## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 JAMESO N T. HAZELBOWER United States Army, Appellant

ARMY 20150335

Headquarters, Fort Campbell

Steven E. Walbur n, Military Judge

Lieutenant Colonel Robert C. Insani, Staff Judge Advocate

For Appellant: Li eutenant Colonel Char les D. Lozano, JA; Captain Heather L. Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Lieutenant Colonel Melissa R. Covolesky, JA; Captai n Katherine L. DePaul, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham , JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue (on brief).

12 October 2016

--------------------------------- SUMMARY DISPOSITION

---------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification of desertion, four spec ifications of rape, two specifications of rape of a child, two specificatio ns of sexual a buse of a child, sexual assault of a child, and possession of child por nography, in violation of Articles 85, 120, 120b, an d 134, Uniform Code of Milita ry Justice, 10 U.S.C. §§ 885, 920, 920b, and 934 (2 012) [hereinafter UCMJ]. The military j udge sentenced appellant to a dishonorable discharge, conf inement for fifty years, and forfeiture of all pay and allowances. Ap pellant received 201 days of confinement credit. The convening authority approved the sentence as adjudged

.

This case is before th is court for review pursua nt to Article 66, UCMJ. Appellant raises two assignmen ts of error, one of whic h merits discussion but noHAZELBOWER—ARMY 20150335

2 relief. The matters personally ra ised by appellan t pursuant to United States v. Grostefon , 12 M.J. 431 (C.M .A. 1982), do no t warrant relief. 1

BACKGROUND

Appellant stands convicted of sexual offenses against three different victims, AA, SC, and MB. The mil itary judge grante d a government moti on, over defense objection, to allow use of the charged sexual misconduct for Mil R. Evid. 413 and 414 purposes to show appe llant’s propensity to co mmit the charged sexual misconduct. Appellant alleges the military judge abused hi s discretion in so ruling. The military judge also allowed eviden ce of uncharged mi sconduct to show appellant’s propensity to commit the char ged offenses. After h earing the evidence and arguments from both trial and defe nse counsel, which included argument

1 Appellant personally asserts, inter alia , in an unsworn submission pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), his trial defe nse counsel, Captain (CPT) G and (Mr.) P, were ineffective because they: (1) failed to object at several critical periods of the trial, specifically to the introductio n of hearsay

statements of SC in Pros ecution Exhibit 30, where SC repeatedly alleges that appellant raped he r, and by failing to effectively attack SC’s assertions on crossexamination; and (2) fa iled to object to the improper introduction of Mil. R. Evid. [hereinafter Mil. R. Evid.] 413/414 ev idence concerning AH, C, and G. We disagree with these assertio ns. Under the circ umstances of this case, we see no need to order affidavits from CPT G and Mr. P (regardi ng their trial strategy or tactics) or a fact-finding hearing pursuant to United States v. DuBay , 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). The facts in appellant’s allegations—

even if true—“would not result in relief.” United States v. Ginn , 47 M.J. 236, 248 (C.A.A.F. 1997). Rega rding Prosecution Exhibit 30 and the testimony of SC, the direct testimony of SC essentially encompasses the contents of Prosecution Exhibit 30, and the cross-examination of SC clearly dem onstrates defense counsel’s strategy of attacking the veracity of SC’s assertions by po inting out her Skype messages, which coul d indicate her possible consent to the sexual

encounters between her and appellant. The Mil. R. Evid. 413/414 evidence to which appellant points consists of appellant’s uncharged misconduct with

individuals other than the victims in this case. Appellant’s submission “consists...of speculative [and] conclusory ob servations.” Ginn , 47 M.J. at 248

. Furthermore, “the appell ate filings and th e record as a wh ole ‘compellingly demonstrate’ the impr obability of [appellant’s allegations].” Id . Applying the first, second, and fourth Ginn principles to appellant’ s unsworn submission, we reject appellant’s ineffective assistance claims.HAZELBOWER—ARMY 20150335

3 concerning propensi ty evidence , the military judge found appellant guilty of all charges and specifications.

LAW AND DISCUSSION

Appellant alleges our supe rior court’s holding in United States v. Hills , 75 M.J. 350 (C.A.A.F. 2016), is controlling in th is case and warrants a reversal of the military judge’s findi ngs of guilty and the sentence. Appellant further asserts that propensity evidence was erroneously app lied during sentencing proceedings. We disagree.

We have considered our su perior court’s holding in Hills , that it was error for the military judge, in a memb ers trial, to admit charged offenses as Mil. R. Evid.

413 evidence to show an appellant’s prop ensity to commit the charged offenses. Id.

at 357. Cons istent with the facts in United States v. Hukill , appellant in the instant case elected to be tried by a military judge s itting alone. AR MY 20140939, 2016 CCA LEXIS 505, *1 (Army Ct. Crim. App. 16 Aug. 2016) (mem. op .). Unlike in

Hills , there is no danger in a judge alone trial of pi ercing the presumption of

innocence with contra dictory or erro neous panel instructions . “Military judges are presumed to know the law and to follow it absent clear ev idence to the contrary.”

Hukill , 2016 CCA LEXIS 505 , at *4 (citing United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007).

As in Hukill , we find that there is nothing in the record to suggest that the military judge did not hold th e government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the mi litary judge applied a lesser standard in adjudicating the charges against appellant. In addition, in the co ntext of ruling on the use of propensity evidence during the sentencing portion of the trial, the military judge stated:

The Court has, in fact, cond ucted an M.R.E 403 balancing test on those three pieces of propensity evidence and has found that they are admissible for sentencing purposes and again, the Court will provide a written ruling to that effect, and importantly, the Court notes that that evidence was also considered during the findings only for the limited purpose of pr opensity and the cour t used it only for that limited purp ose and it had little to no effect on the

Court’s deliberation s and findings, even though the Court finds it was properly admissible.

It is clear from this ruling that the milit ary judge was well aware of the limits of propensity evidence in this case. Ther e is no danger the mi litary judge trampled upon appellant’s presump tion of innocence.HAZELBOWER—ARMY 20150335

4 In light of the military judge’s charact erization of his us e of propensity evidence on the record, we are satisfi ed the military j udge’s view on the admissibility of propen sity evidence involving the vi ctims of the ch arged offenses

under Mil. R. Evid. 413 and 414 was harmless beyond a reasonable d oubt. We find no risk that the military j udge applied an im permissibly low st andard of proof concerning both the pres umption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. We find nothing in the record to suggest that the military judge did not ho ld the government to its burden of proving appellant’s guilt beyond a reas onable doubt, or that th e military judge applied a

lesser standard in ad judicating the charge s against appellant.

CONCLUSION

On consideration of the entire record, including th e matters personally raised by the appellant pursuant to Grostefon , the findings and senten ce as approved by the convening authority are AFFIRMED.

Judge CELTNIEKS and Judge BURTON concur.

FOR THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: