## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 ADRIAN GONZALEZ

United States Army, Appellant

ARMY 20160363

Headquarters, U.S. Army Combined Armed Center & Fort Leavenwort h Charles L. Pritchard, Jr., Mi litary Judge (arraignment) Marc D. Cipriano, Mili tary Judge (trial) Colonel Craig E. Merutka, Staff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Major Brendan Cronin, JA; Major Joseph T . Marcee, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin J. F enwick, JA; Captain Joshua B. Bannister, JA (on brief).

3 July 2018

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

In the instant case, Private (PVT) Adrian Gonzalez was charged with sexual
assault of three w omen: Specialist (SPC) AC, PVT TO 1 and Mrs. VB. At issue is whether the use of the charge d assaults for pro pensity purposes was prejudicial
error. We find t hat appellant’s plea of guilty to the charges of abusive sexual contact of VB waived any objection to the military judge’s ruli ng with respect to those charges. With re spect to the charge of rape of SPC AC, w e are unable to conclude that the use of propensity evidence was harmless beyon d a reasonable doubt, and take correct ive action in our d ecretal paragraph.

1 The military judge acquitted appellant of Specification 1 of C harge III, alleging the rape of PVT TO.GONZALEZ—ARMY 20160363

2 A military judge sitti ng as a general court-martial convicted a ppellant, pursuant to his pleas, of three specifications of violating a g eneral order or regulation and two spe cifications of abusive sexual co ntact, an d contrary to his pleas, of one specif ication of rape, in violation of Articles 9 2 and 120, Uniform Code of Military Justice, 10 U .S.C. §§ 892, 920 (2012) [UCMJ]. The military judge sentenced appellant t o a dishonorable discharge and confinement for ten y ears, a sentence later approved by the convening authority.

BACKGROUND

A. Assault of Specia list AC (Specification 2 of Charge III)

In June 2013, while waiting to be court-martial ed for other ch arges, 2 appellant was transferred to Tripler Army M edical Center and assigned as the senior cook on the grill at the dining facility. Specialist (SPC) AC reported to Hawaii in July 2013 and was assigned to work at the grill under appellant’s supervi sion. At the time appellant was a sergeant. Over th e following several months ap pellant and SPC AC
became friends.

On 19 January 201 4, appellant texted SPC AC and asked if she w anted to accompany him and a nother friend, LH, to a movie. After consul ting her husband, SPC AC agreed. The original plan consisted of app ellant and LH picking up SPC AC and going to the m ovie. Appellant arri ved at SPC AC’s hous e, later than expected and alone. The two of t hem went and picked up LH. To SPC AC’s surprise, the three th en went to Moose McG illycuddy’s, a bar an d dance club, so LH could pick up some marijuana.

Once at McGillycuddy’s, SPC A C drank several strong drinks. 3 She danced with LH and appellant. When th ey left the bar at 0300 the next morning, SPC AC was drunk; she could not walk without hold ing handrails and she needed assistance to climb into appellant’s truck.

On the drive back, SPC AC immedi ately fell into a deep sleep. She slept through the twenty-five minute drive to McD onald’s, the stop at the drive thru, and
the ten minute dr ive back to appellant’s house. At the house, LH and appellant tried
to awaken SPC AC. Th ey spoke to her, shook her and slapped her face. SPC AC did

2 These charges are rel evant only in that th ey form part of the basis of the government’s Military R ule of Evidence [Mil . R. Evid.] 413 moti on. On 28 May 2014, appellant pleade d guilty to one specification of maltreat ment of a subordinate, one specification of rap e, and three specifications of abusive sexual contact. The victims of these offenses, SPC J F and SPC MM, were, respectivel y, a member of appellant’s unit and a subordinate. Appellant did not tell any one he was pending charges; his superviso rs, coworkers and fri ends were unaware of the charges.

3 The drink was referred to as A MF, which stood for “Adios Mothe r Fucker,” and, as described by one witnes s, contained several types of liquor, Sp rite, and a sweetener.GONZALEZ—ARMY 20160363

3 not respond, so they left her in the truck and went inside. Af ter using the bathroom, LH asked that appellant drive her home. Appellant drove LH hom e and told LH that
he would “make sure that [SPC AC] got home safe.”

Specialist AC woke up t he next morning in a parking lot. Her p ants and
underwear were around h er ankles and she felt a semen-like flui d between her legs and coming out of her v agina. She sa w appellant sl eeping in th e driver’s seat, with his pants down to his knees. Spe cialist AC screamed. Appellan t woke up, said “fuck, fuck, fuck,” pull ed up his pants and drove to SPC AC’s h ouse. During the ten minute drive, neither appellan t nor SPC AC sa id anything.

When SPC AC got home she went in her house, lai d down on the co uch and curled up in the fetal position. Her husb and yelled at her, we nt upstairs and started to pack. Specialist AC followe d her husband ups tairs. Before she could tell him anything he had a seiz ure. SPC AC had to c all for an ambulance to take her husband to the hospital.

Specialist AC did not reveal the as sault to her husband until m onths later. She reported the incident to authorities a year after the incid ent.

At trial, the government’s evidence concerning the assault of S PC AC
consisted of her test imony, LH’s testimony cor roborating SPC AC ’s level of intoxication, and SPC AC’s husband’s tes timony as to her demean or when she returned the morning before his seizure. The government offere d no physical
evidence corroborati ng the assa ult.

Contrary to appellant’s plea, the military judge found appellan t guilty of this
offense.

B. Assault of Mrs. VB (Specifications 3 and 4 of Charge III)

In February 2014, in anticipation of his cou rt-martial for oth er sexual misconduct, appe llant moved his family b ack to the continental United States. He
told his friends that there was a problem with his orders so he could not immediately join his family. Appellant’s friend, SPC NB, invited him to st ay at his house. SPC NB’s wife, Mrs. VB also resided at the house. N either SPC NB n or Mrs. VB knew appellant was pe nding court-mar tial charges.

On 4 May 2014, af ter drinking and watchin g a movie in their li ving room, SPC NB and Mrs. VB fell asleep on the living r oom floor. At ar ound 0400, after a night out drinkin g appellant retu rned and could no t get into th e residence. Mrs. VB heard loud banging and attempte d to wake her hus band. After wa king him, Mrs. VB
went back to sle ep on the floor. Special ist NB let appellant i n the house, rejoined his wife, and went back to sleep.

Later that morning, Mrs. VB woke up because someone was touchi ng her buttocks. She op ened her eyes and realiz ed it was not her husb and. She heard appellant say “come here, come here, let’ s go to the room.” Mr s. VB told appellantGONZALEZ—ARMY 20160363

4 to stop. He did not stop, but instead atte mpted to convince Mr s. VB to have sex with him. Appellant touched her breasts, buttocks, inner thigh s and mons pubis.
Unable to wake h er husband, Mrs. VB got up and left the house.

Appellant pleaded guilty to touc hing Mrs. VB’s buttocks (Speci fication 3 of Charge III) and guilty , by exceptions and substitutions, to tou ching Mrs. VB’s mons pubis (Specificatio n 4 of Charge III).

C. Trial

The government charge d appellant with sexua l assault of SPC AC , two specifications of abusi ve sexual contact of Mrs. VB, sexual ass ault of PVT TO, as well as violating a g eneral order by provid ing alcohol to PVT T O, a person under the age of twenty-one, a nd fraternizing with PV T TO. In a pretrial motion, the government sought to introduce evidence of appellant’s prior se xual assault
convictions and use that eviden ce, as well as the charged Artic le 120, UCMJ, offenses to establish that appell ant had a propens ity to commit the sexual
misconduct.

The government motion specifica lly requested th e pre-admission of the stipulation of fact fro m appellant’s prior court-martial, the t ranscript of appellant’s providence inquiry at that trial, and the result of trial (RROT ). The government also asked for a ruling on the admissibility of:

a. Evidence of the Accused’s p rior conviction for sexually assaulting tw o prior victims (if RROT not pre- admitted);
b. Evidence of the accused’s assault of [ Mrs. VB] for its bearing on th e charged assault of [PVT TO] and [SPC AC];
c. Evidence of the accused’s a ssault of [PVT TO] for its bearing on th e charged assault of [Mrs. VB] and [SPC AC]; and
d. Evidence of t he accused’s assault of [SPC AC] for its bearing on the charged assa ult of [Mrs. VB] and [PVT TO].

The defense did not fi le a motion oppo sing the government’s mot ion but, at a pretrial motions hearing on 18 A pril 2016, oppose d the motion, citing Military Rule of Evidence [Mil. R. Evid] 403. T he next day, the military jud ge issued a written ruling with findings o f fact, and found the evidence was admiss ible but not admitted.

On 4 May 2016, appe llant submitted an offe r to plead guilty (OP G) to Charge I and its specifications (the violations of a general regulatio n or order) and Specifications 3 and 4 of Charge III (the a busive sexual contac t of Mrs. VB). After a counter offer, the convening authority accepted the OPG. Wit hin the OPG,GONZALEZ—ARMY 20160363

5 appellant reserved the right to rais e a motion regarding unreas onable multiplication of charges for sentencing; no o ther motions were reserved.

On 10 May 2016, pursuant to his agreemen t with the convening au thority, appellant pleaded guilt y to abusive sexual contact with Mrs. VB . Before asking for appellant’s plea, the military j udge went over t he outstanding motions and asked defense if there were any other motions. Defense indicated the re were no other motions. Appellant then pleade d guilty to the sp ecifications o f Charge I, and Specifications 3 an d 4 of Charge III. 4

After the providence inquiry, the governmen t began their case a s to Specifications 1 and 2 of Charge III. When trial counsel attem pted to address propensity in his opening statem ent the military judge stopped him and told him that he could not mention pr opensity unless it be came relevant and t he evidence was
admitted.

In closing, the gover nment set the tone of the argument early i n stating “[T]his court has before it powerful propensity evidence” befor e listing the various victims of appellant’s sexual assaults as his subordinates, his friends, and those who trusted him. After arguing propen sity, the trial counsel laid out the evidence supporting the assault of SPC A C, and the evidence supporting t he assault of PVT
TO. Trial counsel closed his ar gument the way he started–argui ng propensity.

LAW AND DISCUSSION

A. Military Judge’s Ru ling on Military Ru le of Evidence 413

The decision to admit evidence is reviewed for an abuse of disc retion. United
States v. Hukill , 76 M.J. 219, 221 (C.A.A.F. 2017). “ The meaning and scope of M.R.E. 413 is a quest ion of law that is r eviewed de novo.” United States v. Hills , 75 M.J. 350, 354 (C.A.A.F. 2016 ) (citation omitted). In Hills , the Court of Appeals for the Armed Forces (CAAF) found t hat using Mil. R . Evid. 413 evid ence of charged misconduct as propensi ty evidence t o prove other ch arged miscon duct “violated Appellant’s presumption of innocence and right to have all find ings made clearly beyond a reasonable doubt, resul ting in constitut ional error.” Hills 75 MJ at 356. Though Hills was a case involving instructions to a panel, the CAAF made it clear in

Hukill that this issue extends to milita ry judge alone cases as well. 76 M.J. at 222 (“Whether considered by members or a militar y judge, evidence o f a charged and contested offense, of which an a ccused is presumed innocent, ca nnot be used as propensity evidence i n support of a compani on charged offense.” ).

4 The trial counsel dism issed Charge II afte r arraignment but be fore appellant entered his plea.GONZALEZ—ARMY 20160363

6 The government’s motion to adm it evidence under Mil. R. Evid. 4 13 contained both uncharg ed and charged misco nduct. There was not hing erroneous in the military judge’s ruling with regard to the unc harged miscon duct. Of the charged misconduct, the military judge a llowed the gover nment to use th e evidence of
assaults on each of the named v ictims, (Mrs. VB, SPC AC, and PV T TO) to prove
the assault of t he other named v ictims. It is clear from the d ecision by CAAF in

Hukill that this was error. 5

We must therefore examine the im pact of the erro r on the plea o f guilty and on the contested por tion of the trial.

B. Pleas and Waiver of Unpreserved Motions

Appellant argues that he relie d on the military j udge’s ruling on the government’s use of Mil. R. Evi d. 413 when he decided to plead guilty to some offenses and, as that ruling was erroneous , we shoul d set aside his plea of guilty to
abusive sexual contact of Mrs. V B. We disagree. We find the a ppellant’s plea of guilty was provident e ven if he based his decision on an errone ous evidentiary ruling by the military judge.

Unless conditioned under Rule f or Courts-Martial [R.C.M.] 910(a )(2), a plea of guilty that results in a finding of guilty, “waives all nonjurisdictional defects at earlier stages of the proceedings.” United States v. Lee , 73 M.J. 166, 1 67 (C.A.A.F. 2014) (quoting United States v. Bradley , 68 M.J. 279, 281 (C.A.A.F. 2010). An erroneous ruling on Mil R. Evid. 4 13 is not jurisdictional. Th is is an evidentiary ruling akin to motions to suppr ess a confession or on the admis sibility of evidence
seized without a warran t. Just as the Supr eme Court has found that a val id guilty plea with the advice of counsel waives an errone ous ruling on t he admissibility of a pretrial confession ( See McMann v. Richardson , 397 U.S. 759, 771 (1970)), and the
CAAF has found that an unconditional guilty p lea waives all sup pression motions ( See United States v. Tarleton , 47 M.J. 170, 172-173 (C.A. A.F. 1997)), we find that unless specifically conditioned, a guilty plea waives any objection to a military judge’s ruling under Mil. R. Ev id. 413.

Appellant chose to enter into a pretrial agreement (PTA) with t he Convening Authority. In that PTA, appella nt agreed to ple ad guilty to so me of the specifications in exchange for a limitation on h is sentence. W hile appellant preserved his motion in regard to an unrea sonable multiplicatio n of charges, the PTA
otherwise was silent a s to his objection t o the military judge’ s Mil. R. Evid. 413

5 The record indicates that the plea of gu ilty to the specificat ions regarding Mrs. VB was anticipated, as at the motions hearing, trial counsel state d “pending the accused’s plea of gu ilty to Specification s 3 and 4 of Charge II I we’d like that plea, .
. . when and if it becomes relevan t, to be as 413 propensity ev idence for purposes of abuse against [SPC AC and PVT TO] .” At the time of the militar y judge’s ruling, however, appellant ha d not entered in to an agreemen t to plead g uilty to the assault of Mrs. VB, and the propensity i ssue was still one of charged m isconduct.GONZALEZ—ARMY 20160363

7 ruling. Prior to entry of pleas, the military judge went over the status of the pretrial
motions and the results and then twice aske d the defense counse l if there were any
other motions. The def ense counsel indicat ed there were no oth er motions and entered a plea of gu ilty to the violations of a general order o r regulation (Charge I and its specifications), and the a busive sexual co ntact of Mrs. VB (Specifications 3 and 4 of Charge III). This waived any evidentiary issues, such as the military judge’s Mil. R. Evid. 413 ruli ng, as to those charges.

C. Use of Propensity Evidence in the Contested Portion of Trial

It is constitutional e rror to admit evidenc e of charged conduct as propensity evidence in proving othe r charged conduct. Therefore we must d etermine whether the military judge’s ruling and c onsideration of improper prope nsity evidence was harmless beyond a reasonable doubt. 6 United States v. Wolford , 62 M.J. 418, 420 (C.A.A.F. 2006). An error is not harmless beyond a reasonable doubt when there is
a reasonable possibility the error comp lained of mi ght have con tributed to the
conviction. United States v. Moran , 65 M.J. 178, 187 ( C.A.A.F. 2007); United
States v. Chandler , 74 M.J. 674, 68 5 (Army Ct. Cri m. App. 2015).

As our superior court has noted, “[t]here are circumstances whe re the evidence is overwhelming, so we ca n rest assured t hat an errone ous propensity
instruction did not contribute to the verdict by ‘tipp[ing] the balance in the members'
ultimate determination.’” United States v. Guardado , 77 M.J. 90, 9 4 (C.A.A.F. 2017) (quoting Hills , 75 M.J. at 358). At f irst glance, this wo uld appear to be su ch a

case. Specialist AC presented as a very credible witness. The circum stantial
evidence – the amount SPC AC had to drink, the inability to wak e her at McDonald’s or at appellant’s house, and her actions upon a rriving home – s upports the
conclusion that SPC AC was assaulted by ap pellant.

However, we must view this evide nce in light of the government’ s focus on propensity evidence in ob taining a guilt y finding.

The clear theme of the prosecuti on’s closing argum ent was prope nsity. While much of this was permissible, as it revolved arou nd appellant’s prior conviction and the parallels between those crimes and the charged misconduct, government counsel repeatedly made references to im proper evidence. The trial cou nsel used the plea of guilty to the specifi cations regard ing Mrs. VB to show propensi ty evidence to
commit similar acts. A lthough not an improp er use of propensit y this was improper
argument. 7 Most critically trial counsel grouped the assaults on SPC AC and PVT TO, pointing out the similarities between these in cidents and t he other assaults.

6 Appellant objected to t he government’s moti on, thereby preserv ing the error.

7 The military judge init ially stopped trial counsel from arguing propensity based on

(continued . . .)GONZALEZ—ARMY 20160363

8 JOHN P. TAITT Acting Clerk of Court FOR THE COURT: Though we conclude the evidence against appellant was strong, we cannot conclude beyond a reasonable doub t that improper propensity evi dence played no role in appellant’s conviction of Specification 2 of Charge III

.

CONCLUSION

Upon consideration of the entire record

, the finding of guil ty to Specification 2 of Charge III is set aside. T he remaining findings of guilty are AFFIRMED. The
sentence is set aside. The same or a diffe rent convening autho rity may: 1 ) order a rehearing on Specifica tion 2 of Charge III and the se ntence; 2) dismiss Specification 2 of Charge III an d order a rehea ring on the se ntence only; 3) dismiss Specification 2 of Charge III an d reassess the sentence, affirming no more th an a dishon orable discharge and confinement for six years. 8

Senior Judge BURTON and Judge HAGLER concur.

(. . . continued) the assaults of Mrs. VB, as he h ad not issued a finding of guil t, even t hough he had accepted appellant’s pl eas to these offenses . The trial counse l pointed to the prior ruling on Mil. R. Evid 413 and th e military judge allowed trial counsel to continue. Under the facts in this case this constituted error, as the gov ernment introduced no evidence of the crimes against Mr s. VB and instea d relied on ap pellant’s testimony during the providence inquiry and the stipulation of fact. Thi s was an imp roper use of appellant’s providence inqu iry and outside of the scope of p ermissible use of the stipulation of fact, w hich by its terms, c ould only b e consider ed for purposes of appellant’s guilty ple as and sentencing. T he government could have asked the judge to make his findings on the guilty plea as contemplated by R.C. M. 910(g) and then called Mrs. VB to testify as to w hat happened to h er if they wa nted to argue propensity based on t he guilty plea.

8 In reassessing the sentence we a re satisfied that the sentence adjudged, absent Specification 2 of Charge III, woul d have been at least a disho norable discharge and confinement for six years. See United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013). The
reassessment bein g both appropriat e and purging th e record as i t stands of error does not otherwise limit the sentence that may be adjudged at a rehe aring. See UCMJ, art.

63.