UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, SALUSSOLIA, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

First Lieutenant DAVID BROWN 

United States Army, Appellant 

ARMY 20160139 

7th Army Training Command 

Christopher D. Carrier, Military Judge 

Lieutenant Colonel Sean T. McGarry, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Eugene Y. Kim, Staff Judge Advocate (post-trial) 

For Appellant: Captain Scott A. Martin, JA; Zachary Spilman, Esquire (on brief); 

Captain Zach A. Szilagyi, JA; Zachary Spilman, Esquire (on reply brief). 

For Appellee: Colonel Tania M. Martin, JA; Captain Austin L. Fenwick, JA; 

Captain Sandra L. Ahinga, JA (on brief). 

23 February 2018 

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SUMMARY DISPOSITION 

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SALUSSOLIA, Judge: 

 In this case, we set aside the findings of guilty as to five specifications, three 

of rape, one of aggravated sexual contact, and of one abusive sexual contact, in light 

of our superior court’s decisions in United States v. Hills, 75 M.J. 350 (C.A.A.F. 

2016); United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017); and United States v. 

Guardado, 77 M.J. 90 (C.A.A.F. 2017). 

A military panel composed of officer members sitting as a general courtmartial convicted appellant, contrary to his pleas, of two specifications of rape in 

violation of Article 120 Uniform Code of Military Justice, 10 U.S.C. § 920 (2006) 

[hereinafter UCMJ], and violating a lawful general regulation, assault consummated 

by battery, rape, aggravated sexual contact, abusive sexual contact, and conduct 

unbecoming of an officer and gentleman, in violation of Articles 92, 120, 128, and 

133 UCMJ, 10 U.S.C. §§ 892, 920, 928, 933 (2012). The convening authority 

approved the adjudged sentence of a dismissal and fifteen years of confinement. 
BROWN—ARMY 20160139 

2

BACKGROUND 

In Charge I, the government charged appellant with five Article 120, UCMJ, 

specifications involving two different victims. Specifications 1 and 2 were offenses 

against appellant’s wife and Specifications 3 through 5 were offenses against Private 

(PV2) BL. Prior to trial, the government requested the military judge consider 

Specifications 1 through 5 of Charge I for propensity purposes under Military Rule 

of Evidence [hereinafter Mil. R. Evid.] 413. The defense objected to the 

government’s request, thereby preserving the error. The military judge granted the 

government’s request in a written ruling. (App. Ex. XIX). 

LAW AND DISCUSSION 

After appellant’s court-martial, our superior court held it is constitutional 

error for a military judge to give an instruction to a panel that permits the use of one 

charged offense of sexual misconduct to be used as propensity evidence in assessing 

another charged offense of sexual misconduct under Mil R. Evid. 413. Hills, 75 

M.J. at 352. 

If instructional error is found when there are constitutional dimensions at 

play, this court tests for prejudice under the standard of harmless beyond a 

reasonable doubt. United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). The 

inquiry for determining whether constitutional error is harmless beyond a reasonable 

doubt is whether, beyond a reasonable doubt, the error did not contribute to the 

defendant's conviction or sentence. United States v. Kreutzer, 61 M.J. 293, 298 

(C.A.A.F. 2005). An error is not harmless beyond a reasonable doubt when there is 

a reasonable possibility the error complained of might have contributed to the 

conviction. United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007); United 

States v. Chandler, 74 M.J. 674, 685 (Army Ct. Crim. App. 2015). “There are 

circumstances where the evidence is overwhelming, so we can rest assured that an 

erroneous propensity instruction did not contribute to the verdict by ‘tipp[ing] the 

balance of the members’ ultimate determination.’” Guardado, 77 M.J. 90, __, 2017 

CAAF LEXIS 1142, at *11 (C.A.A.F. 2017) (quoting Hills, 75 M.J. at 358). 

Having reviewed the evidence, we are not convinced beyond a reasonable 

doubt that the Mil. R. Evid. 413 error did not contribute to the findings of guilty of 

Specifications 1 through 5 of Charge I. Although we find the testimony of the two 

victims credible, the deficiency of corroborating evidence makes it difficult to be 

certain that appellant was convicted on the strength of the evidence alone. This case 

does not involve conclusive DNA evidence, corroborating injuries, videos or 

photographs that otherwise evidence appellant’s misconduct. Moreover, appellant’s 

defense counsel raised several issues regarding the complaining witnesses’ motives 

to fabricate. While it is possible the members did not use evidence of one offense to 

convict appellant of another offense, we are not convinced beyond a reasonable 
BROWN—ARMY 20160139 

3

doubt the erroneous propensity instruction played no role in appellant’s conviction. 

Thus, the findings for Specifications 1 through 5 of Charge I and Charge I and the 

sentence cannot stand. We grant relief in our decretal paragraph. 

CONCLUSION 

The findings of guilty as to Specifications 1 through 5 of Charge I and Charge 

I are SET ASIDE. The remaining findings of guilty are AFFIRMED. The sentence 

is SET ASIDE. A rehearing is authorized on Specifications 1 through 5 of Charge I 

and Charge I and the sentence. The case is returned to the same or a different 

convening authority. 

 Senior Judge CAMPANELLA and Judge FLEMING concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: