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

                             No. 201600133
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                     WILLIAM A. SHIELDS III
     Aviation Boatswain’s Mate (Equipment) Third Class (E-4),
                            U.S. Navy
                            Appellant
                     _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Commander Heather Partridge, JAGC, USN.
      Convening Authority: Commanding Officer, USS HARRY S.
                        TRUMAN (CVN 75).
 Staff Judge Advocate’s Recommendation: Lieutenant Commander
                  Ryan M. Anderson, JAGC, USN.
    For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
               USN; Captain Sean M. Monks, USMC.
                      _________________________

                          Decided 27 June 2017
                         _________________________

   Before C AMPBELL , F ULTON , and H UTCHISON , 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.
                       _________________________

   HUTCHISON, Judge:
   A special court-martial composed of members with enlisted
representation convicted the appellant, contrary to his pleas, of two
specifications of violating the Navy’s sexual harassment instruction, and two
                        United States v. Shields, No. 201600133


specifications of abusive sexual contact in violation of Articles 92 and 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 920 (2012).1
The convening authority (CA) approved the adjudged sentence of a bad-
conduct discharge.2
    The appellant alleges four assignments of error (AOE):3 (1) the military
judge committed plain error when she instructing the members on reasonable
doubt; (2) the military judge erred in denying the appellant’s motion to
dismiss Charge II, Specification 3, which fails to state an offense; (3) the
abusive sexual contact in Charge II, Specification 3, is factually and legally
insufficient; and (4) in light of United States v. Hills, 75 M.J. 350 (C.A.A.F.
2016), the military judge’s admission of charged sexual misconduct pursuant
to MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 413, SUPPLEMENT TO
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and subsequent
instructions violated the appellant’s Due Process rights.
    Having been resolved by our superior court,4 we summarily reject the first
AOE. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). Regarding the
second and third AOEs, we find that the military judge did not err in denying
the appellant’s motion to dismiss, and that the specification is factually and
legally sufficient. However, we find merit in the fourth AOE, conclude that
the error was not harmless beyond a reasonable doubt, and take corrective
action in our decretal paragraph.
                                 I. BACKGROUND
    The appellant served with Airman (AN) BH and Airman Recruit (AR) KC
aboard USS HARRY S. TRUMAN (CVN 75). While underway during June
2015, the appellant made repeated sexual advances towards both AN BH and
AR KC: talking about their bodies, their relationships, his sexual desires, and
trying to kiss them.
   At trial, AN BH testified that on one occasion, the appellant approached
her in a lounge area while she was sitting in a rolling chair with her feet up.
The appellant grabbed her left hand and placed it on his “[c]rotch area.”5 AR

   1  The members acquitted the appellant of an additional sexual harassment
specification, and four additional abusive sexual contact specifications.
   2  Commander, Naval Air Force Atlantic took action on the sentence pursuant to
RULE FOR COURT-MARTIAL 1107(a), MANUAL FOR COURTS-MARTIAL (2012 ed.)
following a request from the CA after USS HARRY S. TRUMAN deployed.
   3   We have renumbered the AOEs.
   4 See United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (finding no no error in
the use of the same challenged instruction).
   5   Record at 430.

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KC testified that the appellant approached her, began talking with her, and
then “grabbed [her] belt and pulled [her] toward him, and asked [her] if [she]
would give in yet [sic] to him.”6 AR KC further testified that she was wearing
her coveralls uniform, and that the appellant pulled her towards him by her
belt buckle with “a lot” of force.7 AR KC told the appellant “no,” grabbed his
hand, took it off of her, and walked away.
    Following the presentation of evidence, the civilian defense counsel made
a motion, pursuant to RULE FOR COURTS-MARTIAL (R.C.M.) 917, MANUAL FOR
COURTS-MARTIAL (2012 ed.), for a not guilty finding for Charge II,
Specification 3, arguing that it failed to state an offense.8 The military judge
denied the motion, finding that “person to person physical contact” was not
required and that the offense charged in the specification—“pulling her body
close to his body by her belt buckle”—was sufficient to state an offense.9
   Before closing arguments, and consistent with an earlier MIL. R. EVID.
413 ruling permitting the use of charged sexual misconduct as propensity
evidence for other charged sexual misconduct, the military judge instructed
the members:
             If you determine, by a preponderance of the evidence, that a
         charged offense from Specifications 1 through 6 of Charge II
         occurred, even if you’re not convinced beyond a reasonable
         doubt that the accused is guilty of that offense, you may,
         nonetheless, then consider the evidence of that offense for its
         bearing on any other matter to which it is relevant only in
         relation to Specifications 1 through 6 of Charge II.
            You may consider the evidence of such other charged acts of
         sexual assault for their tendency, if any, to show the accused’s
         propensity or predisposition to engage in abusive sexual
         contact.10


   6  Id. at 480. When asked again what comment the appellant made when he
pulled on her belt, AR KC responded, “[c]an I have her yet,” which she understood to
mean that the appellant “wanted to get with [her].” Id.
   7   Id.
   8  The civilian defense counsel originally styled his motion as a motion for a
“directed verdict,” arguing that because there had been no contact, the motion should
be granted. Id. at 581. The trial counsel clarified, and the defense counsel conceded,
that he understood the argument to really be that the specification did not allege an
offense.
   9   Record at 583.
   10   Id. at 616-17.

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                                      II. DISCUSSION
A. Failure to state an offense
   Charge II, Specification 3, alleged the appellant committed abusive sexual
contact upon AR KC by:
          grabbing her belt buckle with his hand, pulling her body close
          to his body, and stating “are you going to let me in yet,” or
          words to that effect, by causing bodily harm to her, to wit:
          grabbing her belt buckle and pulling her body.11
The appellant avers that because the specification does not “plead with
specificity which body part of [AR KC], either directly or through the clothing,
that [the appellant] had touched[,]” it does not state an offense.12 We
disagree.
    Whether a charge and specification state an offense is a question of law
that we review de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.
2006). A specification states an offense if it alleges, either expressly or by
implication, every element of the offense, so as to give the accused notice and
protection against double jeopardy. Id. (citing United States v. Dear, 40 M.J.
196, 197 (C.M.A. 1994)); see also R.C.M. 307(c)(3)).13 When a specification
does not expressly allege an element of the intended offense, appellate courts
must determine whether the element was necessarily implied. United States
v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011). “[W]hen the charge and
specification are first challenged at trial, we read the wording more narrowly
and will only adopt interpretations that hew closely to the plain text.” Id.
(citation omitted). Although “[t]he interpretation of a specification in such
a manner as to find an element was alleged by necessary implication is
disfavored[,]” the “law still remains that there is no error when a
specification necessarily implies all the elements of an offense.” United
States v. Hunt, 71 M.J. 538, 538-39 (N-M. Ct. Crim. App. 2012) (en banc)
(citing United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012)).




    11   Charge Sheet.
    12   Appellant’s Brief of 7 Oct 2016, at 19 (emphasis in original).
     13 See also United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (finding plead

charges are sufficient if they “‘first, contain[] the elements of the offense charged and
fairly inform[] a defendant of the charge against which he must defend, and, second,
enable[] him to plead an acquittal or conviction in bar of future prosecutions for the
same offense.’”) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974))
(alterations in original) (additional citations omitted).

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                      United States v. Shields, No. 201600133


    The pertinent elements of Article 120(d), UCMJ, abusive sexual contact,
as incorporated from Article 120(b)(1)(B), UCMJ,14 are: (1) that the appellant
committed a sexual contact upon AR KC, and (2) that he did so by causing
bodily harm to AR KC. In pertinent part, sexual contact is:
       (A) touching or causing another person to touch, either directly
       or through the clothing, the genitalia, anus, groin, breast, inner
       thigh, or buttocks of any person, with the intent to abuse,
       humiliate, or degrade any person; or (B) any touching, or
       causing another person to touch, either directly or through the
       clothing, any body part of any person, if done with an intent to
       arouse or gratify the sexual desires of any person[.]
Article 120(g)(2), UCMJ.
    We are satisfied that the specification alleges either expressly or by
implication every element of abusive sexual contact. “Touching” in the
context of Article 120, UCMJ, “means that contact was made either by an
object or by a body part.” United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F.
2015). In Schloff, the Court of Appeals for the Armed Forces (CAAF)
concluded that a medical provider’s use of a stethoscope to perform an
unnecessary breast exam on a patient constituted abusive sexual contact,
despite no actual body-to-body contact. The CAAF recognized that “object-to-
body contact is not excluded from the scope of Article 120(g)(2), UCMJ[.]” Id.
Likewise, the definition of bodily harm, in Article 120(g)(3), UCMJ, provides
clear notice that the touching must be offensive and includes nonconsensual
sexual contact.
     The specification at issue here pleads the offensive acts—grabbing AR
KC’s belt buckle and pulling her body—resulting in bodily harm. The clear
implication of grabbing someone by the belt and pulling them is that the belt
necessarily made contact with the waist, hips, or back. That the specification
does not specifically list the body parts the belt touched when the appellant
grabbed and pulled on the buckle is of no import, because “[a] specification is
sufficient so long as [the elements] may be found by reasonable construction
of other language in the challenged specification.” United States v. Russell, 47
M.J. 412, 413 (C.A.A.F. 1998) (citations and internal quotation marks




    14 Article 120(d), UCMJ, states: “Any person subject to this chapter who commits

or causes sexual contact upon or by another person, if to do so would violate
subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of
abusive sexual contact and shall be punished as a court-martial may direct.”
Consequently, we incorporate the elements of Article 120(b)(1)(B), UCMJ, for this
abusive sexual contact offense.

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                       United States v. Shields, No. 201600133


omitted) (second alteration in original).15 Given a “reasonable construction” of
the specification’s language, and the common understanding of where on the
body, and in what manner, a belt is worn, the appellant had notice of which
body parts he touched. Moreover, the specification specifically pleads
language indicating the appellant’s contact was done with the intent to
arouse or gratify his sexual desires. Therefore, although we read the
specification narrowly, we conclude that the language put the appellant on
notice and protected him from a subsequent prosecution for the same offense.
B. Factual and legal lufficiency
    The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
    The test for factual sufficiency is whether “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325; Art. 66(c), UCMJ), aff’d
on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique
appellate role, we take “a fresh, impartial look at the evidence,” applying
“neither a presumption of innocence nor a presumption of guilt” to “make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
    After carefully reviewing the record of trial and considering all of the
evidence in a light most favorable to the prosecution, we are convinced that a
rational factfinder could have found the appellant committed abusive sexual
contact against AR KC and AN BH. Furthermore, weighing all the evidence
in the record of trial and making allowances for not having personally




    15 In Russell, stating in the specification that an officer “wrongfully” possessed

child pornography was sufficient to imply the element of “knowledge” under 18
U.S.C. § 2252(a). 47 M.J. at 412. See also Crafter, 64 M.J. at 210, 212 (finding that
stating a prison guard accepted money “for” an inmate to meet with his girlfriend
was sufficient to imply the “intent to influence or induce an official act” required for
a bribery specification).

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                         United States v. Shields, No. 201600133


observed the witnesses, we are convinced beyond a reasonable doubt of the
appellant’s guilt.16
C. Propensity instruction
   The appellant faced six specifications of abusive sexual contact against
four different women. In addition to the two specifications involving AN BH
and AR KC, for which he was convicted, the appellant was also charged with
an additional abusive sexual contact specification involving each Sailor
during June 2015, and two abusive sexual contact specifications against two
other Sailors when he was temporarily assigned to USS DWIGHT D.
EISENHOWER (CVN 69) in July 2012.
   Consistent with the state of the law at that time, the military judge found
evidence of each alleged abusive sexual contact admissible as propensity
evidence for the other alleged abusive sexual contacts. Consequently, and
without objection, the military judge instructed the members that if they
found, by a preponderance of the evidence, that any of the charged abusive
sexual contacts occurred, then they could consider that evidence to show the
appellant’s “propensity or predisposition to engage in abusive sexual
contact.”17
     In Hills, the CAAF held that using evidence of charged sexual misconduct
as propensity evidence relevant to other charged sexual misconduct is
inconsistent with an accused’s right to presumed innocence. 75 M.J. at 357.
Applying Hills to this case, it is clear that the military judge erred. Where an
instructional error rises to a constitutional dimension, we review the error to
determine if it was harmless beyond a reasonable doubt. United States v.
Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). A constitutional error is harmless
if “it appears ‘beyond a reasonable doubt if the error complained of did not
contribute to the verdict obtained.’” United States v. McDonald, 57 M.J. 18,
20 (C.A.A.F. 2002) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
In other words, “[t]he government must prove there was no reasonable
possibility that the error contributed to [the] verdict.” United States v. Hukill,
76 M.J. 219, 222 (C.A.A.F. 2017) (citations omitted). That is not to say,
however, that the members must be wholly unaware of the instructions at
issue, but rather that the instructions—later found to be erroneous—were
“unimportant in relation to everything else the [members] considered[.]”
United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (citation and
internal quotation marks omitted).




   16   Clifton, 35 M.J. at 79.
   17   Record at 617.

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                      United States v. Shields, No. 201600133


     The members acquitted the appellant on four of the six abusive sexual
contact specifications, including all those stemming from his 2012
assignment to USS DWIGHT D. EISENHOWER. However, evidence
supporting the two specifications for which he was convicted, while factually
sufficient, was not overwhelming. There was no confession, physical evidence,
or eyewitnesses (other than the two victims), and the defense presented
evidence that the appellant had a friendly, playful relationship with both AN
BH and AR KC.
   In the government’s rebuttal argument, the trial counsel emphasized the
propensity evidence:
         If you believe that any one of these sexual contacts were proved
         more likely than not—so that’s different than beyond a
         reasonable doubt.
             It basically means 51 percent. It’s more likely that it
         happened than didn’t happen. If you think that any one of
         those was proven more likely than not, you can use that in
         deliberating about the other ones, and that means that you can
         look at each abusive sexual contact that we’ve proven more
         likely than not and make a determination about whether or not
         [the appellant] is somebody who’s more likely to touch
         somebody in a sexual way.
            You can use that. You can use the abusive sexual contact
         charges in your deliberations of the other charges. . . . You can
         use that to say that [the appellant] is somebody who touches
         people in a sexual way; is more likely to have done it than
         somebody who isn’t so predisposed. You can do that.18
    Although the members were not convinced beyond a reasonable doubt
that the accused committed each abusive sexual contact charged, there is a
reasonable possibility they “bootstrap[ed] their ultimate determination of the
accused’s guilt” with respect to the offenses against AN BH and AR KC for
which he was convicted, “using the preponderance of the evidence burden of
proof with respect” to the offenses of which he was acquitted. Hills, 75 M.J. at
357. In short, the erroneous instructions may have been important to the
members in reaching their guilty verdicts. So, although we find the
appellant’s convictions for abusive sexual contact to be both legally and
factually sufficient, we are not convinced beyond reasonable doubt that the
instructional error did not contribute to those convictions.



   18   Id. at 661.

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                    United States v. Shields, No. 201600133


                             III. CONCLUSION
   The guilty findings to Charge II, Specifications 2 and 3, and the sentence
are set aside. The remaining findings are affirmed. The record is returned to
the Judge Advocate General for remand to an appropriate convening
authority with a rehearing authorized on Charge II, Specifications 2 and 3,
and the sentence—or on the sentence alone.
   Senior Judge CAMPBELL and Judge FULTON concur.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




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