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

                             UNITED STATES, Appellee
                                          v.
                     Private First Class TERRANCE L. GADDY
                           United States Army, Appellant

                                    ARMY 20150227

                 Headquarters, 21st Theater Sustainment Command
                       David H. Robertson, Military Judge
                  Colonel Jonathan A. Kent, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles Lozano, JA; Major Andres Vazquez, Jr.,
JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Cormac M. Smith, JA;
Captain Cassandra M. Resposo, JA (on brief).


                                    20 March 2017
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       Accused of multiple instances of sexual crimes against four different victims,
appellant entered mixed pleas. 1 He pleaded guilty to seven specifications of sexual
assault and one specification of indecent exposure. Contrary to his pleas, the
military judge convicted appellant of rape. 2 On appeal we address two issues.



1
  The sexual assault and rape specifications each alleged a violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The
indecent exposure specification alleged a violation of Article 120c, UCMJ.
2
 The military judge sentenced appellant to a dishonorable discharge and
confinement for fourteen years. Pursuant to a pretrial agreement, the convening
authority approved the punitive discharge and eight years of confinement.
GADDY—ARMY 20150227

       First, we decide whether our superior court’s decision in United States v.
Hills, 74 M.J. 350 (C.A.A.F. 2016), prohibits a fact-finder from considering
propensity evidence stemming from charged offenses to which the accused pleaded
guilty. We determine that Hills does not prohibit this use of propensity evidence.

       Second, we address appellant’s claim that the military judge erred when he
excluded, pursuant to Military Rule of Evidence [hereinafter Mil. R. Evid.] 412,
evidence that appellant and the victim of the rape offense were dancing
provocatively immediately prior to the assault. We agree with appellant that the
military judge erred, but find the error to be harmless.

                                LAW AND DISCUSSION

              A. United States v. Hills and Guilty Pleas to Charged Offenses

      We first address an issue raised personally by appellant. 3 See United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellant, asserts that the military judge
erred when he considered propensity evidence stemming from charged offenses in
determining whether he was guilty of rape.

      Prior to trial, the government filed a motion under Mil. R. Evid. 413 to admit
appellant’s propensity to commit sexual misconduct. The motion stated:

               Although MRE 413 is most commonly applied to the
               introduction of uncharged sexual misconduct to show a
               propensity for charged sexual misconduct, the Rule also
               applies where all alleged sexual misconduct has been
               charged. ‘The Government may not introduce similarities
               between a charged offense and prior conduct, whether
               charged or uncharged, to show modus operandi or
               propensity without using a specific exception within our
               rules of evidence, such as MRE 404 or 413.’ United
               States v. Burton, 67 M.J. 150 152 (C.A.A.F. 2008)
               (emphasis added).

Relying on our superior court’s decision in Burton, the military judge granted the
government’s motion. At trial, during the closing argument, the trial counsel
specifically argued appellant’s predisposition to sexually assault women:

               The law says, you can look at the fact that he sexually
               assaulted these three other Soldiers and use that when
               deciding whether or not he’s raped [BN]. You can consider

3
    The other matters personally raised by appellant merit neither discussion nor relief.

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GADDY—ARMY 20150227

             the crime against [R], the crimes against [G] and the crime
             against [K] as propensity evidence. In fact, as this court is
             well aware, you may consider the evidence of the accused’s
             other sexual offenses for their tendency to show
             propensity, predisposition, as well as its tendency to show
             his common plan: new Soldiers to the unit, people he’s just
             met, and design; that he intended to rape Private [BN] and,
             as evidence of his motive to commit these offenses.

       We find no error in either the trial counsel’s argument or the military judge’s
determination that propensity evidence was admissible in this case. In Hills, the
Court of Appeals for the Armed Forced (CAAF) specifically exempted from their
decision cases where “an accused has pleaded guilty or been found guilty” and that
such evidence “can be admitted and considered under Mil. R. Evid. 413 to show
propensity to commit the sexual assaults to which he pleaded not guilty. . . .” 75
M.J. at 354 (citing United States v. Wright, 53 M.J. 476, 479 (C.A.A.F. 2000)).
Thus, we find that Hills did not prohibit the propensity evidence admitted in this
case.

                    B. The Military Rule of Evidence 412 Ruling

       Before trial, appellant filed a motion to admit evidence pursuant to Mil. R.
Evid. 412. Specifically, appellant wanted to introduce evidence that, in the moments
immediately preceding the alleged assault, appellant and Private BN had engaged in
highly sexualized dancing that “simulated sex.” At the closed Mil. R. Evid. 412
hearing, the defense called two witnesses to testify about what they had seen. 4
The military judge ruled that the “defense is prohibited from soliciting testimony
about [PFC BN] dancing with the accused in order to show her consent to sexual
activity or that the accused had a mistaken belief that she was consenting to sexual
activity.” The military judge did not otherwise explain his ruling.

       On appeal, appellant asserts that evidence of the highly sexualized dancing
was constitutionally necessary to show his mistake of fact as to consent. This
argument was not well developed at trial. To place a mistake of fact as to consent
defense at issue, there must be some evidence appellant had a subjective belief the
victim was consenting and such a belief was reasonable. An important purpose of
the requirement for Mil. R. Evid. 412 motions practice, to include closed hearings, is

4
  Not surprisingly, the government not only disagreed that the evidence was
admissible, but also disagreed that the sexualized dancing had taken place. At trial,
for example, the government elicited that appellant had made a bet with one of the
witnesses that he could have sex with the victim whom he had just met. Our job on
appeal does not require us to resolve this factual dispute for purposes of evaluating
the military judge’s Mil. R. Evid. 412 ruling.

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GADDY—ARMY 20150227

to allow the offering party the opportunity to fully explain their theory of
admissibility.

       Nonetheless, we find the military judge’s decision to exclude evidence of
sexualized dancing to have been error because we find this evidence to fall outside
of Mil. R. Evid. 412. Mil. R. Evid. 412(a)(1) prohibits evidence that “any alleged
victim engaged in other sexual behavior.” When conduct is inexorably intertwined
with the alleged offense itself, it is not “other sexual behavior,” but rather becomes
part of the res gestae of the offense. That is, the testimony “was admissible as part
of the same transaction as the assault.” United States v. Peel, 29 M.J. 235, 239
(CAAF 1989).

       Here the defense wanted to introduce evidence that the victim and appellant
were “grinding” on each other in the moments before (in the defense theory) they
engaged in consensual sexual intercourse. After the military judge’s ruling, the
defense had to explain the victim and appellant had engaged in consensual sexual
intercourse without being able to explain what, in the defense theory, had led up to
this encounter. In other words, deprived of this evidence, the defense case was
forced to start mid-sentence. The defense was unable to position their evidence to
comport with normal human experience. Accordingly, we do not see evidence of
sexual behavior that is part of the res gestae of the offense to be “other sexual
behavior” under Mil. R. Evid. 412. This rule does not exclude evidence of the
offense itself, to include the appellant’s version of what transpired during the
transaction.

       There are, of course, some caveats to our reasoning. First, our interpretation
of Mil. R. Evid. 412(a)(1) is limited to interpreting what is meant by “other sexual
behavior.” Rule 412(a)(2) continues to prohibit evidence of a victim’s sexual
predisposition. Second, to say that evidence falls outside of Mil. R. Evid. 412 is not
to say it is per se admissible. Other rules, to include Mil. R. Evid. 403, still operate
to ensure overly prejudicial evidence is excluded from a court-martial. A military
judge could tailor the scope of the testimony to prevent an overly prejudicial
presentation.

       Having found error, we next turn to whether appellant was prejudiced by the
error. We find the error to have been harmless. First, any evidence of consent (or
mistake of fact as to consent) stemming from dancing is weak. That someone may
have agreed to dance in a proactive manner is not highly probative as to whether
they agreed to sexual intercourse or whether an accused actually and reasonably
believed he had consent. Second, we find the evidence of the assault given by the
victim to be compelling, especially combined with her immediate reports of the
assault. Finally, we consider appellant’s separate plea to seven specifications of
sexually assaulting three other soldiers. Appellant agreed as part of his pretrial
agreement that the stipulation of fact he signed would be admissible during the

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GADDY—ARMY 20150227

merits portion of his trial. The stipulation also stated that the facts contained therein
were admissible “at trial” even if “otherwise inadmissible.” Appellant’s sexual
assault of the three other soldiers was factually similar in several aspects. When we
consider all the evidence, to include the inference that appellant is predisposed to
commit this offense, we find any evidentiary error to be harmless beyond a
reasonable doubt. See United States v. Roberts, 69 M.J. 23, 30 (C.A.A.F. 2010).

                                    CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

                                         FOR THE COURT:




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




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