In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (link to slip op.), a three-judge panel of the NMCCA applies CAAF’s recent decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months but shared numerous similarities.
Finding the same errors as CAAF found in Hills (an abuse of discretion in allowing the prosecution to use charged offenses for propensity purposes, and an instruction to the members about the evidence that undermines the presumption of innocence), the NMCCA concludes:
Having found abuse of discretion and error, we must assess the prejudice to Chief Ellis and determine whether the instructional error was harmless beyond a reasonable doubt. While the Government presented a strong case against Chief Ellis, it suffered some of the same weaknesses that concerned the CAAF in Hills. There was no physical evidence. Other than Ms. LW and Chief TA, none of the eyewitnesses observed sexual contact or sexual acts. Evidence of the actus reus of all but one specification consisted solely of the accuser’s testimony. Trial defense counsel impeached Ms. LW’s allegation that Chief Ellis penetrated her vagina with his penis using her initial statements that he performed oral sex but only attempted vaginal intercourse. The members acquitted Chief Ellis of one specification of abusive sexual contact involving Chief TA, convicting him instead of the lesser included offense of assault consummated by battery and revealing their reasonable doubt about Chief TA’s claim that Chief Ellis touched her breast and buttocks in the bathroom. Finally, trial defense counsel challenged Chief TA on her possible bias, prejudice, or motive to misrepresent stemming from her role as Ms. LW’s victim advocate and her subsequent decision to report her 11-month-old encounter with Chief Ellis as a sexual assault.
The facts of this case prevent us from being certain, beyond a reasonable doubt, that error did not contribute to Chief Ellis’s convictions.
Slip op. at 6.
The CCA sets aside the findings and sentence, authorizing a rehearing.