UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         MULLIGAN, HERRING, and BURTON
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                        v.
                    Sergeant First Class JAMES E. HOPKINS
                         United States Army, Appellant

                                     ARMY 20140913

      Headquarters, U.S. Army Fires Center of Excellence and Fort Sill (trial)
             Headquarters, U.S. Army Combined Armed Center and
                        Fort Leavenworth (DuBay hearing)
                  Jeffery R. Nance, Military Judge (arraignment)
                  Charles L. Pritchard, Jr., Military Judge (trial)
                 J. Harper Cook, Military Judge (DuBay hearing)
               Colonel David E. Mendelson, Staff Judge Advocate


For Appellant: Captain Heather L. Tregle, JA; Captain Joshua G. Grubaugh, JA (on
brief); Captain Katherine L. DePaul, JA; Mr. William E. Cassara, Esquire (on
supplemental brief and supplemental reply brief).

For Appellee: Major Daniel D. Derner, JA (on brief); Colonel Mark H. Sydenham,
JA; Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta Smith, JA;
Captain Jennifer A. Donahue (on supplemental brief).


                                        26 June 2017
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                         SUMMARY DISPOSITION ON REMAND
                       ----------------------------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of rape of a child, indecent act, sexual assault of a child,
sexual abuse of a child (two specifications), wrongfully providing alcohol to a
minor, and obstruction of justice in violation of Articles 120, 120b, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 920, 920b, 934 (2006 & Supp. II
2009, 2012) [hereinafter UCMJ]. The military judge found appellant not guilty, in
accordance with his pleas, of one specification each of producing and possessing
child pornography in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012). The
military judge sentenced appellant to a dishonorable discharge, confinement for
HOPKINS—ARMY 20140913

forty-two years, and reduction to the grade of E-1. The convening authority
approved only forty-one years and ten months confinement, but otherwise approved
the findings and sentence as adjudged.

       Appellant submitted his case on the merits on 18 November 2015. In that
pleading, appellant personally asserted matters in accordance with United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), with supporting appellate exhibits. On 25
November 2015, appellant filed a motion to amend his Grostefon matters and asked
this court to disregard the original filing and substitute the amended pleading. This
court granted that motion on 30 November 2015. On 2 February 2016, we summarily
affirmed the findings and sentence of appellant’s court-martial.

       Appellant petitioned the Court of Appeals for the Armed Forces (CAAF) on 30
March 2016 and submitted matters pursuant to Grostefon. On 5 May 2016, the CAAF
granted review on a matter personally raised by appellant: “Whether appellant was
denied effective assistance at trial.” United States v. Hopkins, 75 M.J. 338 (C.A.A.F.
2016) (order). The CAAF set aside our prior decision and ordered this court to
obtain affidavits from appellant’s civilian and military defense counsel, Mr. PM,
Esquire, and Captain (CPT) JK, to respond to appellant’s allegation of ineffective
assistance of counsel. Id. The CAAF directed this court to examine appellant’s
claim of ineffective assistance of counsel in light of these affidavits and any other
relevant matters and, if necessary, order a fact-finding hearing pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967) [hereinafter DuBay hearing].
On 7 July 2016, this court returned the case to The Judge Advocate General for such
action as required to conduct a limited hearing pursuant to DuBay.

       On 20 and 23 September and 6 October 2016, a military judge held an
extensive DuBay hearing. On 16 November 2016, the military judge entered his
written findings. Appellant’s case is now before this court pursuant to Article 66,
UCMJ.

       Although our superior court limited its remand to issues of ineffective
assistance of counsel, the intervening publication of United States v. Hills, 75 M.J.
350 (C.A.A.F. 2016), compels us to discuss the use of propensity evidence under
Military Rules of Evidence [hereinafter Mil. R. Evid.] 413 and 414 in appellant’s
case. After discussing both assigned errors, we conclude neither merits relief. We
have also considered matters presented by appellant, newly on remand, pursuant to
United States v. Grostefon; they merit neither discussion nor relief.

                              THE DUBAY HEARING

       The DuBay military judge entered detailed findings of fact after hearing
evidence from multiple witnesses in regard to appellant’s multiple claims of
ineffective assistance of counsel. “To prevail on an ineffective assistance claim,

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appellant bears the burden of proving . . . the performance of defense counsel was
deficient and . . . he was prejudiced by the error.” United States v. Captain, 75 M.J.
99, 103 (C.A.A.F. 2016) (citing Strickland v. Washington, 466 U.S. 668, 689
(1984)). Put another way, appellant must show “(1) his counsel’s performance fell
below an objective standard of reasonableness; and (2) the counsel’s deficient
performance gives rise to a ‘reasonable probability’ . . . the result of the proceeding
would have been different without counsel’s unprofessional errors.” United States v.
Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015) (quoting Strickland, 466 U.S. at 688).

      We focus our discussion on three different areas of alleged deficient
performance.
                      A. Preparation of Appellant’s Testimony

       Appellant claims he was woefully unprepared for his testimony on the merits
and in his unsworn statement during presentencing. The DuBay military judge went
into exacting detail as to the preparations by Mr. PM and CPT JK, as well as
additional people brought onto the case by Mr. PM and CPT JK. The military judge
found appellant’s participation in his defense was “frequent” and “active.” We will
not disturb a military judge’s findings of fact unless they are clearly erroneous.
United States v. Henning, 75 M.J. 187 (C.A.A.F. 2016). Although, according to
appellant, he may have felt unprepared to testify, it was not for want of preparation.
Appellant admitted at the DuBay hearing he made the ultimate decision to testify on
the merits.

                 B. Appellant’s Wrist Injury and Medical Treatment

       Appellant also claims his defense team failed to adequately investigate and
introduce evidence of limited mobility of his wrist, which allegedly would have been
favorable to the defense. The DuBay military judge entered detailed findings of fact
after hearing testimony from Dr. JO, the defense’s expert consultant at trial.
Appellant provided Dr. JO with a full copy of his medical records less than twenty-
four hours prior to the start of the trial. We agree with the military judge, even
assuming the medical records could have been favorable to the defense had they
been introduced, such favorable evidence also carried the risk the government would
highlight evidence contained in those records. For example, in rebutting appellant’s
claim of limited mobility, the records showed: appellant was not wearing the splint
and appellant had the ability to do push-ups and drive, which is obviously favorable
to the prosecution.

                          C. Appellant’s “Alibi” Witnesses

       According to the military judge, appellant “gave, and regularly updated, a list
of witnesses to his defense team.” Although appellant labeled some witnesses as
“alibi” witnesses, the defense team investigated and determined “none of these
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‘alibi’ witnesses were true alibi witnesses.” Three possible witnesses were not
contacted by the defense team, although the contact information provided by
appellant for one witnesses was limited to “on Facebook.” The military judge
analyzed the possible impact these witnesses would have had at trial, and he
concluded their testimony would have been minimally helpful and cumulative with
other witnesses. See United States v. Brownfield, 52 M.J. 40, 44 (C.A.A.F. 1999).

        The DuBay judge also analyzed the witnesses contacted by defense prior to
trial, but either the trial judge denied their production or the defense did not call
them as a witness at trial. Some of these witnesses even travelled to Fort Sill for the
trial, but were not called by the defense. Each of these witnesses not called could
not establish a true alibi defense, would have presented cumulative character
evidence, or could have elicited evidence unfavorable to the defense. “A trial
defense counsel’s decision on whether to call a witness is a tactical decision.”
Akbar, 74 M.J. at 390 (citing United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F.
2001)); see also Wiggins v. Smith, 539 U.S. 510, 533-34 (2003).

       We point out, with some hesitation, an instance where civilian defense
counsel browsed a “golf-related” website on his computer during the government’s
closing argument. Although we find counsel’s conduct did not prejudice appellant,
we note the benefits of easily assessable notes and research on electronic devices in
the courtroom also come with the potential for distraction.

      We agree with the military judge on his findings of fact in the DuBay hearing
and his legal analysis on the effect, or lack thereof, on appellant’s trial. See
Brownfield, 52 M.J. at 44. We conclude on the totality of the circumstances
appellant’s trial defense team were not deficient in their representation of appellant,
and appellant suffered no prejudice by their performance.

                 UNITED STATES V. HILLS AND PROPENSITY

       After our superior court remanded the case to this court on issues of
ineffective assistance of counsel, the CAAF issued the landmark case of United
States v. Hills. We granted appellant’s request to brief this court on the issue of
improper use of propensity evidence in appellant’s trial. At trial, the military judge
granted the government’s motion to use uncharged and charged misconduct as
propensity evidence, and the uncharged misconduct ruling was, and remains,
uncontested by the parties. The defense counsel at trial preserved the issue as to
charged misconduct. As to the charged misconduct, we find the military judge erred
when he granted the government’s motion to argue evidence of the charged offenses
was propensity evidence to prove other charged offenses; however, we find such an
error was harmless beyond a reasonable doubt in appellant’s case.



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      First, appellant elected to be tried by a military judge alone. In Hills the trial
was by members, and the CAAF noted the particular danger created by the
propensity instruction given to the panel. Id. at 355. In United States v. Hukill, the
CAAF confirmed the error in Hills can also happen “regardless of the forum, the
number of victims, or whether the events are connected.” 76 M.J. __, 2017 CAAF
LEXIS 305, at *6 (C.A.A.F. 2017).

       Here, the government introduced evidence of uncharged misconduct of
appellant taking photos of ZJEH while she was asleep and moving her clothing to
expose and touch her breasts and genitals, and the military judge allowed the
admission and use of this evidence “with respect to Specification 1 of Charge I and
Specifications 1 and 2 of Charge II; and that’s what [the government] is limited to
there, not the other specifications I did not name.” Such a ruling regarding
uncharged misconduct is permitted under Mil. R. Evid. 414 and outside the scope of
Hills and Hukill, yet we discuss it because it informs our analysis into the Hills and
Hukill error we find harmless beyond a reasonable doubt.

       The military judge acknowledged the state of the law prior to Hills and
Hukill: “This court could find by a preponderance of the evidence, after weighing
the credibility of witnesses, bias, and motive to fabricate, that the acts alleged in
these other specifications occurred.” Yet the military judge seemed to forecast the
concerns of Hills and Hukill when he acknowledged, “[e]ach of the victims provided
direct evidence with respect to each of the specifications. The court notes that the
evidence offered as proof of each of the specifications was independently admissible
as to the specification which it was offered.” Earlier when ruling on the uncharged
misconduct and Mil. R. Evid. 414 use, the military judge made clear, “[t]he
elicitation of the evidence took some time but will not distract the fact finder or
otherwise cause the fact finder to decide the case on something other than the
lawfully introduced evidence.”

       The military judge gave a detailed ruling as to which specifications the
government could argue propensity. Notably, he did not allow the government to
argue Specification 1 of Charge I (rape of a child, ZJEH) as propensity to commit
any other offense. Nor could the government argue any other offense as propensity
to Specification 1 of Charge I. With this specification left untainted by a Hills or
Hukill error, the military judge found appellant guilty beyond a reasonable doubt of
digitally penetrating ZJEH. Put another way, the military judge found ZJEH
credible and convicted appellant of this offense based on ZJEH’s testimony.

      Having found ZJEH credible in her testimony regarding Specification 1 of
Charge I, which occurred in 2008-2009, the military judge presumably found her
credible in her description of more recent events that formed the basis of convictions
of Specifications 1 and 2 of Charge II, which the military judge found to have
occurred between 1 December 2012 and 1 January 2013.

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       The military judge at trial identified the evidence of charged offenses was
admissible subject to other rules of evidence, and “the only question [in appellant’s
case] is whether the government can argue each specification as proof of the other.”
(emphasis added). However, the military judge erred when he granted the
government’s motion to argue as such. See Hills, 75 M.J. at 353. (“[I]t seems
obvious that it is impermissible to utilize [Mil. R. Evid.] 413 to show that charged
conduct demonstrates an accused’s propensity to commit . . . the charged conduct.”)
(emphasis added). Yet despite the pretrial motions by the government, trial counsel
did not argue propensity in closing or rebuttal arguments. In fact, the closest the
government came to a propensity argument was when trial counsel characterized
appellant’s conduct with numerous minors as a “pattern of leveraging,” referring to
the government’s theory of the case that appellant’s conduct of getting personal
information from young girls would then lead to him ‘leveraging’ that information
into requesting sexual favors. We hold such an argument does not violate Hills and
Hukill, and is likely permissible under Mil. R. Evid. 404(b).

       Without an argument that violates Hills and Hukill, we are left with a trial
where evidence was otherwise properly admitted under rules of evidence other than
Mil. R. Evid. 413 and 414 (save the properly admitted uncharged misconduct
evidence). Within the above framework, we address each affected specification in
detail to see whether “there was no reasonable probability that the error contributed
to [appellant’s] verdict.” Hukill, 76 M.J. __ at *6.

       As to Specifications 1 and 2 of Charge II, we previously discussed how the
military judge found ZJEH a credible witness and convicted appellant of raping her
in 2008 or 2009 (Specification 1 of Charge I) based on her testimony. With that
credibility determination in mind, the proper propensity evidence of the uncharged
misconduct, and testimony of appellant’s ex-wife, who testified she saw the
uncharged photographs depicting appellant digitally penetrating ZJEH, we hold any
error by the military judge as to Specifications 1 and 2 of Charge II was harmless
beyond a reasonable doubt.

        With regard to Specifications 2 and 3 of Charge I, the government charged
appellant with digitally penetrating CBV and “viewing and digitally recording” CBV
in the bathroom after showering. As for Specification 2 of Charge I (the digital
penetration), the military judge had ample evidence to convict appellant absent any
improper usage of propensity. The military judge heard CBV’s compelling
testimony of the incident and the uncharged evidence of propensity under Mil. R.
Evid. 414. For the indecent act (Specification 3 of Charge 1), the government
introduced the video into evidence, CBV recognized her naked body, multiple
witnesses described appellant’s unique tattoo visible at the beginning of the video
while setting up the recording device, and appellant’s admission to making the
videos (although according to appellant they were to ensure the girls were not
inflicting self-harm). We find no reasonable probability that any error contributed

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to appellant’s conviction of Specifications 2 and 3 of Charge I. See Hukill, 76 M.J.
__ at *6.

      The only remaining specification subject to Hills and Hukill analysis is the
sexual abuse of the child JA—Specification 3 of Charge II. Here, just as in
Specification 2 of Charge I, the military judge heard the credible testimony of the
complaining witness (in this specification, JA) and the properly admitted uncharged
misconduct under Mil. R. Evid. 414 as propensity evidence.

      For those reasons, we hold the erroneous ruling by the military judge as to
propensity evidence involving charged misconduct was harmless beyond a
reasonable doubt.

                                  CONCLUSION

      Accordingly, the findings of guilty and the sentence are AFFIRMED.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court




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