United States v. Rambharose

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38769 (rem)
________________________
UNITED STATES
Appellee
v.
Yogendra RAMBHAROSE
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
On Remand from
the United States Court of Appeals for the Armed Forces
Decided 13 July 2018
________________________
Military Judge: Tiffany M. Wagner (arraignment); Lynn Watkins.
Approved sentence: Bad-conduct discharge, confinement for 15 months,
and reduction to E-1. Sentence adjudged 21 October 2014 by GCM con-
vened at Joint Base Charleston, South Carolina.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mat-
thew L. Tusing, USAF; Mary Ellen Payne, Esquire.
Before HARDING, KIEFER, and SPERANZA, Appellate Military Judg-
es.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge HARDING joined. Judge KIEFER filed a separate dissenting
opinion.
________________________
This is an unpublished opinion and, as such, does not serve as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. Rambharose, No. ACM 38769 (rem)
SPERANZA, Judge:
Appellant was charged with five specifications of abusive sexual contact
by bodily harm in violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920, for allegedly touching JF on divers occasions, touch-
ing Senior Airman (SrA) BN, touching SrA HK, and touching SrA TW on two
separate occasions without their consent and with an intent to arouse or grat-
ify his sexual desires. Appellant pleaded guilty to the lesser-included offense
of assault consummated by a battery for unlawfully touching JF on one occa-
sion, touching SrA BN, and touching SrA TW on one occasion, in violation of
Article 128, UCMJ, 10 U.S.C. § 928. The military judge, sitting as a general
court-martial, convicted Appellant of committing the greater offense of abu-
sive sexual contact upon JF on divers occasions and upon SrA HK with excep-
tions and substitutions. Appellant was acquitted of the remaining specifica-
tion involving SrA TW and the greater offenses involving SrA BN and SrA
TW. The military judge sentenced Appellant to a bad-conduct discharge, 18
months of confinement, and reduction to the grade of E-1. The convening au-
thority approved only 15 months of confinement but otherwise approved the
adjudged sentence.
I. BACKGROUND
On initial appeal, Appellant contended that his convictions for offenses re-
lated to JF and SrA HK were legally and factually insufficient; the testimony
of a special agent amounted to impermissible, prejudicial “human lie detec-
tor” evidence; and the military judge erroneously admitted improper sentenc-
ing evidence. This court also reviewed whether the military judge erred by
using statements from Appellant’s guilty plea inquiry to determine the pro-
priety of a false exculpatory statement argument in findings and whether the
military judge erred by considering charged conduct as possible propensity
evidence under Military Rule of Evidence (Mil. R. Evid.) 413 in light of Unit-
ed States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).
In United States v. Rambharose, No. ACM 38769, 2016 CCA LEXIS 756
(A.F. Ct. Crim. App. 15 Dec. 2016) (unpub. op.) (Rambharose I), we agreed
that Appellant’s conviction of abusive sexual contact upon SrA HK was factu-
ally insufficient. Thus, this court dismissed that specification with prejudice
and reassessed Appellant’s sentence to a bad-conduct discharge, confinement
for 13 months, and reduction to E-1. Finding no other errors that materially
prejudiced Appellant, we affirmed the remaining findings.
However, the United States Court of Appeals for the Armed Forces
(CAAF) granted Appellant’s petition and reviewed the following issue:
“WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY
GRANTING THE GOVERNMENT'S MOTION TO USE EVIDENCE OF
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United States v. Rambharose, No. ACM 38769 (rem)
CHARGED SEXUAL MISCONDUCT UNDER M.R.E. 413 TO SHOW PRO-
PENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See
UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).” United States v.
Rambharose, 76 M.J. 262 (C.A.A.F. 2017). The CAAF summarily disposed of
this issue, setting aside our opinion and returning Appellant’s record of trial
“to the Judge Advocate General of the Air Force for remand to the Court of
Criminal Appeals for a new review under Article 66, Uniform Code of Mili-
tary Justice, 10 U.S.C. § 866 (2012), to evaluate the case in light of United
States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).” United States v. Rambharose,
76 M.J. 441 (C.A.A.F. 2017) (Rambharose II).
II. DISCUSSION
With the exception of the legal and factual sufficiency of the evidence
supporting Appellant’s conviction for abusive sexual contact upon JF on di-
vers occasions, which we do not decide, we reach the same findings we previ-
ously reached with respect to matters raised outside the issue granted by the
CAAF and remanded for our consideration. See Rambharose I, 2016 CCA
LEXIS 756; Rambharose, 76 M.J. 262; Rambharose II, 76 M.J. 441. Conse-
quently, we only need to evaluate Appellant’s conviction of abusive sexual
contact upon JF on divers occasions in light of Hukill and subsequent prece-
dent. The current legal landscape compels us to set aside this conviction.
Appellant pleaded guilty to the lesser-included offense of assaulting JF by
grabbing her breast while at work on a single occasion. The Government pro-
ceeded to findings on the greater offense of abusive sexual contact on divers
occasions. JF testified about the incident to which Appellant pleaded guilty
and one other time Appellant allegedly grabbed her breast in the workplace.
The Government also presented Appellant’s statements to investigators in
which Appellant admitted to intentionally touching JF’s breast on one occa-
sion—the one to which he pleaded guilty. During his providence inquiry with
the military judge on this lesser-included offense, Appellant’s description of
the offense was largely consistent with his pretrial statements to law en-
forcement. Appellant claimed that when he reached for the computer mouse
on JF’s desk, JF said, “I thought you were going to grope me.” Appellant re-
sponded “how, like this” and touched her breast.
In order to convict Appellant of abusive sexual contact upon JF on divers
occasions, the Government needed to prove beyond a reasonable doubt that
Appellant touched JF’s breast on the additional occasion and that on both oc-
casions Appellant intended to gratify his sexual desire. In addition to provid-
ing evidence to prove the specification related to JF, the Government provid-
ed evidence in support of the other abusive sexual contact allegations involv-
ing SrA BN, SrA HK, and SrA TW. The military judge permitted the Gov-
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United States v. Rambharose, No. ACM 38769 (rem)
ernment to use the evidence of each charged sexual offense pursuant to Mil.
R. Evid. 413 to demonstrate Appellant’s propensity to commit the other
charged sexual offenses. This was prejudicial, constitutional error.
The use of charged-conduct evidence as Mil. R. Evid. 413 propensity evi-
dence for other charged offenses creates constitutional concerns regardless of
the forum. Hukill, 76 M.J. at 222. As such, the erroneous use of evidence in
this case must be tested for prejudice under the standard of harmless beyond
a reasonable doubt. Id. The error is harmless beyond a reasonable doubt
when the error did not contribute to the appellant’s conviction or sentence.
Hills, 75 M.J. at 357. An error is not harmless beyond a reasonable doubt
when there is a reasonable possibility that the error might have contributed
to the conviction. Id.
In testing Appellant’s case for constitutional error in light of Hukill, we
considered whether the Government’s evidence, however credible, constituted
evidence so overwhelming that it removed any reasonable possibility that the
error contributed to Appellant’s conviction. We find that the evidence of Ap-
pellant’s abusive sexual contact upon JF on divers occasions was not so over-
whelming and did not remove any such possibility. While our dissenting col-
league reached the opposite conclusion as to a single incident, we cannot ig-
nore the military judge’s acknowledgement that she would consider evidence
of the charged offenses in a manner later prohibited by Hukill. Even though
we find JF credible and the circumstantial evidence of Appellant’s intent
strong, the evidence of Appellant’s specific intent on the two occasions he
touched JF’s breast was not overwhelming. Appellant’s specific intent had to
be proven by circumstantial evidence, and we are convinced that the military
judge considered all circumstances—to include propensity evidence related to
the charged offenses as she said she would—to discern Appellant’s intent and
find him guilty of the abusive sexual contact. Moreover, JF’s testimony re-
garding the additional incident establishing “on divers occasions” lacked spe-
cific evidence, such as a pretrial admission by Appellant that the additional
incident occurred. Instead, the evidence of the other charged offenses provid-
ed independent, additional evidence of Appellant’s intent and ready-made
rebuttal to Appellant’s argument that he was joking when he grabbed JF’s
breast one time. As a result, we cannot be confident there is “no reasonable
possibility” that the propensity evidence admitted under Mil. R. Evid. 413
contributed to the verdict. Hukill, 76 M.J. at 222.
In light of our conclusion that the error is not harmless beyond a reasona-
ble doubt, we set aside Appellant’s conviction for the greater offense of abu-
sive sexual contact upon JF on divers occasions, as charged in Specification 1.
Consistent with Appellant’s guilty plea, the evidence supports a finding of
guilty of the lesser-included offense of assault consummated by a battery of
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United States v. Rambharose, No. ACM 38769 (rem)
JF on one occasion. Therefore, this court affirms only so much of the finding
as includes the lesser-included offense of assault consummated by a battery
of JF on the one occasion to which Appellant pleaded guilty. See United States
v. Conliffe, 67 M.J. 127, 133 (C.A.A.F. 2009); cf. United States v. Armstrong,
___ M.J. ___, No. 17-0556/AR (C.A.A.F. 28 Jun. 2018). Our conclusions as to
the providency of Appellant’s guilty pleas to the lesser-included offenses of
assault consummated by a battery involving BN and TW and the factual suf-
ficiency of Appellant’s conviction of abusive sexual contact upon SrA HK re-
main unchanged. Appellant’s pleas to the offenses involving BN and TW were
provident. The evidence of abusive sexual contact upon SrA HK was factually
insufficient and thus the finding of guilty as to Specification 3 is set aside and
the specification is dismissed with prejudice. A rehearing on the set-aside
finding of the greater offense of abusive sexual contact upon JF on divers oc-
casions is authorized.
III. CONCLUSION
The finding of guilty as to the lesser-included offense of assault consum-
mated by a battery of JF except the words “on divers occasions” for Specifica-
tion 1 of the Charge is AFFIRMED. The findings of guilty as to the lesser-
included offenses of Specifications 2 and 4 are AFFIRMED. The finding of
guilty to the lesser-included offense of assault consummated by a battery, in
violation of Article 128, UCMJ, for the Charge is AFFIRMED.
The finding of guilty for the greater offense of abusive sexual contact upon
JF on divers occasions as charged in Specification 1 is SET ASIDE. The find-
ing of guilty as to Specification 3 is SET ASIDE and the specification is
DISMISSED WITH PREJUDICE. The finding of guilty to the Charge un-
der Article 120, UCMJ, is SET ASIDE.
A rehearing of the set-aside findings for Specification 1 and the Charge is
authorized.
The sentence is SET ASIDE. A rehearing on the sentence is authorized.
Article 66(c), UCMJ, 10 U.S.C. § 866(c).
KIEFER, Judge (dissenting):
I respectfully dissent from my colleagues’ opinion setting aside the finding
of guilty to Specification 1 of abusive sexual contact on divers occasions under
Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. I find
that full evaluation of the Government’s case, free from any consideration of
propensity issues, yields overwhelming evidence that Appellant acted with
the intent to gratify his sexual desire on one of the two alleged occasions. Be-
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United States v. Rambharose, No. ACM 38769 (rem)
cause of the strength of the Government’s case, I am convinced there is no
reasonable possibility the error permitting consideration of other charged of-
fenses under Military Rule of Evidence (Mil. R. Evid.) 413 might have con-
tributed to the conviction. Accordingly, I would affirm the finding of guilty to
abusive sexual contact of JF on the one occasion to which Appellant pleaded
guilty to the lesser-included offense of assault consummated by a battery.
The United States Court of Appeals for the Armed Forces (CAAF) remanded
this case to us to address whether the holding in United States v. Hukill, 76
M.J. 219 (C.A.A.F. 2017), requires reversal of Appellant’s conviction for abu-
sive sexual contact under Specification 1. In this specification, Appellant was
charged with wrongfully touching a female co-worker’s breast with the intent
to gratify his sexual desire on two separate occasions under Article 120,
UCMJ. Appellant pleaded guilty to the lesser-included offense of assault con-
summated by a battery on a single occasion under Article 128, UCMJ, and
not guilty to the other alleged incident. Appellant asserts that the military
judge’s decision to allow the parties to argue Mil. R. Evid. 413 constituted er-
ror that was not harmless beyond a reasonable doubt.
The factual record for the greater offense of abusive sexual contact con-
sisted of JF’s sworn in-court testimony, Appellant’s videotaped interview with
the Air Force Office of Special Investigations (AFOSI), Appellant’s sworn
written statement to investigators, and Appellant’s statements as part of the
providence inquiry on the lesser-included offense.
At trial, JF testified that she and Appellant were co-workers in the same
office. One day during work, Appellant came to her desk to help with a work-
related issue. While there, he reached down and cupped her breast. In re-
sponse, she moved his hand away. JF further testified that on a subsequent
occasion, Appellant came to her desk and again grabbed her breast. This time
she moved his hand away and bent his fingers backward.
During his AFOSI interview, Appellant initially denied touching anyone
or engaging in any wrongdoing. As the interview progressed and additional
facts were presented, Appellant admitted that he had inappropriately
touched multiple women, including JF. With respect to JF, Appellant stated
that he went to her desk to help with a work issue on her computer and when
he reached for her mouse, JF said she thought he was going to “grope” her.
Appellant admitted that he then grabbed her breast in response to this
statement. Similarly, in his written statement to AFOSI, Appellant admitted
he grabbed JF’s breast on one occasion and characterized his conduct as
wrong and inappropriate. At trial, Appellant pleaded guilty to assault con-
summated by a battery under Article 128, UCMJ, for wrongfully touching
JF’s breast on one occasion in the workplace. During the plea inquiry, Appel-
lant admitted under oath that he intentionally grabbed JF’s breast without
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United States v. Rambharose, No. ACM 38769 (rem)
her consent in response to her allegedly commenting that she thought he was
going to “grope” her. Appellant said he thought the incident was funny at the
time. JF disagreed with this characterization and testified that Appellant’s
touching of her breast was not a joke.
Prior to findings argument, trial counsel requested the military judge
consider evidence of other charged offenses for propensity purposes under
Mil. R. Evid. 413. Defense counsel did not object, and the military judge
agreed to allow the parties to argue Mil. R. Evid. 413. The military judge did
not specify what evidence she might consider under this rule or for which of-
fenses. She also stated that she understood the concept of spillover, how to
apply that instruction with respect to the various charged offenses, and how
each offense stands on its own. The military judge ultimately found Appellant
guilty of the charged offense of abusive sexual contact on divers occasions
against JF. I agree with my colleagues’ conclusion, as we found in United
States v. Rambharose, No. ACM 38769, 2016 CCA LEXIS 756 (A.F. Ct. Crim.
App. 15 Dec. 2016) (unpub. op.) (Rambharose I), that the military judge’s de-
cision to allow the parties to argue evidence of other charged offenses for pro-
pensity purposes was plain error. A military judge’s decision to admit evi-
dence is reviewed for an abuse of discretion. United States v. Solomon, 72
M.J. 176, 179 (C.A.A.F. 2013). “The meaning and scope of M.R.E. 413 is a
question of law that we review de novo.” United States v. Hills, 75 M.J. 350,
354 (C.A.A.F. 2016) (citation omitted).
In Hills, the CAAF analyzed the use of charged offenses for propensity
purposes in the context of a members’ case, which included Mil. R. Evid. 413
instructions. The court noted that the instructions “provided the members
with directly contradictory statements about the bearing that one charged
offense could have on another” and “seriously muddled” the presumption of
innocence. Hills, 75 M.J. at 357. “It is antithetical to the presumption of inno-
cence to suggest that conduct of which an accused is presumed innocent may
be used to show propensity to have committed other conduct of which he is
presumed innocent.” Id. at 356. The CAAF held that “‘constitutional dimen-
sions are at play.’” Id. (quoting United States v. Wolford, 62 M.J. 418, 420
(C.A.A.F. 2006)). Accordingly, on the issue of prejudice, the CAAF applied a
harmless beyond a reasonable doubt standard finding an “error is not harm-
less beyond a reasonable doubt when ‘there is a reasonable possibility that
the [error] complained of might have contributed to the conviction.’” Id. (quot-
ing United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)).
In Rambharose I, we held that the military judge erred by agreeing to al-
low the parties to argue evidence of charged offenses for propensity purposes.
See 2016 CCA LEXIS 756, at *29. On the issue of prejudice, we found this
case distinguishable from Hills given the number of victims, the separateness
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United States v. Rambharose, No. ACM 38769 (rem)
of the offenses, and the lack of any instructional issues in this judge-alone
forum. Id. at *30. We initially applied a plain error analysis and found that
the error did not materially prejudice a substantial right of Appellant. Id. We
also, however, evaluated the more stringent harmless beyond a reasonable
doubt standard and again found that the Government’s evidence was strong
enough to meet that test. Id. at *33.
Subsequent to Rambharose I, in United States v. Hukill, the CAAF fur-
ther clarified its Hills ruling and held that “the use of evidence of charged
conduct as Mil. R. Evid. 413 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.” Hukill, 76 M.J. at 222. “The same consti-
tutional concerns exist if, in a military judge-alone trial, a military judge uses
charged conduct as propensity evidence under M.R.E. 413.” Id. In Hukill, the
CAAF went on to apply the harmless beyond a reasonable doubt standard
outlined in Hills. Id. Thus, despite the fact that Appellant’s case involved
multiple victims, included allegations over a period of years all on distinct
occasions, and was tried in a judge-alone forum, the military judge’s agree-
ment to allow the parties to argue evidence of other charged offenses under
Mil. R. Evid. 413 was plain error which must be tested for prejudice under a
harmless beyond a reasonable doubt standard.
In United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), the CAAF con-
sidered whether acquittals on some specifications provided proof that there
was no impermissible use of evidence of other charged offenses for propensity
purposes and held, “[i]t simply does not follow that because an individual was
acquitted of a specification that evidence of that specification was not used as
improper propensity evidence and therefore had no effect on the verdict.”
Guardado, 77 M.J. at 94. The CAAF further noted, however, that even with
an error in considering other charged offenses for propensity purposes,
“[t]here are circumstances 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 members’ ultimate determina-
tion.’” Id. (quoting Hills, 75 M.J. at 358).
The CAAF has also held that the prohibition concerning use of other
charged offenses for propensity purposes is limited to a “charged and contest-
ed offense, of which an accused is presumed innocent.” Hukill, 76 M.J. at 222
(emphasis added). The CAAF’s holdings in Hills, Hukill, and Guardado do
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United States v. Rambharose, No. ACM 38769 (rem)
not limit a trial court’s consideration of offenses for which an accused has
been convicted for propensity purposes. 1
In this case, Appellant pleaded guilty to the lesser-included offense of as-
sault consummated by a battery on one occasion against JF. The military
judge conducted an inquiry pursuant to United States v. Care, 40 C.M.R.
247(C.M.A. 1969), determined the plea was knowing and voluntary, and ac-
cepted Appellant’s guilty plea to the lesser-included offense. “A guilty plea to
a lesser-included offense may be used to establish facts and elements common
to both the greater and lesser offense within the same specification.” United
States v. Grijalva, 55 M.J. 223, 227 (C.A.A.F. 2001) (emphasis added). Thus,
upon acceptance of Appellant’s guilty plea to the lesser-included offense, he
no longer maintained a presumption of innocence for an intentional, unwant-
ed touching of JF’s breast on one occasion. He did maintain a presumption of
innocence for the element of intent to gratify his sexual desire under Article
120, UCMJ, for the first alleged incident as well as all elements of the second
alleged touching. Recognizing the presumptions of innocence and considering
the facts and circumstances presented at trial, contrary to the majority, I find
the evidence of Appellant’s intent to gratify his sexual desire overwhelming,
and I am convinced beyond a reasonable doubt that there is no reasonable
possibility the error complained of might have contributed to the conviction
on one occasion. See Hills, 75 M.J. at 357.
On the issue of intent, JF testified to the part of the body Appellant
touched (her breast) and the manner in which he touched it (“cupped it”).
This was not a slap on the shoulder or a pat on the arm. The touching was of
an intimate and sexual part of the body, and any fact-finder could readily in-
fer from this and the nature of the touching that Appellant had the intent to
gratify his sexual desire.
JF also recounted the surrounding circumstances of the incident, which
contradicted Appellant’s argument that the assault was a joke. JF and Appel-
lant were at work. Appellant went to JF’s desk to help with a work issue.
There was no previous sexual banter between the two, and nothing was hap-
pening in the office to suggest a joking environment. There was no evidence
presented to indicate that JF was mistaken in her account of the interaction,
and the totality of her testimony demonstrated that Appellant’s touching of
her breast was not a joke.
1This principle is subject to application of Mil. R. Evid. 413 and a Mil. R. Evid. 403
balancing test.
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United States v. Rambharose, No. ACM 38769 (rem)
During his AFOSI interview, after initially denying any wrongdoing, Ap-
pellant admitted the basic facts that JF offered at trial, including that the
incident occurred in a professional work setting. In his sworn written state-
ment, Appellant again confirmed the basic facts of a work-related interaction.
He agreed that he intentionally touched JF’s breast without her consent, and
he characterized his actions as inappropriate. Thus, even Appellant’s version
of events undermined his claim that the inappropriate touching was a joke.
Appellant’s additional statements concerning the incident provide further
insight into his true state of mind. As noted in Rambharose I, Appellant used
the word “grope” to describe the alleged statement JF made just prior to him
intentionally touching her breast. Common use of the term “grope,” in refer-
ence to touching another person, carries a clear sexual connotation. Thus,
whether JF actually said “grope” and Appellant responded by grabbing her
breast or Appellant chose this word to explain the interaction, Appellant’s
use of “grope” demonstrates his sexual intent when he touched JF.
We, like the military judge, also had the opportunity to directly assess
Appellant’s demeanor and credibility from his videotaped AFOSI interview.
This interview showed a person who initially denied wrongdoing, failed to
provide key details, sought to minimize his culpability, and ultimately admit-
ted the wrongfulness of his actions. There were also several inconsistencies
within the interview and between the interview, Appellant’s written state-
ment, and his Care inquiry. 2 In evaluating the strength of the Government’s
case, we are permitted to consider Appellant’s motive to fabricate or minimize
to protect his military career, which stood in stark contrast to the lack of any
motive for JF to misrepresent the circumstances of the incident. We may also
consider whether Appellant’s claim is logical and supported by other evi-
dence. In this case, the other evidence demonstrates that Appellant’s version
of events undermines his position, and ultimately, his inconsistencies and
efforts to minimize his conduct indicate a lack of credibility that bears direct-
ly on the contested issue of intent to gratify his sexual desire, completely in-
dependent of any reliance on propensity evidence.
The standards set forth in Hills, Hukill, and Guardado permit lower
courts to evaluate the strength of the evidence presented at trial to determine
whether it is overwhelming on a contested issue. If this were not the case, the
CAAF would simply have ruled that any error concerning the use of evidence
2I am not commenting here on the substance of the providence inquiry but instead
on the fact that Appellant initially denied any wrongdoing to investigators and ulti-
mately admitted to an assault consummated by a battery at trial.
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United States v. Rambharose, No. ACM 38769 (rem)
of other charged offenses for propensity purposes must result in setting aside
any associated finding of guilty. No opinion of our superior court holds this,
and a detailed factual analysis is essential to full consideration of these mat-
ters. Further, there is no case that requires a confession or admission of a
contested fact or any specific number of witnesses or types of evidence even
when evaluating the prejudicial effect of an error of constitutional dimension.
Here, the Government presented credible, consistent, sworn testimony
from a first-hand witness, numerous corroborating facts from Appellant’s var-
ious statements, a plea of guilty to all but one of the elements of the charged
offense, and compelling evidence of intent to gratify sexual desire derived
from the circumstances of the event, the part of the body touched, the nature
of the touching, the lack of evidence supporting Appellant’s contention that
everything was a joke, and Appellant’s credibility issues. The evidence that
Appellant acted with the intent to gratify his sexual desire was overwhelming
to the point that I am convinced there is no reasonable possibility the error
permitting consideration of other charged offenses under Mil. R. Evid. 413
might have contributed to the conviction.
In evaluating the evidence surrounding the second alleged touching inci-
dent, the Government’s case is not as strong. Here Appellant pleaded not
guilty and did not admit the basic facts of an intentional touching of JF’s
breast without her consent or to any of the surrounding circumstances. Thus,
all elements were fully contested at trial. While I still find JF’s testimony
consistent and credible, it is far more difficult to find the Government’s evi-
dence “overwhelming” on this second alleged incident. Consequently, I cannot
say that the finding of guilty on “divers occasions” was free from any “reason-
able possibility that the [error] complained of might have contributed to the
conviction.’” Hills at 357 (alteration in original) (quoting Moran, 65 M.J. at
187). Accordingly, under Specification 1, I would affirm the finding of guilty
to abusive sexual contact of JF on the single occasion to which Appellant
pleaded guilty to the lesser-included offense of assault consummated by a
battery.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
11