United States v. Wilson-Crow, ACM 38706 (rem)

Background

Appellant, an Air Force airman, participated in JROTC "truth or dare" sessions where he committed multiple sexual acts (sucking an 18‑year‑old's breast, briefly exposing his penis, massaging students); some victims were minors under 16. He also had separate alleged sexual assaults against a 19‑year‑old civilian (EG) during later encounters where he provided alcohol.
At court‑martial Appellant pleaded guilty to several offenses (including one child sexual‑abuse specification and indecent exposure) and was convicted by members, after mixed pleas, of additional offenses including abusive sexual contact (touching MM’s back with his penis) and one specification of sexual abuse of a child (exposing his penis to AL). He was sentenced to a dishonorable discharge, 2 years confinement, total forfeitures, and reduction to E‑1.
On initial appeal this court affirmed; the CAAF granted review, set aside that decision, and remanded for new Article 66 review in light of Fetrow, McClour, and Hills.
On rehearing this court found the military judge erred in applying Mil. R. Evid. 414 (admitting Article 120b conduct as 414 child‑molestation propensity evidence) and in instructing under Mil. R. Evid. 413 that charged, contested offenses could be used as propensity evidence for other charged offenses (contrary to Hills/Hukill).
The court concluded the 414 error (misapplication) was harmless as to the conviction for exposing his penis to AL because the same evidence was admissible under 404(b) to prove intent and the government’s case on that specification was strong.
The 413 instructional error was not harmless beyond a reasonable doubt as to the abusive sexual contact conviction (MM) because that offense rested on a single, less‑compelling witness and the members could have relied on a preponderance finding of other charged offenses to infer propensity. The court set aside Specification 1 of Additional Charge I, Additional Charge I, and the sentence, and authorized a rehearing on those matters.

Issues

Issue	Government's Argument	Wilson‑Crow's Argument	Held
Whether Mil. R. Evid. 414 could be used to admit Appellant’s Article 120b guilty plea (sucking GR’s breast) as child‑molestation propensity evidence	MJ properly applied 414 to admit the act as child‑molestation evidence	414 inapplicable to Article 120b; admission was error	414 application was legally erroneous under Fetrow, but error was harmless as to the AL exposure conviction because same evidence was admissible under 404(b) for intent and govt. case was strong
Whether Mil. R. Evid. 413 instructions permitting use of charged, contested offenses as propensity evidence for other charged offenses were proper	Any error was harmless beyond a reasonable doubt; members did not rely improperly	Instruction violated Hills/Hukill; using charged contested offenses as 413 propensity evidence undermines presumption of innocence	Instructional error under 413 was constitutional; not harmless beyond a reasonable doubt for the MM abusive‑contact conviction, so that finding, the charge, and sentence were set aside
Whether military judge’s intent instructions and other sufficiency claims require relief	Government: instructions and evidence were adequate; sufficiency stands	Appellant argued improper intent instruction and insufficiency for some specs	This court reaffirmed earlier holdings—no relief on sufficiency or intent issues (McClour resolves related issue adversely to Appellant)
Remedy and disposition	Government sought affirmance of findings/sentence	Appellant sought reversal or relief on evidentiary and instructional errors	Findings as to Specification 1 of Additional Charge I, Additional Charge I, and sentence set aside; remand for rehearing as to those matters; all other findings and convictions affirmed

Key Cases Cited

United States v. Fetrow, 76 M.J. 181 (C.A.A.F.) (construing scope of Mil. R. Evid. 414 and child‑molestation definition)
United States v. McClour, 76 M.J. 23 (C.A.A.F.) (clarifying standards for related instructional issues)
United States v. Hills, 75 M.J. 350 (C.A.A.F.) (charged, contested offenses cannot be used as M.R.E. 413 propensity evidence)
United States v. Hukill, 76 M.J. 219 (C.A.A.F.) (reinforcing Hills; error in using charged contested conduct as 413 propensity evidence requires harmlessness beyond a reasonable doubt)
United States v. Knapp, 73 M.J. 33 (C.A.A.F.) (plain‑error review framework for forfeited evidentiary objections)
United States v. Mullins, 69 M.J. 113 (C.A.A.F.) (appellate courts apply law as of time of appeal, not trial)