                                   CORRECTED COPY


UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        CAMPANELLA, SALUSSOLIA, and FLEMING
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                       Sergeant First Class AARON D. JESKO
                           United States Army, Appellant

                                      ARMY 20160439

                              Headquarters, Fort Knox
                         Matthew A. Calarco, Military Judge
                 Colonel E. Edmond Bowen, Jr., Staff Judge Advocate

For Appellant: Brian A. Pristera, Esquire (argued); Captain Daniel C. Kim, JA;
Brian A. Pristera, Esquire (on brief).

For Appellee: Captain Marc B. Sawyer, JA (argued); Lieutenant Colonel Eric
Stafford, JA; Major Michael E. Korte, JA; Captain Marc B. Sawyer, JA (on brief).

                                         29 June 2018

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

       In this case we hold the military judge erred by not advising appellant that the
statute of limitations applied to his plea of guilty to aggravated sexual assault. We
also hold the military judge erroneously considered charged misconduct as
propensity evidence under Military Rule of Evidence (Mil. R. Evid.) 413 as to
several contested sexual offenses but, under the circumstances of this case, we find
the error was harmless.

       A military judge sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification of aggravated sexual assault and one
specification of assault consummated by battery in violation of Articles 120 and 128,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 928 (2006 & 2012).
The military judge also convicted appellant, contrary to his pleas of two
JESKO—ARMY 20160439

specifications of rape, one specification of aggravated sexual assault, and two
specifications of assault consummated by battery, in violation of Articles 120 and
128, UCMJ. The military judge sentenced appellant to a dishonorable discharge,
confinement for eighteen years, forfeiture of all pay and allowances, and reduction
to the grade of E-1. Pursuant to a pretrial agreement (PTA), the convening authority
approved only so much of the adjudged sentence as provides for a dishonorable
discharge, confinement for twelve years, total forfeitures, and reduction to the grade
of E-1.

       Appellant’s case is before this court for review pursuant to Article 66, UMCJ. 1
Appellant asserts six assigned errors, three of which merit discussion, and one which
merits relief. Appellant personally raises additional issues pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which we find meritless.

                                   BACKGROUND

       Appellant was born in 1964 and first enlisted on active duty with the Army in
1983. He subsequently entered the National Guard in 1986 and served on active
duty status with the National Guard from 2007 until his trial. His court-martial
revolved around events surrounding four women with whom he was romantically
involved from 1998 until 2015.

       Initially, appellant was charged with raping Air Force Master Sergeant (MSgt)
DA, a woman he dated from 2008 until 2009. Appellant entered into a PTA with the
government to plead guilty to the lesser-included offense of aggravated sexual
assault. During the providence inquiry, appellant admitted to penetrating MSgt
DA’s vagina with his penis on or about 15 August 2008 while she was substantially
incapable of declining participation. Neither the military judge nor the parties
discussed whether the statute of limitations barred prosecution of the lesser-included
offense of aggravated sexual assault when the summary court-martial officer failed
to receive the sworn charges until 24 June 2015.

       After appellant’s providence inquiry, a contested trial ensued regarding
numerous specifications involving KJ, appellant’s spouse, from 2009 to 2015. 2 As
to these contested KJ offenses, the military judge convicted appellant of two
specifications of rape (Specifications 2 and 3 of Charge I), an aggravated sexual
assault while KJ was substantially incapacitated in that she was asleep (Specification
4 of Charge I), and two specifications of an assault consummated by a battery. The
military judge acquitted appellant of a sexual assault while KJ was substantially


1
    This court heard oral argument on 23 May 2018.
2
 Pursuant to the PTA, appellant also pleaded guilty to one specification of an
assault consummated by a battery against KJ.


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incapacitated in that she was asleep (Specification 5 of Charge I), a simple assault,
and two specifications of assault consummated by a battery.
      During the trial, the military judge considered uncharged and charged sexual
offenses under Mil. R. Evid. 413 as propensity evidence for the four contested
sexual offenses regarding KJ (Specifications 2-5 of Charge I).

       The uncharged sexual offenses involved two of appellant’s former spouses,
RE and AS. AS, appellant’s spouse from 1998 to 2001, testified appellant inserted
his penis into her vagina while she was asleep without her consent on one occasion
during their marriage. RE, appellant’s spouse from 2001 to 2004, testified appellant
inserted his penis into her vagina while she was asleep without her consent on more
than one occasion and it “occurred throughout the marriage.” The evidence did not
establish AS, RE, and KJ were aware appellant committed sexual offenses against
any of the other women.

       While the government initially requested the military judge to consider the
sexual offense involving MSgt DA for Mil. R. Evid. 413 propensity purposes, the
parties agreed in the PTA that appellant’s guilty plea to her aggravated sexual
assault would not be used during the trial for propensity purposes. This agreement
meant the only proffered charged misconduct propensity evidence involved the exact
four sexual offense specifications involving KJ (Specifications 2-5 of Charge I) that
were being contested. These contested sexual offenses involving KJ spanned from
2009 to 2014.

                             LAW AND DISCUSSION

                                Statute of Limitations

       “The applicable statute of limitations is a question of law, which we review de
novo.” United States v. Mangahas, 77 M.J. 220, 222 (C.A.A.F. 2018) (citing United
States v. Lopez de Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008); United States v. Falk,
50 M.J. 385, 390 (C.A.A.F. 1999)). “An accused is subject to the statute of
limitations in force at the time of the offense.” Id. (citing Toussie v. United States,
397 U.S. 112, 115 (1970)). The statute of limitations in effect at the time of
appellant’s offense involving MSgt DA was:

             (a) A person charged with . . . rape, or rape of a child, or
             with any offense punishable by death, may be tried and
             punished at any time without limitation.

             (b)(1) Except as otherwise provided in this section
             (article), a person charged with an offense is not liable to
             be tried by court-martial if the offense was committed
             more than five years before the receipt of sworn charges



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             and specifications by an officer exercising summary court-
             martial jurisdiction over the command.

UCMJ art. 43 (2008). See also Rule for Courts-Martial (R.C.M.) 403(a) Discussion
(receipt of charges by the commander exercising summary court-martial jurisdiction
“is important because it stops the running of the statute of limitations”). The statute
of limitations for aggravated sexual assault with an alleged offense date of on or
about 15 August 2008 was five years. 3

       The summary court-martial officer received appellant’s sworn charges on 24
June 2015, almost seven years after the date of the charged offense. The statute of
limitations clearly applied to appellant’s plea of guilty to aggravated sexual assault
but there is no discussion on the record by the military judge or the parties regarding
the statute of limitations.

      In United States v. Thompson, the Court of Criminal Appeals (CAAF) stated:

             [w]hen the evidence reasonably raises issues concerning a
             lesser-included offense or the statute of limitations, the
             military judge is charged with specific affirmative
             responsibilities. . . . The military judge has an affirmative
             obligation to advise an accused of the right to assert the
             statute of limitations, and must determine that any waiver
             of the statute of limitations bar is both knowing and
             voluntary.

59 M.J. 432, 439 (C.A.A.F. 2004) (internal citations omitted). Rules for Courts-
Martial 907(b)(2)(B) also states a specification shall be dismissed upon motion if
“[t]he statute of limitations (Article 43) has run, provided that, if it appears that the



3
  The elimination of a statute of limitation for the offense of sexual assault occurred
when the 2014 National Defense Authorization Act (NDAA) was enacted on 26
December 2013. The elimination of the statute of limitations for the offense of
sexual assault was explicitly not retroactive. See NDAA for Fiscal Year 2014, 113
P.L. 66 § 1703(c) (2013) (“The amendments made by this section shall take effect on
the date of the enactment of this Act, and shall apply with respect to an offense
covered by section 920(b) or 920b(b) of title 10, United States Code (article 120(b)
or 120b(b) of the Uniform Code of Military Justice), that is committed on or after
that date.”). The offense appellant was originally charged with—rape—had no
statute of limitations, either at the time of the alleged rape or now. While the
further prosecution of aggravated sexual assault is barred by the statute of
limitations, absent a knowing and voluntary waiver by appellant, a prosecution for
rape, as originally charged, is not.


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accused is unaware of the right to assert the statute of limitations in bar of trial, the
military judge shall inform the accused of this right.”

       While waiver generally applies to alleged defects occurring in an
unconditional guilty plea, we find the specific “affirmative responsibility” placed on
the military judge by R.C.M 907(b)(2)(B) and Thompson places a statute of
limitations defect into a narrow category of defects this court may review. See
United States v. Hardy, 77 M.J. __, 2018 CAAF LEXIS 324 (C.A.A.F. 5 Jun. 2018).
(holding an unconditional guilty plea waives all non-jurisdictional defects, but
acknowledging CAAF has recognized some exceptions to this general principle).
See generally United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (ruling in
most circumstances this court cannot review an alleged defect which an appellant
waived by engaging in an unconditional guilty plea).

       The government conceded in its brief “if appellant was unaware of the statute
of limitations, [the] specification should be dismissed,” but, nevertheless, asserts
appellant’s waiver was knowing and voluntary at trial because his defense counsel
raised the defect during post-trial matters. We decline to presume appellant was
advised about the statute of limitations prior to or during his trial based on post-trial
actions by his counsel given that the record lacks any discussion or evidence
regarding appellant’s alleged waiver. Because the military judge failed to conduct
his “affirmative obligation” to determine whether appellant knowingly and
voluntarily waived the statute of limitations, as required by R.C.M 907(b)(2)(B) and
Thompson, we can neither find appellant’s waiver was knowing and voluntary nor
affirm his conviction for aggravated sexual assault (Specification 1 of Charge I).

                       Mil. R. Evid. 413 Uncharged Misconduct

      We review a military judge’s ruling on the admissibility of uncharged
misconduct under Mil. R. Evid. 413 for an abuse of discretion. United States v.
Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). Before admitting evidence under Mil.
R. Evid. 413, the judge must apply a three-pronged test: 1) whether the accused is
charged with an offense of sexual assault within the meaning of Mil. R. Evid.
413(a); 2) whether the proffered evidence is evidence that the accused committed
another offense of sexual assault; and, 3) whether the proffered evidence is relevant
under Mil. R. Evid. 401 and 402. United States v. Berry, 61 M.J. 91, 95 (C.A.A.F.
2005) (citing United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)). If the
evidence meets the three-pronged test, the military judge must then apply the
balancing test of Mil. R. Evid. 403 to determine whether its “probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members.” Id.

             In conducting the [Mil. R. Evid.] 403 balancing test a
             military judge should consider the following factors: the



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              strength of the proof of the prior act; the probative weight
              of the evidence; the potential to present less prejudicial
              evidence; the possible distraction of the fact-finder; the
              time needed to prove the prior conduct; the temporal
              proximity of the prior event; the frequency of the acts; the
              presence of any intervening circumstances; and the
              relationship between the parties.

Id. (citation omitted).

       Appellant asserts the military judge erroneously admitted uncharged
misconduct regarding appellant’s ex-spouses, AS and RE, because appellant’s acts
were “too attenuated” to the charged offenses involving KJ. Further, appellant
asserts the military judge erred by considering the sexual offense against MSgt DA,
which the parties later agreed was not admissible under Mil. R. Evid. 413 pursuant
to the PTA, when he applied the Wright factors in his ruling.

       The military judge issued a detailed written ruling fully addressing the Wright
factors, including the probative weight and temporal proximity factors, regarding the
sexual offenses involving appellant’s three spouses, AS, RE, and KJ. The acts
against AS and RE occurred while they were asleep and the specifications regarding
KJ involved either force or her being asleep.

       Defense argues the acts against AS and RE, while they were asleep, are not
sufficiently relevant to the sexual offense specifications involving KJ and alleged
force. Military Rule of Evidence 413 does not impose, and we do not adopt, such a
narrow view. See Mil. R. Evid. 413(a) (“[T]he military judge may admit evidence
that the accused committed any other sexual offense. The evidence may be
considered on any matter to which it is relevant.”). The military judge did not abuse
his discretion by finding the probative weight of the evidence regarding the sexual
offenses against AS, RE, and KJ “demonstrates a commonality in the manner in
which the accused perpetrated sexual offenses” and a “similarity in the accused’s
alleged victims (women with whom . . . he had entered marriages).” The overriding,
and highly probative pattern, is a husband who engages in nonconsensual sexual acts
with his spouse.

       As to defense’s argument regarding temporal proximity, the first uncharged
act occurred during AS’s marriage to appellant (1998 to 2001), the next uncharged
acts occurred during RE’s marriage to appellant (2001 to 2004), and the first sexual
offense involving KJ occurred in 2009. Even using the earliest date of 1998,
appellant was an adult man in his early thirties who had been on active duty or with
the National Guard for more than fifteen years. This is not a case about admitting
juvenile acts as propensity evidence for adult offenses. See Berry, 61 M.J. at 94, 97
(reversing a Mil. R. Evid. 413 ruling admitting propensity sexual acts committed by



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appellant at the age of thirteen). This case involves comparing the acts of a man in
his thirties and forties against three separate spouses.

       Even if the military judge erroneously considered evidence of the sexual
offense involving MSgt DA in 2008 to make his ruling, we do not find the temporal
length so extreme between appellant’s acts against AS and RE to his acts against KJ
to warrant exclusion. Even taking the longest possible length of time between acts,
from 1998 (AS) until the first charged offense date of 2009 (KJ), a span of little over
a decade, there were other multiple acts from 2001 to 2004 (RE) creating a time
linkage between appellant’s acts against AS and KJ. We adopt the military judge’s
ruling that “[e]vidence showing that an accused has committed other, similar sexual
offenses over a period of time naturally weighs more heavily on a scale of probative
weight. Such evidence tends more reliably to prove that such an accused has a
natural inclination or tendency to commit such acts.”

                       Mil. R. Evid. 413 Charged Misconduct

       After appellant’s court-martial, the CAAF held it is constitutional error for a
military judge, as a finder-of-fact, to use one charged offense of sexual misconduct
as propensity evidence in assessing another charged offense of sexual misconduct.
United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017); see also United States v. Hills,
75 M.J. 350 (C.A.A.F. 2016). If instructional error is found when there are
constitutional dimensions at play, this court tests for prejudice under the standard of
harmless beyond a reasonable doubt. United States v. Wolford, 62 M.J. 418, 420
(C.A.A.F. 2006). The inquiry for determining whether constitutional error is
harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error
did not contribute to the defendant’s conviction or sentence. United States v.
Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). An error is not harmless beyond a
reasonable doubt when there is a reasonable possibility the error complained of
might have contributed to the conviction. United States v. Moran, 65 M.J. 178, 187
(C.A.A.F. 2007); United States v. Chandler, 74 M.J. 674, 685 (Army Ct. Crim. App.
2015). “There are circumstances where the evidence is overwhelming, so we can
rest assured that an erroneous propensity instruction did not contribute to the verdict
by ‘tipp[ing] the balance of the members’ ultimate determination.’” United States v.
Williams, __ M.J. __, slip op. at *8 (C.A.A.F. 27 Jun. 2018) (quoting Hills, 75 M.J.
at 358); United States v. Guardado, 77 M.J. 90, 94 (C.A.A.F. 2017) (quoting Hills,
75 M.J. at 358).

       Initially, the issue whether the military judge actually considered the charged
misconduct involving KJ for propensity purposes under Mil. R. Evid. 413 was
challenged by the government. There are several factors which convince this court
that the military judge did consider the charged misconduct.




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        First, the government provided notice of its intent to use “propensity evidence
for the charged offenses among themselves.” The military judge issued a written
ruling that: 1) noted the government’s notice to use the charged misconduct
involving KJ; 2) found “the evidence of the charged offenses . . . relevant and
admissible as direct evidence of the [alleged] crimes;” and 3) held the government
could offer evidence of the charged misconduct under Mil. R. Evid. 413. While we
recognize a ruling allowing the government to offer evidence is different than a
military judge affirmatively stating such evidence will be considered, the military
judge clarified his ruling during the parties’ closing argument. The military judge
stated:

             [t]he court will remain cognizant of its [Mil. R. Evid. 413]
             ruling, and the reasons articulated therein to the
             specifications where that evidence is admissible . . . and
             [t]o say that propensity could allow the court to find
             someone guilty of something because the court believes
             they did some other uncharged misconduct; that is a step
             beyond what [Mil. R. Evid. 413] allows, but for all other
             permissible uses, the court will consider the evidence.

(emphasis added).

       This clarification, combined with the military judge’s written ruling, provides
clear evidence of the military judge’s intent to consider the charged misconduct
involving KJ as propensity evidence for all the sexual offense specifications
involving KJ (Specifications 2-5 of Charge I). 4 Finding the military judge’s
propensity usage of the charged sexual offenses involving KJ was erroneous, the
issue becomes whether to affirm the findings of guilty as to Specifications 2-4 of
Charge I.

       While we find the charged misconduct was considered, a review of the entire
record establishes this propensity evidence had minimal value to the government’s
case. The trial counsel did not once argue the propensity of the charged offenses
during his closing or rebuttal argument but instead focused entirely on the
propensity derived from the uncharged offenses. The government continuously
asserted the probative weight of the uncharged sexual offenses was extremely high
because of the similarity of appellant’s nonconsensual sexual acts with his spouses


4
  This case is distinguishable from United States v. Sanchez, cited by the
government, because the military judge issued a written ruling and orally clarified
his ruling on the record. United States v. Sanchez, 2017 CCA LEXIS 470 (Army Ct.
Crim. App. 17 Jul. 2017) (mem. op.) (finding where a military judge is silent the
court will not presume he erroneously considered propensity evidence of charged
misconduct).


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and the lack of evidence that KJ, AS, and RE had any knowledge that appellant had
committed similar sexual acts with the other women.

       There was little, if any, additional testimony or evidence corroborating KJ’s
testimony regarding the sexual offenses against her. 5 The issue is whether this court
can affirm a conviction based on a complaining witness’ testimony and uncharged
misconduct propensity evidence. After a review of the entire record, we are
satisfied beyond a reasonable doubt that the military judge’s erroneous consideration
of the KJ offenses as propensity evidence against each other did not tip his ultimate
determination to convict appellant of Specifications 2-4 of Charge I. See Guardado,
77 M.J. at 94.

       First, after acknowledging the general principle that military judges are
presumed to correctly apply the law, we highlight the clear and indisputable
evidence from the record that the military judge appropriately considered the
uncharged misconduct. During closing argument, the trial counsel stated “because
[appellant] did it to these two women, [AS and RE] he clearly did it to [KJ] as well.”
The military judge then corrected the government stating “to the extent that Trial
Counsel said that because [appellant] sexually assaulted [AS] and [RE], the court
can find that [appellant] sexually assaulted [KJ], that is a step beyond the propensity
evidence, as contemplated by Military Rule of Evidence 413, and the court will not
consider that part of Trial Counsel’s argument.”

      The overriding theme of our review of the record was the military judge found
KJ credible, as we do, despite several credibility attacks mounted by appellant’s trial
defense counsel. We find the strength of KJ’s testimony, combined with the military
judge’s appropriate and limited use of the uncharged misconduct, led to appellant’s
conviction.

      As to the findings of guilty as to Specifications 2-4 of Charge I, we are
convinced beyond a reasonable doubt that the military judge convicted appellant
based on the strength of the permissible evidence alone and not the application of
propensity evidence among the four separate sexual offenses involving KJ.

                                   CONCLUSION

      Specification 1 of Charge I and Specification 8 of Charge II 6, to which
appellant pled guilty, are SET ASIDE. The remaining findings of guilty are


5
 The government asserts appellant’s daughter’s testimony corroborated one of the
sexual assault specifications, however, we find that evidence had little, if any,
corroborative effect.
6
    Corrected.


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AFFIRMED. A post-trial Article 39(a), UCMJ session is directed. Appellant may
either: (1) comply with the terms of his PTA, thereby maintaining his sentence cap,
by pleading guilty to the lesser-included offense of aggravated sexual assault
(Specification 1 of Charge I) 7 and affirming his knowing and voluntarily waiver of
the statute of limitations; or (2) reject his PTA in which case a finding rehearing as
to Specification 1 of Charge I and Specification 8 of Charge II 8 is authorized. 9 If
appellant rejects his PTA, a sentence rehearing as to all “affected charges and
specifications” is directed subject to the sentence limitations of R.C.M. 810(d)(2).
This case will be returned to the same or a different convening authority.

         Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                           FOR THE COURT:



                                           JOHN P. TAITT
                                           JOHN P. TAITT
                                           Acting Clerk of Court
                                           Acting Clerk of Court




7
    Appellant would also be required to plead guilty to Specification 8 of Charge II 8 .
8
    Corrected.
9
 As to Specification 1 of Charge I, a finding rehearing is only authorized as to the
offense of rape because the lesser-included offense of aggravated sexual assault
would remain barred by the statute of limitations.


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