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

                             UNITED STATES, Appellee
                                          v.
                          First Lieutenant DAVID BROWN
                           United States Army, Appellant

                                    ARMY 20160139

                           7th Army Training Command
                      Christopher D. Carrier, Military Judge
        Lieutenant Colonel Sean T. McGarry, Staff Judge Advocate (pretrial)
        Lieutenant Colonel Eugene Y. Kim, Staff Judge Advocate (post-trial)

For Appellant: Captain Scott A. Martin, JA; Zachary Spilman, Esquire (on brief);
Captain Zach A. Szilagyi, JA; Zachary Spilman, Esquire (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin L. Fenwick, JA;
Captain Sandra L. Ahinga, JA (on brief).


                                    23 February 2018
                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

SALUSSOLIA, Judge:

       In this case, we set aside the findings of guilty as to five specifications, three
of rape, one of aggravated sexual contact, and of one 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); United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017); and United States v.
Guardado, 77 M.J. 90 (C.A.A.F. 2017).

       A military panel composed of officer members sitting as a general court-
martial convicted appellant, contrary to his pleas, of two specifications of rape in
violation of Article 120 Uniform Code of Military Justice, 10 U.S.C. § 920 (2006)
[hereinafter UCMJ], and violating a lawful general regulation, assault consummated
by battery, rape, aggravated sexual contact, abusive sexual contact, and conduct
unbecoming of an officer and gentleman, in violation of Articles 92, 120, 128, and
133 UCMJ, 10 U.S.C. §§ 892, 920, 928, 933 (2012). The convening authority
approved the adjudged sentence of a dismissal and fifteen years of confinement.
BROWN—ARMY 20160139

                                   BACKGROUND

       In Charge I, the government charged appellant with five Article 120, UCMJ,
specifications involving two different victims. Specifications 1 and 2 were offenses
against appellant’s wife and Specifications 3 through 5 were offenses against Private
(PV2) BL. Prior to trial, the government requested the military judge consider
Specifications 1 through 5 of Charge I for propensity purposes under Military Rule
of Evidence [hereinafter Mil. R. Evid.] 413. The defense objected to the
government’s request, thereby preserving the error. The military judge granted the
government’s request in a written ruling. (App. Ex. XIX).

                              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.

       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). “There are
circumstances where the evidence is overwhelming, so we can rest assured that an
erroneous propensity instruction did not contribute to the verdict by ‘tipp[ing] the
balance of the members’ ultimate determination.’” Guardado, 77 M.J. 90, __, 2017
CAAF LEXIS 1142, at *11 (C.A.A.F. 2017) (quoting Hills, 75 M.J. at 358).

       Having reviewed the evidence, we are not convinced beyond a reasonable
doubt that the Mil. R. Evid. 413 error did not contribute to the findings of guilty of
Specifications 1 through 5 of Charge I. Although we find the testimony of the two
victims credible, the deficiency of corroborating evidence makes it difficult to be
certain that appellant was convicted on the strength of the evidence alone. This case
does not involve conclusive DNA evidence, corroborating injuries, videos or
photographs that otherwise evidence appellant’s misconduct. Moreover, appellant’s
defense counsel raised several issues regarding the complaining witnesses’ motives
to fabricate. While it is possible the members did not use evidence of one offense to
convict appellant of another offense, we are not convinced beyond a reasonable



                                           2
BROWN—ARMY 20160139

doubt the erroneous propensity instruction played no role in appellant’s conviction.
Thus, the findings for Specifications 1 through 5 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 5 of Charge I and Charge
I are SET ASIDE. The remaining findings of guilty are AFFIRMED. The sentence
is SET ASIDE. A rehearing is authorized on Specifications 1 through 5 of Charge I
and Charge I and the sentence. The case is returned to the same or a different
convening authority.

      Senior Judge CAMPANELLA and Judge FLEMING concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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