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

                             No. 201400229
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                           ALONZO BASS III
     Aviation Boatswain’s Mate (Equipment) Second Class (E-5),
                             U.S. Navy
                             Appellant
                      _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Robert J. Crow, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                   Air Station, Jacksonville, FL.
Staff Judge Advocate’s Recommendation: Commander Nell O. Evans,
                            JAGC, USN.
 For Appellant: Lieutenant Ryan W. Aikin, JAGC, USN; Lieutenant
               Christopher C. McMahon, JAGC, USN.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
                 USN; Major Cory A. Carver, USMC.
                      _________________________

                           Decided 31 May 2017
                         _________________________

   Before C AMPBELL , F ULTON , and H UTCHISON , 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.
                       _________________________

   FULTON, Judge:
   A panel of members with enlisted representation sitting as a general
court-martial convicted the appellant, contrary to his pleas, of one
specification of violating a lawful general regulation (sexual harassment), two
                        United States v. Bass, No. 201400229


specifications of wrongful sexual contact, and two specifications of sodomy, in
violation of Articles 92, 120, and 125, Uniform Code of Military Justice.1 The
members sentenced him to seven years’ confinement, total forfeiture of pay
and allowances, reduction to pay grade E-1, and a dishonorable discharge.
The convening authority (CA) approved the sentence as adjudged.
    This case is before us for a third time. Earlier, we set aside the findings of
guilty as to Charge III and its two specifications, in which the members found
the appellant not guilty of forcible sodomy, but guilty of consensual sodomy.2
The government moved for en banc reconsideration. We denied en banc
reconsideration but granted panel reconsideration. We withdrew our original
opinion and issued a new one in which we again set aside the findings of
guilty as to Charge III and its two specifications.3 We affirmed the findings as
to the general regulation violation and two specifications of wrongful sexual
contact and returned the case to the Judge Advocate General for a rehearing
of the appellant’s sentence. At the rehearing, a military judge, sitting as a
general court-martial, sentenced the appellant to two years’ confinement,
reduction to pay grade E-1, and a bad-conduct discharge.
   The case has now returned to us following that sentencing rehearing. The
appellant filed an assignment of error, alleging that the military judge erred
by allowing the government, pursuant to MILITARY RULE OF EVIDENCE (MIL.
R. EVID.) 413, SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), to use charged sexual misconduct as propensity evidence
to prove other charged sexual conduct in the same trial and asserted that
“Hills renders this court’s previous decision on this issue invalid.”4 The
appellant also filed a supplemental assignment of error, alleging that the
military judge erred by instructing the members that if, based on their
consideration of the evidence, they are firmly convinced that the appellant
was guilty, they must find him guilty.
   We first note that the Court of Appeals for the Armed Forces (CAAF)
recently resolved the supplemental assignment of error against the
appellant.5 Therefore, the issue lacks merit.
    We find merit, however, in the appellant’s initial assignment of error
alleging that the military judge erred by permitting the government to use


   1   10 U.S.C. §§ 892, 920, and 925 (2012).
   2   United States v. Bass, 74 M.J. 722 (N-M. Ct. Crim. App. 2015).
   3   74 M.J. 806 (N-M. Ct. Crim. App. 2015).
   4   Appellant’s Brief and Assignment of Error of 11 Aug 2016.

   5   See United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017).

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                        United States v. Bass, No. 201400229


evidence of charged sexual misconduct as propensity evidence to prove other
charged sexual misconduct.
    The appellant faced 14 sex crime specifications at trial in 2013-2014. In
eight of them, the alleged victim was Petty Officer TM. In the six others,
Petty Officer MH was the alleged victim. Before trial, the appellant moved to
sever the offenses. He argued that the presence of two victims on the charge
sheet would unfairly prejudice the members against him and that the
military judge should not allow the members to consider evidence of charged
offenses for their tendency to show propensity to commit such offenses. The
military judge, consistent with the state of the law at that time, found that
evidence of sexual assaults against each alleged victim would be admissible
as propensity evidence in the specifications involving the other alleged victim
and denied the motion.
    In our last opinion in this case, we found that the military judge did not
err by permitting the government to use evidence of charged sexual offenses
as propensity evidence relevant to other charged sexual offenses in
accordance with MIL. R. EVID 413.6 But “on direct review, we apply the clear
law at the time of appeal, not the time of trial,”7 and while this case has
remained on direct review, the state of the law changed. In United States v.
Hills, the 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.8
    Applying Hills to this case, even though it was not available to the
military judge at the time of trial, it is clear that the military judge erred.
Because the error affects the constitutional presumption of innocence, we
cannot affirm the findings unless we are satisfied that the error was
harmless beyond a reasonable doubt.9 A constitutional error is harmless
beyond a reasonable doubt if the error complained of did not contribute to the
verdict.10 In other words, “[t]he government must prove there was no
reasonable possibility that the error contributed to [the] verdict.”11
   In opening statements, the trial counsel told the members how they could
use the evidence: “You’ll see that he has a propensity to commit sexual

   6   Bass, 74 M.J. at 817.
   7   United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010) (citations omitted).
   8   75 M.J. 350, 356-57 (C.A.A.F. 2016).
   9   United States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005).
   10   United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).
   11United States v. Hukill, No. 17-003, 2017 C.A.A.F. LEXIS 305 at *9 (C.A.A.F.
May 2, 2017) (citations omitted).

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                         United States v. Bass, No. 201400229


assault. He has a tendency to do this and to do it in a certain way. You’ll see
that this is the way he operates, this is what he does.”12 During rebuttal
argument, trial counsel returned to the theme of propensity twice, reminding
the members that “if [they] determine[d] that any of these sexual assaults
happened by a preponderance of the evidence, which means just more likely
than not, then [they could] use that information to determine that the
[appellant] ha[d] a tendency, a propensity to commit sexual assault.”13
    Similarly, the military judge instructed the members that if they found by
a preponderance of evidence that the appellant had committed any of the
offenses involving Petty Officer TM, they could consider that evidence for its
tendency to show that the appellant had a propensity to commit the offenses
against Petty Officer MH. Likewise, he instructed the members that if they
found by a preponderance of the evidence that the appellant committed any
of the offenses against Petty Officer MH, they could consider that evidence
for its tendency to show that the appellant had a propensity to commit the
offenses against Petty Officer TM.
    The members acquitted the appellant of the most serious sex offenses,
including all those in which Petty Officer TM was the alleged victim and two
specifications of aggravated sexual assault on Petty Officer MH. But they
convicted the appellant of two wrongful sexual contact specifications for the
same alleged conduct. Evidence against the appellant was not overwhelming.
There was no confession, physical evidence, or eyewitnesses, other than the
two alleged victims. The defense presented evidence that Petty Officer MH
was untruthful. The appellant denied the offenses during his testimony.
   Although the members were not convinced beyond a reasonable doubt
that the accused committed sex offenses against Petty Officer TM, they may
have considered evidence that the appellant sexually assaulted her for its
tendency to show that the appellant had a propensity to commit sexual
assault against Petty Officer MH. Based on the record, we are not convinced
beyond a reasonable doubt that the instructional error did not prejudice the
appellant.
    The guilty findings to Specification 7 of Charge II and Specification 2 of
the Additional Charge are set aside, leaving only the findings as to Charge I
and its sole specification affirmed. The sentence is also set aside. The record
is returned to the Judge Advocate General for remand to an appropriate
convening authority with a rehearing on Specification 7 of Charge II and
Specification 2 of the Additional Charge and the sentence authorized. In the


   12   Record at 678.
   13   Id. at 1284.

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                   United States v. Bass, No. 201400229


alternative, we authorize a rehearing on sentence alone as to the remaining
offense, Charge I and its sole specification.
   Senior Judge CAMPBELL and Judge HUTCHISON concur.


                              For the Court



                              R.H. TROIDL
                              Clerk of Court




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