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

                                UNITED STATES, Appellee
                                             v.
                            Specialist WILLIAM P. MOYNIHAN
                               United States Army, Appellant

                                          ARMY 20130855

                                Headquarters, Fort Campbell
                             Steven E. Walburn, Military Judge
                    Colonel Sebastian A. Edwards, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Julie L. Borchers, JA; Captain
Oluwaseye Awoniyi, JA (on brief); Major Julie L. Borchers, JA; Captain Oluwaseye
Awoniyi, JA (on reply brief)

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith,
JA; Captain Jeremy S. Watford, JA (on brief).

                                         26 November 2018
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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     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

     This case is again before us for review pursuant to Article 66, Uniform Code of
Military Justice (UCMJ), to examine whether the military judge’s propensity
instruction was harmless beyond a reasonable doubt. The Court of Appeals for the
Armed Forces (CAAF) remanded this case to us to consider our prior decision in
light of its decision in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017).
United States v. Moynihan, No. 18-0118/AR, 2018 CAAF LEXIS 127 (C.A.A.F. 6
Mar. 2018). 1 In the end, we affirm some of the findings of guilty, set aside others,
and reassess the sentence.

1
    This case has a long history. Initially, we summarily affirmed appellant’s findings

                                                                                   (continued . . .)
MOYNIHAN—ARMY 20130855

     A panel of members convicted appellant, contrary to his pleas, of rape, lesser-
included offenses of aggravated sexual contact, wrongful sexual contact, and incest
in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920 and 934 (2006 & Supp
III 2010). The adjudged and approved sentence provided for a dishonorable
discharge, confinement for six years, and a reduction to the grade of E-1.

                                  BACKGROUND

       Appellant’s younger sisters, MM, JM, and EC, alleged that appellant engaged
in various sexual encounters with them on multiple occasions between 2009 and
2011.

       Specifications 1 and 2 of Charge I alleged appellant raped MM while at
appellant’s apartment in New York in 2009. These specifications, respectively,
asserted that appellant raped MM by penetrating her vagina with his finger and
penis. MM testified at trial that, while watching a movie, appellant began to tickle
and roughhouse with her. Appellant pulled her to the floor and eventually removed
her pants. Appellant removed his pants and had an erection. He then inserted his
finger into her vagina, and, later, his penis.

         The appellant recounted this event during his recorded interview with the
Army Criminal Investigation Command (CID), which the government admitted at
trial. 2 Appellant stated that he and MM were on the floor wrestling. He got on top
of MM and started to tickle the inside of MM’s thigh and pulling on her underwear.
Appellant stated he liked underwear. According to appellant, when his wife called

(. . . continued)
of guilty and the sentence. United States v. Moynihan, ARMY 20130855 (Army Ct.
Crim. App. 12 Nov. 2015) (summ. disp.). The Court of Appeals for the Armed
Forces (CAAF) set aside our decision and remanded the case back to this court in
order to reconsider our decision in light of United States v. Hills, 75 M.J. 350
(C.A.A.F. 2016). On remand, we conditionally dismissed two specifications based
upon the military judge’s propensity instruction, affirmed the remaining findings of
guilty, and reassessed the sentence. United States v. Moynihan, ARMY 20130855,
2017 CCA LEXIS 743 (Army Ct. Crim. App. 30 Nov. 2017).
2
  In our previous opinion we conditionally dismissed Specification 1 of Charge I
involving MM and upheld the conviction of Specification 5 of Charge I, aggravated
sexual contact with JM. We believed appellant’s statement to CID on this subject
pertained to JM, and was therefore corroborative of JM’s testimony. As government
appellant counsel note, with agreement from appellant, we erred. Appellant’s
statement regarding this incident pertained to MM; CID was not aware of the
allegation involving JM at the time of appellant’s interview.


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MOYNIHAN—ARMY 20130855

them for dinner, he reached back and touched her vagina while attempting to pull up
MM’s shorts. Appellant claimed he wasn’t trying to reach for MM’s vagina when he
pulled on her underwear. However, when asked by CID whether he had any sexual
desire when pulling on MM’s clothes, appellant responded “in part.” Appellant did
not admit to any other sexual activity during this incident.

      The panel convicted appellant of aggravated sexual contact by touching MM’s
vagina, but acquitted him of penile rape.

       Specification 3 of Charge I and Specification 3 of Charge III, respectively
alleging rape and incest, involved an incident with MM that occurred in Moscow,
Tennessee in late 2010. At trial, MM testified that, while at their parents’ house,
appellant backed her into a bathroom and closed the door. He then proceeded to take
her pants down and insert his finger into her vagina, despite MM’s efforts to fight
him off. She stated this lasted around two minutes and ended when somebody
knocked on the bathroom door.

       During his interview with CID, appellant admitted, both orally and in writing,
this incident occurred. Specifically, appellant confessed to inserting the tip of his
finger into MM’s vagina. Appellant verbally related to CID that he put the point of
his index finger into MM’s vagina; in writing, appellant stated “[t]he very tip of my
index finger touch [sic] inside her lip.” According to appellant, this occurred in a
hallway outside the bathroom, after MM showed appellant her panties.

      The panel convicted appellant of both Specification 3 of Charge I and
Specification 3 of Charge III.

       Specification 4 Charge I alleged appellant engaged in an aggravated sexual
contact with EC. EC testified that she and appellant were in the bathroom in their
parent’s house having a discussion. Appellant tried to unhook her bathing suit top.
The conversation turned to a miscarriage she suffered. At some point, appellant
removed his swimming trunks and wore only his underwear. Sitting on the toilet
seat, appellant grabbed her right wrist and pulled her to his lap. EC felt appellant
get an erection. After a brief moment, she got up and appellant proceeded to
comment on her derriere. The incident ended when appellant’s wife approached the
bathroom.

       Appellant told CID that EC sat on his lap, but for the purposes of consoling
her after she discussed the miscarriage. Appellant admitted he got an erection when
she was sitting in his lap.




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      The panel found appellant guilty of the lesser-included offense of wrongful
sexual contact with EC (Specification 4 of Charge I).

       Specifications 5 and 6 of Charge I, respectively, alleged appellant raped JM
by penetrating her vagina with his finger and engaged in aggravated sexual contact
with JM by touching her breast. These incidents occurred in 2010 at their parent’s
home in Tennessee. At trial, JM recanted previous statements that appellant had
touched her breast. The only evidence supporting the rape allegation was JM’s
testimony, although she testified appellant touched her vaginal area over her
clothing. Appellant’s interview with CID did not address the allegations involving
JM. As to Specification 5, the panel found appellant guilty of the lesser-included
offense of aggravated sexual contact with a child. The panel acquitted appellant of
Specification 6.

       At the close of evidence, the military judge gave the panel an instruction
modeled after a standard Military Rule of Evidence (Mil. R. Evid.) 413 and 414
instruction. See Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook [hereinafter Benchbook], 7-13-1 n.4 (1 Jan. 2010). 3 In essence, the
military judge informed the members that, as to each victim, if they found by a
preponderance of evidence that the appellant committed the alleged offense, the
panel could then consider that evidence as to the charges involving the remaining
victims “for their bearing on any matter to which they [were] relevant.” The
military judge also included in the instructions a standard spillover instruction.

        During closing argument, trial counsel, without objection from the defense,
highlighted the propensity instruction and the preponderance standard, especially as
it related to the allegations involving JM.

                             LAW AND DISCUSSION

      It is indisputable the military judge’s instructions to the panel violated
CAAF’s holding in Hills, notwithstanding the standard spillover instruction also
provided. “The juxtaposition of the preponderance of the evidence standard with the
proof beyond a reasonable doubt standard with respect to the elements of the same
offenses would tax the brain of even a trained lawyer.” Hills, 75 M.J. 358.
“[P]ropensity evidence for other charged conduct in the same case is error,
regardless of the forum, the number of victims, or whether the events are



3
  These instructions, for purposes of our review, were the essentially the same
instruction at issue in Hills. 75 M.J. at 356.


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MOYNIHAN—ARMY 20130855

connected.” Guardado, 77 M.J. at 93 (quoting United States v. Hukill, 76 M.J. 219,
222 (C.A.A.F. 2017)).

       Appellant objected to the Hills instruction at trial, thereby preserving the
error for appeal. Accordingly, CAAF has framed the lens through which we must
view this error – that is, whether the erroneous admission of charged misconduct as
propensity evidence to prove other charged conduct was harmless beyond a
reasonable doubt. Under this standard, the government must show there was no
reasonable possibility that the error contributed to appellant’s verdict. Hukill, 76
M.J. at 222 (citations omitted). This requires a determination “whether there is a
reasonable possibility that the [error] complained of might have contributed to the
conviction.” United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (internal
quotation marks omitted) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

       As the CAAF noted in Guardado, “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.’” 77 M.J. at 94 (alteration in original) (quoting
Hills, 75 M.J. at 358).

             To say that an error did not “contribute” to the ensuing
             verdict is not, of course, to say that the [factfinder] was
             totally unaware of the feature of the trial later held to be
             erroneous . . . .

             To say that an error did not contribute to the verdict is,
             rather, to find that error unimportant in relation to
             everything else the [factfinder] considered on the issue in
             question, as revealed in the record.

United States v. Hoffmann, 75 M.J. 120, 128 (C.A.A.F. 2016) (quoting Yates v.
Evatt, 500 U.S. 391, 403) (1991)).

       We can dispense with the finding of guilty to Specification 5 of Charge 1,
aggravated sexual contact with a child, JM. We simply cannot find the propensity
instruction had no impact upon the members’ determination when this conviction
rested solely upon her testimony. Accordingly, we set aside that specification. See
e.g. United States v. Williams, 77 M.J. 459, 464 (C.A.A.F. 2018) (despite the
credible testimony of two victims, the Court noted “[a]bsent any supporting
evidence, we simply cannot be certain that the erroneous propensity instruction did




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MOYNIHAN—ARMY 20130855

not taint the proceedings or otherwise ‘contribute to the defendant’s conviction or
sentence.’”) (quoting Hills, 75 M.J. at 357).

       Although appellant’s conviction of Specification 4 of Charge I, wrongful
sexual contact with EC, was supported by her testimony and a statement by appellant
to CID, we likewise are not confident the propensity instruction did not influence
this verdict. EC portrayed appellant’s actions in the bathroom as forceful and
sexually aggressive on several fronts, all occurring during a conversation concerning
her miscarriage. Appellant’s statement to CID claimed his act of pulling EC to his
lap was simply to console EC concerning the miscarriage. Although appellant
admitted to getting an erection once EC was on his lap, he did not confess to a
sexual intent in his actions. While we are convinced of appellant’s guilt to this
offense, we cannot say that the propensity instruction did not play a role for the
members in reconciling the gap between the discrepancies in appellant’s statement
and EC’s testimony. We set aside this specification as well.

      The findings of guilty involving MM, Specifications 1 and 3 of Charge I,
present a closer call for us.

       As for Specification 1 of Charge I, appellant admitted to CID that while
wrestling with MM at his apartment in New York, he pulled on her underwear and
shorts. During the same encounter, MM kept trying to pull her shirt on. When
pressed by CID whether appellant was pulling on MM’s clothing for his sexual
desires, appellant acknowledged he was by saying “kind of” and “in part.” However,
in viewing this portion of the interview, it is clear to us appellant’s statement was
given in response to a question posed by CID and not a wholehearted
acknowledgement of his sexual intent in touching MM. Again, we ourselves are
convinced of appellant’s guilt, as his claim that touching MM’s vagina was an
accident is not credible when the totality of the evidence to this charge, to include
MM’s testimony, is considered. However, that’s not the question we are asked. Can
we be confident that the improper propensity instruction did not factor into the
member’s deliberations in finding appellant guilty of this offense? No. It follows
that this specification will be set aside.

       Specification 3 of Charge I, in our view, does present a circumstance “where
the evidence is overwhelming, so we can rest assured that an erroneous propensity
instruction did not contribute to the verdict by “tip[ping] the balance in the
members’ ultimate determination.” Guardado, 77 M.J. at 94 (internal quotation
marks omitted) (quoting Hills, 75 M.J. at 358). Although there were some
discrepancies between appellant’s statement to CID and MM’s testimony (e.g. the
penetrative act occurring in the bathroom versus in the hallway near the bathroom),


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MOYNIHAN—ARMY 20130855

we are persuaded beyond a reasonable doubt of appellant’s guilt by the
overwhelming evidence, to wit: MM’s testimony and the appellant’s oral and written
confession that he penetrated MM’s vagina with his index finger. 4 Accordingly, we
rest easily in the conclusion that the propensity instruction did not taint this
conviction.

                                   CONCLUSION

      The findings as to Specifications 1, 4, and 5 of Charge I and the sentence are
SET ASIDE. The remaining findings of guilty are AFFIRMED. A rehearing on
Specifications 1, 4, and 5 of Charge I may be ordered by the same or a different
convening authority.

       The same or a different convening authority may: (1) order a rehearing on
one or more of Specifications 1, 4, and 5 of Charge I; (2) dismiss Specifications 1,
4, and 5 of Charge I and order a rehearing on the sentence only; (3) dismiss
Specifications 1, 4, and 5 of Charge I and reassess the sentence based on the
affirmed findings of guilty, affirming no more than a dishonorable discharge,
confinement for forty-two months, and reduction to E-1. 5




4
  Appellant asserts that his confession was not reliable or voluntary, citing to several
aspects of the CID interview (e.g. the length of the interview, that it was over three
hours into the interview before appellant made an admission, and that appellant went
to mental health at the conclusion of the interview). Having reviewed the interview,
we do not share those concerns.
5
  In reassessing the sentence we are satisfied that the sentence adjudged on only
Specification 3 of Charge I and Specification 3 of Charge III, would have been at
least a dishonorable discharge, confinement for forty-two months, and a reduction to
the grade of E-1. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986);
United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The rape of MM
was easily the most serious offense of which appellant was convicted and carried a
maximum punishment of confinement for life without the possibility of parole. This
reassessment, being both appropriate and purging the record as it stands of error,
does not otherwise limit the sentence that may be adjudged at a rehearing. See
UCMJ, art. 63.


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MOYNIHAN—ARMY 20130855

    Senior Judge WOLFE and Judge FEBBO concur.

                                   FOR THE COURT:
                                   FOR THE COURT:



                                   JOHN P. TAITT
                                   JOHNDeputy
                                   Chief P. TAITT
                                              Clerk of Court
                                   Chief Deputy Clerk of Court




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