United States v. Specialist VINCENT P. DEGREGORI III ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist VINCENT P. DEGREGORI III
United States Army, Appellant
ARMY 20150581
Headquarters, Fort Drum
S. Charles Neill, Military Judge
Colonel Steven C. Henricks, Staff Judge Advocate
For Appellant: Colonel Mary J. Bradley, JA; Captain Heather L. Tregle, JA; Captain
Matthew L. Jalandoni, JA (on brief); Major Christopher D. Coleman, JA; Captain
Matthew L. Jalandoni, JA (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief).
10 January 2017
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SUMMARY DISPOSITION
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CAMPANELLA, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of one specification of sexual assault, in violation of Article
120 Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ].
The convening authority approved the adjudged sentence of a dishonorable
discharge, confinement for five years, and reduction to the grade of E-1.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one allegation of error, which merits discussion but not relief. We have also
considered those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit.
DEGREGORI—ARMY 20150581
LAW AND DISCUSSION
Appellant cites United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) to
assert the military judge abused his discretion by granting the government’s
motion to use charged offenses for Military Rule of Evidence [Mil. R. Evid.]
413 purposes with respect to The Charge. The government charged appellant
with two Article 120, UCMJ, specifications involving two different soldiers.
The military judge found the strength of the proof of both specifications was
substantial and he found each specification to be probative against the other
specification because of the similarities. However, he convicted appellant of
only one specification; he found appellant not guilty of the other specification.
This case is far different than Hills as appellant elected to be tried by a
military judge sitting alone. See United States v. Hukill, ARMY 20140939, 2016
CCA LEXIS 505, (Army Ct. Crim. App. 16 Aug. 2016); United States v.
Hazelbower, ARMY 20150335, 2016 CCA LEXIS 605, (Army Ct. Crim. App. 12
Oct. 2016); and United States v. Aguiar-Perez, ARMY 20140715, 2016 CCA
LEXIS 655, (Army Ct. Crim. App. 13 Oct. 2016). We do not share appellant’s
concern that his “presumption of innocence” was somehow undermined by the
military judge’s consideration of propensity evidence. This is especially true
given the strength of the evidence against appellant with respect to the charge of
which he was convicted. Appellant admitted via text to having sexual
intercourse with the victim and, without prompting, told an acquaintance on
staff duty right after the sexual intercourse that he was concerned he would be
accused of rape.
“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 view on the admissibility of
propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable
doubt. This conclusion is supported by the fact that the military judge found
appellant not guilty of one of the two specifications. We find no risk 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 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
The finding of guilty and the sentence are AFFIRMED.
Judge HERRING and Judge PENLAND concur.
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DEGREGORI—ARMY 20150581
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN
DeputyP. TAITT
Clerk of Court
Deputy Clerk of Court
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