United States v. Contreras

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39119
________________________
UNITED STATES
Appellee
v.
David CONTRERAS, Jr.
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 31 January 2018
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Military Judge: J. Wesley Moore.
Approved sentence: Dishonorable discharge, confinement for 1 year, for-
feiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 13 February 2016 by GCM convened at Shaw Air Force Base,
South Carolina.
For Appellant: Major Allen S. Abrams, USAF; Philip D. Cave, Esquire.
For Appellee: Lieutenant Joseph J. Kubler, USAF; Major Mary Ellen
Payne, USAF; Captain Michael T. Bunnell, USAF; Gerald R. Bruce, Es-
quire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Contreras, No. ACM 39119
HARDING, Senior Judge:
Appellant pleaded not guilty to six specifications of sexual misconduct aris-
ing from his interactions at a weekend wedding celebration with two women,
SM and SH. A general court-martial composed of officer and enlisted members
found Appellant guilty of only one of the six specifications: sexual assault of
SH by committing a sexual act upon her when she was incapable of consenting
due to impairment by alcohol in violation of Article 120, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. § 920. The court-martial sentenced Appellant
to a dishonorable discharge, confinement for one year, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The convening authority ap-
proved the sentence as adjudged.
Appellant raises the following four issues on appeal: (1) whether the mili-
tary judge committed error when he instructed the members they could con-
sider evidence of the other five charged sexual assault offenses as evidence of
Appellant’s propensity to commit the sexual assault of which he was eventually
convicted; (2) whether the evidence is legally and factually sufficient to support
the finding of guilty and overcome the defense of mistake of fact as to consent;
(3) whether the military judge should have instructed the members on the term
“incapable” upon request by defense counsel; and (4) whether the military
judge abused his discretion in ruling certain evidence inadmissible under Mil-
itary Rule of Evidence (Mil. R. Evid.) 412. In addition, although not raised by
Appellant, we note the post-trial processing of his case was subjected to a fa-
cially unreasonable delay. 1 Following our superior court’s holding in United
States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), we conclude the military judge
erred with regard to the instruction on propensity and the error is not harmless
beyond a reasonable doubt. We thus set aside the conviction and sentence and
do not address the remaining issues.
I. BACKGROUND
In the middle of August 2014, Appellant travelled to King George, Virginia,
to not only attend, but also officiate the wedding of his friends, Staff Sergeant
(SSgt) CC and JC. Appellant’s interactions with SM on the night of the re-
1 The 120-day sentencing-to-action standard established in United States v. Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006), was exceeded in this case. Because we are setting
aside the conviction and sentence for other reasons, we are not addressing whether the
delay amounted to a violation of Appellant’s due-process right to timely post-trial re-
view or whether relief for post-trial delay is otherwise appropriate. See id. at 143;
United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264(C.A.A.F. 2016); United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).
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United States v. Contreras, No. ACM 39119
hearsal dinner formed the basis of the four specifications related to SM. Appel-
lant’s interactions with SH after the wedding reception formed the basis of the
two specifications related to SH.
A. Appellant and SM
On the Thursday evening preceding the Saturday wedding ceremony, SSgt
CC’s family hosted a rehearsal dinner at their home. Appellant attended the
dinner, as did SSgt CC’s step-sister, SM. SM, Appellant, and others drank al-
cohol before the dinner. Many attendees, including Appellant and SM, re-
mained at the family home after dinner and continued to consume alcohol. SM
testified that over the course of the evening she consumed liquor, wine, and
beer and estimated that she consumed “probably six to ten mixed drinks and
maybe five to eight shots.” At some point, SM went outside to smoke and sat
on the tailgate of her father’s truck. Appellant joined her there.
While seated together, Appellant and SM engaged in a consensual kiss un-
til Appellant began to pull her on top of him as he lay down in the bed of the
truck. SM testified that she immediately jumped off the truck tailgate and told
him they were “not going to do that at [her] parent’s house.” Appellant kissed
SM again, partially lifted up her skirt, and touched her thigh. SM pushed his
hand away from her thigh and told him to stop. Appellant “did it again” and
SM once again pushed his hand away and told him to stop. Appellant then
attempted to put his hand up her shirt. SM responded by pushing Appellant
on his chest, causing him to back up a foot or more. SM then told Appellant she
was going back inside and did so. Once back in the house, SM continued to
drink, dance, and socialize. SM described herself as “pretty intoxicated” at that
point and stated her memory of the remainder of the night consisted only of
“flashes.”
Later that evening, SM was sitting outside on the deck of the house when
Appellant joined her. SM and Appellant were seen by others as they departed
the house or entered the house to go to bed. Appellant and SM eventually went
back inside the house and descended a spiral staircase to the basement where
two beds and a mattress on the floor had been prepared for guests. MC, a friend
of the bride, and NM, SM’s brother, were already in the basement.
Once downstairs, SM went to the basement bathroom and vomited. Appel-
lant followed SM into the bathroom. SM testified she did not remember every-
thing that happened while in the bathroom but she did recall hearing Appel-
lant say “[t]hat’s what I like to see,” or words to that effect, while she was on
her hands and knees, vomiting. Other witnesses corroborated SM’s account of
her vomiting in the basement bathroom.
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United States v. Contreras, No. ACM 39119
SM further recalled “laying [sic] on the floor with [Appellant] on top of [her]
having intercourse with [her] vaginally.” SM testified that she sat up, told Ap-
pellant to “wait,” to “stop,” and asked Appellant what “they” were doing. Ap-
pellant answered, “it’s okay.” SM told Appellant “no” and that her brother, NM,
was right on the other side of the door. Appellant replied, “no, no it’s okay,
we’re being quiet” and continued. Subsequent to that, SM likened herself to a
“dead fish,” without the ability to exercise control over her body. SM then de-
scribed how Appellant straddled her face by placing his legs on each side of her
shoulders while holding her head up with one hand. Appellant then placed his
penis in her mouth with his other hand as she “was just laying [sic] there.” SM
testified her next flashes of memory were of Appellant penetrating her vagina
with his penis once more, asking Appellant “if he finished,” and asking him
whether she “needed to get a morning after pill.” SM left the bathroom, got into
one of the beds, and went to sleep. SM woke up the next morning in bed with
Appellant. SM testified that Appellant tried to place his hand down the front
of her pants and attempted to rub her on the outside of her pants, but that she
pulled his hand away on each attempt.
The members acquitted Appellant of the four Article 120, UCMJ, specifica-
tions relating to SM. Specifically, Appellant was acquitted of: (1) abusive sex-
ual contact by rubbing SM’s thigh with his hand without her consent; (2) abu-
sive sexual contact by rubbing her genitalia with his hand without her con-
sent; 2 (3) sexual assault by penetrating SM’s vulva with his penis; and (4) sex-
ual assault by penetrating SM’s mouth with his penis. Both sexual assaults
against SM were alleged to have occurred when SM was incapable of consent-
ing due to impairment by alcohol.
2Appellant moved for a finding of not guilty for this specification, Specification 4 of the
Charge. The military judge granted the motion as to the greater offense of abusive
sexual contact, but denied it as to the lesser-included offense of attempt. Instead of
informing the members of his finding and instructing on the lesser-included offense,
the military judge directed a new flyer without the original Specification 4 and with a
“Charge II” and Specification of attempted abusive sexual contact in violation of Article
80, UCMJ, 10 U.S.C. § 880. In effect, the military judge created a legal fiction as
Charge II was never preferred and referred. The military judge then instructed on
“Charge II” and its Specification, and the members found Appellant not guilty. The net
effect of the military judge’s actions and the members’ finding of not guilty is that Ap-
pellant is found not guilty of Specification 4 of the Charge (and any lesser-included
offense). While the legal fiction did not prejudice Appellant, the court-martial order
omits the not-guilty finding for Specification 4 of the Charge and therefore is inaccu-
rate.
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United States v. Contreras, No. ACM 39119
B. Appellant and SH
SH arrived without her husband the Friday evening following the rehearsal
dinner, and she spent that night at her parents’ house while her husband re-
mained at their home in another city. SH approached Appellant at the wedding
reception the following day, introduced herself, and complimented him on his
performance as the officiant of the ceremony. During their initial conversation,
Appellant specifically asked SH where her husband was. The conversation
ended shortly thereafter. SH testified that she drank one glass of wine and
“about” five mixed drinks over the course of approximately two and a half
hours. On cross-examination, SH conceded that it may have been only four
four-ounce mixed drinks, that the drinks were about half the size of what she
normally consumes at a bar, and that the drinks were “not very strong drinks.”
When asked how her alcohol consumption at the wedding reception affected
her, SH stated she was “feeling fine” and was “just relaxed.” Other witnesses
testified they observed no signs that SH was intoxicated. At the conclusion of
the reception at approximately 2300 hours, SH left with a few others, including
Appellant, and went to SSgt CC’s parents’ home.
Once at the home, SSgt CC’s sister, MC, provided SH a beer she drank
slowly while she talked to MC. A little later, SH and MC began dancing. Ap-
pellant asked SH to dance with him and she agreed. SH testified that Appel-
lant reached for her hip and placed his hand on her buttocks. SH stepped back
and told Appellant “[she] did not want him to do that, that [she] was married,
and that he just couldn’t do that.” SH testified that Appellant touched her but-
tocks a second time and that, in an attempt to get away from Appellant, she
obtained a second beer and went outside to the deck. SH described herself as
feeling lethargic and groggy at that point.
Appellant joined SH on the deck and engaged her in conversation. SH, not-
ing that Appellant was not “trying anything,” testified that she felt comfortable
with Appellant being there. Three witnesses who saw Appellant and SH talk-
ing testified that SH appeared to be having fun and looked comfortable with
Appellant. No witness observed SH slurring her speech, looking confused, or
appearing non-responsive as she sat on the deck with Appellant.
SH testified that although she did not vividly recall the conversation with
Appellant, the topic of SH’s husband came up again. SH then testified as fol-
lows:
I’m sorry, I couldn’t tell you for sure, but at one point he did lean
over to try and kiss me. I leaned back, and I told him stop, not
to do it. And then he grabbed my hand and placed it over his
crotch. I yanked my hand away. And then I don’t really remem-
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United States v. Contreras, No. ACM 39119
ber much after that. I remember a rocking sensation and I re-
member not knowing what that meant, because like in a dream,
you know, feeling, it’s like it -- it’s not how it feels in normal life,
you know. I don’t really know how to describe it. So everything
was just -- felt like so far away, and so far removed, and just sort
of bewildering. My next memory is that I -- it’s like I snapped
awake, it’s like I come to, and when I do that, I’m in the woods,
and it’s dark, and I’m running, and I remember touching the
trees as I’m running through them to sort of like help guide me,
because it was really dark out.
SH then described arriving back at the house, going inside, and finding a
couch to sleep on. When she woke up the next morning (Sunday), there were
twigs and leaves in her hair, and her feet were covered in sand. She described
asking Appellant what had happened.
He sort of smiled and was looking really smug, and he was like,
“Well, we hooked up.” I said, what do you mean we hooked up?
What did we do? He said, “We did everything.” And I asked him,
what is everything? What does that mean? Did we have sex? And
he said, “Yeah,” and he said that it was my idea, and that it took
place in the kitchen. And then he told me -- and then I said I was
furious, and just so overwhelmed, and was like, well, I do not
remember anything that happened, and I remember him telling
me not to be mad. And I remember him taking little baby, [L3],
and sort of holding him up and like saying it again in a little
baby voice, as if L was saying it, not to be mad. And then he told
me that he wouldn’t tell anybody.
SH returned to her parents’ house and planned to drive back home that
same day. Her parents noticed that she did not look well and advised her not
to drive in her condition. SH told her mother what she remembered from the
night before, what Appellant had told her, and that she did not consent to sex
with Appellant. Her mother told her that she had been raped. SH then drove
home and told her husband what had happened. The next day (Monday), she
went to a hospital for a sexual assault examination. The examination docu-
mented some bruising, but SH stated the bruises were consistent with bruising
as a result of her work in a bakery, except for the bruising on her upper thighs
and arms. SH did not report any soreness or injury. A swab taken from SH’s
cervix contained DNA material that matched the DNA profile of Appellant.
3 L is the infant son of SSgt CC and JC.
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United States v. Contreras, No. ACM 39119
Appellant was convicted of sexually assaulting SH by committing a sexual
act upon her when she was incapable of consenting due to impairment by alco-
hol. Appellant was acquitted of abusive sexual contact of SH by grabbing her
buttocks without her consent.
C. Findings Instructions
The military judge provided the members the standard spillover instruc-
tion that “each offense must stand on its own” and that they were required to
“keep the evidence of each offense separate.” The military judge then in-
structed the members on “exceptions” to this general rule permitted by Mil. R.
Evid. 404(b) and Mil. R. Evid. 413 as to both charged and uncharged sexual
offenses.
In accordance with Mil. R. Evid 404(b), the members were instructed they
could consider evidence that Appellant committed the charged sexual abusive
contact of SH for the limited purpose of its tendency, if any, to prove a plan or
design by Appellant; to prove that Appellant intended to gratify his sexual de-
sires; and to rebut a contention of Appellant that his participation was the re-
sult of mistake. This instruction only applied to whether Appellant committed
the charged sexual assault of SH. A similar Mil. R. Evid. 404(b) instruction
was provided for the two uncharged sexual offenses consisting of evidence that
Appellant may have placed SH’s hand on his crotch and that he may have
grabbed the buttocks of SM.
The military judge also provided two instructions pursuant to Mil. R. Evid.
413—one for evidence of the charged sexual offenses and one for evidence of
the uncharged sexual offenses. The erroneous instruction at issue concerns the
use of evidence of the charged offenses. The military judge gave the instruction
as follows:
Additionally, each of the charged sexual offenses may be consid-
ered for an additional purpose. This rule applies to all of the
specifications of Charge I and Charge II. 4 This evidence may
have no bearing, however, on your deliberations unless you first
determine by a preponderance of the evidence that it is more
likely than not these offenses occurred, even if you are not con-
vinced beyond a reasonable doubt as to these offenses. If you de-
termine by a preponderance of the evidence those other offenses
occurred, you may consider the evidence of those offenses for its
4 As explained above, a legal fiction of a Charge II was created to put the lesser-in-
cluded offense of attempted abusive sexual contact—Specification 4 of the Charge—
before the members.
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United States v. Contreras, No. ACM 39119
bearing on any matter to which it is relevant only in relation to
the remaining charged sexual offenses.
You may consider the evidence of such other sexual offenses for
their tendency, if any, to show the accused’s propensity to engage
in the remaining sexual offenses. You may not, however, convict
the accused merely because you believe that he committed these
other offenses, or merely because you believe he has a propensity
to engage in offenses of sexual assault. The prosecution’s burden
of proof to establish the accused’s guilt beyond a reasonable
doubt remains as to each and every element of each offense
charged.
A similar propensity instruction was provided for the two uncharged sexual
offenses (that Appellant may have placed SH’s hand on his crotch and that he
may have grabbed the buttocks of SM).
II. DISCUSSION
A. Mil. R. Evid. 413
The meaning and scope of Mil. R. Evid. 413 is a question of law that is re-
viewed de novo. Hills, 75 M.J. at 354 (citing LRM v. Kastenberg, 72 M.J. 364,
369 (C.A.A.F. 2013). Instructional errors are also reviewed de novo. Id. at 357
(citing United States v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016)).
Mil. R. Evid. 413(a) provides that, in a court-martial where the accused is
charged with a sexual offense, evidence that the accused committed other sex-
ual offenses may be admitted and considered on “any matter to which it is rel-
evant.” This includes the admission of evidence of sexual assaults to prove the
accused has a propensity to commit sexual assault. United States v. James, 63
M.J. 217, 220 (C.A.A.F. 2006).
However, in Hills, the United States Court of Appeals for the Armed Forces
(CAAF) held that evidence of the accused’s commission of a sexual assault may
not be used to prove propensity if the alleged sexual assault is charged in the
same court-martial and the accused has pleaded not guilty to it. Hills, 75 M.J.
at 356. The CAAF further held that the instructions accompanying the admis-
sion of evidence of charged offenses for Mil. R. Evid. 413 purposes “violated
Appellant’s presumption of innocence and right to have all findings made
clearly beyond a reasonable doubt, resulting in constitutional error.” Id. Be-
cause “there are constitutional dimensions at play,” prejudice for such an error
must be tested for harmlessness beyond a reasonable doubt. Id. at 357 (cita-
tions omitted). “An error is not harmless beyond a reasonable doubt when
‘there is a reasonable possibility that the [error] complained of might have con-
tributed to the conviction.’” Id. (Citations omitted). “To say that an error did
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United States v. Contreras, No. ACM 39119
not contribute to the verdict is, rather, to find that error unimportant in rela-
tion to everything else the jury considered on the issue in question, as revealed
in the record.” United States v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007) (in-
ternal quotation marks omitted) (citation omitted).
In United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), the CAAF clarified
that under Hills the use of evidence of charged conduct as Mil. R. Evid. 413
propensity evidence for other charged conduct in the same case is error, re-
gardless of the forum, the number of victims, or whether the events are con-
nected. Id. at 222. The CAAF reiterated, “Whether considered by members or
a military judge, evidence of a charged and contested offense, of which an ac-
cused is presumed innocent, cannot be used as propensity evidence in support
of a companion charged offense.” Id. Where such error exists, the Government
must prove there was no reasonable possibility that the error contributed to
the verdict. Id.B. Analysis
The Government contends the error in Appellant’s case is harmless beyond
a reasonable doubt for two reasons. First, the Government argues “propensity”
is a red herring because this case turns on capacity, not proclivity. Second, the
Government argues that, even if propensity could factor into the analysis, the
acquittal for five of the six specifications demonstrates the members’ “disinter-
est” and “indifference” to the propensity evidence and rebuts the notion that
the members “used propensity evidence to fill the gaps of reasonable doubt.”
We disagree.
In order for Appellant to be convicted of sexual assault of SH, the Govern-
ment had to prove beyond a reasonable doubt that Appellant (1) committed a
sexual act upon SH, and that (2) he did so when SH was incapable of consent-
ing to the sexual act due to impairment by alcohol and that condition was
known or reasonably should have been known by Appellant. Military Judges’
Benchbook, Dept. of the Army Pamphlet 27-9 at 573–74 (10 Sep. 2014). The
evidence that Appellant committed a sexual act upon SH is direct and over-
whelming. Appellant told SH that they had engaged in sexual intercourse, and
a DNA sample matching Appellant was collected from SH’s cervix. In contrast,
the evidence that SH was incapable of consenting due to impairment by alcohol
is exclusively circumstantial. The Government argued that SH’s reported leth-
argy on the deck, her resistance to Appellant’s initial overtures, her memory
loss, and her physical condition the next morning all supported the inferences
that SH was incapable of consenting at the time of the sexual act and that
Appellant either knew or should have known that. While this evidence is le-
gally sufficient, it is hardly overwhelming. Having assessed the strength of the
evidence, we now consider whether there was a reasonable possibility that the
propensity instruction contributed to the verdict.
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United States v. Contreras, No. ACM 39119
The trial counsel paraphrased the propensity instruction twice, argued its
direct application to two specifications, and more generally argued the paral-
lelism of Appellant’s actions involving SM and SH, that is, his propensity to
commit all the charged offenses. Additionally, trial counsel used the following
metaphor to describe Appellant as a person who engages in sexual conduct in
spite of demonstrated lack of consent or incapability to consent:
[Appellant] runs red lights. As he’s driving along towards an in-
tersection, when he sees the light turn yellow, he doesn’t slow
down, he doesn’t hit the brakes, he just keeps driving along. And
as that light turns red, he blows straight through it. And in Au-
gust of 2014, at the wedding of [SSgt CC and JC], [Appellant]
blew through red light, after red light, after red light, after red
light.
Because that’s what he does. He drives toward the intersection
trying to get what he wants, and completely disregards it, and
the judge gave you the instruction about that as well.
Appellant’s propensity continued as a major theme throughout the closing ar-
gument by trial counsel.
The Government now argues the acquittal for five of six specifications
demonstrates that the members disregarded improper propensity evidence and
that such evidence did not contribute to the conviction. We do not share the
Government’s confidence. As the CAAF stated in United States v. Guardado:
It simply does not follow that because an individual was acquit-
ted of a specification that evidence of that specification was not
used as improper propensity evidence and therefore had no ef-
fect on the verdict. It is conceivable that the panel found that
Appellant committed the other three charged offenses by a pre-
ponderance of the evidence but not beyond a reasonable doubt.
While not persuaded of Appellant’s guilt to the point of convict-
ing him, members could still have believed that it was more
likely than not that Appellant sexually assaulted SW and CH
and used that evidence for propensity purposes, thus violating
Appellant’s presumption of innocence.
77 M.J. 90, 2017 CAAF LEXIS 1142, at *9 (C.A.A.F. 2017). While not per-
suaded of Appellant’s guilt beyond a reasonable doubt for five of the specifica-
tions, the members could still have believed that it was more likely than not
that Appellant sexually abused and assaulted SM and sexually abused SH and
then used that evidence for propensity purposes to convict for one specification.
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United States v. Contreras, No. ACM 39119
The Government further argues that evidence of Appellant’s propensity
had no bearing on whether SH was in fact incapable of consenting due to im-
pairment by alcohol or whether Appellant knew or should have known of her
condition and, therefore, could not have contributed to the verdict. While it
might be true that evidence of Appellant’s propensity to commit sexual assault,
in and of itself, does not directly or even circumstantially tend to prove the
victim’s incapability to consent or Appellant’s knowledge of such a condition,
the Government’s argument overlooks how the propensity evidence may have
been used to bolster other evidence that does prove such incapability or
knowledge. Indeed, this is precisely what trial counsel did. He used the pro-
pensity evidence of Appellant’s actions involving both SM and SH in a meta-
phor to bolster other evidence that Appellant engaged in a sexual act with SH
when she was incapable of consenting because “that’s what he does.” The trial
counsel essentially used the erroneous propensity instruction to “thicken other
proofs that do demonstrate thinly.” 5 In such a case, we cannot be confident
there is “no reasonable possibility” that the erroneous instruction contributed
to the verdict. Hukill, 76 M.J. at 222. Thus, we cannot affirm Appellant’s con-
viction.
III. CONCLUSION
The finding of guilt and the sentence are SET ASIDE. A rehearing is au-
thorized. Article 66, UCMJ, 10 U.S.C. § 866. 6
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
5 WILLIAM SHAKESPEARE, THE TRAGEDY OF OTHELLO, THE MOOR OF VENICE act 3, sc. 3.
6 The court-martial order (CMO) erroneously reflects a finding of not guilty for the
charge in violation of Article 120, UCMJ. As discussed above, the CMO also errone-
ously characterizes the military judge’s decision on a Rule for Courts-Martial (R.C.M.)
917 motion as a dismissal of Specification 4 of the Charge instead of a finding of not
guilty of the greater offense. Further, instead of reflecting that Appellant was found
not guilty of Specification 4 of the Charge, the CMO perpetuates the legal fiction of
Charge II. We order promulgation of a corrected CMO to accurately reflect the findings
for the arraigned charges. The finding for Specification 4 of the Charge should read
“NG” to reflect that the military judge and members found Appellant not guilty of the
greater and lesser offenses, respectively. All references to Charge II, its plea, and its
finding are ordered deleted.
11