UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, TELLITOCCI, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                    Staff Sergeant JEFFERY G. BARNES, JR.
                          United States Army, Appellant

                                   ARMY 20120308

                            Headquarters, Fort Stewart
                         Tiernan P. Dolan, Military Judge
                 Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Captain Patrick A. Crocker, JA (argued); Colonel Kevin Boyle, JA;
Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Patrick A. Crocker, JA (on
brief).

For Appellee: Captain Carling M. Dunham, JA (argued); Major John K. Choike, JA;
Captain Benjamin W. Hogan, JA; Captain Carling M. Dunham, JA (on brief).


                                       8 May 2015
                              -----------------------------------
                                OPINION OF THE COURT
                              -----------------------------------

TELLITOCCI, Judge:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of two specifications of rape in
violation of Article 120, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 920 (2000 & Supp. V; 2006 & Supp. I). The panel sentenced appellant
to a dishonorable discharge, confinement for fifteen years, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The convening authority approved
only so much of the sentence as provides for a dishonorable discharge, confinement
for fourteen years and nine months, forfeiture of all pay and allowances, and
reduction to the grade of E-1.
BARNES—ARMY 20120308

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, one of which warrants discussion but no relief. 1

      Appellant alleges, in pertinent part:

             THE MILITARY JUDGE ABUSED HIS DISCRETION BY
             GIVING A MILITARY RULE OF EVIDENCE 413
             MERITS INSTRUCTION TO THE PANEL BECAUSE NO
             EVIDENCE HAD BEEN ADMITTED BY THE
             MILITARY JUDGE FOR 413 PURPOSES.

                                   BACKGROUND

      Appellant was charged with raping two separate victims, one in 2006 and one
in 2009.

       During a pretrial motions session pursuant to Article 39(a), UCMJ, the
military judge and the parties discussed a defense motion to exclude evidence of
uncharged misconduct concerning a sexual assault offense alleged to have been
committed by appellant as a juvenile. The parties discussed the applica tion of
Military Rule of Evidence [hereinafter Mil. R. Evid.] 413. During this session, the
parties and the military judge briefly discussed the factors set forth in United States
v. Wright, 53 M.J. 476 (C.A.A.F. 2000), as well as the balancing test of Mil. R.
Evid. 403 as discussed in United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005). The
military judge ruled that the alleged juvenile misconduct would not be relevant
unless the defense opened the door by presenting a claim that the appellant “had
never been accused of such crimes before.”

       After this dialogue, the military judge discussed a possibility raised by the
government that they may, at closing, argue Mil. R. Evid. 413 “propensity” based
upon the two acts of charged misconduct themselves. Once the military judge
determined that the possibility of any propensity argument would not occur until
closing, the parties agreed that it was an instructional issue , and the military judge
directed that it be taken up after the merits evidence had been presented. Neither
party objected to this course of action.




1
 Appellant also personally raises matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), none of which merit s discussion or relief.




                                              2
BARNES—ARMY 20120308

                                      2006 Incident

       The first specification alleged that, in July of 2006, appellant raped a fellow
soldier, KAS. During this time, appellant was on temporary duty (TDY) at Fort
Huachuca, Arizona for training. After an evening spent drinking together at
multiple bars, because they were all too intoxicated to drive anywhere, appellant
invited KAS and her female friend BH back to his hotel room . The female soldiers
decided to spend the night sleeping in the living room of appellant’s hotel suite on
the pull-out sofa. Appellant’s bed was in a separate room with its own door. At
some time during the night, KAS woke up to a sensation which she described as a
very sharp pain of a non-lubricated penis in her vagina. She testified that she tried
to push the person off and told him to stop and shortly thereafter the person stopped.
She quickly fell back asleep. KAS woke up with her pants around her ankles. That
morning KAS reported the rape to her military leadership and local civilian law
enforcement. She was unable to identify her assailant, but testing of vaginal swabs
from KAS revealed the presence of DNA belonging to appellant.

         Appellant testified he could not recall any events after he went to bed that
night.

                                      2009 Incident

       The second specification alleged that in January of 2009, appellant raped a
civilian, NB, while appellant was once again TDY at Fort Huachuca for training.
NB testified that she met appellant while sharing a cab with him, and she then
accompanied appellant and a fellow soldier, Staff Sergeant (SSG) RS, to a karaoke
club in town. After an evening of drinking, the three proceeded back to appellant’s
room in the on-post guest house. The three continued drinking in appellant ’s room.
At some point that night, appellant and NB engaged in consensual kissing while on
the balcony for a cigarette. Later, NB and SSG RS left appellant’s room to take a
cab back to town. Once the two of them were about to get into the cab, NB told RS
she had left her purse upstairs and that he should leave and she would take a
separate cab after retrieving her purse. NB admitted that this was a subterfuge
concocted by she and appellant to ensure that SSG RS left the area so that NB could
return to appellant’s room to engage in consensua l sexual activity with him.

       Upon her return to the room, appellant and NB engaged in consensual sexual
activities. NB testified that, initially, appellant wore a con dom as they engaged in
consensual sexual intercourse. Then, appellant withdrew his penis and started to
perform oral sex on her. When appellant subsequently asked NB to reciprocate, she
refused, whereupon appellant re-engaged with vaginal intercourse. NB complained
that appellant had removed the condom and that he should stop. She testified that
she repeatedly told him to stop and attempted to push him off, but appellant refused.
She further testified appellant grabbed her by the back of the neck and p onytail and



                                             3
BARNES—ARMY 20120308

held her down until he finished, then apologized because he “just wanted her so
bad.” NB departed appellant’s room and was picked up shortly thereafter by a
military policeman (MP) after she was observed walking down the road toward the
installation exit. The MP described her as crying and hysterical. She was
transported to the military police station where she subsequently reported t he rape.

       Appellant’s testimony comports with that of NB until just after the point when
NB declined to reciprocate oral sex. Appellant testified that he put on another
condom and the subsequent intercourse was consensual. He further testified that
shortly thereafter they parted amicably with no indications of any distress.

                               Propensity Instructions

      At the conclusion of the merits portion of the trial , the military judge
discussed his proposed instructions with counsel and appellant. D efense counsel
objected to the military judge’s proposal to give the “Other Crimes, Wrongs or Acts
Evidence” instruction from the Military Judges’ Benchbook. Dep’t of Army, Pam.
27-9, Legal Services: Military Judges’ Benchbook [hereinafter Benchbook], para.
7-13-1, n.4 (1 Jan. 2010). The defense objected to the form of the instruction
generally and requested instead the standard “anti-spillover” instruction from
paragraph 7-17 of the Benchbook. The military judge stated:

             Your objection to note 4 is overruled. 413 [Mil. R. Evid.]
             is what it is. While it is contrary to the spillover
             instruction and common law jurisprudence, in that 413
             evidence allows for propensity evidence thus note 4 is
             going to be given. It contains within it a spillover like
             instruction and caveats that with the notion of propensity
             evidence. So your objection is overruled. I’m not going
             to give the spillover instruction because it contradicts that
             which the panel members may do under 413.

      The record does not demonstrate that the military judge conducted an
application of the Wright factors, nor does it reflect that he performed a Mil. R.
Evid. 401 relevance test or a Mil. R. Evid. 403 balancing test.

      The military judge instructed the members in accordance with the Benchbook:

             Evidence that the accused committed the sexual assault
             alleged in each specification and charge may have no
             bearing on your deliberations in relation to the other
             specifications and charge, unless you first determine, by a
             preponderance of the evidence that it is more likely than
             not the offense alleged in one of these specifications



                                           4
BARNES—ARMY 20120308

          occurred. For example, if you determine by a
          preponderance of the evidence, the offense alleged in one
          of the specifications occurred, even if you were not
          convinced beyond a reasonable doubt that the accused is
          guilty of that offense, you may nonetheless then consider
          the evidence of that offense for its bearing on any matter
          to which it is relevant in relation to the other charge. 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 this other offense or
          solely because you believe the accused has a propensity or
          predisposition to engage in sexual assault. In other w ords,
          you cannot use this evidence to overcome a failure of
          proof in the government’s case, if you perceive any to
          exist. The accused may be convicted of an alleged 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 another 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
          establish the accused’s guilt beyond a reasonable doubt
          remains as to each and every element of ea ch offense
          charged. Proof of one charged offense carries with it no
          inference that the accused is guilt y of any other charged
          offense.

    Government counsel argued during closing, in pertinent part:

          [L]ighting does strike twice and the accused is proof
          positive of it. . . . The accused struck again in 2009. It
          even started out in the same place, Fort Huachuca,
          Arizona, the accused is TDY. He had gotten away with it
          the first time. No charges have been pressed yet. So he
          thought, “hey this is a pretty good gig. I can go have sex
          whenever I want. Take it from an unsuspecting woman.
          They didn’t catch me three years ago.”




                                       5
BARNES—ARMY 20120308

       In their closing, the defense reiterated the military judge’s instruction that
“each offense must stand on its own and proof of one offense carries no inference
that the accused is guilty of the other offense.”

        In rebuttal, government counsel expressly referred to propensity:

               I ask that you pay careful attention to all of the
               instructions in their entirety, not just certain portions of
               them, and know that the accused’s propensity to commit
               these offenses can be evaluated if you find he has at least
               committed the offense by [a] preponderance of the
               evidence standard. . . . The defense would like you to
               believe that the rape in 2009 and the rape in 2006 were so
               different, but yet, they are so similar. Each time the
               accused took what he wanted, when he wanted, without
               the consent of the other parties, of the victim. Each time.
               They are actually very similar.

                                          LAW

          Military Rule of Evidence 413 is entitled “Evidence of similar crimes in
    sexual assault cases” and provides:

               In a court-martial in which the accused is charged with an
               offense of sexual assault, evidence of the accused’s
               commission of one or more offenses of sexual assault is
               admissible and may be considered for its bearing on any
               manner to which it is relevant.

       An accused may not be convicted based upon a general criminal disposition.
United States v. Hogan, 20 M.J. 71, 73 (C.M.A. 1985). The government may not
introduce similarities between a charged offense and prior conduct, whether charged
or uncharged, without using a specific exception within our r ules of evidence, such
as Mil. R. Evid. 404 or 413. Wright, 53 M.J. at 480. In this case, Mil. R. Evid. 404
is not applicable, but Mil. R. Evid. 413 is directly pertinent.

       The history of Mil. R. Evid. 413 2 was succinctly discussed by our superior
court in Id. at 480-81. It is clear that Mil. R. Evid. 413 was intended to be a
significant change from historical practices by creating an exception to Rule
404(b)’s general prohibition against propensity evidence by specifically allowing the
2
 Military Rule of Evidence 413 is virtually identical to Federal Rule of Evidence
413.




                                             6
BARNES—ARMY 20120308

use of a defendant’s propensity to commit sexual offenses fo r its bearing “on any
matter to which it is relevant.” Mil. R. Evid. 413(a). “[I]nherent in [Mil. R. Evid.]
413 is a general presumption in favor of admission. ” Berry, 61 M.J. at 94-95; see
also Wright, 53 M.J. at 482-83.

      It is, however, “a constitutional requirement that evidence offered under [Mil.
R. Evid.] 413 be subjected to a thorough balancing test” under Mil. R. Evid. 403.
United States v. Dewrell, 55 M.J. 131, 138 (C.A.A.F. 2001). In this context, the
Mil. R. Evid. 403 balancing test “should be applied in light of a strong legislative
judgment that evidence of prior sexual offenses should ordinarily be admissible.”
United States v. Solomon, 72 M.J. 176, 180 (C.A.A.F. 2013) (citation and internal
quotation marks omitted).

        In most reported cases, Mil. R. Evid. 413 is used by the prosecution to
introduce evidence of uncharged misconduct in an attempt to establish the accused’s
propensity to commit sexual assaults. In such a case, prior to the admission of
evidence of such misconduct, the military judge is required to analyze the proposed
evidence for relevance and probative value. In Wright, the Court of Appeals for the
Armed Forced (C.A.A.F.) summarized and referenced numerous federal cases on this
point. 53 M.J. at 482. In addition, the Wright court listed three threshold findings
required before evidence is admitted under Mil. R. Evid. 413: “1) the accused [is]
charged with an offense of sexual assault; 2) the proffered evidence [is] evidence of
the accused’s commission of another sexual assault; and 3) the evidence is relevant
under [Mil. R. Evid.] 401 and [Mil. R. Evid.] 402.” Solomon, 72 M.J. at 179 (citing
Berry, 61 M.J. at 95; Wright, 53 M.J. at 482). Id. After this threshold finding, the
trial court must then apply a balancing test under Mil. R. Evid. 403. Id. at 179-80.
The court in Wright listed multiple, non-exhaustive factors for trial courts to
consider in performing the Mil. R. Evid. 403 balancing test. 3 Wright, 53 M.J. at 482.



3
    The nine factors are:

               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).




                                             7
BARNES—ARMY 20120308

      Once evidence is admitted pursuant to Mil. R. Evid. 413, the panel members
must be given appropriate instructions. In United States v. Dacosta, this court
placed a duty on military judges to provide specific guidance to panel members :

             You have heard evidence concerning allegations that the
             accused may have committed (another) (other) uncharged
             offense(s) of sexual assault. The accused is not charged
             with (this) (these) other offense(s) involving (this) (these)
             individual(s). This evidence should have no bearing on
             your deliberations unless you determine (this) (these)
             event(s) occurred. If you determine by a preponderance of
             the evidence that the other uncharged offense(s) occurred,
             you may consider the evidence for its bearing on any
             matter to which it is relevant in relation to the charged
             offense(s). (It has no bearing on any of the other offenses
             charged.)
             You may not, however, convict the accused solely because
             you believe (he) (she) committed (this) (these) other
             offense(s) (or solely because you believ e the accused has a
             propensity to engage in sexual assault.)
             You may not use this evidence as a substitute for evidence
             that the accused actually committed the crimes for which
             (he) (she) stands charged. In other words, you cannot use
             this evidence to overcome a failure of proof in the
             government’s case, if you perceive any to exist, as the
             accused may be convicted of an offense only if you are
             satisfied the government has proven every element of each
             charged offense beyond a reasonable doubt.
             Each offense must stand on its own and you must keep the
             evidence of each offense separate. The burden is on the
             prosecution to prove the accused’s guilt beyond a
             reasonable doubt as to each and every element of (each)
             (the) offense(s) charged.

63 M.J. 575, 584-85 (Army Ct. Crim. App. 2006).

       In the instant case, no evidence of uncharged misconduct was admitted. To
the contrary, the only admitted evidence of sexual assault offenses committed by
appellant was directly related to one or the other of the charged rapes. See United
States v. Schroder, 65 M.J. 49, 52 (C.A.A.F. 2007) (evidence of both charged and
uncharged sexual misconduct used as other acts evidence to prove charged offenses).
We find no prohibition against or reason to preclude the use of evidenc e of similar
crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact


                                           8
BARNES—ARMY 20120308

that the “similar crime” is also a charged offense. We note that the instruction
proposed by this court in Dacosta does not make mention of inferences—
permissible, impermissible, rebuttable, or otherwise. 63 M.J. at 584-85.
Nonetheless, the above Dacosta instruction is still demonstrative of the protections
required when “propensity” is put before the members.

       We review a military judge’s non-mandatory panel instruction for an abuse of
discretion. United States v. Forbes, 61 M.J. 354, 358 (C.A.A.F. 2005). In
evaluating non-constitutional error, we must determine whether the instructional
error had “substantial influence” on the findings. United States v. Gibson, 58 M.J.
1, 7 (C.A.A.F. 2003) (internal quotation marks omitted) (citing Kotteakos v. United
States, 328 U.S. 750, 765 (1946)). However, if we find error such that it rises to a
constitutional dimension, we may only affirm the affected findings of guilty if we
determine the error was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 24 (1967); United States v. Kreutzer, 61 M.J. 293, 298-99
(C.A.A.F. 2005). To find instructional error of a constitutional dimension, our court
would have to find “‘a reasonable likelihood that the jury has applied the challenged
instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S.
62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

                                    DISCUSSION

       The question becomes: is this a Mil. R. Evid. 413 case? When faced with a
similar situation, the C.A.A.F., in United States v. Burton, determined that it was
not. 67 M.J. 150, 153 (C.A.A.F. 2009). 4

       In Burton, appellant was charged with and convicted of two distinct incidents
separated by several years. Id. at 151-52. However, there was no indication of any
kind that the military judge or the parties understood , considered, or were attempting
to apply Mil. R. Evid. 413 in any way. Id. at 152-53. Nevertheless, at trial during
its closing, the government argued that the panel “could compa re the similarities
between charged sexual offenses for a propensity to commit ‘these type of
offenses . . . .’” Id. at 151. The military judge did not give an instruction regarding
the use of propensity evidence but did give the standard spillover instru ction found
in paragraph 7-17 of the Benchbook. On appeal, the Air Force Court of Criminal
Appeals determined that since the evidence of appellant ’s offenses could have been
admitted as propensity evidence, allowing trial counsel’s argument was not plain
error. United States v. Burton, ACM 36296, 2007 CCA LEXIS 281 (A.F. Ct. Crim.
App. 16 Jul. 2007). The C.A.A.F. specifically found:
4
 But they did so only after reiterating an important caveat : the government may not
show propensity, via uncharged or charged misconduct, without first using a specific
exception such as Mil. R. Evid. 404 or 413. Burton, 67 M.J. at 152-53.




                                           9
BARNES—ARMY 20120308

             The problem with the CCA’s holding is simple—this is not
             an M.R.E. 413 case. The evidence on which trial counsel
             was commenting was the primary proof of the charged
             offenses. No evidence was introduced as propensity
             evidence pursuant to M.R.E. 413, and none of the
             procedural safeguards required as a predicate to such
             introduction were followed. It was trial counsel’s
             improper argument that introduced the issue of propensity,
             not the evidence. As the government did not offer the
             evidence under M.R.E. 413, it did not follow the ste ps
             required by M.R.E. 413. Therefore, it may not a
             posteriori justify its closing argument based on what it
             might have done.

Burton, 67 M.J. at 153 (internal citations omitted).

       Here, as in Burton, there was no evidence admitted pursuant to Mil. R. Evi d.
413. The military judge did not conduct any Mil. R. Evid. 401 or 402 analysis, or a
403 balancing test on the record. Unlike in Burton, however, here the propensity
issue was not belatedly raised by government counsel during closing argument.
Rather, propensity was first raised by the government during an Article 39(a),
UCMJ, session when the government expressed a desire to argue it during their
closing. Then, during the instructions discussion with the parties , the military judge
discussed the purpose behind Mil. R. Evid. 413 with the parties and determined that
it was proper to give the instruction from the Benchbook with respect to the charged
sexual offenses.

       Propensity was first raised to the panel members by the military judge when
he furnished them with an instruction that provided guidance regarding the use of
propensity and inferences that may be drawn . This instruction was given to the
panel members prior to argument by counsel. Application of Mil. R. Evid. 413 here
is not a post hoc attempt to rationalize trial counsel’s argument. As it is clear that
the military judge and the parties understood that Mil. R. Evid. 413 and propensity
evidence were at issue – unlike Burton – this is indeed a Mil. R. Evid. 413 case.

       The government’s propensity argument was a permissible use of Mil. R. Evid.
413’s exception allowing evidence of similar crimes in sexual assault cases. The
error here is that the military judge did not make the predicate findings on the record
regarding the permissibility of any inference of propensity to be drawn from
evidence that was also properly admitted as proof of charged misconduct.

      In a more routine Mil. R. Evid. 413 case, the military judge is required to
make findings before evidence of uncharged misconduct is admitted. When evidence



                                          10
BARNES—ARMY 20120308

of charged misconduct is to be argued for its tendency, if any, to show propensity ,
the military judge should make similar findings allowing a propensity argument by
counsel prior to providing an instruction. Based on the government’s initial intent
to argue propensity, the military judge should have made specific findings regarding
not the initial admissibility of the evidence, but the use of evidence already properly
admitted, and its relevance to the other charged sexual assault.

       When a military judge is required to conduct a balancing test but does not
sufficiently articulate his analysis on the record, his evidentiary ruling will receive
less deference on appeal. Berry, 61 M.J. at 96 (citing Dewrell, 55 M.J. at 138). In
this case, the military judge evinced knowledge of the Wright factors, Berry, and
Mil. R. Evid. 403, albeit earlier in the trial. As the military judge did not address
his balancing test on the record, we have nothing to which we can give deference,
and so, we will evaluate the use of the evidence based upon the record.

                  Military Rule of Evidence 413 Threshold Factors

       Both charged offenses fall within the definition of sex ual assault as defined in
Mil. R. Evid. 413. See Wright, 53 M.J. at 482 (citing United States v. Guardia,
135 F.3d 1326, 1328 (10th Cir. 1998)). Further, “[t]he evidence proffered is
evidence of the defendant’s commission of another offense of sexual assault.” Id.
(internal quotation marks omitted). Finally, the evidence must be “relevant under
Rules 401 and 402.” Id.

       Prior specific criminal acts are not traditionally prohibited because character
or propensity is irrelevant; “on the contrary, it is s aid to weigh too much with the
[finder of fact] and to so overpersuade them as to prejudge one with a bad general
record and to deny him a fair opportunity to defend against a particular charge.”
Michelson v. United States, 335 U.S. 469, 475-76 (1948); see also United States v.
Enjady, 134 F.3d 1427, 1430 (10th Cir. 1998). “Rule 413 is based upon the premise
that evidence of other sexual assaults is highly relevant to prove prope nsity to
commit like crimes, and often justifies the risk of unfair prejudice.” Enjady, 134
F.3d at 1431 (citing 140 Cong. Rec. H8968-01, H8992 (S. Molinari, Aug. 21, 1994)).
Here, appellant’s propensity to commit sexual assaults is relevant under Mil. R.
Evid. 401 and admissible under Mil. R. Evid. 402.

                   Military Rule of Evidence 403 and The Wright Factors

       The Mil. R. Evid. 403 balancing test is the key to the admission of evidence,
its constitutionality, and, as in this case, the use of properly admitted evidence to
argue propensity. Some of the factors to be considered in conducting the Mil R.
Evid. 403 balancing test, although not an exhaustive list, are set forth in Wright. 53
M.J. at 482. While we believe that this balancing depends upon the context and
circumstances of each case, the factors set out by the C.A.A.F. in Wright are


                                           11
BARNES—ARMY 20120308

instructive. Three of these factors: the potential for less prejudicial evidence; the
possible distraction of the fact finder; and the time needed for proof of the prior
conduct, are arguably only applicable to the admission of uncharged misconduct and
not particularly helpful in a case involving charged misconduct . We will examine
the remaining six factors identified in Wright seriatim.

i. Strength of the evidence of other conduct.

       The evidence admitted to prove each sexual assault offense was strong and
based primarily on the in-court testimony of the victims. There was also expert
testimony that appellant’s DNA was found on vaginal swabs tak en from the first
victim. The evidence was sufficient to support a conviction, and therefore there was
certainly enough evidence for the military judge to have concluded by a
preponderance of the evidence that each offense occurred.

ii. Probative weight.

       Here, there are no uncharged sexual assault offenses to be evaluated or
admitted as the C.A.A.F. did in Berry. 61 M.J. at 96-97. Nonetheless, this court is
of the opinion that in determining the probative weight of the respective charged
offenses, the essential analysis remains the similarity of the sexual misconduct
alleged by the government. Id. If the offenses are too dissimilar, the probative
value of any permissible inference is weakened and allowing the government to
argue propensity presents too high a risk of unfair prejudice. The two sexual
assaults charged in this case are similar in ma ny ways. Both occurred when
appellant was TDY and staying in temporary quarters. In each case, appellant spent
the evening in the company of the victim and others drinking alcoholic beverages.
The appellant invited the victims and at least one other person to his room. Both
victims were vulnerable, albeit for different reasons. The victim in the 2006 assault
was sleeping deeply after alcohol consumption. The victim in the 2009 assault was
vulnerable as she had been drinking, she was nude on the bed after having
previously consented, and certainly in a position from which escape was difficult.
Finally, and perhaps most significantly, the offenses both involved the opportunistic
application of physical force to overcome any verbal and physical resistance by the
victims.

iii. Proximity in time

       The incidents occurred approximately three years apart; the accused was an
adult at both times. There is no evidence and no reason to conclude that the passa ge
of three years constituted a meaningful intervening circumstance between the two
events. See Berry, 61 M.J. at 97.




                                         12
BARNES—ARMY 20120308

iv. Intervening factors

      There are no other significant intervening circumstances.

v. Frequency

       The frequency of the conduct is a factor that is marginally applicable here.
There were two allegations, each with a single victim. If there were additional
allegations it may make propensity evidence stronger, but two separate instances of
conduct logically allow for an inference of propensity.

vi. The relationship between the parties

      The relationships between appellant and the victims are very similar: the
appellant and the victim had just met that evening and had spent the evening in the
company of others while drinking alcoholic beverages.

      In sum, we find the similarities are such that the probative value of the
propensity argument is not substantially outweighed by the danger of unfair
prejudice.

                          The Military Judge’s Instruction

       The instruction given by the military judge was not a model of clarity. It was,
however, based directly upon the Benchbook instruction located at note 4.2 of
paragraph 7-13-1. In fact, the instruction is internally contradictory, and, as a
result, it is overly protective of an accused. Two sentences in particular go too far
in limiting the use of such evidence. The last paragraph of the instruction provides:
“[i]n other words, proof of one offense carries no inference that the accused is guilty
of another sexual assault;” and “[p]roof of one charge d offense carries with it no
inference that the accused is guilty of any other charged offense.” Benchbook, para.
7-13-1, n.4.2.

       Propensity evidence is intended to allow just the opposite: it permits a fact
finder to draw an inference that it is more likely the accused committed a charged
sexual offense because the accused has a propensity or tendency to commit sexual
assaults. The military judge should have instructed the members using a tailored
version of the instruction required by this court in Dacosta as discussed above. 63
M.J. at 584-85, Appendix. 5
5
  In a case of multiple charged offenses where it is permissible for evide nce of one
to show propensity or predisposition to commit the other, and vice versa, it seems
nonsensical to instruct the panel that each offense must stand completely on its own.




                                           13
BARNES—ARMY 20120308

       The remainder of the instruction does a good job of requiring the panel
members to hold the prosecution to its burden on each and every element and
instructs that any inference cannot be used to fill i n a failure of proof on the part of
the prosecution. It was similar to the standard “spillover” instruction set forth in the
Benchbook at paragraph 7-17.

       The fact that the military judge erroneously, in part, instructed the panel
members that any propensity evidence cannot be used to support an inference of
guilt defeats the purpose behind Mil R. Evid. 413. However, this error was harmless
beyond a reasonable doubt as it was to the benefit of the appellant in that it
prevented the panel from using any inference of his guilt based upon propensity.
See United States v. Rogers, 587 F.3d 816, 822 (7th Cir. 2009) (“Congress has said
that in a criminal trial for an offense of sexual assault, it is not improper to dr aw the
inference that the defendant committed this sexual offense because he has the
propensity to do so.”).

                                    CONCLUSION

       We find that the argument by trial counsel was not error. The military judge
properly allowed trial counsel to argue propensity based upon the charged
misconduct, despite the military judge’s failure to conduct the appropriate balancing
tests on the record. The record supports that the propensity argument was relevant
and admissible, and the probative value was not substantially outwei ghed by the
danger of unfair prejudice. Any error in the form of the instruction inured to the
benefit of appellant and was, therefore, harmless beyond a reasonable doubt.

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge HAIGHT concur.

                                         FORTHE
                                        FOR  THECOURT:
                                                 COURT:




                                        MALCOLM
                                         MALCOLMH.H.SQUIRES,
                                                         SQUIRES,JR.
                                                                  JR.
                                        Clerk
                                         ClerkofofCourt
                                                   Court




                                           14
