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

                            UNITED STATES, Appellee
                                         v.
                       Specialist CHRISTOPHER B. HUKILL
                           United States Army, Appellant

                                        ARMY 20140939

                             Headquarters, Fort Campbell
                         Steven E. Walburn, Military Judge
                    Colonel Susan K. Arnold, 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).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Anne C. Hsieh, JA (on brief).


                                         16 August 2016
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                     MEMORANDUM OPINION ON FURTHER REVIEW
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of rape and one specification of abusive
sexual contact in violation of Article 120, Uniform Code of Military Justice, 10
U.S.C. 920 (2012). The military judge sentenced appellant to a dishonorable
discharge, confinement for seven years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged.

      This case is before this court for review pursuant to Article 66, UCMJ. On 9
August 2016, we affirmed the findings and sentence in the case. In so doing, we
found no merit in appellant’s assigned error claiming ineffective assistance of
counsel. We also summarily found the matters raised by appellant pursuant to
HUKILL—ARMY 20140939
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), did not warrant relief. On
10 August 2016, appellant’s counsel moved this court for reconsideration in light of
appellant’s Grostefon claim that the military judge improperly considered evidence
under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413, citing our superior
court’s decision in United States v. Hills, 75 M.J. at __, 2016 CAAF LEXIS 512
(C.A.A.F. 2016). On 11 August 2016, we denied this motion. Later on the same
day, after denying the motion, we received a Motion for Leave to File Out of Time
Supplemental Grostefon matters on behalf of appellant, again asserting the military
judge erred by considering evidence under Mil. R. Evid. 413, also citing Hills. We
hereby grant appellant’s motion and have considered the Grostefon matters filed out
of time. In so doing, we now grant appellant’s request for reconsideration of our
prior decision in this case. We find the matters raised personally by appellant
warrant discussion, but do not warrant relief.
                                   BACKGROUND
      Appellant stands convicted of sexually assaulting AB and HG.

       After arraignment but before trial on the merits, the government moved in
limine to allow the use of evidence of appellant’s rape of HG for purposes of Mil. R.
Evid. 413 as related to the abusive sexual contact of AB. Trial defense counsel
opposed this motion, as well as the use of the standard instructions for use of Mil. R.
Evid. 413 evidence and spillover contained in Dept. of Army Pam. 27-9, Legal
Services: Military Judges’ Benchbook [hereinafter Benchbook], paras. 7-13-1, note
4.2, 7-17 (1 Jan. 2010). On 20 October 2014, the military judge ruled the
government could use the charged sexual offenses involving HG and AB as
propensity evidence for each other under Mil. R. Evid. 413.

       On 10 December 2014, prior to trial on the merits, appellant elected to have
his case heard by the military judge, sitting alone. After hearing the evidence and
arguments from both trial and defense counsel, the military judge found appellant
guilty of both Specifications of the Charge.

                              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 and sentence.
We disagree.

        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. Hills, 75 M.J. at ___, 2016 CAAF
LEXIS 512 at *13-14.



                                           2
HUKILL—ARMY 20140939
             Quite simply, we hold not only that charged offenses are
             not properly admitted under M.R.E. 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. 75 M.J. at __, 2016 CAAF LEXIS 512 at *18 (citing United States v. Wright, 53
M.J. 476, 481 (C.A.A.F. 2000)).
       This case is far different than Hills as appellant elected to be tried by a
military judge sitting alone. Although the military judge earlier in the proceeding
ruled that 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. We do not share appellant’s concern that his “presumption of innocence” was
somehow eroded by the military judge’s consideration of propensity evidence.
“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
that his view on the admissibility of propensity evidence under Mil. R. Evid. 413
was harmless beyond a reasonable doubt. We find no risk that the military judge
would apply an impermissibly low standard of proof concerning both the
presumption of innocence and the requirement that the prosecution prove guilt
beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that
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 the appellant.
                                  CONCLUSION
       On consideration of the entire record, including the matters personally raised
by the appellant pursuant to Grostefon, the findings and sentence as approved by the
convening authority are again AFFIRMED.
      Judge CELTNIEKS and Judge BURTON concur.
                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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