UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant LOUIS R. QUILL 

United States Army, Appellant 

ARMY 20160454 

Headquarters, Fort Carson 

Lanny Acosta, Jr., Military Judge 

Colonel Gregg A. Engler, Staff Judge Advocate 

For Appellant: Matthew Flynn, Esquire (argued); Daniel Conway, Esquire; Captain 

Matthew D. Bernstein, JA (on brief). 

For Appellee: Captain Meredith M. Picard, JA (argued); Colonel Tania M. Martin, 

JA; Major Michael E. Korte, JA; Captain Meredith M. Picard, JA (on brief). 

10 August 2018 

--------------------------------- 

MEMORANDUM OPINION 

--------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

FEBBO, Judge: 

 This case is before us for review pursuant to Article 66, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. 866.1 Appellant raises three assignments of 

error; we will address all. First, whether the military judge erred in admitting 

appellant’s confession under Military Rule of Evidence (Mil. R. Evid.) 304(c). 

 

1

 A panel of officers sitting as a general court-martial convicted appellant, contrary 

to his pleas, of one specification of sexual assault, in violation of Article 120, 

UCMJ. Relevant to the issues on appeal, the specification alleged appellant sexually 

assaulted Private (PV2) LW by “penetrating her vulva with his penis and fingers 

without her consent.” The panel sentenced appellant to a dishonorable discharge, 

confinement for 30 months, and reduction to the grade of E-1. The military judge 

granted appellant 180 days of confinement credit. The convening authority approved 

the adjudged sentence. 
QUILL—ARMY 20160454 

2 

Second, whether the military judge erred by denying a defense challenge of a panel 

member for cause. Third, appellant challenges the legal and factual sufficiency of 

his conviction. 

We conclude the military judge erred by applying the wrong law to rule on the 

admission of appellant’s confession, but the error was harmless because application 

of the correct law also results in the admission of appellant’s confession. We next 

conclude the military judge did not abuse his discretion allowing the challenged 

panel member to sit on appellant’s case. We further conclude the evidence is legally 

and factually sufficient to convict appellant for much the same reasons we conclude 

appellant’s confession was properly corroborated. When appellant’s confession is 

considered together with the evidence corroborating it, there is overwhelming 

evidence of appellant’s guilt. 

BACKGROUND 

On 8 March 2015, appellant was a noncommissioned officer (NCO) assigned 

to Fort Carson. Private (PV2) LW had recently graduated from Army Initial 

Training (AIT) and had been assigned to Fort Carson for four days. The events that 

led to appellant sexually assaulting PV2 LW while she was passed-out drunk in 

appellant’s barracks room started at a barrack’s cookout. The testimony of different 

witnesses was fairly consistent until the point PV2 LW’s friends left her alone and 

unconscious in appellant’s room and appellant locked his door behind them. 

A. A Dangerous Cocktail: NCOs, Privates, and Alcohol 

After the barracks cookout party, appellant invited PV2 LW, her boyfriend 

who was also a PV2 at the time, and two other privates, PV2 Kelsch and PV2 

Meyers,2 to his barracks room to play beer pong. The four junior soldiers were close 

friends with each other, but they had just met appellant that evening. Other than a 

few words, PV2 LW did not speak or interact with appellant. During the cookout, 

PV2 LW drank various alcoholic beverages. She became drunk. Appellant, PV2 

LW’s boyfriend, and PV2 Kelsch were also drinking alcohol. 

Later that evening, while appellant and the three privates played beer pong 

and smoked, PV2 LW fell asleep on appellant’s bed. Still later in the evening, 

appellant asked the three privates to go get cigarettes. He gave them money. 

Private Meyers drove with PV2 LW’s boyfriend and PV2 Kelsch to get cigarettes at 

the local shopette. When they left, the three Privates saw PV2 LW was fully clothed 

and sleeping on the bed. Before leaving, PV2 LW’s boyfriend made sure that his 

 

2

 This opinion refers to all parties by their names and ranks at the time of the 

assault. Private LW later married the man who was then her boyfriend. 
QUILL—ARMY 20160454 

3 

girlfriend was alright, that the barrack’s door was propped open by the deadbolt, and 

the lights were on. 

Upon arriving at the shopette, the trio realized it was already closed and they 

were unable to go inside to buy cigarettes. They were only gone for a total of 

around 10-15 minutes before they arrived back at appellant’s room. 

B. What Happened Behind the Locked Door

As they testified at trial, when PV2 Kelsch, PV2 Meyers, and PV2 LW’s 

boyfriend arrived back at appellant’s room, the door was shut, locked, and the lights 

were off. The trio knocked on the door and began to kick the door and yell when 

appellant did not initially open it. It took several minutes for appellant to open the 

door. 

Appellant answered the door in his boxers, with a noticeably erect penis. The 

three privates saw PV2 LW was still passed-out on the bed. She was now under a 

blanket. Private Kelsch went to wake PV2 LW so they could all leave. As he 

attempted to wake her, PV2 Kelsch noticed that she had been stripped naked from 

the waist down. Her pants and underwear were pulled down with only one foot in 

her pants, and her shirt was pushed up to under her breast. Private Kelsch testified 

that PV2 LW was unconscious and mumbling when he began helping her get dressed. 

After PV2 Meyers finished getting PV2 LW dressed, PV2 LW began to vomit. 

Correctly assessing what happened in his absence, PV2 LW’s boyfriend confronted 

appellant. When asked by PV2 LW’s boyfriend, appellant claimed he did not know 

why PV2 LW’s clothes were off. Fisticuffs ensued between appellant and PV2 LW’s 

boyfriend. Private Meyers carried PV2 LW out of the room. The three privates took 

PV2 LW to the charge of quarters (CQ) office. The Military Police were called. 

C. The CID Investigation 

A CID Special Agent interviewed PV2 LW. At the time, she did not think she 

was sexually assaulted. She did not have any vaginal pain the next day and, as she 

testified at trial, she could not remember anything between when the group was 

playing beer pong until she was in the CQ office. Private LW initially declined a 

medical exam, but shortly afterward agreed to undergo a Sexual Assault Forensic 

Examination (SAFE). During the SAFE, samples were collected for DNA testing. 

CID also collected appellant’s clothing for DNA testing. CID interviewed 

appellant several times. After initial denials of misconduct, appellant provided a 

sworn statement to CID essentially confessing to sexually assaulting PV2 LW. This 

was the statement that appellant sought to exclude at trial. 
QUILL—ARMY 20160454 

4 

In the sworn statement, appellant explained that he locked the barracks door 

after the three privates left. He did not know PV2 LW’s name and he knew she was 

intoxicated and passed out on the bed. After taking off his shirt and pants, he turned 

off the lights. Appellant laid on the bed and started “fondling” PV2 LW’s breast and 

“touching her body.” Appellant admitted that PV2 LW “was too intoxicated to 

consent to any type of sexual activity that night.” He described her state of 

consciousness as “kinda in and out.” He took off her pants without her consent and 

she did not help remove them. After removing her pants, appellant went through the 

“steps” that he “normally” took “with someone and not hearing no.”3 Appellant 

started to “message her vagina” and inserted his “right index finger” in her vagina. 

Appellant reported that he “was under the impression that she hadn’t said no yet so 

[he] stuck [his] penis in her vagina.” After “a few minutes,” he heard banging on 

the door and “realized [he] wasn’t doing the right thing at the time.” Appellant 

explained he was drunk. 

After DNA testing by U.S. Army Criminal Investigation Laboratory 

(USACIL), PV2 LW’s DNA was detected on the inside of appellant’s underwear in 

the area of the crotch. Appellant’s DNA, however, was not detected on the inside or 

outside of PV2 LW’s genitalia. 

D. Objection to the Confession at Trial 

At trial, after PV2 LW, her boyfriend, PV2 Kelsch, PV2 Meyers, and the 

USACIL DNA expert testified, appellant moved to exclude appellant’s statement to 

CID. Appellant’s counsel argued that the statement contained uncorroborated 

admissions or confessions. In particular, appellant argued that the “inference of 

actual penetration” was not corroborated. Appellant argued that there was an 

absence of appellant’s DNA in or around PV2 LW’s genitalia. Appellant also argued 

that DNA of PV2 LW’s boyfriend was recovered from PV2 LW during the SAFE, 

but no DNA from PV2 LW’s boyfriend was found on appellant or his underwear. 

Appellant claims that if he had committed penetrative sexual acts with PV2 LW, her 

boyfriend’s DNA, being already present, would have transferred onto appellant and 

then onto his underwear. He further argues that PV2 LW’s DNA could have been 

transferred into his underwear by means other than sexual intercourse. 

The DNA examiner explained that she could not “say for certain” how PV2 

LW’s DNA was deposited inside appellant’s underwear. The examiner also 

 

3

 The appellant’s statement suggests that the absence of protest is the same as 

affirmative consent. This view is both legally and factually wrong. The absence of 

“no” is simply not the same as an affirmative “yes.” 
QUILL—ARMY 20160454 

5 

explained that it was possible for DNA to be present on an object, like appellant’s 

underwear, but go undetected by testing.4 

After argument and a recess, the military judge made the following findings 

of fact: 

[T]here exists a statement from the accused in 

which he admits to having sexual intercourse with the 

alleged victim and inserting his fingers into her vagina . . . 

. [T]here exists evidence that – of DNA of the alleged 

victim found on the inside of the accused’s boxer shorts. 

The alleged victim was seen fully dressed lying on 

the bed of the accused prior to the departure of three 

witnesses. Upon return the three witnesses reported 

finding the alleged victim in a state of undress, nude from 

the waist down, and covered in a blanket. These three 

same witnesses also witnessed the defendant in a state of 

dress wearing boxer shorts upon their return. 

There’s testimony that the DNA could’ve been 

placed on the inside of the boxer shorts through several 

different means. 

 

 . . . . 

[D]espite the defense argument to the contrary, the 

testimony of the expert did not exclude that penetration 

occurred as stated in the accused’s statement. 

The military judge concluded that “physical evidence and the expert testimony 

coupled with the evidence as to access, opportunity, time, and location and method 

of the offense provide more than sufficient corroboration to the statement of the 

accused.” The military judge denied the defense motion and ruled that appellant’s 

confession was corroborated and admissible. 

 

4

 In other words, the weight a fact finder might give to the presence of DNA is not 

necessarily the same as the weight a fact finder might give to the absence of DNA. 
QUILL—ARMY 20160454 

6 

LAW AND DISCUSSION 

A. Corroboration of a Confession Under Mil. R. Evid. 304(c) 

 Appellant argues the military judge erred by admitting his confession to the 

charged offense despite—appellant claims—a lack of evidence corroborating his 

confession. In particular, appellant asserts there was no evidence in the record to 

corroborate the essential fact of penetration by appellant’s penis or his fingers into 

PV2 LW’s vagina. 

 

1. Standard of Review for the Military Judge’s Ruling 

We review a military judge’s admission of evidence for an abuse of 

discretion. United States v. Adams, 74 M.J. 137, 139 (C.A.A.F. 2015) (citing 

United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003)). “A military judge 

abuses his discretion if his findings of fact are clearly erroneous or his conclusions 

of law are incorrect.” United States v. Olson, 74 M.J. 132, 134 (C.A.A.F. 2015) 

(internal quotation omitted). “A military judge abuses his discretion if his ruling is 

influenced by an erroneous view of the law.” United States v. Matthews, 53 M.J. 

465, 470 (C.A.A.F. 2000) (internal quotation omitted). 

The parties agree that because the appellant was arraigned on 1 March 2016, 

the Military Rules of Evidence as they existed on that date apply to appellant’s court 

martial.5

 It appears, however, that the military judge relied, at least in part, upon the 

version of Mil. R. Evid. 304(c) that took effect on 20 May 2016. At trial, the parties 

based their arguments on Adams and other cases predating the new Mil. R. Evid. 

304(c). Since the military judge stated that the new rule did not explicitly overturn 

 

5

 On May 15, 2013, the President signed Executive Order 13643, which updated the 

Military Rules of Evidence in their entirety. Exec. Order 13643, 78 Fed. Reg. 98, 

29559 (May 21, 2013). Military Rule of Evidence 304(c) was again revised in 2016 

by removing the requirement that all “essential facts” of a confession or admission 

be individually corroborated. Instead, the 2016 rule requires only that the 

confession or admission be corroborated by “evidence that would tend to establish 

the trustworthiness of the admission or confession” as a whole. Exec. Order 13730, 

81 Fed. Reg. 102, 33350 20 May 2016. The rule change did not apply to appellant’s 

case because he was arraigned before the 20 May 2016 effective date for the new 

rule. The significance of the date of arraignment to the rules effective at a courtmartial is a long-standing principle that should be familiar to military justice 

practitioners. See, e.g. United States v. Merritt, 1 C.M.R. 56, 15-18 (C.M.A. 1951). 

This effective date, and the significance thereof, was also plain on the face of the 

executive order implementing the rules that the military judge erroneously applied in 

this case. Exec. Order 13730, 81 Fed. Reg. 102, 33331. 
QUILL—ARMY 20160454 

7 

Adams,

6

 the military judge and the parties discussed Adams and the analysis thereof. 

For example, consistent with Adams, the military judge stated the essential facts he 

considered included time, place, opportunity, access, and method. Portions of the 

military judge’s conclusions of law, however, refer to the language of the 2016 

version of the rule rather than the 2013 version. For example, the military judge 

relied on language in the new rule requiring corroboration by “evidence that would 

tend to establish the trustworthiness of the admission.”7

 The military judge’s findings of fact were not clearly erroneous. His 

conclusions of law are, however, at least partly based on the wrong version of Mil. 

R. Evid 304(c). It is an abuse of discretion to apply the wrong law. We therefore 

conclude the military judge abused his discretion by applying the wrong version of 

Mil. R. Evid. 304(c). Because we find the military judge abused his discretion by 

applying the wrong law, we must further determine whether his error prejudiced 

appellant. United States v. Robinson, 58 M.J. 429, 433 (C.A.A.F. 2003). If a 

military judge reaches the right result for the wrong reason, the military judge’s 

error is harmless because application of the correct law would not change the 

outcome. Id. Therefore, we will review the military judge’s decision to admit the 

confession de novo under the rules in effect at the time of appellant’s arraignment. 

See United States v. Cannon, 74 M.J. 746, 751 (Army Ct. Crim. App. 2015). 

2. Application of the Corroboration Rule in Effect During Appellant’s Trial 

The applicable version of Mil. R. Evid 304(c)(1) reads: 

An admission or a confession of the accused may be 

considered as evidence against the accused on the question 

of guilt or innocence only if independent evidence, either 

direct or circumstantial, has been admitted into evidence 

that corroborates the essential facts admitted to justify 

sufficiently an inference of their truth. 

Mil. R. Evid. 304(c)(1) (15 May 2013). 

 Interpreting the applicable language of Mil. R. Evid. 304(c)(1), the Court of 

Appeals for the Armed Forces has explained: “What constitutes an essential fact of 

an admission or confession necessarily varies by case. Essential facts we have 

 

6

 Plainly, however, the current version of Mil. R. Evid. 304(c)(1) dispenses with the 

requirement that each “essential fact” of an admission or confession be corroborated. 

7

 The language from the military judge’s ruling mirrors the new version of Mil. R. 

Evid. 304(c)(1) almost verbatim. 
QUILL—ARMY 20160454 

8 

previously considered include the time, place, persons involved, access, opportunity, 

method, and motive of the crime.” Adams, 74 M.J. at 140. Our superior court 

further explained: 

There is no ‘tipping point’ of corroboration which would 

allow admission of the entire confession if a certain 

percentage of essential facts are found to be corroborated. 

For instance, if four of five essential facts were 

corroborated, the entire confession is not admissible. 

Only the four corroborated facts are admissible and the 

military judge is required to excise the uncorroborated 

essential fact. 

Id.

 Under Adams, while every essential fact must be independently corroborated, 

every essential fact need not be independently proved beyond a reasonable doubt, or 

even by a preponderance of the evidence. “Rather, the corroborating evidence must 

raise only an inference of truth as to the essential facts admitted.” Id. (quoting 

United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997) (the independent 

evidence “need not [establish reliability] beyond a reasonable doubt or by a 

preponderance of the evidence.”). Our superior court has recently reiterated that, 

“only a small quantum of evidence is needed to corroborate an essential fact in a 

confession or admission.” United States v. Jones, __ M.J. __, slip op. at 6 (C.A.A.F. 

31 Jul. 2018). 

3. Applying the Corroboration Requirement to the Facts of this Case 

 The facts in Adams are distinguishable from the evidence presented for 

corroboration of appellant’s confession. In Adams, the alleged robbery victim did 

not testify and “the only direct evidence of the crime was the confession.” Id. at 

141. Also absent from trial was evidence to corroborate Adams’ opportunity or 

motive to commit the crime, access, or his intent. Unlike Adams, appellant’s 

confession was corroborated by three witnesses who testified to the actual events 

immediately before and after the sexual assault. Independent evidence was 

presented to corroborate the time, place, persons involved, access, opportunity, 

method, and motive of the crime. The government also presented DNA evidence to 

corroborate appellant’s confession. 

In order to corroborate the appellant’s confession, the government did not 

have to disprove every alternate theory for the presence or absence of DNA 

evidence. Nor, unlike the overall burden of proof at trial, did the government need 

to prove each essential fact stated in appellant’s confession beyond a reasonable 

doubt—or even by a preponderance of the evidence. Adams requires building blocks 
QUILL—ARMY 20160454 

9 

of evidence, not a finished wall of proof. The independent evidence “need raise 

only an inference of the truth of essential facts admitted.” Mil. R. Evid. 304(c)(4) 

(15 May 2013). This inference of truth “may be drawn from a quantum of 

corroborating evidence that [our superior court] has described as ‘very slight.’” 

United States v. Arnold, 61 M.J. 254, 257 (C.A.A.F. 2005) (quoting United States v. 

Melvin, 26 M.J. 145, 146 (C.M.A. 1988)). The quantum of corroborating evidence 

in appellant’s case exceeded the “very slight” corroboration required. 

 Three witnesses agree they left PV2 LW fully clothed and passed-out in 

appellant’s room. The lights were on and the door was bolted to remain open. When 

the trio returned early from trying to purchase cigarettes, the lights were off and 

door was locked. After the witnesses pounded on the door for an extended time, 

yelling and kicking, appellant opened the door in his underwear with a visible 

erection. Immediately thereafter the witnesses found PV2 LW, still passed-out, with 

her clothes stripped off her. In our view, these facts alone sufficiently corroborated 

appellant’s admission to the penetrative acts. 

Additionally, however, PV2 LW’s shirt was pushed up to under her breasts 

corroborating appellant’s statement that he abused her breasts. Private LW was nude 

from the waist down, corroborating appellant’s statement that he “messaged,” 

“fingered” and “stuck [his] penis in her vagina.” Private LW’s DNA was found 

inside appellant’s underwear, which also corroborated the sexual assault, and 

particularly appellant’s penile penetration of PV2 LW’s vagina. Although appellant 

speculates on alternative explanations for the presence of PV2 LW’s DNA in his 

underwear, “[t]he evidence needed to corroborate an admission need not foreclose 

all other reasonable possibilities.” United States v. Gable, 2015 CCA LEXIS 501, at 

*14 (A.F. Ct. Crim. App. 5 Nov. 2015) (forensic testimony that an intoxicated 

victim’s DNA was detected on appellant’s bed sheets was sufficient to justify an 

inference of truth of the admission to sexual intercourse). 

 Our review of the record convinces us that appellant’s confession was 

corroborated and admissible under the version of Mil. R. Evid 304(c)(1) that was in 

effect at the time of his arraignment and Adams. The military judge reached the 

right result, albeit for the wrong reason. Because application of the correct law 

reaches the same outcome as that reached by the military judge, the military judge’s 

error was harmless. See Robinson, 58 M.J. at 433-34. 

B. Challenge of a Panel Member for Cause 

 Appellant asserts the military judge erred by denying appellant’s challenge of 

a panel member, Major (MAJ) SD, for cause under an implied bias theory, because 

MAJ SD’s sister was the victim of a sexual assault. We find the military judge did 

not err. 
QUILL—ARMY 20160454 

10 

1. The Standard of Review and Doctrine of Implied Bias 

 Implied bias exists if inclusion of a panel member would cause a reasonable 

member of the public to doubt the fairness of the court-martial. United States v. 

Rogers, 75 M.J. 270, 272-73 (C.A.A.F. 2016). Implied bias, much like actual bias, 

is cause for challenge, to remove a biased member from the panel that will hear the 

case. “[C]hallenges for cause are to be liberally granted.” United States v. Glenn, 25 

M.J. 278 (C.M.A. 1987) (citations omitted). 

“[The] 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. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (internal 

quotation marks and citations omitted). Under this standard, “[w]e do not expect 

record dissertations but, rather, a clear signal that the military judge applied the 

right law.” United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002). Indeed, 

“where the military judge places on the record his analysis and application of the 

law to the facts, deference is surely warranted.” Id. Further, where a military judge 

has addressed implied bias by applying the liberal grant mandate on the record, that 

military judge will accordingly be granted “more deference on review than one that 

does not.” United States v. Clay, 64 M.J. 247, 277 (C.A.A.F. 2007). 

 Implied bias is reviewed under an objective standard, “viewed through the 

eyes of the public, focusing on the appearance of fairness.” United States v. Briggs, 

64 M.J. 285, 286 (C.A.A.F. 2007). “Implied bias exists when, ‘regardless of an 

individual member’s disclaimer of bias, most people in the same position would be 

prejudiced [that is, biased].’” Id. (alteration in original) (quoting United States v. 

Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000)). “[M]ere declarations of 

impartiality, no matter how sincere, may not be sufficient.” United States v. Nash, 

71 M.J. 83, 89 (C.A.A.F. 2012); cf. United States v. Torres, 128 F.3d 38, 47 (2d Cir. 

1997) (“Once facts are elicited that permit a finding of inferable bias, then, just as in 

the situation of implied bias, the juror’s statements as to his or her ability to be 

impartial become irrelevant.”). 

2. The Panel Member’s Voir Dire 

 Group voir dire was extensive and included over one hundred questions from 

the military judge and counsel. During group voir dire, in response to the defense 

counsel’s questions, MAJ SD agreed that someone could falsely confess to a crime 

they did not commit, not all allegations of sexual assault are truthful, false 

accusations of sexual assault occur, and he knew someone that had been falsely 

accused of rape or sexual assault. 

Major SD also stated he knew someone that had been sexually assaulted. 

During individual voir dire, MAJ SD explained the person in question was his sister. 

He thought the assault happened “about 2012” but was unsure of the exact year and 
QUILL—ARMY 20160454 

11 

indicated it could have been as distant as 2010. He did not know many details about 

the allegations. Major SD stated he did not know if the assault was in a dormitory 

or a residence. He stated that his sister knew her assailant, campus security was 

called, and he believed alcohol was involved. Major SD was not aware of any 

criminal proceedings in the case. He reported no particular feelings about the lack 

of any legal resolution. Major SD considered the assault a “closed chapter” in his 

sister’s life. Major SD explained that his sister is twelve years his junior, and he 

was not close to his sister. He explained they “don’t really keep in very close 

contact,” speaking only “once in a while,” and she did not call him for advice. 

Major SD stated that he believed his sister was twenty-three years of age at the time 

of appellant’s trial. 

Also during individual voir dire, MAJ SD informed the parties that around 

2014 or 2015 he had had conducted his own self-study regarding sexual assault in 

the military. Major SD explained his self-study was not academically rigorous, and 

consisted of “just reading up on various articles and books.” 

Although the military judge granted defense challenges to four other panel 

members in MAJ SD’s venire, he denied the defense challenge to MAJ SD. 

3. Applying the Implied Bias Test to the Facts of this Case 

 Appellant challenged MAJ SD for cause. Defense counsel argued that his 

sister was sexually assaulted four years prior to appellant’s trial, and that his sister 

was roughly the same age as PV2 LW, and the alleged incident involved alcohol.8

 

Appellant argues that MAJ SD’s answers to the military judge about whether he 

could set aside his feeling about his sister’s assault were equivocal. Appellant also 

claims that MAJ SD’s reading about sexual assault in the military should have 

disqualified him from sitting as a panel member in appellant’s case. 

 According to appellant, the facts of MAJ SD’s sister’s assault “mirror” the 

facts of this case. We disagree. Unfortunately, many sexual assault allegations 

involve young adults and alcohol, and that is the extent of the similarity between 

what MAJ SD reported and the facts of this case. Major SD was only aware of 

general information relating to his sister’s assault. There was no suggestion that 

MAJ SD’s sister was unconscious, or left alone with a relative stranger. Indeed, one 

of the few facts MAJ SD knew about his sister’s assault was that she knew her 

 

8

 Additionally, the defense counsel argued that MAJ SD’s sister was assaulted at a 

college dormitory, similar to the barracks. This argument was contrary to the actual 

statement of MAJ SD, who, when asked by the defense counsel if the assault 

happened in a dormitory responded: “I don’t know if it was in a dorm or residence of 

some sort.” 
QUILL—ARMY 20160454 

12 

assailant. Indeed, other than the fact it was a sexual assault of a young adult in 

which alcohol was in some way involved, there is little similarity between what we 

know about the assault of MAJ SD’s sister and the appellant’s case. Moreover, MAJ 

SD did not express anything that would suggest learning of his sister’s assault was a 

pronounced and distinct experience for him, or otherwise affected him in a way that 

would bias his service on appellant’s panel. Cf. United States v. Terry, 64 M.J. 295, 

297 (C.A.A.F. 2007) (a military judge erred in not granting a challenge for cause 

against a panel member with a “pronounced and distinct” experience with a crime 

similar to that alleged at trial). 

 The military judge denied the for-cause challenge of MAJ SD, and placed his 

analysis on the record as follows: 

I’ve considered the challenge for cause based on both 

actual and liberal—actual and implied bias and the 

mandate to liberally grant the defense challenge, the 

challenge is denied for the following reasons: First of all, 

the defense—he did not state that his self-study was 

related to his sister and it was not tied to that. He 

specifically stated that it was not tied to that. In his initial 

response he stated it was related to military sexual assault 

and wanting to know more about that at the time of his 

initial responses. He appeared to not have any particular 

knowledge about the incidence [sic] that occurred, other 

than it occurred on campus for his sister and that alcohol 

was involved. 

He stated he is not close to his sister, that he does not 

have—that there’s a twelve years difference between the 

two, and they talk very infrequently. The court did not 

find his answers to be equivocal and the court found his 

answer to be, as to whether or not he could set it aside, 

and to able to set that incident aside, that it was a closed 

chapter in his life, and that he could—that it would play 

no role in his duties as a member of the panel to hear this 

case in a fair and impartial manner. That it had no role in 

that whatsoever. So for that reason the challenge is 

denied. 

Like the conclusion of the military judge, our review of the record does not 

disclose any actual bias in MAJ SD. 

In his ruling rejecting the implied bias challenge, the military judge included 

his analysis and plainly stated the liberal grant mandate as part of his decision. As 
QUILL—ARMY 20160454 

13 

such, we give more deference to his ruling than if he had failed to do so. Affording 

the military judge the deference due, we hold he did not err in finding no implied 

bias in MAJ SD. 

The military judge specifically found that MAJ SD’s answers were not 

equivocal. We likewise find MAJ SD’s answers were not equivocal. In the context 

of the questions and answers, MAJ SD’s use of the words “I believe so,” and “I 

think so,” about setting aside any feeling about his sister’s sexual assault were 

responsive to the questions asked. The military judge followed-up with additional 

questions to confirm MAJ SD’s responses were not equivocal. Major SD explained 

he could actually set aside any feelings and decide the case in a fair and impartial 

manner. 

“A prior connection to a crime similar to the one being tried before the courtmartial is not per se disqualifying to a member’s service.” Terry, 64 M.J. at 297; 

See also United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996) (a member is 

not per se disqualified because [the member] or a close relative has been a victim of 

a similar crime.) However, if a member’s experience with a crime similar to the one 

being tried is “pronounced and distinct,” the military judge should grant the 

challenge for cause. Terry, 64 M.J. at 297. Our superior court has also explained: 

“the critical question under military law has been whether a member possessed an 

inflexible or biased attitude as a result of being the victim of a similar crime.” 

United States v. Reichardt, 28 M.J. 113, 116 (C.A.A.F. 1989) (citations omitted). 

 

MAJ SD’s experience with sexual assault was not pronounced and distinct, 

and he did not have an inflexible or biased attitude. He was not emotionally close to 

his sister, he was twelve years older than she, and he spoke to her infrequently. 

Major SD did not have detailed knowledge of his sister’s assault. He did not know 

whether it took place in a dormitory or a residence, and he was not even certain of 

the year in which it happened. 

Major SD’s reading on sexual assault in the military was not related to his 

sister’s assault, and nothing suggested the reading would bias MAJ SD one way or 

another. Major SD agreed that false allegations of sexual assault occur and he even 

knew someone that was falsely accused of sexual assault. 

Unlike, actual bias, implied bias does not relate the subjective sincerity of a 

panel member’s statements, but rather how a member of the general public would 

objectively perceive the panel member’s statements. We conclude an objective 

member of the public would not question MAJ SD’s objectivity or the fairness of the 

proceedings based on MAJ SD’s service as a member of the panel. The military 

judge did not err in his denial of the challenge for cause. 
QUILL—ARMY 20160454 

14 

C. Legal and Factual Sufficiency 

 Appellant asserts that the government failed to prove PV2 LW did not consent 

to sexual intercourse. In the alternative, appellant argues that he had a reasonable 

mistake of fact as to her consent.9 In appellant’s confession, he stated that PV2 LW 

“moaned” and “was moving around” when he “fondled” her breasts. Appellant also 

observes that PV2 LW did not testify “that she resisted or told the appellant no.”10 

For the reasons explained in section “A,” above, and based on the totality of 

the record, we are ourselves convinced, beyond a reasonable doubt, of the 

appellant’s guilt. Appellant did not have any prior relationship with PV2 LW and 

did not even know her name when he was entrusted with watching over her while she 

was passed-out in his barracks room. 

Evidence at trial established that PV2 LW was intoxicated and utterly 

incapable of consent. Appellant himself believed she was “too intoxicated to 

consent to any type of sexual activity.” Appellant admitted she was asleep when he 

got onto the bed that she did not say anything prior to the sexual acts. Instead, she 

“just mumbled” and spoke “no describable words.” According to appellant, rather 

than getting consent, he went “through the steps that [he] normally take[s] with 

someone and not hearing no.” Appellant himself explained that PV2 LW “hadn’t 

said no yet so [he] stuck [his] penis in her vagina.” Of course, PV2 LW hadn’t said 

“no” yet because she was incapable of doing so while passed-out drunk. When PV2 

LW’s friends pounded on the door, appellant knew he “was doing something wrong.” 

Based on the entire record, therefore, we find both the findings and sentence 

are correct in law and fact, and should be approved. 

 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty and sentence 

are AFFIRMED. 

Senior Judge MULLIGAN concurs. 

 

9

 The military judge gave the panel a mistake of fact instruction. 

 

10 Of course, this is unsurprising considering there was overwhelming evidence PV2 

LW was passed-out drunk at the time of the assault, and presumably was incapable 

of even expressing her non-consent. 
QUILL—ARMY 20160454 

15 

Judge Wolfe, concurring: 

I concur fully with today’s opinion for the reasons stated by Judge Febbo. 

However, three additional matters also pull me towards this result. 

First, I conclude that as the military judge explained in detail his reasoning in 

overruling the defense challenge to MAJ SD, his decision is entitled to additional 

deference. United States v. Woods, 74 M.J. 238, 243 n.1 (C.A.A.F. 2015). This 

court has described this as a “sliding scale of deference.” United States v. Mayo, 

ARMY 20140901, 2017 CCA LEXIS 239, at *9 (Army Ct. Crim. App. 7 Apr. 2017). 

Second, and relatedly, I interpret our superior court’s recent decisions as 

specifically allowing a military judge to consider a panel member’s demeanor when 

ruling on an implied bias challenge. Woods, 74 M.J. at 243 n.1 (“resolving claims of 

implied bias involves questions of fact and demeanor, not just law.” (emphasis 

added)).11 We have previously concluded that “an implied bias analysis is viewed 

through the eyes of a member of the public watching the proceedings.” United 

States v. Hines, 75 M.J. 734, 740 n.5 (Army Ct. Crim. App. 2016) (emphasis in 

original). That is, the objective member of the public is not reading a cold 

transcript, but also has the same information (including demeanor evidence) as the 

trial judge. Id. Accordingly, since the record contains the military judge’s specific 

finding that Major SD’s answers to key questions were unequivocal, in a case where 

the cold transcript could have been read differently, this too weighs in favor of 

giving the military judge deference. 

Third, I note this case does not involve allegations of unlawful command 

influence, or concerns about military directed training, duties, or command emphasis 

related or connected to military justice or sexual assault. See United States v. Peters, 

74 M.J. 31, 34 (C.A.A.F. 2015) (the basis for the implied bias challenge “stems from 

historic concerns about the real and perceived potential for command influence in 

courts-martial.”) (internal quotation marks omitted). In this regard, this case is 

distinguishable from Woods (Panel member believed that military members were 

guilty until proved innocent); United States v. Rogers, 75 M.J. 270 (C.A.A.F. 2016) 

(Panel member stated Coast Guard training was that someone who could not 

remember giving consent was too drunk to consent); and United States v. Commisso, 

76 M.J. 315 (C.A.A.F. 2017) (three panel members previously sat on sexual assault 

review board of same case). 

 

11 But see United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (“Whereas a 

military judge can observe the demeanor of the court members in order to determine 

credibility in the case of actual bias, cases of implied bias are based upon an 

objective test and therefore the military judge is given less deference in such 

cases.”). 
QUILL—ARMY 20160454 

16 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: