UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

GERALD O. HENDERSON

LIEUTENANT JUNIOR GRADE (O-2), U.S. NAVY

NMCCA 201300140

GENERAL COURT-MARTIAL

Sentence Adjudged: 19 December 2012.

Military Judge: CAPT John Waits, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast,

Jacksonville, FL.

Staff Judge Advocate's Recommendation: CAPT M.C. Holifield, 

JAGC, USN.

For Appellant: Capt David Peters, USMC.

For Appellee: Capt Matthew Harris, USMC.

24 April 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. 

PER CURIAM: 

 

The appellant entered mixed pleas at a trial by general 

court-martial with officer members. Pursuant to his pleas, the 

military judge found the appellant guilty of one specification 

of violating a lawful general order in violation of Article 92, 

Uniform Code of Military Justice, 10 U.S.C. § 892. The members 

then convicted the appellant, contrary to his pleas, of one 

specification of attempted wrongful sexual contact and, as a 

lesser included offense to the charged offense of aggravated 

sexual contact, one specification of wrongful sexual contact in 
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violation of Articles 80 and 120, UCMJ (2008), 10 U.S.C. §§ 880 

and 920. The members sentenced the appellant to three months’ 

confinement, forfeiture of all pay and allowances, and a 

dismissal. The convening authority (CA) approved the sentence 

as adjudged, and except for the dismissal, ordered the sentence 

executed.

The appellant raises two assignments of error: (1) that the 

military judge abused his discretion by failing to instruct the 

members on the affirmative defense of consent, and; (2) that the 

appellant was denied due process of law because the CA failed to 

consider ethnicity when selecting the court-martial members.

After careful consideration of the record of trial, the 

appellant's assignments of error, and the pleadings and oral 

arguments of the parties, we conclude that the findings and the 

sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant was committed. Arts. 59(a) and 66(c), UCMJ. 

Background

In November of 2011, while serving aboard USS THE SULLIVANS 

(DDG 68), the appellant left the ship for a night ashore in 

Rota, Spain, with several fellow officers. After returning to 

the ship intoxicated, he encountered Fireman (FN) CL, a junior 

Sailor who had also been drinking earlier that evening. During 

this encounter, the appellant told FN CL that he wished he had 

more to drink, at which time she offered him vodka that she had 

hidden in her backpack. They went to the weapons office, shared 

a drink, and engaged in conversation that FN CL described as 

“flirting.” Record at 453. As the conversation progressed, FN 

CL stood up to get her bag from elsewhere in the room, walking 

past the appellant while doing so. As she passed, the appellant 

pulled her into his lap and kissed her. FN CL testified that at 

this point she kissed him back “for a second,” but then turned 

away and said she needed to leave. Id. at 423. After she 

turned her head, the appellant continued to kiss her on the neck 

and cheek, and then pushed her shirt up and kissed her breasts. 

Id. FN CL told the appellant to stop, attempted to push his 

head away with her hands, and stood up to leave. Id. at 424. 

The appellant pulled her back into his lap and attempted to put 

his hands down the front of her pants. Id. FN CL eventually 

pushed herself away from the appellant and exited the room. Id. 

at 425.

Additional facts necessary for the resolution of particular 

assignments of error are included below.
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Instructions on Consent

The appellant contends that the military judge’s failure to 

instruct the members on the affirmative defense of consent 

created constitutional error that was not harmless beyond a 

reasonable doubt. We disagree. 

At trial, the military judge discussed his intentions for 

instructions. Although trial defense counsel requested an 

instruction on both the affirmative defense of consent and 

mistake of fact as to consent, ultimately the military judge 

decided to only give the mistake of fact instruction, finding 

that “while mistake of fact as to consent might be a reasonable 

inference from the evidence, I don’t see where, as it relates to 

the charges and specifications, that the issue of consent was 

raised by some evidence.” Id. at 654. However, the military 

judge’s ruling was, for all practical purposes, limited to the 

charged offense of aggravated sexual contact under Article 

120(e), UCMJ. Id. at 658. The lesser included offense of 

wrongful sexual contact has as an element that the act was 

committed “without that other person’s permission . . . .” 

Article 120b(13)(b), UCMJ (2008). When instructing the member’s 

on this element the military judge stated:

The term “without permission” in the elements of 

wrongful sexual contact, alleged to have been 

attempted in the Specification of Charge I, and in the 

lesser included offense of Charge III, means without 

consent.

Id. at 690. The military judge then gave the members the 

standard definitions and instructions as to what does and does 

not constitute consent. Id. at 690-91.

Whether a panel was properly instructed is a question of 

law this court reviews de novo. United States v. Lewis, 65 M.J. 

85, 87 (C.A.A.F. 2007). A military judge is required to 

instruct the members on affirmative defenses “in issue.” Id. A 

matter is considered “‘in issue’ when some evidence, without 

regard to its source or credibility, has been admitted upon 

which members might rely if they choose.” RULE FOR COURTS-MARTIAL

920(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), 

Discussion; see also United States v. Gillenwater, 43 M.J. 10, 

13 (C.A.A.F. 1995). When the instructional error raises 

constitutional implications, the error is tested for prejudice 

using a “harmless beyond a reasonable doubt” standard. Lewis, 
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65 M.J. at 88. The inquiry for determining whether 

constitutional error is harmless beyond a reasonable doubt is 

“‘whether, beyond a reasonable doubt, the error did not 

contribute to the defendant's conviction or sentence.’” United 

States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005) (quoting 

United States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003)).

Assuming without deciding that the appellant met the “some 

evidence” standard, and that the military judge erred by not 

instructing the members that consent was an affirmative defense 

to aggravated sexual contact, the appellant’s acquittal to that 

offense rendered any such error harmless beyond a reasonable 

doubt. 

We reach this conclusion by noting first that the statutory 

defense of consent listed in Article 120(r), UCMJ, distinguishes 

wrongful sexual contact from those other offenses under the 

statute involving force or circumstances where the victim cannot 

or is unable to consent to the sexual conduct. Second, and 

keeping in mind the burden allocation under the 2008 Manual, we 

find it illogical that Congress would first require the 

prosecution to prove lack of consent beyond a reasonable doubt,

only to then require an accused to shoulder the burden of 

proving consent by a preponderance of the evidence, and then 

require the prosecution to disprove the affirmative defense of 

consent beyond a reasonable doubt—-essentially the same burden 

the prosecution carried at the onset. See Article 120(r) and

(t)(16), UCMJ. We presume that Congress did not intend such an

illogical interpretation of the offense under Article 120(m), 

and the affirmative defense under Article 120(r) and t(16), 

UCMJ. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 580 (2009) 

(holding that courts must avoid interpreting a statutory 

provisiion in a way that renders other provisions of the statute 

meaningless or “a dead letter”) (citing United States v. 

Atlantic Research Corp., 551 U.S. 128, 137 (2007)). Instead, we 

find that Congress intended to except the affirmative defense of 

consent from the offense of wrongful sexual contact. 

Lastly, assuming that the affirmative defense of consent 

was available for Article 120(m), UCMJ, we would find no 

prejudice to the appellant. The military judge instructed the 

panel that, to find the appellant guilty of the attempted 

offense in Charge I and the lesser included offense in Charge 

III, they must be convinced beyond a reasonable doubt that the 

sexual contact either attempted or committed was without the 

consent of FN FC. Record at 687-90. The panel’s guilty finding 
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to this element forecloses the possibility of any reasonable 

doubt that FC consented to the sexual contact. 

 

Selection of Members

The appellant next asserts that the CA deprived him of a 

fair and impartial panel by refusing to consider potential panel 

members’ race when weighing the experience requirement set forth 

in Article 25, UCMJ. Again, we disagree. 

The appellant, an African-American, was originally 

scheduled to be tried before a panel that included one officer 

who identified his race as both “African-American (Black)” and 

“Caucasian (White),” a second officer who identified his race 

only as “African-American (Black),” Appellate Exhibit XVII at 1, 

14, and seven “Caucasian” officers. However, on the eve of 

trial, the appellant fired his civilian attorney, thus forcing a 

three-month delay in his court-martial. During the delay, both 

officers with African-American heritage became unavailable and 

were replaced. Upon learning that the new panel consisted 

entirely of white officers, the appellant requested that the CA 

detail new members that included “racial diversity.” Record at 

144. The CA denied that request. AE XV at 4.

The appellant then filed a motion challenging the selection 

of members as violative of Article 25, UCMJ, and requested that 

the military judge stay the proceedings and order the CA to 

detail two members of the appellant’s race to the court-martial. 

AE XVI. After hearing testimony from both the CA and his staff 

judge advocate that the members were selected on a race-neutral 

basis, and that neither of them was aware of the appellant’s 

ethnicity, or the racial composition of either panel until the 

motion was filed, the military judge denied the appellant’s 

motion, specifically finding no evidence of systematic exclusion 

or that the panel was improperly selected. On appeal, the 

appellant now argues that “[r]ace and ethnicity are inexorably a 

part of an individual’s experience” and that CA’s must “consider 

race to give full effect to the meaning of ‘experience’ as an 

Article 25 criteria.” Appellant’s Brief of 3 Sep 2013 at 31-32.

Whether a panel is properly selected is a matter of law 

that this court reviews de novo. United States v. Gooch, 69 M.J. 

353, 358 (C.A.A.F. 2011) (citing United States v. Dowty, 60 M.J. 

163, 171 (C.A.A.F. 2004)). A defendant has both a 

constitutional and regulatory right to a fair and impartial 

panel. Id. at 357 (citation omitted). When selecting a panel, 

a CA must select members who, in the CA’s opinion, are best 
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qualified for the duty by reason of age, education, training, 

experience, length of service and judicial temperament. Art.

25, UCMJ. 

We know of no authority that requires a CA to consider a 

potential member’s race when choosing a court-martial panel. 

Although such consideration is permissible as part of “‘good 

faith attempts to be inclusive and to require 

representativeness,’” the consideration of race is not required. 

Gooch, 69 M.J. at 358 (quoting Dowty, 60 M.J. at 171). 

Accordingly, we decline the appellant’s invitation to find that 

the race-neutral approach used by the CA amounts to improper 

member selection. Because the record shows that the CA utilized 

the proper Article 25 criteria when selecting the panel, we 

reject the appellant’s contention that his right to a fair and 

impartial panel was violated.

Conclusion

The findings and the sentence as approved by the CA are 

affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court