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

                             UNITED STATES, Appellee
                                         v.
                         Sergeant DWIGHT D. HARRIS, JR.
                           United States Army, Appellant

                                     ARMY 20131045

              Headquarters, Joint Readiness Training Center and Fort Polk
                   Wade N. Faulkner, Military Judge (arraignment)
              Gregory A. Gross, Military Judge (motions hearing & trial)
                   Colonel Samuel A. Schubert, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Heather L. Tregle, JA (on brief); Lieutenant Colonel
Charles D. Lozano, JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain Heather
L. Tregle, JA (on reply brief and Petition for New Trial).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Linda Chavez, JA (on brief and response to Petition for New Trial).


                                     28 February 2017

                         -------------------------------------------------
                         SUMMARY DISPOSITION ON REMAND
                         -------------------------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of carnal knowledge with a child under the
age of twelve, one specification of aggravated sexual assault of a child who had
attained the age of twelve years but had not attained the age of sixteen years, one
specification of abusive sexual contact with a child, and one specification of sexual
assault of a child in violation of Uniform Code of Military Justice Articles 120 and
120b, 10 U.S.C. §§ 920, 920b (2000 & Supp. V 2006; 2006 & Supp. IV 2011; 2006
& Supp. V 2012) [hereinafter UCMJ]. The military judge sentenced appellant to a
dishonorable discharge, confinement for forty-five years, and reduction to the grade
of E-1. The convening authority approved the sentence as adjudged.
HARRIS—ARMY 20131045

       On 27 July 2016, this court summarily affirmed the findings and sentence in
this case. United States v. Harris, ARMY 20131045 (Army Ct. Crim. App. 27 Jul.
2016) (unpub.). On 20 September 2016, the Court of Appeals for the Armed Forces
granted appellant’s petition for grant of review and set aside our decision and
remanded the case to this court for consideration of the granted issue in light of
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). United States v. Harris, No.
16-0704/AR, 2016 CAAF LEXIS 763 (C.A.A.F. 20 Sept. 2016) (unpub.). On 22
September 2016, the record of trial was returned to this court for further review.

       As a result, this case is again before us for review pursuant to Article 66,
UCMJ. After considering the additional pleadings submitted by the parties and the
entire record in light of our superior court’s holding in Hills, we are convinced
appellant’s conviction is legally and factually sufficient.

                                  BACKGROUND

       Appellant stands convicted of sexually assaulting his step-daughter, TCG, on
different occasions starting when she was seven years old; she was thirteen years old
the last time appellant sexually assaulted her. TCG disclosed these sexual assaults
to her maternal grandmother. Appellant was found not guilty of the charge and
specification related to the sexual assault of his other step-daughter, TDG.

       After arraignment, but before trial on the merits, the government moved in
limine to allow the use of evidence of the charged offenses as propensity evidence
for the other charged offenses. Defense counsel opposed this motion. After the
government filed its motion, but before arguments were heard, the government
moved to dismiss several of the charged offenses. At an Article 39(a), UCMJ,
session on 21 November 2013, appellant elected to have his case heard by the
military judge sitting alone. The written request was signed on 5 December 2013.
During that same Article 39(a), UCMJ, session, the military judge addressed the
government’s motion regarding Military Rule of Evidence [hereinafter Mil. R.
Evid.] 414 as follows:

             Let me go back to the 414 issue. So, I asked the
             government if the 414 notice was all charged misconduct
             or if it included uncharged misconduct. And so, what
             happened is apparently it was all charged when the
             government gave notice. Now, because of some of the
             specifications being dismissed, it might be some
             uncharged misconduct and the government is not one
             hundred percent sure that the victims, alleged victims, are
             going to talk about this stuff anyways. And so, now that it
             is judge alone, what we all decided would be the best
             course of action, I’m going to have to hear the evidence

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HARRIS—ARMY 20131045

                anyways. And so, we will just wait until that time comes.
                I’ll listen to the evidence then I will give you all a ruling.
                On the 414, obviously I’ll give you an opportunity to be
                heard again if that’s what you want to do.

          During closing argument, the government stated:

                Finally, there is MRE 414. If you find that, by a
                preponderance of the evidence that [appellant] sexually
                assaulted [TCG] on the 23 November incident, you can use
                that evidence as propensity evidence for these other
                incidents.

                . . . And for the other sexual encounters, you have the
                propensity of [appellant] to commit sexual offenses
                against these victims by virtue of MRE 414.

          After the government’s closing argument, the military judge
stated:

                Let me make it clear on the record that, the way we left
                the 414 issue was that, since the trial went to a judge
                alone, I would listen to the evidence, because I would
                have to listen to it anyway, and then I would make on [sic]
                ruling on whether or not I was going to use it as 414 and I
                will let you know that at some point whether or not I’m
                going to. I still want to review all my notes.

       After hearing the evidence and arguments from both trial and defense counsel,
the military judge found appellant not guilty with respect to the sole charge and
specification related to the sexual assault of TDG, but guilty of the remaining
charges and specifications related to TCG. After announcing findings, the military
judge stated:

                I did consider the offenses alleged in Specification 3 of
                Charge II and Specification 1 of Charge III, and the
                Specification of Additional Charge I as they related to
                each other for MRE 414 purposes but only as to those
                offenses.

                                 LAW AND DISCUSSION

      Appellant argues our superior court’s holding in Hills is controlling in this
case and warrants a reversal of the military judge’s findings of guilty. We disagree.

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HARRIS—ARMY 20131045

        In Hills, our superior court found it 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. 75 M.J. at 355. Our superior court
explained:

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

      Hills involved multiple offenses against a single victim that occurred over the
span of two hours on one night. The case relied heavily on the testimony of the
victim who, at the time of assault, was heavily intoxicated and in and out of
consciousness. The DNA evidence in the case also proved inconclusive.

       We have considered our superior court’s decision in Hills and find the present
case distinguishable on many fronts. First, appellant elected to be tried by a military
judge sitting alone. Second, although the assaults considered by the judge related to
a single victim, they occurred over a span of years. Third, TCG’s memories of
appellant sexually assaulting her were clear as to how, when, where, and what
offenses occurred. TCG testified that appellant would take off her clothes and have
sex with her. TCG’s definition of sex was “[w]hen a guy puts his penis into a girl’s
vagina.” This testimony is both clear and compelling. Moreover, her testimony
related to the 23 November 2012 sexual assault was corroborated by a Motel 6
receipt, wherein appellant paid cash for a room on that date despite the fact that it
was only a three hour drive to their destination. For these reasons, this case is
distinguishable from the facts and holding in Hills.

      Although the military judge ruled the government could use propensity
evidence in a manner found to be in error in Hills, this ruling became moot by virtue
of appellant’s election for a bench trial. “Military judges are presumed to know the
law and to follow it absent clear evidence to the contrary.” 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 erroneous view on
the admissibility of propensity evidence under Mil. R. Evid. 414 was harmless
beyond a reasonable doubt. We find no risk that the military judge would apply an

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HARRIS—ARMY 20131045

impermissibly low standard of proof concerning either the presumption of innocence
or the requirement that the prosecution prove guilt beyond a reasonable doubt. In
short, 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.

                                  CONCLUSION

       On consideration of the entire record, the findings and sentence as approved
by the convening authority are AFFIRMED.

                                          FOR THE COURT:




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




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