## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, CELTNIEKS, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class DOUG LAS E. REYNOLDS, JR. United States Army, Appellant

ARMY 20140856

Headquarters, Fort Campbell Steven E. Walbur n, Military Judge Colonel Susan K. Arnold, Sta ff Judge Advocate (pretrial) Lieutenant Colonel Robert C. Insani , Staff Judge Advoca te (post-trial)

For Appellant: Lieutenant Colonel Charles Loza no, JA; Major Andres Vazquez, Jr., JA; Major Leslie S. Smith, JA (on brief); Li eutenant Colonel Christopher D. Carrier, JA; Major Andres Vazquez, Jr., JA (on br ief following first remand); Lieutenant Colonel Tiffany M. Chapman, JA; Lieutenant Colonel Ch ristopher D. Carrier, JA; Captain Matthew D. Bernstein, JA (on brief following se cond remand).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Linda Chavez , JA (on brief); Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief fo llowing first remand); Colonel Tania M. Martin, JA; Lieutenant Colo nel Eric K. Stafford, JA; Major Cormac M. Smith, JA (on brief following second remand).

28 November 2017

---------------------------------------------------------------- SUMMARY DISPOSITION ON FURTHER REMAND

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, contrary to his plea s, of one specification of abusive sexual contact and one specification of sexual abuse of a ch ild, in violation of Articles 120 and 120b, Uniform Code of Military Ju stice, 10 U.S.C. §§ 920, 920b (2012 & Su pp. I 2014) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge, confinement for eighteen m onths, total forfeitur e of all pay andREYNOLDS—ARMY 20140856

2 allowances, and a reduction to the grade of E-1. The co nvening authority approved the sentence as adjudged.

This case is before us on remand under Article 66, UCMJ, for consideration in light of United States v. Hukill , 76 M.J. 219 (C.A.A.F. 2017). 1 Appellant alleges the military judge er red by allowing the government to use charged sexual misconduct to prove propensity to commit other charged misconduct. After re viewing all of the evidence in the record of trial, we are convinced ofappellant’s guilt beyond a reasonable doubt . With respect to the ch arge of sexual abuse ofa child, we find that the error was harmless beyond a reasonable doubt. However, wi th respect to the charge of abusive sexual cont act we are unable to conclude the military judge’s error was harmless beyond a reason able doubt, and take correct ive action in our decretal paragraph.

BACKGROUND

Appellant stands convicte d of sexually assaulting twelve year-old AL and Sergeant First Class (SFC) YM at a family gathering near Fort Campbe ll, Kentucky, where appellant was assigned.

After arraignment but before trial on the merits, the government moved in limine to allow the use of evidence of th e charge against AL “to help prove” the charge against SFC YM. Trial defense coun sel opposed this moti on. The military judge ruled the government could use the charged sexual offenses involving AL and SFC YM as propensity evidence for each other under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413. While still in the context of a tria l before members, the military judge’s ruling stated:

The instruction will highlight that the introduction of such evidence does not relieve the government of its burden of proving every element of ever y offense charged, and that the fact-finder may not convic t the accused of the charged offenses on the basi s of the evidence admitted under [Mil. R. Evid.] 413 alone.

1 This court has twice affirmed the findings and sentence in this case. On 17 June 2016, we summarily affirmed appell ant’s conviction and sentence. United States v. Reynolds , ARMY 20140856 (Army Ct. Crim. App. 17 Jun. 2 016) (unpublished). After remand from our superior cour t for consideration in light of United States v. Hills , 75 M.J. 350 (C.A.A.F. 2016 ), we again affirmed ap pellant’s conviction and
sentence. United States v. Reynolds , ARMY 20140856 (Army Ct. Crim. App. 5 Jan. 2017) (summ. disp.).REYNOLDS—ARMY 20140856

3 On 5 November 2014, however , prior to a trial on the merits, appellant elected to have his case heard by a military judge, sitting alone.

During the trial on the merits, AL testifie d that while sleeping on the floor of her cousin’s bedroom she woke up to appellant rubbing her breasts a nd buttocks. AL got up and walked into the living room where her moth er, SFC YM, and her uncle were sleeping on a couch and recliner, respec tively. She waited until appellant went downstairs and then returned to her cousin’s room, closed the door, and climbed into the upper bunk of her cousin’s bu nkbed. At schoo l the following Monday, AL confided in a fri end who convinced he r she needed to te ll her parents. AL told her father that afternoon on the telephone.

Sergeant First Class YM testified that after an evening of drinking and hanging-out with her brother-in-law (appellant ’s uncle), she fell as leep on th e sofa. She woke to appellant fondling her breast under her bra. She flailed her arms and he stepped away. She fell back asleep, but ag ain woke to appellant touching her breast. The next day, SFC YM told her brother-in-law she thought she had be en fondled. When describing the incide nt, SFC YM stated at fi rst she though t maybe she dreamed it because it wa s so surprising.

The issue of propensity did not come up in opening argum ent or the government’s case in chief. In closing argument, the gove rnment argued the military judge could use the facts of appellant committing the sexual assault against AL to show he committed a sexual assault agai nst SFC YM. In rebuttal argument, the government stated: “when you us e [Mil. R. Evid.] 413 with the credible account of [AL] and you apply that to [SFC YM]’s assaul t, it clearly sh ows [appellant]’s propensity . . . to commit thes e sexual assaults.” The m ilitary judge fo und appellant guilty of all charges and their specifications.

LAW AND DISCUSSION

The decision to admit evidence is revi ewed for an abuse of discretion. Hukill

, 76 M.J. at 221. “The meani ng and scope of [Mil . R. Evid.] 413 is a question of law that is review ed de novo.” Hills , 75 M.J. at 354. In Hills , our superior court found the use evidence of charged misconduct admitted under Mi l. R. Evid. 413 to prove other charged misconduct “violated [an a] ppellant’s presumptio n of innocence and right to have all fi ndings made clearly beyond a re asonable doubt, resulting in constitutional error.” Hills , 75 MJ at 356. Fo r constitutional error, this court tests for prejudice under the st andard of harmless beyo nd a reasonable doubt. United States v. Wolford , 62 M.J. 418, 420 (C.A .A.F. 2006). The i nquiry for de termining whether error is harmless beyond a reasona ble doubt is whether, beyond a reasonable doubt, the error did not cont ribute to the defendant’s c onviction or sentence. United States v. Kreutzer , 61 M.J. 293, 298 (C.A .A.F. 2005). An er ror is not harmless beyond a reasonable doubt when there is a reas onable possibility the error complained of might have cont ributed to the conviction. United States v. Moran , 65REYNOLDS—ARMY 20140856

4 M.J. 178, 187 (C .A.A.F. 2007); United States v. Chandler , 74 M.J. 674, 685 (Army Ct. Crim. App. 2015).

The military judge’s ruling on the government’s Mi l. R. Evid. 413 motion was, in hindsight, error. Because appellant objected to the gove rnment’s motion, the error was preserved and the burden is on the governme nt to show the error was harmless beyond a reas onable doubt.

The government meets its burden for th e sexual abuse of a child charge. Government counsel di d not use propensity evidence to prove the charge involving AL. The motion to admit evidence under Mil. R. Evid. 413 onl y requested use of evidence of the sexual abuse of AL to show appellant’s prop ensity to commit the offenses against SFC YM. 2The government ne ver asked or argued for evidence of the abusive sexual contact against SFC YM to be considered for any purposes in the deliberations on AL. The test imony of AL was credible. AL clearly remembered the events, articulating details of what she was doing, how she was lying down, what she felt and saw. AL’s account withstoo d all cross examina tion and there was no discernible motive to fabricate.

The defense case regarding AL was weak. Appellant chose to testify and was not compelling. He acknow ledged there was no “bad blood” between him and AL, SFC YM, or any of th eir family. The defense case did not impugn AL ’s credibility in any way.

The government did use prop ensity evidence to prove the charge involving SFC YM. They requested this prior to trial and did not change this strategy after the trial shifted to military judg e alone. In closin g argument and again in rebuttal, the government relied on the evidence relating to AL to argue a propensi ty for appellant to commit the offenses agai nst SFC YM. Although SF C YM’s testimony was also credible, her statements regarding how sh e was unsure if she was dreaming cast some doubt that, but for the propensity evidence, the military judge may not have found appellant guilty ofthis charge.

CONCLUSION

Upon consideration ofthe entire record

, the findings ofguilty of the Specification of Charge I an d Charge I are set aside and conditionally DISMISSED for judicial economy pending further appeal, if any, to our superior court. See United States v. Britton , 47 M.J. 195, 203 (C.A.A.F. 1997 ) (Effron, J. , concurring); United States v. Hines , 75 M.J. 734, 73 8 n.4 (Army. Ct. Crim. App. 2016); United States v. Woods , 21 M.J. 856, 876 (A.C.M.R. 1986). Our di smissal is c onditioned on

2 Although the re quest was to only use the evidence to prove the charge against SFC YM, the military judge’s ruling stated he would instruct the members that they could use the evidence in their deliberations for either charge.REYNOLDS—ARMY 20140856

5 the Specification of Charge II and Charge II surv iving the “final judgment” as to the legality of the proceedings. See UCMJ art. 71(c)(1) (defining final judgment as to the legality of the proceeding s). The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basi s of the errors noted, the amended findings, the entire record, and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), and United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2 013), we AFFIRM only so much of the sentence as provides for a bad-conduct disc harge, confinement for ten months, forfeiture of all pay and allowances, and reduc tion to the grade of E-1. All rights, pr ivileges, and property of which appellant has been depr ived by virtue of that portion of the findings and sentence set aside by this decision, are ordered to be restored. See UCMJ arts. 58a(b), 58b(c), 75(a).

FOR THE COURT:

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