UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                       CAMPANELLA, HERRING, and CELTNIEKS
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Specialist MICHAEL J. GONZALES
                         United States Army, Appellant

                                   ARMY 20130849

                      Headquarters, III Corps and Fort Hood
        Gregory A. Gross, Military Judge (arraignment and motions hearing)
                     Patricia H. Lewis, Military Judge (trial)
             Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
              Colonel Ian G. Corey, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozano, 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 assignment of error); Major Andres Vazquez, Jr., JA;
Captain Michael A. Gold, JA (on supplemental assignment of error reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Steven J. Collins, JA; Captain Linda Chavez (on brief); Colonel Mark H.
Sydenham, JA; Lieutenant Colonel A.G. Courie, III, JA; Major Cormac M. Smith,
JA; Captain Linda Chavez (on supplemental assignment of error).


                                   22 February 2017

                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

HERRING, Judge:

       A panel of military officers sitting as a general court-martial convicted
appellant, contrary to his pleas, of two specifications of rape of a child, two
specifications of aggravated sexual abuse of a child, and two specifications of child
endangerment, in violation of Articles 120 and 134 of the Uniform Code of Military
Justice, 10 U.S.C. §§ 920, 934 (2006 & Supp. IV) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a dishonorable discharge,
confinement for fifty years, forfeiture of all pay and allowances, and reduction to the
grade of E-1.
GONZALES—ARMY 20130849

       We review this case under Article 66, UCMJ. Appellant assigned four errors,
one supplemental error, and personally asserted matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). Because of the relief we grant with respect
to the supplemental assignment of error, we do not discuss the remaining
assignments of error.

                                  BACKGROUND

      The government charged appellant with committing sexual offenses against
two of his step-children, AP (who was three years old in April 2010) and SR (who
was two years old in April 2010), and endangering the children by committing the
sexual offenses. The charged time period for all offenses was from 22 April 2010 to
12 April 2011. The children were removed from the home in April 2011 due to other
welfare concerns. The appellant was not living in the home at the time due to his
deployment to Iraq. These incidents came to light in July 2011 when AP disclosed
them to a therapist she had been seeing for an unrelated matter.

       The government notified the defense of its intent to introduce evidence in
accordance with Mil. R. Evid. 413. 1 Over defense objection, the military judge gave
the following instruction:

             Evidence that the accused committed the child molestation
             offense is alleged against AP in Specifications 1 and 5 of
             Charge II, and Specification 2 2 of Charge III may have no
             bearing on your deliberations in relation to the child
             molestation offenses alleged against SR, in Specifications
             2 and 6 of Charge II and Specification 2 of Charge III,
             unless you first determine by a preponderance of the
             evidence, that it is more likely than not, the offenses
             alleged against either AP or SR in the specifications
             mentioned occurred. If you determine by a preponderance
             of the evidence the offenses alleged in Specifications 1
             and 5 of Charge II and Specification 2 of Charge III
             against AP occurred, even if you are not convinced beyond


1
 Although parties and the military judge discussed Mil. R. Evid. 413, Mil. R. Evid.
414 would have been more accurate, given that the sexual offenses charged were
against children. The analysis for Mil. R. Evid. 413 and Mil. R. Evid. 414 is the
same. See United States v. Tanner, 63 M.J. 445, 448-49 (C.A.A.F. 2006); United
States v. Bonilla, ARMY 20131084, 2016 CCA LEXIS 590, at *22-23 (Army Ct.
Crim. App. 30 Sep. 2016).
2
  This is the wrong specification, Specification 1 of Charge III involves AP, while
Specification 2 of Charge III involves SR. The military judge repeated this error
throughout the instruction, which could have only further confused the panel.
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GONZALES—ARMY 20130849

             a reasonable doubt that the accused is guilty of those
             offenses, you may nonetheless consider the offense [sic]
             of those offenses for its bearing on any matter to which it
             is relevant in relation to Specifications 2 and 6 of Charge
             II and Specification 2 of Charge III against SR. You may
             also consider the evidence of such other child molestation
             offenses for its tendency, if any, to show the accused’s
             propensity or predisposition to engage in child molestation
             offenses.

       The propensity instruction given by the military judge was more muddled than
the usual propensity instruction. It is not clear what the panel was able to do if they
determined by a preponderance of the evidence the offenses alleged against either
AP or SR occurred. However, we note the government argued that the panel could
use the propensity evidence in both directions:

             TC: Gentlemen, we have proved this case, each and every
             charge, specification, and element, beyond a reasonable
             doubt. The judge read an instruction to you and it said
             you may also consider the evidence of such other child
             molestation offenses for its tendency, if any, to show the
             accused [sic] propensity or predisposition to engage in
             child molestation offenses, and it’s a long instruction. It’s
             going to go back with you. And, this is what it really
             means.

             TC: Under the law, we are not normally permitted to look
             at another act that someone’s done and say, “Because you
             did this one, because you did A, you did B. You robbed
             the liquor store in A, so we believe that you did it in B
             because you must just be someone who robs liquor stores.”
             We’re not allowed to do that normally, but there is an
             exception that has been carved out because of the
             propensity for child molesters to offend more than once.

             DC: Objection.

             MJ: Grounds? Stop.

             DC: The court has given its instruction and we ask that
             the panel members rely on the court’s instruction rather
             than Captain [AT’s] stated instruction.

             MJ: Sustained.



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GONZALES—ARMY 20130849

             TC: What you are allowed to do if you believe [AP], if
             you believe that little girl, if you believe all of the
             evidence, and if you just believe it’s more likely than not,
             you’re allowed to consider what happened to her when
             you’re making the determination on whether or not
             something happened to [SR]. And, if you believe [SR], if
             you believe that little girl and what she told people years
             ago, and what she told you in this trial, and if you just
             believe that, it’s even more likely than not, then you’re
             allowed to consider that when you’re thinking about what
             happened with [AP], and whether or not you think he’s
             guilty. In this case we don’t just have one victim. We
             don’t just have one little girl acting out knowing about sex
             when she shouldn’t, we have two. We have two little girls
             who told you they were raped. And, at the end of this trial
             we ask that you return with a verdict of guilty of all
             charges and specifications. Thank you.

       During her rebuttal argument, trial counsel stated, “If you believe just one of
them by a preponderance of the evidence, or the other, you can use the crime against
one to show that there is a propensity for child abuse.” Beyond instructing the panel
to follow her instructions over “what counsel said about the instructions” if there
was any inconsistency, the military judge gave no curative instruction.

                              LAW AND ANALYSIS

        After appellant’s court-martial, the Court of Appeals for the Armed Forces
(CAAF) decided United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), which
addressed a military judge’s propensity instruction pursuant to Military Rule of
Evidence [hereinafter Mil. R. Evid.] 413. The CAAF, stated, “we cannot say that
Appellant’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.” Here too, the military judge’s instructions, as bolstered by
trial counsel, were muddled and potentially confusing with respect to the burden of
proof, and, therefore, created constitutional error. United States v. Bonilla, 2016
CCA LEXIS 590, at *23 (Army Ct. Crim. App. 30 Sep. 2016); see also United States
v. Adams, ARMY 20130693, 2017 CCA LEXIS 6, at *7 (Army. Ct. Crim. App. 6 Jan.
2017); United States v. Guardado, 75 M.J. 889, 2016 CCA LEXIS 664, at *22 (Army
Ct. Crim. App. 15 Nov. 2016) and United States v. Santucci, 2016 CCA LEXIS 594,
at *7-8 (Army Ct. Crim. App. 30 Sep. 2016).

       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

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GONZALES—ARMY 20130849

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).

       Here, not only did the military judge give muddled and confusing instructions,
but the government’s closing argument also stressed the importance of the
propensity evidence. On the facts of this case, we are not convinced beyond a
reasonable doubt the propensity instruction did not contribute to the findings of guilt
or appellant’s sentence, thus the findings and sentence cannot stand.

                                   CONCLUSION

      The findings of guilty and the sentence are set aside. A rehearing may be
ordered by the same or a different convening authority.

      Senior Judge CAMPANELLA and Judge CELTNIEKS concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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