With a published decision in United States v. Robertson, __ M.J. __, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (link to slip op.), a three-judge panel of the Air Force CCA affirms the appellant’s conviction of one specification of abusive sexual contact in violation of Article 120, for which he was sentenced to reduction to E-3 and a bad-conduct discharge, rejecting assignments of error based on alleged member misconduct affecting deliberations and the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413.
Staff Sergeant (E-5) Robertson was charged with four sexual offenses all related to an encounter with another Staff Sergeant. The members found him not guilty of the three more-serious allegations, and convicted him of abusive sexual contact by touching the alleged victim’s buttocks and breasts without her consent. Slip op. at 6. Robertson testified in his own defense and admitted to the touching, but he claimed it was consensual. Slip op. at 4. The alleged victim, however, testified that all of the contact – including allegations of rape of which Robertson was acquitted – was nonconsensual, that she told him to stop, and that she resisted. Slip op. at 3-4.
The members were instructed that they could use evidence that Robertson committed the three more-serious offenses as proof of Robertson’s “propensity or predisposition to engage in a sexual offense.” Slip op. at 14 (quoting instructions). The defense did not object to the instruction.
After the members convicted Robertson, one of the members told the baliff “that another member had something in his – or her because he did not identify who it was – past that should have been disclosed that swung the vote in favor of conviction.” Slip op. at 6 (quoting military judge’s summary of the baliff’s disclosure). The military judge questioned the member, and the defense moved for a mistrial and also sought to re-open voir dire. The military judge, however, concluded that the general prohibition against inquiring into member deliberations in Mil. R. Evid. 606(b) prevented further inquiry, and denied the defense motion for a mistrial and request for voir dire.
The CCA finds that the military judge’s Mil. R. Evid. 606(b) ruling was correct, and that the erroneous propensity instruction was harmless “under the particular circumstances of this case.” Slip op. at 16.