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

                           UNITED STATES, Appellee
                                        v.
                          Sergeant GENE N. WILLIAMS
                          United States Army, Appellant

                                    ARMY 20130582

                             Headquarters, Fort Bragg
      Karin G. Tackaberry, Military Judge (arraignment and pretrial motions)
                Tara A. Osborne, Military Judge (pretrial motions)
                    Stephen E. Castlen, Military Judge (trial)
              Colonel Paul S. Wilson, Staff Judge Advocate (pretrial)
        Colonel Michael O. Lacey, Staff Judge Advocate (recommendation)
    Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate (addendum)

For Appellant: Captain Patrick A. Crocker, JA; Mr. Frank J. Spinner, Esq. (on
brief); Captain Patrick J. Scudieri, JA; Mr. Frank J. Spinner, Esq. (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Tara E. O’Brien (on brief).


                                    12 January 2017

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

HERRING, Judge:

      On 8 August 2016 the Court of Appeals for the Armed Forces (CAAF)
remanded this case to this court for reconsideration of the following issue in light of
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016):

             WHETHER THE MILITARY JUDGE ABUSED HIS
             DISCRETION BY GIVING A MILITARY RULE OF
             EVIDENCE 413 INSTRUCTION TO THE PANEL
             BECAUSE NO EVIDENCE HAD BEEN ADMITTED TO
             THE MILITARY JUDGE FOR 413 PURPOSES.
WILLIAMS — ARMY 20130582

      The facts and circumstances in this case are available in our original opinion
United States v. Williams, 75 M.J. 621 (Army Ct. Crim. App. 2016). For the
reasons stated below, we again AFFIRM the findings and sentence.

       In this case, the military judge instructed the panel that if they found that
appellant had committed the offense alleged in Specification of Charge I, they could
use that finding “on any matter to which it is relevant” including “the accused’s
propensity or predisposition to engage in sexual assault” with regards to the
specifications alleged in Charge II. Here, the military judge’s Mil. R. Evid. 413
instruction was improper based on Hills. Where an instructional error rises to a
constitutional dimension, we review the error to determine if it was harmless beyond
a reasonable doubt. United States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005)
(citations omitted).

        This case is distinguishable from Hills in that the propensity instruction
flowed in only one direction. That is, while the judge allowed the panel to consider
appellant’s commission of the offense in the Specification of Charge I “for its
bearing on any matter to which it is relevant in relation to the forcible sodomy
alleged in Charge II,” no instruction was given that allowed the panel to consider
propensity evidence from Charge II when determining appellant’s guilt to the single
specification of Charge I. Appellant was convicted of the Specification to Charge I
without reliance on propensity evidence. In other words, appellant was convicted of
the Specification of Charge I, beyond a reasonable doubt, without any reliance or
taint stemming from propensity.

        Thus, as an initial matter, the Specification of Charge I is entirely unaffected
by Hills. When deliberating on evidence with regards to the Specification of Charge
I, the panel was not allowed to consider propensity. Additionally, with regards to
the forcible sodomy specifications contained in Charge II, the only propensity
evidence the panel was allowed to consider stemmed from a specification that had
been independently proven beyond a reasonable doubt.

       In Hills, the CAAF distinguished that case from the case of People v.
Villatoro, 281 P.3d 390, 400 (Cal. 2012). In Villatoro, a propensity instruction
stemming from charged offenses was permissible because the offense had to first be
proven beyond a reasonable doubt. This, in the CAAF’s view, avoided the concerns
about eroding the presumption of innocence. Or stated differently, there is no
erosion in the presumption of innocence when an offense is first proven beyond a
reasonable doubt.

       Accordingly, this case is an exception to Hills, an exception specifically
anticipated by the CAAF in that case. Hills at 357; See also United States v.
Guardado, 75 M.J. 889, 896 n. 9 (Army Ct. Crim. App. 2016) (noting possible
exception to Hills when an offense is first proven beyond a reasonable doubt). We


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WILLIAMS — ARMY 20130582

find beyond a reasonable doubt that the error, under the circumstances of this case,
was harmless and did not contribute to appellant’s conviction or sentence.

      The findings and sentence are therefore AFFIRMED.

      Senior Judge CAMPANELLA and Judge PENLAND concur.

                                       FOR THE COURT:




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




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