## UNITED STATES ARMY COUR T 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 Thea ter Sustainment Command
David H. Roberts on, Military Judge
Colonel Paula I. Schasber ger, Staff Judge Advocate

For Appellant: Major Katherine L. DePa ul, 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

---------------------------------- 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, Unif orm Code of Military Justic e, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. 1 The panel sentenced appellant to a dishonorable discharge and confinement for eight years. The conven ing authority only ap proved seven years confinement and the remainder of the adjudged sentence. 2

1 The panel acquitted appellant of all other charge d offenses. The charges included three specifications of rape, one specificati on of sexual assault, two specifications of forcible sodomy, and two specifications of assault consummated by battery in violation of Articles 120, 125, and 1 28, UCMJ.

2 In response to a legal er ror raised in appellant’s Ru le for Courts-Martial 1105 clemency submissions allegi ng improper sentencing argum ent by the trial counsel,

(continued . . .)MORALES—ARMY 20160070

2 We review this case pursuant to Artic le 66, UCMJ. Appe llant raised nine assignments of error, one of which warrants relief and re nders the remaining errors moot. Specifically, we revi ewed whether the military j udge’s erroneou s propensity instructions provided to the panel under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413 were harmle ss beyond a reasonable doubt. In its reply brief, the government states, “Given the . . . ex tensive and prejud icial use of the constitutionally impermissible Mil. R. Evid . 413 evidence at tria l, and in light of recent [Court of Appeals for the Armed Fo rces] 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 decret al paragraph.

BACKGROUND

Appellant was charged with sexual offenses against three female Soldiers. Before the panel deliberated on findings, the military j udge instructed the members they could consider evidence of the char ged sexual assault o ffenses “for their bearing on any matter to which it is rele vant in relation to other sexual assault charges[,]” and they ma y also consider such evidence “for its tenden cy, if any, to show [appellant’s] propensity or predisposition to engage in other sexual assaults.” 3 The military judge did not, however, provide a spillove r instruction to the panel. 4 In its findings argument, the government revisited a theme in troduced during its opening statement, encouraging the members to consider the similarities between the
sexual assaults and th e alleged victims by as serting, “[a] cord of three strands is not easily broken.”

LAW AND DISCUSSION

In general, “[t]he question of whether the members we re 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 eval uated “‘in the cont ext of the overall message conveyed’

(. . . continued) the staff judge advocate re commended and the convening authority approved seven years confinement. Addition ally, prior to action, the convening authority deferred automatic forfeitures of all pay and allowa nces and reduction in grade, effective 29 January 2016 until 23 June 2 016, and waived automatic fo rfeitures 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 Se rvices: Military Judges’ Benchbook [hereinafter Benchbook] , para. 7-13-1, note 4 .2 (10 Sept. 2014).

4 See Benchbook, para. 7-17. Appellant ra ises the military judge’ s failure to give the members a spillove r 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 [h ereinafter R.C.M.] 920(f)).

“Under a plain error analysis, [appellan t] ‘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 erro r is found [when] ther e are constitutional di mensions at play, [appellant’s] claims must be tested for prejudice un der the standard of harmless beyond a reason able 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. Ev id. 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 c onduct in the same case is error, regardless of the foru m, the number of victims, or
whether the events are connec ted. Whether co nsidered 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 ch arged offense.

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

Here, the prejudicial effect of the prop ensity instruction was exacerbated by the failure to provid e 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,” an d that “[p]roof of
one offense carries with it no inference that the accu sed is guilty of any other offense.” Dep’t of Army, Pam. 27-9, Le gal Services: Militar y 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 st andard of proof. Hills , 75 M.J. at 357. Wi thout the spillover instruction, the potential confusion caused by the propensity instruction is substantially increased.

Given the message conveyed by the prop ensity 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 areMORALES—ARMY 20160070

4 not convinced beyond a reasonable doub t the erroneous inst ructions did not prejudice appellant. Accordingly, the fi ndings and se ntence cannot stand.

CONCLUSION

On consideration of the entire record, the findings of guilty and the sentence
are set aside. A re hearing may be orde red 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: