UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and SCHASBERGER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist CARL L. CAMPBELL 

United States Army, Appellant 

ARMY 20160215 

Headquarters, III Corps and Fort Hood 

Rebecca K. Connally, Military Judge 

Lieutenant Colonel Travis L. Rogers, Staff Judge Advocate 

For Appellant: Major Todd W. Simpson, JA; Captain Zachary A. Gray, JA (on brief 

and reply brief); Lieutenant Colonel Tiffany D. Pond, JA; Major Todd W. Simpson, 

JA; Captain Zachary A. Gray, JA (on supplemental brief). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Virginia Tinsley, JA; 

Captain Brian Jones, JA (on brief). 

20 November 2018 

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

SUMMARY DISPOSITION 

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

Per Curiam: 

At issue in this case is whether a military judge must sua sponte excuse a 

panel member who does not unequivocally agree to apply the law, when neither the 

defense nor the prosecution challenge that member. Appellant argues the military 

judge abused her discretion when she did not remove a panel member who answered 

equivocally to questions regarding whether he would follow the military judge’s 

instructions. We find the military judge did not abuse her discretion. While she had 

the authority to sua sponte excuse the panel member, she was not required to do so. 

 

A panel with enlisted members sitting as a general court-martial convicted 

appellant, contrary to his pleas, of one specification each of making a false official 

statement, sexual assault, and indecent viewing, in violation of Articles 107, 120, 

and 120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 920, and 

920c. The panel sentenced appellant to a dishonorable discharge, confinement for 

five years, and a reduction to the grade of E-1. The convening authority approved 
CAMPBELL—ARMY 20160215 

2 

only four years and eight months of confinement but approved the remainer of the 

sentence as adjudged. Appellant’s case is now before us under Article 66, UCMJ.1

BACKGROUND 

A. Appellant’s Misconduct 

Appellant attended a barracks-room party on the floor where he lived. There, 

appellant and Specialist (SPC) Chapman, spoke with Private (PV2) AV and other 

soldiers. At the party, PV2 AV drank heavily and became highly intoxicated. She 

slurred her speech and needed support to stand. She received help returning to her 

room from another soldier who was her friend. The friend helped PV2 AV up the 

stairs, helped her unlock her door, and helped her into her room. Private AV laid on 

her bed fully clothed. As the friend left PV2 AV’s room, he passed SPC Chapman in 

the common hallway. Specialist Chapman entered PV2 AV’s room, where he was 

joined by appellant a few minutes later. Appellant and SPC Chapman had sexual 

intercourse with PV2 AV, who had only sketchy memories of what transpired. She 

remembered both soldiers having sex with her, moving her around, and placing her 

on a rug on her floor. She woke up on her bed without her clothes. She filed a 

restricted report of sexual assault and underwent a sexual assault forensic 

examination. Later, she changed her report from restricted to unrestricted. 

When questioned by investigators, appellant initially denied going to PV2 

AV’s room after the party. He later made a second statement to investigators 

wherein he admitted going to her room and engaging in sex with PV2 AV, but he 

claimed the sex was consensual. Appellant later testified that, although he did not 

know PV2 AV well, he was “horny,” so he “decided to go up to her room to see if 

she wanted to have sex.” Appellant testified he was surprised to see SPC Chapman 

already there and having sex with PV2 AV, but claimed PV2 AV did not protest 

when appellant also began engaging in sexual intercourse with her. 

 

B. Appellant’s Court-Martial 

During group voir dire, the defense counsel asked questions about consuming 

alcohol and consenting to sex. One panel member, Lieutenant Colonel (LTC) JD, 

answered that having one drink of alcohol could render a person unable to consent to 

sexual intercourse. When this response was further explored, he stated that he 

thought it would depend on the person. After some discussion, LTC JD agreed that 

 

1

 Appellant was convicted of sexual assault by performing sexual intercourse upon 

Private (PV2) AV when he knew, or reasonably should have known, PV2 AV was 

incapable of consent due to impairment by alcohol. Under Rule for Courts-Martial 

917, the military judge acquitted appellant of conspiring with Specialist Chapman to 

commit sexual assault. The panel acquitted appellant of three other specifications of 

sexual assault and one specification of burglary. 
CAMPBELL—ARMY 20160215 

3 

he was “willing to apply the judge’s instructions to whatever [his] final 

determination of the outcome of the case.” 

During individual voir dire, LTC JD again said he thought whether a person 

could consent to sex after one drink would depend on the person and the drink. He 

explained the size of the drink, type of drink, and the weight of the person would all 

factor into whether a person could consent after drinking alcohol. 

During this colloquy, LTC JD was equivocal on whether he would apply the 

military judge’s instructions. In response to the question, “you would be able to 

listen to the judge’s instruction regarding consent—all of the judge’s 

instructions[?],” LTC JD answered, “I think so, yes.” Later, in response to “my 

question is can you listen to those instructions and apply them as [the military 

judge] instructs you to do?” LTC JD answered “I think I can. I mean, unless we had 

a disagreement. If she thinks that one drink means that you can’t consent no matter 

what, then I would disagree because I think the size of the person, size of the drink, 

all of those things are considered into consent or not. Does that make sense?” 

 The military judge entered the discussion and in response to her questions 

regarding whether he could follow her instructions LTC JD answered: “My answer is 

maybe. It depends on the evidence presented.” 

 

 At the close of voir dire, the military judge asked if either side had any 

challenges. The government made one challenge for cause, and the defense 

challenged three panel members for cause. Neither side challenged LTC JD. The 

military judge asked again if there were any other challenges for cause. Neither side 

had any. The military judge denied the government’s challenge for cause and the 

government used its peremptory challenge against the same member. The military 

judge granted appellant’s challenges against two panel members; after she denied 

appellant’s challenge against a third member, the defense used its peremptory 

challenge against that third member. 

 Prior to starting the trial before the members, the military judge returned to 

the issue of LTC JD. She asked whether she correctly understood that neither the 

government nor defense were challenging him. Both the trial counsel and the 

defense counsel agreed they did not want to challenge LTC JD. 

 

LAW AND DISCUSSION 

 Appellant alleges that the military judge abused her discretion by failing to 

excuse LTC JD from the panel sua sponte. 

An accused has a right to an impartial and unbiased panel during his courtmartial. United States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994). Both the UCMJ and 

the Rules for Courts-Martial (R.C.M.) include provisions to ensure this right. 
CAMPBELL—ARMY 20160215 

4 

Article 25, UCMJ sets out the criteria for the convening authority to select best 

qualified panel members. The R.C.M. establish procedures further refining what 

members sit in any given case. This process begins with voir dire, wherein 

information about the members is gathered by the prosecution, defense, and military 

judge. R.C.M. 912(d). After voir dire, any party may challenge an unlimited 

number of members for cause under R.C.M. 912(f)(1). A member may be excused 

for cause for a variety of reasons, including the provision that a person “[s]hould not 

sit as a member in the interest of having a court-martial free from substantial doubt 

as to legality, fairness, and impartiality.” R.C.M. 912(f)(1)(N). 

The military judge “may, in the interest of justice, excuse a member against 

whom a challenge for cause would lie.” R.C.M. 912(f)(4) (emphasis added). Our 

superior court has recognized that the word “may” implies discretion, giving a 

military judge the discretionary authority to, sua sponte, excuse a member against 

whom a challenge for cause would lie. United States v. McFadden, 74 M.J. 87, 90 

(C.A.A.F. 2015) (citations omitted). Put differently, a military judge may excuse a 

panel member, against whom a challenge for cause would be granted, even if neither 

party challenged that member. See United States v. Akbar, 74 M.J. 364, 395 

(C.A.A.F. 2015). 

While a military judge has the authority to excuse a panel member sua sponte, 

she “has no duty to do so.” See McFadden, 74 M.J. at 87; Akbar, 74 M.J. at 395. 

Appellant has not provided any citation to authority which would suggest our higher 

court’s holdings in McFadden and Akbar have been superseded or overruled in the 

short time since their publication. We are bound by our superior court’s precedent. 

A military judge is certainly within her authority to sua sponte excuse a panel 

member who does not unequivocally agree to be bound by the military judge’s 

instructions. Our superior court has plainly stated, however, that a military judge 

has no duty to do so.2 Therefore, there can be no abuse of discretion as argued by 

appellant. Further, in this case, the defense counsel plainly made a tactical decision 

not to challenge LTC JD. Requiring a military judge to override the tactical 

 

2

 The military judge was in the best position to assess whether she should exercise 

her authority to sua sponte excuse LTC JD. A military judge is best equipped to 

assess the demeanor and intonation of panel members during voir dire. These 

nuances may be absent from the record we receive on appeal. In this case, LTC JD 

did not refuse to follow the military judge’s instructions. Rather, in response to 

follow-up questions, he explained it was hard for him to answer questions in the 

abstract, and therefore answered equivocally. With the benefit of her live, in-person 

observations, the military judge assessed LTC JD’s statements did not warrant sua 

sponte excusal. No law requires a different result. 
CAMPBELL—ARMY 20160215 

5 

decisions of defense counsel would undermine the impartiality of the military judge, 

and erode the fairness of the proceedings. 

CONCLUSION3

The findings and sentence are AFFIRMED. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

3

 On brief, appellant also argued his trial defense counsel were ineffective for failing 

to introduce evidence of PV2 AV’s alleged motive to fabricate, and evidence to 

show PV2 AV’s injuries could have been caused by sexual activity with another 

individual. We have considered appellant’s arguments and disagree. Appellant 

essentially alleges PV2 AV was motivated to fabricate allegations of sexual assault 

because she did not want it known that she had sexual intercourse with two men at 

the same time. We find this theory weak. It is a quintessentially tactical decision to 

avoid raising such a weak argument. Further, the presentation of such evidence 

simply would not have changed the result in appellant’s case. The claim appellant’s 

counsel failed to offer evidence of an alternate source of PV2 AV’s sexual injuries is 

even weaker. Appellant’s theory of defense was that he had consensual sex with 

PV2 AV, not that he never had sex with PV2 AV. 

Appellant further argued the military judge abused her discretion by issuing an 

overly-broad curative instruction after appellant’s counsel elicited testimony 

prohibited by Mil. R. Evid. 412. Appellant’s counsel elicited testimony that 

appellant had seen PV2 AV drinking on other occasions. His counsel further elicited 

that appellant believed PV2 AV previously had sex with another individual after 

drinking. As this was directly contrary to a prior Mil. R. Evid. 412 ruling, the 

military judge stopped the line of questioning and instructed the panel to disregard 

appellant’s testimony about seeing PV2 AV drinking before. While we agree the 

military judge’s instruction was too broad, we find the error was harmless. 

 

Appellant submitted further matters pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982), which we have considered and find do not merit relief. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: