot be
confident that the sentence was not substantially influe nced by this evidence. See Griggs, 51 M.J. at 420 ; Solomon, 72 M.J. at 182 ; see also United States v.
Schroeder , 65 M.J. 49, 58 (C.A.A.F . 2007) (discussing genera lly the risk that an accused may be punish ed for uncharged c onduct).

On the basis of the error, the entir e record, and applying the factors in United
States v. Winckelmann , we conclude we can reassess appellant's sentence. 73 M.J. 11, 15-16 (C.A.A.F. 2013). We note there is no change in the pena lty landscape or

exposure. See Id . The gravamen of the offenses has not changed be cause appellant
remains convicted of all of th e items originally charged. See Id . at 16. We recognize that appellant wa s sentenced by a panel. See Id . Nonetheless, this court
reviews the records of a substantial number of courts-martial in volving assaults and
sexual offenses and we have extensive e xperience and familiarity with the level of sentences imposed for such offenses under various circumstances. In light of the aggravated nature of the mi sconduct involving a NCO exploiting victims at and from his workplace, we are confid ent that absent the error the panel would have sentenced appellant to at least a dishonorable discharg e, confinement for four years, total forfeiture of all pay and allowances, and reduction to the grade of E-1.

CONCLUSION

The findings of guilty are AFFIRMED. After consid ering the entire record, the court affirms only so much of the sentence as provides for a dishonorable discharge, confinement for four years, total forfeiture of all pay and allowances and reduction to the grade of E-1. All rights, privileges, and pr operty, of which appellant has been deprived by virtue of th at portion of his sentence set aside by the decision, are orde red restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge LIND and Judge PENLAND concur.BRIDGES — ARMY 20120714

5 FOR THE COURT:

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