## Facts

- Sergeant Kendall Hills, U.S. Army, was tried by members at a general court-martial for multiple charged sexual offenses involving another soldier, Specialist PV.
- Hills pleaded not guilty to all charged specifications.
- Over defense objection, the government sought to use M.R.E. 413 to treat each charged sexual offense as propensity evidence that Hills committed the other charged sexual offenses.
- The military judge granted the motion and instructed members that:
  - Each offense must be considered separately and proved beyond a reasonable doubt; but
  - If members found by a preponderance of the evidence that Hills committed one charged offense, they could use that finding as evidence of propensity to commit other charged sexual offenses.
- The panel convicted Hills of at least one specification (abusive sexual contact).
- The Army Court of Criminal Appeals affirmed, approving the charged-offense-as-propensity approach.

## Issues

1. Whether M.R.E. 413 permits the government, in a members trial where the accused pleads not guilty, to use charged sexual offenses as propensity evidence to prove other charged sexual offenses in the same case.
2. Whether instructions allowing a preponderance finding on a charged offense for propensity purposes—while requiring proof beyond a reasonable doubt for conviction—violate due process and the presumption of innocence.
3. Whether any error was harmless beyond a reasonable doubt.

## Decision

- The Court of Appeals for the Armed Forces held it was error to admit charged sexual offenses as M.R.E. 413 propensity evidence for other charged sexual offenses when the accused pleaded not guilty.
- The court held the propensity instruction employing a preponderance standard for charged conduct lowered the government’s burden of proof and violated due process and the presumption of innocence.
- The court treated the error as constitutional and held it was not harmless beyond a reasonable doubt.
- The court set aside affected findings and the sentence and remanded for further proceedings.

## Legal Principles

- M.R.E. 413 does not authorize using charged sexual offenses, contested by a not-guilty plea, as propensity evidence to prove other charged sexual offenses in the same court-martial.
- An accused is presumed innocent of each charged offense unless and until guilt is proven beyond a reasonable doubt; a jury instruction may not invite members to treat a pending charge as established on a lesser standard.
- Combining a preponderance-based propensity determination for charged conduct with a reasonable-doubt requirement for conviction creates an internally inconsistent framework that impermissibly reduces the government’s burden of proof.
- When an instruction reduces the burden of proof on an element or otherwise compromises the reasonable-doubt standard, the resulting constitutional error requires reversal unless the government proves harmlessness beyond a reasonable doubt.

## Conclusion

The court held that using charged sexual offenses as M.R.E. 413 propensity evidence—and instructing members they could rely on a preponderance finding of a charged offense to infer propensity—violated due process by weakening the presumption of innocence and the reasonable-doubt standard, requiring reversal and remand.


United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016)