## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, KRAUSS, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JAMEL E. GREENE United States Army, Appellant

ARMY 20120805

Headquarters, United States Army Combined Arms Support Command,

Sustainment Center of Ex cellence, and Fort Lee

Denise R. Lin d, Military Judge Colonel Andrew J. Glass, Staff Judge Advocate

For Appellant: William E. Cass ara, Esq.; Captain Michael J. Millios, JA (on brief and reply brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Steven J. Collins, JA; Captain Benjamin W. Hogan, JA (on brief).

28 October 2014

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

PENLAND, Judge:

A panel of officer and en listed members sitting as a general court-martial convicted appellant, contrary to his pleas, of carnal k nowledge with a child who had attained the age of 12 but was under the age of 16 in violation of Article 120,

Uniform Code of M ilitary Justice [herei nafter UCMJ], 10 U. S.C. § 920 (2000 & Supp. V); aggravated sexual assault of a child, aggravated se xual assault by causing bodily harm, wrongful sexual contact in violation of Ar ticle 120, UCMJ, 10 U.S.C. § 920 (2006 & Supp. I); sodomy with a ch ild under the age of 12, and forcible sodomy with a child who had attained the age of 12 but was unde r the age of 16 in violation of Article 125, UCMJ, 10 U.S.C. § 925 (2000 ). The pane l sentenced appellant to a dishonor able discharge, confinement for th irty-five years, forfeiture of all pay and allowances, and reduction to th e grade of E-1. The convening authorityGREENE — ARMY 20120805

2 approved only so much of the sentence as provided for a dish onorable discharge, confinement for 35 years, and re duction to the grade of E-1.

Appellant raises several a ssignments of error, three of which merit discussion

and one of which merits relief.

WRONGFUL SEXUAL CONTACT (Speci fication 4 of Charge II)

Specification 4 of Ch arge II alleged:

In that [appellant], did, at or near Fort Story, Virginia, on divers occasions, between on or about 1 October 2007 and on or about 30 April 2009, wr ongfully engage in sexual contact, to wit: touching the breasts and rubbing the vaginal area of Miss [D C], with, and without the permission of, Miss [DC].

During the charged time pe riod between 1 October 2007 and 30 April 2009, DC was between fifteen years old and seventeen years old. After discussion with the parties, the milita ry judge instructed the panel that “[a] person ca nnot consent to sexual activity as charged in Specification 4 of Charge II if that person is under 16 years of age.”

Appellant argues the plain reading of the specificatio n alleges condu ct that is both lawful and unlawful—appellant engaging in sexual contact “with, and without the permission of” DC—and that the panel re ndered an improper general verdict of guilt. See generally Stromberg v. California , 283 U.S. 359 (1931); Yates v. United

States , 354 U.S. 298 (1957), overruled on ot her grounds by Burks v. United States

, 437 U.S. 1 (1978). We disagr ee. Despite its circuitous grammatical construction, the specification plainly alleges that appe llant wrongfully engage d in sexual contact

with DC and that such cont act was without her permission. The specific ation cannot reasonably be re ad to allege any lawful conduct.

A review of the military j udge’s instructions leaves us with no doubt that the panel convicted appellant of only unlawful condu ct. The judge correctly instructed

on all of the elements of the wrongful sexual contact offense, including the explanation that “‘[w]ithout permission’ means without co nsent.” Coupled with the additional consent instruction regarding chil dren under the age of 16, the judge left for the panel to decide that, if they beli eved any sexual contact occurred when DC was under 16, she was incapable of c onsenting; but, that if any sexual contact

occurred after DC tu rned 16, they had to determine whether it was “without her permission” or without her co nsent. Absent evidence to the contrary, panel members are presumed to comply with the judge’s in structions. United States v. Hornback

, 73 M.J. 155, 161 (C.A.A.F. 2014).GREENE — ARMY 20120805

3 PANEL MEMBER’S QUESTIONS

As part of its case-in-ch ief, the government presented evidence that on or about the charged time period pertaining to the offenses agai nst DC, DC became pregnant, believed “it [was] most likely her uncle’s,” and obtained an abortion. During the defense’s case, DC’s boyfriend testif ied that he beli eved he was the

father of the child because he and DC en gaged in sexual intercourse du ring the same time period. Appella nt also testified, inter alia , that prior to the charged time period, he had a vasect omy and a subsequent reversal procedure, and that he and his wife had been trying to become pregnant with no success for years.

The military judge handled panel members’ proposed questions in accordance with Military Rule of Evidence 614(b), which requ ires members to submit their questions to the judge in writi ng “so that a ruling may be made on the propriety of the questions or the course of questioning and so that questions ma y be asked on behalf of the court by the mi litary judge in a form acceptable to th e military judge.” The military judge carefully reviewed the dozens of ques tions submitted by various panel members and, despite lack of objection from either party to some questions, properly ruled that certain questions were objectionab le and did not ask them.

Panel member, Captain (CPT) AA, prop osed the followin g questions to appellant: “[w]hy should the court believ e them and not you?,” “[w]hy should the court believe you and not them?” [1] , and “[d]on’t you think it was an important part in your case to prove that you could not ha ve physically impregnated [DC]?” Defense counsel objected to the questions without stating specific grou nds, and the judge did not ask them. Defe nse counsel did not request an Article 39(a ) session, an option indicated on th e member’s question form. De fense counsel di d not object to the remaining seven questi ons CPT AA asked appellant. 2

1 The panel member was re ferring to the two allege d victims in this case.

2 A different panel member later asked th e following questions: “Have there been post-op visits to veri fy the success or failure of the vasectomy reversal ? If so, what are the results of [the] post- op visits? Was the revers al successful?” Defense counsel did not object to th ese questions and th e military judge aske d the questions. Appellant responded that: he underwent a te st, which indicated he had “some blockage”; he was referred to urology; he never went to urology once the allegations that were the subject of the trial arose; and that he “kn[ e]w for a fact the vasectomy

was not successful” because he and his wife had been trying to have a baby for years

and were unable and his “w ife [was] tested, and there [was] nothing wrong with

her.”GREENE — ARMY 20120805

4 Appellant now argues that the military judge ha d a sua sponte duty “to examine CPT [AA], particularly after the qu estion regarding the burden of proof, to

determine whether she understood the in structions and would fo llow them” and that appellant “did not receive a fa ir trial because th e military judge fail ed to excuse CPT [AA] sua sponte” on th e grounds of both act ual and implied bias.

The right to an impartial an d unbiased panel is guarante ed to an accused in the military justice system by the Constitu tion, federal statut es, regulations and directives, and case law. United States v. Nash , 71 M.J. 83, 88 (C.A.A.F. 2012) (citations and quotation mark s omitted). This right is “upheld through military judges’ determinations on the issues of ac tual bias, implied bi as, and the mandatory disqualifying grounds in the Rules for Courts-Martial (R.C.M.) that preclude persons from serving on a panel.” Id.

Actual bias is “personal bias which will not yiel d to the military judge’s

instructions and the eviden ce presented at trial.” Id. Actual bias is “reviewed through the eyes of the military judge or the court members . . . .” United States v.

Leonard , 63 M.J. 398, 402 (C .A.A.F. 2006) (quoting United States v. Wiesen

, 56 M.J. 172, 176 (C .A.A.F. 2001)). Implied bias exists when, “despite a disclaimer,” most people in the same position as the pane l member would be prejudiced against an accused. United States v. Townsend , 65 M.J. 460, 463 (C.A.A.F. 2008). Impl ied bias is evaluated “objecti vely, ‘through the eyes of the public,’ reviewing ‘the perception or appearan ce of fairness of the military justice system.’” Id. (quoting United States v. Schlamer , 52 M.J. 80, 93 (C .A.A.F. 1999)).

When there is no actual bias, implied bias shou ld rarely be invoked. United States v.

Strand , 59 M.J. 455, 458 (C.A.A .F. 2004) (citation and qu otation marks omitted).

R.C.M. 912(f)(1) lists se veral grounds for excusing a member for cause. R.C.M. 912(f)(1)(M) provides th at a member “shall be excused for cause whenever it appears that the member . . . [h]as formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense ch arged.” This ru le encompasses

actual bias. Nash , 71 M.J. at 88. R.C.M. 912( f)(1)(N) provides that a member “shall be excused for cause whenever it appe ars that the member . . . [s]hould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impar tiality.” This rule applies to both actual and implied bias, however, “the th rust of this rule is implied bias.” Strand , 59 M.J. at 458.

Finally, R.C.M. 912(f)(4) provides that : “Notwithstanding the absence of a challenge or waiver of a challenge by the partie s, the military judge may , in the interest of justice , excuse a member against whom a challenge for cause would lie.” (Emphasis added); see also Strand , 59 M.J. at 458 (“It is clear that a military judge may excuse a member sua sponte.”).GREENE — ARMY 20120805

5 The standard of review for a case under these facts is unclear. In Strand , our superior court stated that a “judge’s decision whether or not to excuse a member sua sponte is subsequently reviewed for an abuse of discretion,” but nonetheless held that “[s]ince the judge did not abuse his discretion, there was no plain error.” 59 M.J. at 458, 460. Regardle ss of the standard, we hold the military judge did not abuse her discretion or commit error by no t exercising her au thority to remove

CPT AA.

CPT AA’s first two questions evidenced her concern with weighing appellant’s credibility as a re sult of his decision to test ify. By aski ng the third question, CPT AA was seeking additional evidence from appellant himself in order

to assess his credib ility. We recogniz e that the ph rasing of the third question, suggesting that appellant need ed to “prove” a fact, cont ravened the judge’s initial instructions to the members that “[t]he government has the bu rden of proving the accused’s guilt by legal an d competent evid ence beyond a reas onable doubt” and CPT AA’s agreement during voir dire that “the burden ne ver shifts to the defense to

establish the accused’s innoce nce . . . [and that] the defe nse has no obligation to present any evidence or to di sprove the elements of the offenses.” However, we hold that CPT AA’s questions did not reflect that she ha d formed or expressed a definite opinion as to appellant’s guilt or that she was person ally biased against appellant.

Finding no actual bias or a violation of R.C.M. 912(f)(1)(M), we address

whether CPT AA should have been excu sed for implied bi as under R.C.M. 912(f)(1)(N). We review implied bias through the ey es of the pub lic and ask whether CPT AA’s question regarding pate rnity undermined the public’s perception or appearance of fairness of the military ju stice system. See Townsend , 65 M.J. at

463. Based on the reco rd before us, we answ er in the negative.

The record merely sugge sts the possibility of im plied bias when CPT AA asked a question in contra vention of instructions provided earlier. Defense

counsel’s sole reaction at trial was to object to CP T AA’s question. Defense counsel was satisfied when the judge did not ask the question and specifically did not request to voir dire or excuse CPT AA or for a curative instruction to be given to CPT AA. The military judg e’s instructions and actions further and appropriately reduced any potential implication of bias. The judge twice expl ained to the members that “questions of witnesses are subject to objection. During the trial, when I sustain an objection, disregar d the question and the answer ,” and immediately before CPT AA proposed her three questions, the judge re minded the panel that “[o]nce again, if I did not ask your qu estion, you can assume it’s the subject of a sustained objection.” After the judg e did not ask CPT AA’s pate rnity question, CPT AA did not seek to ask it again, ev idencing her ability to follow the judge’s instructions. Additionally, during the find ings instructions, the judge again instructed the panel,

inter alia , “the burden of proof to establish the guilt of the accused beyond aGREENE — ARMY 20120805

6 reasonable doubt is on the government. The burden never shifts to the accused to

establish his innocence or to disprove facts ne cessary to establish each element of

each offense.”

Implied bias is a long-recognized basi s for concluding that a panel member

should not serve on a court- martial. While the facts and circumstances surrounding the questions submitted by CPT AA present a cl ose case, we ar e convinced upon

review of the record as a wh ole and the applicable law, that the military judge did

not commit error or abuse her discretion in refraining from co nducting individual voir dire of CPT AA or excusing CPT AA.

AGGRAVATED SEXUAL ASSAULT BY CAUSING BODILY HARM (SPECIFICATION 3 OF CHARGE II)

Facts and Procedural Background

Specification 3 of Ch arge II alleged:

In that [appellant], did, at or near Fort Story, Virginia,

between on or about 22 Nove mber 2007 and on or about 30 April 2009, engage in a sexual act, to wit: penetrating with his penis the vulva of Miss [DC], by causing bodily harm upon her, to wit: plac ing his body weig ht on her so that Miss [DC] could not av oid the sexual contact.

Before issuing instructio ns on findings, th e military judge ga ve both trial and

defense counsel a written c opy of the proposed instructions. With regard to Specification 3 of Charge II, the proposed instructions included the element: “that the accused did [cause DC to engage in a sexual act] by causi ng bodily harm to [DC], to wit: vaginal pain.” Neither part y objected to the propo sed instruction, and the military judge instructed the panel accordingly.

The record reveals no evidence that any amendment was made to Specification 3 of Charge II to except the words, “placi ng his body weig ht on her so that Miss [DC] could not av oid the sexual contact,” and substitute the words, “vaginal pain.” However, we need not address the effect of this error because there

is insufficient eviden ce in the record to convince us beyond a reasonable doubt that appellant placed his body we ight on DC so that she co uld not avoid the sexual contact during the ch arged time period. See United States v. Washington , 57 M.J.GREENE — ARMY 20120805

7 394, 399 (C.A.A.F. 2002). 3 We conclude the evidence is factually insufficient to support appellant’s conviction of Specification 3 of Charge II.

CONCLUSION

The finding of guilty of Specification 3 of Charge II is set aside and dismissed. The remaining find ings of guilty are AFFIRMED.

In United States v. Sales , our superior court set fort h the standard for sentence reassessment: “if the [service] court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a cer tain severity, then a sentence of that severity or less will be free of the prejudicial effects of

error . . . .” 22 M. J. 305, 308 (C.M.A. 19 86). After conducting a thorough analysis

on the basis of the entire record and in acco rdance with the princi ples articulated in

United States v. Sales

, id.

, and United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are conf ident in our ability to re assess appellant’s sentence

without the need for a rehearing.

In evaluating the Winckelmann factors, we find there is no dramatic change in the penalty landscape or significant decrease in sentencing exposure. See

Winckelmann , 73 M.J. at 15-16. Wh ile a conviction for aggravated sexual assault by causing bodily ha rm carries a maximum sentence that includes 30 years confinement and a dishonorable discharg e, two of appellant’s re maining convictions (sodomy

with a child under 12 and forcible s odomy) each subjected him to a maximum punishment of life wi thout the possibility of parole and a dishon orable discharge. Manual for Courts-Martial, United States [hereinafter MCM ] (2008 ed.), pt. IV, ¶¶ 45.f(2), 51.e(1), (3). Appellant’s convictions for ca rnal knowledge with a child who had attained the age of 12 but was under the age of 16, aggravated sexual assault of a child, and wrongful sexual contact subjected hi m to an additional 41 years of confinement. See MCM (2005 ed.), pt. IV, ¶ 45.e(2); MCM (2008 ed.), pt. IV, ¶ 45.f(3), (7). The gravamen of appellant’s misconduct remains his serial

sexual abuse of children—his wife’s two nieces—while th ey were under his care.

See Winckelmann , 73 M.J. at 16. Finally, this court reviews the records of a

substantial number of courts-m artial involving sexual abuse of children and we have extensive experience with the level of se ntences imposed for su ch offenses under

various circumstances. See id.

3 Even if the specification had been amended to stat e appellant caused “vaginal pain,” there is insufficient evidence in the record to establish that appellant caused vaginal pain during the charged time period.GREENE — ARMY 20120805

8 After our review of the r ecord, we are confident th at the panel would have adjudged the same sentence absent the error noted. See Sales , 22 M.J. at 307-08. We also conclude, pursuant to Ar ticle 66, UCMJ, that such a se ntence is also appropriate for the remaining guilty findings.

The sentence is AFFIRMED. All rights, privileges, and property, of which appellant has been deprived by virtue of th at portion of the findings set aside by this decision, are ordered restored.

Senior Judge TOZZI and Judge KRAUSS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: