UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 MULLIGAN, FEBBO, and WOLFE
                                    Appellate Military Judges

                                UNITED STATES, Appellee
                                            v.
                           Staff Sergeant ANTONIO T. MOORE
                              United States Army, Appellant

                                         ARMY 20140875

                        Headquarters, 25th Infantry Division
         Gregory A. Gross, Military Judge (arraignment and motions hearing)
     Andrew J. Glass and James W. Herring, Jr., Military Judges (motions hearing)
                       Gregory A. Gross, Military Judge (trial)
              Colonel Mark A. Bridges, Staff Judge Advocate (pretrial)
            Colonel William D. Smoot, Staff Judge Advocate (post-trial)

For Appellant: Captain Matthew L. Jalandoni, JA (argued), 1 Lieutenant Colonel
Jonathan F. Potter, JA; Major Andres Vazquez, Jr., JA; Captain Matthew L.
Jalandoni (on brief); Major Andres Vazquez, Jr., JA; Captain Matthew L. Jalandoni
(on reply brief).

For Appellee: Captain Austin L. Fenwick, JA (argued); Colonel Mark H. Sydenham,
JA; Lieutenant Colonel A.G. Courie III, JA; Major Michael E. Korte, JA; Captain
Austin L. Fenwick, JA (on brief).


                                          23 March 2017
                                    ----------------------------------
                                     MEMORANDUM OPINION
                                    ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      Appellant asks that we set aside his convictions for the sexual assault of his
stepdaughter in light of our superior court’s decision in United States v. Hills, 75
M.J. 350 (C.A.A.F. 2016). The military judge gave an instruction under Military
Rule of Evidence [hereinafter Mil. R. Evid.] 413 that allowed the panel to consider
appellant’s propensity to commit the charged offenses based on the panel’s

1
    We heard oral argument on this case on 13 December 2016.
MOORE—ARMY 20140875

assessment of the evidence with respect to six other charged offenses. In accordance
with this court’s recent decision in United States v. Guardardo, 75 M.J. 889 (Army
Ct. Crim. App. 2016), we find this instruction to have been error. In assessing the
prejudice to appellant, we arrive at mixed results. With regards to the six
specifications at issue, we find the error was harmless beyond a reasonable doubt
with respect to only one of the offenses. Accordingly, we set aside the findings of
five specifications. 2
                                   BACKGROUND

       A panel of officers sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of violating a no contact order given by a
superior commissioned officer, six specifications of sexually assaulting his
stepdaughter, AR, and one specification of assault consummated by battery against
AR, in violation of Articles 90, 120, and 128, Uniform Code of Military Justice, 10
U.S.C. §§ 890, 920, 928 (2006 & Supp. V 2012, 2012) [hereinafter UCMJ]. The
panel acquitted appellant, inter alia, of two specifications under Article 120 which
alleged appellant raped AR. The panel sentenced appellant to a dishonorable
discharge, confinement for twenty years, forfeiture of all pay and allowances, and a
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged. 3

                         A. The Sexual Misconduct Charges

       The charges preferred by the government alleged appellant was having sex
with his stepdaughter AR beginning on 1 October 2004 and lasting through 16 July
2013. The alleged misconduct was broken into eight specifications. The eight
specifications accounted for the change in AR’s age when she turned sixteen, the
change in location of the offenses because of appellant’s occasional reassignment, a
break in the alleged misconduct caused by appellant’s overseas deployment, and the
amendments to Article 120 that took effect in October 2007 and June 2012. Of the



2
 Appellant also asserts the government’s dilatory post-trial processing warrants
relief. Additionally, appellant personally asserts several assignments of error
pursuant to United Stated v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Having duly
considered these additional claims, we find they lack merit.
3
  In a separate court-martial, that we do not address here, appellant pleaded guilty to
one specification of false official statement for denying he had sex with AR and
three specifications of violating Georgia incest laws. For these offenses, the
military judge sentenced appellant to a bad-conduct discharge and two years
confinement.

                                           2
MOORE—ARMY 20140875

eight specifications, the panel acquitted appellant of the offenses that were alleged
to have occurred when AR was under the age of sixteen.

                             B. Evidence of the Offenses.

       Prior to appellant joining the Army, AR, then nine years old, made an
allegation that appellant had been having sex with her. At the time, appellant was
living with AR and her mother. The government introduced evidence of this offense
as uncharged misconduct under Mil. R. Evid. 404(b). The evidence was not
admitted as propensity evidence under Mil. R. Evid. 413 or 414. Appellant, his
wife, and AR all testified that after a brief investigation by civilian authorities,
appellant was allowed to return to the home. Shortly thereafter, appellant married
AR’s mother.

      The evidence that appellant was having sex with his stepdaughter was
overwhelming. It included the credible testimony of AR, AR’s statement to several
witnesses, appellant’s admissions to several witnesses, DNA evidence, videos of
appellant and AR engaged in sexual intercourse and other sexual acts, text messages,
text messages with attached nude and semi-nude photos of AR, and testimony from
appellant’s wife that, on 16 July 2013, she walked in on her husband having sex with
her daughter. Ultimately, at trial, appellant testified that he had been having sex
with AR–but only after she turned eighteen.

      Accordingly, when it came to the offenses at issue, the focus at trial and on
appeal is not whether a sexual act occurred, but rather whether it was consensual.
As we discuss below, the evidence concerning the six specifications was not equal.

                  C. The Military Rule of Evidence 413 Instruction

      Prior to deliberations, the military judge instructed the panel, under certain
circumstances, they could consider evidence of one charged offense to find appellant
had the propensity to commit the other charged offenses. For all substantive
purposes the instruction was the same as the one given in Hills. 4 75 M.J. at 352-53.

       As an initial matter, we note that why the instruction was given is entirely
unclear from the record. The instruction was never litigated one way or the other.
The military judge summarized a Rule for Court-Martial [hereinafter R.C.M.] 802
conference where he had discussed the instructions with the parties and provided
instructions for the parties to consider overnight. His summary of the R.C.M. 802
conference included two disagreements regarding lesser-included offenses, but did

4
 See Dep't of Army, Pam. 27-9, Legal Services: Military Judges' Benchbook (1 Jan.
2010).

                                           3
MOORE—ARMY 20140875

not mention any concern regarding the proposed Mil. R. Evid. 413 instruction. In
fact, his summary of the R.C.M. 802 conference appeared to state, except for the
issue of lesser-included offenses, the parties “agreed” with the proposed
instructions. Defense counsel at trial stated “I don’t object to your recitation of
[the] 802 conference.” Appellant now asserts that the Mil. R. Evid. 413 instruction
was given sua sponte by the military judge. It is also possible that it was requested
by the government and not objected to by the defense. The absence of an objection
to the instruction deprives us of a developed record one way or the other. 5 However,
as we will explain, the distinction is unimportant in this case.

       Under these circumstances we would normally test for waiver and forfeiture.
(e.g. did appellant either waive the issue when he “agreed” with the proposed
instruction or forfeit the issue when he failed to object to the instruction). However,
at oral argument, the government agreed with appellant that if the instruction was
error, it was plain and obvious error. Given the government’s concession, we
assume without deciding that the error was plain and obvious. Accordingly, the only
issue for us to decide is whether the error was harmless beyond a reasonable doubt.

                              LAW AND DISCUSSION

                                A. Factual Sufficiency

       As an initial matter, we briefly address whether the specifications are
factually sufficient. In this case, we believe this inquiry is an important threshold
determination. 6

      With regards to all six specifications of which the panel convicted appellant,
we find the evidence to be factually sufficient. That is, without considering any
propensity evidence, we are entirely convinced beyond a reasonable doubt of

5
  Mil. R. Evid. 404(b) and 413 both require notice to the defense. However, no
notice is required to be provided to the court. Unlike Mil. R. Evid. 412, there is no
requirement for a hearing before the evidence is admitted. If there is no objection or
litigation concerning the evidence and instructions, it is unlikely that the notice will
be included as an appellate exhibit in the record of trial.
6
  If an offense is not factually sufficient, a rehearing may not be authorized. UCMJ
art. 66(d). It would be improper, for example, to set aside a specification and
authorize a rehearing based upon a legal error if the specification was not also
factually sufficient. Such a result would allow the government to have a rehearing
because of a prejudicial legal error that, absent the error, would not have been
permitted. Obviously, the government should not benefit from legal error that was
adverse to appellant.

                                           4
MOORE—ARMY 20140875

appellant’s guilt. In making this determination we assess AR to be exceptionally
credible. AR’s testimony consisted of a candid, thoughtful, and detailed recitation
of appellant’s offenses. Her testimony was corroborated by other evidence in many
instances. Additionally, we assess appellant’s testimony to be not credible and
unworthy of belief.

       This finding also serves as a contrast to our separate consideration below on
whether the Hills instructional error was harmless beyond a reasonable doubt. We
do not believe our personal determination that the accused’s guilt was proven
beyond a reasonable doubt to be the same as our determination of whether the
military judge’s instructional error was harmless beyond a reasonable doubt as a
matter of law. The issues are different, and we must keep them separate.

              B. Prejudice and the Strength of the Government’s Case

      In our recent decision in Guardardo we outlined several considerations that
weighed in favor of finding that the propensity instruction was harmless beyond a
reasonable doubt. 75 M.J. at 897-99. In this case, we find only one factor to be
controlling–the strength of the evidence.

       In assessing the evidence as it relates to the six specifications we find one
specification, Specification 1 of Additional Charge I, is unlike Specifications 2
through 6 of Additional Charge I. Specification 1 alleged appellant sexually
assaulted his step-daughter on 13 July 2013. As appellant was caught in the act, the
evidence against this offense was overwhelming.

     First, as discussed above, AR’s testimony that she was sexually assaulted was
compelling.

       Second, appellant’s wife, LHM testified to her observations after catching her
husband having sexual intercourse with his daughter, to include his exposed and
erect penis. She then testified that after she caught appellant having sex, AR had a
“dead stare” and only “[came] to” much later. LHM further testified when she asked
AR how long this had been going on, AR told her that it had been going on since
appellant had married LHM. Appellant’s reaction to this was to tell AR “shut up,
shut up, let me talk, let me explain, don’t say a word.” Appellant’s explanation was
that “you know I had issues, you know I’ve had problems . . . . I have a sick mind
and I need help.” LHM testified appellant then stated:

             I’ll give you whatever you want, I will give you the power
             of attorney, I’ll give you the house, I will give you the
             cars, I’ll give you access to my bank account. I will go
             first thing in the morning to JAG and I will give you


                                          5
MOORE—ARMY 20140875

             whatever you want, just don’t call the MPs, you know
             what they do to people like me if I go to jail.

      Third, the government introduced evidence that the next morning appellant
signed a general power of attorney for his wife.

        Fourth, we consider appellant’s false exculpatory statements to Master
Sergeant (MSG) Atkinson and Criminal Investigation Command (CID) that he had
not been having sexual intercourse with his stepdaughter. Master Sergeant Atkinson
testified that appellant had explained that he was playing a “game [] called wedgie,
where they pull up the pants, up into the crotch” with AR but not having sex.
Appellant told a Special Agent from CID that he had been “wrestling around with
[AR]” and his wife was angry because he had “pinched [AR’s] butt and given her a
wedgie” and he had never had sex with AR.

        Fifth, we weigh against appellant his testimony about this offense. Appellant
testified while he had routinely been having sex with his then twenty-two year-old
stepdaughter, and he was about to have sex with his twenty-two year old daughter
after engaging in wrestling and giving wedgies, he had not yet had sex with AR on
this particular occasion. He further stated it was AR who made the sexual advance
against him. This was an explanation that perfectly (albeit incredulously) weaved
between nearly every piece of evidence. It explained his exposed erection, the
videos of him having sex with AR, and his statements to MSG Atkinson and CID.

       Finally, we consider the evidence introduced under Mil. R. Evid. 404(b) and
the other offenses as they relate to this offense (of course, for purposes other than
propensity). We consider, for example, AR’s testimony that when she was about
nine, prior to joining the Army, appellant had sexual intercourse with her, for the
purpose of establishing appellant’s intent.

      Accordingly, because the evidence was overwhelming, we find that the error
caused by the military judge’s propensity instruction was harmless beyond a
reasonable doubt as to Specification 1 of Additional Charge I.

       However, the strength of the evidence as to Specification 1 of Additional
Charge I presents a problem as it relates to Specifications 2 through 6 of Additional
Charge I. As we noted in Guardardo, the danger of propensity is related to the
strength of the evidence. 75 M.J. at 898. So, in that case, we found the evidence
from which the panel might draw an improper propensity inference to be weak, and
therefore less likely to result in harm. Here, in contrast, we have overwhelming
evidence as it relates to Specification 1. This presents an increased likelihood that
the panel members would use the strong evidence as it related to Specification 1 to
find appellant’s propensity to commit the offenses alleged in Specifications 2
through 6 where the evidence was not as strong.
                                           6
MOORE—ARMY 20140875

       Weighing the strength of the evidence as it relates to Specifications 2 through
6 of Additional Charge I, we find it falls within the interstices of two standards. It
is strong enough to convince us of appellant’s guilt, but insufficient to convince us
that there is no reasonable possibility the improper propensity instruction had no
effect on the panel’s guilty findings. Accordingly, we set aside the findings as to
Specifications 2 through 6 of Additional Charge I.

        Our dissenting colleague believes we take the CAAF’s opinion in Hills too
literally. We offer two brief responses.

        First, we acknowledge that the CAAF in United States v. Burton, 67 M.J. 150
(C.A.A.F. 2009) all but explicitly sanctioned the use of propensity evidence
stemming from charged offenses. In that case the court forbade the post-hoc
justification of arguing propensity when the government never moved to admit
propensity evidence. Id. at 153. (“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 steps required by M.R.E.
413. Therefore, it may not a posteriori justify its closing argument based on what it
might have done.”) (emphasis added). The court also stated that the “Government
may not introduce similarities between a charged offense and prior conduct, whether
charged or uncharged, to show modus operandi or propensity without using a
specific exception within our rules of evidence, such as M.R.E. 404 or 413.” Id. at
152 (emphasis added). Admittedly, the entire reasoning of Burton is beside the
point if the government was never allowed to introduce propensity evidence arising
from charged offenses. To be sure, Burton was read in many cases to sanction what
Hills now forbids–the use of propensity evidence based on charged offenses. That
was this court’s reasoning in United States v. Barnes, 74 M.J. 692 (Army Ct. Crim.
App. 2015), pet. denied, 75 M.J. 27 (C.A.A.F. 2015). However clear we may have
thought Burton was, we must now read Burton in the light of Hills. To our eyes
Hills explicitly forbids what Burton tacitly endorsed. Burton must yield to Hills.

       Second, we acknowledge that our resolution of this case creates an
inconsistency. Today, we set aside five specifications because of the risk that
propensity evidence from one specification (Specification 1 of Additional Charge I)
bled over to the remaining specifications. We also authorize a rehearing. If a
rehearing occurs, Specification 1 would no longer be “charged.” As “uncharged”
misconduct, evidence of Specification 1 could be introduced under Mil. R. Evid. 413
to prove appellant’s propensity to commit the remaining offenses. 7 In Hills, the
CAAF specifically exempted from their decision cases where “an accused has

7
  We do not mean to presuppose that such evidence is admissible at any future retrial
or Mil. R. Evid. 413 hearing. We discuss this issue only for purposes of illustrating
the Hills issue as it is now before us.

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MOORE—ARMY 20140875

pleaded guilty or been found guilty” and that such evidence “can be admitted and
considered under M.R.E. 413 to show propensity to commit the sexual assaults to
which he pleaded not guilty. . . .” Hills, 75 M.J. at 354. In other words, what we
find to be constitutional error today, at a rehearing may not be error at all, let alone
constitutional error. We recognize this discordance but find it to be unavoidable.
Thus, while we find the argument of our dissenting colleague to not be unreasonable,
we read Hills as requiring exactly this result.

                                    CONCLUSION

       The findings of guilty as to Specifications 2 through 6 of Additional Charge I
and the sentence are set aside. The remaining findings of guilty are AFFIRMED. A
rehearing on Specifications 2 through 6 of Additional Charge I may be ordered by
the same or a different convening authority. The same convening authority, in any
event, shall conduct a rehearing on the sentence.

      Judge FEBBO concurs.

      Senior Judge MULLIGAN, dissenting in part:

      As I stated in United States v. Guardardo, I continue to believe that this court
should read Hills narrowly to cover the narrow circumstances contained in that case.
75 M.J. at 908 (Mulligan, J. concurring). This case, if anything, belies the false
wisdom in the majority’s approach.

       Unlike Hills, which involved one course of conduct over several hours,
appellant’s conduct in this case covered multiple sexual acts over approximately five
years. AR testified that, except when appellant was deployed, the sexual misconduct
occurred several times a week over that period of time. Nonetheless, even if the
instruction was error, I do not believe it was harmful.

       Throughout the entire record of trial, the concept of “propensity” appears only
once–in the instructions. It is never mentioned–even in passing–in opening
statement or closing argument. It is never litigated. Consider that no propensity
instruction was given concerning the uncharged evidence that appellant sexually
assaulted his daughter prior to joining the Army. The panel acquitted appellant of
the rape and carnal knowledge offenses, which indicates they balanced the evidence
after receiving the propensity instruction and acquitted him of related sexual
charges. While I acknowledge that the government at oral argument conceded the
issue of whether appellant forfeited this error at trial, we are still left with a record
in which concerns about propensity are fleeting. This would appear to indicate a
lack of prejudice.



                                            8
MOORE—ARMY 20140875

       Compare, for example, this case to United States v. Barnes, 74 M.J. 692
(Army Ct. Crim. App. 2015), pet. denied, 75 M.J. 27 (C.A.A.F. 2015), where the
government specifically argued in rebuttal that the panel should “pay careful
attention to the instructions . . . and know that the accused’s propensity to commit
these offenses . . . .” This court affirmed the findings, specifically sanctioning the
use of a propensity instruction for charged offenses. Id. at 701. Our superior court,
which grants petitions for review based on “good cause shown,” under Article 67,
UCMJ did not find good cause and denied the petition. As an unpublished decision,
of course, that decision has only persuasive authority.

       As I see it, there are two distinct issues regarding how this Court should
interpret Hills. First, there is the issue we decided in Guardardo of whether
propensity evidence from charged offenses may ever be used. This Court decided
that case by saying “never.” Id.; But see, Id. at 908 (Mulligan J., dissenting).
However, even assuming we got Guardardo right, this court never specifically
addressed whether our superior court’s holding regarding the prejudice analysis in
Hills is applicable to all cases. The CAAF’s prejudice analysis in Hills focused on
the confusing nature of the instructions. The members in Hills were asked to apply
differing burdens of proof with regards to the same evidence during the same course
of conduct occurring over a few hours. This is not the case before the court today
where the appellant is charged with criminal acts that span five years against the
same victim whose credibility this court found was “exceptionally credible.”

      We should not read the unique facts of Hills in a manner that dictates an
absurd result in a case that is factually distinguishable on so many fronts. Hills is a
case where propensity had no place. The injection of propensity into Hills, where
appellant was engaged in one course of conduct over several hours, was confusing
beyond measure. Accordingly, the CAAF’s test for constitutional error was
appropriate.

       However, everything about the CAAF’s treatment of Hills indicates its
unusual status. Consider the application of the majority’s view to one other CAAF
case. In Hills the CAAF said the court’s resolution of the case was “obvious.” 75
M.J. at 353. In United States v. Burton, the CAAF appeared to specifically sanction
the use of propensity evidence stemming from charged offenses. 67 M.J. 150, 153-
54 (C.A.A.F. 2009). If the majority is correct in its interpretation of Hills, then
what was “obvious” to CAAF in Hills passed unnoticed by that same CAAF in
Burton.

       Under the majority’s view, the CAAF in Burton, and Barnes all but
specifically sanctioned the use of Mil. R. Evid. 413 evidence for charged offenses,
only to then yank the rug out in Hills. In Burton the court specifically told
prosecutors if they wanted to argue propensity stemming from offenses “whether
charged or uncharged” they needed to first go through the Mil. R. Evid. 413
                                           9
MOORE—ARMY 20140875

wickets. Burton, 67 M.J. at 153 (emphasis added). In Barnes, the court was
presented head-on whether it was proper to use propensity evidence stemming from a
charged case. The majority may be correct. I, however, would read CAAF’s line of
cases in a consistent fashion. By limiting the reach of Hills to its unusual facts,
there is no discordance.

       Accordingly, I continue to believe, consistent with CAAF precedent and
federal courts that have interpreted the matter that Hills should be read narrowly. I
would limit the CAAF’s finding of constitutional error to the narrow facts contained
in Hills. In a case such as this, where the offenses occurred over the course of
years, the confusion contained in the (admittedly) confusing instructions did not
amount to constitutional error. Therefore, I would affirm.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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