           U NITED S TATES N AVY –M ARINE C ORPS
               C OURT OF C RIMINAL A PPEALS
                           _________________________

                               No. 201500163
                           _________________________

                   UNITED STATES OF AMERICA
                                    Appellee
                                        v.

                           MICHAEL K. ELLIS
         Chief Information Systems Technician (E-7), U.S. Navy
                               Appellant
                        _________________________

    Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Captain Robert D. Blazewick, JAGC, USN.
      For Appellant: Gary Myers, Esq.; Lieutenant Christopher C.
                         McMahon, JAGC, USN.
     For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
               USN; Major Suzanne M. Dempsey, USMC.
                         _________________________

                           Decided 30 August 2016
                           _________________________

    Before BRUBAKER, 1 M ARKS , and F ULTON , Appellate Military Judges
                          _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

     MARKS, Senior Judge:
   A panel of members with enlisted representation, sitting as a general
court-martial, convicted Chief Information Systems Technician (Chief)
Michael K. Ellis, contrary to his pleas, of two specifications of sexual assault,
three specifications of abusive sexual contact, and two specifications of
assault consummated by battery in violation of Articles 120 and 128, Uniform


1Chief Judge BRUBAKER participated in the decision of this case prior to
commencing terminal leave.
                      United States v. Ellis, No. 201500163


Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 928. The members
sentenced Chief Ellis to two years’ confinement, reduction to pay grade E-1,
and a dishonorable discharge. The convening authority (CA) approved the
sentence as adjudged.
   Chief Ellis assigns the following as error:
      (1) The military judge erred in denying Chief Ellis his right to
      confront his accusers about victim-victim advocate discussions
      pursuant to the Sixth Amendment, U.S. Constitution, Military
      Rules of Evidence 608(c) and 514(d)(6).
      (2) The evidence is legally and factually insufficient.
      (3) Chief Ellis was subjected to unlawful pretrial punishment
      under Article 13, UCMJ, when the Government denied him
      privileges it provided to other court-martial participants.
      (4) Allowing the Government to use charged sexual misconduct
      as propensity evidence for other charged sexual misconduct in
      the same trial violated Chief Ellis’s rights to a presumption of
      innocence and due process.
    In light of the United States Court of Appeals for the Armed Forces’
(CAAF) recent decision in United States v. Hills, __ M.J. __, No. 15-0767,
2016 CAAF LEXIS 512 (C.A.A.F. Jun. 27, 2016), we find prejudicial error
with regard to the use of charged misconduct as propensity evidence. We
have considered the second assignment of error, regarding legal and factual
sufficiency, but decline to grant relief. The remaining two assignments of
error are moot.
                              I. BACKGROUND
    This case presents two incidents separated by nine months in time but
otherwise inextricably linked. Chief Ellis and the two women he was
convicted of assaulting worked together in the same department of the same
command and socialized in the same circle. Social gatherings at the same
sports bar preceded both incidents, which occurred after Chief Ellis returned
to the victims’ homes. The first victim, Chief TA, accused Chief Ellis of
sexually assaulting her in her bathroom, kitchen, and bedroom while friends
were gathered at her home after the Army-Navy football game on 8 December
2012. The second victim, Ms. LW, alleged that Chief Ellis raped her in her
bedroom on 21 September 2013. Days after her incident, Ms. LW sought
information and advice from the command sexual assault victim advocate,
Chief TA. Five weeks later, Ms. LW reported her sexual assault, accompanied
by Chief TA. Chief TA then came forward to report her nearly 11-month-old
sexual assault a week later.




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                                   II. DISCUSSION
   Chief Ellis challenges the military judge’s instruction to the members that
they could consider charged sexual misconduct as propensity evidence,
pursuant to MILITARY RULE OF EVIDENCE 413, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012).2
    We review a military judge’s admission of evidence for an abuse of
discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). We
review instructional errors de novo and evaluate an allegedly erroneous
instruction “‘in the context of the overall message conveyed’ to the members.”
Hills, 2016 CAAF LEXIS 512 at *16 (quoting United States v. Prather, 69
M.J. 338, 344 (C.A.A.F. 2011)) (additional citation omitted).
    In sexual assault cases only, MIL. R. EVID. 413(a) permits a military judge
to “admit evidence that the accused committed any other sexual offense. The
evidence may be considered on any matter to which it is relevant.” The rule
does not distinguish between charged and uncharged misconduct, and
prosecutors have proffered both under it. The Military Judges’ Benchbook
offers standardized instructions for both scenarios—when the other sexual
offense is uncharged misconduct and when it is charged misconduct. Before
the CAAF’s ruling in Hills, military judges instructed members how to
consider multiple charged sexual offenses relative to each other, in
accordance with MIL. R. EVID. 413, using the following instruction:
          (Further), evidence that the accused committed the (sexual) . . .
          offense(s) alleged in (state the appropriate Specification(s) and
          Charge(s)) may have no bearing on your deliberations in
          relation to (state the appropriate Specification(s) and
          Charge(s)), unless you first determine by a preponderance of
          the evidence, that is more likely than not, the offense(s) alleged
          in (state the appropriate Specification(s) and Charge(s))
          occurred. If you determine by a preponderance of the evidence
          the offense(s) alleged in (state the appropriate Specification(s)
          and Charge(s)) occurred, even if you are not convinced beyond a
          reasonable doubt that the accused is guilty of (that) (those)
          offense(s), you may nonetheless then consider the evidence of
          (that) (those) offense(s) for its bearing on any matter to which
          it is relevant in relation to (list the offense(s) for which the
          members may consider the evidence). . . .
Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 1105-06 (10
Sep. 2014) (emphasis added). Military judges then instructed the members
that if they were convinced of one sexual offense by a preponderance of the

2   As amended by Exec. Order 13,643, 78 Fed. Reg. 29,559, 29,577 (15 May 2013).

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evidence, they “may also consider the evidence of such other (sexual) . . .
offense(s) for its tendency, if any, to show the accused’s propensity or
predisposition to engage in (sexual) . . . offenses.” Id. at 1106.
    The CAAF examined MIL. R. EVID. 413 and these instructions in Hills
nearly a year and a half after Chief Ellis’s court-martial. Despite MIL. R.
EVID. 413’s silence as to charged or uncharged misconduct, the CAAF
unequivocally held that the rule cannot be applied to evidence of a charged
sexual offense. Hills, 2016 CAAF LEXIS 512, at *10 (“[N]either the structure
of M.R.E. 413 and its relationship to M.R.E. 404(b) nor the legislative history
of the federal rule upon which it is based suggests that M.R.E. 413 and its
attendant instructions may be applied to evidence of charged misconduct.”)
The opinion distinguished charged misconduct from prior sexual assault
convictions and uncharged sexual offenses, which remain admissible under
MIL. R. EVID. 413. Id. at *8. But using MIL. R. EVID. 413, a “rule of
admissibility for evidence that would otherwise not be admissible,” to admit
evidence already before the fact finder as proof of charged offenses was an
abuse of discretion. Id. at *2, *6, and*7.
    The erroneous Military Judges’ Benchbook instruction exacerbated the
abuse of discretion. The CAAF definitively identified the instructional error—
the introduction of the lower standard of proof in the consideration of
evidence of charged offenses. Judge Ryan drew a distinction between Hills
and a California case in which “‘[T]he instruction clearly told the jury that all
offenses must be proven beyond a reasonable doubt, even those used to draw
an inference of propensity.’” Id. at * 17 (quoting People v. Villatoro, 281 P.3d
390, 400 (Cal. 2012)) (emphasis added). Describing Hills, Judge Ryan
continued, “[i]n contrast, the instructions in this case invited the members to
bootstrap their ultimate determination of the accused’s guilt with respect to
one offense using the preponderance of the evidence burden of proof with
respect to another offense.” Id. at *17-*18. Despite the military judge’s
reminder to the members that the Government must prove each element of
each offense beyond a reasonable doubt and recitation of the spillover
instruction, the CAAF held that the introduction of the preponderance of the
evidence standard compromised the instructions as a whole. Id. at *16-*17
(“Evaluating the instructions in toto, we cannot say that Appellant’s right to
a presumption of innocence and to be convicted only by proof beyond a
reasonable doubt was not seriously muddled and compromised by the
instructions as a whole.”)




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                      United States v. Ellis, No. 201500163


    Not only did this application of MIL. R. EVID. 413 to evidence of charged
conduct constitute an abuse of discretion and induce instructional error, it
infringed on Chief Hills’s constitutional right to due process. The CAAF held
that admitting charged misconduct as propensity evidence under MIL. R.
EVID. 413 “violated Appellant’s presumption of innocence and right to have
all findings made clearly beyond a reasonable doubt, resulting in
constitutional error.” Id. at *13. Also, “the muddled accompanying
instructions implicate ‘fundamental conceptions of justice’ under the Due
Process Clause by creating the risk that the members would apply an
impermissibly low standard of proof, undermining both ‘the presumption of
innocence and the requirement that the prosecution prove guilt beyond a
reasonable doubt.’” Id. at *18 (quoting United States v. Wright, 53 M.J. 476,
481 (C.A.A.F. 2000)).
    Instructional error with constitutional implications is prejudicial unless it
is harmless beyond a reasonable doubt. United States v. Wolford, 62 M.J. 418,
420 (C.A.A.F. 2006) (“If instructional error is found, because there are
constitutional dimensions at play, [the appellant’s] claims ‘must be tested for
prejudice under the standard of harmless beyond a reasonable doubt.’”)
(citation omitted). The more specific inquiry required is whether the
instructional error contributed to the members’ decision to convict. “An error
is not harmless beyond a reasonable doubt when ‘there is a reasonable
possibility that the [error] complained of might have contributed to the
conviction.’” Hills, 2016 CAAF LEXIS 512 at *18-*19 (quoting United States
v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (citation omitted) (alteration in
original)). The CAAF declined to minimize the import of the instructional
error in Hills, commenting that “[t]he juxtaposition of the preponderance of
the evidence standard with the proof beyond a reasonable doubt standard
with respect to the elements of the same offenses would tax the brain of even
a trained lawyer.” Id. at *19. Considering the facts in Hills and noting the
lack of eyewitness testimony from third party witnesses, the absence of
conclusive physical evidence, and the members’ acquittal of the accused on
some of the allegations, the CAAF concluded they “cannot know whether the
instructions may have tipped the balance in the members’ ultimate
determination.” Id. at *20. As a result, the CAAF set aside the findings and
sentence in Hills and authorized a rehearing. Id.
   Without the benefit of the CAAF’s Hills decision, the military judge
presiding over Chief Ellis’s court-martial followed the then-current state of
the law and unwittingly committed the same abuse of discretion and error.
He documented the Government’s adherence to MIL. R. EVID. 413’s disclosure
requirement, conducted the required balancing tests in accordance with MIL.
R. EVID. 401, 402, and 403, and meticulously recorded his admission of the
evidence before the members as proof of charged offenses under MIL. R. EVID.

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413 as well. Contrary to the Government’s argument, the difference in factual
circumstances between this case and Hills is irrelevant to the application of
MIL. R. EVID. 413 to charged offenses. The abuse of discretion arises from the
complete conflation of the evidence of charged sexual offenses and the
evidence of other, similar sexual offenses.
    The military judge then repeated the instructional error in Hills, reciting
the flawed language from the Military Judges’ Benchbook verbatim. First, he
instructed the members that they could consider the evidence of Chief Ellis’s
assaults on Ms. LW for its bearing on Chief TA’s allegations, if they first
determined by a preponderance of the evidence that the assaults on Ms. LW
occurred. Then the military judge advised the members they could consider
the evidence of Chief Ellis’s assaults on Chief TA for its bearing on Ms. LW’s
allegations if they first determined by a preponderance of the evidence that
the assaults on Chief TA occurred. In doing so, the military judge uttered
“preponderance of the evidence” four times, defining it twice and
distinguishing it from the higher beyond a reasonable doubt standard twice.
    Having found abuse of discretion and error, we must assess the prejudice
to Chief Ellis and determine whether the instructional error was harmless
beyond a reasonable doubt. While the Government presented a strong case
against Chief Ellis, it suffered some of the same weaknesses that concerned
the CAAF in Hills. There was no physical evidence. Other than Ms. LW and
Chief TA, none of the eyewitnesses observed sexual contact or sexual acts.
Evidence of the actus reus of all but one specification consisted solely of the
accuser’s testimony. Trial defense counsel impeached Ms. LW’s allegation
that Chief Ellis penetrated her vagina with his penis using her initial
statements that he performed oral sex but only attempted vaginal
intercourse. The members acquitted Chief Ellis of one specification of abusive
sexual contact involving Chief TA, convicting him instead of the lesser
included offense of assault consummated by battery and revealing their
reasonable doubt about Chief TA’s claim that Chief Ellis touched her breast
and buttocks in the bathroom. Finally, trial defense counsel challenged Chief
TA on her possible bias, prejudice, or motive to misrepresent stemming from
her role as Ms. LW’s victim advocate and her subsequent decision to report
her 11-month-old encounter with Chief Ellis as a sexual assault.
   The facts of this case prevent us from being certain, beyond a reasonable
doubt, that error did not contribute to Chief Ellis’s convictions.




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                    United States v. Ellis, No. 201500163


                             III.CONCLUSION
   The findings and sentence are set aside. The record is returned to the
Judge Advocate General of the Navy for remand to an appropriate CA with a
rehearing authorized.
   Chief Judge BRUBAKER and Judge FULTON concur.

                                         For the Court



                                         R.H. TROIDL
                                         Clerk of Court




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