## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s TERRANCE L. GADDY United States Army, Appellant

ARMY 20150227

Headquarters, 21st Thea ter Sustainment Command David H. Robertson, Military Judge

Colonel Jonathan A. Kent , Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles Loza no, JA; Major Andres Vazquez, Jr., JA (on brief).

For Appellee: Colonel Mark H. Sydenh am, JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).

20 March 2017

--------------------------------- SUMMARY DISPOSITION

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

Per Curiam:

Accused of multiple instan ces of sexual crimes agains t four different victims, appellant entered mixed pleas. 1 He pleaded guilty to seve n specifications of sexual assault and one specification of indecent exposure. C ontrary 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 Ju stice, 10 U.S.C. § 920 (2012) [hereina fter UCMJ]. The indecent exposure specification alleged a violation of Artic le 120c, UCMJ.

2 The military judge senten ced appellant to a dishonorable discharge and confinement for fourteen years. Pursuant to a pretrial agre ement, the convening authority approved the puni tive discharge and eight ye ars 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 th at the military judg e erred when he excluded, pursuant to Military Rule of Evidence [h ereinafter Mil. R. Evid.] 412, evidence that appellant and the victim of the rape offense were dancing provocatively immediately prior to the assa ult. We agree with appellant that the military judge erre d, but find the error to be harmless.

LAW AND DISCUSSION

A. United States v. Hills and Gu ilty Pleas to Ch arged Offenses

We first address an issue ra ised personally by appellant. 3 See United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982)

. Appellant, asserts th at the military judge erred when he considered pr opensity evidence stemming from charged offenses in determining whet her 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 miscondu ct. The motion stated:

Although MRE 413 is most commonly appl ied to the introduction of uncharged se xual misconduct to show a propensity for charged sexual misconduct, th e Rule also applies where all alleged se xual miscondu ct has been charged. ‘The Government ma y not introduce similarities between a charged offens e and prior conduct, whether charged or uncharged , to show modus operandi or propensity without using a sp ecific exception within our

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

States v. Burton , 67 M.J. 150 1 52 (C.A.A.F. 2008) (emphasis added).

Relying on our superior court’s decision in Burton , the military j udge granted the government’s motion. At trial, during the closing argument, the trial counsel specifically argued appellant’s predis position to sexually assault women:

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

assaulted these three other So ldiers and use that when deciding whether or not he’s ra ped [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 we ll as its tend ency to show his common plan: new So ldiers to the unit, people he’s just met, and design; that he intended to rape Private [BN] and,

as evidence of hi s motive to comm it these offenses.

We find no error in either the trial coun sel’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 acc used has pleaded gu ilty or been found guilty” and that

such evidence “can be admitt ed and considered under Mi l. R. Evid. 413 to show propensity to commit the sexual assaults to which he pleaded no t 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 file d a motion to admit eviden ce pursuant to Mil. R. Evid. 412. Specifically, appe llant wanted to introduce ev idence that, in the moments immediately preceding the alleged assault , appellant and Private BN had engaged in highly sexualized danc ing that “simulated sex.” At the closed Mil. R. Evid. 412 hearing, the defense called tw o witnesses to testify a bout what they had seen. 4 The military judge ru led 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 c onsenting to sexual activity.” The milita ry judge did not otherw ise explain his ruling.

On appeal, appellant asserts that eviden ce 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 mist ake 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 beli ef was reasonable. An important purpose of the requirement for Mil. R. Ev id. 412 motions practice, to include closed hearings, is

4 Not surprisingly, the government not on ly disagreed that the evidence was admissible, but also disagreed that the sexualized dancing ha d taken place. At trial, for example, the government elicited that a ppellant had made a be t with one of the

witnesses that he could have sex with the vi ctim 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 pa rty the oppo rtunity to fully explain their theory of admissibility.

Nonetheless, we find th e military judge’s decision to exclude evidence of sexualized dancing to have been error becaus e 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 “o ther 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 ev idence that the victim and appellant were “grinding” on each other in the mo ments 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 ap pellant had engaged in consensual sexual intercourse without being able to explain wh at, 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 no t exclude evid ence of the offense itself, to include the appellant’s version of what transpir ed during the

transaction.

There are, of course, some caveats to our re asoning. 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. Seco nd, 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 scop e of the testimony to preven t an overly prejudicial presentation.

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

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

mistake of fact as to cons ent) stemming from dancing is weak. That someone may have agreed to dance in a proactive manner is not highly prob ative as to whether they agreed to sexual intercourse or whet her an accused actual ly and reasonably

believed he had cons ent. Second, we find the eviden ce of the assault given by the victim to be compelling, es pecially combined with he r immediate re ports of the assault. Finally, we consider appellant’s separate plea to se ven specifications of sexually assaulting th ree other soldiers. A ppellant agreed as part of his pretrial agreement that the stipulation of fact he signed would be admissible during theGADDY—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 factua lly similar in several aspects. When we consider all the evidence, to include the in ference that appellan t 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 a nd sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: