## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________ UNITED STATES Appellee

v. Christopher B. H UKILL , Specialist United States Army , A ppellant

No. 17

- 0003 Crim. App. No. 20140939 Argued February 28, 2017

— Decided May 2, 2017
Military Judge: Steven E. Walburn
For Appellant: Captain Katherine L. De P aul (argued), Lieutenant Colonel Melissa R. Covolesky and Captain Ryan T. Yoder (on brief) ; Lieutenant Colonel Christop h er D. Ca rrier and Major Andres Vazquez Jr.
For Appellee: Major Anne C. Hsieh (argued) ; Colonel Mark H. Sydenham and Lieutenant Colonel A. G. Courie III (on brief) ; Major Michael E. Korte

. Chief Judge ERDMANN delivered the opinion of the Court, in which Judges STUCKY, RYAN, OHLSON, and SPARKS

, joined.

_______________
Chief Judge ERDMANN delivered the opinion of the

c ourt

. Contrary to his pleas, a military judge sitting as a ge neral court

- martial convicted Specialist Christopher B. Hukill of rape and abusive sexual contact, in violation of Ar ticle 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012)

. Hukill was sentenced to a dishonorable discharge, seven years of confinement, forfei ture of all pay and allo wances , and a reduction to E

- 1. The c onvening authority a pproved the sentence as ad judged. T he United States Army Court of Criminal Appeals denied Hukill ’s initial appeal which was based on a claim of ineffective assistance of cou nsel. United States v. Hukill

, No. ARMY 20140939, 2016 CCA LEXI S 492, at * 8

- 9
, 2016 WL 4255126

, at *3 (A. C t

. C rim

. A pp . Aug. 9, 2016) (unpublished )

. The lower court grantedUnited States v. Hukill No. 17

- 0003/AR Opinion of the Court

2 reconsideration to entertain Hukill’s claim brought under United States v. Hills , 75 M.J. 350 (C.A.A.F. 2016)

, and

a gain denied relief and affirmed the find ings and the se ntence. United States v. Hukill

, No. ARMY 20140939, 2016 CCA LEXIS 505
, at * 5 , 2016 WL 4439888, at *2 (A. Ct. Crim. App . Aug. 16 , 2016) (unpublished )

. In Hills

, a members’ trial, we held that under Military Rule s of Evidence (M.R.E.) 413, the use of charged mis co nduct to establish an accused’s propensity to commit other charged mis conduct in the same case constituted error. 75 M.J. at 352

. We granted review in this case to determine whether the rationale of Hills is applicabl e to a military judge

- alone trial and

, if so, whether Hukill was preju diced by the admission of this propensity evidence. 1 We hold the rationale of Hills is equally applicable to both member s and military judge

- alone trials and that

, under the circumstan ces of this case, Hukill was prejudiced by the admission of the propensity evidence. We therefo re reverse the decision of the Army Court of Criminal Appeals

. B ACKGROUND
This case arises from Hukill’s sexual assaults of AB and

1 We granted review of the following issues:

I. Whether, in a court

- martial trie d by military judge alone, the m ili tary j udge abused his discretion by granting the Government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the Court of Military Commi ssion Review

, were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Cour t of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.
Issue II was not argued as it was held as a trailer issue to United States v. Ortiz , 76 M.J. __ (C.A.A.F. 2017). Based upon the dec ision in Ortiz , we hold that the military judges in question were authorized to sit on the Army Court of Criminal Appeals, and there was no Appointments Clause violation.United States v. Hukill No. 17

- 0003/AR Opinion of the Court

3 HG, both friends of Hukill’s t hen

- fiancé e

. Specification 1 (rape), alleged that Hukill digitally penetrated the vagina of AB against her will in the kitchen of his ho me

. A week or two after th at incident

, AB told Hukill’s fiancé e about the alleged assault

. Hukill’s fiancé e testified that when she co nfronted him about the assault, he “pretty mu ch told [them] that he did it.” Specification 2 (abusive sexual contact) arose from Hukill’s alleged assault of HG about two weeks after the incident involving AB

. Hukill was charged with touchin g the genitalia of HG against her will after a night of drinking

. Hukill testified at his court

- martial tha t neither of the a ssaults occurred.

I n a pretrial motion, the government sought to introduce evidence of each sexual misconduct charge under M.R.E. 413
to demonstrate Hukill’s propensity to commit the o ther se xual misconduct. Trial defense counsel opposed th e motion and objected to the u se of the M.R.E. 413 and spillover i nstructions contained in the Army Military Judges ’ Benchbook

. Over defense obje ction, the military judge granted the government’s motion, allowing the government

“ to use the charged sexual offenses as propensity evidence for each other under M.R.E. 413.” In conducting his M.R.E. 403 analysis, the military judge found the “probative weigh t of the [propensity] evidence is high, demonstrating the a ccused’s propensity to sexually assault two females that he knew prior to the alleged sexual assaults

. ” Additionally, the military judge stated that : [t] he Court will give an appropriately tai lored limiting instruction to the members that they may properly consider this evidence under MRE 413 for its bearing on the accused’s pr opensity to commit the charged sexual assaults. The instruction will highlight that the intr oduction of such evidence d oes not relieve the government of its burden of proving every el ement of every offense charged, and that the fact

- finder may not convict the accused of the charged offenses on the basis of the evidence admitted under MRE 413 alone. This instru ction will be in addition to the standard “Spill over Instruction.” The referenced instruction was not given as Hukill was ultimately tried by military judge alone , but it does reflect the military judge’s understanding of the law at th e time

.United States v. Hukill No. 17

- 0003/AR Opinion of the Court

4 During the court

- martial, trial counsel argued that each of the sexual assault incidents established Hukill’s propensity to commit the other assaul t

. During his opening statement trial counsel argued

, “ [W]ithin a month, there are t wo all egations of sexual assault by two unrelated victims . . . t wo allegations of sexual assault; two distinct reports but with strikingly similar details; details that reveal a similar scheme, a similar method of attack .” D uring his closing a rgument, trial counsel again argued, “ Your Honor, the a ccused has committed two incidents of sexual assault, two very similar incidents. They are strong in their own right, but they ’ re even stronger together when you consider M.R.E. 413. ” On appeal, t he Army Court of Criminal Appeals reco gnized that the military j udge had initially “ruled that the government could use propensity evidence in a manner found to be in error in Hills

. ” Hukill , 2016 CCA LEXIS 505

, at *4

- 5, 2016 WL 4439888

, at *2. However, the lower court went on to hold that the erroneous ruling “beca m e moot by virtue of appella nt ’s election for a bench trial.” Id

. , 2016 WL 4439888, at *2. Relying on the well

- established rule that

“ ‘ [m]ilitary ju dges are presumed to know the law and to fo llow it absent clear evidence to the contrary ’ ” the lower court

wa s “ satisfied that [the military judge’s] view on the admi ssibility of propensity evidence under M il

. R. Evid. 413 was harmless beyond a reasonable doubt.” Id. at *5, 2016 WL 4439888, at *2 (quoting United States v. Erickson , 65 M.J. 221, 225 (C.A.A.F. 2007) )

. Accordingly, t he lower court held
t hat this case was “ far different than Hills as appellant elected to be tried by a military judge sit ting alone, ” and a ffirmed the findings and sentence. 2 Id. at *4

- 5, 2016 WL 4439888, at *2.

D ISCUSSION
A militar y judge’s decision to admit evidence is revie wed for an abuse of discretion. United States v. Solomon , 72 M.J. 176, 179 (C.A.A.F. 2013). “ The meaning and scope of M.R.E. 413 is a question o f law that is reviewed de novo. ” Hills , 75 M.J. at 354 (citation omitted). Additionally, a n error where

2 While it is difficult to determine whether the Army Cour t of Criminal Appeals held that the use of charged conduct under M.R.E. 413 in a military judge

- alone trial is not error, or whether it was error but harmless, under either theory the conviction would have been affirmed.United States v. Hukill No. 17

- 0003/AR Opinion of the Court

5 “ ‘ constitutional dimensions are at play ,’ ” id. at 357 (quoting United States v. Wolford, 62 M.J. 418 , 420 (C.A.A.F. 2006) )

, is not harmless beyond a reasonable doubt when “ ‘ there is a reasonable possibility that t he [error] complained of might have contributed to the convic tion.’ ” Id. at 357

- 58 (alter ation in original) ( quoting United States v. Moran , 65 M.J. 178, 187 (C.A.A.F. 2007) )

. Hukill argue s that the Hills decision is as applicable to military judge

- alone trials as it is to members ’ trials. He contend s that even if the military judge knew and applied the law, the Military Judges ’ Benchbook instructions avail able at the time incorrectly stated that charged mis conduct could be used as propensity e vi dence of other charged mi sconduct

. Therefore , Hukill concludes that the military judge erred and the error was not harml ess beyond a reasonable doubt. The government appears to argue that Hills was wrongly decided, but also asks us to clarify that th e d ecision is not a

per se prohibition on the use of charged mis conduct as M.R.E. 413 evidence

. The government argues that using charged mis conduct as M.R.E. 413 evidence of other charged mis conduct does not erode the presumption of innocence

, as the safeguar ds built into M.R.E. 413 ensure each element is proven beyond a reason able doubt. The government co ncludes by asserting that the instructional errors in Hills are not implicated in a military judge

- alone trial and there is no evidence the military judge did not know or follow the law in this case

. In analyzing the use of charged conduct as propensity e vidence under M.R.E. 413, we held in Hills that “ [c] harged misconduct is already admissible at trial under M.R.E. 401 and 402, and it is not subject to exc lusion under M.R.E. 404(b). Thus, as a matter of logic, it does not fall under M.R.E. 413, which serves as a n exception to M.R.E. 404(b).” Hills , 75 M.J. at 35 5

. We also reasoned that the structure of the rule, including the notice provision under M.R.E. 4 13(b),

“ logically implies that only evidence of uncharged offenses (of which the accused would not otherwise be aware absent disclosure) are contemplated by the rule.” Id. Finally

, we noted that the legislative history of M

. R

. E

. 413’s federal counterpart
, Fed. R. Evid. 413, suggests that the rule was not designed to apply to charged conduct. Id. None of these grounds are dependent on whether the trial was a members ’ trial or military judge

- alone.United States v. Hukill No. 17

- 0003/AR Opinion of the Court

6 We therefore clarify that under Hills

, the use of evidence of charged conduct as M.R.E. 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 prope nsity evidence in support of a companion charged offense. Having found error we now turn to a prejudice analysis. In Hills we found constitutional implications arose from co nfusing instructions given to members as to the two different standards of proof that they were required to apply to the same evidence. 75 M.J. at 357

- 58. We also held that “the e rror

. . . violated Appell ant's presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, resulting in constitutional error.” Id. at 356. The same constitutional concerns exist if, in a military judge

alone trial, a military judge uses charged conduct as prope nsity evidence under M.R.E. 413

. A s there are constitutional dimensions at play, the erroneous admittance of evidence must be tested for prejudice under the harmless beyond a reasonable doubt standard

. See Chapman v. California , 386 U.S. 18 , 22

- 24 (1967)

. T he government must prove there was no reasonable possibility that the error contributed to Hukill’s verdict. See id. ; United States v. Kreutzer

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

. The government argues that the error was harmless b eyond a reasonable doubt due to the presumption that mil itary judges are presumed to know the law and follow it a bsent c l ear evidence to the contrary. See United States v. Mason , 45 M.J. 483, 484 (C.A.A.F. 1997 ). However, in this

case , this presumption is not helpful to the government. This case was tried before our court issued Hills , and at that time

, the common understanding of the law was that charged mis conduct could be used as propensity evidence under M

. R

. E

. 413.

This is clearly evidenced by the Army Military Judges ’ Benchbook discussion of M

. R

. E

. 413: “ In order to admit ev idence of other sexual offenses or acts of child molestation (whether charged or uncharged), the military judge must make” the threshold findings required by M.R.E. 413. See Dep ’ t of the Army, Pam. 27

- 9, Legal Services, Military Jud ges ’ Benchbook, ch.7, para. 7

- 13

- 1 n. 3.2 (Sep t

. 10, 2014) (e mphasis added). The Benchbook further directed militaryUnited States v. Hukill No. 17

- 0003/AR Opinion of the Court

7 judges to give a specific instruction on the government’s burden “[f]or charged sexual offenses admitted under MRE 413/414.” Id. Accordingly, the Benchbook stated : When the military judge has admitted ev idence relating to one charged sexual offense or child molestation offense as relevant to another charged sexual offense or child m olestation o ffense under MRE 413/414, the [instruction on the government’s burden] may be used, in co njunction with [the M.R.E. 413/414 spillover i nstructions] , as applicable.

Id. at n. 4.2 (emphasis added). The military judge cannot be faulted for apply ing the a ccepted law at the time, however

, after Hills

, that interpret ation of the law wa s no longer correct. The presumption that the military judge knows and follows the law is only as valid as the law itself. The Army Court of Criminal Appeals ’ co nclusion and the government’s argument before this court that the error was harmless due to this presumption is not a prejudice argument

. The presumption is that military judges will correctly follow the law, which would normally result in no legal error , n ot that an acknowledged error is harmless

. T h e presumption cannot somehow rectify the error or render it harmless. Assessing the prejudice of this error

, we recognize that the military judge

, when conducting his M.R.E. 40 3 anal ysis, found that the “proba tive weigh t of the evidence is high, demonstrating the accused’s propensity to sexually assault two females that he knew prior to the alleged sexual a ssaults.” Additionally, the government’s case was based e ntirely on the testimony of the victim s and the a lleged confe ssion from Hukill to his fiancé e that he had been unfaithful, all of which Hukill denied . N o other evidence was offered

. On this record, we find that the Government failed to prove there was no reasonable possibility that the error contribu te d to the ver dict. See Moran , 65 M.J. at 187

. We t herefore reverse the decision of the lower court

. D ECISION The decision of the United States Army Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judg e Advocate Ge neral of the Army. A rehearing is authorized.