This opinion is subject to revision before publication



        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

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

   Judge MAGGS delivered the opinion of the Court.
    In this appeal, we confront the same misuse of propensity
evidence that this Court addressed in United States v. Hills,

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

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



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

, at *1 n.1 (A. Ct.
Crim. App. Oct. 26, 2018) (unpublished). The ACCA’s opinions,
however, do not explain the discrepancy. Given that the ACCA later
set aside the finding that Appellant was guilty of Specification 11


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              United States v. Long, No. 21-0085/AR
                      Opinion of the Court

of confinement, reduction to the grade of E-1, and a dishonor-
able discharge. The convening authority approved the find-
ings and sentence as adjudged.
    In his first appeal to the ACCA, Appellant argued that the
military judge had improperly allowed the Government to use
evidence that Appellant committed charged sexual offenses to
prove that he had a propensity to commit other charged sex-
ual offenses. Long, 2018 CCA LEXIS 512, at *28–33, 

, at *10–12. The Government conceded that this was
a Hills error and further conceded that the error was not
harmless beyond a reasonable doubt with respect to nine
specifications of sexual offenses. 

,
at *10–11. The ACCA dismissed two of these specifications
and set aside the findings on the other seven. 

, at *12. The ACCA, however, affirmed the find-
ing that Appellant was guilty of the specification of rape of a
child (Specification 8 of Charge II) because it determined that
the Hills error was harmless beyond a reasonable doubt. 

, at *11–12. The ACCA also affirmed the
findings of guilt with respect to the specification of child en-
dangerment (Specification 5 of Charge I) and the specification
of assault consummated by a battery (the Specification of
Charge IV). 

, at *11–12. The ACCA set
aside the sentence. 

, at *12.
    The ACCA returned the case to the convening authority
for further action. 

 at *12. In so doing, the
ACCA provided the convening authority three options: (1) or-
der a rehearing on the specifications that it had set aside and
not dismissed and a rehearing on the sentence; (2) order a re-
hearing on the sentence alone; or (3) “reassess the sentence,
affirming no more than a dishonorable discharge, confine-
ment for forty years, and reduction to E-1.” 

, at *12. Appellant petitioned this Court for review,
but we dismissed the petition without prejudice to Appellant’s
right to raise the matters asserted during the normal course
of appellate review. United States v. Long, 

(C.A.A.F. 2019).



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



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              United States v. Long, No. 21-0085/AR
                      Opinion of the Court

   The convening authority subsequently determined that
holding a rehearing would be impracticable. The convening
authority therefore chose the third option outlined by the
ACCA. Accordingly, the convening authority approved only so
much of the sentence as provided for confinement for forty
years, reduction to the grade of E-1, and a dishonorable
discharge.
    Appellant again appealed to the ACCA. The ACCA reaf-
firmed the findings that Appellant is guilty of the specifica-
tions for rape of a child, child endangerment, and assault con-
summated by a battery. United States v. Long, No. ARMY
20150160, 2020 CCA LEXIS 368, at *4–5, 

,
at *2 (A. Ct. Crim. App. Oct. 21, 2020) (summary disposition
on further review) (unpublished). But the ACCA concluded
that its prior ruling instructing the convening authority that
he could reassess the sentence within a specified limit vio-
lated this Court’s recent holding in United States v. Gonzalez,

 (C.A.A.F. 2020). 2020 CCA LEXIS 368, at *4,

, at *2–3. The ACCA, accordingly, reas-
sessed the sentence de novo. 

, at *2–3.
The reassessment produced the same result: a dishonorable
discharge, confinement for forty years, and reduction to the
grade of E-1. 

, at *3.
   We granted review of three issues:
       I. Whether the Army court erred in concluding the
       impermissible use of charged sexual misconduct as
       propensity evidence was harmless beyond a
       reasonable doubt [with respect to the child rape
       specification].
       II. Whether Appellant’s conviction for rape of a child
       was legally sufficient where the Government pre-
       sented no evidence of the charged sexual act.
       III. Whether the Army court abused its discretion in
       reassessing the sentence.
We address these assigned issues after describing additional
relevant facts.
    B. Additional Facts Relevant to the Assigned Issues
   Appellant’s daughter, who was eleven years old at the
time of the relevant events, testified that she drank vodka




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              United States v. Long, No. 21-0085/AR
                      Opinion of the Court

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



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              United States v. Long, No. 21-0085/AR
                      Opinion of the Court

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



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




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             United States v. Long, No. 21-0085/AR
                     Opinion of the Court

   The military judge made the findings described above. Of
particular note for the assigned issue is that the military
judge found Appellant guilty of Specification 8 of Charge II,
which averred that Appellant penetrated his daughter’s vulva
with his penis. But the military judge found Appellant not
guilty of Specification 7 of Charge II, which averred that
Appellant penetrated his daughter’s genital opening with an
object.
                        II. Discussion
    In Hills, a military judge instructed the members that if
they found by a preponderance of the evidence that the ac-
cused had committed a charged sexual offense, they could
consider the evidence of that charged offense for its tendency
to show that the accused committed other charged sexual of-
fenses. 75 M.J. at 353. The military judge believed that the
instruction was authorized by M.R.E. 413(a). On appeal, how-
ever, this Court held that the instruction violated M.R.E.
413(a) because “[n]either the text of M.R.E. 413 nor the legis-
lative history of its federal counterpart suggests that the rule
was intended to permit the government to show propensity by
relying on the very acts the government needs to prove be-
yond a reasonable doubt in the same case.” Id. at 352. This
Court also ruled that the instruction violated the constitu-
tional requirement of due process “by creating [a] risk that
the members would apply an impermissibly low standard of
proof, undermining both ‘the presumption of innocence and
the requirement that the prosecution prove guilt beyond a
reasonable doubt.’ ” Id. at 357 (quoting United States v.
Wright, 

, 481 (C.A.A.F. 2000)). Although the Hills
case involved a trial before members, this Court later applied
the decision in a case tried by a military judge alone. In
United States v. Hukill, 

 (C.A.A.F. 2017), the
Court held that the prohibition against using charged conduct
as “propensity evidence for other charged conduct in the same
case is error, regardless of the forum, the number of victims,
or whether the events are connected.” 

.
    In this appeal, neither party challenges the Hills decision,
or its extension to a military judge-alone trial in Hukill. Fur-
ther, both parties agree that a Hills error occurred because,
in response to the R.C.M. 917 motion, trial counsel argued



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              United States v. Long, No. 21-0085/AR
                      Opinion of the Court

that the military judge could use evidence of one charged of-
fense (i.e., that Appellant penetrated the mother with his pe-
nis) to prove another charged offense (i.e., that Appellant pen-
etrated his daughter with his penis). The parties, however,
disagree about whether admissible non-propensity evidence
was legally sufficient to sustain the child rape specification
and about whether the use of propensity evidence was harm-
less beyond a reasonable doubt. We discuss each issue in turn.
      A. Legal Sufficiency Without Propensity Evidence
    Specification 8 of Charge II alleged that Appellant “did, at
or near Clarksville, Tennessee, on or about 31 December
2009, engage in a sexual act, to wit: penetrate the vulva of
[his daughter, a] child who had not attained the age of 12
years, with his penis.” Appellant argues that the evidence was
legally insufficient to prove this charge because, in his view,
there is no evidence that he penetrated his daughter with his
penis.
    We review de novo the question of whether the evidence
was legally sufficient. United States v. Young, 

,
407 (C.A.A.F. 2007). Evidence is sufficient to support a
conviction if, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 

, 319
(1979). As the Supreme Court has explained: “This familiar
standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” 

    In applying this test for legal sufficiency, reviewing courts
must remember that “[f]indings may be based on direct or cir-
cumstantial evidence.” R.C.M. 918(c); see also United States
v. King, 

, 221 (C.A.A.F. 2019) (“[T]he government
is free to meet its burden of proof with circumstantial evi-
dence.”). And the Supreme Court has explained: “Circumstan-
tial evidence . . . is intrinsically no different from testimonial
evidence. . . . [With] both, the jury must use its experience
with people and events in weighing the probabilities. If the
jury is convinced beyond a reasonable doubt, [an appellate




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               United States v. Long, No. 21-0085/AR
                       Opinion of the Court

court] can require no more.” Holland v. United States, 

, 140 (1954).
    In this case, we agree with Appellant that the evidence
would be insufficient to sustain the finding with respect to
Specification 8 of Charge II if a rational factfinder could not
have found beyond a reasonable doubt that Appellant pene-
trated his daughter’s vulva with his penis. We recognize that
the applicable version of Article 120, UCMJ, did not require
the Government to allege or prove that Appellant penetrated
his daughter with his penis as opposed to with some other ob-
ject.3 In this case, however, Specification 7 of Charge II al-
leged penetration with an object, while Specification 8 of
Charge II alleged penetration with Appellant’s penis. Given
that the military judge found Appellant not guilty of Specifi-
cation 7, the evidence is legally sufficient for Specification 8
only if a rational factfinder could find beyond a reasonable
doubt that Appellant penetrated his daughter with his penis.
See United States v. English, 

, 120 (C.A.A.F. 2019)
(noting that, although the government is “not required to
draft the specification alleging a particular type of force,” if
the government “narrowed the scope of the charged offense by
alleging a particular type of force, it was required to prove the
facts as alleged”).




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

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



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             United States v. Long, No. 21-0085/AR
                     Opinion of the Court

   Appellant emphasizes that Appellant’s daughter did not
perceive penetration as it was occurring. Appellant acknowl-
edges that testimony about the pain his daughter felt in her
genital area and the blood and bruising is relevant circum-
stantial evidence. But Appellant contends that even if this ev-
idence could support an inference that the daughter was pen-
etrated with something, it is legally insufficient to establish
that Appellant penetrated her with his penis.
    We disagree. We find instructive the analysis in Murphy
v. Phillips, No. 20-4132, 

, 

 (6th Cir. Mar. 17, 2021), a recent case in which
a circuit judge denied a certificate of appealability to a state
prisoner in a habeas corpus case. The state prisoner chal-
lenged the legal sufficiency of his conviction for raping an
eleven-month-old girl by penetrating her mouth with his pe-
nis. 

, at *1. A treating physician
observed an injury to the victim’s throat, but could not say
what object had penetrated her mouth. 

,
at *1. (The infant obviously could not testify about what hap-
pened.) The prisoner, much like Appellant in this case, argued
that at most a rational juror could conclude that the victim
suffered an injury by being penetrated by something but could
not conclude that the injury was caused by his penis. 

–9, 

, at *3. The court rejected this argu-
ment, observing among other things that evidence of bruising
on the victim’s neck and genital area was consistent with sex-
ual abuse. 

, at *3. The opinion con-
cluded that, in the light of all testimony presented, and given
the absence of evidence that some object other than the vic-
tim’s penis penetrated the victim’s mouth, the jury could rea-
sonably infer that the victim’s injuries were caused by the
prisoner’s penis. 

–10, 

, at *3.
    The Murphy opinion is consistent with the principles, de-
scribed above, for judging the legal sufficiency of the evidence
and is very similar to this case. The reviewing judge consid-
ered circumstantial evidence, viewed the evidence in the light
most favorable to the government, drew reasonable infer-
ences in favor of the government, and apparently used his ex-
perience with people and events in considering the sufficiency
of the evidence. Under these same principles, we believe that
the evidence is legally sufficient in this case.


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             United States v. Long, No. 21-0085/AR
                     Opinion of the Court

    The military judge could find that Appellant climbed on
top of his daughter based on her testimony. The military
judge similarly could find that Appellant used his hands to
choke his daughter, based on her testimony and the bruising
her mother saw on her neck. The military judge further could
find that penetration occurred based on what the daughter
testified about the pain and the blood. Finally, if Appellant
was on top of his daughter and choking her neck with his
hands, and was simultaneously penetrating her, the military
judge could reasonably infer that he was penetrating her with
his penis and not with his hands or something held in his
hands. As counsel for the Government contended at oral ar-
gument, “the positioning of the bodies” and the fact that “Ap-
pellant’s hands were occupied around her neck” supports a
reasonable inference that Appellant penetrated her with his
penis.
   Appellate defense counsel’s response to this line of reason-
ing is that there was no evidence that the choking and pene-
tration occurred at the same time. Appellate defense counsel
points out that the daughter did not perceive that she was
being penetrated while she was being choked. He further
points out that the daughter was wearing pajamas while be-
ing choked, suggesting that Appellant would have had to re-
move his hands from her neck to lower her pajamas before
penetrating her.
    The issue before us is legal sufficiency, not factual suffi-
ciency. See United States v. Holt, 

, 186 (C.A.A.F.
1999) (“[C]onsideration of the factual sufficiency of the evi-
dence is outside the statutory parameters of our review.”). We
hold that when considering the evidence in the light most fa-
vorable to the Government, the military judge, as a rational
factfinder, could use his “experience with people and events
in weighing the probabilities” to infer beyond a reasonable
doubt that Appellant penetrated his daughter while he was
on top of her and did so with his penis as opposed to some
other object. Holland, 348 U.S. at 140. Based on the facts that
the daughter experienced pain around her vagina, detected
blood there before she had begun menstruating, and reported
waking up to Appellant on top of her the night before, a ra-
tional factfinder could reasonably have inferred that Appel-




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              United States v. Long, No. 21-0085/AR
                      Opinion of the Court

lant penetrated her vulva. And based on the position of Ap-
pellant’s body and his hands, a reasonable inference that can
be drawn in favor of the Government is that Appellant pene-
trated her with his penis. Like the judge in Murphy, we con-
clude that the evidence is legally sufficient to establish all the
elements of the offense.
              B. Harmlessness of the Hills Error
    Our determination that non-propensity evidence was le-
gally sufficient to support the finding of guilt does not resolve
this case. We also must consider whether the Hills error “ma-
terially prejudice[d] the substantial rights of the accused.” Ar-
ticle 59(a), UCMJ, 10 U.S.C. § 859(a) (2018). Where, as here,
“the accused fails to preserve the [constitutional] instruc-
tional error by an adequate objection or request, we test for
plain error.” United States v. Williams, 

, 462
(C.A.A.F. 2018) (internal quotation marks omitted) (citation
omitted). “Under this Court’s plain error jurisprudence, to es-
tablish plain error an appellant must demonstrate (1) error,
(2) that is clear or obvious at the time of appeal, and (3) prej-
udicial.” 

 The Government concedes that, under Hills and
Hukill, “the use of propensity evidence from charged offenses
to prove other charged offenses constitutes ‘clear or obvious
error.’ ” The dispute in this case, then, is whether the Hills
error was prejudicial.
    According to this Court’s precedents, “where a forfeited
constitutional error was clear or obvious, ‘material prejudice’
[under Article 59(a), UCMJ] is assessed using the ‘harmless-
ness beyond a reasonable doubt’ standard.” United States v.
Tovarchavez, 

, 460 (C.A.A.F. 2019) (internal quo-
tation marks omitted) (citations omitted). “That standard is
met where a court is confident that there was no reasonable
possibility that the error might have contributed to the con-
viction.” 

 Because both parties agree that this is the appro-
priate test for prejudice under this Court’s precedents, we ap-
ply it here and hold that the Hills error in this case was not
harmless beyond a reasonable doubt.
    Our decision in Williams, 

, provides highly rel-
evant guidance. The Court in Williams set aside the finding
of guilt as to one affected specification because the Court was
“not convinced that the erroneous propensity instruction



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             United States v. Long, No. 21-0085/AR
                     Opinion of the Court

played no role in Appellant’s conviction.” 

. But the
Court affirmed the finding of guilt with respect to another
specification. Quoting United States v. Guardado, 

,
94 (C.A.A.F. 2017), the Court explained that “ ‘[t]here are cir-
cumstances where the evidence is overwhelming, so we can
rest assured that an erroneous propensity instruction did not
contribute to the verdict by tipp[ing] the balance in the mem-
bers ultimate determination.’ ” 

 (alterations in orig-
inal) (internal quotation marks omitted). The Court was “con-
fident” that the Hills error had no effect on a finding that the
appellant had committed forcible sodomy, given corroborating
evidence of (1) physical damages to the premises where a
struggle took place, (2) photographs of the victim’s wounds,
(3) testimony by eyewitnesses as to the victim’s distraught de-
meanor, and (4) a sworn statement by the appellant that con-
firmed a portion of the victim’s account. 

    In contrast, here we cannot say that propensity evidence
played no role in the military judge’s finding that Appellant
is guilty of Specification of 8 of Charge II. Unlike in Williams,
in this case, the non-propensity evidence is not overwhelming
for the specification as alleged. We agree with the Govern-
ment that this case involves some corroborating evidence,
such as the testimony about the daughter’s pain, bleeding,
and bruising. This is evidence that the daughter was pene-
trated. But as described in the discussion of the legal suffi-
ciency of the evidence, the military judge had to make an in-
ference that Appellant penetrated the daughter with his
penis as opposed to with some other object. In making this
inference, the mother’s testimony that Appellant had sexually
assaulted her in the same manner, coupled with the Govern-
ment’s propensity argument, may have influenced the mili-
tary judge. Therefore, we cannot say the error was harmless
beyond a reasonable doubt.
    In reaching this conclusion, we recognize that trial counsel
emphasized propensity in the context of the R.C.M. 917 mo-
tion, and did not expressly include the issue of propensity in
arguments on findings. But trial counsel’s arguments on the
R.C.M. 917 motion became part of the record, and the Gov-
ernment has cited nothing to suggest that the military judge
in making his findings forgot or ignored the points that trial
counsel had asserted earlier in the trial. In addition, although


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             United States v. Long, No. 21-0085/AR
                     Opinion of the Court

the Williams case confirms that Hills errors sometimes are
harmless, this case is distinguished from Williams because
the evidence supporting a conviction here is not overwhelm-
ing without use of the propensity evidence.
    Finally, we note that this Court addressed standards of
review in Tovarchavez, holding that “[w]here the error is con-
stitutional, Chapman [v. California, 

, 24 (1967)]
directs that the government must show that the error was
harmless beyond a reasonable doubt to obviate a finding of
prejudice,” regardless of whether an objection to the error was
preserved or forfeited. 78 M.J. at 462. After the parties argued
the present case, the Supreme Court of the United States de-
cided Greer v. United States, 

 (2021). In Greer,
the Supreme Court reviewed a forfeited nonstructural consti-
tutional error for plain error under Fed. R. Crim. P. 52(b) and
did not require the government to prove that the error was
harmless beyond a reasonable doubt. 

. We need not
decide whether Greer has implications for Tovarchavez be-
cause on the facts of this case, we would find material preju-
dice to Appellant’s rights under Article 59(a), UCMJ, even if
we did not require the Government to prove that the Hills er-
ror was harmless beyond a reasonable doubt.
    We therefore set aside the findings that Appellant is guilty
of Charge II and Specification 8 of Charge II. Because we have
set aside these findings, we also set aside the sentence. And
because we set aside the sentence, we need not address as-
signed Issue III, which asks whether the ACCA abused its
discretion in resentencing Appellant. We do not disturb the
findings with respect to the child endangerment specification
and the assault consummated by a battery specification be-
cause those findings are not challenged on appeal.
                       III. Conclusion

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



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            United States v. Long, No. 21-0085/AR
                    Opinion of the Court

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




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