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

                             UNITED STATES, Appellee
                                         v.
                      Private E1 JAMESON T. HAZELBOWER
                           United States Army, Appellant

                                       ARMY 20150335

                            Headquarters, Fort Campbell
                         Steven E. Walburn, Military Judge
             Lieutenant Colonel Robert C. Insani, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Lieutenant Colonel Melissa
R. Covolesky, JA; Captain Katherine L. DePaul, JA (on reply brief); Lieutenant
Colonel Tiffany M. Chapman, JA; Lieutenant Colonel Christopher D. Carrier, JA;
Captain Joshua B. Fix, JA (on brief and reply brief following remand).

For Appellee: Colonel Mark H. Sydenham, JA; Major Melissa Dasgupta Smith, JA;
Captain Jennifer A. Donahue, JA (on brief); Colonel Tania M. Martin, JA;
Lieutenant Colonel Eric K. Stafford, JA; Major Virginia H. Tinsley, JA; Captain
Joshua B. Banister, JA (on brief following remand).


                                      22 November 2017
                          ---------------------------------------------------
                          MEMORANDUM OPINION ON REMAND
                         ----------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       This case is again before us for review pursuant to Article 66, Uniform Code
of Military Justice, 10 U.S.C. § 866 (2012) [hereinafter UCMJ]. 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, the weak defense case, the
evidence of appellant’s uncharged misconduct, and the military judge’s
characterization that any propensity evidence “had little to no effect on the Court’s
deliberations and findings,” we are convinced the propensity evidence did not
HAZELBOWER—ARMY 20150335

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 one specification of desertion, four specifications of rape,
two specifications of rape of a child, two specifications of sexual abuse of a child,
sexual assault of a child, and possession of child pornography, in violation of
Articles 85, 120, 120b, and 134, UCMJ. The military judge sentenced appellant to a
dishonorable discharge, confinement for fifty years, and forfeiture of all pay and
allowances. Appellant received 201 days of confinement credit. The convening
authority approved the sentence as adjudged.

       On 12 October 2016, this court affirmed the findings and sentence in this
case. United States v. Hazelbower, ARMY 20150335 (Army Ct. Crim App. 12 Oct.
2016) (summ. disp.). On 12 January 2017, the Court of Appeals for the Armed
Forces (CAAF) granted appellant’s petition for grant of review. United States v.
Hazelbower, 76 M.J. 63 (C.A.A.F. 2017). On 27 July 2017, the CAAF set aside our
decision and remanded the case to this court for consideration of the granted issue in
light of Hukill. United States v. Hazelbower, 76 M.J. 441 (C.A.A.F. 2017). On the
same day, the record of trial was returned to this court for further review.

                                  BACKGROUND

       Appellant stands convicted of sexual offenses against three different victims,
AA, SC, and MB. The military judge granted a government motion, over defense
objection, to allow use of the charged sexual misconduct for Military Rule of
Evidence [hereinafter Mil. R. Evid.] 413 and Mil. R. Evid. 414 purposes to show
appellant’s propensity to commit the charged sexual misconduct. Appellant alleges
the military judge abused his discretion in so ruling. After hearing the evidence and
arguments from both trial and defense counsel, which included argument concerning
propensity evidence, the military judge found appellant guilty of all charges and
specifications.

      In this judge-alone case, the military judge articulated his reasoning regarding
the admission and use of evidence under Mil. R. Evid. 413 and Mil. R. Evid. 414 as
follows:

             The Court has, in fact, conducted an [Mil. R. Evid.] 403
             balancing test on those three pieces of propensity evidence
             and has found that they are admissible for sentencing
             purposes and again, the Court will provide a written ruling
             to that effect, and importantly, the Court notes that that
             evidence was also considered during the findings only for
             the limited purpose of propensity and the court used it
             only for that limited purpose and it had little to no effect


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HAZELBOWER—ARMY 20150335

             on the Court’s deliberations and findings, even though the
             Court finds it was properly admissible.

                             LAW AND DISCUSSION

                      Military Rules of Evidence 413 and 414. *

       In United States v. Hills, our superior court ruled the use of charged
misconduct and 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
other conduct of which he is presumed innocent.”). In Hukill, our superior court
extended Hills to military judge alone cases. See Hukill, 76 M.J. at 222 (“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.”). Moreover, the CAAF 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 must examine the military judge’s ruling under the
constitutional standard in determining whether the error was harmless. When an
error rises to a constitutional dimension, 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 (citations and internal quotation marks omitted).

      Here, while we find the military judge’s use of propensity evidence of
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 each
charged sexual assault offense, independent of any inference of propensity.


*
 We specified this issue to the parties on 7 September 2016, following oral
argument.


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HAZELBOWER—ARMY 20150335

Appellant sexually assaulted three victims on separate occasions using a similar plan
or scheme. All three victims testified.

         Appellant was convicted of four specifications of sexual assault against AA
on 10 December 2013 at Fort Campbell, Kentucky. AA testified that she met
appellant on a social media website where appellant stated he was sixteen years old.
AA was fifteen years old at the time. Appellant met AA and drove her to an isolated
part of Fort Campbell, where he twice penetrated her mouth with his penis by
grabbing the back of her neck and forcing her down onto his penis. AA testified that
“every time I would try to resist, it would just—he would be more aggressive with it
. . . .” Appellant also forcibly penetrated AA’s anus with his finger, and forcibly
penetrated her anus with his penis. Appellant then dropped AA off at a shopette. In
text messages before the incident, AA told appellant, “I said nothing sexual” and “Is
this the only reason why you want to hangout?” Appellant replied “No but it’s
gonna happen.” The testimony of AA was clear, detailed, and compelling. AA
eventually reported this incident to her mother, resulting in the investigation of
appellant. These specifications were included in Charge I.

       Appellant sexually assaulted SC, a fourteen-year-old girl, on two occasions.
Appellant initiated contact with SC through Skype. SC testified that appellant first
visited her at home after school, and nothing sexual occurred. A few days later, in
mid-to late September 2013, appellant visited SC after school and they started
watching a movie. Appellant then tried to kiss SC, and she didn’t try to stop it.
Appellant kept moving forward, and SC pulled back. Appellant then pushed SC
down on the couch on her back, put his hands down her pants, and penetrated her
vagina with his fingers. SC said, “Please stop.” Appellant then pulled down SC’s
pants, and while SC was squirming and continually saying “Stop”, appellant
penetrated her vulva with his penis, and then anally raped SC, telling her, “It will all
be over soon.” Appellant was not wearing a condom; he ejaculated inside SC’s anus.
Appellant then put his clothes on, said he was sorry, and walked out.

       Following this incident, SC continued to talk to appellant on Skype because
she “didn’t want [appellant] to come back and do it again.” SC told appellant she
was in Texas for a month when she was only there for a week, and that she was
moving, in an attempt to stop appellant from coming back again. In November 2013,
appellant went to SC’s house unannounced. After appellant knocked on the door, SC
realized who was there and tried to close the door. Appellant forced his way into the
house, stating he just wanted to talk, and SC asked him to “[p]lease get out.”
Appellant then walked toward SC, pulled her pants to her ankles, and proceeded to
penetrate her vulva and anus with his penis, covering SC’s mouth with his hand to
keep her quiet. SC asked appellant to stop. SC testified, “I yelled ‘Stop’ and
‘Ow.’” Appellant again stated, “It will all be over.” After the assault, appellant put
his clothes on, said he was sorry, and walked out the door, leaving SC crying in the
living room.



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HAZELBOWER—ARMY 20150335

       SC’s testimony was clear and compelling. The government also called
Dr. MS, a child and adult forensic psychiatrist, who explained the unpredictable
ways children react to sexual assault, and how SC’s “playing along” with appellant
in text messages after he sexually assaulted her the first time was a result of SC
being too naïve to understand what she was playing with. The above conduct was
included in two of the specifications of Charge II.

       Appellant sexually assaulted MB, a fifteen-year-old girl, between June and
mid-October 2013, in Elizabethtown, Kentucky. Appellant met MB through Skype
and texting, and appellant and MB electronically exchanged naked photographs of
each other. Appellant came to MB’s home late one night through the basement door
to avoid her father, and they watched television together. Nothing sexual occurred
during this visit. Two weeks later appellant again came to visit MB, coming in the
house through the basement door. On this occasion appellant and MB engaged in
consensual oral, vaginal, and anal intercourse. This conduct is the gravamen of
Specification 1 of The Additional Charge.

        In addition to the charged conduct in this case, evidence was introduced of
uncharged misconduct by appellant that occurred while appellant was absent without
leave from 10 January 2014 to 29 March 2014. Appellant met fifteen-year-old CS
on social media, and then visited CS at her aunt’s house in Rockford, Illinois. CS
testified that appellant made physical contact with her on the front porch, to include
hugging, kissing, grabbing her butt, and rubbing her stomach. CS retreated to the
house and appellant remained outside for an hour asking her to come back outside.
Appellant also met AS, a fifteen-year-old girl on a social media site, exchanging
messages with her. Appellant drove to her home in Winnebago, Illinois. AS
testified that appellant stayed in his car when he arrived. When AS proceeded to the
side of the car, appellant pulled her hand into the car and made her stroke his penis.
AS got into the car shortly thereafter, and appellant was stroking his penis when the
police arrived on the scene. The police noticed that appellant had an erection when
they pulled him out of the car. Appellant made a statement essentially corroborating
AS’s version of events, and he was eventually convicted of Indecent Solicitation of a
Child and Aggravated Criminal Sexual Abuse in Winnebago County, Illinois.

        In contrast to the strong government case described above, the defense case
was weak. The defense argued that the text message traffic between appellant and
AA and SC showed they both consented to the sexual encounters with appellant, and
that MB lied about her age in her online profile. The defense also argued that all
three victims had a motivation to lie. However, the testimony of the three victims in
this case, appellant’s own text messages stating he would have sex with AA and SC
without their consent, and his admission to SC when confronted with why he raped
her (“Bcuz it was like a fantasy ive wanted to try then knowing I cud made me so
horny”) overcome any inferences that could be drawn from the online message
traffic between appellant and his victims.



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HAZELBOWER—ARMY 20150335

      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.

      Judge CELTNIEKS and Judge HAGLER concur.

                                          FOR THE COURT:




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




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