                         UNITED STATES, Appellee

                                         v.

          Carl T. BRIDGES, Fireman Machinery Technician
                   U.S. Coast Guard, Appellant

                                  No. 07-0701
                            Crim. App. No. 1233

       United States Court of Appeals for the Armed Forces

                          Argued March 11, 2008

                           Decided May 12, 2008

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Lieutenant Commander Necia L. Chambliss
(argued); Lieutenant Commander Nancy J. Truax and Captain Teresa
Lynn Raymond.

For Appellee:   Lieutenant Commander Patrick M. Flynn (argued).



Military Judge:    Timothy G. Stueve



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bridges, No. 07-0701/CG


    Chief Judge EFFRON delivered the opinion of the Court.

    A special court-martial composed of a military judge sitting

alone, convicted Appellant, pursuant to his pleas, of

insubordinate conduct toward a superior petty officer (two

specifications), wrongful use of controlled substances (three

specifications), and breaking restriction, in violation of

Articles 91, 112a, and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 891, 912a, 934 (2000).   The sentence

adjudged by the court-martial and approved by the convening

authority included a bad-conduct discharge, confinement for 120

days, and reduction to pay grade E-1.   The United States Coast

Guard Court of Criminal Appeals affirmed.   United States v.

Bridges, 65 M.J. 531, 535 (C.G. Ct. Crim. App. 2007).

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
     WHEN HE ADMITTED PROSECUTION EXHIBIT 3 OVER
     DEFENSE OBJECTION BECAUSE IT WAS EXTRINSIC
     EVIDENCE OF SPECIFIC ACTS OF MISCONDUCT OFFERED
     TO REBUT AN OPINION. See United States v.
     Hallum, 31 M.J. 254 (C.M.A. 1990).

     For the reasons set forth below, we affirm.



                         I.   BACKGROUND

     During the sentencing proceeding, the Government introduced

documentary evidence from Appellant’s personnel records showing



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entries for abusive behavior, use of disrespectful language to a

superior petty officer, and tardiness.    In addition, Appellant’s

commanding officer testified about the adverse impact of

Appellant’s insubordinate conduct and drug offenses on the

efficiency and discipline of Appellant’s command.   The

Government also introduced testimony regarding the adverse

impact resulting from Appellant’s violation of his pretrial

restriction.

     The defense’s sentencing case consisted primarily of

Appellant’s unsworn statement and letters offered in mitigation

from family members and acquaintances who wrote favorably of

Appellant’s character and rehabilitative potential.   In the

unsworn statement, Appellant said that “I learned more about

life in the past year and the time that I’ve spent in the Coast

Guard than any other part of my life.”    In addition, Appellant

requested that he not receive a bad-conduct discharge.    He did

not address the subject of confinement.

     When the defense offered the letters in mitigation, the

Government objected that the letters contained inadmissible

hearsay.   The military judge granted a defense motion to relax

the rules of evidence during sentencing and admit the letters

into evidence.   See Rule for Courts-Martial (R.C.M.) 1001(c)(3).

     In one of the letters, written on October 22, 2004, shortly

before Appellant’s court-martial, Appellant’s father stated that


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although his son had “made some poor choices and used bad

judgment on more than one occasion,” he had “grow[n] up quite a

bit over the last several months.”     Appellant’s father added

that “[t]he whole experience of being in the Coast Guard (even

in the Brig) has helped him grow and develop as a man,” and that

his son was “more squared away now than he has ever been in his

life.”

         The prosecution, in rebuttal to the letter from

Appellant’s father, offered a letter to trial counsel from the

officer-in-charge of the brig where Appellant had been in

pretrial confinement since July 2004.    The letter, dated

September 2, 2004, noted that Appellant had “displayed a

negative attitude while in confinement, consistently displaying

an uncooperative attitude toward Brig staff as well as appearing

to have a negative influence on his peers.”    The letter

indicated that a Discipline and Review Board recently found that

Appellant had violated several prison regulations.    The letter

noted that Appellant had been placed in “Desegregation” for

“Disobedience, Disrespect, Staff Harassment and Provoking words

and Gestures.”

     Defense counsel objected to the admission of the letter

from the brig official, arguing that it was not proper rebuttal,

that it contained improper aggravation evidence, and that its

probative value was substantially outweighed by the danger of


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unfair prejudice.    In addition, defense counsel maintained that

the brig letter could not be used to rebut the father’s letter

because it predated the father’s letter.    Defense counsel

asserted that the letter from Appellant’s father did not purport

to reflect on his behavior in the brig, but instead constituted

an opinion as to “what he feels his son has gained from the

Coast Guard.”   In response, trial counsel asserted that the brig

letter rebutted the impression left by the father’s letter that

Appellant’s behavior improved in the brig.   The military judge

admitted the brig letter without comment.

     During closing argument on sentencing, trial counsel

asserted that Appellant’s actions demonstrated a pattern of

disobedience which brought discredit on his unit, as evidenced

by the unfavorable administrative entries in Appellant’s

personnel records, the testimony regarding the adverse impact of

Appellant’s conduct, and the brig letter.    Referring to the brig

letter, trial counsel argued that Appellant continued on a

“downhill course of discrediting his service and showing

disrespect. . . . Even confinement did not alter his course.”

     In his sentencing argument, defense counsel characterized

Appellant’s actions as “youthful indiscretions,” noting that

Appellant was nineteen years old at the time of the offenses and

the court-martial.   Defense counsel argued that Appellant would

become a valuable servicemember with additional training and


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leadership, and emphasized that a bad-conduct discharge would

“do nothing but hurt this individual at a very young stage in

life on a permanent basis.”

     Trial counsel recommended that the military judge sentence

Appellant to a bad-conduct discharge, 150 days confinement, and

reduction to pay grade E-1.       Defense counsel recommended a

sentence of no more than ninety days confinement and reduction

to pay grade E-2.   The military judge sentenced Appellant to a

bad-conduct discharge, confinement for 120 days, and reduction

to E-1.

     On appeal, the Coast Guard Court of Criminal Appeals held

that the military judge did not err in admitting the letter from

the brig official during the sentencing phase.       Bridges, 65 M.J.

at 534-35.   The lower court concluded that the letter served as

proper rebuttal because it put the father’s letter “in

perspective by offering a different viewpoint” on Appellant’s

behavior.    Id. at 534.   The court further concluded that the

probative value of the brig letter was not outweighed by the

danger of unfair prejudice to Appellant.        Id.; see Military Rule

of Evidence (M.R.E.) 403.



                            II.    DISCUSSION

     The granted issue asks whether the military judge erred by

admitting the letter from the brig official as rebuttal.


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Appellant argues that a military judge commits an abuse of

discretion by allowing the Government to introduce any extrinsic

evidence of specific acts of misconduct to rebut an accused’s

presentencing character evidence.    Additionally, Appellant

contends that the brig letter did not factually rebut the

father’s letter and was unfairly prejudicial because it tended

merely to allege that Appellant committed acts of uncharged

misconduct.   The Government responds that the military judge

properly admitted the brig letter in rebuttal to the father’s

letter.   The Government argues that the brig letter tended to

disprove or counteract the impression left by the father’s

letter regarding Appellant’s behavior in the brig, and the

probative value of the brig letter outweighed any prejudice to

Appellant.

     Under Article 59(a), UCMJ, an error of law regarding the

sentence does not provide a basis for relief unless the error

materially prejudiced the substantial rights of the accused.

See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000); United

States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005).    Assuming,

without deciding, that the brig letter was erroneously admitted

over defense objection, we conclude that the alleged error was

not prejudicial under Article 59(a), UCMJ.   The sentence in the

present case was adjudged by a military judge.   As the

sentencing authority, a military judge is presumed to know the


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law and apply it correctly absent clear evidence to the

contrary.   United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F.

2007); United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997).

There is no indication that the military judge gave significant

weight to the brig violations noted in the letter from the brig

official, see United States v. Gorence, 61 M.J. 171, 174

(C.A.A.F. 2005), particularly in light of the fact that the

record contained ample additional evidence in aggravation from

Appellant’s personnel records and the testimony of witnesses.

See Griggs, 61 M.J. at 410.   At oral argument, appellate defense

counsel acknowledged that, in view of Appellant’s offenses, it

was likely that a bad-conduct discharge and reduction to the

lowest enlisted grade would have been adjudged even if the

letter from the brig official had not been admitted into

evidence.   In that context, the issue of prejudice on appeal

primarily involves a relatively brief period of confinement (120

days), which was only thirty days longer than the maximum amount

of confinement recommended by defense counsel.

     Under these circumstances, we are confident that any error

in the admission of the brig letter did not substantially

influence the adjudged sentence.       See Griggs, 61 M.J. at 410;

United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001).

Appellant has not demonstrated that any error materially

prejudiced his substantial rights.      See Article 59(a), UCMJ.


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                         III.   DECISION

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




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