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

                            UNITED STATES, Appellee
                                        v.
                         Sergeant ERIC A. RAMOS-CRUZ
                          United States Army, Appellant

                                      ARMY 20150292

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

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Jennifer K. Beerman, JA (on brief); Major Christopher D. Coleman, JA;
Captain Cody Cheek, JA (on reply brief); Lieutenant Colonel Tiffany M. Chapman,
JA; Lieutenant Colonel Christopher D. Carrier, JA; Captain Cody Cheek, JA (on
brief following remand); Lieutenant Colonel Christopher D. Carrier, JA; Major
Brendan R. Cronin, JA; Captain Cody Cheek, JA (on reply brief following remand).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief); Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major
Virginia H. Tinsley, JA; Captain Sandra L. Ahinga, JA (on brief following remand).

                                     11 December 2017

                         --------------------------------------------------
                         SUMMARY DISPOSITION ON REMAND
                         --------------------------------------------------

FLEMING, Judge:

      On this remand, we set aside the findings of guilty as to two specifications of
abusive sexual contact and one specification of forcible sodomy in light of our
superior court’s decisions in 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).

      A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of six specifications of assault in violation of Article 128
Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 928 (2012). The military
judge convicted appellant, contrary to his pleas, of one specification of cruelty and
maltreatment, three specifications of abusive sexual contact, one specification of
RAMOS-CRUZ—ARMY 20150292
forcible sodomy, and one specification of assault consummated by battery, in
violation of Articles 93, 120, 125, and, 128, UCMJ. The convening authority
approved the adjudged sentence of a bad-conduct discharge, confinement for twelve
years, and reduction to the grade of E-1.

       On 30 January 2017, this court summarily affirmed the findings of guilty and
sentence. United States v. Ramos-Cruz, ARMY 20150292 (Army Ct. Crim. App. 30
Jan. 2017). On 27 July 2017, the Court of Appeals for the Armed Forces set aside
our decision and remanded the case to this court for a new review under Article 66,
UCMJ, in light of that court’s decision in Hukill. United States v. Ramos-Cruz, 76
M.J. 442 (C.A.A.F. 2017).

                                  BACKGROUND

       Prior to trial, the government requested the military judge use Military
Rule of Evidence [Mil. R. Evid.] 413 propensity evidence of offenses involving
three victims: Sergeant First Class (SFC) PB, Private First Class (PFC) AG, and
Sergeant (SGT) DP. Appellant was charged with one specification of abusive
sexual contact involving SFC PB (Specification 1 of Charge I); two
specifications of abusive sexual contact and one specification of forcible
sodomy involving PFC AG (Specification 2 of Charge I, the Specification of
Additional Charge I, and Specification 1 of Charge II); and one specification of
abusive sexual contact involving SGT DP (Specification 3 of Charge I).

       Specifically, the government requested to use the evidence: (1) from the
offense against SFC PB as propensity evidence for the offenses against PFC AG
and SGT DP; (2) from the offenses against PFC AG as propensity evidence for
the offenses against SFC PB and SGT DP; and (3) from the offense against SGT
DP as propensity evidence for the offenses against SFC PB and PFC AG. The
defense objected to the government’s request, thereby preserving the error.

      As to the specification involving SFC PB, the military judge ruled the
evidence of that offense was not admissible for propensity purposes for the other
victims and the evidence involving the other victims was not admissible for
propensity purposes for SFC PB. The military judge’s ruling isolated the
offense against SFC PB from the offenses involving the other victims.

        As to the offenses involving PFC AG, the military judge’s ruling was
ambiguous and appears to state that every separate offense against PFC AG
could be used as propensity evidence for every other offense involving PFC AG.
This court need not resolve this ambiguity because the government conceded in
its brief that “evidence of the offenses involving [PFC] AG was admissible as
propensity evidence for all other charged offenses except [for the offense
involving SFC PB].”

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RAMOS-CRUZ—ARMY 20150292
       As to the offense involving SGT DP, the military judge ruled that
evidence was admissible for propensity purposes for the abusive sexual contact
specifications involving PFC AG, but was not admissible for the forcible
sodomy specification involving PFC AG.

     Appellant was convicted of the specifications involving SFC PB and PFC
AG and acquitted of the specification involving SGT DP.

                           LAW AND DISCUSSION

       After appellant's court-martial, our superior court held it is constitutional
error for a military judge to give an instruction under Mil R. Evid. 413 to a panel
that permits the use of one charged offense of sexual misconduct to be used as
propensity evidence in assessing another charged offense of sexual misconduct.
Hills, 75 M.J. at 352. 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. There, the military judge allowed the propensity evidence
involving charged offenses to be used against each charged offense for which
appellant was convicted and, therefore, created constitutional error. 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).

      The issue is whether the findings of guilty involving SFC PB and PFC AG
should be affirmed.

       As to the finding of guilty as to SFC PB, we find no error because the military
judge did not consider propensity evidence under Mil. R. Evid. 413 in reaching his
decision.

       We are not convinced, however, beyond a reasonable doubt that the use of
propensity evidence as to each of the offenses against PFC AG in assessing the other
offenses against PFC AG did not contribute to the findings of guilty. * Likewise, we
are not convinced beyond a reasonable doubt that consideration of the propensity
*
 This is a different question, however, than whether we are convinced of appellant’s
guilt without resort to propensity evidence.
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RAMOS-CRUZ—ARMY 20150292
evidence as to the offense against SGT DP did not contribute to the finding of guilty
as to the abusive sexual contact offenses against PFC AG.

       The offenses involving PFC AG were supported only by her testimony. While
witness testimony alone may convince a court beyond a reasonable doubt that a Mil.
R. Evid. 413 propensity error is harmless, the witness testimony in this case does
not. See United States v. Thompson, 2017 CCA LEXIS 7, *4 (Army Ct. Crim. App.
6 Jan. 2017) (affirming beyond a reasonable doubt that the Mil. R. Evid. 413
propensity instructional error was harmless because the testimony from the victims
were “clear and compelling.”). Thus, the findings of guilty of all offenses involving
PFC AG and the sentence cannot stand. We grant relief in our decretal paragraph.

                                  CONCLUSION

       The findings of guilty of Specification 2 of Charge I, Specification 1 of
Charge II and Charge II, and the Specification of Additional Charge I and Additional
Charge I are SET ASIDE. A rehearing on these set aside specifications is
authorized. The remaining findings of guilty are AFFIRMED. The sentence is SET
ASIDE. A sentence rehearing is authorized. This case will be returned to the same
or a different convening authority.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




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




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