United States v. Robertson, ACM 39061

Background

Appellant (an airman) was tried by general court-martial for multiple sexual offenses arising from a single December 2012 incident in a billeting room at Kadena AB; members convicted him of one specification of abusive sexual contact (touching breasts and buttocks) and acquitted him of two rape specifications and one other abusive sexual contact specification.
The alleged victim, SSgt AO, testified she repeatedly told Appellant to stop, attempted to resist (squeezed his penis, locked her legs), and that Appellant masturbated and ejaculated on her stomach; Appellant’s testimony acknowledged some touching and that he ejaculated but disputed penetration and some other acts.
After findings and before sentencing, a court member (MSgt GO) told the bailiff that another member failed to disclose an event in voir dire; the military judge conducted a limited inquiry with MSgt GO, concluded no indication of extraneous prejudicial information or unlawful command influence, and declined to reopen voir dire or grant a mistrial.
At trial the military judge instructed members under Mil. R. Evid. 413 that charged offenses could be considered under a preponderance standard to show propensity/predisposition for other charged offenses (an instruction allowing consideration of other charged conduct as propensity evidence).
On appeal the court addressed (1) whether the judge abused discretion by not investigating potential panel-member misconduct further; (2) legal and factual sufficiency of the conviction; and (3) whether the Mil. R. Evid. 413 instruction was erroneous in light of United States v. Hills and its progeny. The court affirmed the findings and sentence, finding no abuse regarding the panel inquiry and that the 413 error was harmless beyond a reasonable doubt.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether the military judge abused discretion by refusing to further investigate panel-member misconduct after MSgt GO’s disclosure	Appellant: The judge should have held a post-trial evidentiary hearing to explore whether an exception to Mil. R. Evid. 606(b) applied and whether nondisclosure warranted relief or rehearing	Gov: MSgt GO’s statements implicated deliberations; the judge’s limited inquiry showed no extraneous information, outside influence, or unlawful command influence, so further inquiry was barred by Mil. R. Evid. 606(b) and Warger	Held: No abuse of discretion. Limited inquiry revealed no exception; judge properly declined to probe deliberations further and did not err under Pena-Rodriguez because no racial animus was alleged.
Legal and factual sufficiency of the conviction for abusive sexual contact (touching breasts and buttocks)	Appellant: Contesting sufficiency, arguing prior sexual banter/consensual interactions and character evidence could support a reasonable mistake-of-consent defense	Gov: Victim’s detailed testimony, contemporaneous reports to friends/family/SARC, Appellant’s admissions that he groped, straddled, masturbated and ejaculated support conviction beyond a reasonable doubt	Held: Conviction is both legally and factually sufficient; appellate court, after fresh, independent review, is convinced of guilt beyond a reasonable doubt.
Whether Mil. R. Evid. 413 instruction allowing charged conduct to be used as propensity evidence violated Hills and requires relief	Appellant: The 413 instruction improperly allowed members to consider other charged, contested offenses as propensity evidence in violation of Hills/Hukill	Gov: Any instructional error was harmless because the case involved a single incident, prosecution did not argue propensity, and members acquitted on three specifications	Held: The instruction was erroneous under Hills/Hukill but the error was harmless beyond a reasonable doubt given the single-incident facts, government argument, and the pattern of acquittals on other specifications.

Key Cases Cited

Warger v. Shauers, 135 S. Ct. 521 (2014) (prohibits juror testimony about deliberations to impeach verdict, including when juror lied in voir dire, absent enumerated exceptions)
Pena‑Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (constitutional exception to no‑impeachment rule where juror plainly relied on racial animus)
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (evidence of charged, contested sexual offenses cannot be used as propensity evidence under Mil. R. Evid. 413)
United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017) (clarifies Hills: use of charged conduct as 413 propensity evidence is error regardless of forum or number of victims)
United States v. Mack, 41 M.J. 51 (C.M.A. 1994) (failure to answer voir dire honestly may warrant new trial if correct answer would support challenge for cause)
United States v. Lambert, 55 M.J. 293 (C.A.A.F. 2001) (military judge has wide discretion in investigating alleged member misconduct)