UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         MULLIGAN, HERRING, and BORGERDING 1
                                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 (on brief).


                                         23 June 2016

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

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). 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.



1
    Judge Borgerding took final action in this case while on active duty.
HILL — ARMY 20130331

      This case is now before us for review pursuant to Articles 66(c), UCMJ. On
appeal, appellant assigns four errors, two of which allege a speedy trial violation and
two of which allege error in the admission of evidence pursuant to Military Rule of
Evidence [hereinafter Mil. R. Evid.] 413, which merit brief discussion but no relief. 2
Additionally, appellant’s matters submitted pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982) do not merit discussion or relief.

                                       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.

2
  At trial, defense counsel raised a speedy trial motion arguing that appellant was
placed under “restraint” as defined in Rule for Courts-Martial [hereinafter R.C.M.]
304(a)(2)-(4) when his weapon was confiscated and he and the other soldiers
involved were all held in one containerized housing unit (CHU) with one escort
guarding them at all times. Since this “restraint” began 3 July 2011, defense counsel
argued that the R.C.M. 707 speedy trial clock ran long before arraignment, even with
approved delay taken into consideration. Judge Brunson initially granted this
motion and dismissed the charges with prejudice. The government gave notice they
would appeal this ruling. However, Judge Brunson then told the parties she intended
to reconsider her ruling because appellant was released from all forms of restraint on
13 August 2011 when he returned to the United States. On 27 March 2012, the
government withdrew its appeal and subsequently on 28 March 2012, Judge Brunson
reversed her ruling and reinstated the charges. In June 2012, Judge Lewis again
dismissed the charges with prejudice ruling that Judge Brunson did not have
jurisdiction to reconsider her decision because the government had filed an appeal
with this court. The government then appealed Judge Lewis’ decision, which this
court subsequently reversed. United States v. Hill, 71 M.J. 678 (Army Ct. Crim.
App. 2012) pet. denied United States v. Hill, 72 M.J. 159 (C.A.A.F. 2013).
Appellant’s trial took place on 25-26 March 2013.
                                          2
HILL — ARMY 20130331


                                   SPEEDY TRIAL

       The government preferred charges against appellant on 13 August 2011.
Appellant was arraigned on 10 February 2012, or approximately 181 days later.
The charges were referred on 2 December 2011 and sent to the military judge on 6
December 2011. According to the Electronic Docket Request, the government
indicated it would be ready for trial on 18 January 2012 and the defense did not
oppose this trial date.

       It is not clear from the record why appellant was not arraigned until 10
February 2012. However, in his brief, appellant notes that “[t]he reason the delay
does not extend from 6 December 2011 to 10 February 2012 is because the defense
was not ready for trial and requested a delay until 10 February 2011 (sic), thus
excluding that delay from computation in the 120 day time period.” On appeal,
appellant first avers the military judge abused her discretion by relying on Trial
Judiciary Rules of Practice before Army Courts-Martial, Rule 1.1 in her speedy trial
calculations. Rule 1.1 provides: “Any period of delay from the judge’s receipt of
the referred charges until arraignment is considered pretrial delay approved by the
judge per R.C.M. 707(c), unless the judge specifies to the contrary.” In the
alternative, appellant asserts Rule 1.1 is inconsistent with R.C.M. 707(c). These
claims by appellant are without merit as articulated in United States v. Hawkins, 75
M.J. 640 (Army Ct. Crim. App. 2016).

                       MILITARY RULE OF EVIDENCE 413

       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

      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



                                            3
HILL — ARMY 20130331

whether or not the other one happened, and vice-versa.” Trial defense counsel made
no objection to this argument.

       Now, on appeal, appellant complains that the military judge abused her
discretion in admitting evidence pursuant to Mil. R. Evid. 413 because she did not
conduct an analysis of the Wright factors and because she failed to do a Mil. R.
Evid. 403 balancing test before admitting this evidence. He also argues the military
judge erred in giving the Mil. R. Evid. 413 instruction because it was confusing and
contrary to United States v. Huddleston, 485 U.S. 681 (1988).

       This court provided an extensive discussion of this exact issue in United
States v. Williams, 75 M.J. 621, 626 (Army Ct. Crim. App. 2016). The instructions
in Williams are essentially identical to the instructions given here. As articulated in
Williams, the military judge properly informed the panel that 1) an accused may not
be convicted based on propensity evidence alone; and 2) that Mil. R. Evid. 413
evidence does not relieve the government of its burden to prove every element of
every offense charged. Williams, 75 M.J. at 630, citing United States v. Schroder,
65 M.J. 49, 56 (C.A.A.F. 2007). Thus, as in Williams, while there may be problems
with these instructions, any error telling the panel they could not use propensity
evidence to support an inference of guilt worked to the benefit of appellant and was
not prejudicial. Williams, 75 M.J. at 630; see also Barnes, 74 M.J. at 701.

                                   CONCLUSION

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


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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