The Air Force CCA has joined the Army and Navy-Marine Corps CCAs in applying CAAF’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Like the Army court, the Air Force court finds that reversal is not required when charged offenses are considered for propensity purposes in a trial by military judge alone.

In Hills, a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the ACCA concluded that CAAF’s decision in Hills does not apply in judge-alone trials.

In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (discussed here), the NMCCA applied Hills to a trial with members, and set aside the findings.

Now, in United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (link to slip op.) (link fixed), the AFCCA reaches a similar conclusion to that reached by the ACCA in Hukill, affirming sex offense convictions in a case where a military judge alone considered the charged offenses as propensity evidence.

The AFCCA explains:

[W]e note military judges are presumed to know the law and to follow it, absent clear evidence to the contrary. United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997). This presumption includes the ability to maintain the presumption of innocence and apply the appropriate burden of proof in assessing Appellant’s guilt––issues “seriously muddled and compromised” by the instructions provided to court members in Hills, 75 M.J. at 357. While we recognize the military judge did err in considering the charged offenses for propensity, we cannot extend this error to also encompass the constitutional concerns raised in Hills absent evidence in the record of trial. Here, we have no reason to believe the military judge misapplied either the presumption of innocence or the burden of proof in assessing Appellant’s guilt. See United States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 1997).

With the instruction concerns present in Hills removed, any error by the military judge in admitting propensity evidence is nonconstitutional in nature. See United States v. Solomon, 72 M.J. 176, 182 (C.A.A.F 2013). As such, we would be bound to uphold the findings in this case unless the error materially prejudices Appellant’s substantial rights.

Regardless, in this particular case, we find the military judge’s admission of propensity evidence to be harmless under even a constitutional due process analysis. Regarding the strength of the Government’s case, the two victims testified under oath and were subject to the crucible of cross-examination. Their credibility was aided by either Appellant’s own admissions or witness testimony that directly contradicted Appellant’s version of the events.

Our belief about the importance of Appellant’s admission is buttressed by the military judge’s mixed findings. Appellant was only convicted of sexual assault offenses where the victim’s testimony was aided by either other witnesses, Appellant’s admissions, or his conflicting testimony at trial. Provided the military judge misinterpreted the presumption of innocence or burden of proof as suggested as a possibility in Hills, one would have expected guilty verdicts on all of the charged sexual assault offenses.

Phillips, slip op. at 9.

5 Responses to “The Air Force CCA finds no prejudice in the use of charged offenses for propensity purposes in judge-alone trials”

  1. K FISCHER says:

    Here is the link to the opinion:

    Your link goes to a NMCCA opinion US v. Henegar.

  2. k fischer says:

    Why is it that when the instruction is read to a panel, a constitutional error occurs, but in a MJ alone case where the MJ indicates that he or she is going to consider the evidence under 413, the error is nonconstitutional?
    Also, I agree that the error appears to be harmless beyond a reasonable doubt.  Phillips needs to stay away from drunk females.

  3. Bill Cassara says:

    What KF said.  I mean, I’m not the smartest guy in the world. I am not the smartest guy (or gal) who pontificates on CAAFLOG.  It just seems to me that when a MJ says “I will consider this as propensity evidence” (whey they implicitly did because that is what the law told them to do) then we should take them at their word, and say that they considered it. 

  4. k fischer says:

    What BC said.  I’m okay with the result in this case in that the error was harmless. 
    But, I’m not appreciative of the Court’s presumption that the MJ followed the law where the MJ clearly stated on the record that he or she followed an instruction that has ruled to be in error.  The presumption that the military judge followed the law is simply that: a presumption.  That presumption can be rebutted by, oh I don’t know, a statement that completely contradicts that she followed the law like “I am going to consider these offenses for propensity under MRE 413.”  And, it’s not like the MJ knowingly did something wrong.  The TC requested it and the instruction is in the Benchbook.
    But, this is similar to a panel member stating in a questionnaire that the “guilty until proven innocent” standard is essential to the military’s mission, then being allowed to remain on the panel because she says she can follow the MJ’s instruction.  See US v. Woods.  There is a presumption that panel members follow a military judge’s instructions about burden of proof, but CAAF did not allow that presumption to prevent them from reversing Woods’ conviction, even when panel member agreed to follow the innocent until proven guilty BARD standard.

  5. Vulture says:

    KF.  I had to go back and read Hills.  Yep that is pretty much what it said.  The but the judge had already ruled that the evidence was admissible.  So going judge alone was supposed to avoid a confusing panel instruction but then the Judge said “What instructions?”