## UNITED STATES ARMY COUR T 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. Carri er, Military Judge
Lieutenant Colonel Sean T. McGarry, Staff J udge Advocate (pretr ial) Lieutenant Colonel Euge ne Y. Kim, Staff Judg e Advocate (post-tr ial)

For Appellant: Captain Scott A . Martin, JA; Zachary Spilman, E squire (on brief); Captain Zach A. Szilagyi, JA; Za chary Spilman, Esquire (on repl y brief).

For Appellee: Colonel Tania M. M artin, JA; Capta in Austin L. F enwick, JA; Captain Sandra L. Ahi nga, JA (o n brief).

23 February 2018

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

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

SALUSSOLIA, Judge:

In this case, we set aside the findings of guilty as to five s pecifications, three of rape, one of aggravated sexua l contact, and of one abusive s exual 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 offi cer members sitting as a gener al courtmartial convicted appel lant, contrar y to his pl eas, of two spec ifications of rape in
violation of Article 120 Unifo rm Code of Military Justice, 10 U .S.C. § 920 (2006) [hereinafter UCMJ], a nd violating a l awful general regulation, assault consummated by battery, rape, aggravated sex ual contact, abus ive sexual con tact, and conduct unbecoming of an officer and gent leman, in violation of Article s 92, 120 , 128, and 133 UCMJ, 10 U.S.C. §§ 892, 920, 928, 933 (201 2). The convenin g authority approved the adjudged sentence of a dismissal and fifteen years of confinement.BROWN—ARMY 20160139

2 BACKGROUND

In Charge I, the gover nment charged appellant with five Article 120, UCMJ, specifications involvi ng two different vic tims. Specifications 1 and 2 were offenses against appellant’s wife and Specificati ons 3 through 5 were of fenses against Private (PV2) BL. Prior to trial, the go vernment requested the militar y judge consider Specifications 1 thro ugh 5 of Charge I for propensi ty purposes under Military Rule of Evidence [hereinafter Mil. R . Evid.] 413. The defense objec ted to the government’s request, thereby preserving t he error. The milita ry judge granted the government’s request in a wri tten ruling. (App. Ex. XIX).

LAW AND DISCUSSION

After appellant’s court-martial, our superior court held it is constitutional error for a military j udge to give an instr uction to a panel th at permits the use of one charged offense of sexual misco nduct to be used a s propensity e vidence in assessing another charged offens e of sexual misconduc t under Mil R. Evid. 413. Hills , 75
M.J. at 352.

If instructional erro r is found when there are constitutional d imensions at play, this court tests for prejud ice under the st andard of harm less beyond a
reasonab le doubt. United States v. Wolford , 62 M.J. 418, 42 0 (C.A.A.F. 2006). The inquiry for determini ng whether constituti onal error is harmles s beyond a re asonable
doubt is whether , beyond a reasona ble doubt, the e rror did not contribute to the
defendant's convicti on 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 comp lained of mi ght have con tributed 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, 68 5 (Army Ct. Crim. App . 2015). “There are
circumstances where the evidence is overwhelming, so we can res t assured that an

erroneous propens ity instruction did not contribute to the verd ict by ‘tipp[ing] the
balance of the members’ u ltimate det ermination.’” 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 rea sonable
doubt that the Mil. R. Evid. 413 error did not contribute to th e findings of guilty of Specifications 1 thro ugh 5 of Charge I. Alth ough we find the t estimony of the two victims credible, the deficiency of corroborating evidence make s it difficult to be certain that appellant was convicted on the strength o f the evi dence alone. This case
does not involve conclusive DNA ev idence, corrobo rating injurie s, videos or photographs that otherwise eviden ce appellant’s m isconduct. Mo reover, appellant’s
defense counsel raise d several issues regar ding the complaining witnesses’ motives to fabricate. While it is possib le the members did not use evi dence of one offense to convict appellant of a nother offense, we ar e not convinced beyo nd a reasonableBROWN—ARMY 20160139

3 doubt the erroneous pr opensity instructio n played no role in ap pellant’s conviction. Thus, the findings for Specifi cations 1 through 5 of C harge I a nd Charge I and the sentence cannot stand. We grant relief in our de cretal paragra ph.

CONCLUSION

The findings of guilty as to Spe cifications 1 through 5 of Char ge I and Charge I are SET ASIDE. The remaining f indings of guilty are AFFIRMED . The sentence is SET ASIDE. A rehearing is a uthorized on Speci fications 1 th rough 5 of Charge I and Charge I and the sentence. The case is returned to the sam e 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: