UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              MULLIGAN, TOZZI, and HERRING
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Private E-1 BENJAMIN C. HILL
                            United States Army, Appellant

                                       ARMY 20130331

                        Headquarters, III Corps and Fort Hood
              Kirsten V. Brunson, Military Judge (arraignment and trial)
                Patricia H. Lewis, Military Judge (motion to dismiss)
               Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
               Colonel Ian G. Corey, Staff Judge Advocate (post-trial)


For Appellant: Major Yolanda McCray Jones, JA; Captain Ryan T. Yoder, JA (on
brief); Major Christopher D. Coleman, JA; Captain Ryan T. Yoder, JA (on reply
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Major
Matthew T. Grady, JA (on brief).


                                          27 June 2017
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                    SUMMARY DISPOSITION ON RECONSIDERATION
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Per Curiam:

       A military panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications each of violating a lawful general
regulation, aggravated sexual contact, and housebreaking in violation of Articles 92,
120, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, 930 (2006 &
Supp. IV 2011). The panel sentenced appellant to a bad-conduct discharge and
confinement for two years. The convening authority approved only so much of the
sentence as provided for a bad-conduct discharge and confinement for one year and
eleven months and credited appellant with eighty-four days of confinement against
the sentence to confinement.

      We decided this case on 23 June 2016. See United States v. Hill, ARMY
20130331, 2016 CCA LEXIS 407 (Army Ct. Crim. App. 2016) (sum. disp.). On 27
June 2016, the Court of Appeals for the Armed Forces (CAAF) issued the landmark
HILL — ARMY 20130331

opinion of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). On 12 July 2016,
appellate defense counsel filed a motion for reconsideration of our opinion in light
of Hills, and we granted that motion. Now that the proverbial dust has settled
around Hills and its progeny, we address the new case law, but conclude trial
defense counsel waived the erroneous Hills instruction. See also United States v.
Hukill, 76 M.J. 219 (C.A.A.F. 2017).

                                        FACTS
        In the spring of 2011, appellant, Private First Class (PFC) MA, and PFC JW
were assigned to a unit nicknamed “Crazy Troop” located at Contingency Operating
Site (COS) Marez, Iraq. Both PFC MA and PFC JW were new to the unit. On 20
March 2011, PFC MA awoke to being held down by three individuals, including
appellant, who had entered his room without his permission. Private First Class MA
testified that as the individuals held him down, they pulled his pants down and one
of them put his finger in PFC MA’s anus. Private First Class MA believed it was
appellant because appellant’s “hand was in that area.” Private First Class MA
testified that he fought to get away the whole time, but could not. The incident
lasted less than a minute.

      Private First Class JW was PFC MA’s roommate, but was on leave on 20
March 2011. Between 14 and 20 April 2011, appellant and other soldiers entered
PFC MA and PFC JW’s containerized housing unit (CHU) without permission. They
held PFC JW down and took off his pants. Appellant “shoved multiple fingers up
[PFC JW’s] butt.” Again, the attack lasted less than a minute. Private First Class
MA witnessed the attack from his bed, but was afraid to try and stop it. Both PFC
JW and MA later reported the incidents to their chain of command.

                              LAW AND DISCUSSION

                      A. Military Rule of Evidence 413 at Trial

       Prior to trial, the government filed a motion in limine asking the court to
admit propensity evidence under Military Rule of Evidence [hereinafter Mil. R.
Evid.] 413. Specifically, trial counsel asked the court to use the charged offenses of
aggravated sexual contact as propensity evidence of each other. The motion
provides an analysis of the Wright test and addresses the balancing test under Mil.
R. Evid. 403. United States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000). Trial
defense counsel did not object to this motion and the military judge then granted it
with no further discussion.

       During the discussion on instructions, trial counsel asked for “the 413
instruction,” specifically for using the identity in one incident to prove identity in
the other incident as well as the propensity instruction. Trial defense counsel did
not object to this instruction.

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HILL — ARMY 20130331

      Finally, trial counsel made reference to these instructions in his closing
argument, telling the panel that they did not need to “evaluate each [specification] in
a vacuum . . . if you believe that one happened, even if you’re not certain, but just
think more likely than not that it happened, you can use that when evaluating
whether or not the other one happened, and vice-versa.” Trial defense counsel made
no objection to this argument.

                      B. United States v. Hills and Its Progeny

       The CAAF made clear in Hills that Mil. R. Evid. 413 propensity evidence and
use do not apply between charged misconduct, and it was error to instruct the panel
so. 75 M.J. at 354. The CAAF clarified in Hukill that to use Mil. R. Evid. 413 as a
mechanism for propensity is error “regardless of the forum, the number of victims,
or whether the events are connected.” 76 M.J. at *8. Notably, defense counsel in
both Hills and Hukill objected to such propensity usage. The CAAF then analyzed
the error as one of constitutional error, and tested for harmlessness beyond a
reasonable doubt. Hills, 75 M.J. at 353. Here, defense counsel stated he had no
objection to the propensity instruction given to the panel, nor did he object to the
brief portion of the government’s closing argument addressing propensity.

                                      C. Waiver

      An appellant’s statement that he did not object to the instructions is a
“purposeful decision” and waiver will apply. United States v. Gutierrez, 64 M.J.
373, 377 (C.A.A.F. 2007). This scenario is at least true in circumstances where
appellant “was fully aware of the [issue], and he had numerous opportunities to
contest its admission and use.” United States v. Swift, 76 M.J. 210, slip. at 12
(C.A.A.F. 2017).

       However, most controlling is the CAAF’s recent decision in Swift.
Appellant’s statement that he had “no objection” to the instructions “as a general
proposition of law . . . constitute[d] an affirmative waiver of the right or admission
at issue.” Swift, 76 M.J. at *12. We therefore find appellant waived, not forfeited,
any objection to the instructions and government argument. See also United States
v. Ahern, 76 M.J. 194 (C.A.A.F. 2017).

                                    D. Plain Error

       Hukill could be interpreted as stating that Hills announced a new rule. If
Hills is a new rule, we would set aside appellant’s waiver and test for plain error.
See United Stats v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008) (testing for plain
error after finding Crawford v. Washington, 541 U.S. 36 (2004), announced a new
rule). However, a “new rule” does not transform “waiver” into preserved error. See
United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (testing for plain error when


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HILL — ARMY 20130331

appellant was convicted of lesser-included offense that was invalid based on the
Court’s subsequent opinion in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010)).

       Appellant would not prevail in this case even under a plain error analysis. To
establish plain error, appellant must show that: (1) an error was committed; (2) the
error was plain, or clear, or obvious; and (3) the error resulted in material prejudice
to substantial rights. United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 2009).

       Hills and Hukill made clear the error committed in this case. While we do not
find Hills to have been a “new rule” because it did not overturn settled law, we do
find that post-Hills, a Hills instruction is plainly wrong. Therefore, this prong also
weighs in appellant’s favor.

      The third and final prong of the plain error test is prejudice. A finding or
sentence of a court-martial “may not be held incorrect on the ground of an error of
law unless the error materially prejudices the substantial rights of the accused.”
UCMJ art. 59(a).

       Appellant here fails to demonstrate prejudice in a court-martial where the
issue of propensity was of such fleeting importance. The defense theory of the case
was innocent horseplay and the victims lack of specificity (as in perhaps mistaken
identity) and credibility. Tellingly, the panel convicted appellant of housebreaking
pursuant to Article 130, UCMJ. Housebreaking requires the unlawful entry with the
intent to commit a criminal offense. Here, the crime intended upon unlawful entry
was not hazing or assault, it was aggravated sexual contact. As the panel convicted
appellant of twice having the intent of committing aggravated sexual contact without
the stain of propensity, it is a fair reading of the record and findings that the issue of
propensity did not factor into their finding of appellant guilty of the underlying
specifications of aggravated sexual contact without.

                                    CONCLUSION

   The findings and sentence are correct in law and fact and are AFFIRMED.


                                         FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:




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




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