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

                                UNITED STATES, Appellee
                                             v.
                                Sergeant KENDELL HILLS
                               United States Army, Appellant

                                       ARMY 20130833

                               Headquarters, Fort Knox
                   Steven E. Walburn, Military Judge (arraignment)
                 Gregory R. Bockin, Military Judge (motions hearing)
                     James W. Herring, Jr., Military Judge (trial)
                Colonel Christopher T. Fredrikson, Staff Judge Advocate


For Appellant: Captain Patrick A. Crocker, JA (argued); Colonel Kevin Boyle, JA;
Major Amy E. Nieman, JA; Captain Patrick A. Crocker, JA (on brief).

For Appellee: Captain Carling M. Dunham, JA (argued); Colonel John P. Carrell,
JA; Major A.G. Courie III, JA; Captain Benjamin W. Hogan, JA; Captain Carling M.
Dunham, JA (on brief).


                                          25 June 2015

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LIND, Senior Judge:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification of abusive
sexual contact in violation of Article 120, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 920 (2006 & Supp. V 2012). 1 The panel sentenced
1
 The panel acquitted appellant of two specifications of sexual assault, violations of
Article 120, UCMJ. All three of the charged s pecifications involved the same
victim, Specialist (SPC) PV, and were alleged to have occurred on the same evening.
HILLS—ARMY 20130833

appellant to a bad-conduct discharge, six months confinement, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error. Appellant argues, inter alia, that the judge abused
his discretion by granting the government’s motion to use the charged sexual
misconduct to prove propensity to commit the charged sexual misconduct under
Military Rule of Evidence [hereinafter Mil. R. Evid.] 413. We find this assignment
of error merits discussion, but not relief. 2

                  FACTS AND PROCEDURAL BACKGROUND

       Appellant was charged with sexual assault of Specialist (SPC) PV by penile
penetration of the vulva; sexual assault of SPC PV by penile penetration of the anus;
and abusive sexual contact of SPC PV by moving her hand onto his penis. All three
specifications were alleged to have occurred on or about 25 November 2012 when
SPC PV was incapable of consenting to the sexual acts and contact due to
impairment by an intoxicant, a condition which was known or reasonably should
have been known by appellant.

       Specialist PV testified she accompanied some friends, including Sergeant
(SGT) JD, to a party at appellant’s home. At the party, SPC PV became extremely
intoxicated: she vomited, fell off a couch, and had to be helped into one of the
bedrooms in the duplex. She did not remember who took her to the bedroom. At
some point during the evening, SPC PV left the bedroom and went into the bathroom
to vomit. She fell on the floor and was told she was helped back to the bedroom by
another friend. Specialist PV testified she went back to sleep and was sexually
assaulted by appellant between her return to bed and approximately 0500.

       In describing the charged sexual assaults, SPC PV testified in pertinent part
that after she went back to sleep:

             I was somehow moved rooms . . . . It felt like I was
             carried and someone was moving me, but I was half asleep
             and I didn’t seen [sic] them ‘cause it was dark . . . . I was
             on the bed, assaulted from behind.




2
 Appellant personally raises matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), none of which merits discussion or relief.




                                           2
HILLS—ARMY 20130833

The following exchange occurred between trial counsel and SPC PV:

             TC: Now, did you immediately            realize   what   w as
             happening when you woke up?

             SPC PV: Um, when I woke all the way, sir.

             TC: So what did you think was going on when you first
             started waking up?

             SPC PV: Um, that something was happening, sir, but I--
             that it was a dream, sir.

             TC: At what point did you realize that it might not be a
             dream?

             SPC PV: When I woke up and when I went from the
             bedroom to the restroom, sir.

       Specialist PV went on to testify that she felt the penis of a person, who was
wearing white sweat pants, in her vagina for “a couple of minutes” and then she
became “unconscious” again. Specialist PV then woke up to feel a penis in her anus
and that she “passed out” afterwards. Specialist PV testified she believed her
attacker was appellant because he was the only person at the party wearing white
sweat pants. Specialist PV testified she woke up a third time lying on her back,
facing up, on the bed. She saw appellant “standing beside the bed using [her] hand
with his hand touching his penis.” Specialist PV demonstrated how appellant was
moving her hand to “cup his penis” and “move [her] hand with his.” Finally, SPC
PV testified that after she woke up to see appellant using her hand to touch his
penis, she “felt sick and wanted to go to the restroom and get away from [appellant]”
and she “got off the bed, saw his face, and went to the restroom,” and it was at this
point that she realized she was in a different room than the one she first fell asleep
in.

       While SPC PV was in the bathroom, she testified appellant came in, turned
the lights on, and gave her a glass of cold water , and appellant left when SPC PV
closed the bathroom door. A short time later, SPC PV went to the living room.
Appellant was on a couch watching television and SGT JD was sleeping on an
adjacent couch. Appellant gave SPC PV some blankets and she fell asleep beside
SGT JD at approximately 0500. Specialist PV testified she woke up the next
morning, went home with SGT JD, asked him for appellant’s telephone number, and
that when she arrived at her barracks, she went to the CQ desk to ask for the
chaplain’s telephone number. Specialist PV then called the chaplain and told him
about the sexual assaults. The chaplain contacted the unit’s Sexual Harassment/



                                          3
HILLS—ARMY 20130833

Assault Prevention and Response Program (SHARP) point of contact, and SPC PV
filed a restricted report of sexual assault, and und erwent a sexual assault forensic
examination.

       Specialist PV could not give a more definitive timeline to when the sexual
assaults occurred or the time in between each charged sexual assault. Multiple
witnesses who attended the party testified. Due to th eir intoxication, they could not
remember timeframes with precision. None of these witnesses remembered
appellant interacting with SPC PV during the evening. All of the witnesses who
were at the party testified that SPC PV was extremely intoxicated and h ad to be
helped to the restroom and to one of the bedrooms . All of the witnesses except
SGT JD left at approximately 0230. Sergeant JD testified that, prior to going to
sleep at some point between 0330 and 0530, he watched appellant go to his bedroom ,
which was on the opposite side of the house from the bedroom where SPC PV had
been placed earlier in the evening. Sergeant JD also testified that when he awoke
the next morning, SPC PV was on the floor in the living room.

       The soldier who was on CQ duty testified that SPC PV appeared distressed.
The chaplain testified that SPC PV appeared like “something was very wrong,” and
the SHARP point of contact testified he found SPC PV sitting on a curb with her
head in her hands crying. No physical injuries were found on SPC PV from the
sexual assault forensic examination. The Army crime lab analyzed anal and vaginal
swabs from SPC PV, SPC PV’s underwear, and buccal swabs from appellant and the
several other males who attended the party. No semen was found on the underwear
or the vaginal or anal swabs. Male DNA was found on the rectal swab. Male DNA ,
one major and two minor profiles, was also found on the crotch of SPC PV’s
underwear. The lab conducted Y-STR testing 3 on the major profile of the male DNA
found in SPC PV’s underwear. 4 This test excluded SGT JD, who was the only
person other than appellant and SPC PV present at the party at the time of the
alleged sexual offenses. The test was also consistent with the Y-STR profile of
appellant and his paternal male relatives with a frequency of 1 in approximately 400
individuals in the black population. The defense rested without presenting any
evidence.

       Prior to trial, the government made a motion under Mil. R. Evid. 413
requesting that the evidence admissible to prove the three charged sexual offenses
also be used to prove appellant’s propensity to engage in sexual offenses. The

3
  The expert testified that Y-STR testing is a type of DNA test that focuses only on
the Y chromosome.
4
    The lab could not determine who contributed to the two minor male DNA profiles.




                                           4
HILLS—ARMY 20130833

military judge performed the three-factor relevance test under Mil. R. Evid. 413 and
the Mil. R. Evid. 403 balancing test, which included analysis of the factors in United
States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000), and granted the government’s
motion. The military judge reached the following pertinent conclusions of law:

             After considering the Wright factors . . . , the Court finds
             by a preponderance of the evidence and concludes the
             following:

             1. The accused is charged with three total specifications
             of violating Article 120, UCMJ, two specifications of
             sexual assault and one specification of abusive sexual
             contact. These charged offenses are clearly acts of sexual
             assault as defined in [Mil. R. Evid.] 413.

             2. The proffered evidence is admissible under [Mil. R.
             Evid.] 401 and 402 as it is logically relevant to show the
             accused’s propensity to sexually assault SPC [PV].
             Additionally, the evidence is logically relevant to show
             the accused performed three different sexual acts on the
             alleged victim while she [w]as in and out of consciousness
             due to intoxication.

             3. In conducting a [Mil. R. Evid] 403 analysis applying
             the Wright factors, the Court finds as follows:

                     (a) Strength of Proof.      The Government has
             presented solid evidence of the alleged sexual acts. At
             trial, the Government will be offering the testimony of the
             alleged victim, SPC [PV]. Her 10 January 2013 sworn
             statement describes in detail the alleged sexual assaults.
             She describes the alleged sexual assaults in detail again, in
             40 pages of testimony, at the Article 32 hearing held on
             18 April 2013.

                    (b) Probative Weight. The probative weight of the
             evidence is high, demonstrating the accused’s propensity
             to sexually assault SPC [PV] while she [w]as in and out of
             consciousness due to intoxication. According to SPC
             [PV], the accused repeatedly assaulted her that evening in
             a variety of ways. That there are some factual differences
             between the alleged sexual assaults does not lessen the
             probative value of each. There is no requ irement under




                                           5
HILLS—ARMY 20130833

         [Mil. R. Evid.] 413 that the acts be exactly the same. See
         United States v. Ediger, 68 M.J. 243 (C.A.A.F. 2010).

               (c) Less Prejudicial Evidence. The parties have
         presented the Court with no less prejudicial evidence of
         the sexual misconduct and this evidence will be a part of
         the Government’s case-in-chief.

                (d) Distraction.    The fact finder will not be
         distracted from the primary issues in the case. Under the
         facts of this case the [Mil. R. Evid.] 413 evidence is the
         evidence of the alleged sexual offenses. The Court is also
         confident that the detailed instruction the panel will
         receive concerning the use of this evi dence will decrease
         any likelihood that the members would be unfairly
         prejudiced to convict the accused on the basis of such
         propensity evidence (assuming they did not find the
         elements of the charged offenses were proved beyond a
         reasonable doubt).

                (e) Time to Prove. The time needed to prove the
         alleged misconduct is not a factor based on the posture of
         this case (i.e., all incidents are charged offenses).

                (f) Temporal Proximity. All of the alleged sexual
         assaults took place in the accused’s home, p ertain to the
         same alleged victim, and happened during the same
         evening.

                (g) Frequency.    The number of alleged sexual
         assaults (3), which allegedly occurred in one evening,
         weighs in favor of admission.

                (f) [sic] Intervening Circumstances/Relationships.
         There is no evidence of intervening circumstances or other
         relationships, other than the fact that the accused is an
         NCO [(non-commissioned officer)] in the alleged victim’s
         unit.

         4. After conducting the [Mil. R. Evid.] 403 balancing test
         using the Wright factors, the Court finds the probative
         value of the charged sexual assaults are [sic] not
         substantially outweighed by the danger of unfair prejudice
         to the accused, confusion of the issues, misleading the



                                     6
HILLS—ARMY 20130833

             members or by considerations of undue delay, w aste of
             time, or needless presentation of cumulative evidence.

       At trial, the military judge gave the standard “Spillover” instruction in Note 1,
paragraph 7-17 of the Military Judges’ Benchbook, followed by a tailored
instruction on the use of charged Mil. R. Evid. 413 evidence to prove propensity as
provided in Note 4 of paragraph 7-13-1 (Other crimes, wrongs, or acts evidence).
See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbo ok
[hereinafter Benchbook] (1 Jan. 2010). The tailored instruction was given to the
members as follows:

             I just instructed you that you may not infer the accused is
             guilty of one offense because his guilt may have been
             proven on another offense and that you must keep the
             evidence with respect to each offense separate.
             Specifically, evidence that the accused committed the
             sexual assault offense alleged in Specification 1 of the
             Charge, the sexual assault offense alleged in Specification
             2 of The Charge, or the sexual contact offense alleged in
             Specification 3 of the Charge has no bearing on your
             deliberations in relation to any other charged offenses.

             However, evidence that the accused committed a sexual
             assault offense, and in this case that’s the sexu al assault
             offenses alleged in Specifications 1 and 2 of The Charge
             and the sexual contact offense alleged in Specification 3
             of the Charge, this may have a bearing on your
             deliberations in relation to the other charged sexual
             assault offenses . . . only under the circumstances I am
             about to describe:

             First, you must determine by a preponderance of evidence
             that it is more likely than not that the sexual assault
             offense occurred;

             If you determine by a preponderance of the evidence that
             one or more of the offenses alleged in Specifications 1, 2,
             or 3 of the Charge occurred, even if you are not convinced
             beyond a reasonable doubt that the accused is guilty of
             one or more of those offenses, you may nonetheless then
             consider the evidence of such offenses, or its bearing on
             any matter to which it is relevant in relation to the other
             sexual assault offenses;




                                           7
HILLS—ARMY 20130833

             You may also consider the evidence of such other acts of
             sexual assault for its tendency, if any, to show the
             accused’s propensity or predisposition to engage in sexual
             assault.

             You may not, however, convict the accused solely because
             you believe he committed the sexual assault in
             Specification 1 of the Charge, or the sexual assault in
             Specification 2 of the Charge, or the sexual contact in
             Specification 3 of the Charge, or solely because you
             believe the accused has a propensity or predisposition to
             engage in sexual assault. In other words, you cannot use
             this evidence to overcome the failure of proof in the
             government’s case, if you perceive any to exist.

             As is the case with all charged offenses, the accu sed may
             be convicted of a sexual assault offense only if the
             prosecution has proven each element beyond a reasonable
             doubt.

             Each offense must stand on its own and proof of one
             offense carries no inference that the accused is guilty of
             any other offense. In other words, proof of one sexual
             assault creates no inference that the accused is guilty of
             any other sexual assault. However, it may demonstrate
             that the accused has a propensity to commit that type of
             offense.

             The prosecution’s burden of proof to es tablish 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. 5

5
 As we pointed out in United States v. Barnes, we note that the sentences in
Benchbook Instruction 7-13-1, Note 4, stating “[i]n other words, proof of one sexual
assault creates no inference that the accused is guilty of an y other sexual assault”
and “[p]roof of one charged offense carries with it no inference that the accused is
guilty of any other offense” could be read to prev ent the fact-finder from drawing an
inference that an accused has a propensity to commit sexual assault. __ M.J. ___ ,
2015 CCA LEXIS 194, *23-24 (Army Ct. Crim. App. 8 May 2015). As we held in
Barnes, any error is harmless as it benefitted appellant. Id. at ___, 2015 CCA

                                                                      (continued . . .)


                                          8
HILLS—ARMY 20130833

      Following the military judge’s substantive instructions, the government and
defense made closing arguments to the panel. Neither party argued that the evidence
presented to directly prove the charged offenses could also be used to demonstrate
propensity.

                                        LAW

      Military Rule of Evidence 413(a) provides that “[i]n a court-martial
proceeding for a sexual offense, the military judge may admit evidence that the
accused committed any other sexual offen se” and “[t]he evidence may be considered
on any matter to which it is relevant.” This includes using evidence of another
sexual offense to prove that an accused has a propensity to commit sexual offenses.
United States v. James, 63 M.J. 217, 219-20 (C.A.A.F. 2006); Wright, 53 M.J. at
480. There is a general presumption in favor of adm ission of evidence offered under
Mil. R. Evid. 413. United States v. Berry, 61 M.J. 91, 94-95 (C.A.A.F. 2005) (citing
Wright, 53 M.J. at 482-83).

       Our superior court has set forth requirements for admissibility of evidence of
similar sexual offenses under Mil. R. Evid. 413. The analysis begins by examining
whether three threshold requirements are met: (1) the accused must be charged with
a sexual offense; (2) the proffered evidence must be evidence of the accused’s
commission of any other sexual offense; and (3) the evidence must be relevant under
[Mil. R. Evid.] 401 and 402. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F.
2013) (citations omitted). With regard to the second threshold requirement, the
military judge must conclude that “the members c ould find by a preponderance of
the evidence that the offenses occurred.” Id. (citing Wright, 53 M.J. at 483 (citing
Huddleston v. United States, 485 U.S. 681, 689-90 (1988))).

        Once these three threshold findings are met, “the military judge is
constitutionally required to also apply a balancing test under [Mil. R. Evid.] 403.”
Id. at 179-80 (citing Berry, 61 M.J. at 95). Military Rule of Evidence 403 states that
the judge “may exclude relevant evidence if its probative value is substantially
outweighed by the danger of . . . unfair prejudice, confusing the issues, misleading
the members, undue delay, wasting of time, or needless presenting cumulative
evidence.” In the context of a Mil. R. Evid. 413 analysis, the Mil. R. Evid. 403
“balancing test should be applied in light of the strong legislative judgment that
evidence of prior sexual offenses should ordinarily be admissible.” Solomon,


(. . . continued)

LEXIS 194, at *25 (citing United States v. Rogers, 587 F.3d 816, 822 (7th Cir.
2009)).




                                          9
HILLS—ARMY 20130833

72 M.J. at 180 (citation and internal quotation marks omitted). “The importance of
careful balancing arises from the potential for undue prejudice that is inevitably
present when dealing with propensity evidence.” Ediger, 68 M.J. at 248 (quoting
James, 63 M.J. at 222) (internal quotation marks omitted). Courts balance numerous
factors in a Mil. R. Evid. 403 analysis involving Mil. R. Evid. 413, including, but
not limited to:

             the 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.

Berry, 61 M.J. at 95 (citing Wright, 53 M.J. at 482). “No one factor is controlling,
although in a given case it could be.” United States v. Bare, 65 M.J. 35, 37
(C.A.A.F. 2007). When the Mil. R. Evid. 403 balancing test requires exclusion of
the evidence at issue, “the presumption of admissibility is overcome.” Berry,
61 M.J. at 95 (citing Wright, 53 M.J. at 482-83).

       In the case of an accused charged with sexual offenses, the plain language of
Mil. R. Evid. 413 imposes no temporal limit on the admission of evidence of the
accused’s commission of any other sexual offenses. See Mil. R. Evid. 413. The
drafter’s analysis of Mil. R. Evid. 413 states that the rule is intended to “provide for
more liberal admissibility of character evidence in criminal cases of sexual assault
where the accused has committed a prior act of sexual assault.” Supplement to the
Manual for Courts-Martial, United States (2012 ed.), Mil. R. Evid. 413 analysis at
A22-42 (emphasis added). However, in United States v. James, our superior court
affirmed the admission of other sexual offenses that occurred after the charged
sexual offenses. 63 M.J. 217. The court looked to the legislative history of Mil. R.
Evid. 413 and held that “as long as appropriate safeguards are applied, [Mil. R.
Evid.] 413 and [Mil. R. Evid.] 414 are not limited to evidence of behavior taking
place prior to that charged.” Id. at 221. The court reached this conclusion as a
result of: “(a) the plain language of the rules; (b) a logical application of long-
standing principles of relevance, (c) a persuasive opinion by the onl y federal circuit
court to have addressed the issue, and (d) the existence of the protections of [Mil. R.
Evid.] 403 . . . .” Id. The court went on to state:

             We can find no reason to conclude that prior misconduct is
             probative and subsequent misconduct is not. It is the fact
             of the other act that makes it probative, not whether it
             happened before or after the act now charged. The rules
             of relevance therefore do not require a temporal limitation



                                           10
HILLS—ARMY 20130833

             on the application of [Mil. R. Evid.] 413 and [Mil. R.
             Evid.] 414. In the application of the [Mil. R. Evid.] 403
             balancing . . . , temporal factors may be important.

Id.

       This court has recently affirmed the use of evidence of other charged sexual
offenses under Mil. R. Evid. 413 to demonstrate propensity. Barnes, __ M.J. ___ ,
2015 CCA LEXIS 194; 6 see also United States v. Burton, 67 M.J. 150, 152 (C.A.A.F.
2009) (“The [g]overnment may not introduce similarities between a charged offense
and prior conduct, whether charged or uncharged, to show modus opera ndi or
propensity without using a specific exception within our rules of evidence such as
[Mil. R. Evid.] 404 or 413.”); Wright, 53 M.J. at 478, 483 (affirming use of charged
sexual assaults on different victims to prove propensity under Mil. R. Evid. 413).

                                   DISCUSSION

       This is a case of first impression. It is a sexual assault case involving three
charged sexual offenses by appellant against the same victim in the same place
during an approximate two-hour window of opportunity. The evidence at issue was
properly admitted at trial as direct evidence to prove the charged conduct. The
military judge granted the government’s motion to use this same evidence under Mil.
R. Evid. 413 as evidence of appellant’s propensity to commit sexual offenses against
SPC PV as she was coming in and out of consciousness. The parties have presented
no authority addressing the application of Mil. R. Evid. 413 to any case involving
similar facts, and we have found none.

       As this case involves evidence admitted at trial to directly prove the charged
offenses and to also demonstrate propensity in accordance with Mil. R. Evid. 413,
no new or uncharged evidence is at issue. Nonetheless, the military judge is
required to do the same Mil. R. Evid. 413 analysis described supra prior to allowing
the government to use the previously admitted evidence to demonstrate or argue that
appellant has the propensity to commit sexual offenses.

       We review the judge’s decision to allow the government to use the evidence
of charged misconduct for propensity purposes under Mil. R. Evid. 413 for an abuse
of discretion. See Solomon, 72 M.J. at 179 (citing Ediger, 68 M.J. at 248).




6
 In Barnes, there were two charged sexual assaults with different victims, one in
2006 and the other in 2009. __ M.J. at ___ , 2015 CCA LEXIS 194, at *2.




                                          11
HILLS—ARMY 20130833

       The military judge conducted a thorough Mil. R. Evid. 413 analysis, applying
the proper test. We first address the three threshold requirements for admission of
evidence under Mil. R. Evid. 413. The military judge properly found appellant was
charged with three sexual offenses. Each of the three charged offenses is an “other
sexual offense” with respect to each other. We recognize that when conducting the
second prong of the relevance analysis, the military judge did not expressly conclude
that the members could find by a preponderance of the evidence that the offense
occurred. Such a finding is a required part of the relevan ce analysis. Id. (citing
Wright, 53 M.J. at 483 (citing Huddleston, 485 U.S. at 689-90)). However, we
conclude the military judge implicitly reached the Huddleston conclusion because
when assessing the strength of the evidence under Mil. R. Evid. 403, the judge
concluded that the government “presented solid evidence of the alleged sexual acts”
and would be offering the testimony of SPC PV who had already described the
sexual assaults in detail in a sworn CID statement and forty pages of Article 32
testimony. See Solomon, 65 M.J. at 53 n.2.

       With respect to the third factor, the military judge found the proffered
evidence admissible under Mil. R. Evid. 401 and 402 as logically relevant to show
appellant’s propensity to commit sexual offenses against SPC PV and to show
appellant performed three different sexual offenses on SPC PV “while she was in
and out of consciousness due to intoxication.” Military Rule of Evidence 401 states
that evidence is relevant if “it has any tendency to make a fact more or less probable
than it would be without the evidence” and “the fact is of consequence in
determining the action.” Appellant’s commission of three sexual offenses during the
course of an approximately two hour window of opportunity against the same victim
has some tendency to demonstrate that appellant has propensity to commit sexual
offenses against SPC PV while she was coming in and out of consciousness. We
conclude the military judge did not abuse his discretion in finding the evidence
admitted to prove the charged offenses was also relevant to prove appellant’s
propensity to commit sexual assault under Mil. R. Evid. 413.

       Now we address whether the military judge abused his discretion in applying
the Mil. R. Evid. 403 balancing test. When the judge properly conducts the Mil. R.
Evid. 403 balancing test, we will uphold his decision absent a clear abuse of
discretion. Ediger, 68 M.J. at 248.

       We take no issue with the military judge’s findings regarding the strength of
proof, less prejudicial evidence, time to prove, and intervening circumstances and
relationships. However, we cannot agree with the legal conclusions drawn with
respect to frequency, temporal proximity, probative weight, and distraction.
Frequency, temporal proximity, and probative weight ar e factors that are invariably
linked. The probative weight of the evidence of other sexual offenses is examined in
the context of the frequency of the events, the temporal proximity between the
events, and the circumstances surrounding each of the events.



                                          12
HILLS—ARMY 20130833

       We recognize that cases involving temporal proximity usually address how
much time between sexual acts may be too much. See Berry, 61 M.J. at 96 (“The
length of time between the events alone is generally not enough to make a
determination as to the admissibility of the testimony. The circumstances
surrounding the individual and the events that transpired in the intervening period
must be taken into consideration.”). Specialist PV’s vague testimony regarding the
timing of the alleged sexual offenses leaves the military judge and us to speculate
whether appellant committed the three sexual offenses against SPC PV in a matter of
minutes or during a longer time frame within the two hours of opportunity. At most,
however, the sexual offenses occurred within a two-hour period. While the judge
did not specifically state that the short time period between offenses favored
admission, his ruling lends itself to that interpretation, and we disagree.

       Examining the frequency of the events, the judge held that the n umber of
alleged sexual offenses weighed “in favor of admission.” We again disagree.
Particularly in this case where the three alleged sexual offenses occurred within a
two-hour window with the same person and in the same location, the frequency does
not weigh in favor of use of the evidence to prove propensity.

       The probative weight of the alleged offenses must in turn be analyzed not
only through the circumstances surrounding the offenses, but in light of their
temporal proximity and frequency. The probative weight of propensity evidence
increases with the frequency and similarity of acts over a period of time. Evidence
showing that an accused has committed other, similar sexual offenses over a period
of time naturally weighs more heavily on the 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. The facts of this case fall at the lighter end of the
scale: separate acts committed at essentially the same t ime and place with the same
person and little to discern any greater history of behavior between the two. That is
not to say this is not evidence of propensity, it is merely to say that its probative
weight resides on the lower end of the scale. 7 Under these facts, appellant’s
commission of three sexual offenses against one person in one place at an uncertain
time during a two-hour window of opportunity has minimal probative weight
regarding appellant’s propensity to commit sexual offenses.

      Finally, the danger of confusing panel members with a propensity instruction
increases in a case where the evidence to prove propensity is relevant and admissible



7
 James, 63 M.J. at 221 (“People certainly do change over time and the fact that
someone acts in a particular manner does not mean they have always acted in that
manner, or for that matter that they always will.”).




                                          13
HILLS—ARMY 20130833

as direct evidence of each of the charged offenses and also as intrinsic evidence of
lustful intent, absence of accident, plan, and identity.

      Our examination of the factors involving frequency, temporal proximity,
probative weight, and confusion of the panel members leads us to conclude that the
value of this evidence as propensity evidence is especially low under the
circumstances. Consequently, because the probative value of the evidence of the
charged sexual offenses to prove appellant’s propensity to commit sexual offenses is
so low, the risk of unfair prejudice does not have to be high to substantially
outweigh the probative value. Whether our disagreement with the judge on this
matter leads us to conclude that he abused his discretion , we need not decide, for
even assuming he did, we find no prejudice. 8

8
  Appellant argues inter alia that this is an instructional error of constitutional
magnitude. In United States v. Schroder, our superior court held that the military
judge’s instruction regarding the use of uncharged misconduct evidence under Mil.
R. Evid. 414 was of constitutional magnitude because “the instruction was
susceptible to unconstitutional interpretation : that the members were permitted to
conclude that the presence of ‘similarities’ between the charged and uncharged
misconduct were, standing alone, sufficient evidence to convict [a]ppellant of the
charged offenses.” 65 M.J. 49, 55 (C.A.A.F. 2007).

       However, this case is not one of error in the instruction itself. The members
received a standard spillover instruction and a spillover instruction regarding the use
of the evidence admitted to directly prove each of the sexual assaults to also
demonstrate propensity. The juxtaposing of those two instructions could cause
confusion for the members, but not confusion of constitutional magnitude. See
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (Instructional errors are of constitutional
magnitude if there is “‘a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.” (quoting Boyde v.
California, 494 U.S. 370, 380 (1990))); see also United States v. Dacosta, 63 M.J.
575, 579 (Army Ct. Crim. App. 2006). The military judge’s instructions followed
the language of Benchbook Instruction 7 -13-1, Note 4 and were clear that while the
members could consider evidence of the charged offenses to prove appellant had a
propensity to commit sexual offenses, that evidence could not overcome a failure of
proof in the government’s case and the government must prove each element of each
charged offense beyond a reasonable doubt.

       We find United States v. Solomon to be more on point. 72 M.J. 176.
Although Solomon involved erroneous admission of an uncharged sexual assault, th e
error by the military judge in applying the Mil. R. Evid. 403 balancing test led to the
military judge giving the members an instruction on use of Mil. R. Evid. 413

                                                                       (continued . . .)


                                          14
HILLS—ARMY 20130833

       We conclude that any possible abuse of discretion in this respect did not have
a substantial influence on the findings. See Solomon, 72 M.J. at 182. In our
determination, we weighed: (1) the strength of the government’s case, (2) the
strength of the defense case, (3) the materiality of the evidence in question, and (4)
the quality of the evidence in question. United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999).

       The government’s evidence of the abusive sexual contact was stronger than
the earlier sexual assaults where SPC PV did not see her attacke r and felt “that
something was happening . . . but . . . that it was a dream.” Specialist PV testified
that at the time of the abusive sexual contact, she “woke up all the way ,” was lying
on her back, and saw appellant’s face. At the time there were only three people in
appellant’s house: appellant, SPC PV, and SGT JD. Sergeant JD was not wearing
white sweat pants as described by SPC PV and was excluded as a contributor to the
major male DNA profile found in the crotch of SPC PV’s underwear. The fresh
complaint by SPC PV and her distressed demeanor the morning after the sexual
assault also corroborates her testimony. The defense case was based on cross -
examination of the government witnesses, challenging SPC PV’s memory, and
arguing reasonable doubt. It was not particularly strong. The evidence to prove
propensity was not material or of high quality. All of the evidence at issue was
previously admitted as direct evidence of the charged offenses. The evidence was
relevant as intrinsic evidence of appellant’s pattern of lustful intent during his
commission of the three sexual assaults against SPC PV . United States v. Rude,
ARMY 20120139, 2015 CCA LEXIS 72, at *21 (Army Ct. Crim. App. 26 Feb. 2015)
(mem. op.) (citation omitted). The only exposure the members received regarding
the use of the evidence to establish appellant’s propensity to commit sexual assault
came from the military judge’s instruction. Neither the government nor the defense


(. . . continued)
evidence. See United States v. Solomon, NMCCA 201100582, 2012 CCA LEXIS
291, at *7-8 n. 1 (N.M. Ct. Crim. App. 31 Jul. 2012), rev’d, 72 M.J. 176. The Court
of Appeals for the Armed Forces held in Solomon that a military judge’s abuse of
discretion in applying the Mil. R. Evid. 403 balancing test to admit extrinsic
evidence under Mil. R. Evid. 413 was a nonconstitutional error. Id. at 182 (citing
Berry, 61 M.J. at 97). Similarly, in this case, althou gh the military judge did not
admit any uncharged or new evidence, it was his Mil. R. Evid. 403 balancing test
that caused the military judge to allow evidence otherwise properly admitted to also
be used by the members as propensity evidence. This caused him to give the
members Benchbook Instruction 7-13-1, Note 4 (Use of charged [Mil. R. Evid.] 413
or 414 evidence). Thus, as in Solomon, the error in this case would be that the
military judge abused his discretion in the Mil. R. Evid. 403 balancing analysis,
which is a nonconstitutional error.




                                          15
HILLS—ARMY 20130833

referenced propensity evidence in their closing arguments. B oth sides based their
arguments on whether the government had established each and every element of
each offense beyond a reasonable doubt. The members acquitted appellant of the
two most serious sexual assault offenses. We are confident the military judge’s
admission of the evidence for consideration by the panel as propensity evidence did
not substantially influence the findings.

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge KRAUSS and Judge PENLAND concur.

                                      FORTHE
                                     FOR  THE COURT:
                                             COURT:




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




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