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

                             UNITED STATES, Appellee
                                          v.
                           Sergeant ARTURO A. TAFOYA
                            United States Army, Appellant

                                      ARMY 20140798

                             Headquarters, Fort Drum
                         S. Charles Neill, Military Judge
             Lieutenant Colonel Derek D. Brown, Staff Judge Advocate


For Appellant: Major Christopher D. Coleman, JA; Captain Jennifer K. Beerman, JA
(on brief); Lieutenant Colonel Tiffany M. Chapman, JA; Lieutenant Colonel
Christopher D. Carrier, JA; Captain Cody Cheek, JA (on brief following remand);
Lieutenant Colonel Christopher D. Carrier, JA; Major Brendan R. Cronin, JA;
Captain Cody Cheek, JA (on reply brief following remand).

For Appellee: Major Daniel D. Derner, JA (on brief); Colonel Tania M. Martin, JA;
Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA (on brief
following remand).

                                     28 November 2017

                   --------------------------------------------------------------
                   SUMMARY DISPOSITION ON FURTHER REMAND
                   --------------------------------------------------------------

SALUSSOLIA, Judge:

       The findings of guilt as to three specifications of abusive sexual contact are
reversed in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United
States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017); the remaining finding is affirmed; the
sentence is set aside; and a rehearing is authorized.

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of violating a lawful general regulation,
and three specifications of abusive sexual contact, in violation of Articles 92 and
120, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920 (2012) [hereinafter
UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct
TAFOYA—ARMY 20140798

discharge, confinement for twenty-one months, forfeiture of all pay and allowances,
and reduction to the grade of E-1.

       On 5 February 2016, this court summarily affirmed the findings and sentence.
United States v. Tafoya, ARMY 20140798, Army Ct. Crim. App. 5 Feb. 2016). On 8
August 2016, the Court of Appeals for the Armed Forces (CAAF) set aside our
decision and remanded the case to this court in light of Hills. United States v.
Tafoya, 75 M.J. 430 (C.A.A.F. 2016). On remand, this court again affirmed the
findings and sentence. United States v. Tafoya, ARMY 20140798, 2017 CCA LEXIS
107 (Army Ct. Crim. App. 14 Feb. 2017) (summ. disp.). On 26 July 2017, the CAAF
reversed our decision and remanded the case to our court for further review under
Article 66, UCMJ, in light of Hukill. United States v. Tafoya, 76 M.J. 439 (C.A.A.F.
2017).

                                  BACKGROUND

       In Charge I, the government charged appellant with three specifications of
abusive sexual contact involving three different soldiers. Specification 1
involved appellant placing his mouth on Specialist (SPC) AG’s nipple.
Specification 2 involved appellant touching Specialist SPC JK’s thigh with his
groin. Specification 3 involved appellant touching Private (PV2) DH’s chest
with his hand.

       Prior to trial, the government requested the military judge consider
Specifications 1 through 3 of Charge I for propensity purposes under Military
Rule of Evidence [hereinafter Mil. R. Evid.] 413. Over defense’s objection to
the government’s request, the military judge issued a ruling stating in pertinent
part “the government has satisfied its burden and may argue that evidence
presented by each of the alleged victims listed under Charge I may be used [] as
evidence that the accused committed the other abusive sexual contact alleged in
the other specifications of Charge I.” The government, in turn, referenced
propensity during its closing argument. The military judge found appellant
guilty of the three specifications.

                                 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 under Mil. R. Evid. 413
that permits evidence of charged sexual misconduct to be considered as propensity
evidence when considering other charged sexual misconduct. Hills, 75 M.J. at 352.
Recently, in Hukill, the Court of Appeals for the Armed Forces explained the Hills
reasoning also applies to trials by military judge alone. 76 M.J. at 220. In that case,
the military judge allowed the propensity evidence involving charged offenses to be


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TAFOYA—ARMY 20140798

used against each charged offense for which appellant was convicted and, therefore,
created constitutional error. Id.

       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).

       To prove Specifications 2 and 3, the government relied on the testimony of
the accusers, both of whom tended to downplay the nature of the incidents. As to
Specification 1, the government introduced DNA evidence along with the accuser’s
testimony. The defense, in turn, raised the defense of mistake of fact as to consent.

       Having reviewed the evidence in light of the military judge’s ruling, even if
we believe the evidence factually sufficient to support appellant’s guilt as to each
specification, we are not convinced beyond a reasonable doubt that the Mil. R. Evid.
413 error did not contribute to the findings of guilt on Specifications 1 through 3 of
Charge I. Accordingly, we grant relief in our decretal paragraph.

                                   CONCLUSION

       The findings of guilty as to Specifications 1 through 3 of Charge I and Charge
I are SET ASIDE. The remaining finding of guilty is again AFFIRMED.
Additionally, the sentence is SET ASIDE. A rehearing is authorized on
Specifications 1 through 3 of Charge I and Charge I and the sentence. The case is
returned to the same or a different convening authority.

      Senior Judge CAMPANELLA and Judge FLEMING concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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



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