         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201500024
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.
                      MARK A. BERGER
         Hospital Corpsman Third Class (E-4), U.S. Navy
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary
    Military Judge: Commander Robert P. Monahan, JAGC, USN.
  Convening Authority: Commandant, Naval District Washington,
             Washington Navy Yard, Washington, DC.
 Staff Judge Advocate’s Recommendation: Lieutenant Commander
                  Justin D. Pilling, JAGC, USN.
 For Appellant: Mr. David P. Sheldon, Esq.; Lieutenant R. Andrew
                      Austria, JAGC, USN.
 For Appellee: Major Kelli A. O’Neil, USMC; Major Cory A. Carver,
                               USMC.
                       _________________________
                          Decided 3 May 2018
                          _________________________
Before GLASER-ALLEN, FULTON, and SAYEGH, Appellate Military Judges
                          _________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                          _________________________
   SAYEGH, Judge:
   At a general court-martial a military judge convicted the appellant,
pursuant to his plea, of violating a lawful general order by wrongfully
possessing a synthetic cannabinoid, in violation of Article 92, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 892. At the same court-martial a
                    United States v. Berger, No. 201500024


panel of members with enlisted representation convicted the appellant,
contrary to his pleas, of two specifications of rape, one specification of
aggravated sexual contact, two specifications of abusive sexual contact, one
specification of assault consummated by a battery, and one specification of
sexual assault in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920
and 928.1 In May 2016, we affirmed the findings and sentence. United States
v. Berger, No. 201500024, 2016 CCA LEXIS 322, unpublished op. (N-M. Ct.
Crim. App. 26 May 2016). The Court of Appeals for the Armed Forces (CAAF)
set aside our decision and remanded the case for reconsideration in light of
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). United States v. Berger,
76 M.J. 128 (C.A.A.F. 2017).2
    In his first assignment of error (AOE), the appellant contends the military
judge erred by granting the government’s motion to use evidence of charged
sexual misconduct under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 413,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), to show
propensity to commit other charged sexual misconduct. The appellant also
raises a supplemental AOE alleging that the military judge erred by
instructing the members the appellant must be found guilty if the members
are firmly convinced of the crime charged.3 We specified a third issue:4
         WHETHER THE EVIDENCE IN THIS CASE RENDERS THE
         MILITARY JUDGE’S INSTRUCTION ON THE PROPER USE
         OF PROPENSITY EVIDENCE UNDER MILITARY RULE OF
         EVIDENCE 413, HARMLESS BEYOND A REASONABLE
         DOUBT, IN LIGHT OF UNITED STATES V. HILLS, 75 M.J.

   1  Prior to sentencing the military judge merged the following specifications in
Additional Charge II: Specification 8 (sexual assault) with Specification 7 (rape); and
Specification 10 (abusive sexual contact) with Specification 9 (aggravated sexual
contact.) Record at 1788.
   2  The CAAF granted review of (1) whether the military judge abused his
discretion by allowing the government to use evidence of charged sexual misconduct
to show the appellant’s propensity to commit other charged sexual misconduct, and
(2) whether the military judge erred by instructing members that they must convict
the appellant if they are firmly convinced the accused is guilty. 75 M.J. 479 (C.A.A.F.
2016).
   3 In accordance with United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), we
summarily reject the appellant’s supplemental AOE alleging that the military judge
erred by instructing the members that “if, based on your consideration of the
evidence, you are firmly convinced that the accused is guilty of the crime charged,
you must find him guilty.” United States v. Clifton, 35 M.J. 79 (C.M.A. 1992); see also
United States v. Rendon, 75 M.J. 908, 916-17 (N-M. Ct. Crim. App. 2016), rev. denied,
76 M.J. 128 (C.A.A.F. 2017).
   4   We heard oral argument on this AOE on 15 March 2018.

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                     United States v. Berger, No. 201500024


         350 (C.A.A.F. 2016), AND ITS PROGENY, UNITED STATES
         V. GUARDADO, 77 M.J. 90 (C.A.A.F. 2017), AND UNITED
         STATES V. LUNA, 76 M.J. 477 (C.A.A.F. 2017).
   After careful reconsideration of the record of trial, the parties’ pleadings,
and argument, we find the military judge’s instructions to the members were
confusing and created error materially prejudicial to the rights of the
appellant. In our decretal paragraph we set aside certain findings and the
sentence, and authorize a rehearing. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
    While the appellant was stationed in Okinawa, Japan, he met Ms. NKB, a
Japanese national. They married in August 2010. Ms. NKB had a young son.
The three of them lived together in Okinawa until November 2011 when the
appellant executed orders to Marine Corps Base Quantico, Virginia.
According to Ms. NKB, throughout their marriage the appellant engaged in
an ongoing course of physical and sexual violence against her, as well as
other controlling behavior. The charges to which the appellant pleaded not
guilty, including one specification of assault consummated by a battery under
Article 128, UCMJ, and ten specifications of sexual assault under Article 120,
UCMJ, covered the time period from October 2010 to November 2012.
   Ms. NKB’s account of her marriage formed the basis of the government’s
theory of the case. The government sought to prove that over the course of
the charged two-year period, the appellant used sexual, physical, and
psychological abuse to dominate and control his wife. In furtherance of this
theory, the government moved to admit significant evidence of uncharged
sexual, physical, and psychological abuse under MIL. R. EVID. 404(b). This
uncharged conduct was set forth in a six-page offer of proof attached to the
government’s motion. In a separate motion, the government also moved to
present this same evidence of uncharged sexual abuse under MIL. R. EVID.
413 as propensity evidence. Neither motion asked the court to instruct the
members that they could consider evidence of one charged sexual offense
when considering the other charged sexual offenses.
   The military judge issued a single ruling on the motions, granting them
both in part.5 The military judge’s ruling analyzed the uncharged physical
and psychological abuse under MIL. R. EVID. 404(b) and the uncharged sexual
abuse under MIL. R. EVID. 413. He found that evidence of uncharged sexual
assaults was relevant to establish the appellant’s motive (hostility to Ms.
NKB); his intent (to dominate and control Ms. NKB); the existence of a
common scheme or plan (also to dominate and control Ms. NKB); and that
these acts tended to rebut any claim that the appellant had a mistake of fact

   5   Appellate Exhibit (AE) LIX at 23.

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                          United States v. Berger, No. 201500024


as to whether Ms. NKB consented to the charged sexual conduct.6 He further
found the evidence of the charged sexual offenses which occurred earlier in
time established the appellant’s motive (hostility to Ms. NKB) and his intent
(to dominate and control Ms. NKB) to commit the charged sexual offenses
that occurred later in time, and this evidence of earlier charged sexual
offenses tended to refute any claim that the appellant had a mistake of fact
as to whether Ms. NKB consented to the charged sexual conduct.
    At trial, Ms. NKB testified that the appellant pysically and sexually
assaulted her and engaged in other controlling behavior throughout their
marriage. Her testimony included four instances of uncharged sexual abuse
permitted by the military judge under MIL. R. EVID. 413:7 (1) between
October and December 2011, the appellant forced her to engage in sexual
intercourse when she came home from work during lunch breaks;8 (2) in
November or December 2011, the appellant “grabbed [the] left side of [her]
breast” and “touched [her] private part” while driving between Pennsylvania
and Quantico;9 (3) in the October or November 2012 timeframe, the appellant
woke her in the bedroom of their home in Virginia, and unsuccessfully
attempted to engage in anal sex over her objection;10 and (4) in November
2012, after she refused his request to have intercourse, the appellant grabbed
her breasts and groin while masturbating in the basement of their Virginia
home.11 In addition to this uncharged sexual misconduct, Ms. NKB’s
testimony included 12 uncharged acts of physical and psychological abuse by
the appellant.12 This evidence was permitted by the military judge under
MIL. R. EVID. 404(b).13


    6Even though the military judge analyzed and admitted the uncharged sexual
abuse under both MIL. R. EVID. 404(b) and 413, his conclusions were appropriate to a
standard MIL. R. EVID. 404(b) prejudice analysis.
    7   AE LIX at 8.
    8   Record at 896-97.
    9   Id. at 921, 928.
    10   Id. at 965-66.
    11   Id. at 967.
    12 Ms. NKB testified to the following 12 uncharged instances of abusive and
controlling behavior. (1) In October or November 2010, in their home, the appellant
pushed Ms. NKB to the floor while cursing at her. The appellant then pressed his
foot on her face, telling her to “smell it” and poured water on her face. Record at 903-
05. (2) While living in Japan, the appellant entered the bathroom while she was
showering and “peed on her legs and feet.” Id. at 907-08. (3) While she was attending
a women’s group at her church, the appellant arrived and began yelling at her
because she had not answered her phone. Id. at 894-95. (4) While at work in Japan,
the appellant continuously called her on the phone to the point that her manager told

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                     United States v. Berger, No. 201500024


   The appellant’s defense included evidence depicting Ms. NKB as generally
unstable, quick to anger, hostile, and suicidal. The defense argued that Ms.
NKB’s primary motivation in marrying the appellant was to obtain financial
support for her and her son, as well as immigration benefits. Thus, the
defense theory was that Ms. NKB fabricated the various assault allegations
against the appellant in retaliation for his pursuit of a divorce, which would
have adversely affected Ms. NKB’s financial and immigration status.
    At the conclusion of the trial, the military judge instructed the members
on how to use the misconduct evidence—both charged and uncharged—
admitted under MIL. R. EVID. 413 and 404(b). He gave the standard spillover
instruction but told the members that there were exceptions to the general
rule that proof of one offense carries with it no inference that the appellant
was guilty of any other offense. These particular propensity instructions are
the focus of our analysis.
                                   II. DISCUSSION
A. MIL. R. EVID. 413 propensity instructions and plain error
    The appellant alleges that the military judge committed plain error by
instructing the members they could consider evidence of a charged sexual
assault for its tendency to show that the appellant had a propensity to
commit other charged sexual assaults later in time.
    We agree that, in light of the CAAF’s decision in Hills, this was error. See
also United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (clarifying that
evidence of a charged and contested offense cannot be used as propensity
evidence in support of another charged offense regardless of forum, the
number of victims, or whether the events are connected.) As in Hills, the


her to not talk on the phone. Id. at 895. (5) The appellant got mad at her for speaking
to her brother in Japanese and accused her of cheating on him. Id. at 906. (6) The
appellant took photos of her without her permission while she showered and told her
she was fat. Id. at 907. (7) The appellant told her that no one would believe her if she
reported his actions because everyone thinks he is a nice guy and he had already told
his co-workers that she is “psycho.” Id. at 908. (8) While living in Virginia, the
appellant told her that she could not get a driver’s license because she did not have a
social security number. Id. at 935. (9) The appellant told her that she could not sign
their apartment lease in Virginia because she did not have a social security number
and could not get one because she was not a U.S. citizen. Id. at 934. (10) The
appellant threatened to kick her out of the United States and keep her son because
her son was a United States citizen. Id. at 933. (11) Although she had an
international driver’s license the appellant only let her use the car when he was in a
good mood. Id. at 935. (12) She had to rely on the appellant to log her onto the
computer and he would only do so when he was in a good mood. Id. at 937-38.
   13   AE LIX at 13, 16.

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                    United States v. Berger, No. 201500024


instructions in this case “invited the members to bootstrap their ultimate
determination of the accused’s guilt with respect to one offense using the
preponderance of the evidence burden of proof with respect to another
offense.” Hills, 75 M.J. at 357. Therefore, the military judge’s interpretation
of MIL. R. EVID. 413 in this case “violated [a]ppellant’s presumption of
innocence and right to have all findings made clearly beyond a reasonable
doubt, resulting in constitutional error.” Id. at 356.
    Where we find instructional error of constitutional dimensions, we may
only affirm if the error is harmless beyond a reasonable doubt. United States
v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). Whether an error is harmless
beyond a reasonable doubt “will depend on ‘whether there is a reasonable
possibility that the evidence [or error] complained of might have contributed
to the conviction.’’’ United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (alteration in
original). Since Hills, our superior court has held that “[t]here 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 in the members’ ultimate determination.’” Guardado,
77 M.J. at 94 (quoting Hills, 75 M.J. at 358) (alteration in original). Although
the evidence of charged sexual misconduct that was the subject of the
erroneous instructions was but a small part of the overall propensity evidence
admitted by the military judge under MIL. R. EVID. 413, “we are not
convinced that the erroneous propensity instruction played no role in
[a]ppellant’s conviction.” Id.at 94-95. Moreover, we find the appellant
suffered prejudice from the erroneous instruction.
B. The military judge’s instructions
   Altogether, the military judge gave three sets of instructions informing
the members how they could use other acts—both charged and uncharged—
as they considered their findings. These three instructions applied to four
categories of evidence admitted under either MIL. R. EVID. 413 or 404(b) :
   (1)   uncharged sexual, psychological, and physical abuse;
   (2)   uncharged propensity evidence;
   (3)   charged non-sexual abuse; and
   (4)   charged propensity evidence.
   The military judge instructed the members that they could consider
evidence that the accused may have committed uncharged acts of sexual,
psychological, and physical abuse for the limited purpose of its tendency to:
         prove a motive of the accused to commit the charged sexual
         offenses and the charged offense of assault consummated by a
         battery, which is hostility towards Ms. [NKB]; prove that the


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                      United States v. Berger, No. 201500024


         accused intended to dominate and control his spouse; and prove
         a plan or design to dominate and control his spouse.14
    With respect to the uncharged propensity evidence, the military judge
instructed the members that if they found by a preponderance of the evidence
that the appellant committed the uncharged acts of sexual assault, they could
consider evidence of those offenses for their bearing on any matter to which
they were relevant to the charged sexual offenses, including their tendency to
show the appellant’s propensity or predisposition to engage in sexual assault.
    Regarding evidence of charged non-sexual abuse, the military judge
instructed the members that they could consider evidence the appellant
committed the charged offense of assault consummated by a battery for the
limited purpose of its tendency to prove the appellant’s motive to commit the
charged sexual offenses that occurred later in time. Here again, the military
judge described the potential motive as:
         hostility towards Ms. [NKB]; [proof] that the accused intended
         to dominate and control his spouse with respect to offenses of
         sexual assault which allegedly occurred later in time; and
         [proof of] a plan or design to dominate and control his spouse
         with respect to offenses of sexual assault which allegedly
         occurred later in time.15
    With respect to the charged propensity evidence, nine sexual assaults, the
military judge instructed the members that if they found by a preponderance
of the evidence that the appellant committed these offenses, then they could
consider that evidence for its bearing on any matter to which it might be
relevant to the other charged sexual offenses that occurred later in time. The
military judge stated that this included the evidence’s tendency to prove that
the appellant was motivated to commit other charged sexual offenses out of
hostility to Ms. NKB, that the appellant intended to dominate and control
Ms. NKB, and that the appellant had a plan or design to dominate and
control Ms. NKB. Consistent with the state of the law at the time, the
military judge further instructed the members they could consider evidence
of one charged sexual assault for its tendency to show the appellant’s
propensity or predisposition to engage in sexual assault.16




   14   Record at 1696.
   15   Id. at 1702
   16   Id. at 1699-1701.

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                       United States v. Berger, No. 201500024


C. Analysis of instructions for material prejudice
    The government argues that the evidence admitted under MIL. R. EVID.
404(b)—which included all of the MIL. R. EVID. 413 propensity evidence both
charged and uncharged—was so overwhelming that the erroneous propensity
instruction did not contribute to the members’ ultimate findings.
    We have previously found erroneous propensity instructions regarding
charged offenses harmless beyond a reasonable doubt where they did not
contribute to the verdict. In United States v. Luna, we found no prejudice
despite a similar Hills instruction where the overwhelming evidence included
a corroborating witness, incriminating text messages from the accused, and
no reference by the government to propensity or the propensity instruction
during closing argument or rebuttal. United States v. Luna, No. 201500423,
2017 CCA LEXIS 314, unpublished op. (N-M Ct. Crim. App. 9 May 2017),
aff’d, __ M.J. __, 2018 CAAF LEXIS 65 (C.A.A.F. Jan. 10, 2018) (summary
disposition). Similarly, in United States v. Upshaw, we found an erroneous
Hills instruction did not contribute to the members’ findings of guilty where
the evidence of guilt was “overwhelming” and included “substantial” evidence
corroborating the victim’s testimony. United States v. Upshaw, No.
201600053, 2017 CCA LEXIS 363 at *15, unpublished op., (N-M Ct. Crim.
App. 31 May 2017), rev. denied, 77 M.J. 35 (C.A.A.F. 2017).
    However, unlike in Luna and Upshaw, the government’s case here was
based almost exclusively on the uncorroborated testimony of Ms. NKB. The
evidence against the appellant did not include any significant corroborating
witnesses, physical evidence, or self-incrimination by the appellant. Although
Ms. NKB’s testimony was compelling, it was not overwhelming. Therefore, we
are unable to find beyond a reasonable doubt that her testimony rendered the
evidence of the earlier charged sexual assaults so unimportant as to not have
contributed to the members’ findings of guilt. The not guilty findings to all
the 2011 sexual assaults suggest the guilty findings for the sexual assaults in
2012 may have resulted from the members following the military judge’s
instruction that evidence of another charged offense, “may be relevant to
another charged offense of sexual assault which allegedly occurred later in
time.”17
    We are also not convinced beyond a reasonable doubt that the members
understood the conflicting standards of proof and contradicting statements
regarding the proper use of evidence of one charged specification to prove
another. Therefore, we find this to be a case where the erroneous propensity
instruction may have contributed to the members’ ultimate determination.
Similar to the holdings in Hills and Guardado:

   17   Id. at 1699.

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                    United States v. Berger, No. 201500024


        These “muddled . . . instructions implicate ‘fundamental
        conceptions of justice’ under the Due Process Clause” and raise
        “the risk that the members would apply an impermissibly low
        standard of proof.” As “[t]he juxtaposition of the preponderance
        of the evidence standard with the proof beyond a reasonable
        doubt standard with respect to the elements of the same
        offenses would tax the brain of even a trained lawyer,” we
        cannot deny that the potential for confusion among members
        was high. We simply cannot say “that [a]ppellant’s right to a
        presumption of innocence and to be convicted only by proof
        beyond a reasonable doubt was not seriously muddled and
        compromised by the instructions as a whole.”
Guardado, 77 M.J. at 94 (internal citations omitted).18
   Accordingly, under the particular facts of this case, we are unable to
conclude the military judge’s erroneous MIL. R. EVID. 413 instructions were
harmless with respect to the findings of guilty of violating Article 120, UCM.
With regard to the guilty findings to Additional Charge I and Charge II, we
conclude the findings are correct in law and fact, and no error materially
prejudicial to the substantial rights of the appellant occurred. Arts. 59(a) and
66(c), UCMJ.
                                III. CONCLUSION
    The findings of guilty to Charge II (2010 Article 128 offense) and
Additional Charge I (drug plea) and their sole specifications are affirmed. The
remaining findings of guilt and the sentence are set aside. The record of trial
is returned to the Judge Advocate General of the Navy for remand to an
appropriate convening authority with a rehearing authorized.
   Chief Judge GLASER-ALLEN concurs.


   FULTON, Judge dissenting:
   I would affirm the findings in this case because I am convinced beyond a
reasonable doubt that the Hills error in this case did not contribute to the
verdicts. I come to this conclusion for three reasons:

   18  See also United States v. Robertson, 77 M.J. 518 (A.F. Ct. Crim. App. 2017),
rev’d in part and remanded, No. 18-0087/AF, __ M.J. __,(C.A.A.F. Apr. 18,
2018)(reversed in part in light of Hills and Guardado) (summary disposition); United
States v. Rice, 2017 CCA LEXIS 745 (A.F. Ct. Crim. App. 21 Nov 2017), rev’d in part
and remanded, No. 18-0101/AF, __ M.J. __, 2018 CAAF LEXIS 208 (C.A.A.F. Apr. 18,
2018) (reversed in part in light of Hills and Guardado) (summary disposition).



                                         9
                  United States v. Berger, No. 201500024


    First, the government’s theory of this case was that the appellant engaged
in a long-term effort to dominate and control his wife, NKB. This effort took
the form of sexual, physical, and psychological abuse. The government’s
evidence and arguments were consistent with this theory. To the extent
members considered evidence of any charged offense relevant to other
charged offenses, I am convinced that they properly considered it for its
considerable tendency to show how the appellant intentionally engaged in
this long-term scheme of abuse and control.
    Second, I conclude that the Hills error is harmless is because the
government presented substantial evidence of uncharged acts of sexual
abuse. Even if the members did conclude that the appellant had a propensity
to commit sexual offenses, the uncharged acts of sexual abuse would have led
them to this conclusion anyway had the erroneous instruction never been
given.
   Third, after considering the instructions in their entirety, I do not believe
that they were so confusing as to cause the members to determine the
appellant’s guilt by an erroneously low standard.
                        I. MOTIVE, INTENT, AND PLAN
   Before trial, the government moved in limine to present evidence of
uncharged conduct. In a six-page offer of proof, the government moved to
admit 59 acts of uncharged abuse under MIL. R. EVID. 404(b).
    Some of this abuse was physical: the government sought to prove that the
appellant pushed Ms. NKB down, pressed his foot down against her face,
poured water on her, and even urinated on her. Some abuse was emotional:
the government sought to prove that the appellant told Ms. NKB she could
not get a driver’s license because she did not have a social security number,
and threatened to kick her out of the United States and take her son, who
was a United States citizen. The appellant took a photograph of Ms. NKB
while she was showering, mocked her with it, told her she was fat, and
refused to delete the picture. The appellant also restricted Ms. NKB from
using the car and the computer. And some abuse was sexual: the appellant’s
sexual abuse of Ms. NKB included nonconsensual sexual intercourse, anal
penetration, and other nonconsensual sexual acts. The government moved
separately to admit the uncharged acts of physical and emotional abuse
under MIL. R. EVID. 404(b), and the uncharged acts of sexual abuse under
MIL. R. EVID. 413.
   Even though the government moved separately to admit the uncharged
sexual abuse under MIL. R. EVID. 413, the relevance of all the uncharged
abuse—physical, psychological, and sexual—was exactly the same: the
uncharged misconduct demonstrated the appellant’s motive, intent, and plan.


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                  United States v. Berger, No. 201500024


In a detailed 23-page ruling, the military judge granted in part, and denied in
part, both motions. The military judge evaluated the uncharged physical and
psychological abuse under MIL. R. EVID. 404(b), preliminarily admitting three
acts of physical abuse and 13 acts of psychological abuse. This uncharged
abuse was admissible under MIL. R. EVID. 404(b) because it established the
appellant’s motive for committing the charged offenses and demonstrated his
intent and plan intent to dominate and control his wife.
    The military judge evaluated the uncharged acts of sexual abuse under
MIL. R. EVID. 413, preliminarily admitting 13 acts. But even though he
evaluated these acts under MIL. R. EVID. 413 and could have admitted them
for any relevant purpose, the military judge found that these acts were
admissible for the same reasons the uncharged physical and psychological
abuse were admissible: they tended to show the appellant’s hostility toward
his wife, and his motive, intent, and plan to dominate and control her. The
military judge’s ruling does not make any reference to the unique use the
government could have made of this evidence under MIL. R. EVID. 413--
namely to establish that the appellant had a general propensity to commit
sexual assaults. In other words, the evidence of these uncharged sexual
offenses would have been admissible under MIL. R. EVID. 404(b), even if there
were no MIL. R. EVID. 413.
    Of course, the motions in limine pertained to uncharged misconduct, not
the charged conduct that was the subject of the erroneous instruction in this
case. But the military judge’s findings as to the uncharged sexual conduct
illuminates how evidence of charged sexual conduct was relevant to the rest
of the offenses on the charge sheet. Evidence that is relevant to more than
one offense should be considered as to every offense to which it is relevant.
This is an especially important concept in this case. Evidence that the
appellant committed the charged sexual assaults was relevant in at least two
ways: Of course this evidence tended to prove the offense that was the direct
subject of the testimony. But it was also relevant for the same reason
evidence of the uncharged abuse—both sexual and nonsexual—was relevant;
to demonstrate the appellant’s motive, intent, and to prove the existence of
the appellant’s overarching plan to dominate and control NKB. In short, I am
convinced that had the members never received the erroneous instruction,
they would still have properly considered evidence of charged sexual offenses
to be relevant to the other charged offenses.
                         II. PROPENSITY EVIDENCE
    The government did not argue that the appellant had a general
propensity to commit sexual assault. This reflects the fact that the evidence
for propensity in this case—with or without the erroneous Hills instruction—
was not especially strong. All of the alleged sexual offenses occurred in the

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                    United States v. Berger, No. 201500024


context of one relationship. More particularly, they all occurred in the context
of the appellant’s ongoing effort to dominate and control NKB. The
government presented no evidence that the appellant engaged in sexual
offenses outside the context of this plan.
   But even if the members found that evidence that charged sexual offenses
tended to show the appellant had a propensity to commit sexual assault, the
error would still be harmless. The government introduced evidence of four
uncharged sexual assaults under Mil. R. Evid. 413. The members need not
have relied on evidence of charged assaults to make any determinations
about the appellant’s propensity to commit sexual assaults against NKB. The
erroneous instruction in this case harmlessly permitted the members to
consider evidence in a manner cumulative to properly admitted propensity
evidence. I detect no real risk of prejudice in the error.
                                III. INSTRUCTIONS
   In Hills, the Court of Appeals for the Armed Forces did not simply find
that the use of charged acts to prove that an accused has a propensity to
commit sexual offenses was unconstitutional. It also found that the
“muddled” instructions, which asked the members to consider the same
evidence first using one burden of proof and then another, “creat[ed] the risk
that the members would apply an impermissibly low standard of proof,
undermining both ‘the presumption of innocence and the requirement that
the prosecution prove guilt beyond a reasonable doubt[.]”1
    This is the only potential source of prejudice to give me pause. The
instructions, while consistent with the state of the law at the time, are
complicated. If the instructions might have left the members confused about
how to use the evidence in this case, we should set aside the affected findings.
I do not think they did.
    Again, testimony that the appellant committed the charged conduct was
relevant for two purposes: It tended to prove that the conduct being described
happened as alleged on the charge sheet. It also tended to prove that the
appellant had a motive, an intent, and a plan to dominate and control NKB,
all of which were relevant to the other charged instances of abuse.
   The military judge instructed the members that if they found by a
preponderance of the evidence that a charged sexual assault occurred, they
could consider that evidence



   1 United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting United States
v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000) (internal quotation marks and citation
omitted)).

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                     United States v. Berger, No. 201500024


         . . . for its bearing on any matter to which it is relevant in
         relation to the offense being deliberated upon. This includes
         the evidence’s tendency, if any, to prove a motive of the accused
         . . . prove that the accused intended to dominate and control his
         spouse . . . and prove a plan or design of the accused to
         dominate and control his spouse . . . [.]2
    That the military judge took the unusual step of explaining MIL. R. EVID.
413 evidence as if it had been presented under MIL. R. EVID. 404(b) is telling.
Just as the military judge’s analysis of the uncharged sexual assaults
demonstrated that that evidence was primarily relevant to show motive,
intent, and plan, so too this instruction shows that evidence of charged
conduct primarily tended to prove motive, intent, and plan—not
predisposition. And while the military judge did go on to tell the members
that they could consider evidence of charged sexual offenses to find a
propensity to commit them, uncharged sexual assaults already supported
such a finding.
    Admittedly, some of the factors that made this error prejudicial in Hills
are present here. The case rests largely on the testimony of one person. The
members accepted some of the complaining witness’s allegations and rejected
others. But my confidence that the error is harmless is not based on the
overwhelming strength of the government’s evidence. Rather, it is based on
the insignificance of the error under the facts of this case. The matter of the
appellant’s propensity to commit sexual assault was simply not a factor in
this case. Even if it had been, properly admitted evidence that could have
supported a finding of the appellant’s propensity ensured that any Hills error
was harmless.
   I respectfully dissent.
                                         For the Court




                                         R.H. TROIDL
                                         Clerk of Court




   2   Record at 1700.

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