U NITED S TATES N AVY –M ARINE C ORPS C OURT OF C RIMINAL A PPEALS _________________________ No. 201500024 _________________________ UNITED STATES OF AMERICA Appellee v. MARK A. BERGER Hospital Corpsman Third Class (E-4), U.S. Navy Appellant _________________________ Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Commander Robert P. Monahan, JAGC, USN. Convening Authority: Commandant, Naval District Washington, Washington Navy Yard, Washington, DC. Staff Judge Advocate’s Recommendation: Lieutenant Commander Justin D. Pilling, JAGC, USN. For Appellant: Mr. David P. Sheldon, Esq.; Lieutenant R. Andrew Austria, JAGC, USN. For Appellee: Major Kelli A. O’Neil, USMC; Major Cory A. Carver, USMC. _________________________ Decided 3 May 2018 _________________________ Before GLASER-ALLEN, FULTON, and SAYEGH, Appellate Military Judges _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2. _________________________ SAYEGH, Judge: At a general court-martial a military judge convicted the appellant, pursuant to his plea, of violating a lawful general order by wrongfully possessing a synthetic cannabinoid, in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892. At the same court-martial a United States v. Berger, No. 201500024 panel of members with enlisted representation convicted the appellant, contrary to his pleas, of two specifications of rape, one specification of aggravated sexual contact, two specifications of abusive sexual contact, one specification of assault consummated by a battery, and one specification of sexual assault in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920 and 928.1 In May 2016, we affirmed the findings and sentence. United States v. Berger, No. 201500024, 2016 CCA LEXIS 322, unpublished op. (N-M. Ct. Crim. App. 26 May 2016). The Court of Appeals for the Armed Forces (CAAF) set aside our decision and remanded the case for reconsideration in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). United States v. Berger, 76 M.J. 128 (C.A.A.F. 2017).2 In his first assignment of error (AOE), the appellant contends the military judge erred by granting the government’s motion to use evidence of charged sexual misconduct under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 413, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), to show propensity to commit other charged sexual misconduct. The appellant also raises a supplemental AOE alleging that the military judge erred by instructing the members the appellant must be found guilty if the members are firmly convinced of the crime charged.3 We specified a third issue:4 WHETHER THE EVIDENCE IN THIS CASE RENDERS THE MILITARY JUDGE’S INSTRUCTION ON THE PROPER USE OF PROPENSITY EVIDENCE UNDER MILITARY RULE OF EVIDENCE 413, HARMLESS BEYOND A REASONABLE DOUBT, IN LIGHT OF UNITED STATES V. HILLS, 75 M.J. 1 Prior to sentencing the military judge merged the following specifications in Additional Charge II: Specification 8 (sexual assault) with Specification 7 (rape); and Specification 10 (abusive sexual contact) with Specification 9 (aggravated sexual contact.) Record at 1788. 2 The CAAF granted review of (1) whether the military judge abused his ...
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