UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201500332

_________________________

UNITED STATES OF AMERICA

Appellee

v.

RICHARD P. TROTTER

Petty Officer Second Class (E-5), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Bethany Payton-O’Brien, JAGC, USN.

For Appellant: Lieutenant Jacqueline M. Leonard, JAGC, USN; 

Lieutenant David W. Warning, JAGC, USN.

For Appellee: Captain Dale O. Harris, JAGC, USN; Lieutenant 

Commander Jeremy R. Brooks, JAGC, USN; Captain Matthew 

Harris, USMC; Lieutenant Taurean K. Brown, JAGC, USN.

_________________________

Decided 17 November 2016

_________________________

Before CAMPBELL, GLASER-ALLEN, and HUTCHISON, Appellate 

Military Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

CAMPBELL, Senior Judge:

At a contested general court-martial, officer and enlisted members 

convicted the appellant of a sexual abuse of a child specification and

three abusive sexual contact with a child specifications—violations

of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 

(2006). The military judge dismissed one of the abusive sexual contact 

specifications after findings, because the offense was alleged differently on 
2

the findings worksheet than it was on the charge sheet. The members then 

sentenced the appellant to 24 months of confinement, reduction to pay grade 

E-1, and a dishonorable discharge. The convening authority approved the 

findings and sentence as adjudged.

In two original assignments of error (AOEs), the appellant asserts the 

military judge erroneously denied challenges to remove two court-martial 

members for cause and that the evidence was factually insufficient to support 

his convictions. In a supplemental AOE, the appellant further argues the 

military judge erred in the findings instructions she provided to the courtmartial members.1 We disagree and affirm the findings and sentence.

I. BACKGROUND

In 2011, during the summer after her high school freshman year, then-15-

year-old BT lived in a condominium in Oxnard, California, with her younger 

brother, her mother, and her step-father—the appellant. She spent her 

summer afternoons teaching golf and playing in golf tournaments. Her

mother worked outside their home between 0700 and 1700, but often phoned 

BT and “sometimes c[a]me home during her lunch.”2 Given his proximity and 

more flexible work schedule,3 the appellant came home every day to check on 

BT and her then seven-year-old brother.

The siblings shared a bedroom, and BT normally slept on the top bunk 

bed. However, she occasionally slept on the bottom bunk to avoid struggling

up the ladder. She recalled awaking once to find the underwear she had worn 

to bed on top of some teddy bears at the foot of her bed, but she was still 

wearing her pajama pants.

A. First specification

One early summer weekday, between 1100 and 1200, BT fell asleep on a 

couch with her brother nearby in the same room. Someone picked her up and 

began carrying her. She opened her eyes and saw that it was the appellant, 

 

1 In accordance with our holding in United States v. Rendon, __ M.J. __, 2016 

CCA LEXIS 643, at *26 (N-M. Ct. Crim. App. 1 Nov 2016), we summarily reject the 

supplemental AOE. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).

2 Record at 429-30.

3 Their home was approximately ten minutes from the appellant’s command. A

Sailor from that unit testified that they held a daily 0645 battalion accountability 

muster, and squad leaders had to conduct a 0900 muster following 0700-0800 unit 

physical training on Mondays, Wednesdays, and Fridays. Otherwise, liberty was 

“pretty much on the honor system,” with squad leaders allowing time off for

appointments or taking care of children during normal working hours at their 

discretion. Id. at 491-92.
3

who took her to his bed in the master bedroom, laid her on her back, then

closed and possibly locked the bedroom door. It was common for the appellant 

to carry BT to her own bed when she fell asleep on the couch, but she noted at 

trial that he had never before brought her to the master bedroom. 

The appellant lay down beside BT, grabbed her by the wrist, and made

her hand stroke his penis for some time. “[C]onfused” by the situation, BT

kept her eyes closed throughout the encounter.

4 She felt the skin of his penis, 

and the appellant held her in place when she tried to move onto her side. The 

appellant eventually went to the master bathroom as BT lay still with her 

eyes closed. She ultimately heard the bathroom door open and then the 

bedroom door unlock, open and close. She may have fallen asleep again, but

when she “eventually got up from the bed and went out of the room,” the

appellant said “hello” and made her lunch.

5

B. Second specification

About a week later, after her mother had gone to work, BT was sleeping

without covers in the bottom bunk of her bedroom, wearing a t-shirt and 

pajama pants. She heard her door close and lock, then felt someone lay down 

next to her. The person, who she knew was heavier than her brother, pulled 

up the covers, placed a hand on top of her shirt, grabbed one of her breasts, 

and pulled her in closer. She then felt a penis touching her buttocks through 

her pajama pants. Then her “brother knocked on the door” and “calle[d] out 

for his dad,” confirming to BT that the person beside her was the appellant.6

The appellant immediately took off the covers, got out of bed, unlocked the 

door, and left the room. After the appellant left, BT lay in bed with her eyes 

closed for some time before walking to the living room. Her brother was 

watching television, and the appellant was preparing a meal.

C. Third specification

About a week later, “[b]etween morning and lunch,”

7 but possibly as early 

as 0800, BT was in her top bunk when she awoke to the sound of her bedroom 

door closing. She felt someone heavier than her brother climb the bed’s ladder 

and get on top of her. Though her eyes were closed, she felt hands along both 

sides of her head, as if the person was in a push-up position. The person 

kissed the left side of her neck, slid a hand under her shirt, touched her 

breast, and said, “[o]h, baby,” leading her to recognize the appellant by his 

 

4 Id. at 365-66.

5 Id. at 367-68.

6 Id. at 372; 428.

7 Id. at 374.
4

voice.8 Then the phone in BT’s room rang, and the audio caller identification 

announced that her mother was calling. The appellant climbed down the 

ladder, answered the phone, and walked out of the room. BT lay in bed with 

her eyes closed. When she later entered the living room, the appellant was 

making her a meal.

D. Communication with KM 

KM was BT’s best friend since their middle school days, and BT thought 

of KM as a sister. They talked frequently, even as they attended different 

high schools. BT remembered communicating with KM once after the 

appellant touched her, but could not remember the time, date, or whether the 

communication was a phone call or text message. KM recalled BT calling and 

waking her up around the “end of June, beginning of July” late one morning 

while others in her house were asleep.9 BT was “crying,” and said she called 

right after she “woke up and felt heavy breathing on her —on her neck and 

she turned to see that it was her stepdad humping her.”10 KM recalled BT 

being “scared” of possible pregnancy, which KM explained was impossible 

based on what BT described. KM saw BT act uncomfortable around the 

appellant after the call, but BT never said anything about this happening 

again to KM.

E. Aftermath

After the incidents in the top bunk, anytime BT heard someone climb the 

bed ladder, she sat up, opened her eyes, and called for her brother. 

Otherwise, BT’s life progressed normally. It involved annual vacations with

the appellant and the rest of her family (accompanied by KM on one

amusement park trip), competing as a member and ultimately as captain of

her school’s golf team, and graduating with a healthy grade point average.

In September 2012, BT’s mother filed a restraining order against the

appellant, who moved out of the home. A Navy Family Advocacy Program

representative interviewed the family. BT “never disclosed” that the 

appellant had committed “any type of molestation.”

11 In June 2013, BT 

thought her mother was going to “give [marriage to the appellant] another 

chance.”

12 After an argument with BT, her mother took her aside and

 

8 Id. at 378.

9 Id. at 451-52. At the Article 32, UCMJ, hearing, KM testified that the call was 

“early” in the morning. Id. at 465.

10 Id. at 453.

11 Id. at 442.

12 Id. at 398.
5

threatened to “kick [her] out of the house.”

13 BT broke down and told her 

mother about the appellant’s actions, starting with finding her underwear on 

her teddy bears. Her mother called the Oxnard Police Department, who

interviewed BT. Naval Criminal Investigative Service (NCIS) took the case, 

and BT told KM that NCIS would contact her. BT’s mother announced her 

intent to divorce the appellant in May 2013, and she told BT to write a 

statement about what happened to her to support the divorce proceedings. 

BT stood to get a Chevy Blazer in the settlement. The divorce was still 

pending during the court-martial.

II. DISCUSSION

A. Members challenged for cause

RULE FOR COURTS-MARTIAL (R.C.M.) 912(f)(1), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.), states a “member shall be excused for 

cause whenever it appears that the member . . . [s]hould not sit . . . in the 

interest of having the court-martial free from substantial doubt as to legality, 

fairness, and impartiality.” This rule “encompasses both” demonstrations of

“actual bias” and “implied bias.” United States v. Warden, 51 M.J. 78, 81 

(C.A.A.F. 1999) (citation and internal quotation marks omitted). “A military 

judge’s determinations on the issue of member bias, actual or implied, are 

based on the totality of the circumstances particular to [a] case.” United 

States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (citations and internal 

quotation marks omitted) (alteration in original). “The burden of establishing 

that grounds for a challenge exist is upon the party making the challenge.” 

R.C.M. 912(f)(3).

In our review, we consider whether each member for whom the 

appellant’s challenge for cause was denied—and on whom no peremptory 

challenge was exercised—demonstrated either actual or implied bias. See 

United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000) (holding that 

because “[a]ctual bias and implied bias are separate legal tests, not separate 

grounds for challenge,” we are “not constrained by the plain-error doctrine,” 

even where “defense counsel did not . . . specifically articulate a challenge” at 

trial on a theory of actual or implied bias).

However, when an appellant asserts new grounds for challenge against a 

member beyond those argued at trial, he must demonstrate that failing to 

excuse the member for the additional reasons was plain error. See United 

States v. Bannwarth, 36 M.J. 265, 268 (C.M.A. 1993); United States v. 

Harrison, No. ACM 38745, 2016 CCA LEXIS 431, at *23-24, unpublished op.

(A.F. Ct. Crim. App. 20 Jul 2016). Plain error is obvious and materially 

 

13 Id. at 405.
6

prejudicial to a substantial right of the appellant. United States v. Girouard, 

70 M.J. 5, 11 (C.A.A.F. 2011).

Actual bias exists when a member’s bias “is such that it will not yield to 

the evidence presented and the judge’s instructions.” United States v. 

Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997) (citation and internal quotation

marks omitted). “Actual bias is reviewed subjectively, through the eyes of the 

military judge or the court members.” Warden, 51 M.J. at 81 (citations and 

internal quotation marks omitted). When grounds for challenge were properly 

asserted at trial, a military judge’s decision to deny challenge for cause on

these grounds for actual bias is reviewed for an abuse of discretion. United 

States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006). The abuse of discretion 

standard calls for more than a mere difference of opinion; the challenged 

action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous. 

United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011). A military judge 

receives latitude on her factual determinations of actual bias because she 

personally observed the members’ demeanor. Leonard, 398 M.J. at 402.

“[I]mplied bias is viewed through the eyes of the public[,]” focusing “on the 

perception or appearance of fairness of the military justice system.” Warden, 

51 M.J. at 81 (citations and internal quotation marks omitted). Implied bias 

exists “when most people in the same position [as the challenged member] 

would be prejudiced.” Id. (citations and internal quotation marks omitted). A 

military judge’s decision to grant or deny an implied bias challenge for cause 

is reviewed with less deference than abuse of discretion, but more than de 

novo review. United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010). 

“[I]nstances in which the military judge’s exercise of discretion will be 

reversed will indeed be rare” when she “considers a challenge based on 

implied bias, recognizes [her] duty to liberally grant defense challenges, and 

places [her] reasoning on the record.” United States v. Clay, 64 M.J. 274, 277 

(C.A.A.F. 2007).

However, less deference is given when the military judge’s implied bias 

analysis is not comprehensive. Id. In United States v. Downing, the military 

judge purported to rule on implied bias by merely assessing the challenged 

member’s demeanor and summarily concluding, “[t]here is clearly no actual 

bias in this case[,] folks are friends with folks all over the base, [the member] 

said she could clearly set that information aside and I think quite clearly that 

she can. The challenge . . . is denied.” 56 M.J. 419, 421-22 (C.A.A.F. 2002). 

Since the record failed to “squarely address the essential question” of implied 

bias by stating whether the military judge was “satisfied that an objective

public observer would find this level of friendship between the prosecutor and 

a member of the court-martial panel consonant with a fair and impartial 

system of military justice[,]” the Court of Appeals for the Armed Forces could 
7

not “conclude . . . that the military judge actually applied the correct test for 

implied bias.” Id. at 422. “In cases where less deference is accorded,” our 

“analysis logically moves more towards a de novo standard of review.” United 

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

1. Lieutenant Commander (LCDR) T

a. Voir dire responses and defense challenge

During group voir dire, LCDR T, the senior panel member, agreed that he 

understood the explanations about the presumption of innocence and that he 

would follow the military judge’s related instructions.14 He disagreed with 

notions that “[a] person falsely accused of a crime is required to prove [his]

innocence” or must testify.15 During individual voir dire, LCDR T revealed 

that he had conducted a preliminary inquiry for a Sailor’s testing positive for 

“methamphetamines” in a urinalysis.16 LCDR T remarked that during the 

investigative interview of that Sailor, “[o]bviously, he denied taking the 

stuff.”17 When asked by trial defense counsel, “[w]hy do you say obviously he 

denied it?,” LCDR T explained, “according to the San Diego drug labs, none of 

his prescription meds [sic] would have caused” the positive test result.

18

Before group voir dire began, the military judge advised the members 

that they “must impartially hear the evidence,”19 and ascertained that they 

would “decide this case based on evidence that’s presented.”20 During group 

voir dire, LCDR T agreed with the proposition that “[m]ost teenagers lie.”21

 

14 Id. at 123 (“[Y]ou must keep open minds regarding the verdict until all of the 

evidence is in and you have been instructed by me as to the law. . . . I will advise you 

prior to your deliberations on the guilt or innocence of the accused. I will advise you 

that he must be presumed to be innocent until and unless his guilt is established by 

legal and competent evidence beyond a reasonable doubt; that in this case, if there is 

a reasonable doubt as to the guilt of the accused, that doubt shall be resolved in the 

accused’s favor and he shall be acquitted.”); id. at 125-26 (“The fact an accused may 

elect not to testify may not be considered adverse to the accused in any way. The 

burden of proof to establish the guilt of the accused beyond a reasonable doubt is on 

the government. That burden never shifts to the accused to establish innocence or to 

disprove the facts necessary to establish each element of the offenses alleged.”).

15 Id. at 136-37.

16 Id. at 146-47.

17 Id. at 147.

18 Id.

19 Id. at 106.

20 Id. at 120.

21 Id. at 135.
8

When asked in individual voir dire if “it is possible for a person to have a 

memory . . . that later turns out to be false,” LCDR T responded, “No. I find 

that hard to believe.”22 Asked whether “based on your experiences, do 

children lie about important things that happened to them,” LCDR T replied

that though he thought this would be “unusual,” it “[c]ould happen.”23 LCDR 

T also agreed that a mother could cause her child to lie.

During group voir dire, LCDR T indicated that he recalled hearing 

statements from “high-ranking officials, either in the Navy or in other 

services or within Congress, about sexual assault cases in the military.”24

During individual voir dire, he clarified that he was referring to a comment 

from the then-Commandant of the Marine Corps to the effect of, “we’re going 

to act quickly to charge you or act upon [an] accusation” of sexual assault.25

LCDR T also remembered a responsive, official clarification issued as being 

something to the effect of “that’s not the case. We will use the due process

[sic] to determine either the guilt or innocence of the accused.”26

Trial defense counsel challenged LCDR T for actual and implied bias. He 

argued that LCDR T’s response that the investigated Sailor “[o]bviously” 

denied using drugs “indicates a deep-seated belief that all accused are 

obviously denying doing something wrong in a case,” and that LCDR T’s

“remember[ing] the [former] Commandant’s memoranda in detail” and “the 

perspective [LCDT T’s] taken on” the “sexual assault problem” demonstrates

bias.27

b. Military judge’s ruling

The military judge “considered the challenge for cause on the basis of both 

actual and implied bias and the liberal grant mandate” and denied the 

challenge.28 She explained that “with regard to the investigation he had 

done,” LCDR T “further clarified” the issue “through follow-up questioning,” 

and he took “his duties seriously and appeared thoughtful when answering 

questions.”29 Regarding the memoranda from the former Commandant, the

military judge found that LCDR T had not said “he, himself, agrees with” the 

 

22 Id. at 150.

23 Id. at 150-51.

24 Id. at 122.

25 Id. at 141.

26 Id. LCDR T attributed the clarifying comments to SECDEF or SECNAV.

27 Id. at 320-21.

28 Id. at 323.

29 Id. at 323-24.
9

Commandant’s position, and that he had “agreed to follow my instructions 

and exercise his own independent judgment and base the case upon the facts 

that are presented . . . by the parties here.”

30

c. Challenges based on attitude towards presumption of innocence

The appellant now contends LCDR T should have been excused for cause 

based on the theory that “he expects people to lie when accused of committing 

a crime,” or “presumes an individual has committed wrongdoing simply 

because they have been accused.”31 We first find that the military judge did 

not abuse her discretion in denying this actual bias challenge. The military 

judge specifically noted that LCDR T agreed to follow the instructions 

establishing a presumption of innocence that she would promulgate and that 

his demeanor and bearing suggested he would do so. Thus the military 

judge’s determination that LCDR T would afford the appellant the

presumption of innocence was neither arbitrary nor fanciful.

As the military judge made no specific findings regarding LCDR T’s 

alleged implied bias,

32 we review de novo whether the record suggests a 

member of the public would perceive LCDR T’s court-martial participation as

unfair. We note that “a panel member’s mistake as to the proper burden of 

proof in a criminal trial, without more” does not “necessarily require[] a 

finding of implied bias.” United States v. Woods, 74 M.J. 238, 244 (C.A.A.F. 

2015) (citation omitted). A challenged member’s elaboration on initial voir

dire responses can cure circumstances which could otherwise support a 

 

30 Id. at 323. “The appellant does not now challenge th[is] ruling. Accordingly, we 

find it to be the law of the case and we will focus our attention on the appellant’s 

assigned error[s] . . . .” United States v. Williams, No. 201200248, 2013 CCA LEXIS 

354, at *10 n.6, unpublished op. (N-M. Ct. Crim. App. 30 Apr 2013) (citing United 

States v. Savala, 70 M.J. 70, 77 (C.A.A.F. 2011)); see Appellant’s Brief of 3 Mar 2016 

at 8-11. Even without the appellant’s waiver of this argument, it is unpersuasive in 

light of our holding (in the context of unlawful command influence) that where “the 

military judge’s questions—and the members’ responses wherein . . . disavowed that 

the [Commandant]’s comments would have any impact,” any concern that the 

“disinterested public [would] harbor significant doubt about the fairness of the 

proceedings” was “sufficiently ameliorated.” United States v. Hernandez, No. 

201300313, 2014 CCA LEXIS 703, at *13, unpublished op. (N-M. Ct. Crim. App. 23 

Sep 2014) (per curiam), rev. denied, 75 M.J. 22 (C.A.A.F. 2015); see Record at 141-43.

31 Appellant’s Brief of 3 Mar 2016 at 9.

32 Though trial defense counsel did not argue that LCDR T’s presumption of 

innocence comments constituted implied bias, we consider the appellant’s assignment

of this issue in light of Armstrong, 54 M.J. at 53. See Appellant’s Brief at 10-11

(arguing that “LCDR [T]’s comments demonstrat[ing] he could not apply a 

presumption of innocence” served to “easily demonstrate implied bias”).
10

finding of implied bias. See United States v. Schlamer, 52 M.J. 80, 87, 93

(C.A.A.F. 1999) (affirming military judge’s denial of a challenge for cause to a 

member who agreed that “an accused in a criminal case should testify or 

produce some evidence to prove that he or she is not guilty,” because the 

member later “made clear that her answer on the questionnaire meant only 

that she thought an accused ought to have the opportunity to be heard, but 

that she would not draw an adverse inference if the accused elected not to 

testify or present evidence”).

Such is the case here. LCDR T’s comment, “Obviously he denied taking 

the stuff,”33 is reasonably interpreted as a reference to the particular Sailor 

LCDR T had investigated. When asked to elaborate, LCDR T provided his 

rationale for skepticism of that Sailor’s denial—credible evidence that the 

medications legitimately prescribed to that Sailor would not have caused a 

positive test result for the drug at issue. A member of the public would 

understand why most people in LCDR T’s position would be skeptical of that 

Sailor’s denial without viewing the comment as a general statement about 

anyone accused of committing a crime. We find no implied bias.

d. Challenges based on attitude towards memory and deceit

For the first time on appeal, the appellant asserts plain error in the 

military judge’s failure to grant the challenge based on LCDR T’s inability to 

fairly “evaluat[e] evidence” which suggests a child witness was lying or that a 

witness had experienced a false memory.

34 We disagree. While LCDR T 

indicated he would find it “hard to believe” someone could have a false 

memory, he did not say he could never believe that someone had a false 

memory, or that it was impossible to have had one. Likewise, he opined that

it was “unusual,” but still possible, for a child to lie, either on her own or at

her mother’s behest. LCDR T’s responses did not demonstrate an obvious 

actual bias against the presentation of false memory or fabrication evidence. 

Nor is it obvious that a member of the public would view the participation in 

this court-martial of a person in LCDR T’s position as unfair.

2. Chief Warrant Officer Three (CWO3) M

a. Voir dire responses and defense challenge

During group voir dire, CWO3 M agreed that she would disregard past 

Sexual Assault Prevention and Response (SAPR) training when considering 

the facts of the appellant’s case, and that she would follow the military 

judge’s instructions if they conflicted with SAPR training.

 

33 Record at 147 (emphasis added).

34 Appellant’s Brief at 9.
11

CWO3 M explained during individual voir dire that she volunteered to 

serve as a SAPR victim advocate (VA) at a previous command to help her 

promotion and advancement and to “help the victim.”35 After three to four 

days of training, she was a qualified VA during 2002-2004. But no alleged 

victims actually contacted her for assistance and she never handled a sexual 

assault case. CWO3 M understood her potential VA role as being “there to 

assist” the victim with “medical” and “the interview process of local law 

enforcement or NCIS[.]”

36 She specifically agreed to “not consider” 

information from her VA training when deciding the appellant’s case.37

CWO3 M disagreed with the notion that her VA training required her to

“assume the allegation that was told” by an alleged victim “was true.”38

However, she later agreed that, in light of her “training and experience,” she 

would “tend to think” that “someone . . . reporting that they were [sic]

sexually assaulted” was “telling the truth.”39 She clarified that she generally 

believed that people told her the truth, but understood that “[p]eople might 

not . . . tell the truth when they’re reporting a crime.”40

After her VA billet, CWO3 M later volunteered for collateral duty as the 

SAPR POC (point of contact) at a different command to help her promotion 

and advancement and see that training on Sailors’ sexual assault “reporting 

options” was “properly done.”

41 She served in that position during 2006-2009.

She did not recall learning any “statistics” regarding sexual assault, “any 

type of information about the likelihood or unlikelihood of the allegations 

being true or not true,” or that there was any “expected . . . outcome” to 

sexual assault cases during her one day of training for the position.42 She 

again agreed to “not consider” information from her SAPR POC training 

when deciding the appellant’s case.43

Unrelated to SAPR training, during group voir dire, CWO3 M disagreed 

with the assertion that “[m]ost teenagers lie.”44 In individual voir dire, she 

 

35 Record at 220-21.

36 Id. at 207.

37 Id. at 210.

38 Id. at 207.

39 Id. at 221.

40 Id. at 222.

41 Id. at 220-21.

42 Id. at 209.

43 Id. at 210.

44 Id. at 135.
12

clarified that certainly “some” teenagers tell “major lies,”45 though she had no

first-hand experience since her siblings and the children in her own life 

tended to be honest. She also agreed it was “possible for a person to have a 

memory about an event” that is actually false, though she never had that 

experience.46 She stated that she “tend[ed] to believe” people told the truth, 

unless she “physically saw it differently.”47 She agreed that children “could” 

lie “about important events in their lives[,]” even though she “never 

experienced” children close to her doing so.48 CWO3 M also agreed that her 

own children could “lie to anybody,” including by “exaggerat[ing]” something 

“that’s good.”49

Trial defense counsel challenged CWO3 M for implied bias, citing her 

volunteering to be a SAPR VA and POC before “indicat[ing during voir dire]

that victims tend to tell the truth with respect to her duties as a victim 

advocate[,]” and her having “never experienced lying kids” or “a kid that has 

had a memory” which “turned out to be false.”50

b. The military judge’s ruling

The military judge “considered the challenge for cause on the basis of both 

actual and implied bias and the mandate to liberally grant defense 

challenges,” and denied it.51 In explaining denial of the challenge regarding 

the SAPR aspects, the military judge cited CWO3 M’s stated motivation to 

help her career by volunteering for the positions, her lack of any actual cases 

working with alleged victims, her willingness to “follow instructions,” and her 

“thoughtful[ness] in her responses.”52 

c. Challenge for cause based on SAPR VA/SAPR POC service

The military judge’s ruling that CWO3 M was not actually biased from 

her experiences as a SAPR VA and POC was not an abuse of discretion.

CWO3 M repeatedly agreed to disregard all SAPR training when considering 

the facts of the appellant’s case, and follow the military judge’s instructions if 

they conflicted with SAPR training. The military judge specifically 

 

45 Id. at 214.

46 Id. at 218.

47 Id. at 222.

48 Id. at 219.

49 Id.

50 Id. at 329.

51 Id. at 330.

52 Id. at 331.
13

ascertained that CWO3 M did not actually interact with any alleged victims 

and generally did not remember the SAPR training information well enough 

for it to conflict with the military judge’s instructions. See United States v. 

Galvan, No. ARMY 20140320, 2016 CCA LEXIS 214, at *3-5, *9-10 (A. Ct. 

Crim. App. 31 Mar 2016), rev. denied, __ M.J. __, 2016 CAAF LEXIS 650

(C.A.A.F. Aug. 17, 2016) (“Based on the circumstances, including [the 

member’s] vague recollection of such statistics [on false reports of sexual 

assault], we find appellant did not meet his burden to establish that [the 

member] possessed actual bias.”).

However, because the military judge’s ruling, as in the case of LCDR T,

did not fully address whether the CWO3 M’s experience created an implied 

bias requiring excusal, we review de novo whether a member of the public 

would perceive CWO3 M’s participation in the court-martial as unfair in light 

of her SAPR VA and POC positions. 

This court reviewed a military judge’s denial of a challenge for “cause due 

to implied bias” against a member who had served, over a seven-year period,

“as a Sexual Assault Victim Intervention (SAVI) victim advocate . . . and a 

command Sexual Assault Prevention and Response (SAPR) liaison . . . at 

previous commands in her career” in United States v. Lugo, No. 201200102, 

2013 CCA LEXIS 40, at *2, *4, *8, unpublished op. (N-M. Ct. Crim. App. 29 

Jan 2013) (per curiam). Even though the Lugo member had served as the 

advocate for four alleged victims in their reporting of sexual assaults, id. at 

*4, *7 n.2, and admitted that as a victim advocate/SAPR she “[a]bsolutely”

treated those who shared allegations of sexual assault with her “as though 

they [we]re always telling . . . the truth,” id. at *5, we held that the military

judge “did not abuse his discretion in denying” the challenge for cause

because “no one elicited any details of her experiences as a SAVI advocate or 

how her experiences may have affected her perception of sexual assault 

offenders or victims.” Id. at *7. During voir dire, the Lugo member explained 

that “her role was only to provide support and access to services and not to 

determine whether any victim was actually telling her the truth[,]” and that 

she “could remain fair and impartial” during the court-martial “despite her 

experiences” as a SAPR VA/POC. Id. at *7.

We find that CWO3 M’s SAPR experiences did not create an implied bias. 

CWO3 M had less experience with actual victims, was no more predisposed to 

believe an alleged victim, and offered the same assurances that her aim as a 

VA was simply to help alleged victims obtain services as did the challenged 

member in Lugo. Given that CWO3 M had no impactful experiences as a VA

and received only a few days of training several years before trial (the details 

of which she could no longer remember), we are confident that a member of 
14

the public would not reasonably find participation by a person in CWO3 M’s 

position in the appellant’s court-martial to be unfair.

d. Challenge for cause based on CWO3 M’s attitude towards deceit

Because the military judge did not address on the record trial defense 

counsel’s grounds for challenge that CWO3 M must be excused because she 

“never experienced lying kids” or “a kid that has had a memory” which 

“turned out to be false,”53 we review this issue de novo. We find no actual bias 

in light of CWO3 M agreeing to follow the military judge’s instruction to 

consider all evidence, and because her responses left open the possibility that 

some children exaggerate, some teenagers lie, and some mothers could cause 

their children to lie. We find no implied bias because a member of the public 

would not reasonably object to a member serving just because that member

had not actually had a child lie to him or her. The public would view CWO3 

M’s recognizing the possibility that these things could happen as sufficient.

We also find no plain error in the military judge’s failure to grant a 

challenge for cause based on the theories, raised for the first time on appeal,

that CWO3 M “hesitat[ed] when asked whether a mother could cause a child 

to lie about something,” and stated that she “does not think most teenagers 

lie.”54 CWO3 M’s disagreement with trial defense counsel’s proposition that

“most teenagers lie” is not obvious error because the proposition’s truth is 

hardly self-evident. Since CWO3 M agreed to consider all evidence, there was 

no obvious actual bias. Nor do we find that hesitation in answering these

questions in this manner would obviously cause a member of the public to 

view CWO3 M’s participation in the appellant’s court-martial as unfair. 

B. Factual sufficiency

We review questions of legal and factual sufficiency de novo. Art. 66(c), 

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

test for factual sufficiency is whether, “after weighing all the evidence in the 

record of trial and recognizing that we did not see or hear the witnesses as 

did the trial court, this court is convinced of the appellant’s guilt beyond a 

reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. 

App. 2006) (citing United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)

and Art. 66(c), UCMJ), aff’d, 64 M.J. 348 (C.A.A.F. 2007). In conducting this

appellate role, we take “a fresh, impartial look at the evidence,” applying 

“neither a presumption of innocence nor a presumption of guilt” to “make 

[our] own independent determination as to whether the evidence constitutes 

proof of each required element beyond a reasonable doubt.” Washington, 57 

 

53 Id. at 329.

54 Appellant’s Brief at 11-12.
15

M.J. at 399. The phrase “beyond a reasonable doubt” does not imply that the 

evidence must be free from conflict. Rankin, 63 M.J. at 557. “[F]actfinders 

may believe one part of a witness’ testimony and disbelieve another. So, too, 

may we.” United States v. Lepresti, 52 M.J. 644, 648 (N-M. Ct. Crim. App. 

1999) (citation and internal quotation marks omitted).

The appellant argues that reasonable doubt stems from BT’s motivations 

to lie about the sexual assaults—to help her mother obtain a divorce from 

him or to help herself obtain a vehicle in the divorce settlement. We disagree.

BT’s trial testimony was compelling. It was partially corroborated by KM, 

who testified to BT describing to her some of the appellant’s crimes at a time 

before either of the alleged motives to fabricate was relevant. The more 

contemporaneous account also obviates potential concerns over delayed 

reporting. While there are gaps in BT’s memory about the details of when 

and where the appellant committed these acts, we find them understandable 

given her age at the time of the offenses, and note that BT’s testimony on the 

key details of the acts committed against her was consistent and credible. 

Reviewing the entire record, we are convinced of every element of sexual 

assault beyond a reasonable doubt and find the conviction legally and 

factually sufficient. 

III. CONCLUSION

The findings and sentence are affirmed.

Judge GLASER-ALLEN and Judge HUTCHISON concur.

For the Court

R.H. TROIDL

Clerk of Court