UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                            BURTON, HAGLER, and SCHASBERGER
                                 Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                             Private E1 ADRIAN GONZALEZ
                              United States Army, Appellant

                                       ARMY 20160363

        Headquarters, U.S. Army Combined Armed Center & Fort Leavenworth
               Charles L. Pritchard, Jr., Military Judge (arraignment)
                       Marc D. Cipriano, Military Judge (trial)
                  Colonel Craig E. Merutka, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Brendan
Cronin, JA; Major Joseph T. Marcee, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin J. Fenwick, JA; Captain
Joshua B. Bannister, JA (on brief).

                                           3 July 2018
                                  -----------------------------------
                                   MEMORANDUM OPINION
                                  -----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       In the instant case, Private (PVT) Adrian Gonzalez was charged with sexual
assault of three women: Specialist (SPC) AC, PVT TO 1 and Mrs. VB. At issue is
whether the use of the charged assaults for propensity purposes was prejudicial
error. We find that appellant’s plea of guilty to the charges of abusive sexual
contact of VB waived any objection to the military judge’s ruling with respect to
those charges. With respect to the charge of rape of SPC AC, we are unable to
conclude that the use of propensity evidence was harmless beyond a reasonable
doubt, and take corrective action in our decretal paragraph.




1
  The military judge acquitted appellant of Specification 1 of Charge III, alleging the
rape of PVT TO.
GONZALEZ—ARMY 20160363


       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of violating a general order or
regulation and two specifications of abusive sexual contact, and contrary to his
pleas, of one specification of rape, in violation of Articles 92 and 120, Uniform
Code of Military Justice, 10 U.S.C. §§ 892, 920 (2012) [UCMJ]. The military judge
sentenced appellant to a dishonorable discharge and confinement for ten years, a
sentence later approved by the convening authority.

                                  BACKGROUND

             A. Assault of Specialist AC (Specification 2 of Charge III)

       In June 2013, while waiting to be court-martialed for other charges, 2 appellant
was transferred to Tripler Army Medical Center and assigned as the senior cook on
the grill at the dining facility. Specialist (SPC) AC reported to Hawaii in July 2013
and was assigned to work at the grill under appellant’s supervision. At the time
appellant was a sergeant. Over the following several months appellant and SPC AC
became friends.

       On 19 January 2014, appellant texted SPC AC and asked if she wanted to
accompany him and another friend, LH, to a movie. After consulting her husband,
SPC AC agreed. The original plan consisted of appellant and LH picking up SPC
AC and going to the movie. Appellant arrived at SPC AC’s house, later than
expected and alone. The two of them went and picked up LH. To SPC AC’s
surprise, the three then went to Moose McGillycuddy’s, a bar and dance club, so LH
could pick up some marijuana.

       Once at McGillycuddy’s, SPC AC drank several strong drinks. 3 She danced
with LH and appellant. When they left the bar at 0300 the next morning, SPC AC
was drunk; she could not walk without holding handrails and she needed assistance
to climb into appellant’s truck.

       On the drive back, SPC AC immediately fell into a deep sleep. She slept
through the twenty-five minute drive to McDonald’s, the stop at the drive thru, and
the ten minute drive back to appellant’s house. At the house, LH and appellant tried
to awaken SPC AC. They spoke to her, shook her and slapped her face. SPC AC did

2
 These charges are relevant only in that they form part of the basis of the
government’s Military Rule of Evidence [Mil. R. Evid.] 413 motion. On 28 May
2014, appellant pleaded guilty to one specification of maltreatment of a subordinate,
one specification of rape, and three specifications of abusive sexual contact. The
victims of these offenses, SPC JF and SPC MM, were, respectively, a member of
appellant’s unit and a subordinate. Appellant did not tell anyone he was pending
charges; his supervisors, coworkers and friends were unaware of the charges.
3
 The drink was referred to as AMF, which stood for “Adios Mother Fucker,” and, as
described by one witness, contained several types of liquor, Sprite, and a sweetener.
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GONZALEZ—ARMY 20160363


not respond, so they left her in the truck and went inside. After using the bathroom,
LH asked that appellant drive her home. Appellant drove LH home and told LH that
he would “make sure that [SPC AC] got home safe.”

       Specialist AC woke up the next morning in a parking lot. Her pants and
underwear were around her ankles and she felt a semen-like fluid between her legs
and coming out of her vagina. She saw appellant sleeping in the driver’s seat, with
his pants down to his knees. Specialist AC screamed. Appellant woke up, said
“fuck, fuck, fuck,” pulled up his pants and drove to SPC AC’s house. During the ten
minute drive, neither appellant nor SPC AC said anything.

       When SPC AC got home she went in her house, laid down on the couch and
curled up in the fetal position. Her husband yelled at her, went upstairs and started
to pack. Specialist AC followed her husband upstairs. Before she could tell him
anything he had a seizure. SPC AC had to call for an ambulance to take her husband
to the hospital.

      Specialist AC did not reveal the assault to her husband until months later.
She reported the incident to authorities a year after the incident.

       At trial, the government’s evidence concerning the assault of SPC AC
consisted of her testimony, LH’s testimony corroborating SPC AC’s level of
intoxication, and SPC AC’s husband’s testimony as to her demeanor when she
returned the morning before his seizure. The government offered no physical
evidence corroborating the assault.

      Contrary to appellant’s plea, the military judge found appellant guilty of this
offense.

            B. Assault of Mrs. VB (Specifications 3 and 4 of Charge III)

       In February 2014, in anticipation of his court-martial for other sexual
misconduct, appellant moved his family back to the continental United States. He
told his friends that there was a problem with his orders so he could not immediately
join his family. Appellant’s friend, SPC NB, invited him to stay at his house. SPC
NB’s wife, Mrs. VB also resided at the house. Neither SPC NB nor Mrs. VB knew
appellant was pending court-martial charges.

       On 4 May 2014, after drinking and watching a movie in their living room,
SPC NB and Mrs. VB fell asleep on the living room floor. At around 0400, after a
night out drinking appellant returned and could not get into the residence. Mrs. VB
heard loud banging and attempted to wake her husband. After waking him, Mrs. VB
went back to sleep on the floor. Specialist NB let appellant in the house, rejoined
his wife, and went back to sleep.

      Later that morning, Mrs. VB woke up because someone was touching her
buttocks. She opened her eyes and realized it was not her husband. She heard
appellant say “come here, come here, let’s go to the room.” Mrs. VB told appellant

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GONZALEZ—ARMY 20160363


to stop. He did not stop, but instead attempted to convince Mrs. VB to have sex
with him. Appellant touched her breasts, buttocks, inner thighs and mons pubis.
Unable to wake her husband, Mrs. VB got up and left the house.

       Appellant pleaded guilty to touching Mrs. VB’s buttocks (Specification 3 of
Charge III) and guilty, by exceptions and substitutions, to touching Mrs. VB’s mons
pubis (Specification 4 of Charge III).

                                       C. Trial

       The government charged appellant with sexual assault of SPC AC, two
specifications of abusive sexual contact of Mrs. VB, sexual assault of PVT TO, as
well as violating a general order by providing alcohol to PVT TO, a person under the
age of twenty-one, and fraternizing with PVT TO. In a pretrial motion, the
government sought to introduce evidence of appellant’s prior sexual assault
convictions and use that evidence, as well as the charged Article 120, UCMJ,
offenses to establish that appellant had a propensity to commit the sexual
misconduct.

       The government motion specifically requested the pre-admission of the
stipulation of fact from appellant’s prior court-martial, the transcript of appellant’s
providence inquiry at that trial, and the result of trial (RROT). The government also
asked for a ruling on the admissibility of:

             a. Evidence of the Accused’s prior conviction for sexually
                assaulting two prior victims (if RROT not pre-
                admitted);
             b. Evidence of the accused’s assault of [Mrs. VB] for its
                bearing on the charged assault of [PVT TO] and [SPC
                AC];
             c. Evidence of the accused’s assault of [PVT TO] for its
                bearing on the charged assault of [Mrs. VB] and [SPC
                AC]; and
             d. Evidence of the accused’s assault of [SPC AC] for its
                bearing on the charged assault of [Mrs. VB] and [PVT
                TO].

       The defense did not file a motion opposing the government’s motion but, at a
pretrial motions hearing on 18 April 2016, opposed the motion, citing Military Rule
of Evidence [Mil. R. Evid] 403. The next day, the military judge issued a written
ruling with findings of fact, and found the evidence was admissible but not admitted.

       On 4 May 2016, appellant submitted an offer to plead guilty (OPG) to Charge
I and its specifications (the violations of a general regulation or order) and
Specifications 3 and 4 of Charge III (the abusive sexual contact of Mrs. VB). After
a counter offer, the convening authority accepted the OPG. Within the OPG,


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GONZALEZ—ARMY 20160363


appellant reserved the right to raise a motion regarding unreasonable multiplication
of charges for sentencing; no other motions were reserved.

      On 10 May 2016, pursuant to his agreement with the convening authority,
appellant pleaded guilty to abusive sexual contact with Mrs. VB. Before asking for
appellant’s plea, the military judge went over the outstanding motions and asked
defense if there were any other motions. Defense indicated there were no other
motions. Appellant then pleaded guilty to the specifications of Charge I, and
Specifications 3 and 4 of Charge III. 4

      After the providence inquiry, the government began their case as to
Specifications 1 and 2 of Charge III. When trial counsel attempted to address
propensity in his opening statement the military judge stopped him and told him that
he could not mention propensity unless it became relevant and the evidence was
admitted.

       In closing, the government set the tone of the argument early in stating
“[T]his court has before it powerful propensity evidence” before listing the various
victims of appellant’s sexual assaults as his subordinates, his friends, and those who
trusted him. After arguing propensity, the trial counsel laid out the evidence
supporting the assault of SPC AC, and the evidence supporting the assault of PVT
TO. Trial counsel closed his argument the way he started–arguing propensity.


                             LAW AND DISCUSSION

            A. Military Judge’s Ruling on Military Rule of Evidence 413

       The decision to admit evidence is reviewed for an abuse of discretion. United
States v. Hukill, 76 M.J. 219, 221 (C.A.A.F. 2017). “ The meaning and scope of
M.R.E. 413 is a question of law that is reviewed de novo.” United States v. Hills, 75
M.J. 350, 354 (C.A.A.F. 2016) (citation omitted). In Hills, the Court of Appeals for
the Armed Forces (CAAF) found that using Mil. R. Evid. 413 evidence of charged
misconduct as propensity evidence to prove other charged misconduct “violated
Appellant’s presumption of innocence and right to have all findings made clearly
beyond a reasonable doubt, resulting in constitutional error.” Hills 75 MJ at 356.
Though Hills was a case involving instructions to a panel, the CAAF made it clear in
Hukill that this issue extends to military judge alone cases as well. 76 M.J. at 222
(“Whether considered by members or a military judge, evidence of a charged and
contested offense, of which an accused is presumed innocent, cannot be used as
propensity evidence in support of a companion charged offense.”).



4
 The trial counsel dismissed Charge II after arraignment but before appellant
entered his plea.


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GONZALEZ—ARMY 20160363


       The government’s motion to admit evidence under Mil. R. Evid. 413
contained both uncharged and charged misconduct. There was nothing erroneous in
the military judge’s ruling with regard to the uncharged misconduct. Of the charged
misconduct, the military judge allowed the government to use the evidence of
assaults on each of the named victims, (Mrs. VB, SPC AC, and PVT TO) to prove
the assault of the other named victims. It is clear from the decision by CAAF in
Hukill that this was error. 5

       We must therefore examine the impact of the error on the plea of guilty and
on the contested portion of the trial.

                    B. Pleas and Waiver of Unpreserved Motions

       Appellant argues that he relied on the military judge’s ruling on the
government’s use of Mil. R. Evid. 413 when he decided to plead guilty to some
offenses and, as that ruling was erroneous, we should set aside his plea of guilty to
abusive sexual contact of Mrs. VB. We disagree. We find the appellant’s plea of
guilty was provident even if he based his decision on an erroneous evidentiary ruling
by the military judge.

       Unless conditioned under Rule for Courts-Martial [R.C.M.] 910(a)(2), a plea
of guilty that results in a finding of guilty, “waives all nonjurisdictional defects at
earlier stages of the proceedings.” United States v. Lee, 73 M.J. 166, 167 (C.A.A.F.
2014) (quoting United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010). An
erroneous ruling on Mil R. Evid. 413 is not jurisdictional. This is an evidentiary
ruling akin to motions to suppress a confession or on the admissibility of evidence
seized without a warrant. Just as the Supreme Court has found that a valid guilty
plea with the advice of counsel waives an erroneous ruling on the admissibility of a
pretrial confession (See McMann v. Richardson, 397 U.S. 759, 771 (1970)), and the
CAAF has found that an unconditional guilty plea waives all suppression motions
(See United States v. Tarleton, 47 M.J. 170, 172-173 (C.A.A.F. 1997)), we find that
unless specifically conditioned, a guilty plea waives any objection to a military
judge’s ruling under Mil. R. Evid. 413.

       Appellant chose to enter into a pretrial agreement (PTA) with the Convening
Authority. In that PTA, appellant agreed to plead guilty to some of the
specifications in exchange for a limitation on his sentence. While appellant
preserved his motion in regard to an unreasonable multiplication of charges, the PTA
otherwise was silent as to his objection to the military judge’s Mil. R. Evid. 413
5
  The record indicates that the plea of guilty to the specifications regarding Mrs. VB
was anticipated, as at the motions hearing, trial counsel stated “pending the
accused’s plea of guilty to Specifications 3 and 4 of Charge III we’d like that plea, .
. . when and if it becomes relevant, to be as 413 propensity evidence for purposes of
abuse against [SPC AC and PVT TO].” At the time of the military judge’s ruling,
however, appellant had not entered into an agreement to plead guilty to the assault
of Mrs. VB, and the propensity issue was still one of charged misconduct.
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GONZALEZ—ARMY 20160363


ruling. Prior to entry of pleas, the military judge went over the status of the pretrial
motions and the results and then twice asked the defense counsel if there were any
other motions. The defense counsel indicated there were no other motions and
entered a plea of guilty to the violations of a general order or regulation (Charge I
and its specifications), and the abusive sexual contact of Mrs. VB (Specifications 3
and 4 of Charge III). This waived any evidentiary issues, such as the military
judge’s Mil. R. Evid. 413 ruling, as to those charges.

            C. Use of Propensity Evidence in the Contested Portion of Trial

       It is constitutional error to admit evidence of charged conduct as propensity
evidence in proving other charged conduct. Therefore we must determine whether
the military judge’s ruling and consideration of improper propensity evidence was
harmless beyond a reasonable doubt. 6 United States v. Wolford, 62 M.J. 418, 420
(C.A.A.F. 2006). 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).

       As our superior court has noted, “[t]here 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 in the members'
ultimate determination.’” United States v. Guardado, 77 M.J. 90, 94 (C.A.A.F.
2017) (quoting Hills, 75 M.J. at 358). At first glance, this would appear to be such a
case. Specialist AC presented as a very credible witness. The circumstantial
evidence – the amount SPC AC had to drink, the inability to wake her at McDonald’s
or at appellant’s house, and her actions upon arriving home – supports the
conclusion that SPC AC was assaulted by appellant.

      However, we must view this evidence in light of the government’s focus on
propensity evidence in obtaining a guilty finding.

       The clear theme of the prosecution’s closing argument was propensity. While
much of this was permissible, as it revolved around appellant’s prior conviction and
the parallels between those crimes and the charged misconduct, government counsel
repeatedly made references to improper evidence. The trial counsel used the plea of
guilty to the specifications regarding Mrs. VB to show propensity evidence to
commit similar acts. Although not an improper use of propensity this was improper
argument. 7 Most critically trial counsel grouped the assaults on SPC AC and PVT
TO, pointing out the similarities between these incidents and the other assaults.


6
    Appellant objected to the government’s motion, thereby preserving the error.
7
    The military judge initially stopped trial counsel from arguing propensity based on

                                                                        (continued . . .)
                                            7
GONZALEZ—ARMY 20160363



        Though we conclude the evidence against appellant was strong, we cannot
conclude beyond a reasonable doubt that improper propensity evidence played no
role in appellant’s conviction of Specification 2 of Charge III.


                                  CONCLUSION

      Upon consideration of the entire record, the finding of guilty to Specification
2 of Charge III is set aside. The remaining findings of guilty are AFFIRMED. The
sentence is set aside. The same or a different convening authority may: 1) order a
rehearing on Specification 2 of Charge III and the sentence; 2) dismiss Specification
2 of Charge III and order a rehearing on the sentence only; 3) dismiss Specification
2 of Charge III and reassess the sentence, affirming no more than a dishonorable
discharge and confinement for six years. 8

      Senior Judge BURTON and Judge HAGLER concur.
                                      FOR THE COURT:



                                      JOHN P. TAITT
                                      Acting Clerk of Court



(. . . continued)
the assaults of Mrs. VB, as he had not issued a finding of guilt, even though he had
accepted appellant’s pleas to these offenses. The trial counsel pointed to the prior
ruling on Mil. R. Evid 413 and the military judge allowed trial counsel to continue.
Under the facts in this case this constituted error, as the government introduced no
evidence of the crimes against Mrs. VB and instead relied on appellant’s testimony
during the providence inquiry and the stipulation of fact. This was an improper use
of appellant’s providence inquiry and outside of the scope of permissible use of the
stipulation of fact, which by its terms, could only be considered for purposes of
appellant’s guilty pleas and sentencing. The government could have asked the judge
to make his findings on the guilty plea as contemplated by R.C.M. 910(g) and then
called Mrs. VB to testify as to what happened to her if they wanted to argue
propensity based on the guilty plea.
8
  In reassessing the sentence we are satisfied that the sentence adjudged, absent
Specification 2 of Charge III, would have been at least a dishonorable discharge and
confinement for six years. See United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The
reassessment being both appropriate and purging the record as it stands of error does
not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art.
63.
                                          8
