UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        CAMPANELLA, HERRING, and PENLAND
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Sergeant ARTURO A. TAFOYA
                           United States Army, Appellant

                                      ARMY 20140798

                             Headquarters, Fort Drum
                         S. Charles Neill, Military Judge
             Lieutenant Colonel Derek D. Brown, Staff Judge Advocate


For Appellant: Major Christopher D. Coleman, JA; Captain Jennifer K. Beerman, JA
(on brief).

For Appellee: Major Daniel D. Derner, JA (on brief).


                                      14 February 2017
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                         SUMMARY DISPOSITION ON REMAND
                         --------------------------------------------------

PENLAND, Judge.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of fraternization and three specifications
of abusive sexual contact, in violation of Articles 92 and 120, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 920 (2012) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a bad-conduct discharge, confinement
for twenty-one months, forfeiture of all pay and allowances, and reduction to the
grade of E-1.

       Reviewing the case under Article 66, UCMJ, we previously affirmed the
findings of guilty and the sentence on 5 February 2016. United States v. Tafoya,
ARMY 20140789 (Army Ct. Crim. App. 5 Feb. 2016). We considered the matters
personally submitted by appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982); they lack merit. On 8 August 2016, in light of United States v.
Hills, 75 M.J. 350 (C.A.A.F. 2016), our superior court set aside our decision and
remanded the case for our consideration of whether the military judge
TAFOYA—20140798

unconstitutionally applied Military Rule of Evidence [hereinafter Mil. R. Evid.] 413
by determining a factfinder could find by a preponderance of the evidence that
appellant committed each of the acts alleged in the three abusive sexual contact
specifications. United States v. Tafoya, USCA Dkt. No 16-0369/AR, ARMY
20140789 (C.A.A.F. 8 Aug. 2016).

       At arraignment, appellant elected trial by military judge alone. Shortly
afterward, the military judge acknowledged the government’s notice of intent and
motion to use evidence of each specification of abusive sexual contact as evidence
of appellant’s propensity to commit the other two specifications of abusive sexual
contact. The military judge deferred ruling until after presentation of evidence and
before closing arguments. Over defense opposition, the military judge granted the
motion to allow the government to use propensity evidence in a manner found to be
in error in Hills.

      After hearing the evidence and arguments from both parties, the military
judge found appellant guilty of both charges and their specifications. Appellant
argues our superior court’s holding in Hills warrants setting aside and dismissing
Charge I and its specifications. We disagree.

        In Hills, our superior court found error where a military judge, in a panel
trial, admitted evidence of charged offenses as Mil. R. Evid. 413 evidence to show
an appellant’s propensity to commit other charged offenses. Hills, 75 M.J. at 355-
56.

             Quite simply, we hold not only that charged offenses are
             not properly admitted under [Mil. R. Evid.] 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
             requirement that the prosecution prove guilt beyond a
             reasonable doubt[.]”

Id. 75 M.J. at 357 (citing United States v. Wright, 53 M.J. 476, 481 (C.A.A.F.
2000)).

       This case is significantly different, for appellant elected to be tried by a
military judge sitting alone. We harbor no concern that appellant’s constitutional
rights, including the presumption of innocence, were 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.”

                                          2
TAFOYA—20140798

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 the military judge’s
view on the admissibility of propensity evidence under Mil. R. Evid. 413 was
harmless beyond a reasonable doubt. United States v. Hukill, ARMY 20140939,
2016 CCA LEXIS 505 (Army Ct. Crim. App. 16 Aug. 2016). We find no risk that
the military judge’s decision diluted the presumption of innocence or the
requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put,
we find nothing in the record to suggest 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
appellant.

       The findings and sentence as approved by the convening authority are correct
in law and fact and should be approved; they are AFFIRMED.

      Senior Judge CAMPANELLA and Judge HERRING concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court




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