UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                      Private First Class ETHAN M. CRAIG
                          United States Army, Appellant

                                   ARMY 20170320

                 Headquarters, 21st Theater Sustainment Command
                     David H. Robertson, Military Judge (trial)
                 Colonel Paula I. Schasberger, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W.
Simpson, JA; Captain Joshua B. Fix, JA (on brief).

For Appellee: No response filed.


                                      18 May 2018

                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

CAMPANELLA, Senior Judge:

      In this case we hold that even if the military judge erred in admitting certain
sentencing evidence, there was no prejudice to appellant’s substantial rights.

       A military judge sitting as a special court-martial, convicted appellant,
pursuant to his pleas, of two specifications of disobeying his superior commissioned
officer, one specification of drunken operation of a motor vehicle, one specification
of assault consummated by battery, and one specification of disorderly conduct, in
violation of Articles 90, 111, 128 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 890, 911, 928, 934 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge and confinement for six months.
Pursuant to a pretrial agreement, the convening authority approved only so much of
the adjudged sentence as provided for a bad-conduct discharge and confinement for
five months.

       This case is before the court for review under Article 66, UCMJ. The
government has failed to respond to appellant’s brief in a timely fashion. Appellant
raises one assignment of error, which merits brief discussion, but no relief.
CRAIG—ARMY 20170320

                                 BACKGROUND

       In 2016, appellant dated a nineteen-year-old German national, AH, for less
than a year. In October of that year, a verbal altercation in public resulted in the
German police being called and because appellant was found to be drunk at the time,
his commander enrolled appellant in the Army Substance Abuse Program (ASAP)
and ordered him not to drink alcohol.

       Less than two months later, appellant violated his commander’s order and
drank alcohol while at a bar with AH. As they exited a taxi to come onto the
installation, appellant pushed AH. While AH was crying and saying she wanted to
go home, appellant pulled her in the direction he wanted to go until a non-
commissioned officer intervened and flagged down the military police.

      Appellant’s chain of command ordered him to refrain from any contact with
AH, but he repeatedly violated the order such that AH’s family was compelled to
involve German family court to obtain a restraining order against appellant.

       In March 2017, appellant was driving while drunk with a passenger in the
vehicle and hit a concrete barrier. The vehicle was totaled. Appellant denied being
the driver, but an eyewitness saw appellant driving the vehicle.

                              LAW AND ANALYSIS

       When defense objects to the admission of evidence, we first consider whether
the judge abused his or her discretion by admitting the evidence. United States v.
Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). If so, the government bears the burden
to convince the appellate court that admission of the evidence was harmless. See,
e.g., United States v. Pablo, 53 M.J. 356, 359 (C.A.A.F. 2000) (citing United States
v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)). We evaluate prejudice from an erroneous
admission or exclusion of evidence during sentencing by assessing whether the error
substantially influenced the adjudged sentence. United States v. Griggs, 61 M.J.
402, 410 (C.A.A.F. 2005) (citations omitted). If it substantially influenced the
adjudged sentence, then the result is material prejudice to appellant’s substantial
rights. Id. (citing UCMJ art. 59(a)). As such, we consider: 1) the probative value
and weight of the evidence; 2) the importance of the evidence in light of other
sentencing considerations; 3) the danger of unfair prejudice resulting from the
evidentiary ruling; and 4) the sentence actually imposed, compared to the maximum
and to the sentence the trial counsel argued for. Griggs 61 M.J. at 413 (Crawford, J.
dissenting) (citing United States v. Saferite, 59 M.J. 270, 274-75 (C.A.A.F. 2004)).

      Appellant asserts the military judge erred by admitting evidence of appellant’s
poor duty performance, alleged uncharged misconduct, and other improper
sentencing evidence over defense counsel’s objection. Specifically, appellant takes



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CRAIG—ARMY 20170320

issue with the “admission of voluminous erroneous testimony,” including: how
witnesses would rank appellant against other soldiers and his duty performance, that
appellant would miss his ASAP meetings, the burdens on the command, and the
ineffectiveness of various rehabilitative strategies. Due to the government’s failure
to file a timely response, we are left without the benefit of government counsel’s
argument on this assigned error. Accordingly, we now decide this case based on the
record of trial before us and appellant’s brief.

       Assuming the military judge erred in admitting such evidence, we find the
error harmless as it did not materially prejudice appellant’s rights. Appellant
pleaded guilty to a pattern of serious misconduct from early December 2016 to mid-
March 2017. This included assaulting AH while intoxicated, violating a military no-
contact order meant to protect his victim, violating an order not to drink alcohol, and
driving while drunk with a passenger in the vehicle. Given the aggravating nature of
the offenses, we are confident that the admission of the alleged improper evidence,
as asserted by appellant, played little role in the military judge’s sentencing
decision. Appellant’s sentence to confinement was less than half of the
jurisdictional maximum of appellant’s special court-martial. We are also confident
that based on the gravamen of appellant’s misconduct the military judge would have
sentenced appellant to at least the approved sentence of a bad-conduct discharge and
five months of confinement even without the government’s assumedly improper
presentencing case.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge SALUSSOLIA and Judge FLEMING concur.
                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:



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




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