UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class TERRANCE L. GADDY 

United States Army, Appellant 

ARMY 20150227 

Headquarters, 21st Theater Sustainment Command 

David H. Robertson, Military Judge 

Colonel Jonathan A. Kent, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles Lozano, JA; Major Andres Vazquez, Jr., 

JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Cormac M. Smith, JA; 

Captain Cassandra M. Resposo, JA (on brief). 

20 March 2017 

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

SUMMARY DISPOSITION 

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

Per Curiam: 

 Accused of multiple instances of sexual crimes against four different victims, 

appellant entered mixed pleas.1

 He pleaded guilty to seven specifications of sexual 

assault and one specification of indecent exposure. Contrary to his pleas, the 

military judge convicted appellant of rape.2

 On appeal we address two issues. 

 

1

 The sexual assault and rape specifications each alleged a violation of Article 120, 

Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The 

indecent exposure specification alleged a violation of Article 120c, UCMJ. 

2

 The military judge sentenced appellant to a dishonorable discharge and 

confinement for fourteen years. Pursuant to a pretrial agreement, the convening 

authority approved the punitive discharge and eight years of confinement. 
GADDY—ARMY 20150227 

2 

First, we decide whether our superior court’s decision in United States v. 

Hills, 74 M.J. 350 (C.A.A.F. 2016), prohibits a fact-finder from considering 

propensity evidence stemming from charged offenses to which the accused pleaded 

guilty. We determine that Hills does not prohibit this use of propensity evidence. 

Second, we address appellant’s claim that the military judge erred when he 

excluded, pursuant to Military Rule of Evidence [hereinafter Mil. R. Evid.] 412, 

evidence that appellant and the victim of the rape offense were dancing 

provocatively immediately prior to the assault. We agree with appellant that the 

military judge erred, but find the error to be harmless. 

 

LAW AND DISCUSSION 

A. United States v. Hills and Guilty Pleas to Charged Offenses 

We first address an issue raised personally by appellant.3

 See United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellant, asserts that the military judge 

erred when he considered propensity evidence stemming from charged offenses in 

determining whether he was guilty of rape. 

Prior to trial, the government filed a motion under Mil. R. Evid. 413 to admit 

appellant’s propensity to commit sexual misconduct. The motion stated: 

Although MRE 413 is most commonly applied to the 

introduction of uncharged sexual misconduct to show a 

propensity for charged sexual misconduct, the Rule also 

applies where all alleged sexual misconduct has been 

charged. ‘The Government may not introduce similarities 

between a charged offense and prior conduct, whether 

charged or uncharged, to show modus operandi or 

propensity without using a specific exception within our 

rules of evidence, such as MRE 404 or 413.’ United 

States v. Burton, 67 M.J. 150 152 (C.A.A.F. 2008) 

(emphasis added). 

Relying on our superior court’s decision in Burton, the military judge granted the 

government’s motion. At trial, during the closing argument, the trial counsel 

specifically argued appellant’s predisposition to sexually assault women: 

The law says, you can look at the fact that he sexually 

assaulted these three other Soldiers and use that when 

deciding whether or not he’s raped [BN]. You can consider 

 

3

 The other matters personally raised by appellant merit neither discussion nor relief. 
GADDY—ARMY 20150227 

3 

the crime against [R], the crimes against [G] and the crime 

against [K] as propensity evidence. In fact, as this court is 

well aware, you may consider the evidence of the accused’s 

other sexual offenses for their tendency to show 

propensity, predisposition, as well as its tendency to show 

his common plan: new Soldiers to the unit, people he’s just 

met, and design; that he intended to rape Private [BN] and, 

as evidence of his motive to commit these offenses. 

We find no error in either the trial counsel’s argument or the military judge’s 

determination that propensity evidence was admissible in this case. In Hills, the 

Court of Appeals for the Armed Forced (CAAF) specifically exempted from their 

decision cases where “an accused has pleaded guilty or been found guilty” and that 

such evidence “can be admitted and considered under Mil. R. Evid. 413 to show 

propensity to commit the sexual assaults to which he pleaded not guilty. . . .” 75 

M.J. at 354 (citing United States v. Wright, 53 M.J. 476, 479 (C.A.A.F. 2000)). 

Thus, we find that Hills did not prohibit the propensity evidence admitted in this 

case. 

B. The Military Rule of Evidence 412 Ruling 

Before trial, appellant filed a motion to admit evidence pursuant to Mil. R. 

Evid. 412. Specifically, appellant wanted to introduce evidence that, in the moments 

immediately preceding the alleged assault, appellant and Private BN had engaged in 

highly sexualized dancing that “simulated sex.” At the closed Mil. R. Evid. 412 

hearing, the defense called two witnesses to testify about what they had seen.4

 

The military judge ruled that the “defense is prohibited from soliciting testimony 

about [PFC BN] dancing with the accused in order to show her consent to sexual 

activity or that the accused had a mistaken belief that she was consenting to sexual 

activity.” The military judge did not otherwise explain his ruling. 

On appeal, appellant asserts that evidence of the highly sexualized dancing 

was constitutionally necessary to show his mistake of fact as to consent. This 

argument was not well developed at trial. To place a mistake of fact as to consent 

defense at issue, there must be some evidence appellant had a subjective belief the 

victim was consenting and such a belief was reasonable. An important purpose of 

the requirement for Mil. R. Evid. 412 motions practice, to include closed hearings, is 

 

4

 Not surprisingly, the government not only disagreed that the evidence was 

admissible, but also disagreed that the sexualized dancing had taken place. At trial, 

for example, the government elicited that appellant had made a bet with one of the 

witnesses that he could have sex with the victim whom he had just met. Our job on 

appeal does not require us to resolve this factual dispute for purposes of evaluating 

the military judge’s Mil. R. Evid. 412 ruling. 
GADDY—ARMY 20150227 

4 

to allow the offering party the opportunity to fully explain their theory of 

admissibility. 

Nonetheless, we find the military judge’s decision to exclude evidence of 

sexualized dancing to have been error because we find this evidence to fall outside 

of Mil. R. Evid. 412. Mil. R. Evid. 412(a)(1) prohibits evidence that “any alleged 

victim engaged in other sexual behavior.” When conduct is inexorably intertwined 

with the alleged offense itself, it is not “other sexual behavior,” but rather becomes 

part of the res gestae of the offense. That is, the testimony “was admissible as part 

of the same transaction as the assault.” United States v. Peel, 29 M.J. 235, 239 

(CAAF 1989). 

Here the defense wanted to introduce evidence that the victim and appellant 

were “grinding” on each other in the moments before (in the defense theory) they 

engaged in consensual sexual intercourse. After the military judge’s ruling, the 

defense had to explain the victim and appellant had engaged in consensual sexual 

intercourse without being able to explain what, in the defense theory, had led up to 

this encounter. In other words, deprived of this evidence, the defense case was 

forced to start mid-sentence. The defense was unable to position their evidence to 

comport with normal human experience. Accordingly, we do not see evidence of 

sexual behavior that is part of the res gestae of the offense to be “other sexual 

behavior” under Mil. R. Evid. 412. This rule does not exclude evidence of the 

offense itself, to include the appellant’s version of what transpired during the 

transaction. 

There are, of course, some caveats to our reasoning. First, our interpretation 

of Mil. R. Evid. 412(a)(1) is limited to interpreting what is meant by “other sexual 

behavior.” Rule 412(a)(2) continues to prohibit evidence of a victim’s sexual 

predisposition. Second, to say that evidence falls outside of Mil. R. Evid. 412 is not 

to say it is per se admissible. Other rules, to include Mil. R. Evid. 403, still operate 

to ensure overly prejudicial evidence is excluded from a court-martial. A military 

judge could tailor the scope of the testimony to prevent an overly prejudicial 

presentation. 

Having found error, we next turn to whether appellant was prejudiced by the 

error. We find the error to have been harmless. First, any evidence of consent (or 

mistake of fact as to consent) stemming from dancing is weak. That someone may 

have agreed to dance in a proactive manner is not highly probative as to whether 

they agreed to sexual intercourse or whether an accused actually and reasonably 

believed he had consent. Second, we find the evidence of the assault given by the 

victim to be compelling, especially combined with her immediate reports of the 

assault. Finally, we consider appellant’s separate plea to seven specifications of 

sexually assaulting three other soldiers. Appellant agreed as part of his pretrial 

agreement that the stipulation of fact he signed would be admissible during the 
GADDY—ARMY 20150227 

5 

merits portion of his trial. The stipulation also stated that the facts contained therein 

were admissible “at trial” even if “otherwise inadmissible.” Appellant’s sexual 

assault of the three other soldiers was factually similar in several aspects. When we 

consider all the evidence, to include the inference that appellant is predisposed to 

commit this offense, we find any evidentiary error to be harmless beyond a 

reasonable doubt. See United States v. Roberts, 69 M.J. 23, 30 (C.A.A.F. 2010). 

CONCLUSION 

The findings of guilty and sentence are AFFIRMED. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: