## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, CELTNIEKS, and HAGLER 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: LieutenantColonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Lieutenant Colonel Melissa R. Covolesky, JA; Captain Ka therine L. DePaul , JA (on reply br ief); Lieutenant Colonel Tiffany M. Chapman, JA; Lieutenant Colonel Ch ristopher D. Carrier, JA; Captain Joshua B. Fix, JA (on brief and reply brief following remand).

For Appellee: Colonel Mark H. Sydenham , JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahu e, JA (on brief); Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Virginia H. Tinsley, JA; Captain Joshua B. Banister, JA (o n brief following remand).

22 November 2017

--------------------------------------------------- MEMORANDUM OPINION ON REMAND

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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

This case is again before us for review pursuant to Articl e 66, Uniform Code of Military Justice, 10 U.S. C. § 866 (2012) [hereinafter UCMJ]. Afte r considering the additional pleadings submit ted by the parties and the enti re record in light of our superior court’ s holding in United States v. Hukill , 76 M.J. 219 (C.A.A.F. 2017), we are convinced appellant’s conviction is le gally and factually su fficient. Given the overwhelming strength of the government’s case, the weak defense case, the evidence of appellant’s uncharged mi sconduct, and the military judge’s characterization thatany propensity evid ence “had little to no effect on the Court’s deliberations and findings,” we are convinced the prop ensity evidence did notHAZELBOWER—ARMY 20150335

2 contribute to the findings of guilty or appellant’s sentence, and any error was harmless beyond a reas onable doubt.

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 abuse of a child, sexual assault of a child, and possession of child por nography, in violation of Articles 85, 120, 120b, an d 134, UCMJ. The military ju dge sentenced appellant to a dishonorable discharge, confinement for fi fty years, and forfei ture of al l pay and allowances. Appellant rece ived 201 days of confinemen t credit. Th e convening authority approved the sentence as adjudged

. On 12 October 2016, this court affirmed the findings and sentence in this

case. United States v. Hazelbower , ARMY 20150335 (Army Ct . Crim App. 12 Oct. 2016) (summ. disp.). On 12 January 2017, the Co urt of Appeals for the Armed Forces (CAAF) granted appellant’s petition for grant of review. United States v. Hazelbower , 76 M.J. 63 (C.A.A.F. 2017 ). On 27 Ju ly 2017, the CAAF set aside our decision and remanded the case to this court for consideration of the granted issue in light of Hukill

. United States v. Hazelbower , 76 M.J. 441 (C.A.A.F . 2017). On the same day, the record of trial was return ed to this court fo r further review.

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 ofthe charged sexual miscond uct for Military Rule of Evidence [hereinafter Mil. R. Evid.] 413 and Mil. R. Evid. 414 purpos es to show appellant’s propensity to commit the char ged sexual misconduct . Appellant alleges the military judge abused his di scretion in so ru ling. After hearin g the evidence and arguments from both trial an d defense counsel, which in cluded argument concerning propensity evidence, the military judge fo und appellant guilty of all charges and specifications.

In this judge-alone case, the military ju dge articulated his reasoning regarding the admission and use of evidence under Mil. R. Evid. 413 and Mi l. R. Evid. 414 as follows:

The Court has, in fa ct, conducted an [M il. R. Evid.] 403 balancing test on thos e three pieces of pr opensity evidence and has found that they are admissible for sentencing purposes and again, the Court wi ll provide a wr itten ruling to that effect, and importantly, the Court notes that that evidence was also co nsidered during the findings only for the limited purpose of propen sity and the c ourt used it only for that limited purpose and it had li ttle to no effectHAZELBOWER—ARMY 20150335

3 on the Court’s deliberations a nd findings, even though the Court finds it was properly admissible.

LAW AND DISCUSSION

Military Rules of Ev idence 413 and 414. *

In United States v. Hills , our superior court ruled the use of charged misconduct and propensity ev idence to prove other charged miscondu ct pursuant to Mil. R. Evid. 41 3 was improper. See 75 M.J. 350, 356 (C.A .A.F. 2016) (“It is antithetical to the presumption of innocen ce to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innoc ent.”). In Hukill , our superior court extended Hills to military judg e alone cases. See Hukill , 76 M.J. at 222 (“We therefore clarify that under Hills , the use of evidence of ch arged conduct as [Mil. R. Evid.] 413 propensity evidence for other charged conduct in the same case is error, regardless of the foru m, the number of victims, or wh ether the events are connected. Whether considered by member s or a military ju dge, evidence of a charged and contested offense . . . can not be used as propensity evidence in support of a companion charged offense.”) . Moreover, the CAAF found the presumption that a military judge knows and follows the law wa s rebutted by the evidence in the record and the error was not harmless beyond a reasonable doubt. See id. at 223. (“The presumption is that military judges will corr ectly follow the law, which would normally result in no legal error, not that an acknowledged erro r is harmless. The presumption cannot somehow rectify th e error or render it harmless.”).

Error in admitting propensity evidence of charged conduct is constitutional in nature. Therefore we mu st examine the military judge’s ruling under the constitutional standard in determining wh ether the error was harmless. When an error rises to a constitutional dimension, we may only affirmthe affected findings of guilty if we determine the error was harmless beyond a re asonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); United States v. Kreutzer, 61 M.J. 293, 298– 99 (C.A.A.F. 2005). “The inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whethe r, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence.” Kreutzer , 61 M.J. at 298 (citations and internal quotation marks omitted).

Here, while we find the military judg e’s use of propensi ty evidence of charged misconduct created an error rising to a constitu tional dimension, the error was harmless beyond a reason able doubt. The government ’s case was strong on each charged sexual assault offens e, independent of any inference ofpropensity.

*We specified this issu e to the parties on 7 Sept ember 2016, following oral argument.HAZELBOWER—ARMY 20150335

4 Appellant sexually assaulted three victims on separate occasions using a similar plan or scheme. All three victims testified.

Appellant was convic ted of four specifications of sexual assault against AA on 10 December 2013 at Fort Campbell, Kentucky. AA testified that she met appellant on a social media website where ap pellant stated he was sixteen years old. AA was fifteen years old at th e time. Appellant met AA and drove her to an isolated part of Fort Campbell, where he twice penetrated her mouth with his penis by grabbing the back of her neckand forcing her down onto his penis. AA testified that “every time I would try to re sist, it would just—he would be more aggressive with it . . . .” Appellant al so forcibly penetrated AA’s anus with his finger, and forcibly penetrated her anus with his penis. Appellant then dropped AA off at a shopette. In text messages before the inci dent, AA told appellant, “I said nothing sexual” and “Is this the only reason why you want to hangout?” Ap pellant replie d “No but it’s gonna happen.” The testimony of AA was clear, de tailed, and compelling. AA eventually reported this incident to he r mother, resulting in the investigation of appellant. These specifications were included in Charge I.

Appellant sexually assau lted SC, a fourteen-year-ol d girl, on two occasions. Appellant initiated contact with SC through Skype. SC te stified that ap pellant first visited her at home after scho ol, and nothing sexu al occurred. A few days later, in mid-to late September 2013, appellant visited SC after school and they started watching a movie. A ppellant then tried to kiss SC, an d she didn’t try to stop it. Appellant kept moving forward, and SC pu lled back. Appellan t then pushed SC down on the couch on her back, put his hands down her pants, and penetrated her vagina with his fingers. SC said, “Please stop. ” Appellant then pulled down SC’s pants, and while SC was squirming an d continually saying “Stop”, appellant penetrated her vulva with his penis, and then anally raped SC, telli ng her, “It will all be over soon.” Appell ant was not wearing a condom; he ejaculated inside SC’s anus. Appellant then put his cl othes on, said he was so rry, and walked out.

Following this incident, SC continued to talk to ap pellant on Skype because she “didn’t want [appe llant] to come back and do it again.” SC toldappellant she was in Texas for a month when she was on ly there for a week, and that she was moving, in an attempt to stop appellant from coming back again. In November 2013, appellant went to SC’s hous e unannounced. Afte r appellant knocked on the door, SC realized who was there and trie d to close the door. Appellant forced his way into the house, stating he just wanted to talk, an d SC asked him to “[ p]lease get out.” Appellant then walked towardSC, pulled her pants to her ankles, and proceeded to penetrate her vulva and anus with his penis, covering SC’s mouth with his hand to keep her quiet. SC asked ap pellant to stop. SC testified, “I yelled ‘Stop’ and ‘Ow.’” Appellant again stated, “It will all be over.” After the assault, appellant put his clothes on, said he was sorry, and walkedout the door, leaving SC crying in the living room.HAZELBOWER—ARMY 20150335

5 SC’s testimony was clear and compelling. The go vernment also called Dr. MS, a child and adult forensic psychi atrist, who explaine d the unpredictable ways children react to sexual assault, and how SC’s “playing along” with appellant in text messages after he se xually assaulted her the firs t time was a result of SC being too naïve to un derstand what she wa s playing with. The above conduct was included in two of the specifications of Charge II.

Appellant sexually assau lted MB, a fifteen-year-old girl, between June and mid-October 2013, in Elizab ethtown, Kentucky. Appella nt met MB through Skype and texting, and appellant and MB electronically exchan ged naked phot ographs of each other. Appellant came to MB’s home late one nigh t through the basement door to avoid her father, and they watched tele vision together. Noth ing sexual occurred during this visit. Two weeks later appellant again came to visit MB, coming in the house through the basement doo r. On this occasion appe llant and MB engaged in consensual oral, vaginal, an d anal intercou rse. This conduct is the gravamen of Specification 1 of The Additional Charge.

In addition to the charged conduct in this case, evidence was introduced of uncharged misconduct by appe llant that occurred while appellant was ab sent without leave from 10 January 2014 to 29 March 2014 . Appellant met fi fteen-year-old CS on social media, and th en visited CS at her aunt’s ho use in Rockford, Illinois. CS testified that appellant made physical contact with her on the front porch, to include hugging, kissing, grabbing her butt, and rubbing her stom ach. CS retreated to the house and appellant remained outside for an hour asking her to come back outside. Appellant also met AS, a fift een-year-old girl on a soci al media site, exchanging messages with her. Appellant drove to her home in Winneba go, Illinois. AS testified that appellant stayed in his car wh en he arrived. When AS proceeded to the side of the car, appellant pulled her hand into the carand made her stro ke his penis. AS got into the car shortly thereafter, and appellant was stroking his penis when the police arrived on the scene. The police noticed that appe llant had an erection when they pulled him ou t of the car. Appell ant made a statement essentially corroborating AS’s version of ev ents, and he was eventually convic ted of Indecent So licitation of a Child and Aggravated Crim inal Sexual Abuse in Wi nnebago County, Illinois.

In contrast to the strong government case described above, the defense case was weak. The defense arguedthat the text message tr affic between appellant and AA and SC showed they both consented to the se xual encounters wi th appellant, and that MB lied about her age in her online pr ofile. The defense also argued that all three victims had a motivation to lie. Howe ver, the testimony of the three victims in this case, appellant’s own te xt messages stating he woul d have sex with AA and SC without their cons ent, and his admission to SC when confronted with why he raped her (“Bcuz it was like a fa ntasy ive wanted to try then knowing I cud made me so horny”) overcome any infere nces that could be drawn from the online message traffic between appellan t and his victims.HAZELBOWER—ARMY 20150335

6 Viewing the evidence as a whole, we are convinced be yond a reasonable doubt that the use of charge d conduct as propensity evid ence by the military judge was harmless beyond a reasonable doubt.

CONCLUSION

On consideration of the entire record, including th e matters personally raised by appellant pu rsuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), the findings of guilty and sentence are AFFIRMED.

Judge CELTNIEKS and Judge HAGLER concur.

FOR THE COURT:

MALCOM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. FOR THE COURT: