        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
            Christopher B. HUKILL, Specialist
               United States Army, Appellant
                         No. 17-0003
                   Crim. App. No. 20140939
        Argued February 28, 2017—Decided May 2, 2017
               Military Judge: Steven E. Walburn
   For Appellant: Captain Katherine L. DePaul (argued),
   Lieutenant Colonel Melissa R. Covolesky and Captain Ryan
   T. Yoder (on brief); Lieutenant Colonel Christopher D. Car-
   rier and Major Andres Vazquez Jr.
   For Appellee: Major Anne C. Hsieh (argued); Colonel Mark
   H. Sydenham and Lieutenant Colonel A. G. Courie III (on
   brief); Major Michael E. Korte.
   Chief Judge ERDMANN delivered the opinion of the
   Court, in which Judges STUCKY, RYAN, OHLSON, and
   SPARKS, joined.

                        _______________

   Chief Judge ERDMANN delivered the opinion of the
court.
    Contrary to his pleas, a military judge sitting as a gen-
eral court-martial convicted Specialist Christopher B. Hukill
of rape and abusive sexual contact, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920
(2012). Hukill was sentenced to a dishonorable discharge,
seven years of confinement, forfeiture of all pay and allow-
ances, and a reduction to E-1. The convening authority ap-
proved the sentence as adjudged. The United States Army
Court of Criminal Appeals denied Hukill’s initial appeal
which was based on a claim of ineffective assistance of coun-
sel. United States v. Hukill, No. ARMY 20140939, 2016 CCA
LEXIS 492, at *8-9, 2016 WL 4255126, at *3 (A. Ct. Crim.
App. Aug. 9, 2016) (unpublished). The lower court granted
                United States v. Hukill No. 17-0003/AR
                         Opinion of the Court

reconsideration to entertain Hukill’s claim brought under
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), and
again denied relief and affirmed the findings and the sen-
tence. United States v. Hukill, No. ARMY 20140939, 2016
CCA LEXIS 505, at *5, 2016 WL 4439888, at *2 (A. Ct.
Crim. App. Aug. 16, 2016) (unpublished).
    In Hills, a members’ trial, we held that under Military
Rules of Evidence (M.R.E.) 413, the use of charged miscon-
duct to establish an accused’s propensity to commit other
charged misconduct in the same case constituted error. 75
M.J. at 352. We granted review in this case to determine
whether the rationale of Hills is applicable to a military
judge-alone trial and, if so, whether Hukill was prejudiced
by the admission of this propensity evidence. 1 We hold the
rationale of Hills is equally applicable to both members and
military judge-alone trials and that, under the circumstanc-
es of this case, Hukill was prejudiced by the admission of the
propensity evidence. We therefore reverse the decision of the
Army Court of Criminal Appeals.
                            BACKGROUND
      This case arises from Hukill’s sexual assaults of AB and


1   We granted review of the following issues:
      I. Whether, in a court-martial tried by military judge
      alone, the military judge abused his discretion by
      granting the Government’s motion to use the charged
      sexual misconduct for Military Rule of Evidence 413
      purposes to prove propensity to commit the charged
      sexual misconduct.
      II. Whether Judge Paulette V. Burton and Judge Larss
      G. Celtnieks, judges on the Court of Military Commis-
      sion Review, were statutorily authorized to sit on the
      Army Court of Criminal Appeals, and even if they were
      statutorily authorized to be assigned to the Army
      Court of Criminal Appeals, whether their service on
      both courts violated the Appointments Clause given
      their newly attained status as a superior officer.
Issue II was not argued as it was held as a trailer issue to United
States v. Ortiz, 76 M.J. __ (C.A.A.F. 2017). Based upon the deci-
sion in Ortiz, we hold that the military judges in question were
authorized to sit on the Army Court of Criminal Appeals, and
there was no Appointments Clause violation.




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            United States v. Hukill No. 17-0003/AR
                     Opinion of the Court

HG, both friends of Hukill’s then-fiancée. Specification 1
(rape), alleged that Hukill digitally penetrated the vagina of
AB against her will in the kitchen of his home. A week or
two after that incident, AB told Hukill’s fiancée about the
alleged assault. Hukill’s fiancée testified that when she con-
fronted him about the assault, he “pretty much told [them]
that he did it.” Specification 2 (abusive sexual contact) arose
from Hukill’s alleged assault of HG about two weeks after
the incident involving AB. Hukill was charged with touching
the genitalia of HG against her will after a night of drinking.
Hukill testified at his court-martial that neither of the as-
saults occurred.
    In a pretrial motion, the government sought to introduce
evidence of each sexual misconduct charge under M.R.E. 413
to demonstrate Hukill’s propensity to commit the other sex-
ual misconduct. Trial defense counsel opposed the motion
and objected to the use of the M.R.E. 413 and spillover in-
structions contained in the Army Military Judges’
Benchbook. Over defense objection, the military judge
granted the government’s motion, allowing the government
“to use the charged sexual offenses as propensity evidence
for each other under M.R.E. 413.” In conducting his M.R.E.
403 analysis, the military judge found the “probative weight
of the [propensity] evidence is high, demonstrating the ac-
cused’s propensity to sexually assault two females that he
knew prior to the alleged sexual assaults.” Additionally, the
military judge stated that:
      [t]he Court will give an appropriately tailored
      limiting instruction to the members that they
      may properly consider this evidence under
      MRE 413 for its bearing on the accused’s pro-
      pensity to commit the charged sexual assaults.
      The instruction will highlight that the intro-
      duction of such evidence does not relieve the
      government of its burden of proving every ele-
      ment of every offense charged, and that the
      fact-finder may not convict the accused of the
      charged offenses on the basis of the evidence
      admitted under MRE 413 alone. This instruc-
      tion will be in addition to the standard “Spillo-
      ver Instruction.”
    The referenced instruction was not given as Hukill was
ultimately tried by military judge alone, but it does reflect
the military judge’s understanding of the law at the time.


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             United States v. Hukill No. 17-0003/AR
                      Opinion of the Court

During the court-martial, trial counsel argued that each of
the sexual assault incidents established Hukill’s propensity
to commit the other assault. During his opening statement
trial counsel argued, “[W]ithin a month, there are two alle-
gations of sexual assault by two unrelated victims . . . two
allegations of sexual assault; two distinct reports but with
strikingly similar details; details that reveal a similar
scheme, a similar method of attack.” During his closing ar-
gument, trial counsel again argued, “Your Honor, the ac-
cused has committed two incidents of sexual assault, two
very similar incidents. They are strong in their own right,
but they’re even stronger together when you consider M.R.E.
413.”
    On appeal, the Army Court of Criminal Appeals recog-
nized that the military judge had initially “ruled that the
government could use propensity evidence in a manner
found to be in error in Hills.” Hukill, 2016 CCA LEXIS 505,
at *4-5, 2016 WL 4439888, at *2. However, the lower court
went on to hold that the erroneous ruling “became moot by
virtue of appellant’s election for a bench trial.” Id., 2016 WL
4439888, at *2. Relying on the well-established rule that
“ ‘[m]ilitary judges are presumed to know the law and to fol-
low it absent clear evidence to the contrary’ ” the lower court
was “satisfied that [the military judge’s] view on the admis-
sibility of propensity evidence under Mil. R. Evid. 413 was
harmless beyond a reasonable doubt.” Id. at *5, 2016 WL
4439888, at *2 (quoting United States v. Erickson, 65 M.J.
221, 225 (C.A.A.F. 2007)). Accordingly, the lower court held
that this case was “far different than Hills as appellant
elected to be tried by a military judge sitting alone,” and af-
firmed the findings and sentence. 2 Id. at *4-5, 2016 WL
4439888, at *2.
                          DISCUSSION
    A military judge’s decision to admit evidence is reviewed
for an abuse of discretion. United States v. Solomon, 72 M.J.
176, 179 (C.A.A.F. 2013). “The meaning and scope of M.R.E.
413 is a question of law that is reviewed de novo.” Hills, 75
M.J. at 354 (citation omitted). Additionally, an error where

2 While it is difficult to determine whether the Army Court of
Criminal Appeals held that the use of charged conduct under
M.R.E. 413 in a military judge-alone trial is not error, or whether
it was error but harmless, under either theory the conviction
would have been affirmed.


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             United States v. Hukill No. 17-0003/AR
                      Opinion of the Court

“ ‘constitutional dimensions are at play,’ ” id. at 357 (quoting
United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006)),
is not harmless beyond a reasonable doubt when “ ‘there is a
reasonable possibility that the [error] complained of might
have contributed to the conviction.’ ” Id. at 357-58 (altera-
tion in original) (quoting United States v. Moran, 65 M.J.
178, 187 (C.A.A.F. 2007)).
   Hukill argues that the Hills decision is as applicable to
military judge-alone trials as it is to members’ trials. He
contends that even if the military judge knew and applied
the law, the Military Judges’ Benchbook instructions availa-
ble at the time incorrectly stated that charged misconduct
could be used as propensity evidence of other charged mis-
conduct. Therefore, Hukill concludes that the military judge
erred and the error was not harmless beyond a reasonable
doubt.
    The government appears to argue that Hills was wrongly
decided, but also asks us to clarify that the decision is not a
per se prohibition on the use of charged misconduct as
M.R.E. 413 evidence. The government argues that using
charged misconduct as M.R.E. 413 evidence of other charged
misconduct does not erode the presumption of innocence, as
the safeguards built into M.R.E. 413 ensure each element is
proven beyond a reasonable doubt. The government con-
cludes by asserting that the instructional errors in Hills are
not implicated in a military judge-alone trial and there is no
evidence the military judge did not know or follow the law in
this case.
    In analyzing the use of charged conduct as propensity ev-
idence under M.R.E. 413, we held in Hills that “[c]harged
misconduct is already admissible at trial under M.R.E. 401
and 402, and it is not subject to exclusion under M.R.E.
404(b). Thus, as a matter of logic, it does not fall under
M.R.E. 413, which serves as an exception to M.R.E. 404(b).”
Hills, 75 M.J. at 355. We also reasoned that the structure of
the rule, including the notice provision under M.R.E. 413(b),
“logically implies that only evidence of uncharged offenses
(of which the accused would not otherwise be aware absent
disclosure) are contemplated by the rule.” Id. Finally, we
noted that the legislative history of M.R.E. 413’s federal
counterpart, Fed. R. Evid. 413, suggests that the rule was
not designed to apply to charged conduct. Id. None of these
grounds are dependent on whether the trial was a members’
trial or military judge-alone.


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            United States v. Hukill No. 17-0003/AR
                     Opinion of the Court

    We therefore clarify that under Hills, the use of evidence
of charged conduct as M.R.E. 413 propensity evidence for
other charged conduct in the same case is error, regardless
of the forum, the number of victims, or whether the events
are connected. Whether considered by members or a military
judge, evidence of a charged and contested offense, of which
an accused is presumed innocent, cannot be used as propen-
sity evidence in support of a companion charged offense.
    Having found error we now turn to a prejudice analysis.
In Hills we found constitutional implications arose from con-
fusing instructions given to members as to the two different
standards of proof that they were required to apply to the
same evidence. 75 M.J. at 357-58. We also held that “the er-
ror . . . 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. The
same constitutional concerns exist if, in a military judge-
alone trial, a military judge uses charged conduct as propen-
sity evidence under M.R.E. 413. As there are constitutional
dimensions at play, the erroneous admittance of evidence
must be tested for prejudice under the harmless beyond a
reasonable doubt standard. See Chapman v. California, 386
U.S. 18, 22-24 (1967). The government must prove there was
no reasonable possibility that the error contributed to
Hukill’s verdict. See id.; United States v. Kreutzer, 61 M.J.
293, 298 (C.A.A.F. 2005).
   The government argues that the error was harmless be-
yond a reasonable doubt due to the presumption that mili-
tary judges are presumed to know the law and follow it ab-
sent clear evidence to the contrary. See United States v.
Mason, 45 M.J. 483, 484 (C.A.A.F. 1997). However, in this
case, this presumption is not helpful to the government. This
case was tried before our court issued Hills, and at that
time, the common understanding of the law was that
charged misconduct could be used as propensity evidence
under M.R.E. 413.
    This is clearly evidenced by the Army Military Judges’
Benchbook discussion of M.R.E. 413: “In order to admit evi-
dence of other sexual offenses or acts of child molestation
(whether charged or uncharged), the military judge must
make” the threshold findings required by M.R.E. 413. See
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judg-
es’ Benchbook, ch.7, para. 7-13-1 n. 3.2 (Sept. 10, 2014) (em-
phasis added). The Benchbook further directed military


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            United States v. Hukill No. 17-0003/AR
                     Opinion of the Court

judges to give a specific instruction on the government’s
burden “[f]or charged sexual offenses admitted under MRE
413/414.” Id. Accordingly, the Benchbook stated:
      When the military judge has admitted evi-
      dence relating to one charged sexual offense or
      child molestation offense as relevant to another
      charged sexual offense or child molestation of-
      fense under MRE 413/414, the [instruction on
      the government’s burden] may be used, in con-
      junction with [the M.R.E. 413/414 spillover in-
      structions], as applicable.
Id. at n. 4.2 (emphasis added).
    The military judge cannot be faulted for applying the ac-
cepted law at the time, however, after Hills, that interpreta-
tion of the law was no longer correct. The presumption that
the military judge knows and follows the law is only as valid
as the law itself. The Army Court of Criminal Appeals’ con-
clusion and the government’s argument before this court
that the error was harmless due to this presumption is not a
prejudice argument. The presumption is that military judges
will correctly follow the law, which would normally result in
no legal error, not that an acknowledged error is harmless.
The presumption cannot somehow rectify the error or render
it harmless.
    Assessing the prejudice of this error, we recognize that
the military judge, when conducting his M.R.E. 403 analy-
sis, found that the “probative weight of the evidence is high,
demonstrating the accused’s propensity to sexually assault
two females that he knew prior to the alleged sexual as-
saults.” Additionally, the government’s case was based en-
tirely on the testimony of the victims and the alleged confes-
sion from Hukill to his fiancée that he had been unfaithful,
all of which Hukill denied. No other evidence was offered.
On this record, we find that the Government failed to prove
there was no reasonable possibility that the error contribut-
ed to the verdict. See Moran, 65 M.J. at 187. We therefore
reverse the decision of the lower court.
                          DECISION
   The decision of the United States Army Court of Criminal
Appeals is reversed. The findings and sentence are set aside.
The record of trial is returned to the Judge Advocate Gen-
eral of the Army. A rehearing is authorized.



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