In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), 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. Since deciding Hills, CAAF has summarily remanded five additional cases for reconsideration in light of Hills.
Separate from those remands, but also the wake of Hills, the Air Force, Army, and Navy-Marine Corps CCA have each decided cases involving the use of charged offenses as evidence to prove the accused’s propensity to commit the charged offenses.
In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the Army CCA 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 Navy-Marine Corps CCA applied Hills 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. Ellis was tried before members.
In United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), the Air Force CCA reached a similar conclusion to that reached by the Army CCA in Hukill, affirming sex offense convictions in a case where a military judge alone considered the charged offenses as propensity evidence.
Now, in United States v. Bonilla, No. 20131084 (A. Ct. Crim. App. Sep 30, 2016) (link to slip op.), a three-judge panel of the Army CCA goes a step further and affirms convictions by members despite the prosecution’s use of the charged offenses for propensity purposes. Significantly, similar to the facts of Hills, the case involved a single alleged victim where multiple alleged sexual assaults were charged and then each used as proof of the others. The military judge also used the standard Benchbook instruction that CAAF found constitutionally defective in Hills. However, the Army CCA finds these errors to be harmless, distinguishing the facts of Bonilla from those of Hills on five bases:
Writing for the panel, Senior Judge Tozzi concludes:
While we find the military judge’s instruction created an error rising to a constitutional dimension, the similarity between Hills and this case ends with the propensity instruction. Hills involved two offenses against a single victim that occurred over the span of two hours on one night. The case relied heavily on the testimony of the victim who, at the time of assault, was heavily intoxicated and in and out of consciousness. DNA evidence in the case proved inconclusive. The present case is distinguishable on many fronts.
First, appellant raped, sodomized, and sexually assaulted Ms. AM on multiple occasions over a period of eight and one-half years.
Second, Ms. AM’s memories of appellant’s numerous assaults were clear and compelling, even though she at one point recanted allegations she made concerning the abuse. Ms. AM’s testimony was supported by DNA evidence, Ms. AM’s physical injuries, and a blood stain found on Ms. AM’s bedroom floor. Additionally, expert testimony was provided to explain recantation is most common in children who are abused by a family member.
Third, the government’s burden of proof beyond a reasonable doubt was reinforced extensively during voir dire, which alone spanned over 500 pages of transcript. At the outset, the military judge instructed the panel of the government’s burden of proof. When then asked, the members indicated no disagreement with this rule of law. Throughout voir dire, the military judge and counsel asked multiple questions that reinforced that the burden of proof beyond a reasonable doubt rested with the government. In summary, the extensive voir dire clearly reinforced for the members that the burden of proof beyond a reasonable doubt rested with the government and never shifted to appellant.
Fourth, trial counsel did not reference propensity evidence in his argument.
Fifth, the panel did not appear to be confused by the military judge’s instructions or as to the burden of proof. When queried by the military judge, the members had no questions about the findings instructions. Indeed, the members returned mixed findings showing they held the government to its burden of proof.
Viewing all of these factors, we are convinced beyond a reasonable doubt that the propensity instruction did not contribute to the findings of guilty or appellant’s sentence, and any instructional error was harmless beyond a reasonable doubt.
Slip op. at 13-14.