UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              LIND, KRAUSS, 1 and PENLAND
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Staff Sergeant AARON L. BRIDGES
                            United States Army, Appellant

                                     ARMY 20120714

                      Headquarters, I Corps (Rear)(Provisional)
                     Kwasi Hawks, Military Judge (arraignment)
               David L. Conn, Military Judge (motions hearing & trial)
      Lieutenant Colonel John T. Rothwell, Acting Staff Judge Advocate (pretrial)
             Colonel William R. Martin, Staff Judge Advocate (post-trial)


For Appellant: Mr. Charles D. Swift, Esquire; Captain Robert H. Meek, III, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Major Daniel
D. Derner, JA; Major Daniel M. Goldberg, JA (on brief).


                                        27 July 2015

                                ----------------------------------
                                 OPINION OF THE COURT
                                ----------------------------------

KRAUSS, Judge:

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of wrongful sexual contact, forcible sodomy, and assault
consummated by a battery in violation of Articles 120, 125, and 128 Uniform Code
of Military Justice, 10 U.S.C. §§ 920, 925 and 928 (2012) [hereinafter UCMJ]. 2 The
court-martial sentenced appellant to a dishonorable discharge, confinement for 6
years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The



1
 Senior Judge LIND and Judge KRAUSS took final action in this case prior to their
retirement.
2
    Appellant was convicted of sexual offenses involving two victims.
BRIDGES — ARMY 20120714

convening authority reduced the sentence to confinement by two months, approving
seventy months of confinement, but otherwise approved the adjudged sentence.

      This case is before the court for review under Article 66, UCMJ. Appellant
assigns three errors and raises matters pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). Appellant’s complaint relative to the use of a prior act of
misconduct against him warrants brief discussion and relief. We find that
appellant’s remaining complaints, including those raised pursuant to Grostefon, do
not warrant relief.

                                    DISCUSSION

       What we have in this case is a noncommissioned officer (NCO) who exploited
his position in a Warrior Transition Battalion to seek sexual gratification from not
only those suffering the trauma of wounds, his co-workers, but also from their
families. The case would not be complicated in terms of appellate review except for
the fact that the United States relied in merits and sentencing, in part, upon a fifteen-
year old allegation of rape against appellant that had been subject to trial and
resulted in acquittal.

       Appellant objected to its admission and requested that, if admitted, the
military judge should “include a strongly worded limiting instruction to guard
against the problems associated with propensity evidence.” In support of this
request, appellant made reference to and quoted from United States v. Mundell, 40
M.J. 704 (A.C.M.R. 1994), endorsing an instruction to the panel that he had
previously been acquitted of the charge. The judge denied appellant’s motion and
admitted the evidence of the prior allegation as propensity evidence, evidence of
modus operandi, and evidence of absence of accident or mistake under Military Rule
of Evidence [hereinafter Mil. R. Evid.] 413 and 404(b). In his ruling, he also
prohibited any reference to the previous court-martial “[t]o minimize the danger of
any unfair prejudice to the accused,” but never informed or instructed the panel that
appellant had been acquitted on that allegation.

       The initial difficulty lies in the fact that the military judge’s analysis of the
acquitted charge essentially began and ended with the recognition that a prior
acquittal on a charge of sexual assault does not bar subsequent admission of the
same allegation under Mil. R. Evid. 413. While this is correct, it serves only as
introduction to the more nettlesome problem of considering the acquittal in weighing
the probative value of the propensity evidence against any unfair prejudice that may
result from its admission. See United States v. Wright, 53 M.J. 476 (2000). As
appellant points out and our superior court noted in a similar circumstance, “There is
a need for great sensitivity when making the determination to admit evidence of
prior acts that have been the subject of an acquittal.” United States v. Griggs, 51
M.J. 418, 420 (C.A.A.F. 1999). More recently, our superior court reiterated its



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BRIDGES — ARMY 20120714

expectation that judges deal with the admission of evidence previously the subject of
an acquitted charge very carefully. See United States v. Solomon, 72 M.J. 176
(C.A.A.F. 2013).

       Here, the judge failed to consider the fact that after a fair trial appellant was
found not guilty of the prior charge when evaluating its probative value under Mil.
R. Evid. 403. In failing to address the propriety of informing the panel of that
acquittal, the judge also did not consider the danger of unfair prejudicial confusion
over the extent to which a panel might consider the evidence without running an
unacceptable danger of convicting or punishing appellant for a charge that resulted
in appellant’s acquittal. Instead, the judge seems to have considered the only
potential prejudice to appellant to be that of mentioning the prior acquittal.

       Contrary to the judge’s reasoning at trial here, both the Supreme Court and
the Court of Appeals for the Armed Forces have expressed approval and satisfaction
with admission of such evidence as long as the judge carefully instructed the panel
that the accused in each case had been acquitted on a charge of the same allegation
and the necessity to conscientiously limit consideration of that evidence accordingly.
United States v. Dowling, 493 U.S. 342, 348-49 (1990); Solomon, 72 M.J. at 182;
Griggs, 51 M.J. at 420. Indeed, in this case, the panel posed questions during the
findings portion wondering what became of the allegation first levied fifteen years
ago. The judge only permitted testimony to the effect that a formal report was made
but otherwise left the panel hanging by not informing them of the not guilty finding.

       The government effectively concedes this error and makes reference to United
States v. Cuellar, 27 M.J. 50, 56 (C.M.A. 1988), for the proposition that the judge
should not prevent an accused from ensuring a panel is informed that he was
acquitted when tried for the prior misconduct. We agree with appellant and the
government that the judge erred by failing to properly consider the effect of the
acquittal when resolving admission of the evidence under Mil. R. Evid. 413 and 403,
and further erred, in light of its admission, by failing to inform and instruct the
panel of the acquittal accordingly. Therefore we must test for prejudice. See
Griggs, 51 M.J. at 420.

       As to findings, we find little trouble in resolving the question against
appellant. Despite the judge leaving the panel wondering and the government’s
reliance on the propensity evidence to argue “[H]ow else do we know that some of
these crimes were committed? Because he’s done it before,” with underlined
reference to the alleged victim of the acquitted charge, appellant essentially
admitted to the acts of charged misconduct resulting in his convictions. Those
admissions, in conjunction with the credible testimony of the victims describing the
charged acts, convince us that the erroneous admission of the prior rape allegation,
and failure to instruct the panel properly, did not substantially influence the
findings. Id.



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BRIDGES — ARMY 20120714

       As to the sentence, we come to a different conclusion. Though the judge
provided a standard instruction advising the panel that appellant should only be
punished for the crimes for which he was found guilty, such instruction was
insufficient under the circumstances of this case. As described above, the panel
already expressed curiosity as to the outcome of the previous allegation and the
government argued in findings that the panel could be confident that appellant
committed the charged acts because he had done it before. In sentencing, though the
government referred to three victims, trial counsel argued that appellant required
severe punishment in the form of lengthy confinement because “he’s going to do it
again. . . [h]e is predisposed to sexual assault. It’s wired in his identity.” Absent
appropriate instruction to ensure the panel conscientiously avoided punishing
appellant for the alleged crime of which he was previously acquitted, we cannot be
confident that the sentence was not substantially influenced by this evidence. See
Griggs, 51 M.J. at 420; Solomon, 72 M.J. at 182; see also United States v.
Schroeder, 65 M.J. 49, 58 (C.A.A.F. 2007) (discussing generally the risk that an
accused may be punished for uncharged conduct).

       On the basis of the error, the entire record, and applying the factors in United
States v. Winckelmann, we conclude we can reassess appellant's sentence. 73 M.J.
11, 15-16 (C.A.A.F. 2013). We note there is no change in the penalty landscape or
exposure. See Id. The gravamen of the offenses has not changed because appellant
remains convicted of all of the items originally charged. See Id. at 16. We
recognize that appellant was sentenced by a panel. See Id. Nonetheless, this court
reviews the records of a substantial number of courts-martial involving assaults and
sexual offenses and we have extensive experience and familiarity with the level of
sentences imposed for such offenses under various circumstances. In light of the
aggravated nature of the misconduct involving a NCO exploiting victims at and from
his workplace, we are confident that absent the error the panel would have sentenced
appellant to at least a dishonorable discharge, confinement for four years, total
forfeiture of all pay and allowances, and reduction to the grade of E-1.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. After considering the entire record,
the court affirms only so much of the sentence as provides for a dishonorable
discharge, confinement for four years, total forfeiture of all pay and allowances and
reduction to the grade of E-1. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of his sentence set aside by the
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge LIND and Judge PENLAND concur.




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BRIDGES — ARMY 20120714

                           FORTHE
                          FOR  THECOURT:
                                   COURT:




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




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