## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before SALUSSOLIA, SALADINO, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant A NGEL M. SANCHEZ United States Army, Appellant

ARMY 20140735

Headquarters, U.S. Army Maneuve r Support Center of Excellence Jeffery R. Nance, Military Judge Colonel Robert F. Resni ck, Staff Judge Advocate

For Appellant: M ichael J. Millios, Esquire (argued); Lieutenan t Colonel Ch ristopher D. Carrier, JA; Michael J. Millio s, Esquire (on b rief); Captain Oluwaseye Awoniyi, JA.

For Appellee: Captain Brian Jon es, JA (argued); Colonel Steven P. Haight, JA; Lieutenant Colonel Eri c K. Stafford, JA; Cap tain Jeremy Watford , JA; Captain Brian Jones, JA (on brief).

10 April 2019

--------------------------------------------------- SUMMARY DISPOSITION ON REMAND

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SALADINO, Judge:

Our court previously c onducted an appellate review of this case pursuant to Article 66, Uniform C ode of Military Justice [UCMJ], affirming appellant’s conviction and sentence. United States v. Sanchez , ARMY 20140735, 2017 CCA LEXIS 203 (Army Ct. Crim. A pp. 28 Mar. 2017 ) (mem. op.); United States v. Sanchez , ARMY 20140735, 2017 CCA LEXIS 470 (Army Ct. Crim. App. 17 Jul

. 2017) (mem. op. on reco nsideration). 1 The Court of Appeals for the Armed Forces

1 A military judge sitti ng as a general court -martial convicted appellant, pu rsuant to his pleas, of three specificati ons of violating a general order by engaging in conduct of a sexual nature with basic tra inees in violati on of Article 92, UCMJ, 10 U.S.C. § 892. Contrary to his pleas, the military judge c onvicted appel lant of an additional specification of violating a genera l order, four s pecifications of cruelty and

(continued . . .)SANCHEZ—ARMY 20140735

2 (CAAF) subsequently granted review on the issues o f whether thi s court misapplied the CAAF’s controlling precedent s in concluding: (1) the milit ary judge did not consider charged misco nduct as propen sity evidence, and (2) the defense counsel “waived” this issue by failing to object a t trial. The CAAF re versed this court’s decision and returne d the record to the Ju dge Advocate General of the Army for remand to this c ourt for a new review un der Article 66, UCMJ.

We have reviewed the record anew and find t he military judge di d consider charged misconduct as propensity evidence . Under the circumsta nces of this case, we are not convince d beyond a reasonable doubt that the use of charged misconduct as propensity evidence did not erroneously contribute to appell ant’s convictions of ten specifications of sexual assault. Acc ordingly, we provide relief in ourdecretal paragraph. 2

BACKGROUND

Appellant served as a drill ser geant at Fort Le onard Wood, Miss ouri. While assigned to a basic training u nit, appellant e ngaged in a range of sexual misconduct with several female trainees including oral sex, digital vagina l penetratio n, groping and touching trainees, and sexual ly harassing and maltreating t rainees by making sexually explicit andprovocative comments to them. Appellant also sexually assaulted and sexua lly harassed a fellow drill sergeant.

Prior to trial, the government pr ovided two notice s of its inte nt to admit evidence under Mil. R . Evid. 413. The first notice stated the government intended to use charged sexual assault offens es as evidence a ppellant commi tted other charged sexual misconduct. Th e government’s second notice indicated itintended to offer uncharged misconduct. 3

(. . . continued) maltreatment, and ten specificat ions of sexual as sault and rape , in violation of Articles 92, 93, and 120, UCMJ, 10 U.S.C. §§ 892, 893, and 920. The military judge sentenced appellant t o a dishonorable discharge, confinement fo r twenty years, forfeiture of all pay and allowa nces, and reduct ion to the grad e of E-1. The convening authority deferred adjudged and waived forfeitures an d approved the remainder of the a djudged sentence.

2After due considerati on, appellant’s other assigned errors, in his original and supplemental briefs , do not merit discu ssion nor relief.

3 At trial, the government made no attempt to offe r evidence of u ncharged misconduct and, consequently, th e admissibility of uncharged mi sconduct is not before us on appeal

.SANCHEZ—ARMY 20140735

3 During a closed Mil. R . Evid. 412 hearing pr e-trial, the milita ry judge asked counsel if they were prepared to d iscuss the gover nment’s Mil. R. Evid. 413 notice. 4 The defense counsel stated he did not recall receiving the moti on. The military judge responded with the following:

Well it’s not a mot ion. [The government is] required to provide you notice so that if you object , you can file a motion. . . . [A]nd th e 413 evidence is just – they’re looking for the instruction that, “ If you believe he committed one of these, you can use that to infer that he might have committed the others,” like propensity

. . . . (emphasis added).

The defense counsel re plied, “Yes, sir. We have no objection t o that, sir.”

During the trial counsel’s opening statement and rebuttal argum ent on findings, he asked the military j udge to consider charged misco nduct as propensity evidence.

LAW AND DISCUSSION

We begin our review with a sum mary of the CAAF’s decision in United States v. Hukill , 76 M.J. 219 (C.A.A. F. 2017), and conclude appellant’s case is analogous, warranting relief.

A. Mil. R. Evid. 41 3 and Charged Misconduct

In Hukill , the government filed a pre-trial motion seeking to introduce evidence of each sexual miscon duct charge under Mil. R. Evid. 4 13 to demonstrate Hukill’s propensity to commit th e other sexual misconduct. Hukill , 76 M.J. at 220. The defense counsel opposed the moti on and the matter was litig ated pre-trial. Id . at 220. The military judge issued a ruli ng on the record with a M il. R. Evid. 403 analysis, and granted the government’s motion. Id . In reversing this court’s decision, the C AAF made clear in Hukill , “that under Hills the use of evidence of charged conduct as Mil. R. Evid. 413 propensity ev idence for ot her charged conduct in the same case is error, rega rdless of the for um, the number of victims, or whether the events are connected.” Id . 222; see also United States v. Hills , 75 M.J. 350

4Pursuant to Mil. R. E vid. 412(c)(2), a Mi l. R. Evid. 412 motio n, related papers, and the record of the Mi l. R. Evid. 412 hearing must be sealed in a ccordance with Rule for Courts-Martial [R.C.M.] 110 3A. Only matters r equiring a cl osed hearing should be discussed in a closed hearin g. We note in this case, the Mi l. R. Evid. 413 discussion should hav e occurred in an ope n hearing, and not com mingled with the sealed Mil. R. Evid. 412 matters.SANCHEZ—ARMY 20140735

4 (C.A.A.F. 2016) . Our Superior Court also recogniz ed Hukill was tried before i t issued its decision in Hills , and at that time , the common understa nding of the law, as evidenced by the Arm y Military Judges’ Benc hbook discussion of Mil. R. Evid 413, “was that the charged misconductcould be used as propensity ev idence under [Mil. R. Evid. 413].” Id. at 222. The CAAF f urther stated:

The military judge cannot be faulted for applying the accepted law a t the time, how ever, after Hills , that interpretation of the law was no longer correct. The presumption is that the milit ary judge knows and follows the law is only as valid as the l aw itself.

Id . at 223.

We find this case very similar to Hukill

. 5First, this case was decided prior to the CAAF’s decision in Hills , when the common understandi ng of the law was that charged misconduct c ould be used as propen sity evidence under M il. R. Evid. 413. See United States v. Burton , 67 M.J. 150 (C. A.A.F. 2009); see also Dep’t Army Pam. 27-9, Legal Services , Military Judge’s B enchbook, ch . 7, n. 4 ( 1 Jan. 2010). Second, like Hukill , the military judge i n this case indicated on the record that he believed Mil. R. Evi d. 413 allowed the fac tfinder to consider c harged misconduct as propensity evidence to commit se xual assault. A lthough the mil itary judg e did not rule on a motion perm itting a proposed inst ruction like the mil itary judge did in Hukill , he nonetheless stated the crux of the ins truction, “‘ If you believe he committed one of these, you c an use that to infer that he might have committed the others ,’ like propensity . . . .” (emphasi s added). This statement clearly evinces th e military judge’s understanding of the law at the time—that char ged misconduct could be used as propensity ev idence. As the CAAF noted in Hukill , we also recognize the military judge in appellant’s case cannot be faul ted for applying the accepted law at the time. Nonethe less, we find e rror and must test for prejudice.

5 We note one distinc tion between the pr esent case and Hukill is that in this case the defense counsel d id not object to the use of charged misconduct as propensity evidence. However, we find that given t he understanding of the law at the time of appellant’s trial, he had no colo rable objection and therefore did not waive the issue. See, e.g., Sweeney , 70 M.J. 296, 304 (C.A.A.F. 2011). We al so need not determine if appellant forfeited his right to object on appe al through hi s lack of objection at trial because we tak e notice of the issue pursuant to our Artic le 66, UCMJ, authority given the unique nature of this case, including its tortured hi story. See, e.g., United States v. Chin , 75 M.J. 220 , 222-23 (C.A.A.F. 2016) (d iscussing the scope of the courts of criminal appeals’ aut hority under Art icle 66 to notic e error in a record not raised by counsel); see also United States v. Conley , ARMY 20170560, 2019 CCA LEXIS 88 (Army Ct. Cri m. App. 28 Feb. 2019).SANCHEZ—ARMY 20140735

5 B. Prejudice

We next review whether the milit ary judge’s cons ideration of ch arged conduct as propensity evidence under Mi l. R. Evid. 413 was harmless bey ond a reasonable doubt. See Hukill, 76 M.J. at 222 (citing United States v. Kreutzer , 61 M.J . 293, 298 (C.A.A.F. 2005). In assessing t he prejudice of this error, we are not conv inced that there was no possibilit y the Mil R. Evid. 4 13 evidence contribu ted to appellant’s convictions.

The strength of the evidence in appellant’s case is similar to the evidence in United States v. Guardado , 77 M.J. 90 (C.A .A.F. 2017). In Guardado , the CAAF considered the nature of the government’s case in that it consi sted mainly of the victims’ testimony without additi onal corroboratin g evidence. Id . at 94-95. In appellant’s case, he w as convicted of sexua lly assaulting seven different victims. Similar to Guardado , with the exception of corr oboration of some tangential circumstances surroundi ng the sexual assault s, the bulk of the evidence s upporting appellant’s convicti ons rested on the v ictims’ testimony.

Although we find the victims’ testimony credible, we are not co nvinced beyond a reasonable doub t appellant was conv icted of ten specif ications of sexual assault based solel y on their testimony. A ppellant’s case is n ot a case where the evidence is overwhelming, thus a llowing us to “re st assured tha t an erroneous propensity instructi on did not contribute to the verdict by ‘ti pp[ing] the balance in the [factfinder’s] ultim ate determin ation.’” Guardado , 77 M.J. at 94 (quoting Hills
, 75 M.J. at 358). Accordingly, we cannot be confident that impr oper propensity evidence did not pl ay a role in appell ant’s conviction.

CONCLUSION

Upon reconsideration of the entire record , the findings of guil ty as to Specifications 1, 2, 3, 4, 7, 8, 11, 13 , 14, and 15 of Charge I are SET ASIDE. The remaining findings of guilty are AFFIRMED anew. The sentence i s SET ASIDE. A rehearing may be order ed by the same or di fferent convening aut hority on Specifications 1, 2, 3, 4, 7, 8, 11, 13 , 14, and 15 of Charge I and on the sentence.

Senior Judge SALUSSOLIA an d Judge ALDYKIEWICZ concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: