UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                MULLIGAN, FEBBO, and WOLFE
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                             Private E1 BENJAMIN C. HILL
                              United States Army, Appellant

                                        ARMY 20130331

                        Headquarters, III Corps and Fort Hood
              Kirsten V. Brunson, Military Judge (arraignment and trial)
                Patricia H. Lewis, Military Judge (motion to dismiss)
               Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
               Colonel Ian G. Corey, Staff Judge Advocate (post-trial)


For Appellant: Major Yolanda McCray Jones, JA; Captain Ryan T. Yoder, JA (on
brief); Major Christopher D. Coleman, JA; Captain Ryan T. Yoder, JA (on reply
brief); Colonel Mary J. Bradley, JA; Lieutenant Colonel Christopher D. Carrier, JA;
Captain Ryan T. Yoder (on motion for reconsideration).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Major
Matthew T. Grady, JA (on brief); Colonel Tania M. Martin, JA; Lieutenant Colonel
Eric K. Stafford, JA; Major Cormac M. Smith, JA; Captain Jeremy Watford, JA (on
specified response to issues on reconsideration).


                                        27 February 2018
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                    MEMORANDUM OPINION ON RECONSIDERATION
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

       Appellant’s assignments of error on reconsideration are all related to our
superior court’s decision regarding United States v. Hills instructional error. See 75
M.J. 350 (C.A.A.F. 2016). We address appellant’s new arguments regarding the
military judge’s sua sponte instructional obligations, but uphold our previous
determination the error was waived. See United States v. Hill, ARMY 20130331,
2017 CCA LEXIS 430 (Army Ct. Crim. App. 27 June 2017). We further choose to
notice the Hills error, here, and conduct a plain error analysis. We determine the
HILL—ARMY 20130331

Hills error resulted in prejudice with respect to only one of the affected
specifications and take appropriate action. 1

                                   BACKGROUND

       A military panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications each of violating a lawful general
regulation, aggravated sexual contact, and housebreaking in violation of Articles 92,
120, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, 930 (2006 &
Supp. IV 2011). The panel sentenced appellant to a bad-conduct discharge and
confinement for two years. The convening authority approved only so much of the
sentence as provided for a bad-conduct discharge and confinement for one year and
eleven months and credited appellant with eighty-four days of confinement against
the sentence to confinement.

       This case is again before us on a defense motion to reconsider. We previously
addressed appellant’s arguments regarding the Hills error, concluding trial defense
counsel waived any objection to the improper propensity instructions and improper
government argument. Hill, 2017 CCA LEXIS 430, *5. We further held in the
alternative that even if Hills were a “new rule” appellant failed to establish the error
resulted in material prejudice to a substantial right under a plain error analysis.
Hill, 2017 CCA LEXIS 430, * 6-7. We granted defense appellate counsel’s new
motion to reconsider and the case is again before us to complete our Article 66,
UCMJ, review.

                              LAW AND DISCUSSION

                        A. The Hills Error Here was Waived.

       As we noted in our initial opinion on reconsideration, defense counsel’s
affirmative statements of no objection to the improper propensity instructions and
failure to object to the improper argument waived the issues for appeal. We applied
our superior court’s decision in United States v. Swift, 76 M.J. 210 (C.A.A.F. 2017),
and United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017), to determine that
appellant’s affirmative statements waived the propensity errors as he was fully
aware of the issues and had numerous opportunities to contest their admission and
use at trial. Hill, ARMY 20130331, 2017 CCA LEXIS 430, * 5.

      Appellant argues that our reliance on both Ahern and Swift was misplaced
because, unlike the evidentiary issues involved in those cases, here, the military

1
 In light of our decision to notice the waived error, we need not address appellant’s
assignment of error regarding ineffective assistance of counsel. We also have fully
considered appellant’s assignment of error regarding prosecutorial misconduct and
determine it does not warrant discussion or relief.
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HILL—ARMY 20130331

judge had a sua sponte obligation to ensure the mandatory instruction regarding the
presumption of innocence was not undermined. See Rule for Court-Martial (R.C.M.)
920(e)(5)(A). We agree with appellant; the military judge bears the primary
responsibility for assuring a panel is properly instructed, and once instructed a panel
is presumed to follow the law absent clear evidence to the contrary. However, a sua
sponte duty does not undermine principles of waiver and forfeiture.

       Even a structural error implicating constitutional provisions of due process is
subject to waiver and forfeiture. See gen. Weaver v. Massachusetts, 137 S. Ct. 1899,
198 L. Ed. 2d 420 (2017). The United States Court of Appeals for the Armed Forces
(CAAF) recently reiterated “that an accused’s right to a required instruction on
findings is not waived (that is, extinguished on appeal) by a failure to object without
more . . .” United States v. Davis, 76 M.J. 224, 225 (C.A.A.F. 2017); See also
R.C.M. 902(f) (stating failure to object to an instruction or to omission of an
instruction constitutes forfeiture). However, this does not mean that a required
instruction cannot be waived. Rather, the phrase “without more” implies a required
instruction can be waived with more than a mere failure to object.

       Supporting this proposition, the CAAF in United States v. Gutierrez, held that
a mandatory instruction could be affirmatively waived by the defense. 64 M.J. 374,
376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A.
1994)). Although dealing with the affirmative defense of mistake of fact under
R.C.M. 902(e)(3), the principle in Gutierrez of affirmative waiver is equally
applicable to all mandatory R.C.M. 902(e) instructions. While “there are no magic
words to establish affirmative waiver,” we are required to look at the record to see if
there was a “purposeful decision” at play. Id. at 377 (citing United States v. Smith,
50 M.J. 451, 456 (C.A.A.F. 1999).

       In United States v. Hoffman, we found an appellant’s “repeated failure to
object—and statement of no objection” to an erroneous propensity instruction
constituted an affirmative waiver. 76 M.J. 758, 766-67 (Army Ct. Crim. App. 2017).
Although we did not address the sua sponte nature of the military judge’s obligations
under R.C.M. 920(e)(5)(A) at that time, as it was not raised, we found that the
repeated failures and affirmative statements of appellant’s counsel indicating no
objection constituted a purposeful decision. Id.; See also Swift, 76 M.J. at 217 (“as
a general proposition of law, [a statement of] ‘no objection’ constitutes an
affirmative waiver of the right or admission at issue.”).

       Similar to Hoffman, appellant’s affirmative statements here show a purposeful
decision. Prior to trial, the government filed a motion in limine, specifically asking
the court to use the charged offenses of aggravated sexual contact as propensity
evidence for each other. The defense counsel did not file a response. We note the
absence of such a response or argument would constitute mere forfeiture under
R.C.M. 920(f). However, at an Article 39(a), UCMJ, session the military judge and
defense counsel discussed the filed motions:

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HILL—ARMY 20130331

             Military Judge: We did in the 802 discuss the
             government’s two motion[s]. I’ve got a motion in limine
             regarding 413 and 404(b) evidence and also a motion in
             limine precluding mention of collateral consequences.
             [Defense counsel] indicated in the 802 session that [they]
             had no objection to either of those motions, correct?

             Defense Counsel: That’s right, ma’am.

             Military Judge: Okay, so those two government motions
             are granted.

      Propensity evidence stemming from charged conduct has never been per se
admissible. As we explained in Hoffman, the instruction has always been subject to
challenge under the CAAF’s decision in United States v. Wright, 53 M.J. 476
(C.A.A.F. 2000). Each of the threshold findings required under Wright represented a
ground on which appellant could have argued a propensity inference should have
been disallowed in the case. Indeed, at a minimum the instruction could have been
challenged based on Military Rule of Evidence (Mil R. Evid.) 403. And, yet
appellant’s statement of “That’s right, ma’am” indicated an affirmative and
purposeful decision not to challenge the motions on any grounds.

      At another Article 39(a), UCMJ, session prior to trial, the military judge
summarized the motions before the court and indicated “The government filed a
motion in limine, and motion--- notice to present evidence under MRE 413 and MRE
404(b), and that is Appellate Exhibit VIII. That is unopposed, so that motion is
granted.” Appellant remained silent, affirming the military judge’s understanding
and indicating a purposeful decision.

       At the close of trial and prior to panel instructions, trial counsel again
requested the inclusion of the erroneous propensity instruction. After typing the
instructions and allowing both sides to review them, the military judge asked both
counsel, “Any objection to the instructions or corrections?” The defense counsel
again responded, “No, ma’am.” As in Hoffman we hold these repeated failures to
object and affirmative statements indicating the defense had no objection to the
instruction constituted a purposeful decision, thereby affirmatively waiving the
issue.

                              B. Noticing the Waiver.

       In every case before us, we are required to conduct a plenary review. UCMJ,
art. 66(c). With respect to extinguished error we are “required to assess the entire
record to determine whether to leave an accused’s waiver intact, or to correct the
error.” United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (citing United
States v. Tardif, 57 M.J. 219,223 (C.A.A.F. 2002). Here, while we find waiver, we

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HILL—ARMY 20130331

also find plain error. To avoid injustice, based on the facts of this case, we choose
to notice the waived error and conduct a plain error review.

       To show plain error, an appellant must demonstrate: (1) an error was
committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in
material prejudice to substantial rights of the accused. United States v. Paige, 67
M.J. 442, 449 (C.A.A.F. 2009). “[F]ailure to establish any one of the prongs is fatal
to a plain error claim.” United States v. Oliver, 76 M.J. 271, 275 (C.A.A.F. 2017).
As the error at issue is one of constitutional dimension, “[o]nce [appellant] meets his
burden of establishing plain error, the burden shifts to the Government to convince
us that this constitutional error was harmless beyond a reasonable doubt.” Paige, 67
M.J. at 449 (quoting United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)).

        The CAAF has issued additional guidance regarding the prejudice analysis of
Hills error within the context of plain error review. See United States v. Guardado,
77 M.J. 90 (C.A.A.F. 2017). Here, we are not convinced the erroneous propensity
instruction did not play a role in appellant’s conviction of Specification 1 of Charge
I, the aggravated sexual contact against Private First Class (PFC) MA. Id. at 95.
However, we are convinced the instruction did not play a role with respect to
Specification 2 of Charge I, the aggravated sexual contact against PFC JW. Id.

        Specification 1 of Charge I alleged an aggravated sexual contact against PFC
MA. On 20 March 2011, PFC MA awoke to being held down by three individuals,
including appellant, who had entered his room without his permission. Private First
Class MA testified that as the individuals held him down, they pulled his pants down
and one of them put his finger in PFC MA’s anus. Private First Class MA said it
was appellant because appellant’s “hand was in that area.” Private First Class MA
testified that he fought to get away the whole time, but could not. The incident
lasted less than a minute. The conviction was based solely on the testimony of the
victim of the event. There was no testimony from an eyewitness or corroborating
physical evidence. The lack of supporting evidence makes it difficult to conclude
the instruction was harmless. We therefore grant appropriate relief as stated in our
decretal paragraph.

       This is different from Specification 2 of Charge I, the aggravated sexual
contact against PFC JW. Private First Class MA was an eyewitness to this crime and
corroborated PFC JW’s accusation. On a single occasion between 14 and 20 April
2011, appellant and other soldiers entered PFC MA and PFC JW’s containerized
housing unit without permission. They held PFC JW down and took off his pants.
Appellant “shoved multiple fingers up [PFC JW’s] butt.” Again, the attack lasted
less than a minute. Private First Class MA witnessed the attack from his bed, but
was afraid to try and stop it. In light of PFC MA’s eyewitness testimony to this
event, which corroborated PFC JW’s credible testimony, we are convinced the
instruction was harmless and “did not contribute to the verdict by ‘tipping the


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HILL—ARMY 20130331

balance in the member’s ultimate determination.’” Guardado, 77 M.J. at 94
(quoting Hills, 75 M.J. at 358).

                                   CONCLUSION

       Upon consideration of the entire record, rather than authorize a rehearing, the
finding of guilty of Specification 2 of Charge I is set aside and conditionally
DISMISSED for judicial economy pending further appeal, if any, to our superior
court. See United States v. Britton, 47 M.J. 195, 203 (C.A.A.F. 1997) (Effron, J.,
concurring); United States v. Hines, 75 M.J. 734, 738 n.4 (Army. Ct. Crim. App.
2016); United States v. Woods, 21 M.J. 856, 876 (A.C.M.R. 1986). Our dismissal is
conditioned on the remaining guilty findings surviving the “final judgment” as to the
legality of the proceedings. See UCMJ art. 71(c)(1) (defining final judgment as to
the legality of the proceedings). The remaining findings of guilty are AFFIRMED.

        Reassessing the sentence on the basis of the errors noted, the amended
findings, the entire record, and in accordance with the principles of United States v.
Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), and United States v. Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013), we AFFIRM the sentence as approved by the
convening authority. The panel found appellant guilty of Specification 1 of Charge
III, a housebreaking charge that encompassed the criminal intent to commit the
actions dismissed in Specification 1 of Charge I. The housebreaking charge was
unaffected by the erroneous instructions and resolved appellant’s intention to
commit aggravated sexual contact upon entering PFC MA’s room, leaving only the
question of whether appellant attempted or actually committed the action. In light
of this determination, we are convinced the panel would have sentenced appellant to
at least that which was adjudged. All rights, privileges, and property of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered to be restored. See UCMJ art. 75(a).

      Judge FEBBO and Judge WOLFE concur.
                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:



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




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