UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

BURTON, CELTNIEKS, and HAGLER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist RICARDO A. MORALES 

United States Army, Appellant 

ARMY 20160070 

Headquarters, 21st Theater Sustainment Command 

David H. Robertson, Military Judge 

Colonel Paula I. Schasberger, Staff Judge Advocate 

For Appellant: Major Katherine L. DePaul, JA; Mr. Zachary Spilman, Esquire (on 

brief and reply brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Michael E. Korte, JA; Captain 

Austin L. Fenwick, JA (on brief). 

31 October 2017 

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SUMMARY DISPOSITION 

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Per Curiam: 

A panel of officers and enlisted members sitting as a general court-martial 

convicted appellant, contrary to his pleas, of one specification of sexual assault in 

violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) 

[hereinafter UCMJ].1

 The panel sentenced appellant to a dishonorable discharge and 

confinement for eight years. The convening authority only approved seven years 

confinement and the remainder of the adjudged sentence.2

                                                            

1

 The panel acquitted appellant of all other charged offenses. The charges included 

three specifications of rape, one specification of sexual assault, two specifications of 

forcible sodomy, and two specifications of assault consummated by battery in 

violation of Articles 120, 125, and 128, UCMJ. 

2

 In response to a legal error raised in appellant’s Rule for Courts-Martial 1105 

clemency submissions alleging improper sentencing argument by the trial counsel, 

(continued . . .) 
MORALES—ARMY 20160070 

2 

We review this case pursuant to Article 66, UCMJ. Appellant raised nine 

assignments of error, one of which warrants relief and renders the remaining errors 

moot. Specifically, we reviewed whether the military judge’s erroneous propensity 

instructions provided to the panel under Military Rule of Evidence [hereinafter Mil. 

R. Evid.] 413 were harmless beyond a reasonable doubt. In its reply brief, the 

government states, “Given the . . . extensive and prejudicial use of the 

constitutionally impermissible Mil. R. Evid. 413 evidence at trial, and in light of 

recent [Court of Appeals for the Armed Forces] opinions, the government concedes 

that appellant’s conviction should be set aside.” After due consideration, we agree 

with both parties and provide relief in our decretal paragraph. 

BACKGROUND 

Appellant was charged with sexual offenses against three female Soldiers. 

Before the panel deliberated on findings, the military judge instructed the members 

they could consider evidence of the charged sexual assault offenses “for their 

bearing on any matter to which it is relevant in relation to other sexual assault 

charges[,]” and they may also consider such evidence “for its tendency, if any, to 

show [appellant’s] propensity or predisposition to engage in other sexual assaults.”3

 

The military judge did not, however, provide a spillover instruction to the panel.4 In 

its findings argument, the government revisited a theme introduced during its 

opening statement, encouraging the members to consider the similarities between the 

sexual assaults and the alleged victims by asserting, “[a] cord of three strands is not 

easily broken.” 

LAW AND DISCUSSION 

In general, “[t]he question of whether the members were properly instructed is 

a question of law and thus review is de novo.” United States v. Payne, 73 M.J. 19, 

22 (C.A.A.F. 2014) (citing United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 

2010)). This question is evaluated “‘in the context of the overall message conveyed’ 

                                                            

(. . . continued) 

the staff judge advocate recommended and the convening authority approved seven 

years confinement. Additionally, prior to action, the convening authority deferred 

automatic forfeitures of all pay and allowances and reduction in grade, effective 

29 January 2016 until 23 June 2016, and waived automatic forfeitures of all pay and 

allowances effective 23 June 2016 for a period of six months with direction that the 

funds be paid to appellant’s spouse. 

3 See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook 

[hereinafter Benchbook], para. 7-13-1, note 4.2 (10 Sept. 2014). 

4 See Benchbook, para. 7-17. Appellant raises the military judge’s failure to give the 

members a spillover instruction as a separate assignment of error. 
MORALES—ARMY 20160070 

3 

to the members.” United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting 

United States v. Prather, 69 M.J. 338, 344 (C.A.A.F. 2011)). However, “[w]here 

there is no objection to an instruction at trial, we review for plain error.” Payne, 73 

M.J. at 22-23 (citing United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013), 

and Rule for Courts-Martial [hereinafter R.C.M.] 920(f)). 

“Under a plain error analysis, [appellant] ‘has the burden of demonstrating 

that: (1) there was error; (2) the error was plain or obvious; and (3) the error 

materially prejudiced a substantial right of the [appellant].’” Tunstall, 72 M.J. 

at 193-94 (quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)). “‘If 

instructional error is found [when] there are constitutional dimensions at play, 

[appellant’s] claims must be tested for prejudice under the standard of harmless 

beyond a reasonable doubt.’” Hills, 75 M.J. at 357 (quoting United States v. 

Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005)). 

Regarding the use of evidence under Mil. R. Evid. 413 and its corresponding 

propensity instruction, our superior court provided the following guidance: 

We therefore clarify that under Hills, the use of evidence 

of charged conduct as [Mil. R. Evid.] 413 propensity 

evidence for other charged conduct in the same case is 

error, regardless of the forum, the number of victims, or 

whether the events are connected. 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. 

United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017). 

Here, the prejudicial effect of the propensity instruction was exacerbated by 

the failure to provide the spillover instruction. The purpose of the spillover 

instruction is to make clear that “[t]he burden is on the prosecution to prove each 

and every element of each offense beyond a reasonable doubt,” and that “[p]roof of 

one offense carries with it no inference that the accused is guilty of any other 

offense.” Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, 

para. 7-17 (10 Sept. 2014). Even with the spillover instruction, the propensity 

instruction has the potential to confuse panel members into applying an 

impermissibly low standard of proof. Hills, 75 M.J. at 357. Without the spillover 

instruction, the potential confusion caused by the propensity instruction is 

substantially increased. 

Given the message conveyed by the propensity instruction, the lack of a 

spillover instruction, the central appeal to propensity in the government’s closing 

argument, and that the panel found appellant not guilty of all but one offense, we are 
MORALES—ARMY 20160070 

4 

not convinced beyond a reasonable doubt the erroneous instructions did not 

prejudice appellant. Accordingly, the findings and sentence cannot stand. 

CONCLUSION 

On consideration of the entire record, the findings of guilty and the sentence 

are set aside. A rehearing may be ordered by the same or different convening 

authority. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: