UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                           BURTON, HAGLER, and SCHASBERGER
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                          Private E2 OMAR A. HERNANDEZ
                            United States Army, Appellant

                                      ARMY 20160217

                 Headquarters, 8th Theater Sustainment Command
                           Mark Bridges, Military Judge
              Colonel Anthony Febbo, Staff Judge Advocate (pretrial)
        Lieutenant Colonel Ryan B. Dowdy, Staff Judge Advocate (post-trial)


For Appellant: Captain Daniel C. Kim, JA; Emmanuel V. Tipon, Esquire (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Michael A. Korte, JA; Lieutenant Colonel Karen J. Borgerding, JA (on
brief).


                                       10 August 2018
                                 -----------------------------------
                                   MEMORANDUM OPINION
                                 -----------------------------------

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       Private Omar Hernandez appeals his convictions for the rape of Private (PV2)
MW and abusive sexual contact upon Private First Class (PFC) BO. Appellant
asserts the military judged erred by instructing the members they could consider
each of the charged sexual offenses for propensity purposes when considering the
other charged sexual offenses. 1 We agree the military judge erred in providing this
propensity instruction. We conclude, that while this error was harmless beyond a

1
 Appellant also asserts the military judge abused his discretion, first by denying
appellant’s request for a continuance to obtain the assistance of an expert, and
secondly by admitting a prior consistent statement over a defense objection. Finally,
appellant claims the cumulative errors in this case denied appellant a fair trial.
After due consideration, we find no merit in these assigned errors.
reasonable doubt in relation to the offense against PFC BO, we are unable to
conclude the same as to the offense involving PV2 MW and, accordingly, take
corrective action in our decretal paragraph.

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of violating a general order and one
specification of driving under the influence of alcohol in violation of Articles 92 and
111, Uniform Code of Military Justice, 10 U.S.C. §892, §911 (2012) [UCMJ]. An
enlisted panel convicted appellant, contrary to his pleas, of one specification of
abusive sexual contact and two specifications of sexual assault in violation of
Article 120, UCMJ. 2 The panel sentenced appellant to a dishonorable discharge,
confinement for six years, forfeiture of all pay and allowances, and reduction to the
grade of E-1, a sentence later approved by the convening authority.

                                  BACKGROUND

              1. Assault of Private MW (Specification 1 of Charge III).

       Appellant and PV2 MW went through basic training and advanced individual
training together. They both were assigned to Schofield Barracks, Hawaii, though in
different units. On 15 February 2015, appellant and one of appellant’s friends drove
PV2 MW and two of her friends to the mall. They ate, and before heading back to
base, bought alcohol.

       During the outing, appellant appeared to flirt with PV2 MW and be fixated on
her. Private MW did not have romantic interests in appellant. Once back at the
barracks, appellant went back to PV2 MW’s room. She was annoyed that her friends
had left her alone with appellant, as they knew she did not have romantic interests in
him, so she told appellant they should go hang out at PFC G’s room. They went to
PFC G’s room and continued to drink and watch TV.

       After leaving PFC G’s room, appellant followed PV2 MW back to her room
and asked if he could continue to hang out. Appellant sat on the chair and PV2 MW
sat on her bed as they watched Netflix. Eventually, PV2 MW told appellant she
wanted to “lock up.” She testified that after she indicated she wanted to go to sleep,
appellant sat down next to her and began kissing her. She pushed him away but he
pressed her back against the wall and using his weight pressed her onto the bed with
him on top. After removing their clothing, appellant forcibly placed his penis in her
vagina, and did not stop despite her repeated requests.




2
  The panel acquitted appellant of one specification of sexual assault. The military
judge dismissed Specification 2 of Charge III as being an unreasonable
multiplication of charges with Specification 1 of Charge III after the announcement
of findings.
                                           2
        Appellant’s testimony at trial was very different. He claimed he sat next to
PV2 MW on the bed, she put her leg over him and they began kissing. He further
testified that they took their clothes off, she climbed on top of him, and she inserted
his penis into her vagina. The sex ended when he got on top and she said stop. He
stopped immediately, but because he did not want to go home in the dark, he stayed
up texting his friend.

       The following morning PV2 MW called her sister. The sister sensed that PV2
MW was very upset and asked her what was wrong. Initially, PV2 MW was
reluctant to say anything but during the conversation, Private MW told her sister that
she had been forced to have sex. Also that morning PV2 MW had some discussion
with her suitemate, PFC EC. Private MW did not tell PFC EC she had been
assaulted. At trial PFC EC testified that she believed PV2 MW and appellant had
consensual sex, though she could not articulate a basis for that supposition.

      As part of the CID investigation, PV2 MW contacted appellant. Appellant
responded back using Snapchat. At trial, the government introduced the Snapchat
exchange, which included the following exchange:

             Private MW: I haven’t been to [sic] great honestly that’s
             why I wanted to talk to you instead of just trying to forget
             that night[.] I wanted to know why you did that to me[.]

             Appellant: I have been wanting to talk and explain but
             you didn’t wanna [sic] talk to me. I wasn’t all there that
             night but I stopped and I sat there and asked myself what I
             did. I drank too much we both did but I can’t remember it
             all. You don’t know how I’ve felt always thinking why I
             messed up.

             If I can take it back I would and not hurt you the way I did
             and ruin our friendship [. . .] I hate this feeling I have
             inside I know you can’t forgive me. Just know that wasn’t
             my intent.

             PV2 MW: Then why didn’t you stop when I told you too
             [sic], you knew I didn’t want that and you just did it
             anyway[.] [Y]ou were only my friend and nothing more
             and I made it clear to you many times [. . . .]

             Appellant: I know and I messed it all up.

        2. Assault of Private First Class BO (Specification 4 of Charge III).

      On 5 April 2015, appellant and Specialist (SPC) A attended a party at a co-
worker’s house. Appellant only knew a few people at the party. While there, he met

                                           3
PFC BO. During the course of the night appellant spoke to PFC BO intermittently.
Appellant played beer pong and drank throughout the night. Appellant lost contact
with his friend SPC A and did not realize that SPC A had left the party.

       As it got later the host, SPC CJ, went to bed and other people fell asleep in
the other rooms or in the living room. Private First Class BO and Petty Officer
Third Class (PO3) H went to sleep in one of the bedrooms upstairs. Meanwhile,
appellant was ready to leave the party but could not find his friend, SPC A.
Appellant went into various rooms looking for SPC A. He woke SPC CJ and asked
where to find SPC A. Specialist CJ told appellant they would find him in the
morning and went back to bed.

       Appellant went to the room where PFC BO was sleeping and laid on the floor
next to the bed. Private First Class BO woke up when she thought she felt someone
touching her leg. She fell back asleep. Again she awoke with the feeling someone
was touching her under her shorts; she felt the hand touch her thigh, buttocks and
genitalia. She grabbed the wrist of the person touching her and started yelling. The
wrist PFC BO grabbed was appellant’s. Appellant pretended to be sound asleep.
Private First Class BO woke PO3 H, who believed that appellant was asleep and did
not want to get involved. Private First Class BO dragged appellant out of the room
and towards the stairs.

       Specialist CJ, wakened by the noise, got up to see what was going on. He
separated the two and talked to each one. At first appellant denied doing anything,
but eventually admitted to SPC CJ that he “fucked up.” Private First Class BO
called a friend, got a ride home, and reported the incident right away.

       Appellant admitted touching PFC BO’s leg, but denied touching her anywhere
else. He made this claim during an interview with CID and when testifying at trial.
Though asked both times, appellant had no explanation why he reached up from
lying on the ground to grope PFC BO who was on a bed.

              3. Military Rule of Evidence 413 Propensity Instruction

       The government charged appellant with sexual assault of PV2 MW, abusive
sexual contact of PFC BO, as well as violating a general order by consuming alcohol
under the age of 21 and driving under the influence of alcohol. In a pretrial motion,
the government sought to use evidence of the sexual assault of PV2 MW and the
evidence of the sexual misconduct towards PFC BO under Military Rule of Evidence
[Mil. R. Evid.] 413 to establish that appellant had a propensity to commit sexual
misconduct.

       The defense did not file a written brief opposing the government’s motion but,
at a pretrial motions hearing, objected to the government’s request. The military
judge deferred ruling on the motion until after presentation of evidence at trial.
Consistent with the military judge’s ruling, the government did not discuss
propensity in its opening statement. After the close of the evidence, the military

                                          4
judge made his ruling granting the government’s Mil. R. Evid. 413 motion. He
tailored an instruction which read:

                    In this case, there is an exception to the general rule
             that you may not use a belief that the accused is guilty of
             one offense as a basis for inferring, assuming, or proving
             that he committed any other offense. In a criminal case in
             which the accused is charged with sexual offenses,
             evidence of the accused’s commission of another sexual
             offense or offenses may be considered for its bearing on
             any matter to which it is relevant, to include the accused’s
             propensity to commit sexual offenses.

                     Therefore, you may consider the evidence of the
             charged offenses in which [PV2 MW] is an alleged victim
             for its tendency, if any, to show the accused’s propensity
             to commit the charged offenses in which [PFC BO] is an
             alleged victim. Likewise, you may consider the evidence
             of the charged offenses in which [PFC BO] is an alleged
             victim for its tendency, if any, to show the accused’s
             propensity to commit the charged offenses in which [PV2
             MW] is an alleged victim.

                    However, evidence of another sexual offense, on its
             own, is not sufficient to prove the accused guilty of a
             charged offense. You may not convict the accused solely
             because you believe he committed another sexual offense
             or offenses or solely because you believe the accused has
             a propensity to commit sexual offenses. Bear in mind that
             the government has the burden to prove that the accused
             committed each of the elements of each charged offense.

Neither the defense nor the government objected to the instruction. The trial
counsel only made one reference to the military judge’s instruction.

                              LAW AND DISCUSSION

       The decision to admit evidence is reviewed for an abuse of discretion. United
States v. Hukill, 76 M.J. 219, 221 (C.A.A.F. 2017) (citation omitted). “The meaning
and scope of M.R.E. 413 is a question of law that is reviewed de novo.” United
States v. Hills, 75 M.J. 350, 354 (C.A.A.F. 2016) (citation omitted). In Hills, the
Court of Appeals for the Armed Forces (CAAF) found that using R.C.M. 413 to
admit evidence of charged misconduct to establish other charged misconduct
“violated Appellant’s presumption of innocence and right to have all findings made
clearly beyond a reasonable doubt, resulting in constitutional error.” Id. at 356.
Since the instruction given by the military judge was in error, we must test that error


                                           5
for prejudice under the standard of harmless beyond a reasonable doubt. 3 United
States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). 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) (citation omitted); United States v. Chandler, 74 M.J.
674, 685 (Army Ct. Crim. App. 2015).

           1. Effect of the Ruling with Regard to Specification 1 of Charge III
                                    (Rape of PVT MW)

       The government case involving PV2 MW was strong. There was no question
that a sexual act occurred, as appellant admitted to CID and at trial that he had
sexual intercourse with PVT MW. The issue was whether PVT MW consented to
that act.

       The government introduced evidence which showed PVT MW had expressed a
lack of interest in a romantic relationship with appellant and that PVT MW told her
sister about being assaulted the morning after the incident. The evidence included
text messages between appellant and PVT MW after the assault wherein appellant
admitted to “messing up” and lamenting the fact PVT MW “can’t forgive him.”
Testimony of witnesses corroborated the events leading up to PVT MW and
appellant winding up in PVT MW’s barracks room. All of this evidence lent
credence to PVT MW’s testimony and made her a very credible witness.

        The defense case was weak. Appellant testified and was not particularly
credible. In relation to the text messages, defense counsel suggested through the
redirect of appellant that he may not have fully communicated what he meant in the
messages to PVT MW because English was appellant’s second language. This
suggestion was undercut by appellant’s two videotape interviews with CID and his
in-court testimony where he was articulate and had little or no accent. Defense
counsel did not shake the testimony of PVT MW; they brought in several witnesses
to testify that PVT MW had a reputation for untruthfulness, but in the end her
testimony was more credible than appellant’s. The strongest part of the defense case
was the testimony of PFC EC, who observed PVT MW the morning after the
incident. Based on this encounter, PFC EC believed the interaction between
appellant and PVT MW had been consensual.

       Though there was external corroboration for some facets of the government
case, in the final analysis we cannot conclude that improper propensity evidence and
the erroneous propensity instruction did not contribute to the verdict.




3
    Appellant objected to the government’s motion, thereby preserving the error.
                                            6
        2. Effect of the Ruling with Regard to Specification 4 of Charge III
                       (Abusive Sexual Contact with PFC BO)

       The government case involving PFC BO was overwhelming. In addition to
witnesses who saw PFC BO grabbing appellant and dragging him from the room,
appellant admitted to touching the leg of PFC BO and admitted he “fucked up.”
Appellant had no explanation for why he would have reached up from the floor to
grab PFC BO. Though defense tried to undermine the credibility of PFC BO her
actions in the immediate aftermath of the event spoke louder than any words.

       The defense case was weak. Appellant’s testimony corroborated the victim’s
testimony in many details. Where appellant deviated from the victim’s description–
for example, appellant denied he was dragged from the room–there were witnesses
who corroborated PFC BO’s version of events. Here we can “rest assured that an
erroneous propensity instruction did not contribute to the verdict by ‘tipp[ing] the
balance in the members’ ultimate determination.’” United States v. Guardado, 77 MJ
90, 94 (C.A.A.F. 2017) ( quoting Hills, 75 M.J. at 358). We are convinced, beyond
a reasonable doubt that the Mil. R. Evid. 413 instruction did not contribute to the
finding of guilty as to this specification.

                                  CONCLUSION

      Upon consideration of the entire record, the finding of guilty of Specification
1 of Charge III is set aside. The remaining findings of guilty are AFFIRMED. The
sentence is set aside. The same or a different convening authority may: 1) order a
rehearing on Specification 1 of Charge III and the sentence; 2) dismiss Specification
1 of Charge III and order a rehearing on the sentence only; or 3) dismiss
Specification 1 of Charge III and reassess the sentence, affirming no more than a
dishonorable discharge and confinement for two years. 4

      Senior Judge BURTON and Judge HAGLER concur.

                                       FOR THE COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court

4
  In reassessing the sentence we are satisfied that the sentence adjudged, absent
Specification 1 of Charge III, would have been at least a dishonorable discharge and
confinement for two years. See United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The
reassessment being both appropriate and purging the record as it stands of error does
not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art.
63.
                                          7
