United States v. Long

• Court: Court of Appeals for the Armed Forces
• Decided: July 26, 2021
• Docket: 21-0085/AR
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. John T. LONG, Master Sergeant U.S. Army, Appellant No. 21-0085 Crim. App. No. 20150160 Argued May 25, 2021—July 26, 2021 Military Judges: Deidra J. Fleming (arraignment) and Christopher T. Fredrikson (trial) For Appellant: William E. Cassara, Esq. (argued); Lieuten- ant Colonel Angela D. Swilley, Major Alexander N. Hess, and Captain Thomas J. Travers (on brief); Colonel Michael C. Friess and Major Kyle C. Sprague. For Appellee: Captain Samantha E. Katz (argued); Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Williams, and Major Brett A. Cramer (on brief); Captain Anthony A. Contrada. Judge MAGGS delivered the opinion of the Court, in which Chief Judge STUCKY and Judges OHLSON, SPARKS, and HARDY, joined. _______________

Judge MAGGS delivered the opinion of the Court. In this appeal, we confront the same misuse of propensity evidence that this Court addressed in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), and several subsequent cases. The “Hills error” here concerns a specification alleging that Appellant committed the offense of rape of a child who has not attained the age of twelve years in violation of Article 120(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(b)(1) (Supp. I 2007). The parties agree that the error occurred but disagree about the consequences of the er- ror. As described below, we hold that properly admitted non- propensity evidence was legally sufficient to support a finding that Appellant is guilty of the offense. We nonetheless hold, United States v. Long, No. 21-0085/AR Opinion of the Court

based on precedent, that the Hills error was not harmless be- yond a reasonable doubt. We therefore set aside the finding that Appellant is guilty of the specification at issue and also set aside the sentence. We authorize a rehearing on the spec- ification that we have set aside. We affirm findings that Ap- pellant is guilty of two other specifications. We authorize a rehearing on the sentence. I. Background A. Procedural History A military judge sitting as a general court-martial found Appellant guilty, contrary to his pleas, of abusive sexual con- tact with a child (three specifications), indecent liberties with a child (two specifications), rape of a child, sodomy upon a child under twelve years of age, assault consummated by a battery upon a child under sixteen years of age, indecent acts with a child (two specifications), and child endangerment, in violation of Articles 120, 125, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 928, 934 (2006 & Supp. I 2007), and of sexual abuse of a child in viola- tion of Article 120b(c), UCMJ, 10 U.S.C. § 920b(c) (Supp. V 2011).1 The military judge sentenced Appellant to sixty years

1 The military judge found Appellant not guilty of two specifica- tions alleging violations of Article 134, UCMJ; four specifications alleging violations of Article 120, UCMJ; and one specification al- leging a violation of Article 80, UCMJ, 10 U.S.C. § 880. We note that Specification 11 of Charge II alleged that Appellant violated Article 120, UCMJ, by committing a lewd act on a child between on or about July 8, 2012, and on or about July 20, 2012. The promul- gating order shows that Appellant was found guilty of this specifi- cation, also indicating that Appellant violated Article 120, UCMJ. But at the time of the offense, sexual abuse of a child by committing a lewd act was prohibited by Article 120b(c), UCMJ, 10 U.S.C. § 920b(c) (Supp. V 2011), which went into effect on July 1, 2012, rather than by Article 120, UCMJ. The United States Army Court of Criminal Appeals (ACCA) apparently noticed this discrepancy because its opinions identify the offense as a violation of Article 120b, UCMJ. See, e.g., United States v. Long, No. ARMY 20150160, 2018 CCA LEXIS 512, at *1 n.1, 2018 WL 5623640, at *1 n.1 (A. Ct. Crim. App. Oct. 26, 2018) (unpublished). The ACCA’s opinions, however, do not explain the discrepancy. Given that the ACCA later set aside the finding that Appellant was guilty of Specification 11

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of confinement, reduction to the grade of E-1, and a dishonor- able discharge. The convening authority approved the find- ings and sentence as adjudged. In his first appeal to the ACCA, Appellant argued that the military judge had improperly allowed the Government to use evidence that Appellant committed charged sexual offenses to prove that he had a propensity to commit other charged sex- ual offenses. Long, 2018 CCA LEXIS 512, at *28–33, 2018 WL 5623640, at *10–12. The Government conceded that this was a Hills error and further conceded that the error was not harmless beyond a reasonable doubt with respect to nine specifications of sexual offenses. Id. at *28, 2018 WL 5623640, at *10–11. The ACCA dismissed two of these specifications and set aside the findings on the other seven. Id. at *33, 2018 WL 5623640, at *12. The ACCA, however, affirmed the find- ing that Appellant was guilty of the specification of rape of a child (Specification 8 of Charge II) because it determined that the Hills error was harmless beyond a reasonable doubt. Id., 2018 WL 5623640, at *11–12. The ACCA also affirmed the findings of guilt with respect to the specification of child en- dangerment (Specification 5 of Charge I) and the specification of assault consummated by a battery (the Specification of Charge IV). Id., 2018 WL 5623640, at *11–12. The ACCA set aside the sentence. Id., 2018 WL 5623640, at *12. The ACCA returned the case to the convening authority for further action. Id., 2018 5623640, at *12. In so doing, the ACCA provided the convening authority three options: (1) or- der a rehearing on the specifications that it had set aside and not dismissed and a rehearing on the sentence; (2) order a re- hearing on the sentence alone; or (3) “reassess the sentence, affirming no more than a dishonorable discharge, confine- ment for forty years, and reduction to E-1.” Id., 2018 WL 5623640, at *12. Appellant petitioned this Court for review, but we dismissed the petition without prejudice to Appellant’s right to raise the matters asserted during the normal course of appellate review. United States v. Long, 79 M.J. 99 (C.A.A.F. 2019).

of Charge II, and given that the parties do not make an issue of this difference, we also will not further address this point.

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The convening authority subsequently determined that holding a rehearing would be impracticable. The convening authority therefore chose the third option outlined by the ACCA. Accordingly, the convening authority approved only so much of the sentence as provided for confinement for forty years, reduction to the grade of E-1, and a dishonorable discharge. Appellant again appealed to the ACCA. The ACCA reaf- firmed the findings that Appellant is guilty of the specifica- tions for rape of a child, child endangerment, and assault con- summated by a battery. United States v. Long, No. ARMY 20150160, 2020 CCA LEXIS 368, at *4–5, 2020 WL 6196052, at *2 (A. Ct. Crim. App. Oct. 21, 2020) (summary disposition on further review) (unpublished). But the ACCA concluded that its prior ruling instructing the convening authority that he could reassess the sentence within a specified limit vio- lated this Court’s recent holding in United States v. Gonzalez, 79 M.J. 466 (C.A.A.F. 2020). 2020 CCA LEXIS 368, at *4, 2020 WL 6196052, at *2–3. The ACCA, accordingly, reas- sessed the sentence de novo. Id., 2020 WL 6196052, at *2–3. The reassessment produced the same result: a dishonorable discharge, confinement for forty years, and reduction to the grade of E-1. Id. at *5, 2020 WL 6196052, at *3. We granted review of three issues: I. Whether the Army court erred in concluding the impermissible use of charged sexual misconduct as propensity evidence was harmless beyond a reasonable doubt [with respect to the child rape specification]. II. Whether Appellant’s conviction for rape of a child was legally sufficient where the Government pre- sented no evidence of the charged sexual act. III. Whether the Army court abused its discretion in reassessing the sentence. We address these assigned issues after describing additional relevant facts. B. Additional Facts Relevant to the Assigned Issues Appellant’s daughter, who was eleven years old at the time of the relevant events, testified that she drank vodka

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with Appellant on the evening of December 31, 2009. As a re- sult of her alcohol consumption, she fell down stairs and in- jured herself. She further testified that after drinking the vodka, she became belligerent, and Appellant escorted her to her bedroom. She testified that she fell asleep, woke up, and found Appellant on top of her. The daughter further testified that Appellant choked her with his hands until she passed out. The daughter did not testify that Appellant had pene- trated her vulva. But she testified that when she woke up the next morning, she had pain in her vaginal area and hand marks and bruises on her legs and neck. In addition, the daughter testified that when she urinated, “[i]t burned” and “everything hurt,” and also that “[t]here was blood . . . all over my vagina and my butt.” She testified she began menstruat- ing only after the alleged rape, implying that the blood was not from menstruating. In addition to the daughter, other witnesses also testified. Her mother testified that she observed bruising on the daugh- ter’s neck and legs the next day. Her mother also testified that the daughter “said that her butt hurt. And she said that her body was sore. She said she was hurting all over.” The daugh- ter’s brother and a house guest testified that they did not re- call seeing any bruising. The mother also presented testimony concerning a speci- fication of which Appellant was found not guilty. The specifi- cation alleged that Appellant “[d]id, at or near Clarksville, Tennessee, on divers occasions, between on or about 23 Octo- ber 2009 and on or about 31 December 2009, engage in a sex- ual act, to wit: penetrate the vulva of [the mother] with his penis, by using force sufficient that she could not avoid or es- cape the sexual conduct.” The mother described how Appel- lant, on divers occasions, had climbed on top of her and choked her with his hands so that she could not speak or breathe. She testified that, “[i]f we were having sex, like nor- mal sex, he’d be on top of me; and his hands would be around my throat.” She further testified that while Appellant was do- ing this, he also penetrated her with his penis. The Government provided notice before trial of its intent to use propensity evidence under Military Rules of Evidence

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(M.R.E.) 413 and 414.2 Propensity evidence became an issue when the defense moved, following presentation of the Gov- ernment’s evidence, to dismiss Specifications 7 and 8 of Charge II under Rule for Courts-Martial (R.C.M.) 917. Both of these specifications alleged that Appellant “did, at or near Clarksville, Tennessee, on or about 31 December 2009, en- gage in a sexual act” involving his daughter, a “child who had not attained the age of 12 years.” Specification 7 alleged in addition that Appellant penetrated his daughter’s “genital opening . . . with an object,” while Specification 8 alleged that he penetrated his daughter’s “vulva . . . with his penis.” (Em- phasis added.) In support of this motion, trial defense counsel argued that the Government had presented no evidence that Appel- lant had penetrated his daughter’s genital opening or vulva with an object or his penis. In response, trial counsel argued that the evidence showed that Appellant had a propensity to commit these offenses. Trial counsel asserted: “[T]he govern- ment believes that the Court can make an inference. . . . [The daughter’s] description is very similar . . . to that which [the mother] describes when the accused would be penetrating her while strangling her.” In making this argument, trial counsel was referring to the mother’s testimony described above. The military judge denied the motion to dismiss under R.C.M. 917 without indicating whether he did or did not consider propen- sity evidence. During arguments on findings with respect to the rape of a child specification, trial counsel made no express mention of propensity evidence.

2 The applicable versions of M.R.E. 413 and 414 are found in the Supplement to Manual for Courts-Martial, United States, Mili- tary Rules of Evidence (2012 ed.). M.R.E. 413(a) provides: “In a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant.” M.R.E. 414(a) provides: “In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.”

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The military judge made the findings described above. Of particular note for the assigned issue is that the military judge found Appellant guilty of Specification 8 of Charge II, which averred that Appellant penetrated his daughter’s vulva with his penis. But the military judge found Appellant not guilty of Specification 7 of Charge II, which averred that Appellant penetrated his daughter’s genital opening with an object. II. Discussion In Hills, a military judge instructed the members that if they found by a preponderance of the evidence that the ac- cused had committed a charged sexual offense, they could consider the evidence of that charged offense for its tendency to show that the accused committed other charged sexual of- fenses. 75 M.J. at 353. The military judge believed that the instruction was authorized by M.R.E. 413(a). On appeal, how- ever, this Court held that the instruction violated M.R.E. 413(a) because “[n]either the text of M.R.E. 413 nor the legis- lative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove be- yond a reasonable doubt in the same case.” Id. at 352. This Court also ruled that the instruction violated the constitu- tional requirement of due process “by creating [a] risk that the members would apply an impermissibly low standard of proof, undermining both ‘the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt.’ ” Id. at 357 (quoting United States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000)). Although the Hills case involved a trial before members, this Court later applied the decision in a case tried by a military judge alone. In United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), the Court held that the prohibition against using charged conduct as “propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Id. at 222. In this appeal, neither party challenges the Hills decision, or its extension to a military judge-alone trial in Hukill. Fur- ther, both parties agree that a Hills error occurred because, in response to the R.C.M. 917 motion, trial counsel argued

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that the military judge could use evidence of one charged of- fense (i.e., that Appellant penetrated the mother with his pe- nis) to prove another charged offense (i.e., that Appellant pen- etrated his daughter with his penis). The parties, however, disagree about whether admissible non-propensity evidence was legally sufficient to sustain the child rape specification and about whether the use of propensity evidence was harm- less beyond a reasonable doubt. We discuss each issue in turn. A. Legal Sufficiency Without Propensity Evidence Specification 8 of Charge II alleged that Appellant “did, at or near Clarksville, Tennessee, on or about 31 December 2009, engage in a sexual act, to wit: penetrate the vulva of [his daughter, a] child who had not attained the age of 12 years, with his penis.” Appellant argues that the evidence was legally insufficient to prove this charge because, in his view, there is no evidence that he penetrated his daughter with his penis. We review de novo the question of whether the evidence was legally sufficient. United States v. Young, 64 M.J. 404, 407 (C.A.A.F. 2007). Evidence is sufficient to support a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). As the Supreme Court has explained: “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. In applying this test for legal sufficiency, reviewing courts must remember that “[f]indings may be based on direct or cir- cumstantial evidence.” R.C.M. 918(c); see also United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (“[T]he government is free to meet its burden of proof with circumstantial evi- dence.”). And the Supreme Court has explained: “Circumstan- tial evidence . . . is intrinsically no different from testimonial evidence. . . . [With] both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, [an appellate

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court] can require no more.” Holland v. United States, 348 U.S. 121, 140 (1954). In this case, we agree with Appellant that the evidence would be insufficient to sustain the finding with respect to Specification 8 of Charge II if a rational factfinder could not have found beyond a reasonable doubt that Appellant pene- trated his daughter’s vulva with his penis. We recognize that the applicable version of Article 120, UCMJ, did not require the Government to allege or prove that Appellant penetrated his daughter with his penis as opposed to with some other ob- ject.3 In this case, however, Specification 7 of Charge II al- leged penetration with an object, while Specification 8 of Charge II alleged penetration with Appellant’s penis. Given that the military judge found Appellant not guilty of Specifi- cation 7, the evidence is legally sufficient for Specification 8 only if a rational factfinder could find beyond a reasonable doubt that Appellant penetrated his daughter with his penis. See United States v. English, 79 M.J. 116, 120 (C.A.A.F. 2019) (noting that, although the government is “not required to draft the specification alleging a particular type of force,” if the government “narrowed the scope of the charged offense by alleging a particular type of force, it was required to prove the facts as alleged”).

3 The applicable version of Article 120(b)(1), UCMJ, provides: “Any person subject to this chapter who—(1) engages in a sexual act with a child who has not attained the age of 12 years . . . is guilty of rape of a child and shall be punished as a court-martial may di- rect.” 10 U.S.C. § 920(b)(1) (Supp. I 2007). The term “sexual act” is defined as: (A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or (B) the penetration, however slight, of the genital opening of another by a hand or finger or by any ob- ject, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

Article 120(t)(1), UCMJ, 10 U.S.C. § 920(t)(1) (Supp. I 2007).

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Appellant emphasizes that Appellant’s daughter did not perceive penetration as it was occurring. Appellant acknowl- edges that testimony about the pain his daughter felt in her genital area and the blood and bruising is relevant circum- stantial evidence. But Appellant contends that even if this ev- idence could support an inference that the daughter was pen- etrated with something, it is legally insufficient to establish that Appellant penetrated her with his penis. We disagree. We find instructive the analysis in Murphy v. Phillips, No. 20-4132, 2021 U.S. App. LEXIS 7838, 2021 WL 1625400 (6th Cir. Mar. 17, 2021), a recent case in which a circuit judge denied a certificate of appealability to a state prisoner in a habeas corpus case. The state prisoner chal- lenged the legal sufficiency of his conviction for raping an eleven-month-old girl by penetrating her mouth with his pe- nis. Id. at *2, 2021 WL 1625400, at *1. A treating physician observed an injury to the victim’s throat, but could not say what object had penetrated her mouth. Id., 2021 WL 1625400, at *1. (The infant obviously could not testify about what hap- pened.) The prisoner, much like Appellant in this case, argued that at most a rational juror could conclude that the victim suffered an injury by being penetrated by something but could not conclude that the injury was caused by his penis. Id. at *8–9, 2021 WL 1625400, at *3. The court rejected this argu- ment, observing among other things that evidence of bruising on the victim’s neck and genital area was consistent with sex- ual abuse. Id. at *9, 2021 WL 1625400, at *3. The opinion con- cluded that, in the light of all testimony presented, and given the absence of evidence that some object other than the vic- tim’s penis penetrated the victim’s mouth, the jury could rea- sonably infer that the victim’s injuries were caused by the prisoner’s penis. Id. at *9–10, 2021 WL 1625400, at *3. The Murphy opinion is consistent with the principles, de- scribed above, for judging the legal sufficiency of the evidence and is very similar to this case. The reviewing judge consid- ered circumstantial evidence, viewed the evidence in the light most favorable to the government, drew reasonable infer- ences in favor of the government, and apparently used his ex- perience with people and events in considering the sufficiency of the evidence. Under these same principles, we believe that the evidence is legally sufficient in this case.

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The military judge could find that Appellant climbed on top of his daughter based on her testimony. The military judge similarly could find that Appellant used his hands to choke his daughter, based on her testimony and the bruising her mother saw on her neck. The military judge further could find that penetration occurred based on what the daughter testified about the pain and the blood. Finally, if Appellant was on top of his daughter and choking her neck with his hands, and was simultaneously penetrating her, the military judge could reasonably infer that he was penetrating her with his penis and not with his hands or something held in his hands. As counsel for the Government contended at oral ar- gument, “the positioning of the bodies” and the fact that “Ap- pellant’s hands were occupied around her neck” supports a reasonable inference that Appellant penetrated her with his penis. Appellate defense counsel’s response to this line of reason- ing is that there was no evidence that the choking and pene- tration occurred at the same time. Appellate defense counsel points out that the daughter did not perceive that she was being penetrated while she was being choked. He further points out that the daughter was wearing pajamas while be- ing choked, suggesting that Appellant would have had to re- move his hands from her neck to lower her pajamas before penetrating her. The issue before us is legal sufficiency, not factual suffi- ciency. See United States v. Holt, 52 M.J. 173, 186 (C.A.A.F. 1999) (“[C]onsideration of the factual sufficiency of the evi- dence is outside the statutory parameters of our review.”). We hold that when considering the evidence in the light most fa- vorable to the Government, the military judge, as a rational factfinder, could use his “experience with people and events in weighing the probabilities” to infer beyond a reasonable doubt that Appellant penetrated his daughter while he was on top of her and did so with his penis as opposed to some other object. Holland, 348 U.S. at 140. Based on the facts that the daughter experienced pain around her vagina, detected blood there before she had begun menstruating, and reported waking up to Appellant on top of her the night before, a ra- tional factfinder could reasonably have inferred that Appel-

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lant penetrated her vulva. And based on the position of Ap- pellant’s body and his hands, a reasonable inference that can be drawn in favor of the Government is that Appellant pene- trated her with his penis. Like the judge in Murphy, we con- clude that the evidence is legally sufficient to establish all the elements of the offense. B. Harmlessness of the Hills Error Our determination that non-propensity evidence was le- gally sufficient to support the finding of guilt does not resolve this case. We also must consider whether the Hills error “ma- terially prejudice[d] the substantial rights of the accused.” Ar- ticle 59(a), UCMJ, 10 U.S.C. § 859(a) (2018). Where, as here, “the accused fails to preserve the [constitutional] instruc- tional error by an adequate objection or request, we test for plain error.” United States v. Williams, 77 M.J. 459, 462 (C.A.A.F. 2018) (internal quotation marks omitted) (citation omitted). “Under this Court’s plain error jurisprudence, to es- tablish plain error an appellant must demonstrate (1) error, (2) that is clear or obvious at the time of appeal, and (3) prej- udicial.” Id. The Government concedes that, under Hills and Hukill, “the use of propensity evidence from charged offenses to prove other charged offenses constitutes ‘clear or obvious error.’ ” The dispute in this case, then, is whether the Hills error was prejudicial. According to this Court’s precedents, “where a forfeited constitutional error was clear or obvious, ‘material prejudice’ [under Article 59(a), UCMJ] is assessed using the ‘harmless- ness beyond a reasonable doubt’ standard.” United States v. Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019) (internal quo- tation marks omitted) (citations omitted). “That standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the con- viction.” Id. Because both parties agree that this is the appro- priate test for prejudice under this Court’s precedents, we ap- ply it here and hold that the Hills error in this case was not harmless beyond a reasonable doubt. Our decision in Williams, 77 M.J. 459, provides highly rel- evant guidance. The Court in Williams set aside the finding of guilt as to one affected specification because the Court was “not convinced that the erroneous propensity instruction

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played no role in Appellant’s conviction.” Id. at 463. But the Court affirmed the finding of guilt with respect to another specification. Quoting United States v. Guardado, 77 M.J. 90, 94 (C.A.A.F. 2017), the Court explained that “ ‘[t]here are cir- cumstances where the evidence is overwhelming, so we can rest assured that an erroneous propensity instruction did not contribute to the verdict by tipp[ing] the balance in the mem- bers ultimate determination.’ ” Id. at 464 (alterations in orig- inal) (internal quotation marks omitted). The Court was “con- fident” that the Hills error had no effect on a finding that the appellant had committed forcible sodomy, given corroborating evidence of (1) physical damages to the premises where a struggle took place, (2) photographs of the victim’s wounds, (3) testimony by eyewitnesses as to the victim’s distraught de- meanor, and (4) a sworn statement by the appellant that con- firmed a portion of the victim’s account. Id. In contrast, here we cannot say that propensity evidence played no role in the military judge’s finding that Appellant is guilty of Specification of 8 of Charge II. Unlike in Williams, in this case, the non-propensity evidence is not overwhelming for the specification as alleged. We agree with the Govern- ment that this case involves some corroborating evidence, such as the testimony about the daughter’s pain, bleeding, and bruising. This is evidence that the daughter was pene- trated. But as described in the discussion of the legal suffi- ciency of the evidence, the military judge had to make an in- ference that Appellant penetrated the daughter with his penis as opposed to with some other object. In making this inference, the mother’s testimony that Appellant had sexually assaulted her in the same manner, coupled with the Govern- ment’s propensity argument, may have influenced the mili- tary judge. Therefore, we cannot say the error was harmless beyond a reasonable doubt. In reaching this conclusion, we recognize that trial counsel emphasized propensity in the context of the R.C.M. 917 mo- tion, and did not expressly include the issue of propensity in arguments on findings. But trial counsel’s arguments on the R.C.M. 917 motion became part of the record, and the Gov- ernment has cited nothing to suggest that the military judge in making his findings forgot or ignored the points that trial counsel had asserted earlier in the trial. In addition, although

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the Williams case confirms that Hills errors sometimes are harmless, this case is distinguished from Williams because the evidence supporting a conviction here is not overwhelm- ing without use of the propensity evidence. Finally, we note that this Court addressed standards of review in Tovarchavez, holding that “[w]here the error is con- stitutional, Chapman [v. California, 386 U.S. 18, 24 (1967)] directs that the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice,” regardless of whether an objection to the error was preserved or forfeited. 78 M.J. at 462. After the parties argued the present case, the Supreme Court of the United States de- cided Greer v. United States, 141 S. Ct. 2090 (2021). In Greer, the Supreme Court reviewed a forfeited nonstructural consti- tutional error for plain error under Fed. R. Crim. P. 52(b) and did not require the government to prove that the error was harmless beyond a reasonable doubt. Id. at 2096. We need not decide whether Greer has implications for Tovarchavez be- cause on the facts of this case, we would find material preju- dice to Appellant’s rights under Article 59(a), UCMJ, even if we did not require the Government to prove that the Hills er- ror was harmless beyond a reasonable doubt. We therefore set aside the findings that Appellant is guilty of Charge II and Specification 8 of Charge II. Because we have set aside these findings, we also set aside the sentence. And because we set aside the sentence, we need not address as- signed Issue III, which asks whether the ACCA abused its discretion in resentencing Appellant. We do not disturb the findings with respect to the child endangerment specification and the assault consummated by a battery specification be- cause those findings are not challenged on appeal. III. Conclusion

We answer assigned Issues I and II in the affirmative. We do not answer assigned Issue III. The judgment of the United States Army Court of Criminal Appeals is affirmed in part and reversed in part. The findings as to Charge I and Specifi- cation 5 of Charge I, and Charge IV and the Specification of Charge IV are affirmed. The findings as to Charge II and Specification 8 of Charge II are set aside. The sentence is set aside. The record is returned to the Judge Advocate General

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of the Army. A rehearing on Charge II and Specification 8 of Charge II is authorized. A rehearing on the sentence is also authorized.