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

                            UNITED STATES, Appellee
                                        v.
                     Private E2 FRANCISCO A. TORREALBA
                          United States Army, Appellant

                                    ARMY 20160156

                        Headquarters, 7th Infantry Division
                          Sean F. Mangan, Military Judge
             Lieutenant Colonel James W. Nelson, Staff Judge Advocate


For Appellant: Captain Ryan T. Yoder, JA; Peter Kageleiry, Jr., Esquire (on brief);
Peter Kageleiry, Jr., Esquire (on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick,
JA; Captain Joshua B. Banister, JA (on brief).


                                      20 March 2018
                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

SALUSSOLIA, Judge:

       In this case, we set aside the findings of guilty as to four specifications, three
of sexual assault and one of forcible sodomy, in light of our superior court’s
decisions in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016); United States v.
Hukill, 76 M.J. 219 (C.A.A.F. 2017); and United States v. Guardado, 77 M.J. 90
(C.A.A.F. 2017).

       A military panel composed of enlisted and officer members sitting as a
general court-martial convicted appellant, contrary to his pleas, of two specifications
of violating a lawful general regulation, three specifications of sexual assault, and
one specification of forcible sodomy in violation of Articles 92, 120, and 125
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 925 (2012). The
convening authority approved the adjudged sentence of a dishonorable discharge,
confinement for sixteen years, total forfeitures, and reduction to the grade of E-1.
Appellant was credited with one hundred and five days of confinement against the
sentence to confinement.
TORREALBA—ARMY 20160156

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant asserts one assigned error, which merits discussion and relief.

                                  BACKGROUND

       Appellant was convicted of three specifications of violating Article 120,
UCMJ in Charge I against one victim, and one specification of violating Article 125,
UCMJ in Charge II against another victim. At trial, the military judge granted the
government’s request for an instruction that the panel may consider Charge I and II
for propensity purposes under Military Rule of Evidence [hereinafter Mil. R. Evid.]
413.

                             LAW AND DISCUSSION

       After appellant’s court-martial, our superior court held it is constitutional
error for a military judge to give an instruction to a panel that permits one charged
offense of sexual misconduct to be used as propensity evidence in assessing another
charged offense of sexual misconduct under Mil. R. Evid. 413. Hills, 75 M.J. at
352.

       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).

       Having reviewed the evidence, we are not convinced beyond a reasonable
doubt that the Mil. R. Evid. 413 error did not contribute to the findings of guilty of
the specifications of Charges I and II. The deficiency of evidence corroborating
both victims’ testimony makes it difficult to be certain appellant was convicted on
the strength of the evidence alone. Moreover, appellant’s defense counsel raised
several issues regarding the complaining witnesses’ motives to fabricate and their
respective credibility. We are not convinced beyond a reasonable doubt that the
members did not use evidence of one offense to convict appellant of another offense.
In other words, we are not convinced beyond a reasonable doubt the erroneous
propensity instruction played no role in appellant’s convictions. Thus, the findings
for the specifications of Charges I and II and Charges I and II and the sentence
cannot stand.




                                          2
TORREALBA—ARMY 20160156

                                  CONCLUSION

       The findings of guilty as to Charge I and its specifications and Charge II and
its specifications are SET ASIDE. The remaining findings of guilty are AFFIRMED.
The sentence is SET ASIDE. A rehearing is authorized on Specifications 2 through
4 of Charge I, Specification 2 of Charge II, and the sentence. The case may be
returned to the same or a different convening authority.

      Senior Judge CAMPANELLA and Judge FLEMING concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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