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

                          UNITED STATES, Appellee
                                       v.
                       Specialist ANTHONY R. CLARK II
                         United States Army, Appellant

                                  ARMY 20160304

                           Headquarters, Fort Campbell
            Steven E. Walburn and Matthew A. Calarco, Military Judges
                  Colonel Susan K. Arnold, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Captain Joshua B. Fix, JA; Captain
Heather M. Martin, JA (on brief); Major Todd W. Simpson, JA; Captain Heather M.
Martin, JA (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Major Cormac M. Smith, JA (on brief).

                                  12 October 2018
                              --------------------------------
                              SUMMARY DISPOSITION
                              --------------------------------

WOLFE, Senior Judge:

       Appellant was charged with numerous sexual offenses, to include the rape of
three different soldiers. An enlisted panel convicted appellant of raping two of the
soldiers, an abusive sexual contact against a third soldier, two specifications of
indecent exposure, and one specification of wrongful viewing in violation of
Articles 120 and 120c, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 920c
(2007 and 2012) [UCMJ]. The court-martial sentenced appellant to a dishonorable
discharge, confinement for 19 years, to forfeit all pay and allowances, and reduction
to the grade of E-1.

                                  BACKGROUND

       At trial, the government requested the military judge instruct the panel that
evidence appellant committed one sexual offense could be used to establish his
propensity to commit other sexual offenses. The defense counsel objected to the
proposed instruction. The military judge then gave the instruction. Accordingly, as
in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), this is a case of preserved
constitutional error and we may affirm the affected findings only if we find the
CLARK—ARMY 20160304

government has met the burden of proving the error harmless beyond a reasonable
doubt. Id. at 357.

                              LAW AND DISCUSSION

       Although the government does yeoman’s work in trying to persuade us
otherwise, the record does not come close to supporting a finding of constitutional
harmlessness. And, it is the record that controls. Although there are many pieces
that could fairly be included in explaining our decision, we discuss two.

       First, it is hard to imagine a case in which the government could argue more
forcefully that appellant is guilty because of propensity evidence. In rebuttal, after
the defense counsel urged the panel not consider propensity evidence, the trial
counsel’s opening line of his rebuttal argument was as follows:

             [The] Defense counsel better believe I’m going to argue
             propensity, because either Specialist Clark is either guilty
             of rape, or he is the most unlucky Soldier in the United
             States Army. [Four] different Soldiers describe sexual
             misconduct committed by him over seven years. Panel
             members, lightning doesn’t strike four times in the same
             spot; doesn’t happen.

       Second, in our reading, the danger that the panel would impermissibly convict
appellant by using an improper propensity inference is far greater in this case than it
was in Hills. When there is evidence that the accused committed several different
assaults, against different victims, over a period of years, the panel may be naturally
inclined to conclude that the accused is predisposed to commit this type of offense.
When this natural inclination is backstopped by a judge’s instruction that permits
just this inference, it is more difficult to excise the erroneous instruction from the
case and hold the error harmless.

       Accordingly, our resolution of the guilty findings infected with Hills error is
clear. They must go. However, not all guilty findings were tainted by the Hills
instruction. The panel was not permitted to consider propensity evidence when
deliberating appellant’s guilt on the two specifications of indecent exposure and one
specification of wrongful viewing. These findings are correct in law and fact, and
we determine they should be approved. * See Article 66(c), UCMJ; 10 U.S.C. §
866(c).


*
 Appellant asserts that these remaining findings must also be set aside because the
military judge erred in not instructing on the defense of mistake of fact and the

                                                                       (continued . . .)


                                           2
CLARK—ARMY 20160304

                                   CONCLUSION

       The findings of guilty of the Specifications of Charge I and Charge I are set
aside. The remaining findings of guilty are affirmed. The sentence is set aside. A
rehearing on the Specifications of Charge I and sentence, or a rehearing on sentence
only, is authorized.

      Judge SALUSSOLIA and Judge FLEMING concur.




(. . . continued)
proper mens rea for the offense. Although the defense asked for a mistake of fact
instruction as to other offenses, it was not requested as to the specifications of
indecent exposure and wrongful viewing. Additionally, the defense counsel
specifically stated he had no objection to the military judge’s instructions. Under
these circumstances, an affirmative statement of no objection, (as compared to
silence), likely waived, but at least forfeited any objection. See United States v.
Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017); United States v. Swift, 76 M.J. 210, 217-
18 (C.A.A.F. 2017).

In any event, we find no error, plain or otherwise. To warrant an instruction on the
mistake of fact defense there must be “some evidence of an honest and reasonable
mistake to which the members could have attached credit if they had so desired.”
United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). While there is no per se
requirement an accused testify to establish a mistake of fact defense, evidence that
the accused honestly and reasonably believed the victim had consented must come
from somewhere. See United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1999). In
many cases, the only source of admissible evidence about an accused's subjective
belief may well be from the accused himself.

Appellant also asserts error in that it took 289 days to conduct the post-trial
processing of the case. The government concedes error, but argues that appellant
was not prejudiced by the delay. As we set aside the entire sentence, appellant is
not entitled to any additional relief at this time. However, appellant is not precluded
from raising the issue anew when the case is returned to this Court.

The matters asserted personally by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), are either mooted by our resolution of the Hills issue or
do not warrant relief. As we set aside the sentence because of Hills error, we did not
consider any allegations of error that affected only the sentence.



                                           3
CLARK—ARMY 20160304

                      FOR THE
                      FOR THE COURT:
                              COURT:




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




                       4
