              U NITED S TATES A IR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                           No. ACM 38706 (rem)
                          ________________________

                            UNITED STATES
                                Appellee
                                       v.
                     Nathan G. WILSON-CROW
             Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

                             On Remand from
          the United States Court of Appeals for the Armed Forces
                         Decided 16 November 2017
                          ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 2 years, forfeiture
of all pay and allowances, and reduction to E-1. Sentence adjudged 26 April
2014 by GCM convened at Joint Base San Antonio-Lackland, Texas.
For Appellant: Major Allen S. Abrams, USAF; Major Mark C. Bruegger, USAF;
Major Jeffrey A. Davis, Jr., USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary Ellen
Payne, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________
                United States v. Wilson-Crow, No. ACM 38706 (rem)


JOHNSON, Senior Judge:
    Appellant was convicted, pursuant to mixed pleas, of one specification of
abusive sexual contact, two specifications of sexual abuse of a child, one speci-
fication of indecent exposure, one specification of assault consummated by a
battery, and two specifications of wrongfully providing alcohol to a minor, in
violation of Articles 120, 120b, 120c, 128, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920, 920b, 920c, 928, 934.1 A general court-mar-
tial composed of officer members sentenced Appellant to a dishonorable dis-
charge, confinement for two years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the sentence
as adjudged.
    Upon our initial review, Appellant contended: (1) the evidence was legally
and factually insufficient to support his conviction for one specification of sex-
ual abuse of a child; (2) the military judge erred by failing to properly instruct
the members with respect to the requisite intent for that offense; (3) the trial
counsel made an improper findings argument; (4) the evidence was legally and
factually insufficient to support his conviction for abusive sexual contact; and
(5) delay in the post-trial processing warranted sentence relief. Finding no er-
ror materially prejudiced a substantial right of Appellant, we affirmed the find-
ings and sentence. United States v. Wilson-Crow, No. ACM 38706, 2016 CCA
LEXIS 107 (A.F. Ct. Crim. App. 25 Feb. 2016) (unpub. op.) (Wilson-Crow I).
The United States Court of Appeals for the Armed Forces (CAAF) granted re-
view,2 set aside our prior decision, and remanded the case to us for a new re-
view under Article 66, UCMJ, 10 U.S.C. § 866, in light of United States v.




1 In accepting Appellant’s pleas of guilty to both specifications of wrongfully providing
alcohol to a minor in violation of Article 134, UCMJ, the military judge excepted
charged language alleging the acts were prejudicial to good order and discipline, of
which excepted language Appellant was found not guilty. In addition, Appellant was
acquitted of two specifications of rape and two specifications of abusive sexual contact
in violation of Article 120, UCMJ.
2   The CAAF granted review of the following issues:
          I. WHETHER THE MILITARY JUDGE COMMITTED LEGAL ER-
          ROR WHEN HE FOUND THAT SPECIFICATION 2 OF CHARGE I –
          APPELLANT’S CHILD SEXUAL ABUSE OF A.L. IN VIOLATION OF
          ARTICLE 120b - CONSTITUTED CHILD MOLESTATION UNDER
          MIL. R. EVID. 414(d)(2)(A) BECAUSE HE FOUND THAT “CON-
          DUCT PROHIBITED BY ARTICLE 120” INCLUDES ARTICLE 120b
          OFFENSES.




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              United States v. Wilson-Crow, No. ACM 38706 (rem)


Fetrow, 76 M.J. 181 (C.A.A.F. 2017), United States v. McClour, 76 M.J. 23
(C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). United
States v. Wilson-Crow, 76 M.J. 335 (C.A.A.F. 2017).
    For the reasons stated in Wilson-Crow I, we again find no relief is war-
ranted with respect to the legal and factual sufficiency of the evidence, the
military judge’s instructions regarding the required intent for the offense of
sexual abuse of a child, trial counsel’s findings argument, or post-trial delay.3
Having received supplemental filings from the parties and having considered
the case in light of Fetrow, McClour,4 and Hills, we find that the military judge
did commit errors in his application of both Military Rule of Evidence (Mil. R.
Evid.) 414 and Mil. R. Evid. 413. We further conclude the former error had no
substantial influence on the verdict. However, we cannot conclude the latter
error was harmless beyond a reasonable doubt. Accordingly, we set aside the




        II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING
        THE PANEL THAT, PURSUANT TO [MILITARY RULE OF EVI-
        DENCE] 413, IT COULD USE OFFENSES IN ADDITIONAL
        CHARGE I, TO WHICH APPELLANT PLEADED NOT GUILTY, AS
        PROPENSITY EVIDENCE IN SUPPORT OF THE REMAINING
        SPECIFICATIONS OF THAT CHARGE WHICH HE ALSO CON-
        TESTED.
        III. WHETHER THE MILITARY JUDGE ERRED WHEN HE IN-
        STRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERA-
        TION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT
        THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU
        MUST FIND HIM GUILTY OF THAT OFFENSE,” WHERE SUCH AN
        INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN
        LINEN SUPPLY CO., 430 U.S. 564, 572–73 [ ] (1977) AND THERE IS
        INCONSISTENT APPLICATION BETWEEN THE SERVICES OF
        THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR
        SHOULD CONVICT AN ACCUSED.
United States v. Wilson-Crow, 76 M.J. 59 (C.A.A.F. 2017).
3 Assuming, without deciding, that the CAAF’s order setting aside our previous deci-
sion rendered our earlier opinion a complete legal nullity, we have reconsidered and
restated our holdings on these issues to ensure it is clear that Appellant received his
full Article 66, UCMJ, 10 U.S.C. § 866, appellate review.
4Appellant concedes the CAAF’s decision in McClour resolves the third granted issue
adversely to his position, and we concur. See 76 M.J. at 26. Therefore, we do not further
address this issue here.




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              United States v. Wilson-Crow, No. ACM 38706 (rem)


findings of guilty as to Specification 1 of Additional Charge I5 and Additional
Charge I as well as the sentence.

                                  I. BACKGROUND
    Appellant was an Air Force photographer stationed at Joint Base San An-
tonio-Lackland, Texas. In April 2013, he volunteered to attend a three-day high
school Junior Reserve Officer Training Corps (JROTC) leadership and team-
building camp to serve as the official photographer for the event. During the
camp, without the knowledge of the adult organizers of the event, a number of
students engaged in a series of games of “truth or dare.” Appellant, then a 21-
year-old airman first class (E-3), joined in three of these sessions with the stu-
dents. While the first two sessions involving Appellant were relatively innocu-
ous, Appellant slapped the buttocks of a 16-year-old female student, MM, with-
out her consent after one game concluded. The third game involving Appellant
escalated to more overt sexually-oriented dares, including two female students
removing their upper garments, Appellant exchanging outer garments with
another female student, Appellant sucking the exposed nipple of a female 18-
year-old student, GR, and Appellant briefly exposing his penis. All of these acts
occurred in the immediate presence of a group of students, at least one of
whom, AL, had not reached the age of 16 years. Although present, AL did not
see Appellant’s exposed penis because her view was partially obstructed by the
arm of another student. During this final game, from time to time Appellant
also massaged the backs of two female students, including MM. In addition,
MM later testified that during one of these massages, Appellant’s penis
touched her bare back through his clothing for several seconds, without her
consent.
    In June 2013, Appellant drove EG, a 19-year-old civilian woman, to an
aquarium and to the beach. While at the beach, Appellant provided EG alco-
holic drinks. That night, when it came time for Appellant to drive EG home,
Appellant’s car would not start. Appellant and EG spent the night in Appel-
lant’s car. At trial, EG testified that during the night Appellant raped her in
the car. In the weeks that followed, EG continued to spend time with Appellant
and they engaged in consensual sexual intercourse. In July 2013, Appellant
took EG on an overnight trip to a lake where they spent time with four of Ap-
pellant’s civilian friends. Appellant again provided alcohol to EG. At trial, EG
testified that during that night Appellant rubbed her inner thighs without her
consent, and he later raped her in his truck after she had fallen asleep there.


5 This specification alleged Appellant committed abusive sexual contact in violation of
Article 120, UCMJ, by rubbing his penis through his clothing against the back of MM
to gratify his sexual desire.


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                United States v. Wilson-Crow, No. ACM 38706 (rem)


    At trial, Appellant pleaded guilty and was found guilty of the following of-
fenses: one specification of sexual abuse of a child by sucking GR’s nipple in
AL’s presence; one specification of indecent exposure of his penis; one specifi-
cation of assault consummated by battery by slapping MM’s buttocks; and two
specifications of wrongfully providing alcohol to EG, a person under 21 years
of age.6 Appellant pleaded not guilty but was convicted of one specification of
abusive sexual contact by touching MM’s back with his penis, and one specifi-
cation of sexual abuse of a child by exposing his penis to AL. Appellant was
acquitted of two specifications of rape and two specifications of abusive sexual
contact against EG.

                                     II. DISCUSSION
A. Military Rule of Evidence 414
      1. Additional Background
    Prior to entering pleas, trial defense counsel advised the military judge of
the offenses to which he anticipated Appellant would plead guilty. Trial de-
fense counsel then requested the military judge “limit the government from
going into the kissing of [GR’s] breast, the slapping of [MM’s] buttocks, as well
as the providing alcohol to [EG] under [Mil. R. Evid.] 404(b).” After receiving a
proffer of the expected evidence and argument by senior trial counsel, the mil-
itary judge stated the Defense’s request was denied as to evidence Appellant
sucked GR’s breast because it was admissible under Mil. R. Evid. 404(b) as
evidence of Appellant’s intent as to the charge of sexual abuse of a child by
exposing his penis to AL, and because such evidence was also admissible under
Mil. R. Evid. 414.
    After accepting Appellant’s guilty pleas, the military judge readdressed his
initial “advisory” opinion regarding Mil. R. Evid. 414. He stated:
          Let me just further reiterate that as to Specification 2 [sexual
          abuse of a child by sucking GR’s breast in AL’s presence] and
          Specification 1 [sexual abuse of a child by exposing his penis to
          AL] of Charge I, on the surface of the documents it would appear
          that [Mil. R. Evid.] 414 is applicable in that they are [Article]
          120 offenses, though specifically, they are Article 120(b) [sic].7
          Under [Mil. R. Evid.] 414, the rule of evidence would appear to
          encompass any [Article] 120-type offense. And the Court further
          found that because it’s a[n] [Article] 120 offense, that [Mil. R.
          Evid.] 414 would be applicable . . . . So, the Court considered that

6   See note 1, supra.
7   In context, it is clear the military judge was referring to Article 120b, UCMJ.


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             United States v. Wilson-Crow, No. ACM 38706 (rem)


       which would be a possible analysis and that [Mil. R. Evid.] 414
       being a rule of inclusion would likely provide the Court with
       some direction on admitting that information.
   At trial, several witnesses testified that Appellant had sucked or kissed
GR’s breast in front of the students at the last “truth or dare” game. The mili-
tary judge subsequently provided the following instruction to the court mem-
bers regarding the use of this evidence:
       You heard evidence the accused committed another sexual of-
       fense involving a child who had not attained the age of 16 years.
       That offense is not pending before you for determination and you
       may not use his guilty plea to Charge I, Specification 2 to assume
       or infer that the accused is guilty of any other offense. The evi-
       dence you heard which may have been related to this offense
       which is Specification 2 of Charge I, may have no bearing on your
       deliberations unless you first determine by a preponderance of
       the evidence, that is more likely than not, that this offense oc-
       curred. If you determine by a preponderance of the evidence that
       this other offense occurred, you may then consider the evidence
       of that other offense for its bearing on any other matter to which
       it is relevant only in relation the Charge I, Specification 1 [alleg-
       ing sexual abuse of a child by exposing his penis to AL].
       You may consider the evidence of such other sexual offense
       against a child under 16 years of age for its tendency, if any, to
       show the accused’s propensity or predisposition to engage in sex-
       ual offenses, as well as its tendency, if any, to prove that the
       accused intended to arouse or gratify his sexual desires as al-
       leged in Charge I, Specification 1. You may not, however, convict
       the accused of Charge I, Specification 1 solely because you be-
       lieve the accused has a propensity or predisposition to engage in
       sexual offenses. In other words, you cannot use this evidence to
       overcome a failure of proof in the government’s case, if you per-
       ceive any to exist. The accused may be convicted of an alleged
       offense only if the prosecution has proven each element beyond
       a reasonable doubt.
   Trial defense counsel stated he had “no objection” to these instructions
based on Mil. R. Evid. 414.
   2. Law
   Generally, a military judge’s decision to admit evidence is reviewed for an
abuse of discretion. Fetrow, 76 M.J. at 185. However, “[t]he question of whether



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              United States v. Wilson-Crow, No. ACM 38706 (rem)


the admitted testimony constitutes evidence that the accused committed an-
other offense of child molestation under [Mil. R. Evid.] 414 is one of law, re-
viewed de novo.” Id. Yet where an appellant fails to preserve an objection to
evidence by objecting at trial, the error is forfeited in the absence of plain error.
United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014). When we review for
plain error, “Appellant has the burden of establishing (1) error that is (2) clear
or obvious and (3) results in material prejudice to his substantial rights.” Id.
(citation omitted).
     Nonconstitutional evidentiary errors are tested for prejudice by analyzing
(1) the strength of the Government’s case, (2) the strength of the Defense’s case,
(3) the materiality of the evidence in question, and (4) the quality of the evi-
dence in question to determine whether the error had a substantial influence
on the findings. Fetrow, 76 M.J. at 187 (citations omitted).
    Mil. R. Evid. 404(b)(1) generally prohibits the admission of evidence of a
“crime, wrong, or other act” to “prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character.”
But such “evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Mil. R. Evid. 404(b)(2).
    The version of Mil. R. Evid. 414(a) in effect at the time of Appellant’s trial
provided: “In a court-martial proceeding in which an accused is charged with
an act of child molestation, the military judge may admit evidence that the
accused committed any other offense of child molestation. The evidence may
be considered on any matter to which it is relevant,” including the accused’s
propensity, if any, to commit offenses of child molestation. See United States v.
Fetrow, 75 M.J. 574, 578 (A.F. Ct. Crim. App. 2015), aff’d, 76 M.J. 181 (C.A.A.F.
2017). Mil. R. Evid. 414(d)(2) defined “child molestation” for purposes of the
rule as an offense punishable under the UCMJ or a crime under federal or state
law that involves, inter alia, “any conduct prohibited by Article 120 [UCMJ]
and committed with a child.”8
    Generally, for evidence to be admitted under Mil. R. Evid. 414 the military
judge must make three findings: (1) whether the accused is charged with an
act of child molestation as defined by Mil. R. Evid. 414; (2) whether the prof-
fered evidence is evidence of the accused’s commission of another offense of
child molestation; and (3) whether the evidence is relevant under Mil. R. Evid.
401 and Mil. R. Evid. 402. United States v. Yammine, 69 M.J. 70, 73–74
(C.A.A.F. 2010). In Fetrow, we determined—and the CAAF affirmed—that the


8Mil. R. Evid. 414(d)(2)(A) has since been modified specifically to include “any conduct
prohibited by Article 120 and committed with a child, or prohibited by Article 120b.”
(Emphasis added).


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             United States v. Wilson-Crow, No. ACM 38706 (rem)


language of Mil. R. Evid. 414(d)(2) in effect at the time of Appellant’s trial that
“child molestation” included “conduct prohibited by Article 120” did not incor-
porate conduct prohibited by Article 120b, which is a “separate and independ-
ent statutory provision[ ].” Fetrow, 75 M.J. at 584; see Fetrow, 76 M.J. at 187.
   3. Analysis
    In this case, the military judge permitted evidence that Appellant sucked
GR’s breast in AL’s presence, an offense of sexual abuse of a child in violation
of Article 120b, UCMJ, to which Appellant pleaded guilty, to be used as Mil. R.
Evid. 414 evidence of a similar crime in a child molestation case. The military
judge reasoned that Mil. R. Evid. 414(d)(2)(A)’s definition of “child molestation”
would “encompass any [Article] 120-type offense,” including offenses under Ar-
ticle 120b. However, after Appellant’s court-martial, this court and the CAAF
specifically held that the version of Mil. R. Evid. 414(d)(2)(A) in effect at the
time did not include Article 120b in its definition of “child molestation.” Fetrow,
76 M.J. at 187. Moreover, the Article 120b offense involved no physical contact
between Appellant and the victim, AL, and it was not evidence of rape or sexual
assault prohibited by Article 120 committed against a child.
    At trial, the Defense did not object to the application of Mil. R. Evid. 414 to
this evidence. Therefore, we review for plain error. Although Appellant was
tried before this court decided Fetrow, we must “apply the clear law at the time
of appeal, not the time of trial.” United States v. Mullins, 69 M.J. 113, 116
(C.A.A.F. 2010) (citing United States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F.
2008)). In light of Fetrow, the military judge’s ruling applying the existing ver-
sion of Mil. R. Evid. 414 was clearly erroneous.
    Accordingly, the remaining question is whether the error materially preju-
diced a substantial right. See Knapp, 73 M.J. at 36. We analyze this question
de novo in light of the relative strength of the Government and Defense cases
and the materiality and quality of the evidence in question. Fetrow, 76 M.J. at
187. We will find prejudice if we determine the error substantially influenced
the findings. Id.
    The erroneous Mil. R. Evid. 414 ruling applied to a single litigated specifi-
cation—that Appellant committed sexual abuse of a child by exposing his penis
to AL. The specification alleged:
       [Appellant] did, within the continental United States, between
       on or about 26 April 2013 and on or about 28 April 2013, commit
       a lewd act upon [AL], a child who had not attained the age of 16
       years, by intentionally exposing [Appellant’s] penis to [AL], with
       the intent to arouse or gratify the sexual desires of [Appellant].
   The Government’s case with respect to this charge was strong. AL testified
that she was present when Appellant exposed himself, although she did not

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             United States v. Wilson-Crow, No. ACM 38706 (rem)


actually see his penis. She confirmed she was under the age of 16 years at the
time. Several other students testified that they were present and saw Appel-
lant’s exposed penis.
    Conversely, the Defense’s case with respect to this charge was weak. The
Defense did not contest that Appellant intentionally exposed himself.9 Instead,
trial defense counsel argued the Government had failed to prove Appellant
specifically intended AL to see his penis, and also failed to prove he exposed
himself to arouse or gratify his sexual desires. But the first argument miscon-
strued the requisite intent for this offense. The Government was not required
to prove Appellant wanted AL in particular to see his penis, or that Appellant’s
sexual arousal or gratification was based specifically on AL’s presence. See Wil-
son-Crow I, unpub. op. at *3 (“The specific intent expressed in the statute, and
more particularly as alleged in the specification at issue, requires only that
Appellant had the intent to arouse or gratify his sexual desires at the time he
exposed himself.”). As the military judge correctly instructed the members, the
Government was required to prove, inter alia, Appellant “committed a lewd act
upon [AL], to wit: intentionally exposing [his] penis with the intent to arouse
or gratify [his] sexual desire,” where a “lewd act” means “intentionally exposing
one’s genitalia to a child by any means including via any communication tech-
nology with an intent to arouse or gratify [Appellant’s] sexual desires.” Thus
the members were correctly instructed a finding of guilt required that Appel-
lant exposed himself with the intent to gratify his sexual desire, and in doing
so he exposed himself to AL, a child under 16 years.
    As to the Defense’s second argument, trial defense counsel contended Ap-
pellant did not expose his penis to arouse or gratify his sexual desires, but only
because he was dared to do it as part of the game. Yet it is evident these two
motivations were not mutually exclusive, and there was ample evidence that
Appellant found his attendance at and participation in the truth or dare game
sexually stimulating. Among other examples, there was evidence that at Ap-
pellant’s suggestion the students used an “adult” truth or dare application on
Appellant’s phone to find “sexy” dares for the game; that Appellant made sev-
eral sexually-charged comments to the students; that Appellant massaged the
bare backs of two female students who had removed their upper clothing; and
that Appellant’s penis was partially erect when he exposed it.
    Relatedly, although improper under Mil. R. Evid. 414, the military judge
properly admitted the evidence that Appellant sucked GR’s breast under Mil.
R. Evid. 404(b) specifically as evidence of Appellant’s intent when he exposed
his penis. Thus the military judge’s error did not result in additional evidence


9Indeed, Appellant pleaded guilty to the offense of indecent exposure in violation of
Article 120c, UCMJ, for the same instance of exposing his penis.


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              United States v. Wilson-Crow, No. ACM 38706 (rem)


being improperly presented to the members, but only afforded an additional
use for evidence already admissible on the critical issue of intent to arouse or
gratify his sexual desires. With respect to this specification, the significance of
the evidence to the question of Appellant’s intent overshadowed any signifi-
cance of a more general propensity to engage in sexual offenses, particularly
where both acts occurred on the same occasion in the same setting with the
same group of people. Significantly, senior trial counsel’s comment on the mil-
itary judge’s propensity instructions during argument referred to the alleged
offenses against EG, but made no specific reference to the charge that Appel-
lant sexually abused AL.
   Under these circumstances, we do not find the error substantially influ-
enced the findings. Accordingly, no relief is warranted on this basis.
B. Military Rule of Evidence 413
     1. Additional Background
   Over trial defense counsel’s objection, the military judge instructed the
court members, inter alia, as follows with respect to their findings:
       Each offense must stand on its own and you must keep the evi-
       dence of each offense separate. Stated differently, if you find or
       believe that the accused is guilty of one offense, you may not use
       that finding or belief as a basis for inferring, assuming or prov-
       ing that he committed any other offense. . . .
       The burden is on the prosecution to prove each and every ele-
       ment of each offense beyond a reasonable doubt. Proof of one of-
       fense carries with it no inference that the accused is guilty of any
       other offense.
       ...
       With respect to the evidence presented in support of Additional
       Charge I, Specifications 1, 3, 4, and 5,10 this evidence may have


10 Additional Charge I, Specification 1, alleged Appellant committed abusive sexual
contact against MM by touching her back with his penis; Specification 3 alleged Ap-
pellant raped EG in June 2013; Specification 4 alleged Appellant committed abusive
sexual contact against EG by rubbing her inner thighs in July 2013; and Specification
5 alleged Appellant raped EG in July 2013, all in violation of Article 120, UCMJ. The
military judge had previously granted a Defense motion for a finding of not guilty pur-
suant to Rule for Courts-Martial 917 as to Additional Charge I, Specification 2, alleg-
ing Appellant committed abusive sexual contact against EG by rubbing her genitalia
in June 2013 in violation of Article 120, although he instructed the court members on
the lesser included offense of assault consummated by battery in violation of Article
128, UCMJ.


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             United States v. Wilson-Crow, No. ACM 38706 (rem)


       no bearing on your deliberations with respect to any other
       charged offense unless you first determine by a preponderance
       of the evidence, that is more likely than not, that any of those
       offenses occurred. If you determine by a preponderance of the
       evidence one of those offenses occurred, you may then consider
       the evidence of that offense for its bearing on any matter to
       which it is relevant only in relation to the other offenses which
       are alleged in Additional Charge I, Specifications 1, 3, 4 and 5.
       In that regard, you may consider the evidence of such other sex-
       ual offenses for its tendency, if any, to show the accused’s pro-
       pensity or predisposition to engage in sexual offenses. You may
       not, however, convict the accused of any offense solely because
       you believe the accused has a propensity or predisposition to en-
       gage in sexual offenses. In other words, you cannot use this evi-
       dence to overcome a failure of proof in the government’s case, if
       you perceive any to exist. The accused may be convicted of an
       alleged offense only if the prosecution has proven each element
       beyond a reasonable doubt.
       Again, each offense must stand on its own and you must keep
       the evidence of each offense separate. The prosecution’s burden
       of proof to establish the accused’s guilt beyond a reasonable
       doubt remains as to each and every element of each offense
       charged. Proof of one charged offense carries with it no inference
       that the accused is guilty of any other charged offense.
    Senior trial counsel’s argument on findings included the following reference
to the military judge’s instructions regarding propensity:
       On thing you can consider is that these offenses can be used to
       demonstrate a propensity of the accused in committing these
       types of offenses. Now essentially what that is is if you think
       that -- and I won’t go through all these offenses, but if you think
       that -- and when you get the instructions, you can look at them
       a little bit more so. But for example, if you think that the accused
       placed his penis up against [MM’s] back and you think we’ve
       proved our charge beyond a reasonable doubt for that, or even if
       you just think we met it by a preponderance of the evidence,
       more likely than not that he committed that offense, you can use
       that evidence to show he had a propensity, a sexual propensity
       to commit the rapes against [EG]. So you can look at those in
       tandem. It doesn’t mean just because he might be guilty of one
       he’s automatically guilty of the other. It doesn’t mean that. It
       just means you can use them to show he has a sexual propensity,


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             United States v. Wilson-Crow, No. ACM 38706 (rem)


       which if anything that this case has demonstrated is that he has
       a sexual propensity. This is where we started and that’s where
       the accused ended the second time he raped [EG]. Throughout
       this entire trial, that’s the theme that we know based off of the
       evidence. It’s crystal clear of what the accused [sic] intent, state
       of mind with all those different things going on over the course
       of these several months. . . .
    The court members found Appellant guilty of Additional Charge I, Specifi-
cation 1, alleging he committed abusive sexual contact against MM. They
found him not guilty of every other specification of Additional Charge I, alleg-
ing offenses against EG.
   2. Law
   The meaning and scope of Mil. R. Evid. 413 is a question of law that is
reviewed de novo. Hills, 75 M.J. at 354. Instructional errors are also reviewed
de novo. Id. at 357.
    Mil. R. Evid. 413(a) provides that in a court-martial where the accused is
charged with a sexual offense, evidence that the accused committed other sex-
ual offenses may be admitted and considered on “any matter to which it is rel-
evant.” This includes using evidence of sexual assaults to prove the accused
has a propensity to commit sexual assault. United States v. James, 63 M.J.
217, 220 (C.A.A.F. 2006).
    However, in Hills, the CAAF held that evidence of the accused’s commis-
sion of a sexual assault may not be used in this way if that alleged sexual as-
sault is charged in the same court-martial and the accused has pleaded not
guilty to it. 75 M.J. at 356. The CAAF further held that the instructions ac-
companying the admission of evidence of charged offenses for Mil. R. Evid. 413
purposes implicate fundamental constitutional due process concerns by under-
mining an accused’s presumption of innocence and the Government’s require-
ment to prove guilt beyond a reasonable doubt. Id. at 357. Because “constitu-
tional dimensions are in play,” prejudice for such an error must be tested for
harmlessness beyond a reasonable doubt. Id. In other words, the Government
must demonstrate there is no reasonable possibility that the error contributed
to the conviction. Id.
   In United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), the CAAF clarified
that Hills is not to be interpreted narrowly. The court stated:
       [T]he use of evidence of charged conduct as M.R.E. 413 propen-
       sity evidence for other charged conduct in the same case is error,
       regardless of the forum, the number of victims, or whether the
       events are connected. Whether considered by members or a mil-
       itary judge, evidence of a charged and contested offense, of which

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             United States v. Wilson-Crow, No. ACM 38706 (rem)


       an accused is presumed innocent, cannot be used as propensity
       evidence in support of a companion charged offense.
Id. at 222. The court reiterated that, where such error exists, the Government
must “prove there was no reasonable possibility that the error contributed to
[the] verdict.” Id.
   3. Analysis
    In light of Hills and Hukill, the military judge erred in instructing the court
members that evidence of the sexual assaults charged in the same case, to
which Appellant had pleaded not guilty, could, under a preponderance of the
evidence standard, be used to find Appellant had a predisposition or propensity
to commit sexual assault and, if relevant, thereby contribute to a finding of
guilty. Although Appellant was tried before the CAAF decided Hills, we “apply
the clear law at the time of appeal, not the time of trial.” Mullins, 69 M.J. at
116.
    Nevertheless, the Government contends that any error with regard to Mil.
R. Evid. 413 in Appellant’s case was harmless beyond a reasonable doubt. This
is necessarily a case-by-case analysis. Under the particular circumstances pre-
sent here, we cannot agree there is no reasonable possibility the erroneous in-
struction contributed to Appellant’s conviction for abusive sexual contact
against MM.
    Unlike the other offenses committed with the JROTC students to which
Appellant either pleaded guilty or was found guilty, there was only one witness
to this offense—MM herself. Moreover, MM testified Appellant’s penis was
touching her back through his clothing for approximately six to nine seconds
while he sat next to her giving her back a massage; he did not rub or grind his
penis against her; he did not have a full erection; and she agreed she previously
testified she was unsure if the touching was intentional. Appellant made no
specific inculpatory statements at the time or admissions thereafter that he
committed this specific offense.
    We recognize the court members found Appellant not guilty of the other
specifications implicated by the military judge’s Mil. R. Evid. 413 instruc-
tions—the alleged sexual offenses against EG. However, we cannot discount
the possibility that, although the members were not convinced beyond reason-
able doubt Appellant was guilty of these crimes against EG, nevertheless they
believed a preponderance of the evidence indicated he committed one or more
of them, and that determination in accordance with their instructions contrib-
uted to persuading them that Appellant had a propensity to commit sexual
offenses and intentionally touched MM’s back with his penis to gratify his sex-
ual desires. We note senior trial counsel used the erroneous instruction to ar-
gue Appellant’s “sexual propensity” was the “theme” of the “entire trial.”


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             United States v. Wilson-Crow, No. ACM 38706 (rem)


     Distinct from the real possibility the court members improperly used evi-
dence of the charged offenses to find Appellant had a propensity to commit
sexual assault, we also recognize the CAAF’s concern in Hills that “the con-
flicting standards of proof and directly contradictory statements about the
bearing that one charged offense could have on another [could] contribute to
the verdict.” 75 M.J. at 358. The Government’s evidence as to Specification 1
of Additional Charge I was not so strong as to allay such concerns that the
Government’s burden of proof was similarly compromised in this case.
    As noted above, it is true there was significant evidence Appellant found
his participation in the students’ truth or dare game sexually stimulating. In
addition, there was evidence that MM attracted his particular attention. It is
likely the court members would have reached the same conclusion in the ab-
sence of the error. But “likely” is not the applicable standard. Appellant was
entitled to a trial untainted by constitutional error. Because we cannot say
there is no reasonable possibility the error contributed to the members’ finding
on this specification, we must set it aside.

                              III. CONCLUSION
    The findings of guilt as to Specification 1 of Additional Charge I and as to
Additional Charge I and the sentence are SET ASIDE. The remaining findings
are AFFIRMED. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
The record of trial is returned to The Judge Advocate General for remand to
the convening authority with a rehearing authorized as to Specification 1 of
Additional Charge I, Additional Charge I, and the sentence. Article 66(e),
UCMJ, 10 U.S.C. § 866(e). Thereafter, the record of trial will be returned to
this court for completion of appellate review under Article 66, UCMJ, 10 U.S.C.
§ 866.


                 FOR THE COURT


                 KATHLEEN M. POTTER
                 Acting Clerk of the Court




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