UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           TOZZI, CELTNIEKS, and BURTON
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
               Private First Class DOUGLAS E. REYNOLDS, JR.
                         United States Army, Appellant

                                    ARMY 20140856

                           Headquarters, Fort Campbell
                       Steven E. Walburn, Military Judge
                  Colonel Susan K. Arnold, Staff Judge Advocate


For Appellant: Lieutenant Colonel Christopher Daniel Carrier, JA (on brief); Major
Andres Vazquez, Jr., JA.

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief).


                                      5 January 2017
                        -------------------------------------------------
                        SUMMARY DISPOSITION ON REMAND
                        -------------------------------------------------
Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of abusive sexual contact and one
specification of sexual abuse of a child in violation of Articles 120 and 120b,
Uniform Code of Military Justice, 10 U.S.C. §§ 920, 920b (2012 & Supp. I 2014)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for eighteen months, total forfeiture of all pay and
allowances, and a reduction to the grade of E-1. The convening authority approved
the sentence as adjudged.

       On 17 June 2016, this court summarily affirmed the findings and sentence in
this case. United States v. Reynolds, ARMY 20140856 (Army Ct. Crim. App. 17
Jun. 2016) (unpub.). On 30 September 2016, the Court of Appeals for the Armed
Forces granted appellant’s petition for grant of review and set aside our decision and
remanded the case to this court for consideration of the granted issue in light of
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). United States v. Reynolds, No.
REYNOLDS—ARMY 20140856

16-0697/AR, 2016 CAAF LEXIS 793. On 14 October 2016, the record of trial was
returned to this court for further review.

       As a result, this case is again before us for review pursuant to Article 66,
UCMJ. After considering the additional pleadings submitted by the parties and the
entire record in light of our superior court’s holding in Hills, we are convinced
appellant’s conviction is legally and factually sufficient.

                                   BACKGROUND

      Appellant stands convicted of sexually assaulting twelve year-old Ms. AL and
Sergeant First Class (SFC) YM at a family gathering near Fort Campbell where
appellant was assigned.

       After arraignment, but before trial on the merits, the government moved in
limine to allow the use of evidence of the charge against Miss AL “to help prove”
the charge against SFC YM. Trial defense counsel opposed this motion. The
military judge ruled that the government could use the charged sexual offenses
involving Ms. AL and SFC YM as propensity evidence for each other under Mil. R.
Evid. 413.

       On 5 November 2014, prior to trial on the merits, appellant elected to have his
case heard by the military judge, sitting alone. After hearing the evidence and
arguments from both trial and defense counsel, the military judge found appellant
guilty of the charges and their specifications.

                              LAW AND DISCUSSION

      Appellant argues our superior court’s holding in Hills is controlling in this
case and warrants a reversal of the military judge’s findings of guilty. We disagree.

        In Hills, our superior court found it error for the military judge, in a members
trial, to admit charged offenses as Mil. R. Evid. 413 evidence to show an appellant’s
propensity to commit the charged offenses. 75 M.J. at 355.

             Quite simply, we hold not only that charged offenses are
             not properly admitted under M.R.E. 413 to prove a
             propensity to commit the charged offenses, but also that
             the muddled accompanying instructions implicate
             “fundamental conceptions of justice” under the Due
             Process Clause by creating the risk that the members
             would apply an impermissibly low standard of proof,
             undermining both “the presumption of innocence and the



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             requirement that the prosecution prove guilt beyond a
             reasonable doubt[.]”
Id. at 357 (citing United States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000)).

      Hills involved two offenses against a single victim that occurred over the span
of two hours on one night. The case relied heavily on the testimony of the victim
who, at the time of assault, was heavily intoxicated and in and out of consciousness.
DNA evidence in the case also proved inconclusive.

       We have considered our superior court’s decision in Hills and find the present
case is distinguishable on many fronts. First, appellant elected to be tried by a
military judge sitting alone. Second, although the assaults occurred the same night,
appellant sexually assaulted two victims on separate occasions. Appellant first
assaulted Ms. AL after she went to sleep on the floor of her cousin’s bedroom.
Appellant entered the bedroom and rubbed Ms. AL’s buttocks and breast. Ms. AL
woke up, walked out to a living room where her mother (SFC YM) and uncle were
sleeping after a night of drinking, and decided not to wake them. AL then returned
to her cousin’s bedroom and laid down in an unoccupied upper bunk bed, where she
eventually fell back to sleep. After assaulting Ms. AL appellant retreated to the
basement, where he was to sleep for the night. Appellant then proceeded back
upstairs to the living room and touched the breast of SFC YM under her shirt and
bra. SFC YM then flailed her arms at appellant, who SFC YM then saw move away.
SFC YM then fell back to sleep. Appellant then grabbed the breast of SFC YM
again. SFC YM again flailed her arms at appellant and saw appellant move to the
other side of the room where he began to do push-ups. SFC YM then fell back to
sleep. The assaults of Ms. AL and SFC YM are clearly separate criminal acts
against two different victims, and not in any way a part of the same criminal course
of conduct. Third, SFC YM and Ms. AL’s memories of appellant’s assault were
clear and compelling. For these reasons this case is distinguishable from the facts
and holding in Hills.

       Although the military judge earlier in the proceeding ruled that the
government could use propensity evidence in a manner found to be in error in Hills,
this ruling became moot by virtue of appellant’s election for a bench trial. We do
not share appellant’s concern that his “presumption of innocence” was somehow
eroded by the military judge’s consideration of propensity evidence. “Military
judges are presumed to know the law and to follow it absent clear evidence to the
contrary.” United States v. Erickson,” 65 M.J. 221, 225 (C.A.A.F. 2007) (citing
United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). We are satisfied that
the military judge’s erroneous view on the admissibility of propensity evidence
under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk
that the military judge would apply an impermissibly low standard of proof
concerning both the presumption of innocence and the requirement that the
prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in

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the record to suggest that the military judge did not hold the government to its
burden of proving appellant’s guilt beyond a reasonable doubt, or that the military
judge applied a lesser standard in adjudicating the charges against the appellant.

                                  CONCLUSION

       On consideration of the entire record, the findings and sentence as approved
by the convening authority are AFFIRMED.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of
                                       Clerk of Court
                                                Court




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