       This opinion is subject to revision before publication




         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
               Gene N. WILLIAMS, Sergeant
                United States Army, Appellant
                          No. 17-0285
                    Crim. App. No. 20130582
        Argued January 9, 2018—Decided June 27, 2018
         Military Judges: Stephen Castlen, Tara Osborn,
                      and Karin Tackaberry

   For Appellant: Lieutenant Colonel Christopher D. Carrier
   (argued); Major Brendan R. Cronin and Captain Cody
   Cheek (on brief) ; Frank J. Spinner, Esq.
   For Appellee: Captain Allison Rowley (argued); Colonel
   Tania M. Martin, Lieutenant Colonel Eric K. Stafford, and
   Major Michael E. Korte (on brief); Captain Austin L. Fen-
   wick and Captain Tara E. O’Brien Goble.
   Chief Judge STUCKY delivered the opinion of the
   Court, in which Judges RYAN, OHLSON, SPARKS, and
   MAGGS, joined.
                      _______________

   Chief Judge STUCKY delivered the opinion of the
Court.1

   In United States v. Hills, this Court unanimously held
that the use of charged offenses as propensity evidence un-
der Military Rule of Evidence (M.R.E.) 413 prejudiced an ac-
cused’s constitutional right to be presumed innocent until
proven guilty. 75 M.J. 350, 356 (C.A.A.F. 2016). We further
held that an accompanying propensity instruction was like-
wise constitutional error. Id. at 357. Although our decision
was not ambiguous, this is the third case in which we have

   1  This case was heard prior to Judge Maggs’s confirmation and
appointment to this Court. Judge Maggs was substituted for Sen-
ior Judge Cox on April 10, 2018.
           United States v. Williams, No. 17-0285/AR
                     Opinion of the Court

had to correct a Court of Criminal Appeals’ judgment on this
issue. See United States v. Hukill, 76 M.J. 219 (C.A.A.F.
2017); United States v. Guardado, 77 M.J. 90 (C.A.A.F.
2017).
    In the instant case, the military judge issued a propensi-
ty instruction that clearly violated our holding in Hills. On
remand, the United States Army Court of Criminal Appeals
(CCA) deemed such error to be harmless, and concluded that
an exception to Hills exists when the propensity instruction
stemmed from an offense that had been independently prov-
en beyond a reasonable doubt and “flowed in only one direc-
tion.” United States v. Williams, No. ACM 20130582, 2017
CCA LEXIS 24, at *2–3, 2017 WL 218835, at *1–2 (A. Ct.
Crim. App. Jan. 12, 2017) (unpublished). We disagree, and
hold that no such exception exists.
                   I. Procedural History

    A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one
specification of rape on divers occasions, four specifications
of forcible sodomy, and five specifications of assault con-
summated by a battery, in violation of Articles 120, 125, and
128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920, 925, and 928 (2000, 2006). The panel sentenced Ap-
pellant to a dishonorable discharge, confinement for twenty
years, forfeiture of all pay and allowances, and reduction to
the lowest enlisted grade. The convening authority approved
only so much of the sentence as provided for a bad-conduct
discharge, confinement for twenty years, forfeiture of all pay
and allowances, and reduction to the grade of E-1. The CCA
affirmed the findings of guilty and the approved sentence.
United States v. Williams, 75 M.J. 621, 630 (A. Ct. Crim.
App. 2016).
   Appellant filed a Petition for Grant of Review, which this
Court granted. United States v. Williams, 75 M.J. 376
(C.A.A.F. 2016) (order granting review). We subsequently
summarily reversed and remanded Appellant’s case for re-
consideration in light of Hills. United States v. Williams, 75
M.J. 430 (C.A.A.F. 2016).
   On remand, the CCA again affirmed the findings of
guilty and the sentence, holding that although the military


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            United States v. Williams, No. 17-0285/AR
                      Opinion of the Court

judge issued an improper propensity instruction, such error
was harmless beyond a reasonable doubt. 2017 CCA LEXIS
24, at *4, 2017 WL 218835, at *2.
                        II. Background

    Appellant married TW in May 2000. During trial, TW
testified that while they were married, Appellant raped her
on divers occasions between late 2000 and early 2003. TW
claimed that Appellant forced her to have nonconsensual sex
“[q]uite often, three or four times a week, sometimes
every[ ]day of the week” over a 108-week period. TW’s rape
allegations formed the basis of Charge I.2
    After Appellant and TW divorced in 2004, Appellant
married SW. Appellant and SW were married for nearly
eight years, during which time Appellant allegedly forcibly
anally sodomized her and physically assaulted her multiple
times. SW testified that on one occasion in November 2007,
she escaped from Appellant’s grasp while he was anally sod-
omizing her. She sought safety in their children’s bedroom
and attempted to barricade the door, but Appellant kicked in
the door, causing it to come crashing down on her head.
Scared for her life and bleeding from her head, SW ran to a
neighbor’s house for help. That neighbor called 911, and an
ambulance transported SW to the hospital. Photographs
taken that night document the broken door and SW’s inju-
ries from the assault. Two days later, Appellant issued a
sworn statement that, aside from the sodomy, largely cor-
roborated SW’s version of events from that night.
    After several years of marriage, SW disclosed the sexual
abuse to a neighbor as well as a police academy trainee she
met through an acquaintance. In March 2011, SW also re-
ported the abuse to the Sanford Police Department. SW’s
allegations of forcible sodomy and physical abuse formed the
bases of Charges II and III, respectively.


   2  Trial counsel moved for, and the military judge granted,
dismissal of three specifications after arraignment but prior to
Appellant’s plea. Given that the parties, the military judge, and
even the CCA referred to the Charges and Specifications as they
appear on the “flyer” provided to the panel, we do as well to pre-
vent further confusion.



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              United States v. Williams, No. 17-0285/AR
                        Opinion of the Court

    Before trial, the Government notified Appellant of its in-
tent to offer evidence of the rapes of TW to show Appellant’s
propensity to anally sodomize SW and vice versa. The de-
fense made a motion in limine, asking the military judge to
preclude the Government from using this evidence for pro-
pensity purposes. Because any evidence that was the subject
of the motion was also evidence of a charged offense, the mil-
itary judge recognized that the proper question was not
whether the evidence was admissible, but rather what ac-
companying instructions the court should give. Accordingly,
the military judge questioned the ripeness of the issue, sig-
naled that the proper time to address the issue would be
when discussing panel instructions, and did not then explic-
itly rule on the motion.3
    After the close of evidence, the military judge held an Ar-
ticle 39(a) session to discuss instructions. He informed the
parties he intended to give a propensity instruction, and
provided an opportunity to object and request additional in-
structions. The defense did not object to the military judge’s
intent to instruct the members on propensity evidence. The
military judge then provided the parties with a written draft
copy of his instructions, (which included an M.R.E. 413 pro-
pensity instruction. Again, even though the military judge
invited comments, defense counsel raised no objection to the
proposed propensity instruction, although he did to others.
   The military judge then instructed the panel that the “on
divers occasions” rape allegations by TW (Charge I) could be
considered as propensity evidence in proving the sodomy al-
legations by SW (Charge II). Specifically, he instructed the
members that:
         Evidence that the accused committed rape on di-
         vers occasions alleged in The Specification of
         Charge I may have no bearing on your delibera-
         tions in relation to any of the allegations of forcible
         sodomy in the Specifications of Charge II unless
         you first determine by a preponderance of the evi-
         dence that it is more likely than not that the of-
         fenses alleged in The Specification of Charge I oc-
         curred. If you determine, by a preponderance of the
         evidence that the offenses alleged in The Specifica-

   3   A different military judge presided at trial.



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           United States v. Williams, No. 17-0285/AR
                     Opinion of the Court

      tion of Charge I occurred, even if you are not con-
      vinced beyond a reasonable doubt that the accused
      is guilty of those offenses, you may nonetheless
      then consider the evidence of those offenses, for its
      bearing on any matter to which it is relevant in re-
      lation to the forcible sodomys [sic] alleged in
      Charge II. You may also consider the evidence of
      such other acts of sexual assaults for its tendency, if
      any, to show the accused’s propensity or predisposi-
      tion to engage in sexual assault.
(Emphasis added.) Defense counsel made no objection to the
instruction as given. While the military judge did not explic-
itly instruct the panel that they could use evidence from
Charge II (sodomy) to prove Appellant’s propensity to com-
mit Charge I (rape), his M.R.E. 413 instruction did allow
members to take into account evidence of other acts of sexu-
al assaults for propensity purposes.
     The panel members ultimately convicted Appellant of all
of the offenses contained within Charge I and Charge II, as
well as the majority of the specifications alleged in Charge
III.
                   III. Law and Discussion

    “Where [constitutional] instructional error is preserved,
we test for harmlessness.” United States v. Davis, 76 M.J.
224, 229 (C.A.A.F. 2017). “However, if the accused fails to
preserve the instructional error by an adequate objection or
request, we test for plain error.” Id.; see Guardado, 77 M.J.
at 93.
    “An accused cannot always rely on a motion in limine to
preserve an issue for appellate review absent further
objection.” United States v. Dollente, 45 M.J. 234, 240
(C.A.A.F. 1996). As Appellant’s motion in limine was not yet
ripe and he did not renew his objection when afforded the
opportunity to do so, we review for plain error. See
Guardado, 77 M.J. at 93. Under this Court’s plain error
jurisprudence, to establish plain error an appellant must
demonstrate (1) error, (2) that is clear or obvious at the time
of appeal, and (3) prejudicial. Id.
   In Hills, we held that using charged misconduct as
M.R.E. 413 evidence was an abuse of discretion and that the
military judge’s accompanying instructions “constituted con-


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           United States v. Williams, No. 17-0285/AR
                     Opinion of the Court

stitutional error that was not harmless beyond a reasonable
doubt.” Hills, 75 M.J. at 353. In the wake of Hills, our lower
courts have attempted to impermissibly narrow that holding
by carving out exceptions that run contrary to an accused’s
presumption of innocence. Consequently, in Hukill, we clari-
fied that the prohibition against using charged conduct as
“propensity evidence for other charged conduct in the same
case is error, regardless of the forum, the number of victims,
or whether the events are connected.” 76 M.J. at 222. Simi-
larly, in Guardado, we declined the CCA’s invitation to con-
firm that a Hills error is necessarily rendered harmless by
the acquittal of a specification used for propensity purposes.
77 M.J. at 94.
    In this case, the military judge’s instruction indisputably
ran contrary to our holding in Hills. After determining that
the acts alleged in the Specification of Charge I fell within
the ambit of M.R.E. 413, the military judge instructed the
panel that if they determined by a preponderance of the evi-
dence that Appellant had committed the offenses alleged in
the Specification of Charge I, they could use that finding “on
any matter to which it is relevant in relation to the forcible
sodomy alleged in Charge II,” including Appellant’s “propen-
sity or predisposition to engage in sexual assault.” The mili-
tary judge’s instruction further allowed panel members to
“also consider the evidence of such other acts of sexual as-
sault for its tendency, if any, to show the accused’s propensi-
ty or predisposition to engage in sexual assault.” (Emphasis
added.) Given our holding in Hills, such instruction, alt-
hough not error at the time of trial, is undeniably clear and
obvious error at the time of appeal.
    Having found error, we must determine whether such er-
ror prejudiced Appellant’s substantial rights.
   First, with respect to the offense alleged in Charge I, we
are not convinced that the erroneous propensity instruction
played no role in Appellant’s conviction. Here, the CCA
reasoned that as “the propensity instruction flowed in only
one direction,” the members convicted Appellant of the
Specification of Charge I without reliance on propensity
evidence and thus “the Specification of Charge I is entirely
unaffected by Hills.” 2017 CCA LEXIS 24, at *2–3, 2017 WL
218835, at *1. We disagree. This characterization distorts


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           United States v. Williams, No. 17-0285/AR
                     Opinion of the Court

the military judge’s instruction, and conveniently overlooks
the portion of the instruction that explicitly allowed panel
members to “also consider the evidence of such other acts of
sexual assault” for propensity purposes. (Emphasis added.)
Under a plain reading of the entirety of the military judge’s
instruction, we conclude that the panel members could have
reasonably interpreted such guidance to allow them to
consider evidence of Charge II for its bearing in relation to
Charge I. Accordingly, we hold that Appellant’s conviction of
the Specification of Charge I was not immune from the
erroneous propensity instruction that tainted the
specifications of Charge II.
    Second, we reject the CCA’s conclusion that Appellant’s
case falls within an exception to Hills. Relying on our dis-
cussion in Hills concerning People v. Villatoro, 281 P.3d 390
(Cal. 2012), the CCA concluded that “an exception specifical-
ly anticipated by the CAAF” exists when an offense is first
proven beyond a reasonable doubt and that Appellant’s case
falls under such an exception. 2017 CCA LEXIS 24, at *3–4,
2017 WL 218835, at *1–2. This conclusion significantly mis-
construes our discussion of Villatoro. In Villatoro, a Califor-
nia judge admitted five instances of rape of five different vic-
tims as propensity evidence. Villatoro, 281 P.3d at 394–95.
However, “ ‘[T]he instruction [in Villatoro] clearly told the
jury that all offenses must be proven beyond a reasonable
doubt, even those used to draw an inference of propensity.
Thus, there was no risk the jury would apply an impermis-
sibly low standard of proof.’ ” Hills, 75 M.J. at 357 (first al-
teration in original) (quoting Villatoro, 281 P.3d at 400).
    Thus, unlike the case at hand, Villatoro “turned in part
on the fact that ‘the modified instruction did not provide
that the charged offenses used to prove propensity must be
proven by a preponderance of the evidence.’ ” Id. (citation
omitted). In contrast, here the military judge gave a propen-
sity instruction that explicitly referred to the preponderance
of the evidence standard. Villatoro is further distinguishable
for, as we noted in Hills, “the California Supreme Court did
not consider the issue of the accused’s right to be presumed
innocent of all charges.” 75 M.J. at 357.
   Despite these differences, the CCA relied on our discus-
sion of Villatoro to conclude that as the evidence used for


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           United States v. Williams, No. 17-0285/AR
                     Opinion of the Court

propensity purposes seemingly “stemmed from a specifica-
tion that had been independently proven beyond a reasona-
ble doubt,” the error was inherently harmless. 2017 CCA
LEXIS 24, at *3–4, 2017 WL 218835, at *1–2.
    This reasoning is flawed for two reasons. First, for the
reasons outlined above, we dispute the conclusion that the
Specification of Charge I was necessarily free from taint. Se-
cond, the CCA’s logic assumes we know the order in which
the panel voted on the charged offenses. However, a panel’s
deliberations are inherently mysterious, and we are not in a
position to know how members reach their decisions. See
United States v. Davis, 2 C.M.A. 505, 511, 10 C.M.R. 3, 9
(1953) (acknowledging that the Court “cannot know [what]
provided the basis for [a] conviction”). This is especially true
where, as in this case, the military judge advised the mem-
bers that “[t]he order in which the specifications are to be
voted on should be determined by the president subject to
objection by the majority of the members.” In accordance
with the military judge’s instructions, nothing barred the
members from first voting on the specifications of Charge II,
relying in part on erroneous propensity evidence, before
turning their attention to the Specification of Charge I. Con-
sequently, under the facts of this case, we cannot deny that
the military judge’s “muddled … instructions [potentially]
implicate[d] ‘fundamental conceptions of justice’ under the
Due Process Clause” and heightened “the risk that the
members would apply an impermissibly low standard of
proof.” Hills, 75 M.J. at 357 (citation omitted).
    While “[t]here 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 determina-
tion,’ ” Guardado, 77 M.J. at 94 (alteration in original) (quot-
ing Hills, 75 M.J. at 358), this, with one notable exception, is
not such a case. While we adopt the CCA’s finding that both
TW and SW provided credible testimony concerning the
abuse they each suffered at the hands of Appellant, their ac-
counts were largely uncorroborated by eyewitness testimony




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           United States v. Williams, No. 17-0285/AR
                     Opinion of the Court

or any conclusive documentary or physical evidence.4 Absent
any supporting evidence, we simply cannot be certain that
the erroneous propensity instruction did not taint the pro-
ceedings or otherwise “contribute to the defendant’s convic-
tion or sentence.” Hills, 75 M.J. at 357 (internal quotation
marks omitted) (citation omitted). Accordingly, we hold that
the military judge’s M.R.E. 413 instruction was not harm-
less with respect to the Specification of Charge I or Specifi-
cations 2, 3, and 4 of Charge II.
    However, Specification 1 of Charge II is not plagued by
the same deficiency, at least in part. With respect to the
night SW ended up in the hospital, the Government intro-
duced photographs of the door Appellant kicked in on SW’s
head as well as photographs of SW’s wounds. A neighbor
and a police officer bore witness to her distraught demeanor
and injuries. Moreover, Appellant issued a sworn statement
that, though silent on the issue of sodomy, largely confirmed
and supported SW’s story. With the benefit of this corrobo-
rating evidence, we are confident that Appellant committed
sodomy with SW by force and without her consent that even-
ing. Accordingly, we affirm Appellant’s conviction on Specifi-
cation 1 of Charge II, by excepting “on divers occasions be-
tween on or about 21 September 2007 and on or about 7
April 2008” and substituting therefor, “on or about 21 No-
vember 2007.”
                        IV. Judgment

    The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed in part and reversed in part. The
findings as to the Specification of Charge I and Specifica-
tions 2, 3, and 4 of Charge II are set aside. The sentence is
set aside. We affirm Appellant’s conviction on Specification 1
of Charge II, by excepting “on divers occasions between on or
about 21 September 2007 and on or about 7 April 2008” and
substituting therefor, “on or about 21 November 2007.” As
Appellant has not challenged his convictions for the assaults
consummated by a battery he perpetrated against SW, we

   4  While SW’s account was bolstered by evidence of prior con-
sistent statements she made to neighbors, acquaintances, and po-
lice officers, these witnesses had no firsthand knowledge of the
abuse and could only testify as to what SW told them.



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            United States v. Williams, No. 17-0285/AR
                      Opinion of the Court

also affirm the remaining findings. The record is returned to
the Judge Advocate General of the Army with a rehearing as
to the Specification of Charge I authorized to the extent that
the charge and specification are not barred by the statute of
limitations. See United States v. Mangahas, 77 M.J. 220
(C.A.A.F. 2018); United States v. Grimes, 142 F.3d 1342,
1351 (11th Cir. 1998) (recognizing that the federal circuits
are in agreement “that extending a limitations period before
the prosecution is barred does not violate the Ex Post Facto
Clause”). But see United States v. Lopez de Victoria, 66 M.J.
67, 73–74 (C.A.A.F. 2008) (holding that the 2003 amend-
ment to Article 43, UCMJ, 10 U.S.C. § 843, did not retroac-
tively extend the statute of limitations due to statutory con-
struction).5 Rehearing is also authorized on Specifications 2,
3, and 4 of Charge II, and on the sentence.




   5  Appellant’s motion to dismiss the Specification of Charge I
on a statute of limitations ground in light of Mangahas, 77 M.J.
220, is denied without prejudice. The parties may address any po-
tential retroactivity issues concerning the statute of limitations on
remand or at the rehearing.



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