This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
          Krishil S. PRASAD, Airman First Class
              United States Air Force, Appellant
                          No. 19-0412
                      Crim. App. No. 39003
         Argued March 16, 2020—Decided May 19, 2020
       Military Judges: Christina M. Jimenez (rehearing)
                    and Shelly W. Schools
   For Appellant: David P. Sheldon, Esq. (argued); Major Mark
   J. Schwartz and Tami L. Mitchell, Esq. (on brief).
   For Appellee: Captain Jessica L. Delaney (argued); Lieuten-
   ant Colonel Brian C. Mason and Mary Ellen Payne, Esq. (on
   brief); Lieutenant Colonel G. Matt Osborn.
   Judge OHLSON delivered the opinion of the Court, in
   which Judges RYAN and SPARKS, joined. Chief Judge
   STUCKY filed a separate dissenting opinion in which
   Judge MAGGS joined.
                    _______________

   Judge OHLSON delivered the opinion of the Court.
   A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of two
specifications of sexual assault and one specification of abu-
sive sexual contact in violation of Article 120, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 920 (2012). The con-
vening authority approved the adjudged sentence of a dishon-
orable discharge, forfeiture of all pay and allowances, confine-
ment for 30 months, and a reduction to the grade of E-1.
    Appellant was tried before our recent decisions held that
is it impermissible to use Military Rule of Evidence (M.R.E.)
413 propensity evidence “as a mechanism for admitting evi-
dence of charged conduct to which an accused has pleaded not
guilty in order to show a propensity to commit the very same
charged conduct.” United States v. Hills, 

, 354
(C.A.A.F. 2016); see also United States v. Hukill, 

,
             United States v. Prasad, No. 19-0412/AF
                      Opinion of the Court

222 (C.A.A.F. 2017).1 However, the Hills and Hukill decisions
were issued by the time Appellant's case was reviewed by the
United States Air Force Court of Criminal Appeals. Citing our
holding in those cases, the lower court held that the military
judge erred in Appellant’s case by permitting evidence of the
charged sexual offenses to be used as M.R.E. 413 propensity
evidence and by instructing the members accordingly.2
United States v. Prasad, No. ACM 39003, 2017 CCA LEXIS
610, at *17, 

, at *6 (A.F. Ct. Crim. App. Sept.
5, 2017) (unpublished). Consequently, the Court of Criminal
Appeals set aside the finding of guilt and the sentence as to
Specification 1 of Additional Charge II3 and authorized a re-
hearing. 2017 CCA LEXIS 610, at *33–34, 

,
at *12. However, the Court of Criminal Appeals affirmed the
remaining findings of guilt as to Specifications 1 and 3 of the
Charge,4 finding the Hills error for those specifications to be
harmless beyond a reasonable doubt. 2017 CCA LEXIS 610,
at *33, 

, at *12.


   1 We unequivocally reaffirmed the holding of Hills in United
States v. Hukill, stating:
       [U]nder Hills, the use of evidence of charged conduct
       as M.R.E. 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. Whether considered by members or a
       military judge, evidence of a charged and contested
       offense, of which an accused is presumed innocent,
       cannot be used as propensity evidence in support of
       a companion charged 

.
    2 Although the military judge did not have the benefit of our

Hills and Hukill decisions at the time of Appellant’s court-martial,
appellate courts “apply the clear law at the time of appeal, not the
time of trial.” United States v. Mullins, 

, 116 (C.A.A.F.
2010) (citations omitted).
   3 Specification 1 of Additional Charge II alleged that Appellant
penetrated KG’s vulva with his penis without her consent.
   4  Specification 1 of the Charge alleged that Appellant pene-
trated KF’s vulva with his finger without her consent. Specification
3 of the Charge alleged that Appellant touched KF’s groin through
the clothing with his penis without KF’s consent.



                                 2
              United States v. Prasad, No. 19-0412/AF
                       Opinion of the Court

    The convening authority subsequently dismissed Specifi-
cation 1 of Additional Charge II, and ordered a rehearing for
the purpose of sentencing Appellant on the affirmed findings,
Specifications 1 and 3 of the Charge. United States v. Prasad,
No. ACM 39003 (reh), 2019 CCA LEXIS 246, at *2, 

, at *1 (A.F. Ct. Crim. App. June 10, 2019) (un-
published). A general court-martial consisting of officer mem-
bers sentenced Appellant to a bad-conduct discharge, confine-
ment for 210 days, forfeiture of all pay and allowances, and
reduction to the grade of E-1.

authority ap-
proved the new sentence as adjudged.

review to determine whether the Hills error
with respect to Specifications 1 and 3 of the Charge is indeed
harmless beyond a reasonable doubt.5 Although we openly
acknowledge that this is a close issue, in light of the relative
weakness of the Government’s case at trial, the military
judge’s findings instructions, and trial counsel’s findings ar-
gument, we hold that the Government has failed to meet its
burden of proving that the Hills error in this case was harm-
less beyond a reasonable doubt.
                               I. Facts

                           Background
    Appellant was charged with committing numerous sexual
offenses involving five different women.




   5   The granted issue is:
         WHETHER THE AIR FORCE COURT ERRED IN
         ITS FIRST REVIEW OF APPELLANT’S CASE BY
         AFFIRMING THE FINDINGS OF GUILT FOR
         SPECIFICATIONS 1 AND 3 OF CHARGE I WHEN
         IT FOUND PREJUDICIAL ERROR AS A RESULT
         OF A HILLS VIOLATION.
United States v. Prasad, 

(C.A.A.F. 2019) (order grant-
ing review).
     Notably, the parties do not dispute that the propensity evidence
and the military judge’s corresponding instructions were erroneous
in light of Hills. Therefore, the only issue this Court must decide is
whether the Hills error prejudiced Appellant.



                                  3
             United States v. Prasad, No. 19-0412/AF
                      Opinion of the Court

    The military judge ruled, and instructed the members,
that the offenses alleged in the Charge,6 Additional Charge
I,7 and Additional Charge II8 could be used as M.R.E. 413 pro-
pensity evidence. Appellant was acquitted of all charges and
specifications except Specification 1 of Additional Charge II,
involving KG, and Specifications 1 and 3 of the Charge, in-
volving KF.
                Evidence Presented at Trial
    The Government’s evidence at trial regarding the two
specifications of which Appellant now stands convicted con-
sisted of the testimony of KF and a pretext conversation be-
tween KF and Appellant that was conducted using the Snap-
chat messaging application. The Government did not
introduce any physical or forensic evidence and did not pre-
sent any corroborating witnesses.
                      1. Testimony of KF
   At trial, KF testified that on the evening of May 9, 2014,
at Grand Forks Air Force Base, North Dakota, she encoun-
tered Appellant in the hallway of their dormitory and greeted
him with a hug. The two began talking and moved their con-
versation into Appellant’s room. They sat on Appellant’s bed


   6 The  Charge included three specifications in violation of Article
120, UCMJ, 10 U.S.C. § 920. Specification 1 alleged that Appellant
penetrated KF’s vulva with his finger without her consent. Specifi-
cation 2 alleged that Appellant kissed KF’s breast without her con-
sent. Specification 3 alleged that Appellant touched KF’s groin
through the clothing with his penis without KF’s consent.
   7  Additional Charge I included one specification in violation of
Article 80, UCMJ, 10 U.S.C. § 880. The specification alleged that
Appellant touched CW’s groin with his hand without her consent.
   8  Additional Charge II included five specifications in violation
of Article 120, UCMJ. Specification 1 alleged that Appellant pene-
trated KG’s vulva with his penis without her consent. Specification
2 alleged that Appellant penetrated CW’s vulva with his finger
without her consent. Specification 3 alleged that Appellant touched
CW’s groin through the clothing with his hand without her consent.
Specification 4 alleged that Appellant put his hand underneath
KP’s shirt and touched her torso without her consent. Specification
5 alleged that Appellant touched JH’s torso when she was incapable
of consenting to the sexual contact due to impairment by alcohol.



                                  4
            United States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

and he began rubbing KF’s back and stomach. Eventually Ap-
pellant began “spooning” KF while lying down. Appellant
then unclasped KF’s bra and rubbed and kissed her exposed
breasts. KF said nothing but pushed Appellant’s hands away.
    Next, KF testified that Appellant attempted to put his
hands in KF’s pants. KF again tried to push him away and
said, “No.” Appellant nevertheless put his hands in KF’s
pants and KF said, “Stop or I’m going to hit you.” During
cross-examination, KF conceded that Appellant may have
“thought [she] was joking” because KF is a “sarcastic” person
and sometimes her friends “take [her] kind of the wrong way.”
KF testified that Appellant subsequently penetrated KF’s
vagina with his fingers. In response, KF “slapped him up
against his head.” KF described the slap as a “two” on a scale
of one to ten.
    KF then testified that Appellant pulled his hands out of
KF’s pants and pinned KF’s hands above her head. While in
that position, Appellant climbed on top of KF and rubbed his
erect penis against KF’s thigh and vagina over their clothing.9
Appellant tried several times to kiss KF on the mouth, but KF
told him she would not kiss him. At that point, Appellant said,
“You’re not enjoying this, are you,” and stopped the kissing
and touching. The two of them continued to lie in bed together
until Appellant fell asleep. KF later testified that Appellant
“stopped [the sexual contact] when he realized I didn’t want
to participate.”
              2. Pretext Snapchat Messages
    While KF was reporting the incident to the Air Force Of-
fice of Special Investigations (OSI), Appellant contacted her
via Snapchat. OSI guided KF in her questions and responses
to Appellant, and those messages were subsequently intro-
duced at trial. In pertinent part, the messages stated:
       [KF:] I'm still upset over what happened the other
       night. What possessed you to do that, I obviously
       want [sic] interested.
       [Appellant:] Nothing



   9  Both KF and Appellant had their pants on during this
incident.



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       United States v. Prasad, No. 19-0412/AF
                Opinion of the Court

[KF:] What do you mean? Are you not even going to
admit that you were in the wrong or say sorry for
what you did?
[Appellant:] Im [sic] am
Just don’t know whats [sic] to say.
[KF:] I thought you were my friend… Then you tried
to have sex with me. But I would [sic] let you. I told
you when you started to play with my boobs I didn’t
want to. Then you pin[n]ed my hand after I hit you
and rubbed yourself against me. And you hid my
phone. I only stayed there because I didn’t have my
phone.
[Appellant:] Im [sic] sorry
....
[KF:] So are you not going to say why you did it? Why
you fingered me? Why didn’t you stop when I asked
you to? If you didn’t mean to why did you make it to
where I couldn’t leave?
[Appellant:] Talk.to me 2day after work in.person
Hopefully I can explain better
Otherwise I understand what I did was wrong
And im.sorry I hurt you
I was pushing it..... idk [I don’t know]
I want to have sex and I wa[s].trying to get you
in the.mood ..... im.sorry [sic]
[KF:] By fingering after I said no?
[Appellant]: Yup
Idk [I don’t know]
What to say
....
[KF:] But may I ask why would pinned [sic] me down
after I hit you upside the head? Help me wrap my
head around this.
[Appellant:] I thought you were being playful




                           6
             United States v. Prasad, No. 19-0412/AF
                      Opinion of the Court

                    3. Motive to Fabricate
    At trial, Appellant’s defense regarding the charges involv-
ing KF consisted of cross-examination, during which trial de-
fense counsel elicited testimony that KF may have had a mo-
tive to fabricate the allegations against Appellant.
Specifically, trial defense counsel established the following:
(1) KF met her future husband, DF, in April 2013 while both
of them were in the Air Force; (2) KF and DF became engaged
in July 2013; (3) KF was reassigned to Grand Forks Air Force
Base without DF in September 2013; (4) less than one month
later, DF ended the engagement because KF was far away
and DF did not wish to be in a long-distance relationship; (5)
KF wanted to get back together with DF; (6) KF and DF began
speaking again in April 2014; (7) the sexual incident involving
KF and Appellant occurred on May 9, 2014; (8) as a result of
her reporting that Appellant had sexually assaulted her, in
August 2014 KF received a compassionate reassignment to
the same Air Force base where DF was stationed; (9) one
month later, KF and DF were married.
                    Findings Instructions
    The military judge determined that the evidence raised
the defense of mistake of fact as to consent, and he issued an
instruction accordingly. The military judge accurately ex-
plained to the members, “The mistake must have existed in
the mind of the accused and must have been reasonable under
all the circumstances.”10
    Additionally, the military judge issued the following in-
structions to the members regarding the requisite standards
for using M.R.E. 413 propensity evidence and for finding Ap-
pellant guilty:
            An accused may be convicted based only on evi-
        dence before the court, and not on evidence of a gen-
        eral criminal disposition. Each offense must stand

   10 If the defense of mistake of fact goes to a general intent ele-
ment of an offense, “the ignorance or mistake must have existed in
the mind of the accused and must have been reasonable under all
the circumstances.” Rule for Courts-Martial 916(j)(1). Sexual as-
sault by bodily harm in violation of Article 120(b)(1)(B), 10 U.S.C.
§ 920(b)(1)(B), is a general intent offense. United States v. McDon-
ald, 

, 379 (C.A.A.F. 2019).



                                 7
              United States v. Prasad, No. 19-0412/AF
                       Opinion of the Court

        on its own, and you must keep the evidence of each
        offense separate. Stated differently, if you find or be-
        lieve that the accused is guilty of one offense, you
        may not use that finding or belief as a basis for in-
        ferring, assuming, or proving that he committed any
        other offense.
           ....
            . . . Further, evidence that the accused commit-
        ted any sexual offense alleged in the Charge, Addi-
        tional Charge I, and Additional Charge II may have
        no bearing on your deliberations in relation to each
        other unless you first determine by a preponderance
        of the evidence that is more likely than not an of-
        fense alleged in one or more of the specifications un-
        der those charges occurred. This evidence has no
        bearing on Additional Charge III and its Specifica-
        tion.11
            If you determine by a preponderance of the evi-
        dence any offense alleged in the Charge, Additional
        Charge I or Additional Charge II occurred, even if
        you are not convinced beyond a reasonable doubt
        that the accused is guilty of that offense, you may
        nonetheless then consider the evidence of that of-
        fense for its bearing on any matter to which it is rel-
        evant in relation to the remaining offenses under the
        Charge, Additional Charge I and Additional Charge
        II. You may also consider the evidence of such other
        sexual offense for its tendency, if any, to show the
        accused’s propensity or predisposition to engage in
        sexual offenses.
            You may not, however, convict the accused of any
        offense solely because you believe the accused has a
        propensity or predisposition to engage in sexual of-
        fenses. In other words, you cannot use this evidence
        to overcome a failure of proof in the government’s
        case, if you perceive any to exist. The accused may
        be convicted of an alleged offense only if the prose-
        cution has proven each element of that offense be-
        yond a reasonable doubt.



   11  Additional Charge III included one specification in violation
of Article 128, UCMJ, 10 U.S.C. § 928. The specification alleged that
Appellant assaulted JH by removing her shirt with his hand.




                                   8
            United States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

            Government Findings Argument
    During trial counsel’s lengthy findings argument, he re-
lied heavily on propensity evidence and on the preponderance
of the evidence standard. In pertinent part, trial counsel told
the members:
      [W]e are kind of getting to some, what we call 413
      evidence. Other evidence in this case, how about,
      hey, one woman told me to stop. I kept going. Two
      women told me to stop. I kept going. Three women
      told me to stop. I kept going. Four women told me to
      stop. I kept going. Five women told me to stop. I kept
      going. How about you learn, that when a woman
      says, no, she means, no?
          ....
          And this is where we tie in, we start to tie in that
      propensity evidence, you know, that instruction in
      there about propensity. . . . And that’s the lens
      through which you have to view this entire court. He
      has a propensity not to stop when someone says, no.
      Five women told him, no, and he kept going.
          . . . The law realizes that people who engage in
      sexual offenses may have a propensity to commit
      that crime again and again and again and what [sic]
      is what happened here.
          ....
          But, that 413, that propensity evidence, what do
      we see here again and again? We see another exam-
      ple of the accused not understanding boundaries, not
      listening to women in this case, no, don’t do this,
      don’t touch me. And if you find by a preponderance
      of the evidence, okay, which is more likely than not,
      in fact, even if it’s beyond a reasonable doubt, if you
      find it more likely than not that he did this, then you
      use that evidence in determining that he has a pro-
      pensity to commit sexual offenses. And you can use
      that when you are looking at other crimes in this
      case, the other charges in this case. And the law al-
      lows, for sexual offenses specifically, that members
      can consider that. And you can consider the fact that
      he doesn’t listen. That he ignores, no.
          ....
         . . . [T]he accused assault[ed] five women over a
      14 month period, when he knew that he was already



                                 9
            United States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

       under investigation for the same types of acts in
       every situation. He continued to take advantage of
       the situations, to take it vantage [sic] of these
       women in vulnerable states . . . . And that’s a crime.
       Each individual one is a crime.
                       II. Applicable Law
    When issues of constitutional dimension are at play, as
they are when charged sexual misconduct is improperly used
as M.R.E. 413 propensity evidence, the erroneous admission
of that evidence and the corresponding instructions to the
panel members “must be tested for prejudice under the harm-
less beyond a reasonable doubt standard.” 

; see also 

. This Court “reviews de novo
the issue of whether a constitutional error was harmless be-
yond a reasonable doubt.” United States v. Kreutzer, 

, 299 (C.A.A.F. 2005). And it is the Government that bears
the burden of proving that a constitutional error is harmless
beyond a reasonable doubt. Chapman v. California, 

, 24 (1967); United States v. Tovarchavez, 

, 462
(C.A.A.F. 2019).
    “The inquiry for determining whether constitutional error
is harmless beyond a reasonable doubt is whether, beyond a
reasonable doubt, the error did not contribute to the [ac-
cused’s] conviction or sentence.” 

(inter-
nal quotation marks omitted) (quoting United States v. Wol-
ford, 

, 420 (C.A.A.F. 2006)). This “standard is met
where a court is confident that there was no reasonable pos-
sibility that the error might have contributed to the convic-
tion.” 

(citing 

). On the other hand, where a court “cannot be certain
that the erroneous propensity instruction did not taint the
proceedings or otherwise ‘contribute to the defendant’s con-
viction or sentence,’ ” there is prejudice. United States v. Wil-
liams, 

, 464 (C.A.A.F. 2018) (quoting 

). Where constitutional error contributes to a convic-
tion, “the conviction cannot stand.” 

(quoting United States v. Pollard, 

, 52 (C.M.A.
1993)).
    In analyzing whether a Hills error was harmless beyond a
reasonable doubt, this Court has evaluated both the strength
of the Government’s case against the accused, and the content


                                10
            United States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

of the military judge’s findings instructions. With respect to
the strength of the Government’s case against the accused,
where there has been “overwhelming” evidence of Appellant’s
guilt, this Court has been convinced beyond a reasonable
doubt that the accused was convicted “on the strength of the
evidence alone” and “that an erroneous propensity instruction
did not contribute to the verdict.” United States v. Guardado,

, 94 (C.A.A.F. 2017). However, where the Govern-
ment’s case is “weak,” this Court “cannot know whether the
instructions may have tipped the balance in the members’ ul-
timate determination” and thus will find that any error was
“not harmless beyond a reasonable doubt.” 

; see also 

. Likewise, where it is
merely “certainly possible” that the accused was convicted
solely based on properly admitted evidence, this Court will
not conclude that a Hills error was harmless. 

–95.
    Furthermore, with respect to the content of the military
judge’s findings instructions, where an instruction “clearly
[tells] the [members] that all offenses must be proven beyond
a reasonable doubt, even those used to draw an inference of
propensity,” this Court has held that there is “no risk the
[members] would apply an impermissibly low standard of
proof.” 

(internal quotation marks
omitted) (quoting 

). But, where a military
judge gives a “propensity instruction that explicitly refer[s] to
the preponderance of the evidence standard,” this Court “can-
not deny that the military judge’s ‘muddled . . . instructions
potentially implicated fundamental conceptions of justice un-
der the Due Process Clause’ and heightened ‘the risk that the
members would apply an impermissibly low standard of
proof.’ ” 

–64 (internal brackets omit-
ted) (quoting 

).
                         III. Analysis

   In the instant case, the Government’s evidence at trial
was not particularly strong, the military judge’s findings in-
structions were confusing, and the trial counsel's mistaken
arguments regarding the preponderance of the evidence
standard and propensity evidence were pervasive. Taking
these points together, we feel compelled to conclude that the



                               11
             United States v. Prasad, No. 19-0412/AF
                      Opinion of the Court

Government has failed to meet its burden of proving that the
Hills error in Appellant’s case was harmless beyond a reason-
able doubt.
            Strength of the Government’s Case
   Appellant stands convicted of two offenses: Specifications
1 and 3 of the Charge.12 Specification 1 alleges that Appellant
penetrated KF’s vulva with his finger without her consent,
and Specification 3 alleges that Appellant touched KF’s groin
through the clothing with his penis without her consent. As
explained below, we conclude the Government has failed to
prove that it presented at trial such “overwhelming” evidence
of Appellant’s guilt with respect to these offenses that this
Court should find beyond a reasonable doubt that Appellant
was convicted “on the strength of the evidence alone.”

.
     Specification 3: Touching Penis to KF’s Groin
    The Government’s case against Appellant with respect to
Specification 3, alleging that Appellant touched his penis to
KF’s groin over their clothing without her consent, was far
from “overwhelming.” First, the evidence at trial supported a
mistake of fact as to consent defense because it squarely
raised the issue of whether Appellant honestly and reasona-
bly believed that KF consented to the sexual contact. It is true
that before Appellant escalated the sexual contact beyond
rubbing and kissing KF's exposed breasts, KF told him, “Stop
or I’m going to hit you.” However, KF herself admitted during
cross-examination that Appellant may have “thought [she
was] joking” because she is often “sarcastic” and even her
friends “take [her] kind of the wrong way.” KF additionally



   12  Appellant was also convicted of a third offense at court-mar-
tial—Specification 1 of Additional Charge II—but the Court of
Criminal Appeals set aside the finding of guilt with respect to that
specification. Prasad, 2017 CCA LEXIS 610, at *33, 

, at *12. Specifically, because that specification “hinged on
[KG]’s credibility” and defense counsel “substantially attacked”
KG’s credibility at trial, and because there was no corroborating
admission of guilt by the accused, the lower court was not convinced
the Hills error was harmless beyond a reasonable doubt. 2017 CCA
LEXIS 610, at *31–32, 

, at *11.



                                12
            United States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

clarified that when she later hit Appellant, she did so using
the force of just a “two” out of ten.
    Furthermore, portions of the Snapchat messages intro-
duced at trial corroborated the notion that Appellant thought
KF was only joking. Specifically, KF sent a message to Appel-
lant stating, “But may I ask why would pinned [sic] me down
after I hit you upside the head? Help me wrap my head
around this.” Appellant responded, “I thought you were being
playful.” Moreover, KF admitted that during the Article 32,
UCMJ, investigation, she testified that as soon as Appellant
“realized [she] didn’t want to participate” in the sexual activ-
ity, he stopped touching and kissing her.
    Second, we stress that an accused can properly be con-
victed of a sexual offense on the word of a single victim alone.
In the instant case we must note, however, that the Govern-
ment presented no corroborating forensic or physical evidence
of KF’s account of the penis-to-groin touching, and no wit-
nesses who could independently verify KF’s account of the cir-
cumstances surrounding this incident. And importantly, we
must further note that these uncorroborated allegations were
significantly undermined by a motive to fabricate and by
other deficiencies in the Government's evidence as cited
throughout this opinion. Because of the totality of these cir-
cumstances, it cannot be said that there was “overwhelming
evidence of Appellant’s guilt” in the context of a Hills error
evaluation of prejudice. See, e.g., 

;

; 

.
    Third, the Government’s introduction of the Snapchat
messages between Appellant and KF did not strengthen its
case with respect to Specification 3. KF alluded to the penis-
to-groin touching in the following exchange with Appellant:
       [KF:] I thought you were my friend… Then you tried
       to have sex with me. But I would [sic] let you. I told
       you when you started to play with my boobs I didn’t
       want to. Then you pin[n]ed my hand after I hit you
       and rubbed yourself against me. And you hid my
       phone. I only stayed there because I didn’t have my
       phone.
       [Appellant:] Im [sic] sorry




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            United States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

    KF’s use of the phrase “rubbed yourself against me” may
have referred to the penis-to-groin touching. However, it also
may have referred to Appellant’s other actions during the sex-
ual encounter. Therefore, the ambiguity of KF’s phrasing,
paired with the litany of other accusations contained in her
message, render Appellant’s response of “Im sorry” weak evi-
dence of corroboration. Indeed, as can be seen from the Snap-
chat exchange, it is not clear whether Appellant was specifi-
cally apologizing for touching his penis to KF’s groin through
their clothing, or whether he instead was apologizing for
merely hiding KF’s phone. Moreover, even if Appellant in-
tended to apologize for touching his penis to KF’s groin
through their clothing, such a “text message apology do[es]
not unassailably establish his consciousness of guilt.” To-

.
    Fourth, in a broader context, the Government’s case
against Appellant was far from “overwhelming” given the de-
fense’s effective cross-examination of KF establishing a po-
tential motive to fabricate. Specifically, trial defense counsel
laid out for the members the following timeline: in the fall of
2013, DF ended his engagement to KF because DF did not
want to be in a long-distance relationship; in April of 2014,
KF and DF began talking to one another again; in May 2014,
KF reported Appellant for sexual assault and abusive sexual
contact; in August 2014, KF received a compassionate reas-
signment as a result of her report of sexual assault and was
relocated to the same Air Force base as DF; one month later,
KF and DF got married. While it certainly is possible that the
panel members viewed this timeline as a mere coincidence, it
also is possible that this potential motive to fabricate sowed
such doubt in the minds of the members that they would have
acquitted Appellant but for the improperly admitted propen-
sity evidence and erroneous propensity instruction.
    In sum, the Government’s case against Appellant for Spec-
ification 3 was not particularly strong and falls short of con-
stituting “overwhelming” evidence of Appellant’s guilt.

.
           Specification 1: Digital Penetration
  The shortcomings noted in the strength of the Govern-
ment’s case against Appellant with respect to Specification 3


                              14
             United States v. Prasad, No. 19-0412/AF
                      Opinion of the Court

are likewise shortcomings—although perhaps to a lesser de-
gree—in the strength of the Government’s case in regard to
Specification 1, which alleges that Appellant digitally pene-
trated KF’s vulva without her consent. As such, we conclude
that the Government has failed to present “overwhelming” ev-
idence of Appellant’s guilt for Specification 1, and thus has
failed to meet the high bar of demonstrating beyond a reason-
able doubt that the accused was convicted “on the strength of
the evidence alone.” 

.
   Similar to our analysis pertaining to Specification 3, we
conclude that Appellant’s Snapchat messages, like the “text
message apologies” in Tovarchavez, do “not unassailably es-
tablish . . . consciousness of 

(citation
omitted). In Tovarchavez, this Court determined that the fol-
lowing message exchange did not rise to the level of a confes-
sion of guilt:
      [Victim:] I’m not going to allow you to make me your
      sex toy anymore
      ....
      [Appellant:] What are talking about, this is just
      weird ill [sic] leave it at the company.
      [Victim:] What’s weird is I told you no and you still
      forced me to have sex anyway
      [Appellant:] Im [sic] sorry for what ever happened
      between us . . . . [F]rom now on Im [sic] going to leave
      you alone. Im [sic] sorry.
      [Victim:] If your [sic] sorry why did you do it
      [Appellant:] I made a mistake by crossing the line,
      and I’m sorry for that, you deserve much more than
      

(alterations in original). These messages are
not markedly different from Appellant’s Snapchat messages
with KF regarding the digital penetration allegations. Their
exchange follows in pertinent part:
      [KF:] So are you not going to say why you did it? Why
      you fingered me? Why didn’t you stop when I asked
      you to? If you didn’t mean to why did you make it to
      where I couldn’t leave?
      [Appellant:] Talk.to me 2day after work in.person




                                15
             United States v. Prasad, No. 19-0412/AF
                      Opinion of the Court

       Hopefully I can explain better
       Otherwise I understand what I did was wrong
       And im.sorry [sic] I hurt you
       I was pushing it.....idk [I don’t know]
       I want to have sex and I wa[s].trying to get you in
       the.mood.....im.sorry [sic]
       [KF:] By fingering after I said no?
       [Appellant:] Yup
       Idk [I don’t know]
       What to say
    On the one hand, these “text message apologies could be
interpreted as establishing consciousness of guilt” and thus
be viewed as a confession to sexual assault. To

. But on the other hand, when the Snapchat mes-
sages are viewed in the context of KF’s testimony that Appel-
lant may have thought she was joking, that KF smacked Ap-
pellant only lightly in response to the digital penetration, and
most importantly, that KF explicitly conceded that Appellant
stopped his sexual contact as soon as he realized she did not
want to participate, these messages “could also have been . . .
from someone who knows they have acted inappropriately,
but not criminally.”

marks omitted)
(citation omitted). As such, we conclude that Appellant’s ac-
knowledgment of the digital penetration and apology to KF
does not constitute “overwhelming” evidence of Appellant’s
guilt, and is not sufficient to render the Hills error harmless
beyond a reasonable doubt. 

.
    Furthermore, when the Snapchat messages are viewed in
conjunction with Appellant’s credible mistake of fact as to
consent defense—corroborated by KF’s own testimony—and
KF’s potential motive to fabricate, “it is difficult to be certain
that Appellant was convicted . . . on the strength of the evi-
dence alone.” 

. As was true for Spec-
ification 3, the Government’s case for Specification 1 was not
particularly strong and does not surmount the bar of “over-
whelming” evidence of Appellant’s guilt.

States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

                   Findings Instructions
    In addition, the military judge’s muddled findings instruc-
tions created a significant “risk that the members . . .
appl[ied] an impermissibly low standard of proof.” 

–64 (internal quotation marks omitted) (quot-
ing 

). Although the military judge cor-
rectly instructed the members, “The accused may be convicted
of an alleged offense only if the prosecution has proven each
element of the offense beyond a reasonable doubt,” the re-
mainder of the military judge’s instructions conflated the be-
yond a reasonable doubt standard and the preponderance of
the evidence standard. A particularly problematic section of
the instructions states:
          If you determine by a preponderance of the evi-
      dence any offense alleged . . . occurred, even if you
      are not convinced beyond a reasonable doubt that the
      accused is guilty of that offense, you may nonethe-
      less then consider the evidence of that offense for its
      bearing on any matter to which it is relevant . . . .
(Emphasis added.) In accordance with these instructions, it is
indeed possible that the members could have found Appellant
guilty under a preponderance of the evidence standard rather
than beyond a reasonable doubt. 

. Be-
cause “[w]e cannot know whether the instructions may have
tipped the balance in the members’ ultimate determination,”
we cannot hold that the error in this case was harmless be-
yond a reasonable doubt.

   And finally, in the course of this prejudice analysis it is
appropriate to note that the trial counsel exploited—to the
considerable detriment of Appellant—the confusion sur-
rounding the military judge's preponderance of the evidence
instructions, as well as the negative inferences to be drawn
from the putative propensity evidence. Specifically, trial
counsel made the following two arguments:
      [T]his is where we tie in, we start to tie in that pro-
      pensity evidence, you know, that instruction in there
      about propensity. . . . And that’s the lens through
      which you have to view this entire court. [The ac-
      cused] has a propensity not to stop when someone
      says, no. Five women told him, no, and he kept going.




                                17
              United States v. Prasad, No. 19-0412/AF
                       Opinion of the Court

           . . . The law realizes that people who engage in
       sexual offenses may have a propensity to commit
       that crime again and again and again and what [sic]
       is what happened here.
             ....
           But, that 413, that propensity evidence, what do
       we see here again and again? We see another exam-
       ple of the accused not understanding boundaries, not
       listening to women in this case, no, don’t do this,
       don’t touch me. And if you find by a preponderance
       of the evidence, okay, which is more likely than not,
       in fact, even if it’s beyond a reasonable doubt, if you
       find it more likely than not that he did this, then you
       use that evidence in determining that he has a pro-
       pensity to commit sexual offenses. And you can use
       that when you are looking at other crimes in this
       case, the other charges in this case. And the law al-
       lows, for sexual offenses specifically, that members
       can consider that. And you can consider the fact that
       he doesn’t listen. That he ignores, no.
(Emphases added.)
   In light of these arguments, there is a considerable likeli-
hood that the panel members followed the Government's urg-
ing and applied the military judge's erroneous findings in-
structions in such a manner that improper propensity
evidence regarding acquitted conduct was used to overcome
some reasonable doubts the panel members had about Appel-
lant's guilt regarding the two specifications of which he was
convicted.
    Although no longer before us on appellate review, we can-
not overlook the fact that the members convicted Appellant of
a third specification involving a different victim, KG.13 If Ap-
pellant’s only convictions had been those involving KF, per-
haps we would have been swayed by the argument that the
members convicted Appellant of only those charges that were
supported by the independent evidence consisting of the
Snapchat exchange between Appellant and KF. This scenario
might have served to rebut the appearance that improper pro-



   13 The conviction involving KG was Specification 1 of Additional

Charge II.



                                 18
            United States v. Prasad, No. 19-0412/AF
                     Opinion of the Court

pensity evidence tipped the scales in the members’ guilt de-
terminations. However, the conviction involving KG fore-
closes such a conclusion. Indeed, this particular conviction
serves to undermine the Government’s position. Specifically,
the Court of Criminal Appeals set aside the finding of guilt
for Specification 1 of Additional Charge II because the
strength of the evidence against Appellant was deficient. Pra-
sad, 2017 CCA LEXIS 610, at *31–32, 

, at
*11. Although the lower court did not set aside the specifica-
tion for factual insufficiency pursuant to Article 66(d), UCMJ,
10 U.S.C. § 866(d) (2012), it did find that the Government’s
evidence was not strong enough to convince the court that the
Hills error was harmless beyond a reasonable doubt.

deciding to convict Appellant of certain offenses
where there were significant deficiencies in the Government's
evidence, it appears that the members may have been influ-
enced by the military judge’s clearly erroneous instructions
regarding propensity evidence.
                        IV. Conclusion

    Although it is a close question, in light of the totality of
the points raised above we conclude that this Court “cannot
be certain that the erroneous propensity instruction did not
taint the proceedings or otherwise ‘contribute to the defend-
ant’s conviction or sentence.’ ” 

(quot-
ing 

). Therefore, the Government has
failed to meet its burden of demonstrating that the error was
harmless beyond a reasonable doubt. Consequently, the find-
ings of guilt and sentence for both Specifications 1 and 3 of
the Charge are set aside. The record is returned to the Judge
Advocate General of the Air Force. A rehearing is authorized.




                              19
            United States v. Prasad, No. 19-0412/AF


   Chief Judge STUCKY, with whom Judge MAGGS joins,
dissenting.

    The military judge instructed the members that evidence
of one charged sexual offense could be used to establish an
accused’s propensity to commit another charged sexual of-
fense, and the trial counsel so argued during two minutes of
a ninety-minute closing argument. In light of our decision in
United States v. Hills, this was error. 

(C.A.A.F.
2016). The majority concludes the Government failed to es-
tablish the error was harmless beyond a reasonable doubt. I
respectfully dissent.
   “A constitutional error is harmless when it appears be-
yond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Mitchell v. Esparza, 

, 17–18 (2003) (per curiam) (internal quotation marks
omitted) (citations omitted).
      To say that an error did not “contribute” to the ensu-
      ing verdict is not, of course, to say that the jury was
      totally unaware of that feature of the trial later held
      to have been erroneous, but rather, to find that error
      unimportant in relation to everything else the jury
      considered on the issue in question, as revealed in
      the record.
United States v. Chisum, 

, 179 (C.A.A.F. 2018) (in-
ternal quotation marks omitted) (citations omitted).
    Although each offense at issue must stand on its own,
viewing the facts in chronological order is important because
those of the earlier offense inform the second. When Appel-
lant started his attempts to seduce KF, she was completely
passive, allowing him to remove her bra and massage and kiss
her breasts without protest, all while she was using her cell
phone. It was only after he put his hands in her pants that
she protested, told him to stop, and threatened to hit him.
When he used his finger to penetrate her vulva, she hit him
in the head. Nevertheless, Appellant removed his hand from
her pants, pinned her hands over her head, climbed on top of
her and rubbed his clothed erection against her groin while
she avoided his attempts to kiss her.
   The majority concludes that the prosecution’s case was not
particularly strong, that the evidence supports a mistake of
            United States v. Prasad, No. 19-0412/AF
              Chief Judge STUCKY, dissenting.

fact as to consent defense, and that this case is similar to
United States v. Tovarchavez, 

(C.A.A.F. 2019). I
disagree.
    In Tovarchavez, DNA established that the appellant and
the alleged victim had engaged in sexual acts. When she
texted him that she would not be his sexual toy, he replied
that he didn’t know what she was talking about. She accused
him of forcing her to have sex after she said “no.” He replied
that he was “sorry for what ever happened between” them and
that he would leave her alone in the future.

When
asked why he did it, he said he “made a mistake by crossing
the line.”

that the Hills error was not harm-
less beyond a reasonable doubt, as the appellant’s admissions
were vague and consistent with someone who knew he had
“acted inappropriately, but not criminally.”

(inter-
nal quotation marks omitted) (quoting United States v. To-
varchavez, 2018 CCA LEXIS 371, at *22, 

,
at *9 (A. Ct. Crim. App. July 19, 2018)).
    Appellant’s Snapchat admissions are different in charac-
ter. He acknowledged understanding what he did was
“wrong” and apologized for hurting her. He further texted:
       [Appellant:] I was pushing it….. idk
       I want to have sex and I wad.trying [sic] to get
       you in the mood …..im.sorry [sic]
       [KF:] By fingering after I said no?
       [Appellant:] Yup.
    Despite KF’s protest and threat to hit him if he didn’t stop,
he nevertheless used his finger to penetrate her vulva. Appel-
lant knew she wasn’t consenting, but he wasn’t taking “no”
for an answer.
    Appellant’s next steps further demonstrated that he knew
KF was not consenting. After she carried out her threat to hit
him in the head if he did not stop, he removed his hand from
her pants, pinned both her hands above her head, and rubbed
his clothed erect penis over her groin, while she tried to avoid
him kissing her lips. Appellant later claimed in his text he
thought she was being “playful.” Under the facts and circum-
stances of this case, that simply does not pass the smell test.




                               2
            United States v. Prasad, No. 19-0412/AF
              Chief Judge STUCKY, dissenting.

KF was willing to indulge Appellant but only so far. There
was nothing playful about their interaction; no banter, invi-
tations, giggling, or laughter. She was passive until he
crossed the line, when she insisted that he stop. It is clear KF
was not consenting to this activity and Appellant knew it. Un-
like in Tovarchavez, Appellant’s admissions are not con-
sistent with those of someone who knows he may have acted
inappropriately but not criminally.
    And the evidence simply does not support a conclusion
that Appellant held an honest and reasonable mistake of fact
that KF was consenting after she told him to stop. As the mil-
itary judge instructed, a mistake of fact as to consent for these
Article 120 offenses required Appellant to have honestly and
reasonably believed that KF consented to the sexual activity.
United States v. McDonald, 

, 379–80 (C.A.A.F.),
reconsideration denied, 

(C.A.A.F. 2019). Even if
Appellant was so clueless as to somehow believe that KF was
consenting, that belief was not reasonable in light of the facts
and circumstances explained above. The evidence presented
at trial established beyond a reasonable doubt that no reason-
able person would believe that KF was consenting to the sex-
ual activity.
    Furthermore, the court members’ findings demonstrate
that they were not impressed by the propensity instruction or
trial counsel’s propensity argument. Instead, they appear to
have focused on the military judge’s admonitions that they
must consider each offense on its own and they could not con-
vict Appellant “of any offense solely because you believe the
accused has a propensity or predisposition to engage in sexual
offenses.” There was sufficient evidence to prove beyond a rea-
sonable doubt that Appellant committed each of the offenses
he was alleged to have committed against KF. But the court
members acquitted him of abusive sexual contact by kissing
KF’s breasts, the only one of the three offenses not corrobo-
rated in his Snapchat conversations with her. Rather than
using the other offenses as evidence of the abusive sexual con-
tact offense, the members followed the military judge’s in-
structions, considered the abusive sexual contact offense on
its own, and acquitted Appellant of that offense.




                               3
            United States v. Prasad, No. 19-0412/AF
              Chief Judge STUCKY, dissenting.

   Based on the strength of KF’s testimony, the corroborating
Snapchat messages, the minimal propensity argument, and
the court members’ findings, the erroneous instruction and
arguments were harmless beyond a reasonable doubt. The er-
rors were “unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record.”

(citation omitted).




                               4