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

                           UNITED STATES, Appellee
                                        v.
                          Sergeant THOMAS M. ADAMS
                          United States Army, Appellant

                                   ARMY 20130693

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
             Lieutenant Colonel John A. Hamner, Staff Judge Advocate

For Appellant: Mr. Frank J. Spinner, Esquire (argued); Lieutenant Colonel Jonathan
Potter, JA; Mr. Frank J. Spinner, Esquire (on brief and reply brief).

For Appellee: Captain Christopher A. Clausen, JA (argued); Colonel Mark H.
Sydenham, JA; Major Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on
brief).


                                    6 January 2017

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

HERRING, Judge:

      In appellant’s court-martial for his sexual abuse of five minor victims over the
course of seven years, the military judge’s instruction to the panel allowed the
consideration of charged misconduct under Military Rule of Evidence [hereinafter
Mil. R. Evid.] 414 in a manner that now violates United States v. Hills, 75 M.J. 350
(C.A.A.F. 2016). 1

      A general court-martial composed of officer and enlisted members sitting as a
general court-martial convicted appellant, contrary to his pleas, of: carnal
knowledge, two specifications of sodomy with a child, and seven specifications of


1
 While Hills dealt with Mil. R. Evid. 413 and this case involves Mil. R. Evid. 414,
the analysis is the same. See United States v. Tanner, 63 M.J. 445, 448-49
(C.A.A.F. 2006); United States v. Bonilla, ARMY 20131084, 2016 CCA LEXIS 590,
at *22-23 (Army Ct. Crim. App. 30 Sep. 2016).
ADAMS–ARMY 20130693

indecent liberties with a child, in violation of Articles 120, 125, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 920, 925, 934 (2000) [hereinafter UCMJ];
and two specifications of aggravated sexual assault of a child, aggravated sexual
abuse of a child, indecent liberties with a child, rape of a child, indecent conduct
with a child, two specifications of aggravated sexual contact with a child, producing
child pornography, possessing child pornography, and possessing child erotica, in
violation of Articles 120, 125, and 134, UCMJ, 10 U.S.C. §§ 920, 925, 934 (2006). 2
The panel sentenced appellant to a dishonorable discharge, confinement for life with
eligibility for parole, forfeiture of all pay and allowance, and reduction to the grade
of E-1. The convening authority approved the findings of guilty except for
Specification 3 of Charge V (possessing child erotica) and approved the sentence as
adjudged.

      We review this case under Article 66, UCMJ. Appellant assigns five errors
and personally asserted matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). We do not discuss these assignments of error because of the relief
we grant.

                                  BACKGROUND

       The military judge started instructing the panel using the standard spillover
instruction. Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook [hereinafter Benchbook], para. 7-17 (10 Sept. 2014). He then gave an
instruction about the panel’s ability to use uncharged child molestation offenses, if
proven by a preponderance of the evidence, “to show the accused’s propensity or
predisposition to engage in child molestation . . . .” Next, he addressed charged
child molestation:

             Proof of one charged offense carries with it no inference
             that the accused is guilty of any other charged offense.
             Further, evidence that the accused committed the act of
             child molestation alleged in any specification and charge
             may have no bearing on your deliberations in relation to
             any other specification and charge unless you first
             determine by a preponderance of the evidence that it is
             more likely than not that the offenses alleged in that other
             charge and specification occurred. If you determine by a
             preponderance of the evidence the offenses alleged in that
             other charge and specification occurred, even if you are
             not convinced beyond a reasonable doubt that the accused
             is guilty of those offenses, you may nonetheless then


2
 The panel acquitted appellant of one specification of indecent liberties with a child
and one specification of indecent conduct with a child.


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ADAMS–ARMY 20130693

             consider the evidence of those offenses for its bearing on
             any matter to which it is relevant in relation to any other
             specification and charge to which it is relevant. You may
             also consider the evidence of such other acts of child
             molestation for its tendency, if any, to show the accused’s
             propensity or predisposition to engage in child
             molestation.

             You may not, however, convict the accused solely because
             you believe he committed any other offense or solely
             because you believe the accused has a propensity or
             predisposition to engage in child molestation. In other
             words, you cannot use this 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.

       Defense counsel had previously objected to these instructions, “particularly
ones where you are using what’s on the charge sheet to prove what’s on the charge
sheet.”

      The military judge supplemented the confusing instructions with this
explanation to the panel, which was not included in the written instructions in App.
Ex. CLXXIII:

             Now, members, I realize some of that might seem
             repetitive, but it relates to—I gave it to you in two
             different forms because one form relates to uncharged
             misconduct of child molestation and there was some
             reference to things that do not appear on the charge sheet
             during the course of the trial. And so that’s why I gave
             you that instruction. And then the second time through, it
             relates to other charged offenses and how you may
             consider those other charged offenses in relation to each
             other, any offense of child molestation in relation to any
             other offense of child molestation.

       The military judge asked if the panel had any questions, and they did not. He
then reiterated using the same words our superior court noted as a problem in Hills,
75 M.J. at 357. He said:

             Each offense must stand on its own and proof of one
             offense carries no inference that the accused is guilty of



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ADAMS–ARMY 20130693

              any other offense. In other words, proof of one act of
              child molestation creates no inference that the accused is
              guilty of any other act of child molestation. However, it
              may demonstrate that the accused has a propensity to
              commit that type offense.

       The military judge’s attempt to clarify his instructions, while well-
intentioned, only served to reinforce an impermissible use of propensity evidence
under Hills.

       Furthermore, during closing argument, trial counsel said, “Another important
thing to highlight: When the judge talked about other acts of child molestation. I
encourage you to re-read that . . . I feel it’s very important . . . .” The military judge
cut off trial counsel’s attempt to read the instruction aloud to the panel. Shortly
thereafter, trial counsel asserts, “The number of victims in this case does mean
something. It means one of two things: One the accused is one of the unluckiest
people you are going to meet; or two, this all happened.” The military judge did not
address this argument.

                                LAW AND ANALYSIS

       Nearly three years after appellant’s court-martial, our superior court held it is
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. Hills, 75
M.J. at 352. Our superior court reasoned:

              The instructions in this case provided the members with
              directly contradictory statements about the bearing that
              one charged offense could have on another, one of which
              required the members to discard the accused’s
              presumption of innocence, and with two different burdens
              of proof—preponderance of the evidence and beyond a
              reasonable doubt. Evaluating the instructions in toto, we
              cannot say that Appellant’s right to a presumption of
              innocence and to be convicted only by proof beyond a
              reasonable doubt was not seriously muddled and
              compromised by the instructions as a whole.

Id. at 357.

       In appellant’s court-martial the military judge’s instructions were just as
muddled and potentially confusing with respect to the burden of proof, and,
therefore, created constitutional error. United States v. Bonilla, 2016 CCA LEXIS
590, at *23 (Army Ct. Crim. App. 30 Sep. 2016); see also United States v.



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ADAMS–ARMY 20130693

Guardado, 75 M.J. 889, 2016 CCA LEXIS 664, at *22 (Army Ct. Crim. App. 15
Nov. 2016) and United States v. Santucci, 2016 CCA LEXIS 594, at *7-8 (Army Ct.
Crim. App. 30 Sep. 2016).

       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).

       Here, not only did the military judge give muddled and potentially confusing
instructions, but the government’s closing argument also drew the panel’s attention
to the propensity evidence. Additionally, the evidence as to some specifications was
not particularly strong, but the panel convicted appellant of all but two of the
twenty-three charged offenses. On the facts of this case, we are not convinced
beyond a reasonable doubt the propensity instruction did not contribute to the
findings of guilty or appellant’s sentence, thus the findings and sentence cannot
stand.

                                  CONCLUSION

      The findings of guilty and the sentence are set aside. A rehearing may be
ordered by the same or a different convening authority.

      Judge PENLAND and Judge BURTON concur.

                                      FOR THE
                                      FOR THE COURT:
                                              COURT:




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




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