UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                MULLIGAN, FEBBO, and WOLFE
                                   Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Specialist WILLIAM P. MOYNIHAN
                            United States Army, Appellant

                                        ARMY 20130855

                            Headquarters, Fort Campbell
                         Steven E. Walburn, Military Judge
                 Colonel Sebastian A. Edwards, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Robert H. Meek III, JA (on brief); Lieutenant Colonel Christopher D. Carrier, JA;
Major Julie L. Borchers, JA; Captain Oluwaesye Awoniyi (on brief on remand).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major John K. Choike, JA; Captain Scott L. Goble, JA (on brief); Colonel Tania
M. Martin, JA; Major Cormac M. Smith, JA; Captain Jeremy Watford, JA (on brief
on remand).


                                       30 November 2017
                     ---------------------------------------------------------------
                     MEMORANDUM OPINION ON FURTHER REVIEW
                     ---------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

     A panel of members convicted appellant, contrary to his pleas, of rape, two
lesser-included offenses of aggravated sexual contact with a child, one lesser-
included offense of wrongful sexual contact, and incest in violation of Articles 120
and 134, UCMJ, 10 U.S.C. §§ 920 and 934 (2006). The adjudged and approved
sentence provided for a dishonorable discharge, confinement for six years, and
reduction to the grade of E-1.

      This case is before us pursuant to Article 66, UCMJ. In a previous review of
this case, we summarily affirmed appellant’s findings of guilty and his sentence.
MOYNIHAN—ARMY 20130855

United States v. Moynihan, ARMY 20130855 (Army Ct. Crim. App. 12 Nov. 2015)
(summ. disp.). The Court of Appeals for the Armed Forces (CAAF) subsequently set
aside our decision and remanded the case back to this court in order to reconsider
our decision in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). Having
so reconsidered this case, we grant appellant partial relief by setting aside the
finding of guilty for two specifications, conditionally dismissing these two
specifications, and reassessing the sentence.

                                  BACKGROUND

                         A. Evidence of Sexual Misconduct

      Three of appellant’s younger sisters, MM, JM, and EC, alleged that appellant
engaged in various sexual encounters with them on multiple occasions between 2009
and 2011.

       Specifications 1 and 2 of Charge I alleged conduct by appellant against MM
while at appellant’s home in New York in 2009. These specifications, respectively,
asserted that appellant raped MM by penetrating her vagina with his finger and
penis. In an interview with the Army Criminal Investigation Command (CID), when
asked by CID, “Do you understand you sexually assaulted a juvenile,” appellant
replied, “yes.” The panel found appellant guilty of the lesser-included offense
aggravated sexual contact with a child for touching MM’s genital opening
(Specification 1), but acquitted him of raping MM with his penis (Specification 2).

       Specifications 3, 4 and 5 of Charge I covered contact between appellant and
his sisters at their parent’s home in Tennessee in 2010 and 2011. The specifications
alleged, respectively, that appellant raped MM, engaged in an aggravated sexual
contact with EC, and raped JM. During his CID interview, appellant stated he
penetrated MM’s vagina with his finger. He also admitted he touched JM’s vagina
while sitting on top of her, wrestling with her on the floor. Appellant told CID that
EC sat on his lap, but denied anything sexual had occurred. The panel convicted
appellant of raping MM (Specification 3) and of the lesser-included offense of
aggravated sexual contact with JM (Specification 5). The panel found appellant
guilty of the lesser-included offense of wrongful sexual contact with EC
(Specification 4).

                               B. Instruction at Trial

      On 22 May 2013, prior to trial, the government moved in limine to introduce
evidence underlying each sexual misconduct charge under Mil. R. Evid. 413 and 414

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to demonstrate appellant’s propensity to commit the other charged sexual
misconduct offenses. During appellant’s arraignment on 12 June 2013, the
government’s motion was not discussed. On 28 June 2013, having received no
response from defense counsel, the military judge issued a written ruling granting
the government’s motion. On 1 July 2013, defense counsel sent the military judge a
formal response to the government motion and a request for reconsideration via
email. 1 On 3 July 2013, the military judge granted defense counsel’s request for
reconsideration, but upheld his prior ruling.

       After the close of findings, defense counsel stated he had no objections to the
findings instructions proposed by the military judge. These instructions, which were
ultimately read to the panel, included propensity instructions modeled after a
standard Mil. R. Evid. 413 and 414 instruction. See Dep’t of the Army, Pam. 27-9,
Legal Services, Military Judges’ Benchbook, 7-13-1 n.4 (1 Jan. 2010). 2 In essence,
the military judge informed the members that, as to each victim, if they found by a
preponderance of evidence that the appellant committed the alleged offense, the
panel could then consider “the accused’s propensity or predisposition to engage in
sexual assaults” as to the other charges. The military judge further instructed the
panel the burden was on the prosecution to prove each element of each offense
beyond a reasonable doubt, and that the panel could not convict appellant of any
specification or charge on the basis of the propensity evidence alone.

                               LAW AND DISCUSSION

    A. Appellant did not waive or forfeit error concerning the propensity instruction.

       This case presents a challenge in determining the standard of review to apply
concerning the military judge’s propensity instructions. On the one hand, defense
counsel responded that he had no objection to the military judge’s instructions when
proposed and, then later, registered no objection once the instructions were read to
the panel. On the other hand, prior to trial, defense counsel requested the military
judge reconsider his decision to permit the panel to consider the charged offenses for
each victim as propensity evidence with regards to the charged offenses involving
the other victims. Unfortunately, the defense counsel failed to memorialize their
objections by placing their response and request for reconsideration on the record as
an appellate exhibit. As the issue was not litigated in an Article 39a, UCMJ session,

1
 Defense counsel’s formal response to the government’s motion and the email to the
military judge were not included as an appellate exhibit with the record of trial.
2
  These instructions, for purposes of our review, were essentially the same
instruction at issue in Hills. 75 M.J. at 356.
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we have no record from which to judge the extent or scope of the defense counsel’s
objection.

       However, we need not delve into the question of whether appellant forfeited
his objection to the military judge’s instruction or preserved his objection by
seeking reconsideration of the military judge’s ruling on the propensity evidence. It
is sufficient to find, as we do, that appellant, under the facts available in the record,
did not affirmatively waive any objection to the military judge’s propensity
instructions. 3 Regardless of whether appellant preserved or forfeited his objection,
we choose to exercise our discretionary authority under Article 66(c), UCMJ and
“notice” the issue.

       In Hills, CAAF found an erroneous propensity instruction, like that used here,
is constitutional error, if preserved, and we may affirm the conviction only if the
“government [] prove[s] there was no reasonable possibility that the error
contributed to [appellant’s] verdict.” United States v. Hukill, 76 M.J. 219, 222
(C.A.A.F. 2017).

               B. Was the error harmless beyond a reasonable doubt?

       As an initial matter, we must first address whether the specifications are
factually sufficient. See United States v. Moore, ARMY 20140875, 2017 CCA
LEXIS 191, at *6 (Army Ct. Crim. App. 23 Mar. 2017) (mem. op.). We find the
testimony of the victims supporting appellant’s conviction of Specifications 1, 3, 4
and 5 of Charge I to be credible and, overall, we are convinced beyond a reasonable
doubt, without considering any propensity evidence, as to appellant’s guilt of these
charges. But as we noted in Moore, our personal determination as to appellant’s
guilt beyond a reasonable doubt is a different inquiry from whether the military
judge’s instructional error concerning propensity evidence was harmless beyond
reasonable doubt. Id. at *7.

        Before we begin a specification by specification analysis, we note that the
trial counsel argued the issue of propensity in summation. We further note,
however, and we explain below, that the panel acquitted appellant of numerous

3
  As we have recognized, under some circumstances, an affirmative statement by
defense counsel to a military judge’s instructions can waive the objection on appeal
and put the issue beyond even a plain error analysis. See United States v. Hoffman,
76 M.J. 758, 764-65 (Army Ct. Crim. App. 2017). However marginal the record is
regarding the defense opposition to the government’s use of propensity evidence,
and by extension, the propensity instructions at trial, we do not find an affirmative
waiver in this case.
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offenses when the testimony of the victims was not corroborated by appellant’s
admissions to law enforcement.

                       1. Specifications 3 and 5 of Charge I.

     We find that the strength of the evidence as to Specifications 3 and 5 weigh in
favor of finding that the propensity instruction was harmless beyond a reasonable
doubt as to those charges. Id.; see also United States v. Guardado, 75 M.J. 889,
897-99 (Army Ct. Crim. App. 2016) (outlining factors to determine whether a
propensity instruction was harmless beyond reasonable doubt).
      In her testimony, Appellant’s sister, MM, testified appellant penetrated her
genital opening with his finger while inside the bathroom of their parent’s home. In
appellant’s CID interview, he admitted to penetrating MM’s genital opening with his
finger in the hallway outside the bathroom. Based on the appellant’s admission and
the corroborative testimony of MM, we are convinced beyond a reasonable doubt
that the erroneous propensity instruction did not contribute to appellant’s conviction
of Specification 3 of Charge I.

     Appellant’s sister JM testified about an incident in December 2010 when she
and appellant were wrestling on their parent’s living room floor. At some point,
appellant touched her genital area over her clothes. In appellant’s CID statement, he
admitted he was sitting on top of her, and “I’m pretty sure I touched her vagina.”
While appellant did not specifically admit to a criminal intent in the touching, his
admission to the actus reus convinces us that the instructional error was harmless.
JM’s testimony and appellant’s own statement relating to this offense leave us
convinced beyond a reasonable doubt that the military judge’s instruction did not
contribute to appellant’s conviction of Specification 5 of Charge I.

     We find beyond a reasonable doubt, based on the strength of the evidence
supporting appellant’s conviction for these specifications, that the result at trial
would have been the same even if a propensity instruction had not been given. That
is, we find the error caused by the military judge’s propensity instruction was
harmless beyond a reasonable doubt as to Specifications 3 and 5 of Charge I and,
accordingly, affirm these findings of guilty.

                        2. Specifications 1 and 4 of Charge I

      We cannot reach the same conclusion for Specifications 1 and 4 of Charge I.

      The strength of the evidence supporting Specifications 3 and 5 presents a
problem as it relates to Specifications 1 and 4. See Moore, 2017 CCA LEXIS 191, at
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*10 (“The danger of propensity is related to the strength of the evidence.”) (citing
Guardado, 75 M.J. at 898). Where the evidence from which to draw a propensity
inference is weak, it is less likely to result in harm; in contrast, when evidence is
overwhelming on some specifications—as here, in Specifications 3 and 5 of Charge
I—there is increased likelihood that panel members would use the strong evidence to
find appellant’s propensity to commit the offenses alleged in Specifications 1 and 4
of Charge I, where the evidence was not as strong. Specifically, appellant’s
statement to CID did not contain an admission or otherwise sufficiently corroborate
the claims by the victims of these incidents. We are not, therefore, convinced
beyond a reasonable doubt that the improper propensity instruction provided by the
military judge did not play a role in the panel finding appellant guilty of
Specifications 1 and 4 of Charge I. Accordingly, we set aside the panel’s guilty
findings as to these specifications. Because the evidence supporting Specifications
1 and 4 is insufficient to convince us beyond a reasonable doubt that the improper
propensity instruction did not effect the panel’s guilty findings, we set aside the
convictions to Specifications 1 and 4 of Charge I and reassess the sentence.

                                   CONCLUSION

       Upon consideration of the entire record, the findings of guilty of
Specifications 1 and 4 of Charge I are set aside and conditionally DISMISSED for
judicial economy pending further appeal, if any, to our superior court. See United
States v. Britton, 47 M.J. 195, 203 (C.A.A.F. 1997) (Effron, J., concurring); United
States v. Hines, 75 M.J. 734, 738 n.4 (Army. Ct. Crim. App. 2016); United States v.
Woods, 21 M.J. 856, 876 (A.C.M.R. 1986). Our dismissal is conditioned on the
remaining guilty findings surviving the “final judgment” as to the legality of the
proceedings. See UCMJ art. 71(c)(1) (defining final judgment as to the legality of
the proceedings). The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the amended
findings, the entire record, and in accordance with the principles of United States v.
Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), and United States v. Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013), we AFFIRM only so much of the sentence as
provides for a dishonorable discharge, confinement for forty-two months, and
reduction to the grade of E-1. All rights, privileges, and property of which appellant
has been deprived by virtue of that portion of the findings and sentence set aside by
this decision, are ordered to be restored. See UCMJ arts. 75(a).

      Judge FEBBO and Judge WOLFE concur.




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MOYNIHAN—ARMY 20130855

                             FOR
                             FOR THE
                                 THE COURT:
                                     COURT:




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




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