## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Class JOHN F. SELLERS, JR. United States Army, Appellant

ARMY 20150045

Joint Readiness Training Center and Fort Polk Wade N. Faulkner, Milita ry Judge (arraignment) Randall L. Fluke, M ilitary Judge (trial) Colonel Jan E. Aldyk iewicz, Staff Judge Advocate (pretrial and recommendation)

Lieutenant Colonel Sean M. Wilson, Ac ting Staff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez, Jr., JA; Major Joseph T. Marcee, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie, III, JA; Major Michael Korte, JA; Captai n Austin Fenwick, JA (on brief).

20 April 2017

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

We find no error when the mi litary judge did not sua sp onte excuse or further question panel members for implied bias after defense counsel asked the panel a muddled and confusing question and failed to use a peremp tory challenge on any of the panel members who may have had “ac quaintances” from wo rk who had some experience with domestic violence. Similarl y, appellant failed to meet his burden to

show defense counsel’s voir di re and panel selection rose to the level of ineffective

assistance of counsel. Lastly, we disagree with appellant that the panel created a fatal variance by excepti ng the word “romantic” in finding appellant guilty of a specification that alleged appe llant had an inappropriate ro mantic relationship with a junior enlisted soldier.SELLERS—ARMY 20150045

2 A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of failure to obey a lawful general regu lation, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892 (2012) [hereinafter UCMJ]. A panel of o fficer and enlisted members convi cted appellant, contrary to his pleas, of willfully disobeying a superi or commissioned office r, stalking, assault consummated by battery, and having an in appropriate relationshi p in violation of Articles 92, 120a, 128, a nd 134 UCMJ. The convening authorit y approved the adjudged sentence of a bad-conduct disc harge, thirty months confinement, and reduction to the grade of E-1.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises seven assignments of error, three of wh ich warrant comment, but none of

which warrant relief. We find no merit in th e matters raised by a ppellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).

BACKGROUND

Appellant was convicted of offenses tantamount to a pattern of domestic

abuse towards his former wife . The offenses included breaking her wrist, choking her, stalking her, and failing to comply with his commander’s order to not contact

her.

In addition to appellant’s acts of domestic abuse, ap pellant was also involved in an inappropriate re lationship with Specialist (SPC) SP, a si ngle, junior enlisted soldier who lived with him in his off-p ost apartment while appellant was still married. Although the gover nment charged appellant with having an inappropriate “romantic” relationship with SPC SP in violation of Ar ticle 134, the panel found appellant guilty only of ha ving an “inappropriate rela tionship” with SPC SP by excepting the word “romantic.”

Voir Dire

At trial, during vo ir dire, the military judge as ked the court me mbers “[h]as anyone or any member of your family ever been charged with an offense similar to any of those charged in this case?” A ll court members respon ded negatively.

The judge then asked the court member s “[h]as anyone, or any member of your family, or anyone close to you personal ly ever been the vi ctim of an offense similar to any of those charged in th is case?” All court members answered negatively.

Later in group voir dire, defense counsel engage d in the following exchange

with the court members:SELLERS—ARMY 20150045

3 DC: . . . Have you or anyone close to y ou been a victim of

domestic violence?

[All members responded negatively.]

DC: Have any of you or someone close to you ever

witnessed an incident of domes tic violence? OK, positive response from - - -

MEM: Let me clarify. Wh en you say close to you, can you explain. We’re al l leaders, le adership positions, so please explain.

DC: Yes, sir. Someone clos e to you would either be a family member or someone you work with or know through work, not a st ranger. Someone with some type of acquaintance.

MEM: Can you as k that again?

DC: Yes, sir. I w ill ask the question ag ain. How many of you have witnessed an inci dent of domestic violence concerning someone close to yo u, whether it be a family

member or someone who is an acquaintance through work?

To this query, de fense counsel received a pos itive response from four members, COL G, LTC T, CP T L, and MSG W. The de fense counsel then asked

each of them if they could still hear a case involvin g domestic violence, to which each indicated they could.

Following group voir dire , defense counsel only asked to individually voir

dire one of these f our members, who was challenged and removed for cause due to his law enforcement experien ce. Defense coun sel did not raise a challenge for cause to the remaining three members wh o had answered in the affirmative to

defense counsel’s voi r dire question concerning domestic violence. Defense counsel did not exercise a pe remptory challenge against an y member of the panel.

LAW AND DISCUSSION

Sua Sponte Excusal of Members for Cause

On appeal, appellant assert s the military judge erre d by not exercising his sua sponte duty to inquire into the panel memb ers’ implied biases and to dismiss panel

members based on those biases . Specifically, appellant’s assignment of errorSELLERS—ARMY 20150045

4 extends to—and we focus our discussion he re on—the three memb ers who ultimately

sat on the court-martial who answered defense counsel’s qu estion concerning

domestic violence in the affirmative. We disagree with both the legal and factual basis upon which appellant formed his argument.

First, the military judge had no duty to sua s ponte remove these three members from the pane l for an implied bias . A military judge “m ay, in the interest of justice, excuse a member against whom a challenge for caus e would lie.” Rule for Courts-Martial [hereinafter R.C.M. ] 912(f)(4). A military judge has the discretionary authority to sua sponte excuse the member but has no duty to do so.

United States v. McFadden , 74 M.J. 87, 90 (C.A.A.F. 2015). See also Jama v. Immigration & Cust oms Enforcement , 543 U.S. 335 ( 2005). Our supe rior court has

told us that the discretionar y authority of a m ilitary judge to excuse a member sua sponte in the interest of ju stice is a “drastic action.” United States v. Velez , 48 M.J. 220, 225 (C.A.A.F. 1998) (quoti ng R.C.M. 912(f)(4)).

While we review a military judge’s deci sion to remove a member for actual

bias for an abuse of discretion—thus affording that decision great deference—we

afford less deferenc e to decisions concer ning implied bias. United States v. Strand

, 59 M.J. 455, 458 (C.A.A .F. 2004) (citations omitted); see also United States v.

Akbar , 74 M.J. 364, 395 (C.A.A.F . 2015) (explaining why th e military ju dge did not abuse his discretionary authority to sua spon te remove members). We review issues of implied bias “u nder a standard less de ferential than abuse of discretion but more

deferential than de novo.” Strand , 59 M.J. at 458 (citati on omitted). “In making judgements regarding implied bias, this Co urt looks at the totality of the factual

circumstances.” Id.

We find the military judge did not err in electing not to further question or

remove the three members base d on an “implied bias.” The military judge asked two unequivocally clear questions to which the entirety of th e panel responded negatively. The defense coun sel then asked the very clea r question “[ h]ave you or anyone close to you been a victim of domestic violence?,” to which all members responded in the negative. Defense counsel then aske d what can be charitably

characterized as muddled and confusing questions in an effort to further explore these clear answers by the members. On e panel member, who was later excused,

asked for clarification twice—but in neither case did defense counsel’s follow-on questions serve to clarify th e matter. Defense counsel’ s reframing of the question by interjecting “acquaintances” into the mix, did nothing more than invite confusion. We find the court members’ initial triple ne gative responses to carry the day in this exchange. Given the totality of the qu estions presented to the three members concerning domestic violence and the members’ answers, we find no error by the military judge in no t, of his own accord , conducting individual voir dire of these members on the topic of domestic violence, much less in fail ing to sua sponte remove any of these members for implied bias.SELLERS—ARMY 20150045

5 Second, the “burden of esta blishing that gr ounds for a challe nge exist is upon the party making the challenge. ” R.C.M. 912(f)(3). “The party making a challenge shall state the grounds for it.” Id . Parties have the right to challenge court members for cause. UCMJ art. 41(a)(1). “A member shall be excused fo r cause whenever it appears that the member . . . [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). A party may challenge a member for cause “during trial when it becomes apparent that a ground for ch allenge may exist,” an d a hearing may be

held to resolve the issue. R.C.M. 912 (f)(2)(B). Here, defe nse counsel not only passed on individual voir di re of the three members c oncerning domestic violence,

defense counsel did not raise a challenge for cause on th is basis. In short, defense counsel did not establish any grounds for a challeng e. We will not here divine an unspoken challenge for cause when one was not presented and the military judge reasonably exercised his di scretion in not sua sponte de lving into a non-existent basis for implied bias.

Third, “failure by the challenging part y to exercise a peremptory challenge against any member shall constitute wavier . . . .” R.C.M. 912(f)(4). Defense counsel had an unexercised pe remptory challenge but elec ted not to use it on any member of the panel, much less the three members at issue in this assignment of

error.

As we find the military judge committed no error, the defense counsel did not challenge these members for ca use, and defense co unsel waived any error concerning the exercise of a peremptory challenge, we resolve this issue against appellant.

Ineffective Assist ance of Counsel

Appellant claims that even if we find the military judge did not err in exercising a sua sponte duty to question the three af orementioned panel members based on implied bias, then the defense counsel was ineffe ctive because his voir dire was inadequate. Appellant also complains defense couns el was ineffective for not exercising a peremptory challenge.

Claims of ineffective assistance of counsel are revi ewed de novo. United

States v. Gooch , 69 M.J. 353, 362 (C.A.A .F. 2011). In evalua ting allega tions of ineffective assistance of counsel, we apply the standa rd set forth in Strickland v. Washington , 466 U.S. 668 (1984). Th is standard requires ap pellant to demonstrate: (1) that counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice. Id at 687. Appellant must show counsel made er rors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment. Id . The relevant is sue is whether counsel’s co nduct failed to meet an “objective standard of reason ableness” such that it fell outside the “wide range of professionally compet ent assistance.” Id . at 688, 690. On ap pellate review , there isSELLERS—ARMY 20150045

6 a strong presumptio n that counsel wa s competent. United States v. Grigoruk , 56 M.J. 304, 306-07 (C.A .A.F. 2002) (citing Strickland , 466 U.S. at 689).

Even assuming defense co unsel was deficient in questioning the members concerning domestic violence, we find appellant ha s not met his burden to show that any difference in counsel’s qu estioning would have led to a more favorable outcome

or one that is more reliable. See Akbar , 74 M.J. at 384. Defense counsel’s extrapolation of the record during voir dire does not pr esent the full context in which the members responded to the questions. Again, we look to the member’s responses to the three clear questions presented to them and we find no fertile ground to cultivate for memb er biases. We also will not second guess defense

counsel’s tactical choice to forego using individual voir dire of the members on the

issue of domestic violence or the decision to forego use of their peremptory challenge. Appellant’s claim of ineffective assi stance of counsel fails. *

Fatal Variance and Fa ctual Sufficiency

Appellant argues the pane l’s finding that he violated Article 134, UCMJ, by having an inappropriate relationship versus an inappropriate “rom antic” relationship, created a fatal variance. We disagree.

Accepting appellant’s framing of the is sue as one of a fa tal variance, “[a] variance between pleadings an d proof exists when evidence at trial establishes the

commission of a criminal o ffense by the accused, but the proof does not conform strictly with the offense alleged in the charge.” United States v. Allen , 50 M.J. 84, 86 (C.A.A.F. 1999). To prove a fatal varian ce, appellant must s how both that the

variance was material and th at he was substantially prej udiced by the variance. Id

. (citation omitted). A material variance is “one that, for instance, substantially changes the nature of the offense, increa ses the seriousness of the offense, or increases the punishment for the offense.” United States v. Marshall , 67 M.J. 418, 420 (C.A.A.F. 2009) (citation om itted). A variance is prejudicial when it puts appellant at risk of anothe r prosecution for the same c onduct, misleads him to the

extent he is unable to prepare for trial, or denies him the opp ortunity to defend against the charge. Id . (citing United States v. Teffeau , 58 M.J. 62, 67 (C.A.A.F. 2003)).

* Appellant also asserts ineffective assist ance of counsel because defens e counsel did not put Article 32 testimony of SPC SP into eviden ce to show SPC SP denied having a “romantic” relationship with appellant and to s how appellant’s wife was aggressive. Assuming this was deficient, we find no pr ejudice. Appellant was not found guilty of having a “rom antic” relationship with appellant, th us the Article 32 hearing would not have changed the outcome. Thus, we do not find ineffective

assistance.SELLERS—ARMY 20150045

7 Minor variances, such as the location or the date an offense was allegedly committed, do not necess arily change the nature of the offense. United States v. Teffeau , 58 M.J. 62, 66 (C.A.A.F. 20 03). Further, the words “on or about” in relation to the dates alleged in the offense generally connote any time within a few weeks of

the “on or about” date. United States v. Brown , 34 M.J. 105, 110 (C.M.A. 1992). However, where the major fo cus of the litigation centers on the time, place, and nature of the interactions between the appellant and others, a variance as to date can result in a material and prejudicial fatal variance. See United States v. Parker , 59 M.J. 195 (C.A.A.F. 2003).

In this case, appellant argues the panel’s finding substantially changed the

nature of the offense and denied him the opportunit y to defend against the inappropriate relationship charge. We find no material variance between the charged offense and the panel’s finding . In essence, a ppellant was found gu ilty of a “lesserincluded” offense— and admitted facts as su ch during his testimony at trial. Even if

there was a material variance, appellant was not prejudiced.

First, the change did not al ter the punishment to whic h appellant was exposed. Second, appellant was not prejudiced by th e variance and was not misled into being unable to prepare for tr ial. It is clear from his te stimony that he wa s prepared to address and defend against this charge. A ppellant is in no danger of double jeopardy

in this case. He is fully protected from being prosecuted for the same offense. The

events that formed the basis for the “rom antic” relatio nship charge are the same

events that formed the basis for the sa me inappropriate rela tionship charge. Accordingly, we find no material variance.

The test for legal sufficienc y requires us to review the evidence in the light most favorable to the government. In doin g so, if any rational trier of fact could

have found the essent ial elements of the crime beyo nd a reasonable doubt, the evidence is legall y sufficient. That standard is met in th is case.

The test for factual suffici ency requires this court to be convinced of the appellant’s guilt beyo nd a reasonable doubt, after weighing the evidence in the record of trial and making allowances for not having personally observed the

witnesses. United States v. Jimenez-Victoria , 75 M.J. 768, 768 (Army Ct. Crim. App. 2016); United States v. Turner , 25 M.J. 324, 32 5 (C.A.A.F. 1987). In resolving the question of factual sufficiency, we have carefully reviewed th e record of trial, but have given no deference to the factual determinations made at the trial level. See United States v. Washington , 57 M.J. 394, 39 9 (C.A.A.F. 2002); Jimenez-Victoria

, 75 M.J. at 768. Applying th ese tests, we conc lude that the gove rnment presented credible evidence that established beyond a reasonable doubt that appellant had an inappropriate relationship with SPC SP.SELLERS—ARMY 20150045

8 CONCLUSION

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

are AFFIRMED.

Judge HERRING and Ju dge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: