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

                            UNITED STATES, Appellee
                                         v.
                          Sergeant JAMES N. COSTIGAN
                           United States Army, Appellant

                                     ARMY 20150052

                               Headquarters, Fort Drum
                     Troy A. Smith, Military Judge (arraignment)
              S. Charles Neill, Military Judge (motions hearing & trial)
              Lieutenant Colonel Derek D. Brown, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Bryan A.
Osterhage, JA; Captain Joshua B. Fix, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).


                                       9 January 2018
                        ---------------------------------------------------
                         SUMMARY DISPOSITION ON REMAND
                        ---------------------------------------------------

Per Curiam:

       This case is again before us for review pursuant to Article 66, Uniform Code
of Military Justice, 10 U.S.C. § 866 (2012). After considering the additional
pleadings submitted by the parties and the entire 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 legally and factually sufficient. Given the
overwhelming strength of the government’s case, we find the propensity evidence
did not contribute to the findings of guilty or appellant’s sentence, and any error was
harmless beyond a reasonable doubt.

       A military judge sitting as a general court martial convicted appellant,
contrary to his pleas, of four specifications of aggravated sexual contact with a child
who had not attained the age of twelve years, in violation of Article 120, UCMJ.
The military judge sentenced appellant to a dishonorable discharge, confinement for
thirty-six years, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged.
COSTIGAN—ARMY 20150052

       On 28 September 2016, this court affirmed the findings of guilty and the
sentence. United States v. Costigan, ARMY 20150052 (Army Ct. Crim. App.
28 Sept. 2016) (unpublished). On 27 July 2017, our superior court remanded the
case for reconsideration in light of its holding in Hukill. United States v. Costigan,
76 M.J. 441 (C.A.A.F. 2017) (summ. disp.).

                                  BACKGROUND

       Appellant stands convicted of sexual offenses against his two daughters, AC
and EC. At the time of trial, AC was ten years old and EC was eight years old. The
military judge granted a government motion, over defense objection, to allow use of
charged sexual misconduct to show appellant’s propensity to commit other
specifications of charged sexual misconduct under Military Rule of Evidence
[hereinafter Mil. R. Evid.] 413 and Mil. R. Evid. 414. Appellant alleges the military
judge abused his discretion in so ruling.

       Appellant was charged with several offenses that would qualify as “child
molestation” under Mil. R. Evid. 414 for allegedly abusing his daughters. In a
pretrial motion, the government sought to introduce evidence of the charged offenses
involving EC as propensity evidence to support the charged offenses involving AC,
and vice versa. In the motion, the trial counsel requested the military judge give the
panel the then standard instruction from the Military Judges’ Benchbook to inform
the panel “they can use each sister’s testimony as propensity evidence in support of
the others [sic].” The defense did not file a written response to the motion. When
the issue was raised during the motions hearing, the defense requested to litigate the
issue when the parties discussed instructions at trial. Both the military judge and the
government counsel agreed with this proposed course of action. Ultimately,
appellant elected to be tried by military judge alone.

       Prior to closing arguments, the military judge discussed the government’s
motion to admit evidence under Mil. R. Evid. 414 with both parties. The defense
objected to the use of the propensity evidence, arguing it failed the Mil. R. Evid. 403
balancing test because the strength of proof for each charge was weak. The
government argued it had satisfied its burden to admit the evidence, noting the
evidence was strong and the charges were identical. Because the military judge
thought his ruling might impact how counsel argued, he recessed the court-martial
for the evening so he could provide a written ruling in advance of closing arguments.
That evening, the military judge granted the government’s motion ruling:

             The Government has satisfied its burden and may argue
             that evidence presented by each of the alleged victims
             listed under Charge I may be used as evidence that
             [appellant] committed the other offenses alleged in the
             other specifications of Charge I.




                                           2
COSTIGAN—ARMY 20150052

       In reaching this conclusion, the military judge applied the Mil. R. Evid. 403
balancing test and factors from United States v. Wright, 53 M.J. 476, 482 (C.A.A.F.
2000). In applying the Wright factors, the military judge determined the following
about the strength of the proof of the charged offenses and the probative weight of the
propensity evidence for EC and AC:

             The Court finds the evidence of child molestation of [EC]
             is very strong. As set forth above, [EC] was a credible
             witness. She testified candidly and does not have an
             apparent motive to fabricate these allegations. Her
             testimony is also supported by her inappropriate touching
             during the dates of the alleged offenses. . . . The
             probative value is very high. The Court notes that these
             acts against [EC] have several common factors with the
             other specifications under Charge I in which her sister is
             listed as the alleged victim. In all Specifications,
             [appellant] touched his underage daughters or caused them
             to touch him inappropriately.

             ....

             The Court finds the evidence of child molestation of [AC]
             is strong. As set forth above, she was a credible witness.
             She testified candidly and does not have an apparent
             motive to fabricate these allegations. Of note, unlike her
             sister, [AC] did not touch herself inappropriately in public
             or exhibit other outward signs of child molestation.
             However, her testimony was persuasive on its own. . . .
             The probative value is high. The Court notes that these
             acts against [AC] have several common factors with other
             specifications under Charge I in which her sister is listed
             as the alleged victim. In all Specifications, [appellant]
             touched his underage daughters or caused them to touch
             him inappropriately.

                             LAW AND DISCUSSION

                      Military Rules of Evidence 413 and 414.

       In United States v. Hills, our superior court ruled the use of charged
misconduct as propensity evidence to prove other charged misconduct pursuant to
Mil. R. Evid. 413 was improper. See 75 M.J. 350, 356 (C.A.A.F. 2016) (“It is
antithetical to the presumption of innocence to suggest that conduct of which an
accused is presumed innocent may be used to show a propensity to have committed




                                          3
COSTIGAN—ARMY 20150052

other conduct of which he is presumed innocent.”). In Hukill, our superior court
extended Hills to military-judge-alone cases as follows:

             We therefore clarify that under Hills, the use of evidence
             of charged conduct as [Mil. R. Evid.] 413 propensity
             evidence for other charged conduct in the same case is
             error, regardless of the forum, the number of victims, or
             whether the events are connected. Whether considered by
             members or a military judge, evidence of a charged and
             contested offense . . . cannot be used as propensity
             evidence in support of a companion charged offense.

Hukill, 76 M.J. at 222. Moreover, our superior court found the presumption that a
military judge knows and follows the law was 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 correctly follow the law, which would
normally result in no legal error, not that an acknowledged error is harmless. The
presumption cannot somehow rectify the error or render it harmless.”).

       Error in admitting propensity evidence of charged conduct is constitutional in
nature. Therefore, we may only affirm the affected findings of guilty if we
determine the error was harmless beyond a reasonable 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 whether, beyond a reasonable doubt, the error
did not contribute to the defendant’s conviction or sentence.” Kreutzer, 61 M.J.
at 298 (internal quotation marks and citations omitted).

       Here, while we find the use of charged misconduct as propensity evidence of
other charged misconduct created an error rising to a constitutional dimension, the
error was harmless beyond a reasonable doubt. The government’s case was strong
on the charges for which he was convicted, independent of any inference of
propensity. Appellant sexually assaulted two victims on separate occasions using a
similar plan or scheme. Both victims testified compellingly, and they were able to
corroborate the details of the evenings spent naked in their father’s bed and the
sexual contact that followed the next morning. Specifically, EC observed appellant
force his penis into her sister’s mouth, and AC observed the same act by appellant
with her sister. Perhaps most compelling was EC’s abnormal behavior witnessed by
several adult educators and support staff at school, outside of the family setting.
This conduct was characterized by an expert witness as indicative of a traumatized
child. EC exhibited outbursts, forced hugs, rubbed her genital area, and inserted her
finger, hands, and objects into her vagina.

      Appellant’s statements support Specifications 3 through 6. In response to the
school officials confronting him about EC’s behavior and continued self-touching


                                          4
COSTIGAN—ARMY 20150052

throughout the day, appellant stated that he lost his virginity when he was eleven
years old. Appellant made a statement to the state investigator that was viewed by
the fact-finder as evidence of his guilt. He admitted to Investigator RP that his
daughters slept in bed with him and further stated that, if he committed any of the
acts alleged by his daughters, it must have been in his sleep. In contrast, AC
testified that appellant would force both her and her sister to touch his penis with
their hands; however, EC never made that assertion, and the military judge found
appellant not guilty of this allegation.

       Throughout the government’s twenty-eight-page closing and rebuttal
arguments, there was only one sentence regarding propensity. See United States v.
Bonilla, ARMY 20131084, 2016 CCA LEXIS 590, at *25 (Army Ct. Crim. App. 30
Sept. 2016) (mem. op.) (determining the government’s failure to argue propensity
weighed against prejudice), pet. granted, aff’d, 76 M.J. 335 (C.A.A.F. May 3, 2017)
(summ. disp.). The government argued “[s]ome of the strongest evidence” was that
there are two victims who were assaulted “in the same way and the same manner[.]”
We find the most compelling evidence is that the two victims were assaulted in each
other’s presence and observed each other being molested in their father’s bedroom,
which all parties acknowledged was the common sleeping arrangement. Also of note
is the military judge’s Mil. R. Evid. 414 ruling, which found no indication of AC
and EC collaborating prior to providing testimony and found both AC and EC
independently credible. Appellant further implies the government’s statement that
“[t]here are two witnesses who corroborate each other[’s] stories,” is a propensity
argument. However, as stated above, the sisters were in the same bed or the same
room when appellant molested them. As such, AC and EC’s testimony did in fact
corroborate each other as eyewitness testimony, not as propensity evidence.

      Viewing the evidence as a whole, we are convinced beyond a reasonable
doubt that the use of charged conduct as propensity evidence by the military judge
was harmless beyond a reasonable doubt.

                                   CONCLUSION

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

                                           FOR
                                           FOR THE
                                               THE COURT:
                                                   COURT:




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




                                          5
