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

                               No. 201600282
                           _________________________

                     UNITED STATES OF AMERICA
                              Appellee
                                        v.

                          JOSE M. MEDELLIN
                     Corporal (E-4), U.S. Marine Corps
                                 Appellant
                         _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

         Military Judge: Major Michael D. Zimmerman, USMC.
       For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
             For Appellee: Captain Sean M. Monks, USMC;
               Lieutenant George R. Lewis, JAGC, USN.
                        _________________________

                           Decided 28 August 2018
                           _________________________

Before W OODARD , H UTCHISON , and T ANG , 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, Senior Judge:
    A general court-martial composed of officer and enlisted members convicted
the appellant in absentia 1 and contrary to his pleas of one specification each of
aggravated sexual contact with a child and indecent liberties with a child, in
violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §




   1  The appellant voluntarily absented himself after the close of the government’s
case, but before the announcement of findings. See Record at 934.
                        United States v. Medellin, No. 201600282


920 (2008), 2 and one specification each of sexual assault of a child and sexual
abuse of a child, in violation of Article 120b, UCMJ, 10 U.S.C. § 920b (2012).
The appellant was sentenced to 55 years’ confinement, total forfeitures,
reduction to pay grade E-1, and a dishonorable discharge. The convening
authority approved the adjudged sentence and, except for the dishonorable
discharge, ordered it executed.
    The appellant raises four assignments of error (AOEs): (1) 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.) 414, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2014 ed.) and
subsequent instructions violated the appellant’s constitutional right to due
process; (2) the military judge abused his discretion by admitting a victim’s
out-of-court statements; (3) the appellant’s sentence to 55 years’ confinement
is inappropriately severe; and (4) the evidence is factually insufficient.
   We find merit in the appellant’s first AOE, conclude the error was not
harmless beyond a reasonable doubt, and take corrective action in our decretal
paragraph. 3
                                  I. BACKGROUND
    While home on leave in December 2011, the appellant and his large
extended family celebrated the holidays at his Grandma Z’s home in
Milwaukee, Wisconsin. One evening, after attending a professional basketball
game with his family, the appellant returned to Grandma Z’s house and went
upstairs into a bedroom with his seven-year-old brother and his two five-year-
old cousins, SF and NP. Both SF and NP alleged that the appellant touched
them inappropriately while in the bedroom. Specifically, SF testified that the
appellant “touched [her] with his hands and touched [her] butt” when she was
at Grandma Z’s house in the bedroom with NP and the appellant’s brother. 4
She denied seeing the appellant touch NP. 5 NP testified that the appellant
touched “his front part” to her “front part.” 6 On cross-examination, NP
elaborated that Grandma Z came upstairs and started yelling at the appellant,



   2  The members acquitted the appellant of one specification each of aggravated
sexual assault of a child and abusive sexual contact with a child, alleged in violation
of Article 120, UCMJ.
   3   We do not reach the remaining AOEs.
   4   Record at 465.
   5 Id. at 474. (“Q. [Y]ou didn’t see anything happen to N.P. though? She just told
you? A. No. I didn’t see anything happen to her, she just told me.”).
   6   Id. at 523.


                                          2
                      United States v. Medellin, No. 201600282


“cussing him,” and kicked him out of the house. 7 NP also testified that the
appellant punched and kicked both her and the appellant’s brother. Grandma
Z testified that she never saw anything out of the ordinary and that SF and
NP were asleep when she saw them. Likewise, the appellant’s brother testified
that he was playing video games in the room with SF and NP and was not
aware of anything sexual going on between SF, NP, and the appellant. He also
testified that the appellant did not punch or kick him, and that he did not see
the appellant punch or kick SF or NP.
    In the following two years, the appellant met and married his wife and
became stepfather to his wife’s daughter, RL. By April 2014, the appellant, his
wife, and RL had moved to Marine Corps Base Camp Pendleton, California.
On 16 April 2014, the appellant’s wife took her best friend, SR, who was
visiting from Maryland, out for the day while the appellant remained home
with RL. When the appellant’s wife and SR returned, RL reminded the
appellant, “[d]on’t forget you have something to tell mommy.” 8 Shortly
thereafter, the appellant and his wife stepped outside to talk in private. The
appellant’s wife asked the appellant what RL meant. The appellant became
visibly upset and said that he had accidently touched RL’s vagina while he was
tickling her. Although she was aware of the previous allegations made against
the appellant by SF and NP, the appellant’s wife believed the appellant’s
explanation. While the appellant and his wife were talking privately, SR asked
RL what the appellant had to tell his wife, and RL responded that she and the
appellant “had played doctor.” 9
    The next day, while SR and RL were getting ready for the day, SR followed
up on their brief conversation and asked RL what it meant to play doctor. After
some hesitation, RL told SR that the appellant had lifted up her dress, put his
hand in her underwear, and touched her vagina. SR relayed that information
to the appellant’s wife and they further questioned RL. RL revealed that the
appellant “lifted up her skirt and put his finger in her hole[.]” 10 RL also
explained that the appellant rolled her over, placed a blanket over her, and
began making thrusting motions with his body pressed firmly against hers.
   Following her conversation with RL, the appellant’s wife contacted the
appellant and told him he needed to come home. When the appellant arrived,
she confronted him with what RL had said. The appellant said “he would never
have done that, and that it didn’t matter if [she] found out if it was true or not


   7   Id. at 530.
   8   Id. at 621.
   9   Id. at 781.
   10   Id. at 624.


                                        3
                          United States v. Medellin, No. 201600282


because [their] relationship was over.” 11 The appellant then packed a bag and
left the home. He was apprehended later that day by base police.
    At trial, the government presented the testimony of SF, NP, Grandma Z,
the Milwaukee police officers who conducted the forensic interviews of SF and
NP, and SF’s and NP’s mothers—the appellant’s aunts. The government also
introduced the recorded forensic interviews of SF and NP as prior consistent
statements. 12 RL testified, but had no memory of the offenses. In fact, RL had
almost no recollection of the appellant—her stepfather—at all, solely recalling
one occasion when he gave her two stuffed animals. But the appellant’s wife
and SR testified about the statements RL made to them and, through a forensic
interviewer, the government introduced a recorded forensic interview of RL. 13
In pre-trial motions, RL testified she did not recall giving this forensic
interview. Finally a physician testified about the medical exam he performed
on RL, in which he noted that the exam was normal and could neither “confirm
nor refute abuse.” 14
   The appellant’s trial defense counsel presented the testimony of the
appellant’s brother—who had been present during the alleged abuse of SF and
NP—and Grandma Z, as well as subsequent, recorded forensic interviews of
SF and NP—conducted in 2015—as prior inconsistent statements. 15 The trial
defense counsel also called an expert forensic psychologist to testify about
suggestibility in child interviews and memory contamination.
    Over defense opposition, 16 the military judge concluded that evidence of
each charged specification was admissible, pursuant to MIL. R. EVID. 414, as
propensity evidence for the other charged child molestation offenses. 17
Consequently, the military judge instructed the members that they could
“consider the evidence of such other child molestation offense for its tendency,
if any, to show the accused’s propensity or predisposition to engage in child
molestation offenses,” and that such evidence could “be considered by [the


    11   Id. at 627.
    12   See Prosecution Exhibits (PE) 10 and 12, respectively.
    13See PE 5. In addition, the forensic interviewer testified about the protocols she
followed while conducting the interview.
    14   Record at 751.
    15   See Appellate Exhibits (AE) LXIV and LXV, respectively.
    16   See AE XXXVII.
    17 See Record at 976 (“I think there is enough reason to also allow them, if they so
choose, to use the instruction under 414 properly and use that evidence if they find
that it’s apt for the purpose that 414 allows it. So I am going to give the 414 instruction
with regard to the offenses.”).


                                             4
                       United States v. Medellin, No. 201600282


members] even if [they] are not convinced beyond a reasonable doubt that the
accused [is] guilty of some of those offenses.” 18
    The members convicted the appellant of digitally penetrating RL, rubbing
his body against hers, touching SF’s buttocks, and exposing his penis to NP.
The members found the appellant not guilty of having sex with NP and of
touching her breasts.
                                   II. DISCUSSION
A. Law
    In Hills, the Court of Appeals for the Armed Forces (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. Where an instructional error rises to a constitutional
dimension, as it does here, 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 only when the government
can “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). But, “[t]here are circumstances where the evidence is
overwhelming, [and] 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.’” United States v. Guardado, 77 M.J. 90, 94
(C.A.A.F. 2017) (quoting Hills, 75 M.J. at 358).
    In Guardado, the CAAF concluded that the military judge’s propensity
instruction “seriously muddled” Master Sergeant Guardado’s right to “a
presumption of innocence and to be convicted only by proof beyond a reasonable
doubt[.]” Id. at 94. The CAAF then reversed his sexual assault conviction
because the court was “unable to conclude that the military judge’s [MIL. R.
EVID.] 413/414 instruction was harmless.” Id. at 95. The CAAF held that while
“[the victim’s] testimony was credible, the lack of supporting evidence makes
it difficult to be certain that [the appellant] was convicted . . . on the strength
of the evidence alone.” Id. at 94.
    In United States v. Williams, 77 M.J. 459 (C.A.A.F. 2018), Sergeant
Williams was charged with sexually assaulting both of his previous wives. As
in Guardado and Hills, the military judge erroneously instructed the members,
pursuant to MIL. R. EVID. 413, that evidence of sexual assault against one of
the victims could be used as propensity evidence against the other, and vice
versa. The CAAF again found that while the victims “provided credible
testimony . . . , their accounts were largely uncorroborated by eyewitness


   18   Id. at 1032-33; AE LXXI at 6.


                                         5
                     United States v. Medellin, No. 201600282


testimony or any conclusive documentary or physical evidence.” Id. at 464.
Consequently, the court set aside Williams’s convictions because “[a]bsent any
supporting evidence, [they] simply [could not] be certain that the erroneous
propensity instruction did not taint the proceedings or otherwise ‘contribute to
the defendant’s conviction or sentence.’” Id. (quoting Hills, 75 M.J. at 357).
    Military appellate courts have on occasion found a military judge’s
erroneous propensity instruction harmless. In United States v. Luna, No.
201500423, 2017 CCA LEXIS 314 (N-M. Ct. Crim. App. 9 May 2017) (unpub.
op.), we held that the military judge’s erroneous propensity instruction was
harmless beyond a reasonable doubt because: (1) the victim’s testimony was
compelling; (2) the victim’s testimony was corroborated by incriminating text
messages and eyewitness testimony; and (3) the trial counsel did not reference
the propensity instruction in either his closing argument or rebuttal, but
rather reiterated the government’s burden of proving each element beyond a
reasonable doubt. 2017 CCA LEXIS 314, at *17-18. The CAAF affirmed,
concluding that “in light of . . . overwhelming evidence”, Luna’s conviction
could stand “on the strength of the evidence alone.” United States v. Luna, 77
M.J. 198, 198 (C.A.A.F. 2018) (mem.).
    Similarly, in United States v. Harrison, No. ACM 38745, 2016 CCA LEXIS
431 (A.F. Ct. Crim. App. 20 Jul 2016) (unpub. op.), aff’d, 76 M.J. 127 (C.A.A.F.
2017) (mem.), the CAAF affirmed the Air Force Court of Criminal Appeals’
(AFCCA) holding that, despite the military judge having erroneously
instructed the panel on propensity, the error was harmless beyond a
reasonable doubt. In support of its holding, the AFCCA noted that: (1) the
government specifically distanced itself from any argument the appellant had
a predisposition to commit sexual misconduct; (2) the appellant was only
convicted of sexual misconduct where the victim’s testimony was corroborated
by either witness testimony or the appellant’s admissions; and (3) if the
members had misinterpreted the propensity instruction then the appellant
would have likely not been acquitted of two sexual assault offenses. 2016 CCA
LEXIS 431, at *35-36.
B. Analysis
   The government concedes the military judge’s instruction was erroneous
but, citing Luna and Harrison, argues the error was harmless. 19 We disagree.




   19  The government also cites United States v. Moynihan, 2017 CCA LEXIS 743,
A. Ct. Crim. App. 30 Nov 2017) (unpub. op.). However, subsequent to the government’s
brief, the CAAF set aside our sister court’s opinion in light of Guardado. See United
States v. Moynihan, 77 M.J. 313 (C.A.A.F. 2018).


                                         6
                      United States v. Medellin, No. 201600282


    First, the military judge provided a muddled instruction—akin to the
instructions provided in Hills, Guardado, and Williams—inviting the members
to apply an impermissibly low standard of proof:
         Evidence that the accused committed the child molestation
         offenses alleged in the specifications under Charge I and Charge
         II may be considered for its bearing on any matter to which it is
         relevant in relation to any other offense in Charge I or Charge
         II. You may also consider the evidence of such other child
         molestation offense for its tendency, if any, to show the accused’s
         propensity or predisposition to engage in child molestation
         offenses. It may be considered by you even if you are not
         convinced beyond a reasonable doubt that the accused is guilty
         of some of those offenses. 20
This instruction allowed the members to reduce the government’s burden of
proof to seemingly any evidence at all. In short, the erroneous propensity
instruction invited the members to “bootstrap their ultimate determination of
the [appellant’s] guilt” using an impermissibly low standard of proof with
respect to the other charged offenses. Hills, 75 M.J. at 357.
    Second, evidence against the appellant was not overwhelming and suffered
from many of the same weaknesses that concerned the CAAF in Hills,
Guardado, and Williams. The accounts of SF, NP, and RL—whether adduced
through in-court testimony, recorded forensic interviews, or the testimony of
others—were not corroborated by eyewitnesses or physical or documentary
evidence. In fact, both SF and the appellant’s brother testified that despite
being in the same bedroom as NP, they never saw the appellant do anything
to NP. Conversely, NP’s account of the evening included elaborate details that
were unsupported and, at times, contradicted SF’s account of the evening. In
addition, Grandma Z’s testimony contradicted NP’s version of events. Indeed,
the members acquitted the appellant of two specifications involving NP. As for
the 2014 allegations, RL’s accounts and description of the appellant’s actions—
both in her statements to the appellant’s wife and SR, and in her forensic
interview—were credible, especially given her young age. Nonetheless, we find
they were uncorroborated. Unlike Luna and Harrison, the appellant made no
confessions, sent no incriminating text messages, and there were no
corroborating witnesses. Here, the appellant admitted only that he
accidentally touched RL’s vagina while tickling her, but adamantly denied any
sexual intent.
  Finally, during his closing argument, unlike the prosecutors in Luna and
Harrison, the trial counsel explained the propensity instruction, pointed out

   20   Record at 1032-33; AE LXXI at 6 (emphasis added).


                                          7
                      United States v. Medellin, No. 201600282


that it was a “powerful instruction” and included it in a demonstrative
presentation. 21 The trial counsel emphasized that evidence of the other
charged acts could be used to demonstrate the appellant’s “propensity or
predisposition to engage” in acts of child molestation “even if [the members
were] not convinced beyond a reasonable doubt that the [appellant was] guilty
of some of those offenses[.]” 22 The trial counsel reiterated this point in
rebuttal. 23
   Consequently, based on the facts of this case, we cannot be convinced that
the erroneous propensity instruction played no role in the appellant’s
convictions or that he was convicted based on the strength of the admissible
evidence alone. Accordingly, we find the error was not harmless beyond a
reasonable doubt.
                                III. CONCLUSION
   The findings and the sentence are set aside. The record is returned to the
Judge Advocate General for remand to an appropriate convening authority
with a rehearing authorized.
   Chief Judge WOODARD and Judge TANG concur.


                                      FOR THE COURT




                                      RODGER A. DREW, JR.
                                      Clerk of Court




   21   Record at 1003.
   22   Id.
   23  Id. at 1018-19 (“Once again, consider the instruction that I highlighted to
towards the end of my initial argument, in that you can consider the various offenses
for propensity purposes.”).


                                         8
