UNITED STATES ARMY COURT 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 Leavenworth 

Charles L. Pritchard, Jr., Military Judge (arraignment) 

Marc D. Cipriano, Military Judge (trial) 

Colonel Craig E. Merutka, Staff Judge Advocate 

For Appellant: Lieutenant Colonel 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. Fenwick, JA; Captain 

Joshua B. Bannister, JA (on brief). 

3 July 2018 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 women: Specialist (SPC) AC, PVT TO1 and Mrs. VB. At issue is 

whether the use of the charged assaults for propensity purposes was prejudicial 

error. We find that appellant’s plea of guilty to the charges of abusive sexual 

contact of VB waived any objection to the military judge’s ruling with respect to 

those charges. With respect to the charge of rape of SPC AC, we are unable to 

conclude that the use of propensity evidence was harmless beyond a reasonable 

doubt, and take corrective action in our decretal paragraph. 

 

1

 The military judge acquitted appellant of Specification 1 of Charge III, alleging the 

rape of PVT TO.
GONZALEZ—ARMY 20160363 

2 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of three specifications of violating a general order or 

regulation and two specifications of abusive sexual contact, and contrary to his 

pleas, of one specification of rape, in violation of Articles 92 and 120, Uniform 

Code of Military Justice, 10 U.S.C. §§ 892, 920 (2012) [UCMJ]. The military judge 

sentenced appellant to a dishonorable discharge and confinement for ten years, a 

sentence later approved by the convening authority. 

BACKGROUND 

A. Assault of Specialist AC (Specification 2 of Charge III) 

 In June 2013, while waiting to be court-martialed for other charges,2

 appellant 

was transferred to Tripler Army Medical 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 supervision. At the time 

appellant was a sergeant. Over the following several months appellant and SPC AC 

became friends. 

 On 19 January 2014, appellant texted SPC AC and asked if she wanted to 

accompany him and another friend, LH, to a movie. After consulting her husband, 

SPC AC agreed. The original plan consisted of appellant and LH picking up SPC 

AC and going to the movie. Appellant arrived at SPC AC’s house, later than 

expected and alone. The two of them went and picked up LH. To SPC AC’s 

surprise, the three then went to Moose McGillycuddy’s, a bar and dance club, so LH 

could pick up some marijuana. 

 Once at McGillycuddy’s, SPC AC drank several strong drinks.3

 She danced 

with LH and appellant. When they left the bar at 0300 the next morning, SPC AC 

was drunk; she could not walk without holding handrails and she needed assistance 

to climb into appellant’s truck. 

On the drive back, SPC AC immediately fell into a deep sleep. She slept 

through the twenty-five minute drive to McDonald’s, the stop at the drive thru, and 

the ten minute drive back to appellant’s house. At the house, LH and appellant tried 

to awaken SPC AC. They spoke to her, shook her and slapped her face. SPC AC did 

 

2

 These charges are relevant only in that they form part of the basis of the 

government’s Military Rule of Evidence [Mil. R. Evid.] 413 motion. On 28 May 

2014, appellant pleaded guilty to one specification of maltreatment of a subordinate, 

one specification of rape, and three specifications of abusive sexual contact. The 

victims of these offenses, SPC JF and SPC MM, were, respectively, a member of 

appellant’s unit and a subordinate. Appellant did not tell anyone he was pending 

charges; his supervisors, coworkers and friends were unaware of the charges. 

3

 The drink was referred to as AMF, which stood for “Adios Mother Fucker,” and, as 

described by one witness, contained several types of liquor, Sprite, and a sweetener. 
GONZALEZ—ARMY 20160363 

3 

not respond, so they left her in the truck and went inside. After using the bathroom, 

LH asked that appellant drive her home. Appellant drove LH home and told LH that 

he would “make sure that [SPC AC] got home safe.” 

Specialist AC woke up the next morning in a parking lot. Her pants and 

underwear were around her ankles and she felt a semen-like fluid between her legs 

and coming out of her vagina. She saw appellant sleeping in the driver’s seat, with 

his pants down to his knees. Specialist AC screamed. Appellant woke up, said 

“fuck, fuck, fuck,” pulled up his pants and drove to SPC AC’s house. During the ten 

minute drive, neither appellant nor SPC AC said anything. 

When SPC AC got home she went in her house, laid down on the couch and 

curled up in the fetal position. Her husband yelled at her, went upstairs and started 

to pack. Specialist AC followed her husband upstairs. Before she could tell him 

anything he had a seizure. SPC AC had to call for an ambulance to take her husband 

to the hospital. 

Specialist AC did not reveal the assault to her husband until months later. 

She reported the incident to authorities a year after the incident. 

At trial, the government’s evidence concerning the assault of SPC AC 

consisted of her testimony, LH’s testimony corroborating SPC AC’s level of 

intoxication, and SPC AC’s husband’s testimony as to her demeanor when she 

returned the morning before his seizure. The government offered no physical 

evidence corroborating the assault. 

Contrary to appellant’s plea, the military judge found appellant guilty of this 

offense. 

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

 In February 2014, in anticipation of his court-martial for other sexual 

misconduct, appellant moved his family back 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 stay at his house. SPC 

NB’s wife, Mrs. VB also resided at the house. Neither SPC NB nor Mrs. VB knew 

appellant was pending court-martial charges. 

 On 4 May 2014, after drinking and watching a movie in their living room, 

SPC NB and Mrs. VB fell asleep on the living room floor. At around 0400, after a 

night out drinking appellant returned and could not get into the residence. Mrs. VB 

heard loud banging and attempted to wake her husband. After waking him, Mrs. VB 

went back to sleep on the floor. Specialist NB let appellant in the house, rejoined 

his wife, and went back to sleep. 

 Later that morning, Mrs. VB woke up because someone was touching her 

buttocks. She opened her eyes and realized it was not her husband. She heard 

appellant say “come here, come here, let’s go to the room.” Mrs. VB told appellant 
GONZALEZ—ARMY 20160363 

4 

to stop. He did not stop, but instead attempted to convince Mrs. VB to have sex 

with him. Appellant touched her breasts, buttocks, inner thighs and mons pubis. 

Unable to wake her husband, Mrs. VB got up and left the house. 

 Appellant pleaded guilty to touching Mrs. VB’s buttocks (Specification 3 of 

Charge III) and guilty, by exceptions and substitutions, to touching Mrs. VB’s mons 

pubis (Specification 4 of Charge III). 

C. Trial 

 The government charged appellant with sexual assault of SPC AC, two 

specifications of abusive sexual contact of Mrs. VB, sexual assault of PVT TO, as 

well as violating a general order by providing alcohol to PVT TO, a person under the 

age of twenty-one, and fraternizing with PVT TO. In a pretrial motion, the 

government sought to introduce evidence of appellant’s prior sexual assault 

convictions and use that evidence, as well as the charged Article 120, UCMJ, 

offenses to establish that appellant had a propensity to commit the sexual 

misconduct. 

 The government motion specifically requested the pre-admission of the 

stipulation of fact from appellant’s prior court-martial, the transcript 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 prior conviction for sexually 

 assaulting two prior victims (if RROT not pre- 

 admitted); 

b. Evidence of the accused’s assault of [Mrs. VB] for its 

 bearing on the charged assault of [PVT TO] and [SPC 

 AC]; 

c. Evidence of the accused’s assault of [PVT TO] for its 

 bearing on the charged assault of [Mrs. VB] and [SPC 

 AC]; and 

d. Evidence of the accused’s assault of [SPC AC] for its 

 bearing on the charged assault of [Mrs. VB] and [PVT 

 TO]. 

The defense did not file a motion opposing the government’s motion but, at a 

pretrial motions hearing on 18 April 2016, opposed the motion, citing Military Rule 

of Evidence [Mil. R. Evid] 403. The next day, the military judge issued a written 

ruling with findings of fact, and found the evidence was admissible but not admitted. 

On 4 May 2016, appellant submitted an offer to plead guilty (OPG) to Charge 

I and its specifications (the violations of a general regulation or order) and 

Specifications 3 and 4 of Charge III (the abusive sexual contact of Mrs. VB). After 

a counter offer, the convening authority accepted the OPG. Within the OPG, 
GONZALEZ—ARMY 20160363 

5 

appellant reserved the right to raise a motion regarding unreasonable multiplication 

of charges for sentencing; no other motions were reserved. 

On 10 May 2016, pursuant to his agreement with the convening authority, 

appellant pleaded guilty to abusive sexual contact with Mrs. VB. Before asking for 

appellant’s plea, the military judge went over the outstanding motions and asked 

defense if there were any other motions. Defense indicated there were no other 

motions. Appellant then pleaded guilty to the specifications of Charge I, and 

Specifications 3 and 4 of Charge III.4 

After the providence inquiry, the government began their case as to 

Specifications 1 and 2 of Charge III. When trial counsel attempted to address 

propensity in his opening statement the military judge stopped him and told him that 

he could not mention propensity unless it became relevant and the evidence was 

admitted. 

In closing, the government set the tone of the argument early in stating 

“[T]his court has before it powerful propensity evidence” before listing the various 

victims of appellant’s sexual assaults as his subordinates, his friends, and those who 

trusted him. After arguing propensity, the trial counsel laid out the evidence 

supporting the assault of SPC AC, and the evidence supporting the assault of PVT 

TO. Trial counsel closed his argument the way he started–arguing propensity. 

LAW AND DISCUSSION 

A. Military Judge’s Ruling on Military Rule of Evidence 413 

The decision to admit evidence is reviewed for an abuse of discretion. 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 question of law that is reviewed 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 that using Mil. R. Evid. 413 evidence of charged 

misconduct as propensity evidence to prove other charged misconduct “violated 

Appellant’s presumption of innocence and right to have all findings made clearly 

beyond a reasonable doubt, resulting in constitutional 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 military judge alone cases as well. 76 M.J. at 222 

(“Whether considered by members or a military judge, evidence of a charged and 

contested offense, of which an accused is presumed innocent, cannot be used as 

propensity evidence in support of a companion charged offense.”). 

 

4

 The trial counsel dismissed Charge II after arraignment but before appellant 

entered his plea. 
GONZALEZ—ARMY 20160363 

6 

The government’s motion to admit evidence under Mil. R. Evid. 413 

contained both uncharged and charged misconduct. There was nothing erroneous in 

the military judge’s ruling with regard to the uncharged misconduct. Of the charged 

misconduct, the military judge allowed the government to use the evidence of 

assaults on each of the named victims, (Mrs. VB, SPC AC, and PVT TO) to prove 

the assault of the other named victims. It is clear from the decision by CAAF in 

Hukill that this was error.5

We must therefore examine the impact of the error on the plea of guilty and 

on the contested portion of the trial. 

B. Pleas and Waiver of Unpreserved Motions 

Appellant argues that he relied on the military judge’s ruling on the 

government’s use of Mil. R. Evid. 413 when he decided to plead guilty to some 

offenses and, as that ruling was erroneous, we should set aside his plea of guilty to 

abusive sexual contact of Mrs. VB. We disagree. We find the appellant’s plea of 

guilty was provident even if he based his decision on an erroneous evidentiary ruling 

by the military judge. 

Unless conditioned under Rule for 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, 167 (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. 413 is not jurisdictional. This is an evidentiary 

ruling akin to motions to suppress a confession or on the admissibility of evidence 

seized without a warrant. Just as the Supreme Court has found that a valid guilty 

plea with the advice of counsel waives an erroneous ruling on the admissibility of a 

pretrial confession (See McMann v. Richardson, 397 U.S. 759, 771 (1970)), and the 

CAAF has found that an unconditional guilty plea waives all suppression 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. Evid. 413. 

Appellant chose to enter into a pretrial agreement (PTA) with the Convening 

Authority. In that PTA, appellant agreed to plead guilty to some of the 

specifications in exchange for a limitation on his sentence. While appellant 

preserved his motion in regard to an unreasonable multiplication of charges, the PTA 

otherwise was silent as to his objection to the military judge’s Mil. R. Evid. 413 

 

5

 The record indicates that the plea of guilty to the specifications regarding Mrs. VB 

was anticipated, as at the motions hearing, trial counsel stated “pending the 

accused’s plea of guilty to Specifications 3 and 4 of Charge III we’d like that plea, . 

. . when and if it becomes relevant, to be as 413 propensity evidence for purposes of 

abuse against [SPC AC and PVT TO].” At the time of the military judge’s ruling, 

however, appellant had not entered into an agreement to plead guilty to the assault 

of Mrs. VB, and the propensity issue was still one of charged misconduct. 
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 asked the defense counsel if there were any 

other motions. The defense counsel indicated there were no other motions and 

entered a plea of guilty to the violations of a general order or regulation (Charge I 

and its specifications), and the abusive sexual contact 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 ruling, as to those charges. 

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

It is constitutional error to admit evidence of charged conduct as propensity 

evidence in proving other charged conduct. Therefore we must determine whether 

the military judge’s ruling and consideration of improper propensity 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 complained of might have contributed 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, 685 (Army Ct. Crim. App. 2015). 

As our superior court has noted, “[t]here are circumstances where the 

evidence is overwhelming, so we can rest assured that an erroneous 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, 94 (C.A.A.F. 

2017) (quoting Hills, 75 M.J. at 358). At first glance, this would appear to be such a 

case. Specialist AC presented as a very credible witness. The circumstantial 

evidence – the amount SPC AC had to drink, the inability to wake her at McDonald’s 

or at appellant’s house, and her actions upon arriving home – supports the 

conclusion that SPC AC was assaulted by appellant. 

However, we must view this evidence in light of the government’s focus on 

propensity evidence in obtaining a guilty finding. 

The clear theme of the prosecution’s closing argument was propensity. While 

much of this was permissible, as it revolved around appellant’s prior conviction and 

the parallels between those crimes and the charged misconduct, government counsel 

repeatedly made references to improper evidence. The trial counsel used the plea of 

guilty to the specifications regarding Mrs. VB to show propensity evidence to 

commit similar acts. Although not an improper use of propensity this was improper 

argument.7

 Most critically trial counsel grouped the assaults on SPC AC and PVT 

TO, pointing out the similarities between these incidents and the other assaults. 

 

6

 Appellant objected to the government’s motion, thereby preserving the error. 

7 The military judge initially 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 doubt that improper propensity evidence played no 

role in appellant’s conviction of Specification 2 of Charge III. 

CONCLUSION

Upon consideration of the entire record, the finding of guilty to Specification 

2 of Charge III is set aside. The remaining findings of guilty are AFFIRMED. The 

sentence is set aside. The same or a different convening authority may: 1) order a 

rehearing on Specification 2 of Charge III and the sentence; 2) dismiss Specification 

2 of Charge III and order a rehearing on the sentence only; 3) dismiss Specification 

2 of Charge III and reassess the sentence, affirming no more than a dishonorable 

discharge and confinement for six years.8

 Senior Judge BURTON and Judge HAGLER concur. 

 

 

(. . . continued) 

the assaults of Mrs. VB, as he had not issued a finding of guilt, even though he had 

accepted appellant’s pleas to these offenses. The trial counsel pointed to the prior 

ruling on Mil. R. Evid 413 and the military judge allowed trial counsel to continue. 

Under the facts in this case this constituted error, as the government introduced no 

evidence of the crimes against Mrs. VB and instead relied on appellant’s testimony 

during the providence inquiry and the stipulation of fact. This was an improper use 

of appellant’s providence inquiry and outside of the scope of permissible use of the 

stipulation of fact, which by its terms, could only be considered for purposes of 

appellant’s guilty pleas and sentencing. The 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 what happened to her if they wanted to argue 

propensity based on the guilty plea. 

8

 In reassessing the sentence we are satisfied that the sentence adjudged, absent 

Specification 2 of Charge III, would have been at least a dishonorable 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 being both appropriate and purging the record as it stands of error does 

not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art. 

63.