United States v. Santos
ACM 39019
| A.F.C.C.A. | Aug 23, 2017Background
- Appellant, an Airman, was tried by military judge alone and convicted of sexual assault of SM (digital penetration) and abusive sexual contact of EM (touching breast) under Article 120, UCMJ; acquitted of a separate aggravated sexual contact charge concerning EM. Sentence: dishonorable discharge, 18 months confinement, reduction to E‑1; convening authority partially modified forfeitures.
- EM and SM were close friends with Appellant; both viewed him as in the “friend zone.” Incidents occurred in Appellant’s dorm room in October–November 2014. SM awoke to digital penetration and escaped; EM testified Appellant touched her buttocks and breast after she told him to stop.
- Appellant made multiple incriminating statements about the SM incident: an apologetic text, admissions to friends, and a near‑confession during an AFOSI‑directed pretext phone call (“I fingered you. I thought you were awake.”).
- The Government sought to admit uncharged sexual‑assault evidence and also sought to have each charged offense considered under Mil. R. Evid. 413 as propensity evidence for the other charged offenses. The judge excluded uncharged‑act evidence but permitted the charged offenses to be used as propensity evidence against each other; defense did not object at trial when asked.
- On appeal the court applied CAAF precedent (United States v. Hills and United States v. Hukill), found permitting charged offenses to serve as 413 propensity evidence was error, held the error harmless beyond a reasonable doubt as to the SM sexual‑assault conviction (given Appellant’s own admissions), but not harmless as to the EM abusive‑sexual‑contact conviction. Accordingly, affirmed the SM conviction, set aside the EM conviction and the sentence, and authorized rehearing on the set‑aside matters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence of one charged sexual offense may be admitted under Mil. R. Evid. 413 to show propensity to commit other charged offenses in the same trial | 413 allows admission of other sexual‑assault evidence and trial counsel argued charged offenses could be considered as 413 propensity evidence for companion charges | Admission of charged, contested offenses as propensity evidence violates presumption of innocence and beyond‑a‑reasonable‑doubt requirement (Hills/Hukill) | Error to admit charged offenses as 413 propensity evidence; waiver not found; must test for harmlessness beyond a reasonable doubt |
| Whether evidence was legally and factually sufficient to sustain conviction for abusive sexual contact of EM | Government argued evidence (EM’s testimony plus propensity from SM offense) supported conviction | Appellant argued insufficiency; relied that propensity use of SM offense was improperly admitted and crucial to EM conviction | Conviction for EM set aside because improper propensity use may have contributed to verdict; rehearing authorized |
Key Cases Cited
- United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (charged, contested offenses may not be used as M.R.E. 413 propensity evidence in the same case)
- United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017) (Hills applies broadly—error regardless of forum, number of victims, or connection between events)
- United States v. James, 63 M.J. 217 (C.A.A.F. 2006) (M.R.E. 413 permits admission of other sexual‑assault evidence to show propensity)
- United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010) (apply governing law at time of appeal, not trial)
- Delaware v. Van Arnsdall, 475 U.S. 673 (1986) (harmless‑error analysis for constitutional evidentiary errors; consider whole record)