UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                        BURTON, CELTNIEKS, AND SCHASBERGER
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                     Sergeant First Class MANUEL ORTIZ, III
                          United States Army, Appellant

                                       ARMY 20150267

             Headquarters, U.S. Army Maneuver Center of Excellence
         Charles A. Kuhfahl, Jr. and Christopher D. Carrier, Military Judges
                  Colonel Charles C. Poché, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Captain Cody D.
Cheek, JA; Major Julie L. Borchers, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Joshua B. Banister, JA (on brief).


                                      20 December 2017

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                          MEMORANDUM OPINION ON REMAND
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

      A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of absence without leave in violation of Article 86 Uniform
Code of Military Justice, 10 U.S.C. § 886 (2006 & Supp. V 2012) [UCMJ], and
convicted appellant, contrary to his pleas, of two specifications of rape of a child,
two specifications of sexual assault of a child, and two specifications of providing
alcohol to a minor, in violation of Articles 120b and 134, UCMJ. The military judge
sentenced appellant to be discharged from the service with a dishonorable discharge,
confinement for forty-five years, and a reduction to the grade of E-1. The convening
authority approved the sentence as adjudged and credited appellant with 187 days
against the sentence to confinement.
ORTIZ—ARMY 20150267

       This case is again before us for review in light of our superior court’s holding
in United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017). 1 After considering the
additional pleadings submitted by the parties and the entire record, we affirm the
findings of guilty and the sentence. We conclude the military judge’s conditional
ruling regarding the admissibility of evidence under Military Rule of Evidence [Mil.
R. Evid.] 414 did not ripen into error as the condition did not occur.

                                  BACKGROUND

       The assaults at issue all took place at the appellant’s residence in the McGraw
Housing area on Fort Benning, Georgia. Appellant was separated from his wife and
lived by himself in the quarters, across the street from fourteen-year-old TM and a
few blocks from fourteen-year-old HH. At various times appellant’s children would
stay at the house in Georgia. Appellant also had a string of “nannies” staying at the
house.

                                   A. Assault of KS

       KS was a thirteen-year-old friend of HH. On 8 September 2012, KS spent the
night with HH. That evening, KS and HH spent some time hanging out in front of
TM’s house with TM, TM’s mother, appellant, the then-nanny, and a few other
adults. Though having a good time, the girls had to go back to HH’s house. Late
that night, KS and HH sneaked out of HH’s house and headed back to TM’s house.
No one was out at TM’s house.

        Appellant was on his porch with another soldier, Specialist (SPC) SM,
smoking and drinking. Appellant invited the two girls over, gave them alcohol,
cigarettes, and invited them inside to play beer pong. Appellant asked KS if she was
in the eighth grade. At some point HH tripped the circuit breaker causing the house
to go dark. The lights were eventually turned back on, but some of the rooms were
still dark.

       KS and appellant wound up alone in the kitchen area. Appellant grabbed KS,
choked her, and laid her on the ottoman. He pulled her pants off and penetrated her
vagina with his penis and his fingers. When he heard HH come downstairs,
appellant got off KS. She put on her pants and ran outside. KS had blood on her
clothing and legs. HH saw that KS was upset and asked KS what was wrong. KS
told HH she thought she was raped.


1
  This court affirmed the findings and sentence in June 2016. United States v. Ortiz,
ARMY 20150267 (Army Ct. Crim. App. 30 Jun. 2016) (unpub.). On 27 July 2017,
our superior court set aside our decision and remanded the case to this court for a
new review under Article 66, UCMJ, in light of its decision in Hukill. United States
v. Ortiz, 76 M.J. 441 (C.A.A.F. 2017) (summ. disp.).


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       Approximately two weeks later, KS reported the incident. A sexual assault
nurse examiner (SANE) conducted an examination of KS. The SANE noted old
bruising around KS’s neck and injuries to KS’s genital region. The injuries included
a lesion on her vaginal tissue, a hematoma on her cervix, and the SANE noted KS’s
cervix was split. The SANE concluded these were injuries of blunt force trauma.

       The government seized the ottoman from appellant’s residence. It tested
positive for blood that was matched by deoxyribonucleic acid (DNA) to KS. The
DNA taken from KS’s bloody underwear revealed a small amount of male DNA.
Due to the small sample amount, the laboratory was constrained in the type of test it
could run. The testing showed that appellant or any member of appellant’s paternal
line could be contributors.

       Special agents from the Criminal Investigation Command (CID) took
statements from appellant and SPC SM. Appellant stated he saw the two girls that
night but did not interact with them. He said the power in his house went off, then a
few minutes later he saw them running down the street, and later realized they had
stolen some beer. Specialist SM had a different recollection. In his statement, SPC
SM said the girls came by and joined him and appellant drinking and smoking.
Specialist SM kissed one of the girls and at some point appellant disappeared with
the other. Specialist SM did not know the age of the girls but guessed they were
eighteen or nineteen years old.

       On 2 October 2012, shortly after being questioned by CID, appellant loaded
his belongings in his car, left Fort Benning with his children and fled to Mexico.

                                 B. Assaults of TM

       Appellant and TM’s mother were friends. Living across the street from each
other, they had frequent interactions. TM’s mother would help appellant get ready
for his children’s visits and would have TM help by babysitting for appellant’s
children. She also had TM help clean appellant’s house. TM’s mother and appellant
would hang out on the weekends.

       In early autumn of 2012, appellant hosted a party that TM and her mother
attended. During the party appellant pushed up against TM, kissed her, and
eventually put his hands down her pants inserting his finger into her vagina. TM did
not report this to anyone because he was her mother’s friend. She figured he did it
because he was drunk and did not think it would happen again.
       Not long after the first incident, TM went with her mother to help clean
appellant’s house. They were cleaning to prepare the house for appellant’s children
who were being dropped off by appellant’s brother. After her mother left, TM drank
several beers with the “nanny.” TM was afraid if she went home her mother would
know she had been drinking. TM stayed over at appellant’s house and slept on the



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couch. Appellant also went to sleep on a couch. TM woke to appellant kissing her
and taking off her pants. TM tried to get away but appellant held her down and
vaginally penetrated her. When someone shushed them from the top of the stairs,
appellant covered her mouth with his hand.

     TM kept quiet about these incidents even after hearing about the incident with
KS. TM did not want to be involved and figured KS would report it.

        A few weeks later, TM’s mother and appellant were invited to a poker game;
TM’s mother had TM babysit her younger brother and appellant’s children.
Appellant returned home first. He found TM in the kitchen, placed her face down on
the counter, pulled down her pants and vaginally penetrated her. TM did not want
her little brother or appellant’s children to come see what was going on so she
remained quiet.

      TM did not report the assaults until a year after appellant fled to Mexico. TM
was talking with HH and HH’s mother. They started talking about KS and the
incident with appellant. TM broke down and started crying, eventually telling them
about being sexually assaulted by appellant.

                        C. Mil. R. Evid. 414 Motion at Trial

       Prior to trial, the government filed notice it intended to use evidence of the
charged child molestation, as well as an incident of uncharged sexual abuse of a
child, to prove the other charged specifications. The defense filed a motion to
preclude the government’s introduction of evidence under Mil. R. Evid. 414, arguing
the evidence was not relevant, not probative, and failed the balancing test under Mil.
R. Evid. 403. The military judge did not issue a written ruling, but stated he would
provide guidance on what could be argued before the trial began.

       At trial, the military judge made a conditional ruling: “I’m not going to
preclude the government from making a [Mil. R. Evid.] 414 argument if they are
very careful in the language that they use, bearing in mind the balancing interest as
it were between what is allowed by rule [Mil. R. Evid.] 414 and the due process
requirements of -- the due process that each element of each offense be proven.”
This condition did not come to pass.

       The government did not argue that appellant showed a propensity to commit
sexual assaults of children. The trial counsel argued each specification individually,
highlighting the evidence for each specification. In closing, the trial counsel did
argue that appellant was “by no means a first time offender.” The military judge sua
sponte challenged this statement. In the colloquy that followed, the trial counsel
apologized for the confusing statement and explained he was referring to the fact
that there were two victims.



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                              LAW AND DISCUSSION

       The decision to admit evidence is reviewed for an abuse of discretion. Hukill,
76 M.J. at 221 (citation omitted). “The meaning and scope of [Mil. R. Evid.] 413 is
a question of law that we review de novo.” United States v. Hills, 75 M.J. 350, 354
(C.A.A.F. 2016) (citation omitted). In Hills, our superior court found that using
Mil. R. Evid. 413 to admit evidence of charged misconduct to establish other
charged misconduct “violated Appellant’s presumption of innocence and right to
have all findings made clearly beyond a reasonable doubt, resulting in constitutional
error.” Id. at 356. For constitutional error, 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 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) (quoting United States v. Kaiser, 58 M.J. 146, 149
(C.A.A.F. 2003)). 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) (citing
Chapman v. California, 386 U.S. 18, 24 (1967)); United States v. Chandler, 74 M.J.
674, 685 (Army Ct. Crim. App. 2015).

       The case at hand differs significantly from other cases remanded to us for
further review in light of Hills and Hukill. Compare United States v. Hazelbower,
ARMY 20150335, 2017 CCA LEXIS 721, at *5-11 (Army Ct. Crim. App. 22. Nov.
2017) (mem. op.) (finding the constitutional error harmless beyond a reasonable
doubt), United States v. Santucci, ARMY 20140216, 2016 CCA LEXIS 594, at *8-9
(Army Ct. Crim. App. 30 Sept. 2016) (mem. op.) (finding the constitutional error
harmless beyond a reasonable doubt), and United States v. Bonilla, ARMY
20131084, 2016 CCA LEXIS 590, at *23-25 (Army Ct. Crim. App. 30 Sept. 2016)
(mem. op.), aff’d, 76 M.J. 335 (C.A.A.F. May 3, 2017) (summ. disp.) (finding the
constitutional error harmless beyond a reasonable doubt), with United States v.
Ramos-Cruz, ARMY 20150292 (Army Ct. Crim. App. 11 Dec. 2017) (summ. disp.)
(setting aside findings of guilty affected by the constitutional error), United States v.
Degregori, ARMY 20150581, 2017 CCA LEXIS 741, at *5 (Army Ct. Crim. App. 30
Nov. 2017) (summ. disp.) (setting aside findings of guilty affected by the
constitutional error), United States v. Reynolds, ARMY 20140856, 2017 CCA LEXIS
731, at *7 (Army Ct. Crim. App. 28 Nov. 2017) (summ. disp.) (setting aside findings
of guilty affected by the constitutional error), United States v. Aguiar-Perez, ARMY
20140715, 2017 CCA LEXIS 732, at *6-7 (Army Ct. Crim. App. 28 Nov. 2017)
(summ. disp.) (setting aside the findings of guilty affected by the constitutional
error), United States v. Denson, ARMY 20150137, 2017 CCA LEXIS 564, at *7
(Army Ct. Crim. App. 18 Aug. 2017) (mem. op.) (setting aside findings of guilty
affected by the constitutional error), United States v. Grant, ARMY 20150572, 2017



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CCA LEXIS 357, at *3-4 (Army Ct. Crim. App. 25 May 2017) (mem. op.) (setting
aside findings of guilty affected by the constitutional error), and United States v.
Duarte, ARMY 20140843, 2017 CCA LEXIS 61, at *6-7 (Army Ct. Crim. App. 30
Jan. 2017) (summ. disp.) (setting aside the findings of guilty in light of
constitutional error).

       In each of these cases, the military judge specifically sanctioned the use of
propensity evidence and associated argument. Conversely, in the case at hand, the
military judge never issued a ruling admitting evidence under Mil. R. Evid. 414.
Instead, he set conditions under which propensity evidence could be used. The
conditions were a balance of the things allowable under Mil. R. Evid. 414 and the
due process rights of appellant. Presumably, had the government met the conditions,
the military judge would have then allowed the government to argue propensity and
that decision would have been error, which is to say the military judge’s conditional
ruling could have become an error.

        Reviewing the record, we find that though the government filed notice of an
intent to offer evidence under Mil. R. Evid. 414, no such evidence was actually
offered or admitted. The closest the government came to connecting the offenses
was in the last line of argument where the trial counsel stated appellant was not a
first time offender. The military judge immediately challenged the trial counsel on
this statement. The military judge’s questions of the trial counsel and the trial
counsel’s retraction of this statement make it clear that the military judge was not
considering this a permissible argument under any rule, to include Mil. R. Evid. 414.

       The government’s case against appellant was overwhelming. The government
introduced DNA evidence that showed KS’s blood on the ottoman–exactly where KS
stated she was assaulted. The government also tied KS’s bloody underwear to the
night of the offense and to DNA that could be from appellant. The government
introduced evidence of the injuries KS sustained, which corroborated KS’s
description of what happened. Appellant’s statement was contradicted by KS, HH,
and most importantly appellant’s friend SPC SM. Moreover, SPC SM’s statement
corroborated details from KS and HH’s statements, with the exception of the age of
the girls. Crucial aspects of TM’s testimony were corroborated with external
evidence. TM’s mother described sending TM to help clean the house and requiring
her to babysit appellant’s children. She also corroborated the presence of the
“nannies” and the relationship appellant had with her family.

       The defense case was weak. The defense never shook the credibility of either
KS or TM. There was no motive for either girl to lie. The defense argument was
focused on technicalities (e.g., whether the government proved appellant
administered an intoxicant to KS; whether appellant knew TM was under sixteen
years of age). Both girls independently testified that appellant knew they were in




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the eighth grade, and there was evidence that appellant routinely saw TM in her
Faith Middle School shirt.

      There is no evidence in the record that the military judge considered
propensity evidence. He never made findings of fact or completed an analysis under
Mil. R. Evid. 414, which would indicate that he was going to consider evidence
regarding the assault of KS to prove any of the specifications of TM or vice versa.

                                   CONCLUSION

       On consideration of the entire record, to include those matters appellant raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), 2 the findings of
guilty and sentence as approved by the convening authority are AFFIRMED.

      Senior Judge BURTON and Judge CELTNIEKS concur.

                                              FOR THE COURT:




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




2
 In addition to the remanded issue, appellant requested leave to file a supplemental
Grostefon issue. The request was untimely. Furthermore, the issue was one which
was known at the time of trial and during the original appeal. This court denied the
request on the basis that there was no good cause shown to allow an out-of-time
appeal to litigate a pretrial punishment issue when there was no new information,
evidence, or change in the law.


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