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

                           UNITED STATES, Appellee
                                        v.
                     Specialist VINCENT P. DEGREGORI III
                          United States Army, Appellant

                                       ARMY 20150581

                             Headquarters, Fort Drum
                          S. Charles Neill, Military Judge
                 Colonel Steven C. Henricks, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Captain Heather L. Tregle, JA; Captain
Matthew L. Jalandoni, JA (on brief); Major Christopher D. Coleman, JA; Captain
Matthew L. Jalandoni, JA (on reply brief); Lieutenant Colonel Tiffany M. Chapman,
JA; Lieutenant Colonel Christopher D. Carrier, JA; Captain Timothy G. Burroughs,
JA (on brief following remand); Lieutenant Colonel Christopher D. Carrier, JA;
Captain Timothy G. Burroughs, JA (on reply brief following remand).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief); Colonel
Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Michael E.
Korte, JA; Captain Austin L. Fenwick, JA (on brief following remand).


                                      30 November 2017

                    --------------------------------------------------------------
                    SUMMARY DISPOSITION ON FURTHER REVIEW
                    --------------------------------------------------------------

CAMPANELLA, Senior Judge:

      The finding of guilty of Specification 2, The Charge is reversed in light of
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76
M.J. 219 (C.A.A.F. 2017); the sentence is set aside; and a rehearing is authorized.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of one specification of sexual assault, in violation of Article
120 Uniform Code of Military Justice, 10 U.S.C. § 920 (2012). The convening
authority approved the adjudged sentence of a dishonorable discharge, confinement
for five years, and reduction to the grade of E-1.
DEGREGORI—ARMY 20150581


      On 10 January 2017, this court affirmed the findings and sentence in this case.
United States v. Degregori, ARMY 20150581, 2017 CCA LEXIS 19 (Army Ct. Crim.
App. 10 Jan. 2017) (sum. disp.). On 26 July 2017, the Court of Appeals for the
Armed Forces (CAAF) set aside this court’s decision and remanded the case for a
new review under Article 66, UCMJ, in light of United States v. Hukill, 76 M.J. 219
(C.A.A.F. 2017). United States v. Degregori, 76 M.J. 439 (C.A.A.F. 2017).

                                 BACKGROUND

       The government charged appellant with two Article 120, UCMJ,
specifications involving two different soldiers, Private First Class (PFC) SN and
PFC JE. The military judge convicted appellant of the specification involving PFC
JE, which alleged sexual assault, but found appellant not guilty of the specification
involving PFC SN, which alleged abusive sexual contact.

       The government asked the military judge to consider, under Military Rule of
Evidence [hereinafter Mil. R. Evid.] 413, evidence that appellant committed abusive
sexual contact on PFC SN as propensity evidence that he sexually assaulted PFC JE.
The defense objected, but the military judge ruled in favor of the government. The
military judge found PFC SN was credible and that the evidence of abusive sexual
contact was strong. He also found the probative value very high because of the
similarities between the two charged offenses.

       While initially sketchy, PFC JE’s recall of the evening enlarged over time.
The government entered into evidence testimony of an exchange between appellant
and an acquaintance on staff duty occurring after the incident wherein appellant
stated he was concerned he would be accused of rape. The government also entered
into evidence an exchange of text messages wherein appellant admitted having sex
with PFC JE; appellant, however, did not indicate the sex was nonconsensual. Trial
Counsel compared and contrasted the similarities between the incidents with PFC JE
and PFC SN throughout his closing argument.

      With regard to the specification of which appellant was found guilty, the
defense raised consent as a defense and asserted PFC JE had a motive to lie. There
was also evidence of public displays of affection between appellant and PFC JE.

      Appellant now cites Hukill to assert the military judge abused his discretion
by granting the government’s motion to use charged offenses for Mil. R. Evid. 413
purposes.

                              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 under Mil. R. Evid. 413

                                           2
DEGREGORI—ARMY 20150581

that permits evidence of charged sexual misconduct to be considered as propensity
evidence when considering other charged sexual misconduct. United States v. Hills,
75 M.J. 350, 352 (C.A.A.F. 2016). Recently, in Hukill, the Court of Appeals for the
Armed Forces explained the Hills reasoning also applies to trials by military judge
alone. Hukill, 76 M.J. at 220. In that case, the military judge allowed the charged
sexual offenses as propensity evidence used against each charged offense for which
appellant was convicted. Id.

       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).

       Having reviewed the evidence in light of the military judge’s ruling, even if
we believe the evidence factually sufficient to support appellant’s finding of guilty
to sexual assault of PFC JE, we are not convinced beyond a reasonable doubt that
the Mil. R. Evid. 413 error did not contribute to that finding of guilty. Accordingly,
Specification 2 of The Charge cannot stand. We grant relief in our decretal
paragraph.

                                 CONCLUSION

      The finding of guilty and sentence are SET ASIDE. A retrial is authorized.
The case is returned to the same or a different convening authority.

      Judge SALUSSOLIA and Judge FLEMING concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




                                          3
