UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
v.
Specialist CHRISTOPHER B. HUKILL
United States Army, Appellant

ARMY 20140939

Headquarters, Fort Campbell
Steven E. Walburn and Matthew A. Calarco, Military Judges
Colonel Laura J. Calese, Staff Judge Advocate ~

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Captain Benjamin A.
Accinelli, JA; Captain Steven J. Dray, JA (on brief and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Captain R. Tristan C. De Vega, JA (on
brief).

9 March 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

Appellant claims the military judge abused his discretion in prohibiting the
defense from questioning the victim, HG, about specific instances of conduct under
Military Rule of Evidence [Mil. R. Evid.] 608(b), which appellant argues bore on
HG’s character for untruthfulness.! We disagree.

 

' One of appellant’s other assigned errors is that he was denied his due process right
to speedy post-trial review by a post-trial delay of 272 days. We considered the four
factors set forth in Barker v. Wingo, 407 U.S. 514, 530-34 (1972), and find appellant
has not satisfied the fourth prong of demonstrating prejudice. Accordingly we grant
no relief. Appellant also personally raised matters pursuant to United States v.

Grostefon, 12 M.J. 431 (C.M.A. 1982). Pursuant to Grostefon, appellant claims his
(continued . . .)
HUKILL—ARMY 20140939
BACKGROUND

Appellant was initially tried in 2014 by a military judge sitting as a general
court-martial and convicted, contrary to his pleas, of one specification of rape and
one specification of abusive sexual contact in violation of Article 120, Uniform
Code of Military Justice, 10 U.S.C. § 920 [UCMJ]. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for seven
years, forfeiture of all pay and allowances, and reduction to the grade of E-1. This
court affirmed the findings and sentence on 9 August 2016. United States v. Hukill,
ARMY 20140939, 2016 CCA LEXIS 492 (Army Ct. Crim. App. 9 Aug. 2016) (mem.
op.). On 2 May 2017, the Court of Appeals for the Armed Forces (C.A.A.F.) set
aside the findings and sentence and authorized a rehearing. United States v. Hukill,
76 M.J. 219 (C.A.A.F. 2017).

At appellant’s rehearing, an enlisted panel sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of sexual assault and
two specifications of abusive sexual contact in violation of Article 120, UCMJ. The
panel sentenced appellant to a bad-conduct discharge, confinement for four years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the sentence as adjudged and credited appellant with
938 days against his sentence to confinement.

Appellant’s Offenses

Appellant and HG met when she responded to appellant’s online
advertisement for models for appellant’s motorcycle magazine. HG became friends
with appellant and his live-in girlfriend and would often spend the night at their
home. On one occasion, appellant and HG went to a local bar where appellant’s
girlfriend worked. While at the bar, HG consumed approximately twenty-six shots
of tequila over a period of approximately six hours. Appellant drove HG to his
home. During the drive home, HG vomited several times. Once they arrived at
appellant’s home, appellant told HG, “You need to take a bath.” HG replied that she
did not want to take a bath. Appellant insisted that she needed to take a bath, pinned
her against the wall, and then pulled HG’s clothes off. HG continued to tell

 

(. . . continued)

defense counsel were ineffective. However, appellant never states how his defense
counsel were deficient, let alone how he was prejudiced. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). We have given full and fair consideration to
appellant’s other assigned errors and his second Grostefon matter, and determine they
warrant neither discussion nor relief.
HUKILL—ARMY 20140939

appellant to stop, she did not want to take a bath, she did not want appellant to
remove her clothes, and she wanted to go to bed.

Appellant placed HG in the bathtub and then bathed her with a washrag.
Appellant touched HG’s breasts and vagina while HG repeatedly told him to stop.
After the bath, appellant dried HG with a towel, despite HG telling him that she
could do it herself. Appellant, again, touched her breasts, vagina, and buttocks. In
the hallway between the bathroom and bedroom, appellant pushed.HG up against the
wall, told her to “stop fighting with him,” and placed underwear on her by lifting her
legs and pulling it up her body. Appellant then carried HG to the guest bedroom,
and laid next to her in the bed. HG told appellant to leave her alone and then she
fell asleep. HG awoke to appellant inserting his finger into her vagina. HG told
appellant, again, to leave her alone. Appellant got up and left the bedroom.

Military Rule of Evidence 608(b) Testimony and Ruling

During the defense cross-examination of HG, the defense requested an Article
39(a) session outside the presence of the panel to discuss eliciting Mil. R. Evid.
608(b) testimony from HG. During the hearing, the defense proffered that, a couple
of days prior to trial, the government disclosed that HG “has an ongoing criminal
case in Jacksonville, Onslo County, North Carolina pertaining to check fraud.”
However, the government stated that upon asking HG more questions, they realized
it was not a criminal matter and proffered the following additional details:

There is an investigation. It is unclear to the government
which entity is conducting the investigation. But the facts
could be a landlord tenant dispute about days post an
eviction notice, and a check that was given but wasn’t
cashed for a couple of weeks, and then bounced, and when
money was tried to be given instead they wouldn’t take it
because then their eviction timeline would start over
because they had been paid. So there is an investigation
pending and we may be looking at nothing more than a
civil dispute between a landlord and tenant.”

The military judge then offered the defense the opportunity to call HG to
testify regarding the matter outside the presence of the panel.

 

* The government also proffered to the military judge that the Army Criminal
Investigation Command (CID) ran a background check and reached out to Onslo
County and “nothing has come up.”
HUKILL—ARMY 20140939

[Civilian Defense Counsel (CDC)]: Ma’am, are you
currently under investigation in Onslo County, North
Carolina for anything?

[HG]: Yes. And I was advised by my attorney back home
not to discuss it.

[CDC]: [W]hat is the nature of the investigation?
[HG]: I’m not allowed to discuss the case.
[CDC]: Is there a criminal investigation?

[HG]: Can I plead the Fifth Amendment?
[Military Judge]: If that’s what you want to do.

The military judge found that this was a “relatively amorphous collateral issue
related to [Mil. R. Evid. 608(b)]” and denied the defense request to question HG
regarding the investigation. Relying on United States v. Robertson, 39 M.J. 211
(C.M.A. 1994), the military judge held that even if he considered the evidence in the
light most favorable to the defense, “there are no underlying facts” showing “some
crime of moral turpitude in that a bad check was written knowing there weren’t
funds in an account in an attempt to defraud somebody in some manner.”

LAW AND ANALYSIS

We review a military judge’s evidentiary ruling for an abuse of discretion.
United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999). The abuse of discretion
is a strict one, calling for more than a mere difference of opinion. United States v.
McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000). The challenged action must be
arbitrary, fanciful, clearly unreasonable, or clearly erroneous. Jd. (citations and
internal quotation marks omitted).

Military Rule of Evidence 608(b) provides that “[e]xcept for a criminal
conviction under Mil. R. Evid. 609, extrinsic evidence is not admissible to prove
specific instances of a witness’s conduct in order to attack or support the witness’s
character for truthfulness. The military judge may, on cross-examination, allow
them to be inquired into if they are probative of the character for truthfulness of...
the witness.”
HUKILL—ARMY 20140939

“In order to have proper cross-examination as to misconduct relating to
untruthfulness: (1) there must be a good-faith belief by the opponent that the
conduct occurred; and (2) the conduct must relate to instance of untruthfulness.”
Robertson, 39 M.J. at 211, 214. “When such a specific act of misconduct is, in and
of itself, directly probative of the witness’ truthfulness, a military judge must allow
it because, by definition, it is always relevant to the issue of that witness’
credibility.” United States v. Stavely, 33 M.J. 92, 93 (C.M.A. 1991).

In appellant’s case, there is no evidence that the investigation involving HG
in North Carolina related to her untruthfulness. The mere existence of an
investigation is not probative of a witness’s character for truthfulness. See, e.g.,
Robertson, 39 M.J. at 215 (“The key to the impeachment questions is not the fact of
the arrest itself but, instead, whether the underlying facts of the arrest relate to
truthfulness or untruthfulness.”). The only evidence before the military judge was
HG’s testimony on the matter, in which she agreed that she was under investigation
in North Carolina, but then did not provide any further details, and invoked her Fifth
Amendment right to remain silent. Thus, the record does not reveal the underlying
facts of the investigation.

Further, the military judge considered the defense and government proffers,
assuming HG would testify accordingly, and found that “a disputed bounced check”
was not probative of her character for truthfulness. We agree.? Without more
details regarding how or why the check bounced, we cannot determine that this
specific act is probative of HG’s character for truthfulness. Accordingly, the
military judge did not abuse his discretion in not allowing the defense to question
HG regarding the investigation.

CONCLUSION

On consideration of the entire record, the findings of guilty and sentence are
AFFIRMED.

Judge RODRIGUEZ and Judge FLEMING concur.

 

> We note that Mil. R. Evid. 609 allows the introduction of a prior conviction if the
crime is one involving dishonesty. As appellant argues on appeal, a conviction for
writing a bad check, which requires proof beyond a reasonable doubt that the person
knowingly made a worthless check with intent to defraud, might be a crimen falsi
admissible under Mil. R. Evid. 609. See, e.g., United States v. Harper, 527 F.3d
396, 408 (Sth Cir. 2008). However, there is no evidence HG was convicted, just that
there was a pending investigation for something that might amount to a dishonored
check. Pursuant to Mil. R. Evid. 403, the probative value of this evidence is
outweighed by the danger of confusing the issues and misleading the panel.
HUKILL—ARMY 20140939

FOR THE COURT:

ke,

MALCOLM H. SQUIRES, JR.
Clerk of Court
