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

                            UNITED STATES, Appellee
                                         v.
                     Staff Sergeant NOEL G. AGUIAR-PEREZ
                           United States Army, Appellant

                                       ARMY 20140715

                               Headquarters, I Corps
               Andrew J. Glass and Jeffery D. Lippert, Military Judges
                 Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Payum Doroodian, JA (on brief); Lieutenant Colonel Christopher D. Carrier,
JA; Major Andres Vazquez, Jr., JA; Captain Michael A. Gold, JA (on supplemental
brief); Major Andres Vazquez, Jr., JA; Captain Michael A. Gold, JA (on reply brief);
Lieutenant Colonel Tiffany Chapman, JA; Lieutenant Colonel Christopher D.
Carrier, JA; Major Julie L. Borchers, JA; Captain Zachary A. Szilagyi, (JA) (on
brief following remand).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Vincent S. Scalfani, JA (on brief); Colonel
Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Melissa
Dasgupta Smith, JA; Captain Vincent S. Scalfani, JA (on supplemental brief);
Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain
Joshua B. Bannister, JA (on brief following remand).

                                      28 November 2017

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

FLEMING, Judge:

       On this remand, we set aside the findings of guilty as to four specifications of
abusive sexual contact in light of our superior court’s decisions in 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).
AGUIAR-PEREZ—ARMY 20140715

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of violating a lawful general order, seven
specifications of cruelty and maltreatment, four specifications of abusive sexual
contact, one specification of assault consummated by battery, and one specification
of communicating a threat, in violation of Articles 92, 93, 120, 128, and 134
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 893, 920, 928, 934 (2012)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for 350 days, and reduction to the grade of E-1.

      On 31 October 2016, this court set aside and dismissed Specification 2 of
Charge V and Charge V (communicating a threat) and affirmed the remaining
findings of guilty and sentence. United States v. Aguiar-Perez, ARMY 20140715,
2016 CCA LEXIS 655 (Army Ct. Crim. App. 31 Oct. 2016) (summ. disp.). On 3
March 2017, the Court of Appeals for the Armed Forces (CAAF) set aside and
dismissed Specification 1 of Charge IV (assault consummated by battery), affirmed
the remaining findings of guilty, and remanded the case to our court to reassess the
appellant’s sentence. United States v. Aguiar-Perez, 76 M.J. 165 (C.A.A.F. 2017)
(unpub.). On remand, concluding that the military judge would have imposed a
sentence of at least that which was adjudged, we again affirmed the sentence.
United States v. Aguiar-Perez, ARMY 20140715, 2017 CCA LEXIS 143 (Army Ct.
Crim. App. 13 Mar. 2017). On 27 July 2017, our superior court vacated its prior
affirmance of the findings of guilty, set aside our prior decision on the remaining
findings, and remanded the case to this court for a new review under Article 66,
UCMJ, in light the CAAF’s decision of Hukill. United States v. Aguiar-Perez, No.
17-0395/AR, 2017 CCA LEXIS 760 (27 Jul. 2017) (unpub).

                                   BACKGROUND

       In Charge I, the government charged appellant with six Article 120,
UCMJ, specifications involving three different soldiers. Specifications 1
through 4 were abusive sexual contact offenses involving appellant touching
three different soldiers’ buttocks. Specifications 5 and 6 were additional sexual
assault offenses by appellant against one of the three soldiers. Prior to trial, the
government requested the military judge consider Specifications 1 through 4 of
Charge I for propensity purposes under Military Rule of Evidence [hereinafter
Mil. R. Evid.] 413. Notably, the government did not make this request for
Specifications 5 and 6 of Charge I. The defense objected to the government’s
request, thereby preserving the error. The military judge initially denied the
government’s request.

       After the defense rested its case-in-chief, the military judge announced he
would allow the government to argue propensity under Mil. R. Evid. 413. The
military judge advised the parties that when he announced findings he would
rule “which specific specifications [he was] considering or might consider



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AGUIAR-PEREZ—ARMY 20140715

propensity on after [he heard] the argument and the rest of the evidence in the
case.” The parties remained unaware which specifications the military judge
would consider for Mil R. Evid 413 purposes prior to their argument on
findings.

      After findings deliberation, the military judge announced he would
consider Specifications 1 through 6 of Charge I for Mil. R. Evid. 413 propensity
purposes for all specifications within Charge I. The military judge’s ruling
inexplicably expanded Mil. R. Evid. 413 consideration beyond the government’s
request to consider only Specifications 1 through 4 of Charge I.

      While, the military judge ruled all six specifications were proven by a
preponderance of evidence, he only convicted appellant of the four abusive
sexual contact offenses and touching the three soldiers’ buttocks. * The military
judge acquitted appellant of the sexual assault offenses.

                                 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 that permits the use of one
charged offense of sexual misconduct to be used as propensity evidence in assessing
another charged offense of sexual misconduct under Mil R. Evid. 413. 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. Hukill,
76 M.J. at 220. There, the military judge allowed the propensity evidence involving
charged offenses to be 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).



*
  All four abusive sexual contact offenses involved the buttocks. In one of the
specifications, the military judge found appellant guilty of touching the buttocks and
inner thigh of the victim.


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AGUIAR-PEREZ—ARMY 20140715

       Having reviewed the evidence, given that this is a case of preserved error, we
are not convinced beyond a reasonable doubt that the Mil. R. Evid. 413 error did not
contribute to the findings of guilty on Specifications 1 through 4 of Charge I. This
case does not involve DNA evidence, injuries, videos or photographs corroborating
appellant’s misconduct. Here, the evidence is limited to witness testimony. The
three soldiers’ memories as to the offenses were not “clear and compelling” or even
consistent with each other when the offenses overlapped. Further, the trial defense
counsel raised several issues regarding the three soldiers’ credibility, apparent
friendships, and motives to fabricate. While witness testimony alone may convince
a court beyond a reasonable doubt that a Mil. R. Evid. 413 propensity error is
harmless, the witness testimony in this case does not. See United States v.
Thompson, 2017 CCA LEXIS 7, *4 (Army Ct. Crim. App. 6 Jan. 2017) (affirming
beyond a reasonable doubt that the Mil. R. Evid. 413 propensity instructional error
was harmless because the testimony from the victims was “clear and compelling.”).
Thus, the findings for Specifications 1 through 4 of Charge I and Charge I and the
sentence cannot stand. We grant relief in our decretal paragraph.

                                  CONCLUSION

       The findings of guilty as to Specifications 1 through 4 of Charge I and Charge
I are SET ASIDE. The remaining findings of guilty, being Charge II and its
specifications and Specification 2 of Charge III, are AFFIRMED. The sentence is
SET ASIDE. A rehearing is authorized on Specifications 1 through 4 of Charge I
and the sentence. The case is returned to the same or a different convening
authority.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                       FOR THE COURT:




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




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