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

                             UNITED STATES, Appellee
                                           v.
                        Private First Class JACOB R. GRANT
                            United States Army, Appellant

                                      ARMY 20150572

                         Headquarters, 7th Infantry Division
                         Kenneth W. Shahan, Military Judge
                   Colonel Robert F. Resnick, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Michael A. Gold, JA (on brief); Captain Katherine L.
DePaul, JA; Captain Michael A. Gold, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Anne C. Hsieh, JA; Lieutenant Colonel Kirsten M. Dowdy, JA (on brief).


                                         25 May 2017

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       In this case we set aside the sexual misconduct charges of which appellant
was convicted because during the court-martial the military judge stated that he
would consider each charge of sexual misconduct as propensity evidence of each of
the other charges of sexual misconduct. This now violates the guidance set forth by
our superior court regarding consideration of sexual charged offenses as propensity
evidence to support other charges sexual assault offenses. See United States v.
Hukill, 76 M.J. __, 2017 CAAF LEXIS 305 (C.A.A.F. 2 May 2017).

       A military judge sitting as general court-martial convicted appellant, contrary
to his pleas, of one specification of failure to report, two specifications of violating
a lawful order, one specification of making a false official statement, four
specifications of abusive sexual contact, and one specification of sexual assault, in
violation of Articles 86, 92, 107, and 120, Uniform Code of Military Justice, 10
GRANT–ARMY 20150572

U.S.C. §§ 886, 892, 907, 920 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for eight
months, and reduction to the grade of E-1.

       We review this case under Article 66, UCMJ. As one of appellant’s assigned
errors merits relief, we do not address the remaining assignment of error or the
matters personally asserted pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).

                                   BACKGROUND

      On 19 August 2015, trial counsel filed a notice of intent to offer evidence
under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413. On 24 August
2015, trial counsel filed a motion in limine for an order admitting evidence under
Mil. R. Evid. 413, requesting that the military judge “consider charged sexual
offenses in the Charges and Additional Charges as [Mil. R. Evid.] 413 evidence to
prove propensity of [appellant] to commit sexual offenses . . . and the [appellant’s]
modus operandi and absence of mistake or accident in committing these offenses.”

      During appellant’s court-martial, the military judge informed the parties of
his Mil. R. Evid. 413 ruling: “I will be considering each charge of sexual
misconduct as propensity evidence of each of the other charges of sexual misconduct
under Article 120.”

                                LAW AND ANALYSIS

        After appellant’s court-martial, our superior court held it to be constitutional
error for a military judge to give an instruction to a panel that permits Mil. R. Evid.
413 to be applied to evidence of charged sexual misconduct. United States v. Hills,
75 M.J. 350, 352 (C.A.A.F. 2016). More recently, our superior court held “the
rationale of Hills is equally applicable to both members and military judge-alone
trials.” Hukill, 2017 CAAF LEXIS 305, at *2.

       In this case, the military judge’s decision to consider charged sexual offenses
as propensity evidence supporting other charged offenses violates our superior
court’s decision in Hukill. On the facts of this case, we apply the guidance provided
by our superior court and find that we are not convinced beyond a reasonable doubt
the propensity evidence did not contribute to the findings of guilty for the Article
120, UCMJ, charges and specifications or appellant’s sentence. Thus the findings
related to this error, as well as the sentence, cannot stand.

      While we respect and apply the guidance from our superior court in Hukill, we
also must admit some uncertainty for we do not understand how the law has changed
or how the military judge misapplied the law. Dep’t of Army, Pam. 27-9, Legal

                                            2
GRANT–ARMY 20150572

Services: Military Judges’ Benchbook [hereinafter Benchbook] para. 7-13-1 (10
Sep. 2014) specifically states and instructs that a fact finder “cannot use this
[propensity] evidence to overcome a failure of proof in the government’s case, if
you perceive any to exist. The accused may be convicted of an alleged offense only
if the prosecution has proven each element beyond a reasonable doubt.”

                                  CONCLUSION

       The findings of guilty as to Specifications 1 and 2 of Charge I and Charge I
and Specifications 1, 2, and 3 of Additional Charge II and Additional Charge II are
set aside. The remaining findings of guilty are AFFIRMED. The sentence is set
aside. A rehearing may be ordered by the same or a different convening authority.

      Judge PENLAND concurs.

      Judge HERRING, dissenting:

       As discussed in the majority opinion, the law at the time prohibited a fact
finder from using propensity evidence on the issue of guilt. I have no doubt the
military judge followed the law in this case and am convinced beyond a reasonable
doubt that propensity evidence did not contribute to the findings of guilty.
Accordingly, I would affirm the findings of guilty.

                                       FOR THE COURT:




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




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