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ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Kendell HILLS, Sergeant
United States Army, Appellant
No. 15-0767
Crim. App. No. 20130833
Argued May 10, 2016Decided June 27, 2016
Military Judges: James Herring, Gregory Bockin, and Steven E.
Walburn
For Appellant: Captain Heather L. Tregle (argued); Lieutenant Colonel Charles D. Lozano and Lieutenant Colonel
Jonathan F. Potter (on brief).
For Appellee: Captain Carling M. Dunham (argued); Colonel Mark H. Sydenham and Captain Jihan Walker (on
brief); Major Steven J. Collins.
FACTS
ing her hand to touch his penis. SPC PV then got up and
went to the bathroom to vomit. SPC PV alleged that when
she got out of the bed, she saw Appellants face.
The Article 32, UCMJ, 10 U.S.C. 832 (2012), investigating officer recommended against pursuing a court-martial
against Appellant. She found SPC PVs testimony to be contradictory and noted that the DNA evidence was inconclusive. Nevertheless, the case proceeded to court-martial.
Prior to trial and over defense counsels objections, the
military judge granted the Governments motion under
M.R.E. 413 to admit all of Appellants charged conduct as
evidence of Appellants propensity to commit the sexual assaults with which he was charged. The military judge made
threshold findings for admission of M.R.E. 413 evidence and
conducted an M.R.E. 403 balancing test.
In his propensity instruction, the military judge included
the standard spillover instruction, stating:
Each offense must stand on its own, and you
must keep the evidence of each offense separate.
The burden is on the prosecution to prove
each and every element of each offense beyond
a reasonable doubt. Proof of one offense carries
with it no inference that the accused is guilty
of any other offense.
Specifically, evidence that the accused
committed the sexual assault offense alleged in
Specification 2 of The Charge, or the sexual
contact offense alleged in Specification 3 of The
Charge has no bearing on your deliberations in
relation to any other charged offenses.
(Emphasis added.) However, the military judge also instructed the panel, based on his M.R.E. 413 ruling, that if
the panel determine[s] by a preponderance of evidence that
it is more likely than not that the sexual offenses occurred:
evidence that the accused committed a sexual
assault offense may have a bearing on your
deliberations in relation to the other charged
sexual assault offenses .
ACCA DECISION
DISCUSSION
The fact that no presumption of innocence attaches to uncharged conduct is why the use of charged conduct as propensity
evidence is analytically distinct from uncharged conduct. That the
Government cannot use M.R.E. 413 if it elects to join multiple sex
offenses in a single trial is irrelevant to our analysis.
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Ellipsis in original.
It is true that the military judge went on to tell the
members that the Government had to prove each element
beyond a reasonable doubt and that one offense carries no
inference that the accused is guilty of another offense. But
the military judge concluded the spillover instruction by reiterating, However, [the Government] may demonstrate
that the accused has a propensity to commit that type of offense.
Instructional errors are reviewed de novo. United States
v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016). We evaluate a
military judges instructions in the context of the overall
message conveyed to the members. See United States v.
Prather, 69 M.J. 338, 344 (C.A.A.F. 2011) (internal quotation
marks omitted) (quoting Humanik v. Beyer, 871 F.2d 432,
441 (3d Cir. 1989)). 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 accuseds
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 Appellants 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.
While, in People v. Villatoro, 281 P.3d 390, 400 (Cal.
2012), the California Supreme Court did not consider the
issue of the accuseds right to be presumed innocent of all
charges, the court highlighted the issue of conflicting burdens of proof. In Villatoro, the judge admitted five instances
of rape against five separate victims with similar modus operandi as propensity evidence under Cal. Evid. Code 1108
(2009).4 Villatoro, 281 P.3d at 39495. But that decision
turned in part on the fact that the modified instruction did
not provide that the charged offenses used to prove propen4
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the case. The juxtaposition of the preponderance of the evidence standard with the proof beyond a reasonable doubt
standard with respect to the elements of the same offenses
would tax the brain of even a trained lawyer. And, as the
Supreme Court has observed, Jurors do not sit in solitary
isolation booths parsing instructions for subtle shades of
meaning in the same way that lawyers might. Boyde v. California, 494 U.S. 370, 380 (1990).
We are not convinced beyond a reasonable doubt that
the conflicting standards of proof and directly contradictory
statements about the bearing that one charged offense could
have on another did not contribute to the verdict. United
States v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007) (To say
that an error did not contribute to the verdict is, rather, to
find that error unimportant in relation to everything else
the jury considered on the issue in question, as revealed in
the record.) (internal quotation marks omitted) (citation
omitted). We note that the Governments case was weak as
there was no eyewitness testimony other than the allegations of the accuser, the members rejected the accusers other allegations against the Appellant, and there was no conclusive physical evidence. We cannot know whether the
instructions may have tipped the balance in the members
ultimate determination. The instructions were, therefore,
not harmless beyond a reasonable doubt.
IV.
JUDGMENT
The decision of the United States Army Court of Criminal Appeals is reversed, and the findings and sentence are
set aside. The record is returned to the Judge Advocate General of the Army. A rehearing is authorized.
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