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

                             UNITED STATES, Appellee
                                         v.
                      Private E1 JAMESON T. HAZELBOWER
                           United States Army, Appellant

                                     ARMY 20150335

                            Headquarters, Fort Campbell
                         Steven E. Walburn, Military Judge
             Lieutenant Colonel Robert C. Insani, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Lieutenant Colonel Melissa
R. Covolesky, JA; Captain 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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 specifications of rape,
two specifications of rape of a child, two specifications of sexual abuse of a child,
sexual assault of a child, and possession of child pornography, in violation of
Articles 85, 120, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
885, 920, 920b, and 934 (2012) [hereinafter UCMJ]. The military judge sentenced
appellant to a dishonorable discharge, confinement for fifty years, and forfeiture of
all pay and allowances. Appellant received 201 days of confinement credit. The
convening authority approved the sentence as adjudged.

      This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, one of which merits discussion but no
HAZELBOWER—ARMY 20150335
relief. The matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), do not warrant relief. 1
                                  BACKGROUND
       Appellant stands convicted of sexual offenses against three different victims,
AA, SC, and MB. The military judge granted a government motion, over defense
objection, to allow use of the charged sexual misconduct for Mil R. Evid. 413 and
414 purposes to show appellant’s propensity to commit the charged sexual
misconduct. Appellant alleges the military judge abused his discretion in so ruling.
The military judge also allowed evidence of uncharged misconduct to show
appellant’s propensity to commit the charged offenses. After hearing the evidence
and arguments from both trial and defense 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 defense 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 introduction of hearsay
statements of SC in Prosecution Exhibit 30, where SC repeatedly alleges that
appellant raped her, and by failing to effectively attack SC’s assertions on cross-
examination; and (2) failed to object to the improper introduction of Mil. R. Evid.
[hereinafter Mil. R. Evid.] 413/414 evidence concerning AH, C, and G. We
disagree with these assertions. Under the circumstances of this case, we see no
need to order affidavits from CPT G and Mr. P (regarding 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). Regarding 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 demonstrates defense
counsel’s strategy of attacking the veracity of SC’s assertions by pointing out her
Skype messages, which could 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 observations.” Ginn, 47 M.J. at 248.
Furthermore, “the appellate filings and the record as a whole ‘compellingly
demonstrate’ the improbability 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.




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HAZELBOWER—ARMY 20150335
concerning propensity evidence, the military judge found appellant guilty of all
charges and specifications.

                              LAW AND DISCUSSION

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

       We have considered our superior court’s holding in Hills, that it was 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. Id.
at 357. Consistent with the facts in United States v. Hukill, appellant in the instant
case elected to be tried by a military judge sitting alone. ARMY 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 piercing the presumption of
innocence with contradictory or erroneous panel instructions. “Military judges are
presumed to know the law and to follow it absent clear evidence 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 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. In addition, in the context of ruling on
the use of propensity evidence during the sentencing portion of the trial, the military
judge stated:

             The Court has, in fact, conducted 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 propensity and the court used it only
             for that limited purpose and it had little to no effect on the
             Court’s deliberations and findings, even though the Court
             finds it was properly admissible.

It is clear from this ruling that the military judge was well aware of the limits of
propensity evidence in this case. There is no danger the military judge trampled
upon appellant’s presumption of innocence.

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HAZELBOWER—ARMY 20150335
       In light of the military judge’s characterization of his use of propensity
evidence on the record, we are satisfied the military judge’s view on the
admissibility of propensity evidence involving the victims of the charged offenses
under Mil. R. Evid. 413 and 414 was harmless beyond a reasonable doubt. We find
no risk that the military judge applied an impermissibly low standard of proof
concerning both the presumption 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 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.

                                  CONCLUSION
       On consideration of the entire record, including the matters personally raised
by the appellant pursuant to Grostefon, the findings and sentence as approved by the
convening authority are AFFIRMED.
      Judge CELTNIEKS and Judge BURTON concur.
                                      FOR
                                    FOR   THE
                                        THE   COURT:
                                            COURT:



                                    JOHN P. TAITT
                                      JOHN
                                    Chief    P. TAITT
                                          Deputy Clerk of Court
                                      Chief Deputy Clerk of Court




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