## UNITED STATES ARMY COUR T 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, Es quire (argued); Daniel Conway, Esquire; Captain
Matthew D. Bernste in, JA (on brief).

For Appellee: Captain Meredith M. Picard, JA (arg ued); Colonel Tania M. Martin, JA; Major Michael E. K orte, JA; Captain Mer edith M. Picard, JA (on brief).

10 August 2018

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

FEBBO, Judge:

This case is before us for re view pursuant to A rticle 66, Unif orm Code of Military Justice (UCMJ), 10 U.S.C. 866. 1 Appellant raises t hree assignments of error; we will address all. Fir st, whether the m ilitary judge erred in admitting appellant’s confessio n under Military Rule of Evidence (Mil. R. Evid.) 304(c).

1 A panel of officers sitting as a general court-m artial convict ed appellant, contrary to his pleas, of one sp ecification of sexual assault, in violat ion of Article 120,
UCMJ. Relevant to the issues on a ppeal, the specification alle ged appellant sexually assaulted Private (PV2) LW by “p enetrating her vu lva with his p enis and fingers
without her consent.” The panel sentenced appellant to a disho norable discharge,
confinement for 30 m onths, and reduction t o the grade of E-1. The military judge granted appellan t 180 days of confinemen t credit. The convenin g authority approved the adjudged sentence.QUILL—ARMY 20160454

2 Second, whether the m ilitary judge erred by denying a defense c hallenge of a panel
member for cause. Thi rd, appellant challe nges the legal and fa ctual sufficiency of
his conviction.

We conclude the milit ary judge erred by appl ying the wrong law to rule on the admission of appellant’s confe ssion, but the error was harmless because application
of the correct law also results i n the admission of appellant’s confession. We next conclude the military judge did not abuse his discretion allowi ng the challenged panel member to sit on appellant’s case. We further conclude t he evidence is legally and factually sufficient to conv ict appellant for much the same reasons we conclude appellant’s confessi on was properly corr oborated. When appella nt’s confession is considered together with the evidence corroborating it, there i s overwhelming evidence of appellant’s guilt.

BACKGROUND

On 8 March 2015, appellant was a noncommissioned officer (NCO) assigned to Fort Carson. Private (PV2) L W had recently graduated from A rmy Initial Training (AIT) and had been assig ned to Fort Carson for four da ys. The events that led to appellant sex ually assaulting PV2 L W while she was passe d-out drunk in appellant’s barracks room start ed at a barrack’s cookout. The testimony of different witnesses was fairly consisten t until the point PV2 LW’s friend s left her alone and unconscious in appellan t’s room and appellant locked his door b ehind them.

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

After the barracks co okout party, appe llant invited PV2 LW, her boyfriend who was also a PV2 at the time, a nd two other privates, PV2 Kel sch and PV2 Meyers, 2 to his barracks room to play beer pong. The four j unior soldi ers were close
friends with each oth er, but they had just met appellant that e vening. Other than a few words, PV2 LW did not speak o r interact with appellant. Du ring the cookout,
PV2 LW drank various alcoholic beverages. She became drunk. A ppellant, PV2 LW’s boyfriend, and PV 2 Kelsch were also d rinking al cohol.

Later that evening, whi le appellant and the three privates play ed beer pong and smoked, PV2 LW fell asleep on ap pellant’s bed. Still later in the evening, appellant asked the three privat es to go get cigarettes. He ga ve them money. Private Meyers drove with PV2 LW’s boyfriend and PV2 Kelsch to get cigarettes at the local shopette. W hen they left, the th ree Privates saw PV2 LW was fully clothed and sleeping on the bed. Before leaving, PV2 LW’s boyfriend ma de sure th at his

2 This opinion refers t o all parties by thei r names and ranks at the time of the
assault. Private LW later marri ed the man who was then her boy friend.QUILL—ARMY 20160454

3 girlfriend was alrigh t, that the barrack’s door was propped ope n by the dea dbolt, and the lights were on.

Upon arriving at the s hopette, the trio rea lized it was already closed and they were unable to go insi de to buy cigarettes . They were only gon e for a total of
around 10-15 minutes befo re they arrived back at appellant’s ro om.

B. What Happened Be hind the Locked Door

As they testified at trial, whe n PV2 Kelsch, PV2 Meyers, and PV 2 LW’s boyfriend arrived bac k 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 d oor and yell when appellant did not in itially open it. It t ook several minutes f or appellant to open the
door.

Appellant answered the door in h is boxers, with a noticeably er ect penis. The three privates saw PV2 LW was still passed-out on the bed. She was now under a
blanket. Private Kelsch went t o wake PV2 LW so they could all leave. As he attempted to wake her, PV2 Kelsc h noticed that s he had been str ipped naked from the waist down. Her pants a nd underwear were pulled down with only one foot in her pants, and her shirt was pu shed up to under her breast. Pr ivate Kelsch testified
that PV2 LW was uncons cious and mumbling whe n he began helping her get dressed. After PV2 Meyers fini shed getting PV2 LW dressed, PV2 LW began to vomit. Correctly assessing what happened in his absence, PV2 LW’s boyf riend confronted appellant. When asked by PV2 L W’s boyfriend, appellant claimed he did not know why PV2 LW’s clothes were off. F isticuffs ensued between appel lant and PV2 LW’s boyfriend. Private Mey ers carried PV2 LW out of the room. The three privates took PV2 LW to the charge of quarter s (CQ) office. T he Military Pol ice were called.

C. The CID Investigation

A CID Special Agent interviewe d PV2 LW. At the time, she did n ot think she was sexually ass aulted. She did not have any vaginal pain the next day and, as she testified at trial, she could not remember anyt hing between whe n the group was playing beer pong until she was in the CQ o ffice. Private LW i nitially declined a medical exam, but shortly afterwa rd agreed to und ergo a Sexual Assault Forensic Examination (SAFE). During the S AFE, samples were collected fo r DNA testing.

CID also collected a ppellant’s clothing f or DNA testing. CID i nterviewed appellant several times. After initial denials of misconduct, appellant provided a

sworn statement to CID essentially confe ssing to sexually assau lting 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 a nd he knew she was
intoxicated an d passed out on th e bed. After taking off his sh irt and pants , he turned off the lights. Appellant laid on the bed and st arted “fondlin g” PV2 LW’s breast and “touching her body.” Appellant a dmitted that PV2 LW “was too i ntoxicated to consent to any type of sexual activity that night.” He describ ed her state of
consciousness as “ki nda in and out.” He took off her pants wit hout her consent and she did not help remove them. After removi ng her pan ts, appell ant went through the “steps” that he “norma lly” took “with someone and not hearing n o.” 3 Appellant started to “message her vagina” and inserted his “right index f inger” in her vagina. Appellant reported that he “was under the impress ion that she h adn’t said no yet so [he] stuck [his] penis in her va gina.” 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 Cri minal Investigation Laborator y (USACIL), PV2 LW’s DNA was detect ed on the inside of appellant’ s underwear in
the area of the crotc h. Appellant’s DNA, h owever, was not dete cted on the inside or outside of PV2 LW’s genitalia.

D. Objection to the Confession at Trial

At trial, after PV2 L W, her boyfriend, PV2 K elsch, PV2 Meyers, and the USACIL DNA expert testified, appe llant moved to exclude appella nt’s statement to CID. Appellant’s counsel argued that the statement contained u ncorroborated
admissions or confessi ons. In particular, appellant argued tha t the “inference of actual penetration” was not corr oborated. Appell ant argued tha t there was an absence of appellant’s DNA in o r around PV2 LW’s genitalia. Ap pellant also argued that DNA of PV2 LW’s boyfriend wa s recovered from PV2 LW during the SAFE, but no DNA from PV2 LW’s boyfrien d was found on ap pellant or hi s underwear. Appellant claims that if he had committed penetr ative sexual ac ts with PV2 LW, her boyfriend’s DNA, being already pr esent, would hav e transferred onto appellant and
then onto his underwea r. He further argues that PV2 LW’s DNA c ould have been
transferred into his underwear by means othe r than sexual inter course.

The DNA examiner explai ned that she could no t “say for certain” how PV2 LW’s DNA was deposited inside appellant’s un derwear. The exami ner also

3 The appellant’s state ment suggests that th e absence of protest is the same as
affirmative consent. This view is both legally and factually w rong. The absence of “no” is simply not the same as an affirmative “yes.”QUILL—ARMY 20160454

5 explained that it wa s possible for DNA to b e present on an obje ct, like appellant’s underwear, but go und etected by testing. 4

After argument and a re cess, the military j udge made the follow ing findings
of fact:

[T]here exists a statement from the accused in
which he admits to h aving sexual interc ourse with the alleged victim and in serting his fingers i nto her va gina . . . . [T]here exists ev idence that – of DNA of the alleged
victim found on the inside of the acc used’s boxer shorts.

The alleged victim was se en fully dressed lying on the bed of the accused prior to the departure of three witnesses. Upon r eturn the three wi tnesses reported finding the alleged victim in a state of undres s, nude from the waist down, an d covered in a blanket. These three
same witnesses also witnessed t he defendant in a state of dress wearing bo xer shorts upon t heir 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 ex pert did not exclud e that penetration
occurred as stat ed in the accused’s statement.

The military judge concluded that “physical evidence and the ex pert testimony coupled with the evidence as to access, opportunity, time, and location and method of the offense provide more than s ufficient corroboration to th e statement of the
accused.” The militar y judge denied the defense motion and rul ed that appellant’s
confession was c orroborated and admissible.

4 In other words, the weight a fact finde r might give to the presence of DNA is not necessarily the same as the weigh t a fact finder might give to the absence of DNA.QUILL—ARMY 20160454

6 LAW AND DISCUSSION

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

Appellant argues the military j udge erred by admitting his con fession to the charged offense despite—appellant claims—a lack of evidence cor roborating his confession. In particular, appel lant asserts the re was no evid ence in the record to
corroborate the essenti al fact of penetrati on by appellant’s pe nis or his fingers into PV2 LW’s vagina.

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

We review a military j udge’s admission of e vidence 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. 2 003)). “A military judge
abuses his discretion if his f indings of fact are clearly erron eous 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 dis cretion 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) (int ernal quotation omitted).

The parties agree that because t he appellant was arraigned on 1 March 2016, the Military Rules of Evidence as they existed o n that date app ly to appellant’s court
martial. 5 It appears, however, that the milita ry judge relied, at least in part, upon the
version of Mil. R. Evi d. 304(c) that took e ffect on 20 May 2016 . At trial, the parties based their arguments on Adams and other cases predat ing the new Mil. R. Evid. 304(c). Since the milit ary judge stated tha t the new rule did not explicitly overturn

5 On May 15, 2013, the President signed E xecutive Order 13643, which updated the Military Rules of Evi dence in their entirety. Exec. Order 1364 3, 78 Fed. Reg. 98, 29559 (May 21, 2 013). Military Rule of E vidence 304(c ) was aga in revised in 2016 by removing the requirement that all “essential facts” of a con fession or admission be individually corr oborated. Instead, t he 2016 rule requires only that the
confession or admissi on be corroborate d by “evidence that would tend to establish
the trustworthiness of the admis sion or confessio n” as a whole. Exec. Order 13730, 81 Fed. Reg. 102, 33350 20 May 2016. The rule change did not a pply to appellant’s case because he was arraigned be fore the 20 May 2016 effective date for the new rule. The significance of the d ate of arraignment to the rule s effective at a courtmartial is a long-stan ding principle that should be familiar to military j ustice practitioners. See, e.g. United St ates v. Merritt , 1 C.M.R. 56, 15-18 (C.M.A. 1951). This effective date, a nd the significance t hereof, was also pla in on the face of the
executive order implementing the rules t hat the milita ry judge erroneously applied in
this case. Exec . Order 13730, 81 F ed. Reg. 10 2, 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 ti me, place, opportunit y, access, and metho d. Portions of the military judge’s conclusions of l aw, however, refe r to the lang uage of the 2016
version of the rule ra ther than the 2013 v ersion. For example, the military judge relied on language in the new rule requirin g corroboration by “ evidence that would
tend to establi sh the trustworthine ss of the admission.” 7

The military judge’s findings of fact were not clearly erroneo us. His conclusions of law are, however , at least partly based on the w rong version of Mil. R. Evid 304(c). It is an abuse of discreti on to apply the wron g law. We therefore conclude the military judge abused his discretion by applying t he wrong version of Mil. R. Evid. 304(c). Because we find the military judge abuse d his discr etion by applying the wrong law, we must further determine whether his e rror 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, t he military judge’s error is harmless because applicat ion of the correct law would not change the

outcome. Id. Therefore, we will review the military judge’s decision to ad mit the
confession de novo unde r the rules in effect at the time of app ellant’s arraignment.

See United Stat es v. Cannon , 74 M.J. 746, 75 1 (Army Ct. Cri m. App. 2015).

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

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

An admission or a confessi on 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 essentia l facts admitte d to justify sufficiently an infere nce of their truth.

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

Interpreting the applicable lan guage of Mil. R . Evid. 304(c)(1 ), the Court of Appeals for the Armed Forces has e xplained: “What constitutes an essential fact of
an admission or confes sion necessarily varie s by case. Essenti al facts we have

6 Plainly, however, the current ve rsion of Mil. R. Evid. 304(c)( 1) dispenses with the requirement that each “essential fact” of an admis sion or confe ssion be corroborated.

7 The language from the military j udge’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 entir e confession if a certain percentage of ess ential facts are found t o be corroborated. For instance, if four of f ive essential facts were corroborated, the e ntire confession is not admissible. Only the four corroborated fa cts are admissible and the military judge is required to excise the uncorroborated
essential fact.

Id.

Under Adams , while every essential fact must be independentl y corroborated

, every essential fact need not be independently p roved beyond a reasonable doubt, or even by a preponderance of the evidence. “Rather, the corrobor ating evidence must raise only an inference of truth as to the essential facts admi tted.” 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 recen tly reiterated that, “only a small quantum of evidence is neede d to corroborate an e ssential fact in a
confession or a dmission.” United States v. Jones , __ M.J. __, slip op. at 6 (C.A.A.F. 31 Jul. 2018).

3. Applying the Corroboration Requirem ent to the Facts of this Case

The facts in Adams are distinguishable from the evidence presented for corroboration of appella nt’s confession. In Adams , the alleged r obbery 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 corro borate Adams’ opportunity or motive to commit the crime, access, or his intent. Unlike Adams , appellant’s
confession was c orroborated by three witnesses who testified to the actual events immediately before and after the sexual assault. Independent e vidence was presented to corroborate the time, place, persons involved, acc ess, opportunity, method, and motive of the crime . The government also presented DNA evidence to corroborate appella nt’s confession.

In order to corroborate the ap pellant’s confes sion, the governm ent did not have to disprove every alternate theory for the presence or abs ence of DNA evidence. Nor, unlike the overa ll burden of proo f at trial, di d the government need to prove each essential fact sta ted in appellant’ s confession b eyond a reasonable doubt—or even by a preponde rance of the evidence. Adams requires buil ding blocksQUILL—ARMY 20160454

9 of evidence, not a finished wal l of proof. The independent evi dence “need raise only an inference of t he truth of essential facts admitted.” M il. R. Evid. 304(c)(4) (15 May 2013). This inference o f truth “may be drawn from a qu antum of corroborating evidence that [our s uperior court] has described as ‘very slight.’”

United States v. Arnold , 61 M.J. 254, 2 57 (C.A.A.F. 2 005) (quoting United States v.
Melvin , 26 M.J. 145, 146 (C.M .A. 1988)). The quantu m of corroboratin g evidence in appellant’s case exceeded the “very slight” corroboration re quired.

Three witnesses agree they left PV2 LW fully clothed and passe d-out in appellant’s room. The lights we re on and the doo r was bolted t o remain open. When the trio returned early from trying to purchase cigarettes, the lights were off and
door was locked. After the witnesses pounde d on the door for a n extended time, yelling and kick ing, appellant opened t he door in his underwear with a visible
erection. Immediatel y thereafter the witn esses found PV2 LW, s till passed-out, with her clothes stripped o ff her. In our view, these facts alone s ufficiently corroborated appellant’s admission to the penetrative acts.

Additionally, however, PV2 LW’s shirt was pushed up to under he r breasts corroborating appellant’s statem ent that he abused her breasts. Private LW was nude from the waist down, c orroborating appellant’s statement that h e “messaged,” “fingered” and “stuck [his] peni s in her vagina.” Private LW’s DNA was found inside appellant’s underwear, w hich also corroborated the sexua l assault, and particularly appellant ’s penile penetration of PV2 LW’s vagina. Although appellant speculates on alternative explan ations for the presence of PV2 LW’s DNA in his underwear, “[t]he evidence needed to corroborate an admission n eed not foreclose
all other reasonab le possibilities.” United States v. Gable , 2015 CCA LEXIS 501, at *14 (A.F. Ct. Crim. A pp. 5 Nov. 2015) (forensic testimony that an intoxicated
victim’s DNA was detect ed on appellant’s be d sheets was suffici ent to justify an inference of truth of the admission to sexual intercourse).

Our review of the reco rd convinces us that appellant’s confess ion was
corroborated and admi ssible under th e version of Mil. R. Evid 3 04(c)(1) that was in effect at the time of his arraignment and Adams . The military jud ge reached the right result, albeit for the wrong reason . Because application of the correct law
reaches the same out come as that reached b y the military judge, the military judge’s
error was harmless. See Robinson , 58 M.J. at 433-34.

B. Challenge of a Pa nel Member for Cause

Appellant asserts the military j udge erred by den ying appellan t’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 th e military judge did

not err.QUILL—ARMY 20160454

10 1. The Standard of Review and Doctrine of Implied Bias

Implied bias exists if inclusi on 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 b ias, much like actual bias, is cause for challenge, to remove a biased member from the pane l that will hear the case. “[C]hallen ges 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 c hallenge for caus e premised on implied bias
is less deferential th an abuse of discretio n, but more deferent ial than de novo
review.” United States v. Bagstad , 68 M.J. 460, 4 62 (C.A.A.F. 2010) (internal quotation marks and citations om itted). Under th is standard, “ [w]e do not expect
record dissertations b ut, rather, a clear signal that the milit ary 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 b ias by applying the l iberal grant mandat e on the record, that military judge will accordingly b e granted “more deference on r eview than one that
does not .” United States v

. Clay , 64 M.J. 247, 277 (C.A.A.F. 2007).

Implied bias is revie wed under an objectiv e 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 o f bias, most people in the same position would be prejudiced [that is, biased].’” Id . (alteration in or iginal) (quoting United States v. Napolitano , 53 M.J. 162, 167 (C.A. A.F. 2000)). “[M]er e 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 e licited that permit a finding of infera ble bias, then, just as in the situation of impli ed 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 o ne hundred qu estions from the military judge and c ounsel. During group voir dire, in res ponse to t he defense counsel’s questions, MAJ SD agr eed that someone could falsely c onfess to a crime they did not commit, no t all allegations of sexual assault are truthful, false accusations of sexual assault occur, and he knew someone that h ad been falsely accused of rape or sexual assault.

Major SD also stated he knew someone that ha d been sexually ass aulted. During individual voir dire, MAJ SD explai ned the pe rson in que stion was his sister. He thought the assault happened “about 2012” but was unsure of the exact year andQUILL—ARMY 20160454

11 indicated it could have been a s distant as 2 010. He did not kn ow many details about the allegations. Majo r SD stated he did n ot know if the assaul t was in a dormitory
or a residence. He st ated that his sister knew her assailant, campus security was called, and he believe d alcohol was involve d. Major SD was not aware of any criminal proceed ings in the case. He re ported no particular fe elings about the lack of any legal res olution. Major SD conside red the assault a “cl osed chapter” in his sister’s life. Major SD explain ed that his sist er is twelve ye ars his junior, and he
was not close to his s ister. He explained they “don’t really keep in very close contact,” speaking only “once i n a while,” and s he did not call him for advice. Major SD stated that he believed his sister was twenty-three ye ars of age at the time of appellant’s trial.

Also during individual voir dire, MAJ SD informed the parties t hat around
2014 or 2015 he had had conducted his own s elf-study regarding sexual assault in the military. Major SD explained his self- study was not academ ically rigorous, and consisted of “just re ading up on various ar ticles and books.”

Although the military j udge granted defense challenges to four other panel members in MAJ SD’s venire, he de nied 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 f our years prior to appellant’s t rial, and that his sister was roughly the s ame age as PV2 LW, and the alleged incident in volved alcohol. 8 Appellant argues that MAJ SD’s a nswers to the mi litary judge ab out whether he could set aside his feeling about his sister’s assault were equ ivocal. Appellant also claims that MAJ SD’s reading ab out sexual assaul t in the milita ry should have disqualified him from sitting as a panel member in appellant’s case.

According to appellant, the fact s of MAJ SD’s sister’s assault “mirror” the facts of this case. We disagree . Unfortunately, many sexual a ssault allegations involve young adults and alcohol, and that i s the extent of the similarity between what MAJ SD reported and the fact s of this case. Major SD was only aware of general information relating to h is sister’s assault. There wa s no sugges tion that MAJ SD’s sister was unconscious, o r left alone wit h a relative stranger. Indeed, one
of the few facts MAJ SD knew abou t his sister’s assault was tha t she knew her

8 Additionally, the defe nse counsel arg ued 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, w ho, 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 s ome way involved, ther e is little similar ity between what we
know about the ass ault of MAJ SD’s sister and the app ellant’s c ase. Moreover, MAJ SD did not express anything th at would suggest learning of his sister’s assault was a pronounced and distin ct experience for hi m, or otherwise affect ed him in a way that
would bias his se rvice on appellant’s panel. Cf. United States v. Terry , 64 M.J. 295, 297 (C.A.A.F. 2007) (a military j udge erred in no t granting a c hallenge for cause against a panel member with a “p ronounced and dist inct” experie nce with a crime similar to that alleged at trial).

The military judge denied the f or-cause challenge of MAJ SD, a nd placed his analysis on the rec ord as follows:

I’ve considered the challenge for caus e based on both
actual and liberal—actual and implied b ias and the mandate to liberally grant the defense challenge, the challenge is denied for the following reaso ns: 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 initi al response he stated it was related to milita ry sexual assault and wanting to know more abou t that at the time of his initial respons es. He appeared to not have any particular knowledge about the incidence [sic] that occ urred, other than it occurred on campus for his sister a nd that alcohol
was involved.

He stated he is not close to his sister, th at he does not have—that there’s a twelve years difference between the two, and they talk v ery infrequently. T he court did not find his answers to be equivo cal and the court found his answer to be, as to whether or not he could s et it aside, and to able to set that incident aside, that it was a closed chapter in his life, and tha t he could—that it would play
no role in his duties as a mem ber of the pan el to hear this case in a fair and impartial ma nner. That it had no role in
that whatsoever. So for tha t reason the challenge is
denied.

Like the conclusi on of the militar y judge, our re view of the re cord does not disclose any actual bias in MAJ SD.

In his ruling rejecting the implied bias challenge, the militar y judge included his analysis and plainl y stated the liberal grant mandate as pa rt of his decision. AsQUILL—ARMY 20160454

13 such, we give more deference to hi s ruling than if he had faile d 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 sp ecifically found that MAJ SD’s answers wer e not equivocal. We likewise find MAJ S D’s answers were not equivoca l. In the context of the questions and answers, MA J SD’s use of the words “I beli eve so,” and “I think so,” about set ting aside any feeling about his sister’s s exual assault were responsive to the ques tions asked. The milit ary judge followed -up with additional questions to confirm MAJ SD’s res ponses were not equivocal. Ma jor SD explained he could actually set aside any feelings and decide the case in a fair and impartial

manner.

“A prior connection t o a crime similar to the one being tried b efore the courtmartial is not per s e disqualifying to a m ember’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 disqua lified because [the member] or a close relativ e has been a victim of a similar crime.) However, if a member’s experience with a cri me similar to the one being tried is “pronounced and distinct,” the military judge sh ould grant the challenge for cause. Terry , 64 M.J. at 297. Our superior co urt has also explained: “the critical questi on under military law has been w hether a me mber possessed an
inflexible or biased a ttitude as a result of being th e victim o f a similar crime.”

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

MAJ SD’s experience wi th sexual assault wa s not pronounced and distinct,
and he did not h ave an inflexible or biased attitude. He was n ot 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 assaul t. He did not know whether it took p lace 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 re lated to his sister’s assault, and nothing su ggested the read ing would bias MAJ SD one way or another. Major SD agreed that false allegations of sexual assa ult occur a nd he even
knew someone that was falsely accused of s exual assault.

Unlike, actual b ias, implied bias does not relate the subjectiv e sincerity of a panel member’s stateme nts, but rather how a member of the gener al public would objectively perceive the panel member’s statements. We conclud e an objective member of the public would not question MAJ SD’s objectivity or the fairness of the proceedings based on MAJ SD’s serv ice 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 faile d to prove PV2 LW d id not consent
to sexual intercourse. In the alternative, appellant argues th at he had a reasonable
mistake of fact as to her consent. 9 In appellant’s confession, he st ated that PV2 LW “moaned” and “was moving around” when he “fondle d” 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 sec tion “A,” above, and based on t he totality of the record, we are our selves convinced, be yond a reasonable dou bt, of the appellant’s guilt. A ppellant did no t have any prior relationsh ip with PV2 LW and
did not even know her name when he was entr usted with watching over her while she was passed-out in h is barracks room.

Evidence at trial established that PV2 LW was intoxicated and u tterly incapable of consent. Appellant himself be lieved she was “too intoxicated to consent to any type of sexual activit y.” Appellant admitted sh e was asleep when he got onto the bed that she did no t say anything prior to the sex ual acts. I nstead, she “just mumbled” and spoke “no describable words.” According to appellant, rather than getting consent, he went “through the steps that [he] norm ally take[s] with someone and not hearing no.” Appellant himsel f explained that PV2 LW “hadn’t said no yet so [he] st uck [his] penis in her vagina.” Of cours e, PV2 LW hadn’t said “no” yet because she was incapabl e of doing so wh ile passed-out drunk. When PV2 LW’s friends pounded on the door, appellant k new he “was doing something wrong.”

Based on the entire r ecord, therefore, we find both the finding s and sentence are correct in law and fact, and should be approved.

CONCLUSION

Upon consideration of the entire record, the find ings of guilty and sentence

are AFFIRMED.

Senior Judge MUL LIGAN concurs.

9 The military judge gave the pan el a mistake of fact instructio n.

10 Of course, this is un surprising consideri ng there was overwhel ming evidence PV2 LW was passed-out drunk at the tim e of the assau lt, and presuma bly was incapable of even expressing her non-consent.QUILL—ARMY 20160454

15 Judge Wolfe, concurring:

I concur fully with to day’s opinion for the reasons stated by J udge Febbo. However, three additional matters also pull me towards this res ult.

First, I conclud e that as the military j udge explained in detai l his reasoning in overruling the defense challenge to MAJ SD , his decision is ent itled to additional
deference. United Stat es 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 L EXIS 239, at *9 (Ar my Ct. Crim. App. 7 Apr. 2017).

Second, and relat edly, I interpret our superior court’s recent decisions as specifically allowing a military judge to co nsider a panel memb er’s demeanor when ruling on an implied bias challenge. Woods , 74 M.J. at 24 3 n.1 (“resolvin g claims of implied bias involves questions of fact and demeanor , not just law .” (emphasis added)). 11 We have previou sly concluded that “an i mplied bias analysis is viewed through the eye s of a member of the public watching the proceedings .” United

States v. Hines , 75 M.J. 734, 74 0 n.5 (Army Ct. Crim. App . 2016) (emphasis in original). That is, t he objective member of the public is not reading a cold transcript, but also has the same informa tion (including demean or evidence) as the trial judge. Id . Accordingly, since the record contains the military judge’s specific finding that Major SD’ s answers to key quest ions were unequivoc al, in a case where the cold transcript could have b een read differen tly, this too weighs in favor of giving the militar y judge deference.

Third, I note this case does not involve allegati ons of unlawfu l command influence, or concerns about mi litary directed t raining, 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 f or the implied bias challenge “s tems from
historic concerns about the real and perceived po tential for co mmand influence in courts-martial.”) (i nternal quotation mar ks omitted). In this regard, this case is distinguishable from Woods (Panel member believed t hat military members were guilty until prov ed innocent); United States v. Rogers , 75 M.J. 270 (C .A.A.F. 2016) (Panel member stated Coast Gua rd 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. 20 17) (three panel mem bers 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 ca se of actual bias, cas es of implied bias a re based upon an objective test and therefore the military judge is given less d eference 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: