case and any resulting error from its admission is likely harmless. United States v. Yammine, 69 M.J. 70, 78 (C.A.A.F.2010) (internal quotation marks and citation omitted). The appellant alternatively claims that even if these chats were not substantially prejudicial for findings, their use by the members during sentencing “prejudiced [the appellant’s] right to a fair sentencing hearing.” Appellant’s Brief at 18. We disagree. Evidence of uncharged misconduct properly admitted at trial can also be considered in sentencing. See R.C.M. 1001(f)(2)(A) (providing that the sentencing authority may consider evidence of other offenses or acts of misconduct properly introduced on the merits even if introduced for limited purpose); see also United States v. Figura, 44 M.J. 308, 310 (C.A.A.F.1996) (<HOLDING>). Mil. R. Evid. 403 is the only limitation.
holding that the hearsay rule is not suspended in the sentencing phase holding trial counsels failure to investigate and present substantial mitigation evidence during the sentencing phase can constitute ineffective assistance of counsel holding that counsels failure to investigate the defendants personal and psychiatric history constituted ineffective assistance during the penalty phase but not during the guilt phase recognizing that all evidence admitted during merits phase of a contested trial can be considered in sentencing holding that mental health evidence could be mitigating at the penalty phase even though it is insufficient to establish a legal defense to conviction in the guilty phase