UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         CAMPANELLA, SALUSSOLIA, and FLEMING
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                              Private E2 COLE S. COVEY
                             United States Army, Appellant

                                     ARMY 20150688

                             Headquarters, Fort Campbell
                          Matthew A. Calarco, Military Judge
                Colonel Susan K. Arnold, Staff Judge Advocate (pretrial)
      Lieutenant Colonel Robert C. Insani, Acting Staff Judge Advocate (post-trial)

For Appellant: Captain Joshua B. Fix, JA; Stephen Merrill, Esq. (on brief and reply
brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith,
JA; Captain Cassandra M. Resposo, JA (on brief).


                                    21 September 2017

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

SALUSSOLIA, Judge:

       In this case we agree with appellant that our superior court’s holding in
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), is controlling in this case and
requires this court to set aside the panel’s findings of guilty and sentence.

       A military panel of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his plea, of one specification of sexual
assault, in violation of Article 120 of the Uniform Code of Military Justice, 10
U.S.C. § 920 (2012) [hereinafter UCMJ]. 1 The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for eighteen months,
forfeiture of $500 pay per month for eighteen months, and reduction to the grade of
E-1.




1
    The panel acquitted appellant of four other sexual assault specifications.
COVEY—ARMY 20150688

      We review this case under Article 66, UCMJ. Appellant assigned two errors;
because of the relief we grant with respect to assignment of error regarding Military
Rule of Evidence [hereinafter Mil. R. Evid] 413, we do not discuss the remaining
assignment of error.

                                   BACKGROUND

       The government charged appellant with sexually assaulting his spouse, SS, on
multiple occasions during a month and a half period. At the close of evidence on
findings, the military judge provided the panel with an instruction concerning the
use of charged misconduct involving SS pursuant to Mil. R. Evid 413 as evidence of
the appellant’s propensity to commit other charged offenses against SS.

                               LAW AND ANALYSIS

        After appellant’s court-martial, the Court of Appeals for the Armed Forces
(CAAF) decided Hills, which addressed a military judge’s propensity instruction
pursuant to Mil. R. Evid. 413. There, the CAAF noted the use of charged
misconduct and propensity evidence to prove other charged misconduct pursuant to
Mil. R. Evid. 413 was improper. Id. at 356 (“It is antithetical to the presumption of
innocence to suggest that conduct of which an accused is presumed innocent may be
used to show a propensity to have committed other conduct of which he is presumed
innocent.”). The CAAF stated, “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.”
Id. at 357.

       We review a military judge’s decision to admit evidence under Mil. R. Evid.
413 for an abuse of discretion. United States v. Solomon, 72 M.J. 176, 179
(C.A.A.F. 2013). Whether a panel was properly instructed is a question of law we
review de novo. United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). 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).

       Here, the military judge’s propensity instructions were, in hindsight, improper
in light of our superior court’s decision in Hills and, therefore, created constitutional
error.

                                           2
COVEY—ARMY 20150688

       Assessing the military judge’s error, we find this case similar to Hills. The
government’s case included no corroborating physical evidence and primarily relied
on testimony from only one eyewitness, the accuser. By finding appellant guilty of
only one of the five specifications, the members rejected most of his accuser’s
allegations.

      On the facts of this case, we are not convinced beyond a reasonable doubt the
propensity instruction did not contribute to the findings of guilt, thus the findings
and sentence cannot stand.

                                  CONCLUSION

      The findings of guilty and the sentence are set aside. A rehearing may be
ordered by the same or a different convening authority.

      Senior Judge CAMPANELLA and Judge FLEMING concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:


.
                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES, JR.
                                                      SQUIRES JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court




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