This opinion is subject to administrative correction before final disposition.

Before 

CRISFIELD, HITESMAN, and GASTON

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Kareem I. DIGGS

Seaman (E-3), U.S. Navy

Appellant

No. 201800087

Decided: 26 September 2019

Appeal from the United States Navy-Marine Corps Trial Judiciary.

Military Judge: Commander Hayes C. Larsen, JAGC, USN. Sentence 

adjudged 18 November 2017 by a general court-martial convened at 

Naval Station Norfolk, Virginia consisting of officer and enlisted 

members. Sentence approved by the convening authority: forfeiture of 

all pay for three months, reduction to pay grade E-1, confinement for 

six months, and a bad-conduct discharge.

For Appellant: Lieutenant Clifton E. Morgan III, JAGC, USN.

For Appellee: Lieutenant Timothy C. Ceder, JAGC, USN; Major Kelli 

O’Neil, USMC.

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Practice and Procedure 30.2.

_________________________
United States v. Diggs, No. 201800087

2

PER CURIAM:

Appellant was convicted, contrary to his pleas, of one specification of indecent visual recording in violation of Article 120c, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 920c (2012 ed.). He was acquitted of two specifications of sexual assault under Article 120, UCMJ.

The appellant raises two assignments of error (AOE): (1) the military 

judge abused his discretion when he denied the trial defense counsel’s (TDC)

challenge for implied bias, and (2) the evidence is factually insufficient to sustain the conviction.

We find no prejudicial error and affirm the findings and the sentence.

I. BACKGROUND

The appellant and Logistics Specialist 3d Class (LS3) MR were best 

friends celebrating LS3 MR’s 21st birthday in her apartment with her boyfriend, Hull Maintenance Technician 2d Class (HT2) Askew. HT2 Askew

worked the night shift and left for work around 1800. The appellant and LS3 

MR then watched a movie. They were both drinking hard alcohol throughout

the night and became intoxicated. Later in the evening, the appellant asked a 

friend, LS3 Ortiz, to bring him some food. LS3 Ortiz arrived at what she 

thought was LS3 MR’s apartment sometime after 2100 and stayed outside in

the hall until about 2315, during which time, the appellant and LS3 Ortiz 

exchanged several phone calls and text messages.

HT2 Askew left work early and returned to LS3 MR’s apartment around 

midnight. When he arrived, he found LS3 MR naked from the waist up, hanging off her bed, and very intoxicated. HT2 Askew shook her and called her 

name as she regained consciousness. He helped her stand up and carried her 

to the common living room because she was having trouble walking on her 

own. HT2 Askew then went back to LS3 MR’s bedroom to look for clothes. He 

looked in the closet and found the appellant sitting on the floor of the closet,

apparently asleep, shirtless, and wearing different pants than he had been 

wearing earlier in the evening. 

HT2 Askew ended up putting some of his clothes on LS3 MR because it 

was easier than trying to dress her in her own clothes. He returned to the 

bedroom to look for signs of what happened. He found the appellant’s phone 

and discovered that it contained naked pictures of LS3 MR in which she appeared to be asleep, as well as “selfie” pictures of the appellant. HT2 Askew

then used his phone to take a picture of the appellant’s phone displaying the 

thumbnail pictures of LS3 MR. After returning LS3 MR to her bed, HT2 

Askew decided to leave and stay with a friend. The next morning, he sent 

LS3 MR the picture he had taken of the appellant’s phone. 
United States v. Diggs, No. 201800087

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Additional facts necessary to resolve the AOE’s raised are addressed below.

II. DISCUSSION

A. Challenge for Cause

The appellant asserts the military judge erred in denying a defense challenge for cause against one of the court members, LT JY.

RULE FOR COURTS-MARTIAL (RCM) 912(f)(1)(N), MANUAL FOR COURTSMARTIAL, UNITED STATES (2016 ed.), states a “member shall be excused for 

cause whenever it appears that the member . . . [s]hould not sit . . . in the interest of having the court-martial free from substantial doubt as to legality, 

fairness, and impartiality.” This rule applies to both actual bias and implied 

bias. United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998).”The burden of 

establishing that grounds for a challenge exist is upon the party making the 

challenge.” RCM 912(f)(3). 

Actual bias is a personal bias that will not yield to the military judge’s instructions and the evidence presented at trial. United States v. Nash, 71 M.J. 

83, 88 (C.A.A.F. 2012) (citation omitted). We review the military judge’s ruling on a challenge for cause based on actual bias for an abuse of discretion 

and we afford the military judge a high degree of deference on such rulings. 

United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015). Actual bias is a 

subjective test viewed through the eyes of the military judge. United States v. 

Warden, 51 M.J. 78, 81 (C.A.A.F. 1999). The military judge’s ability to watch 

the challenged member’s demeanor during the voir dire process makes him 

specially situated to make factual determinations when assessing actual bias. 

United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007).

The implied bias test is one of public perception and appearance of fairness. Woods, 74 M.J. at 243. The question before us is “whether the risk that 

the public will perceive that the accused received something less than a court 

of fair, impartial members is too high.” United States v. Bagstad, 68 M.J. 460, 

462 (C.A.A.F. 2010) (quoting United States v. Townsend, 65 M.J. 460, 463 

(C.A.A.F. 2008)). We review the totality of the circumstances and assume the 

public is familiar with the unique structure of the military justice system.

Our standard of review on a challenge for cause premised on implied bias is 

“less deferential than abuse of discretion, but more deferential than de novo 

review.” United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F. 2016) (citation 

omitted). “[W]here the military judge places on the record his analysis and 

application of the law to the facts, deference is surely warranted.” Id. However, less deference is given when the military judge’s implied bias analysis is 
United States v. Diggs, No. 201800087

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not comprehensive or not articulated in the record at all. See United States v. 

Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).

For defense challenges, “[t]he military judge is also mandated to err on 

the side of granting a challenge. This is what is meant by the liberal grant 

mandate.” United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (citation 

omitted).

LT JY, was the staff duty officer for the Commander, Naval Surface Force 

Atlantic (SURFLANT), the appellant’s ship’s parent command, when the initial and subsequent reports of sexual assault and video recording were 

transmitted through the naval messaging system. In that capacity, LT JY 

received and reported those messages to the SURFLANT Chief of Staff. LT 

JY remembered very little about the content of the messages and recalled only generic details such as the on or about dates, the ship the appellant was 

assigned to, paygrades of those involved, and that photography was an issue. 

When initially asked by the trial counsel if, despite his knowledge of some of 

these facts, he could still be impartial, LT JY replied: “Yes, I assume I can.”1

During group voir dire, LT JY indicated an affirmative response to the defense counsel’s question regarding whether cheating on one’s boyfriend or 

girlfriend is immoral, and whether people who have made immoral choices 

are more likely to commit crimes. During individual voir dire, LT JY stated 

that “immorality is a greased load. The more immoral you are, the more 

tempted you are about other crimes.”2 When asked by the trial counsel if he 

could separate those behaviors he considered to be immoral from his determination of whether the appellant committed the offenses as charged, LT JY 

replied: “I believe I could.”3 When asked by the assistant defense counsel if 

there was anything about the case with “cheating involved”4 that would cause 

him difficulty in hearing the facts, looking at the credibility, and determining 

the appellant’s guilt based only on the facts before him, LT JY replied: “No, 

sir.”5

Also during individual voir dire, LT JY stated that “[c]onsent can’t be implied; it has to be given.”6 The trial counsel followed up on this response ex-

 

1 R. at 210.

2 R. at 209.

3 Id.

4 R. at 212.

5 Id.

6 R. at 214.
United States v. Diggs, No. 201800087

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plaining that the military judge would instruct him on what consent means 

and that consent can be implied. When asked if he would be able to follow 

that instruction, LT JY replied: “yes.”

The TDC challenged LT JY at trial on grounds of both actual and implied 

bias, arguing that LT JY had prior involvement with the investigation, could 

not separate his views on immoral conduct from a determination of criminal 

guilt, and could not be fair and impartial. The military judge denied the challenge for cause stating:

I have considered the challenge for cause on the basis for both 

actual and implied bias, as well as the mandate to liberally 

grant defense challenges. The challenge against [LT JY] is denied because in the Court’s perspective, [LT JY] was very 

forthright and open in the Court’s questioning. He indicated 

that he would follow the Court’s instructions during the robust 

discussion between both trial counsel and defense counsel. I believe that [LT JY] exhibited . . . his impartiality and he would 

be open to hear from both sides on issues and he would be willing, also, to [keep] an open mind on these issues discussed by 

the parties.7

On appeal, the appellant asserts the military judge erred in not granting 

the challenge on grounds of implied bias, and we confine our analysis to those 

grounds. Because the military judge made no specific findings regarding 

LT JY’s implied bias, we review the record for ourselves to determine whether a member of the public would perceive LT JY’s court-martial participation 

as unfair. Clay, 64 M.J. at 277. We note that a challenged member’s elaboration and responses to additional voir dire questions can cure circumstances 

which could otherwise support a finding of implied bias. See United States v. 

Schlamer, 52 M.J. 80, 87, 93 (C.A.A.F. 1999).

We find that implied bias was not a close question on the record before us,

given that LT JY had no prior meaningful involvement with the case, that he 

agreed to follow the military judge’s instructions, and that he assured the 

court that he would decide the case based only on the information presented

at trial. 

With respect to his prior involvement, LT JY described the facts he was 

aware of as “generic,” noting that he only remembered the general dates, the 

ship and paygrades of those involved, and that photography was an issue. 

 

7 R. at 298.
United States v. Diggs, No. 201800087

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When asked if he could “be impartial at this court-martial” despite his 

knowledge of the case, LT JY answered, “Yes – I assume I can.” Although this 

response was also somewhat equivocal, we note that LT JY’s prior knowledge 

and involvement with the case was minimal and extended only to receiving 

generic message traffic regarding the report of sexual assault and passing 

that information on to the SURFLANT Chief of Staff as one of his duties as 

the staff duty officer. The extent of his involvement was explored by both parties as well as the military judge. Finally, LT JY answered directly and unequivocally that he could follow the military judge’s instructions on consent, 

incapacitation, the full range of punishment, the government’s burden to 

prove their case beyond a reasonable doubt, and that he could decide the case 

only on the information presented before him. 

We further find the record does not support the appellant’s claim that LT 

JY could not disconnect his own sense of morality from the determination of 

the appellant’s criminality. When asked if he could separate the appellant’s 

immoral behavior from determining any criminal behavior, LT JY equivocally 

replied, “I believe I could.” However, when the assistant defense counsel 

asked if there was anything that would prevent LT JY from deciding the case 

based only on the facts before him, despite the fact that there was cheating 

involved. LT JY answered unequivocally, “No, sir.” We find that this further 

elaboration, elicited by the defense, cured any potential issue raised by LT 

JY’s earlier responses.

Based on the record before us, we are confident that a member of the public would not reasonably have substantial doubt about the legality, fairness, 

or impartiality of the appellant’s court-martial due to LT JY’s participation 

as a panel member. Taking into account the mandate that defense challenges

be liberally granted, we find no error in the military judge’s denial of the 

TDC’s challenge for cause against LT JY. 

B. Factual Sufficiency 

The appellant contends that the evidence is factually insufficient to support his conviction. We review questions of factual sufficiency de novo. Article

66(c), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

In evaluating factual sufficiency, we determine whether, after weighing the 

evidence in the record of trial and making allowances for not having observed 

the witnesses, we are convinced of the appellant’s guilt beyond a reasonable 

doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting 

this unique appellate function, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.”

Washington, 57 M.J. at 399. However, proof beyond a reasonable doubt does 
United States v. Diggs, No. 201800087

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not mean the evidence must be free from conflict. United States v. Norwood, 

__ M.J. __ , No. 201800038, 2019 CCA LEXIS 318, *25 (N-M. Ct. Crim. App. 9

Aug. 2019) (citing United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. 

App. 2006)).

The appellant was convicted of indecent visual recording. To support this 

conviction, the government was required to prove beyond a reasonable doubt 

that: (1) the appellant knowingly photographed the private area of LS3 MR; 

(2) the photographing was done without LS3 MR’s consent; (3) the photographing was done under circumstances in which LS3 MR had a reasonable 

expectation of privacy; and (4) the appellant’s conduct was wrongful. Article

120c(a)(2), UCMJ. 

The appellant argues that there is reasonable doubt that he knowingly

took the nude pictures of LS3 MR, based on two possible theories: either (1) 

the appellant was too intoxicated to form the required mens rea to intentionally take the photographs, or (2) while the appellant was passed out, someone 

else accessed his phone and took nude photographs of LS3 MR. Based on the 

record, we are not persuaded that either theory, nor any other, creates reasonable doubt as to the appellant’s guilt. 

The photographs themselves are strong evidence that the appellant knew 

what he was doing and that LS3 MR did not consent to being photographed

and was not even aware she was being photographed. The images are well 

framed and focused starting from some distance away and moving progressively closer to LS3 MR, until they are eventually so close that they become 

blurry and out of focus. During his interview with the Naval Criminal Investigative Service (NCIS), the appellant stated he remembered the details of 

what was going on less than an hour prior to HT2 Askew returning to LS3 

MR’s room and described several events in detail, to include that he stopped

LS3 MR’s sexual advances and texted LS3 Ortiz to “hurry up.”8 LS3 Ortiz 

testified that she spoke on the phone and exchanged several texts with the 

appellant before she left the apartment complex at 2315. She testified that 

the appellant did not sound intoxicated during their conversations.9 The appellant went on to describe in detail to NCIS that after he texted LS3 Ortiz, 

LS3 MR became more sexually aggressive, that they eventually had sex, and 

 

8 Prosecution Exhibit (PE) 8 at 23.

9 R. at 563.
United States v. Diggs, No. 201800087

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that the last thing he heard LS3 MR say was that her “boyfriend doesn’t love 

her.”10

The picture of the appellant’s phone with the thumbnail photographs displayed was entered into evidence as Prosecution Exhibit (PE) 2. This is the 

only evidence that the appellant’s phone was used to take indecent pictures of 

LS3 MR. HT2 Askew, LS3 Ortiz, and LS3 MR all testified that the phone 

shown in PE 2 belonged to the appellant. The appellant obtained a new 

phone within a few days of learning that LS3 MR was aware of the photographs, and the record is devoid of any evidence of what happened to the appellant’s phone displayed in PE 2. HT2 Askew testified and explained what 

he saw when he returned to LS3 MR’s room, including finding the appellant 

in the closet and finding the photographs on the appellant’s phone.

While the record establishes that the appellant was intoxicated to some 

degree, the military judge properly instructed the members that “the fact 

that the accused may have been intoxicated, at the time of the offense, does 

not necessarily indicate that he was unable to have the required knowledge; 

because a person may be drunk yet still be aware at the time of his actions 

and their probable results.”11 The appellant was able to take nine wellframed and well-focused pictures of LS3 MR’s exposed vagina and breasts.

Additionally, the appellant’s statements to NCIS indicate that he remembers

the details of what occurred leading up to, during, and after he had sex with 

LS3 MR. Finally, the appellant and LS3 Ortiz continued to communicate after HT2 Askew sent LS3 MR the pictures. LS3 Ortiz testified that the she 

and the appellant talked about what happened at LS3 MR’s apartment and 

that the appellant “just knew that he had hurt her [LS3 MR] in some way 

because of the pictures.”12 Taking the evidence together as a whole, we are 

convinced that the appellant was not so intoxicated that he could not form 

the requisite specific intent to knowingly photograph LS3 MR.

With respect to the issue of identity, HT2 Askew was the only person to 

enter the room while both the appellant and LS3 MR were asleep or passed 

out. He was the only witness to see the pictures on the appellant’s phone. He 

testified how he found LS3 MR half-naked and hanging off her bed, carried 

her to another room and dressed her, and then returned her to her bed. HT2 

Askew testified that after finding the appellant in the closet, he noticed a 

 

10 PE 8 at 34.

11 R. at 791.

12 R. at 595.
United States v. Diggs, No. 201800087

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phone and attempted to access it but could not because it was locked. He then 

noticed another phone and successfully accessed it; found selfies of the appellant and the nude pictures of LS3 MR; and used his phone to take a picture of 

the thumbnail images; and later sent that picture to LS3 MR. HT2 Askew

was subject to cross-examination and impeachment for not telling NCIS that 

he had to shake LS3 MR to get a response and for his counterintuitive act of 

leaving LS3 MR in her room with the appellant. The TDC argued that HT2 

Askew took the pictures as “revenge porn” to shame LS3 MR for cheating on 

him.13

“When weighing the credibility of a witness, this court, like a fact finder 

at trial, examines whether discrepancies in witness testimony resulted from 

an innocent mistake, such as a lapse of memory or a deliberate lie.” United 

States v. Berger, No. 2015000254, 2016 CCA LEXIS 322, at *36 (N-M. Ct. 

Crim. App. 26 May 2016) (citation omitted), rev’d on other grounds, 76 M.J. 

128 (C.A.A.F. 2017). The members were best situated to judge HT2 Askew’s 

credibility, and nothing in the record compels us to believe that he lied when 

he testified about what he observed and what he did when he returned to LS3 

MR’s room. Further, HT2 Askew’s testimony was compelling and we see no 

reason to conclude that he took the nude pictures of LS3 MR.

LS3 MR testified that she is the subject of the nude photographs, and that 

she neither consented to being photographed, nor was aware that she was 

being photographed. While we acknowledge that the record is not clear on 

exactly when the nude pictures were taken, there was no indication that anyone other than LS3 MS or the appellant was present in the room until HT2 

Askew returned around midnight. The appellant’s assertions that he was too 

intoxicated to remember taking any pictures is belied by his very detailed 

statement to NCIS about having consensual sex with LS3 MR a mere 45 to 

60 minutes before being found in the closet. Based on this evidence and the 

surrounding circumstances, the members could reasonably infer that the appellant was in fact the person who took the pictures of the victim that evening and that he knew what he was doing.

After weighing the evidence in the record of trial and making allowances 

for not having personally observed the witnesses, we are convinced beyond a 

reasonable doubt that the appellant knowingly took the nude photographs of 

LS3 MR during the night of her twenty-first birthday and that he is guilty of 

indecent visual recording in violation of Article 120c, UCMJ.

 

13 R. at 830.
United States v. Diggs, No. 201800087

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III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined that the finding and the sentence, as approved, are correct in law and fact and that no error materially prejudicial to the appellant’s 

substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866. 

Accordingly, the finding and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court