            U NITED S TATES AIR F ORCE
           C OURT OF C RIMINAL APPEALS
                       ________________________

                        No. ACM 38851 (rem)
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                     Michael R. LIGHTSEY
         Airman First Class (E-3), U.S. Air Force, Appellant
                       ________________________

                         On Remand from
      the United States Court of Appeals for the Armed Forces
                       Decided 30 April 2018
                       ________________________

Military Judge: Marvin W. Tubbs II.
Approved sentence: Dishonorable discharge, confinement for 30 months,
and reduction to E-1. Sentence adjudged 7 January 2015 by GCM con-
vened at Joint Base San Antonio-Lackland, Texas.
For Appellant: Major Patricia Encarnación Miranda, USAF; Philip D.
Cave, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
                       ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
               United States v. Lightsey, No. ACM 38851 (rem)


HARDING, Senior Judge:
    Appellant was charged with abusive sexual contact of three patients under
his care when he worked as a medical technician at Joint Base San Antonio-
Lackland, Texas. Appellant was convicted, contrary to his pleas, by a military
judge sitting alone as a general court-martial of two specifications of abusive
sexual contact involving a single victim in violation of Article 120, UCMJ, 10
U.S.C. § 920. The military judge acquitted Appellant of the specifications of
abusive sexual contact involving the two other patients. The approved sentence
consisted of a dishonorable discharge, confinement for 30 months, and reduc-
tion to E-1.
    In Appellant’s initial appeal to this court, we affirmed the findings and sen-
tence. United States v. Lightsey, No. ACM 38851, 2017 CCA LEXIS 17 (A.F.
Ct. Crim. App. 10 Jan. 2017) (unpub. op.) (Lightsey I). The United States Court
of Appeals for the Armed Forces (CAAF) granted review on the issue of whether
this court erred when we held: (1) that the military judge’s use of charged con-
duct for propensity purposes was not constitutional error; and (2) even if it was
constitutional error, it was harmless beyond a reasonable doubt. In United
States v. Lightsey, 76 M.J. 439 (C.A.A.F. 2017) (mem.) (Lightsey II), CAAF
granted the petition, set aside our prior decision, and remanded the case to this
court for further consideration in light of United States v. Hukill, 76 M.J. 219
(C.A.A.F. 2017). Following our superior court’s holdings in United States v.
Hills, 75 M.J. 350 (C.A.A.F. 2016), Hukill, and United States v. Guardado, 77
M.J. 90 (C.A.A.F. 2017), we conclude the error is not harmless beyond a rea-
sonable doubt and we thus set aside the convictions and sentence.

                                I. BACKGROUND

     Appellant was a medical technician who worked in the Wilford Hall Post
Anesthesia Care Unit (PACU), Joint Base San Antonio-Lackland, Texas. Cap-
tain (Capt) KH, the victim for the specifications of which Appellant was con-
victed, had dental surgery at Wilford Hall. Capt KH was sedated for the sur-
gery and, after the operation, she awoke in the PACU wearing only a loose-
fitting hospital gown that tied in the back. In order to monitor her recovery
from anesthesia, electrocardiogram (EKG) leads had been placed above and
below her breasts as well as on her hips. Appellant was one of the medical
technicians attending to Capt KH in the PACU.
    Once Capt KH had recovered to a sufficient level of alertness, the attending
staff prepared her for transfer to the same-day surgery ward. Although she
was conscious, Capt KH’s eyes remained closed. As Appellant removed her
EKG leads, he grazed her left breast in a way that Capt KH—who had five
prior dental surgeries for which she was sedated and had EKG leads attached


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                  United States v. Lightsey, No. ACM 38851 (rem)


near her breasts—described as “not normal for when you take a lead off.” Ap-
pellant then grabbed her left breast with his entire hand, pinched her nipple
for a few seconds, and then did the same to her right breast.
    After Capt KH’s left breast was touched, she opened her eyes and saw about
half of Appellant’s face. She described him as a Caucasian male with bushy
eyebrows and brown hair who was wearing royal blue scrubs. He also wore a
name tag with “A1C” rank and the name “Steigh or Stie” on it. Appellant then
slid his two fingers towards Capt KH’s crotch, but she lifted her right side off
the bed to get his hand off her. Appellant then wheeled her out of the PACU
on a gurney to transport her to a room in the same-day surgery ward. While in
the hallway, Appellant stopped the gurney and placed his hand under the blan-
ket and penetrated her labia with one finger.
    When Capt KH arrived at the next room, her husband met her there, but
she did not report the incident to him because she did not know how he would
react. Approximately 20 minutes later, when her husband left for the phar-
macy, Capt KH reported the incident to a civilian nurse and her doctor. Capt
KH was not able to identify Appellant by name other than the partial descrip-
tion of his nametag. Based on the information provided by Capt KH, the nurse
and doctor quickly deduced that Capt KH was describing Appellant. At trial,
other witnesses testified that Appellant was an attending medical technician
for Capt KH. This fact was further confirmed by the PACU logbook and a video
depicting Appellant transferring Capt KH on a gurney from the PACU to the
same-day surgery ward.
    The evidence that Appellant provided care to Capt KH in the PACU was
overwhelming in both quantity and quality and unrebutted at trial. In sharp
contrast, the evidence of the abusive sexual contact of Capt KH’s breasts and
labia by Appellant consisted of the in-court testimony of Capt KH and her re-
port of the sexual abuse within a half hour of its occurrence. Given that the
reported sexual abuse took place as Capt KH was recovering from the effects
of anesthesia and surgery, Appellant challenged both the reliability and accu-
racy of Capt KH’s account.
    Based on Capt KH’s report of sexual abuse, the Air Force Office of Special
Investigations opened an investigation and contacted previous PACU patients
to determine if they had experienced any inappropriate touching while being
cared for in the PACU. The investigation led to the discovery of two additional
patients, both civilians. One, Ms. MF, alleged Appellant caused her hand to
touch his penis over his clothing and the other, Ms. DM, alleged Appellant
grabbed her breasts while taking off her EKG leads. 1


1   Appellant was acquitted of the offenses involving Ms. MF and Ms. DM.


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                United States v. Lightsey, No. ACM 38851 (rem)


    Prior to closing arguments in the judge-alone trial, the Defense moved un-
der Military Rule of Evidence 413 to preclude the Government from arguing
the evidence of one charged offense to prove another charged offense. When
trial counsel was asked if he planned to make a propensity argument, he indi-
cated he would.
        So, under 413, I mean obviously what the rule is for is that [Ap-
        pellant] has a propensity to sexually assault or to grab the
        [breasts] or touch the labia of women under his care in the
        PACU. That would be the first and foremost goal of arguing this
        and that fits squarely within the rule is he has a propensity to
        do this. Now, the other things that we’re going to offer it for, . . .
        the propensity to assault people when they are in the PACU, but
        it’s also to show the type of victim that he does go for.
    The military judge, without benefit of the CAAF’s decisions in Hills and
Hukill, analyzed all of the proffered evidence and concluded that a “jury could
find by a preponderance of the evidence that the offenses occurred.” After em-
ploying the Mil. R. Evid. 403 balancing test, he ultimately ruled that all evi-
dence that had been challenged under Mil. R. Evid. 413 was admissible for
“general propensity purposes and permissible for the trial counsel to argue as
such.” 2
   Near the beginning of trial counsel’s closing argument, he asserted Appel-
lant had a propensity to commit the charged offenses. When making this state-
ment, trial counsel used a presentation slide including the words “Three in-
stances = Propensity” projected on a screen in the courtroom.
        Let’s talk about something, what is this notion of propensity?
        What does that mean? The tendency or natural inclination to
        behave a certain way, which is not always negative, right, one
        can have a proclivity, a propensity to do something good. But,
        the issue here, Your Honor, is that’s not what we have. This ac-
        cused has a propensity to satisfy his own personal perverted sex-
        ual desires by robbing his victims of their dignity and intruding
        on their personal privacy. This goes to the core of who he is and
        what he’s made of.




2 We note that the Government did not articulate limited non-propensity purposes for
the evidence of the other charged offenses to prove identity, absence of mistake, or
intent under Mil. R. Evid. 404(b), nor did the military judge rule or otherwise indicate
on the record that he would consider the evidence for those or other limited non-pro-
pensity purposes.


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               United States v. Lightsey, No. ACM 38851 (rem)


       Now, I discussed a moment ago, not one, not two, but three in-
       stances. One would be just chance, all right. Two, may be coinci-
       dence. But three, that is a pattern. That is propensity.
Trial counsel returned to the propensity argument as he addressed each of the
charged offenses and again at the conclusion of his argument.
       And, notwithstanding that, if we are talking about this propen-
       sity, this pattern, it is completely consistent with what you’ve
       heard throughout this case, this sort of perverted sexual desire
       with women who can’t react. Offensive touching, however slight,
       it is the same for essentially all of these specifications, Your
       Honor. But, it is offensive. Captain [KH] did not want this touch-
       ing either, and there is no medical reason for that touch to be
       there. There is just no excuse.
       This is about a picture, a three-dimensional picture of criminal
       propensity to do the same thing in the same way to women under
       his care. This picture is clear. This accused sexually assaulted
       these three women and is guilty of the charge and all four spec-
       ifications.

                                II. DISCUSSION

    In Lightsey I, unpub. op at *15, we concluded that the military judge com-
mitted evidentiary error by considering evidence of charged offenses for pro-
pensity. However, in reliance on the presumption that military judges know
the law and follow it, 3 we found no reason to believe that the military judge
misapplied either the presumption of innocence or the burden of proof in as-
sessing Appellant’s guilt. We thus assessed non-constitutional evidentiary er-
ror. We found the “case for the allegations involving Capt [KH] was very
strong, especially considering the victim’s contemporaneous report of abuse.”
Lightsey I, unpub. op at *13. Further, noting that the military judge acquitted
Appellant of two of the specifications and acknowledged a clear understanding
of spillover and its associated principles, we concluded the “propensity evi-
dence was of marginal value and that the error did not have a substantial in-
fluence on the findings.” Id. at *15. Additionally we stated “even if we were to
apply the stricter constitutional standard in the case, we would find the error
harmless beyond a reasonable doubt.” Id.
   The use of charged-conduct evidence as Mil. R. Evid. 413 propensity evi-
dence for other charged offenses creates constitutional concerns regardless of

3United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997) (citing United States v.
Prevatte, 40 M.J. 396, 398 (C.M.A. 1994)).


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               United States v. Lightsey, No. ACM 38851 (rem)


the forum. Hukill, 76 M.J. at 222. As such, the erroneous use of evidence in
this case must be tested for prejudice under the standard of harmless beyond
a reasonable doubt. Id. The error is harmless beyond a reasonable doubt when
the error did not contribute to the appellant’s conviction or sentence. Hills, 75
M.J. at 357 (citation omitted). An error is not harmless beyond a reasonable
doubt when there is a reasonable possibility that the error might have contrib-
uted to the conviction. Id. (citation omitted).
    “There are circumstances where the evidence is overwhelming, so we can
rest assured that an erroneous propensity instruction did not contribute to the
verdict by “tipp[ing] the balance in the members’ ultimate determination.”
Guardado, 77 M.J. at 94 (alteration in original) (quoting Hills, 75 M.J. at 358).
In Guardado, the CAAF was “not convinced that the erroneous propensity in-
struction played no role” in the conviction. Id. at 95. The appellant in Guardado
was convicted, inter alia, of aggravated sexual contact of a child (his daughter),
but acquitted of wrongful sexual contact with an adult friend and the rape of a
fellow soldier. The panel had been instructed by the military judge that they
could use evidence of each offense to prove propensity to commit the other of-
fenses. Even accepting the lower court’s finding that the child victim’s testi-
mony was credible, the CAAF found that the lack of “supporting evidence”
made it difficult to be certain the conviction rested on the strength of the evi-
dence alone. Id at 94; cf. United States v. Moore, ___ M.J. ___, No. 17-0323/AR.,
2018 CAAF LEXIS 63 (C.A.A.F. 10 Jan. 2018) (mem.) (in Government’s case,
which included compelling victim and eyewitness testimony, the evidence of
Appellant’s guilt was overwhelming); United States v. Luna, No. 17-0495/MC.,
2018 CAAF LEXIS 65 (C.A.A.F. 10 Jan. 2018) (mem.) (evidence overwhelming
where victim’s testimony was corroborated by witness testimony and incrimi-
nating text messages written by Appellant that implied he was at fault and
could be jailed for his actions).
   Additionally in Guardado, the CAAF explicitly rejected the argument that
an acquittal of a charged offense necessarily means the evidence of that offense
was not used for propensity.
       It simply does not follow that because an individual was acquit-
       ted of a specification that evidence of that specification was not
       used as improper propensity evidence and therefore had no ef-
       fect on the verdict. It is conceivable that the panel found that
       Appellant committed the other three charged offenses by a pre-
       ponderance of the evidence but not beyond a reasonable doubt.
       While not persuaded of Appellant’s guilt to the point of convict-
       ing him, members could still have believed that it was more
       likely than not that Appellant sexually assaulted SW and CH



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                 United States v. Lightsey, No. ACM 38851 (rem)


       and used that evidence for propensity purposes, thus violating
       Appellant’s presumption of innocence.
77 M.J. at 94.
    The holdings in Hukill and Guardado compel us to test Appellant’s case for
constitutional error—whether the error was harmless beyond a reasonable
doubt—and to do so regardless of the forum and without considering a partial
acquittal as mitigating against the possible contribution of propensity evidence
to the findings of guilty. In doing so we must also consider, especially in light
of the trial counsel’s repeated reliance during closing argument on Appellant’s
propensity to commit the offenses, whether Capt KH’s testimony and prior
statement, however credible, constituted evidence so overwhelming that it re-
moved any reasonable possibility that the error contributed to the conviction.
It did not. Even though we find Capt KH credible, her account about the sexual
abuse described in her testimony and report lacked supporting evidence of the
criminal sexual contact. Recognizing that the evidence of the other charged
offenses provided independent corroboration of Capt KH’s account and ready-
made rebuttal to Appellant’s claim that she imagined the sexual abuse, we are
“not convinced that the erroneous propensity instruction played no role in the
conviction.” Guardado, 77 M.J. at 95. In such a case, we cannot be confident
there is “no reasonable possibility” that propensity contributed to the verdict.
Hukill, 76 M.J. at 222.

                               III. CONCLUSION

   The findings of guilt and the sentence are SET ASIDE. A rehearing is au-
thorized. Article 66(c), UCMJ, 10 U.S.C. § 866(c).


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




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