United States v. Hills, 2016 CAAF LEXIS 512

Background

Appellant (Sgt. Kendell Hills) was tried by general court-martial for multiple sexual offenses arising from a single house party encounter; convicted of one specification of abusive sexual contact and acquitted of two sexual-assault specifications.
Before trial the Government moved under Military Rule of Evidence (M.R.E.) 413 to admit the charged conduct itself as propensity evidence; the military judge granted the motion and gave special propensity instructions.
The jury was instructed that they must first find by a preponderance that a charged sexual offense occurred before they could consider it for propensity, while also being told the prosecution must prove each offense beyond a reasonable doubt.
The Army Court of Criminal Appeals (ACCA) affirmed, finding possible error under M.R.E. 403 but no substantial influence on the verdict; it relied in part on the strength of evidence for the convicted specification.
The Court of Appeals for the Armed Forces (CAAF) granted review and held admitting charged conduct under M.R.E. 413 was erroneous and that the mixed-burden, contradictory instructions created constitutional error not harmless beyond a reasonable doubt.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether charged conduct may be admitted under M.R.E. 413 as propensity evidence to prove the same charged conduct	Gov: M.R.E. 413 permits consideration of sexual-offense evidence for any relevant bearing, so charged acts may be treated as propensity evidence	Hills: M.R.E. 413 applies only to uncharged or prior offenses; charged conduct is already admissible and not subject to 413	CAAF: No — charged offenses cannot be admitted under M.R.E. 413 to prove propensity for the same charged offenses; doing so was legal error
Whether the military judge abused discretion under M.R.E. 403 in admitting the propensity evidence	Gov: Even if charged conduct admitted, probative value supported admission; no substantial prejudice	Hills: Low probative value (events close in time); high risk of unfair prejudice; M.R.E. 403 exclusion warranted	CAAF: Admission was an abuse of discretion because the judge relied on an erroneous view of law; instructions compounded the error
Whether the propensity instruction violated due process by undermining presumption of innocence and mixing burdens of proof	Hills: Instruction allowed members to find a charged offense by preponderance and use it to infer guilt on other charged offenses, violating Winship	Gov: Standard instructions and spillover cautions preserved beyond-reasonable-doubt requirement	CAAF: Instructional error was constitutional — it muddled presumption of innocence and mixed preponderance vs. beyond-a-reasonable-doubt standards
Whether the instructional/413 error was harmless beyond a reasonable doubt	Gov: Any error was harmless because evidence for the convicted specification was stronger and all evidence was before the panel	Hills: Errors could have tipped balance given weak overall case and acquittals on other specifications	CAAF: Not harmless beyond a reasonable doubt; reversal and rehearing authorized

Key Cases Cited

United States v. Wright, 53 M.J. 476 (C.A.A.F.) (M.R.E. 413 constitutional; guilty plea to an admitted offense can be used as propensity evidence for other offenses)
United States v. James, 63 M.J. 217 (C.A.A.F.) (uncharged offenses occurring after charged conduct may be admitted under M.R.E. 413)
United States v. Berry, 61 M.J. 91 (C.A.A.F.) (M.R.E. 413 based on federal rule; explains relation to M.R.E. 404(b))
United States v. Solomon, 72 M.J. 176 (C.A.A.F.) (standard of review for admission of evidence)
Koon v. United States, 518 U.S. 81 (legal-error standard for discretionary rulings)
In re Winship, 397 U.S. 358 (presumption of innocence and requirement of proof beyond a reasonable doubt)
Chapman v. California, 386 U.S. 18 (harmless-beyond-a-reasonable-doubt standard for constitutional errors)