             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                             Master Sergeant JOSEPH R. DOCKERY III
                                       United States Air Force

                                                  ACM 38624

                                               2 December 2015

            Sentence adjudged 1 March 2014 by GCM convened at Osan Air Base,
            Republic of Korea. Military Judge: William C. Muldoon, Jr. (arraignment)
            and Gregory O. Friedland.

            Approved Sentence: Confinement for 1 year and reduction to E-4.

            Appellate Counsel for Appellant: Captain Lauren A. Shure.

            Appellate Counsel for the United States: Major Mary Ellen Payne and
            Gerald R. Bruce, Esquire.

                                                      Before

                                   HECKER, DUBRISKE, and BROWN
                                       Appellate Military Judges

                                        OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



DUBRISKE, Judge:

       Contrary to his pleas at a general court-martial, Appellant was convicted by a
panel of officer and enlisted members of sexual assault and adultery,1 in violation of
Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934. Appellant, who at the time of trial
was less than two months away from retirement eligibility, was sentenced to one year of

1
  Although we question the prosecutorial judgment in charging adultery in conjunction with an instance of sexual
assault, we find the evidence is legally and factually sufficient to sustain the conviction in this particular case.
Article 66(c), UCMJ, 10 U.S.C. § 866(c).
confinement and a reduction to the rank of senior airman. The convening authority
approved the sentence as adjudged.

      On appeal, Appellant alleges six assignments of error which are discussed in detail
below. None of the allegations of error merit relief.

                                      Background

       The charged offenses in this case surround Appellant’s sexual activity with a
government civilian employee, Ms. AR, while she was on temporary duty to Osan Air
Base, Republic of Korea. At the time of the offense, Appellant was married and was
stationed at Osan Air Base for a one-year, unaccompanied assignment.

       Appellant had been Ms. AR’s direct supervisor approximately 10 years earlier
when Ms. AR was on active duty. Appellant’s relationship with Ms. AR during her
active duty service was described as “entirely professional” by Ms. AR. Ms. AR viewed
Appellant as one of her most valued mentors from her active duty service.

       At some point during Ms. AR’s temporary duty assignment at Osan Air Force
Base, she ran into Appellant while getting lunch. She and Appellant discussed some
changes in their personal lives during this lunch and agreed they should get together
before Ms. AR returned to the United States to better catch up with each other.

       Two days prior to returning home, Ms. AR went to a base restaurant with other
members of her stateside unit. Over approximately four hours, Ms. AR remembered
drinking three mixed drinks and three shots of hard liquor. The third shot was Ms. AR’s
last memory of the evening. The next thing she remembered was waking up in the
emergency room early the next morning.

       Based on other evidence adduced at trial, after she left the restaurant and was
taken by friends to her billeting room, Ms. AR contacted Appellant and asked him to pick
her up. Appellant agreed and met Ms. AR in the lobby of the billeting office. After
spending time in the lobby talking, including discussions with one of Ms. AR’s co-
workers, Appellant and Ms. AR left the lobby around 2300 hours and walked to
Appellant’s dormitory room, which is where the sexual activity charged in this case took
place.

       Around midnight, Appellant’s neighbor in the dormitory, Master Sergeant (MSgt)
AB, heard a female voice crying. He assumed it was someone talking on a cell phone, so
he attempted to go back to sleep. After the crying continued for about 15 minutes,
MSgt AB contacted Security Forces to report the continued noise. MSgt AB then
stepped out in the hallway and he and another dormitory resident determined the sound
was coming from Appellant’s room.


                                            2                                  ACM 38624
       The two then knocked on Appellant’s door. When Appellant answered the door,
he was asked if the female in his room was all right. Appellant stated that she was fine.
Appellant was then told by MSgt AB that law enforcement would soon be responding to
his dormitory room.

       The responding officers made contact with Appellant, who informed them
everything was fine. The officers advised Appellant they needed to speak with his
female friend to make sure she was not in distress. Shortly thereafter, Ms. AR came to
the doorway fully nude. Ms. AR declined to put on her clothing and eventually stepped
out into the dormitory hallway. Ms. AR was emotionally upset and appeared intoxicated,
displaying slurred speech, incoherent responses to questioning, and lack of balance. Ms.
AR was unable to dress herself, so the responding officers assisted her in putting on some
of her clothing before transferring her to a hospital for evaluation.

       When asked about Ms. AR’s intoxicated condition, Appellant informed one of the
responding officers that she was “like this” when he picked her up. The responding
officer interpreted Appellant’s statement to mean Ms. AR was already intoxicated when
he met her at the lodging office earlier in the evening.

      Additional facts necessary to resolve Appellant’s assignments of error are
provided below.

                            Government Challenge for Cause

       It was discovered prior to the start of voir dire that one of the enlisted members
selected for service by the convening authority was a potential defense witness. With the
concurrence of the parties, the military judge questioned the proposed court member
regarding his relationship with Appellant and his knowledge about the facts of the case.

       The court member confirmed his relationship with Appellant, which resulted in the
military judge dismissing the member for cause. Prior to his release, the court member,
who apparently was African-American, confirmed for the court that he had not said
anything to the other 11 members about his knowledge of Appellant’s case. To ensure
the court member did not have any additional contact with the remaining members, the
military judge instructed him to wait until the remaining members had entered the
courtroom before going to the deliberation room to collect his personal belongings. The
rest of the panel was then informed that the member had been excused by the military
judge.

       During individual voir dire of the remaining 11 members, trial defense counsel
posed the same two questions. The first question, given Appellant was African-American
and Ms. AR was white, asked whether the members had any strong feelings or concerns


                                            3                                   ACM 38624
about interracial relationships or interracial sex.    All 11 members answered in the
negative.

       Trial defense counsel then individually asked each member if they would want
someone like themselves sitting on the panel if they were facing trial like Appellant.
When trial defense counsel asked why they felt this way, 10 of the 11 members
responded in a typical manner, discussing their fairness, open-mindedness, and ability to
follow the judge’s instructions. In contrast, the remaining member, MSgt LW, who
advised she was both African-American and Hispanic, engaged in the following
discussion with counsel regarding why she would want herself sitting on the panel if she
was in Appellant’s position.

             [MSgt LW:] I would think yes, be fair, not from nothing, but
             for some reason an African American person already got
             dismissed, so really I would think—not that it wouldn’t be—
             oh god—I would say yes. You would want—you would want
             somebody like me to be fair for both parties, to judge. I will
             think that I will be fair, listening to all the facts, either way.

             [DC:] . . . [A]ny other things in terms of you thinking you’d
             be a good fit for the panel, you would want somebody like
             you if you were in that position? Anything else beyond what
             you’ve already said?

             [MSgt LW:] If I was in a position of—

             [DC:] Yeah, if—would you want somebody like you on a
             jury if you were in that position? You discussed your ability
             to be fair. I was just curious if there was anything else.

             [MSgt LW:] No, sir. I think I’ll be fair.

             [DC:] Okay, all right, thank you so much.

             [MSgt LW:] No problem.

             [MJ:] Trial Counsel, any follow up questions?

             [TC:] Briefly, Your Honor. [MSgt LW], I just wanted to
             clarify one thing that you just said. You made a comment, I
             believe—maybe I heard it incorrectly—you made a comment
             when he asked you about whether or not you could be fair,
             you made a comment about one person had already gotten


                                             4                                    ACM 38624
              dismissed, or one African American already got dismissed. Is
              that what you stated?

              [MSgt LW:] Yes, sir.

              [TC:] What were you—what was your point, or what—are
              you concerned that he was dismissed and that he’s African
              American?

              [MSgt LW:] No, sir, no. Just if—well, I don’t know—I’m
              assuming there’s supposed to be 12 individuals, and I was just
              wondering if—you know—if he was going to be replaced.

       Trial counsel then asked the military judge if he wanted to instruct MSgt LW on
the composition of the panel in military criminal cases. After doing so, including
instructing MSgt LW that she should not speculate on why any member is released, the
military judge confirmed with MSgt LW that she could be fair to both sides. Trial and
defense counsel requested no additional follow up to the judge’s inquiry.

        In later challenging MSgt LW for cause, trial counsel provided the following
justification for his request:

              Yes, sir. It was the comment she made about—that seemed
              like she didn’t really intend for it to slip out, but she seemed
              to believe that—she expressed basically the fact that she kind
              of felt like she needed to protect the accused, or kind of battle
              for him because we’d already excused one black member. It
              seemed to indicate that she had a bias in his favor along racial
              lines. Not—no malicious intent there, but it seemed to
              express a bias and a belief that there might be some sort of
              conspiracy on the part of the government to get rid of
              minority members on the panel. So the government can’t be
              comfortable that she is not biased in favor of the accused and
              against us because of that statement, despite the fact that
              obviously I know you clarified and gave her a lot more
              background about that challenge—or that excusal I guess I
              should say. Still, the fact that that’s what she expressed, and
              then she seemed to want to backtrack from that when she
              realized what she said. That’s our basis for challenging her
              for actual bias.

      The defense counsel opposed the challenge, arguing MSgt LW had simply been
confused about the size of a military panel, had not indicated any racial bias or a desire to


                                              5                                    ACM 38624
protect Appellant based on her race, and had ultimately indicated she would be fair. The
military judge made the following findings in granting the challenge for cause:

                   All right, I’ve considered her responses. While I don’t find
                   an actual bias, on the part—I think that was cleared up by my
                   instructions to her, I do find that there is implied bias on the
                   part of [MSgt LW] from her utterance without any
                   precipitating factors there, and so given that I find implied
                   bias, the challenge against [MSgt LW] is granted. So she will
                   be excused.

       Appellant now contends the military judge erred in granting the challenge for
cause, arguing MSgt LW’s removal from the case was related to her race and thus
violated the Equal Protection Clause,2 the Supreme Court’s holding in Batson v.
Kentucky, 476 U.S. 79, 89 (1986), and MSgt LW’s civil right to participate as a panel
member.

        Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member shall be
excused for cause whenever it appears that the member “[s]hould not sit as a member in
the interest of having the court-martial free from substantial doubt as to legality, fairness,
and impartiality.” “This rule encompasses challenges based upon both actual and implied
bias.” United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing
United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).

       We review issues of implied bias “under a standard less deferential than abuse of
discretion but more deferential than de novo.” United States v. Downing, 56 M.J. 419,
422 (C.A.A.F. 2002). Implied bias is “viewed through the eyes of the public, focusing on
the appearance of fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010)
(quoting Clay, 64 M.J. at 276) (internal quotation marks omitted). As such, appellate
courts employ an objective standard when reviewing a military judge’s decision
regarding implied bias. United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004). The
test for implied bias, considers, “among other distinct military factors, the confidence
appellate courts have that military members will follow the instructions of the military
judges and thus, while it will often be possible to ‘rehabilitate’ a member on a possible
question of actual bias, questions regarding the appearance of fairness may nonetheless
remain.” United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015). In assessing
implied bias claims, the totality of the circumstances should be considered. United States
v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015).

       “As a matter of due process, an accused has a constitutional right, as well as a
regulatory right, to a fair and impartial panel.” Downing, 56 M.J. at 421 (quoting United

2
    U.S. CONST. amend. XIV, § 1.


                                                  6                                   ACM 38624
States v. Wiesen, 56 M.J. 172, 174 (2001)). The United States Supreme Court has long
recognized that an African-American defendant is denied equal protection of law when
put on trial before a jury in which members of his race have been purposely excluded.
Strauder v. West Virginia, 100 U.S. 303 (1880). This constitutional denial of due process
includes instances when the exclusion is based on the false assumption that members of a
certain race as a group are not qualified to serve as jurors, or will be unable to impartially
consider a case against a defendant of a similar race. See Neal v. Delaware, 103 U.S.
370, 397 (1881); Batson, 476 U.S. at 89. “Discrimination in the jury selection process
undermines our criminal justice system and poisons public confidence in the evenhanded
administration of justice.” Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015).

       This case, however, is different from most race-focused jury composition cases in
that here we are dealing with a challenge for cause, and not the convening authority’s
discriminatory selection or a prosecutor’s use of a preemptory challenge.3 See United
States v. Elliott, 89 F.3d 1360, 1364–65 (8th Cir. 1996) (holding the Batson challenge
framework applies only to peremptory strikes). When viewed through the aperture of a
for-cause challenge, it is recognized that a racial bias possessed by a juror can be a
legitimate ground for removal. See Powers v. Ohio, 499 U.S. 400, 411 (1991) (individual
jurors predisposed to favor a defendant could be excused for cause); cf. Batson, 476 U.S.
at 123 (Burger, C.J., dissenting) (“To suggest that a particular race is unfit to judge in any
case necessarily is racially insulting. To suggest that each race may have its own special
concerns, or even may tend to favor its own, is not.”). Appellant, in his reply brief,
acknowledges a member could be struck for cause when displaying a racial bias.
Appellant, however, argues the court member’s statements here did not establish she
possessed a bias towards Appellant due to race.

       After reviewing the court member’s responses and considering the military judge’s
limited factual findings, we do not believe the military judge erred in granting the
Government’s challenge for cause in this case. While we agree it would be
constitutionally impermissible for a prosecutor to a remove a juror based only on an
assumption the juror was predisposed to favor a defendant because of race, United States
v. Tulloch, 47 M.J. 283, 286 (C.A.A.F. 1997), that is not the case before us. Here, the
individual juror injected the issue of race sua sponte.

       Applying the required objective standard to the circumstances in this case, we
believe a reasonable member of the public could find MSgt LW’s unsolicited response
about the removal of another panel member raised the issue of racial bias and called into

3
  Although one might imagine a scenario where a challenge for cause masquerades as a deliberate and intentional
decision to purposefully exclude a particular race, this is not such a case. In such a scenario, it would be critical for
counsel to clearly raise this issue on the record to allow for thorough review by the trial judge and, if necessary, the
appellate court. Cf. McCrory v. Henderson, 82 F.3d 1243, 1247–48 (2d Cir. 1996) (discussing “problems caused by
tardy Batson challenges” and why they mandate waiver of the issue if not raised during jury selection). Here, trial
defense counsel did not assert the for-cause challenge was a ruse to purposefully exclude a particular race.


                                                           7                                               ACM 38624
question the fairness of the trial if MSgt LW remained part of the court-martial panel.
See Woods, 74 M.J. at 244. While we acknowledge Appellant’s alternative assertion that
MSgt LW’s initial response may have been motivated solely by her interest in racial
diversity, her ambiguous reply to trial counsel’s attempt to clarify her position further
buttresses a theory supporting the finding of implied bias. Considering the totality of the
discussions with MSgt LW, we are hesitant to question the military judge’s ruling in this
case. Cf. United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (noting that
rulings on challenges for cause are made on the spot and under pressure); id. at 318
(Scalia, J., concurring) (“The resolution of juror-bias questions is never clear cut . . . .”).

       Even assuming the military judge erred, we believe any error was harmless
beyond a reasonable doubt. In so holding, we recognize purposeful discrimination in the
selection of jurors has been viewed as a structural error not subject to harmless error
review. See generally Batson, 476 U.S. 86–87 (discrimination on the basis of race in the
selection of petit jurors); Vasquez v. Hillery, 474 U.S. 254, 261–62 (1986)
(discrimination on the basis of race in the selection of grand jurors). We do not believe
the granting of a government’s challenge for cause arises to structural error. Cf. Estrada
v. Scribner, 512 F.3d 1227, 1240 (9th Cir. 2008) (“[T]he presence of a biased juror is
structural error not subject to harmless error analysis. . . .”) (emphasis added).

       “Structural errors are those constitutional errors so affecting the framework within
which the trial proceeds, that the trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence.” United States v. McMurrin, 70 M.J. 15, 19
(C.A.A.F. 2011) (internal citation and quotation marks omitted). However, most
constitutional mistakes call for reversal only if the government cannot demonstrate
harmlessness. Neder v. United States, 527 U.S. 1, 8 (1999). “[I]f the defendant had
counsel and was tried by an impartial adjudicator, there is a strong presumption that any
other [constitutional] errors that may have occurred are subject to harmless-error
analysis.” Rose v. Clark, 478 U.S. 570, 579 (1986).

       In the case sub judice, we believe any error surrounding the challenge for cause
was non-structural and can be tested for prejudice. In doing so, we note Appellant raised
no complaint that the members who actually heard his case were unqualified to serve.
This is a critical prerequisite, we believe, as previously noted by our superior court:

              We do not subscribe to the myth of the numbers game. There
              is no reason to suspect that a different mix of members would
              have produced results more favorable to appellant. The
              record establishes that the members were thoroughly qualified
              and suited to sit in judgment of appellant.




                                              8                                     ACM 38624
United States v. Newson, 29 M.J. 17, 21 (C.M.A. 1989).4 As we have no evidence a
different panel would have somehow produced a better result for Appellant, we likewise
find Appellant suffered no material prejudice. See Ross v. Oklahoma, 487 U.S. 81, 86–88
(1988).

                                      Effectiveness of Counsel

       Appellant next alleges his counsel were ineffective because they failed to object to
a question posed to Ms. AR about whether Appellant was the person who sexually
assaulted her. Appellant argues the question was objectionable due to Ms. AR’s lack of
memory regarding the sexual activity. Alternatively, Appellant contends the question
was improper as her conclusion that Appellant had sexually assaulted her was the sole
province of the finder of fact.

       We review claims of ineffective assistance of counsel de novo. United States v.
Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims, we follow the
two-part test outlined by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 687 (1984). See United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007).
Our superior court has applied this standard to military courts-martial, noting that “[i]n
order to prevail on a claim of ineffective assistance of counsel, an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F.
2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).

       The deficiency prong requires the appellant to show his counsel’s performance fell
below an objective standard of reasonableness according to the prevailing standards of
the profession. Strickland, 466 U.S. at 688. The prejudice prong requires the appellant to
show a “reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. In doing so, the appellant “must
surmount a very high hurdle.” United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F.
1997) (citing Strickland, 466 U.S. at 689). This is because counsel is presumed
competent in the performance of his or her representational duties. United States v.
Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).

       Although an objection to the question may have been sustained, we do not believe
defense counsel’s performance fell below the objective standard of reasonableness
required by Strickland. Regardless, even if counsel was deficient, Appellant suffered no
prejudice from this question. It was abundantly clear after the completion of Ms. AR’s

4
  Additionally, we would note Master Sergeant (MSgt) LW had previously served as a victim advocate,
accompanying alleged victims of sexual assault to the hospital for medical examinations. Given the evidence
admitted at trial in Appellant’s case, we question whether MSgt LW would have otherwise been struck had she
answered trial defense counsel’s question like the remaining panel members.



                                                    9                                          ACM 38624
testimony that she had no memory of the event and was not even aware Appellant
engaged in sexual activity with her until she was informed of this fact by the case agent
who had interviewed Appellant days later. As such, it is improbable the panel members
gave Ms. AR’s conclusory statement at the beginning of her testimony much weight, if
any. Appellant’s assignment of error also ignores his admissions and the forensic
evidence establishing he engaged in sexual intercourse with Ms. AR. The identification
of who had sexual contact with Ms. AR was never a disputed question, so a sustained
objection would not have changed the result in this case.

       Moreover, given the factfinders were properly instructed on their duties and
obligations, we reject the assertion that Ms. AR’s answer somehow invaded the province
of the panel in deciding whether Appellant’s conduct met the elements for sexual assault.
See generally United States v. Washington, 57 M.J. 394, 403 (C.A.A.F. 2002) (court
panels are presumed to follow instructions until demonstrated otherwise).

                                       Expert Witness Testimony

       During its case-in-chief, the prosecution called a forensic toxicologist to address
Ms. AR’s alcohol consumption and the effect alcohol has on a person’s cognitive
behavior and motor skills. After being recognized as an expert, the witness noted the
victim had a blood alcohol content (BAC) level of .249 percent alcohol at 0141 hours
when she was treated in the emergency room.5 Then, without defense objection, the
expert extrapolated that the victim’s BAC levels were approximately .30 percent and .28
percent alcohol at 2315 hours and 0015 hours respectively. This time frame roughly
equated to the time Appellant and Ms. AR were together during the evening of the
assault.

       Trial counsel next asked the expert to discuss the behavior of a normal person
possessing a BAC level similar to the victim in this case. Again, without objection from
the defense, the expert noted:

                Most individuals with a .249 blood alcohol that’s a social
                drinker are going to be grossly intoxicated, and depending on
                the rate of the rise of that blood alcohol, you will have pretty
                significant observation. You’ll have a thick tongue, slurred
                speech, stumbling. If we do, like, field sobriety tests they
                can’t touch their nose, they can’t walk a straight line, they
                often need support.         Many individual[s] I’ve seen at
                checkpoint—DUI checkpoints would get out of a car and they
                lean up against the vehicle and stabilize[] themselves, so that

5
  For comparison purposes, the expert noted a motor vehicle operator is presumed impaired with a blood alcohol
content exceeding .08 percent alcohol.


                                                     10                                           ACM 38624
             if they took them away from that you would see them wobble.
             They often kind of have trouble walking. Some individuals
             pass out from that much alcohol in their bloodstream. They
             literally will go to sleep.

       When later asked to explain what he meant when he used the term “grossly
intoxicated,” the expert responded:

             When you’re exhibiting signs . . . such as slurred speech, gait
             problems, an inability to walk without assistance, incoherent
             speech would be defined by definition of gross intoxication,
             that is you’ve reached that level that you’re brain thinking
             capacities are not able to control mental/motor function.

The expert also noted that someone who is “grossly intoxicated” would have extremely
poor judgment when it came to weighing the consequences of their actions.

       After providing this general overview about the impacts of alcohol, trial counsel
asked the witness about Ms. AR’s state of intoxication between 2300 and 0030 hours,
leading to the following exchange which is the basis for the assignment of error.

             [WIT:] She was exhibiting many of those symptoms we just
             described. They would lead you to the conclusion that she
             was grossly intoxicated.

             SDC: Your Honor, I’m going to object to the basis for that
             question, since there is absolutely no evidence of [Ms. AR’s]
             behavior between 11:00 and 12:30 that night.

             MJ: I’m going to overrule your objection. You can consider
             the answer.

       We review for abuse of discretion the military judge’s decision regarding the
scope of expert witness testimony. United States v. Flesher, 73 M.J. 303, 311 (C.A.A.F.
2014). “The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” United States v. Solomon, 72 M.J. 176, 179
(C.A.A.F. 2013) (quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)).

        Military Rule of Evidence 702 provides that a witness qualified as an expert may
testify as to scientific, technical, or other specialized knowledge if it will assist the
factfinder in understanding the evidence or determining a fact at issue. “Testimony in the
form of an opinion or inference otherwise admissible is not objectionable because it


                                            11                                  ACM 38624
embraces an ultimate issue to be decided by the trier of fact.” Mil. R. Evid. 704.
However, this rule does not permit the expert to opine on the ultimate issue of a case. See
United States v. Hays, 62 M.J. 158, 165 (C.A.A.F. 2005).

       It is clear the objection at the trial level was foundational. That is, the defense
claimed there was no information or evidence in the record permitting the Government’s
expert to reach this opinion. We do not believe the military judge abused his discretion
in overruling this basis for the objection. There was testimony that Ms. AR’s cognitive
behavior and motor skills were limited both before and after the sexual activity. When
this evidence is combined with the BAC result, we believe the expert had a sufficient
basis to opine that the victim remained intoxicated during the period she was alone with
Appellant in his dormitory room. This is especially true given Appellant’s statements to
law enforcement after the sexual activity that Ms. AR was “like this” when he picked her
up.

        Appellant now argues the expert’s testimony was erroneously admitted in that:
(1) it improperly bolstered the testimony of the victim and other Government witnesses,
and (2) it improperly concluded the victim was too intoxicated to consent to sexual
activity, which was the ultimate issue in the case for the panel members to decide.

        Given these allegations of error differ from the objection lodged by counsel at
trial, we must decide if Appellant forfeited his complaint about these new theories of
admissibility. “Usually any objection to questions asked on cross-examination must be
made at the time they are asked.” United States v. Ruiz, 54 M.J. 138, 143 (C.A.A.F.
2000). “A party is not necessarily required to refer to a specific rule by citation. A party
is required to provide sufficient argument to make known to the military judge the basis
of his objection and, where necessary to support an informed ruling, the theory behind the
objection.” United States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005) (citing United States v.
Banker, 60 M.J. 216 (C.A.A.F. 2004)); United States v. Brandell, 35 M.J. 369, 372
(C.M.A. 1992). “Where an appellant has not preserved an objection to evidence by
making a timely objection, that error will be forfeited in the absence of plain error.”
United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007); Mil. R. Evid. 103(d).

        We believe these new theories have been forfeited, and, therefore, must only be
tested for plain error. Finding none, we decline to grant relief. We would note the expert
witness only testified Ms. AR showed signs of gross intoxication; he did not render any
opinion on whether her level of intoxication would prevent her from appraising her
actions and consenting to sexual activity. This was the ultimate question, and it was
properly left for the panel members to decide in this case.




                                             12                                   ACM 38624
                                     Improper Sentencing Argument

       Appellant next claims the assistant trial counsel erred during sentencing argument
when she compared the adult victim in this case to a child and thus inferred Appellant
was a child molester. These comments, which take up less than a page of a 20-plus page
argument, did not generate an objection by Appellant’s trial defense counsel.

        Counsel are to limit arguments to the evidence in the record and fair inferences
that may be drawn from that evidence. United States v. Paxton, 64 M.J. 484, 488
(C.A.A.F. 2007). Whether argument is improper is a question of law we review de novo.
United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citing United States v. Pope,
69 M.J. 328, 334 (C.A.A.F. 2011)). In applying the law to the facts of a case, however,
trial counsel’s comments must be examined in context of the entire court-martial. United
States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005).

       The failure of trial defense counsel to object to argument constitutes forfeiture of
the issue on appeal absent plain error. R.C.M. 919(c); see also United States v. Erickson,
65 M.J. 221, 223 (C.A.A.F. 2007). To establish plain error, Appellant “must prove:
(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced
a substantial right.” Marsh, 70 M.J. at 104. The lack of a defense objection is relevant to
a determination of prejudice because it is “some measure of the minimal impact of a
prosecutor’s improper comment.” United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F.
2001) (quoting United States v. Carpenter, 51 M.J. 393, 397 (C.A.A.F. 1999)) (internal
quotation marks omitted).

       We find no error—plain, obvious, or otherwise—with assistant trial counsel’s
argument in this case. Examining the context surrounding the entire argument, the
assistant trial counsel was focusing on the victim’s inability to consent, noting Appellant
had been convicted of sexually assaulting “a child” as Ms. AR “arguably . . . had the
mental capability of a child” due to her intoxicated state and that Ms. AR cried “like a
child” after the incident.6 This is fair argument given the evidence reflecting the victim’s
condition and conduct both before and after the assault. Assistant trial counsel did not
argue or even infer that Appellant should be equated to a child molester or sentenced as
such.

        We also do not believe the argument resulted in prejudice. Notwithstanding the
fact this objectionable material was an extremely small part of the sentencing argument,
the relatively light sentence adjudged by the panel, especially when compared against the
prosecution’s recommendation that Appellant receive significant confinement and a
punitive discharge, belies Appellant’s claim that the panel members were unduly

6
   We note senior trial counsel argued in findings that the victim had the competence of a child due to her level of
intoxication. It appears this statement was the genesis for assistant trial counsel’s argument during sentencing.


                                                        13                                             ACM 38624
inflamed by trial counsel’s argument in this case. We are confident Appellant was
sentenced on the basis of the evidence alone and his sentencing proceedings were not
tainted by these references by the assistant trial counsel. See Erickson, 65 M.J. at 224

                             Confrontation Clause Violation

       Appellant next argues, pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), that the military judge erred when he allowed the Government’s expert
witness to testify about forensic testing results linking him to sexual activity with the
victim. As recently confirmed by our superior court in United States v. Katso, 74 M.J.
273, 283–84 (C.A.A.F. 2015), an expert who did not perform forensic testing may still
provide an opinion regarding the testing results at trial, provided the opinion is based on
the expert’s independent review of the case. Here, as in Katso, the Government’s expert
conducted a thorough review of the evidence against Appellant and based her conclusion
on her personal assessment of the case. Thus, we find no error.

                                Sufficiency of the Evidence

       Finally, pursuant to Grostefon, Appellant asserts the evidence was factually and
legally insufficient to sustain his conviction for sexual assault. Specifically, Appellant
argues the prosecution failed to prove he knew or reasonably should have known Ms. AR
was incapable of consenting to sexual activity due to her impairment by alcohol.

       We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ,
10 U.S.C. § 866(c); Washington, 57 M.J. at 399. Our assessment of legal and factual
sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38 M.J.
270, 272 (C.M.A. 1993).

       The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the witnesses,
[we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987); see also United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). In conducting this unique 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 M.J. at 399.

        The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324; see also
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term reasonable doubt
does not mean that the evidence must be free from conflict. United States v. Lips,


                                             14                                   ACM 38624
22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we
are bound to draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citing
United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000)).

       Applying the standards of review to the evidence elicited in this case, we are
convinced the evidence is legally and factually sufficient to support Appellant’s
conviction. Multiple witnesses called by the prosecution noted Ms. AR’s cognitive
behavior and motor skills were limited both before and after the sexual activity. This
evidence, especially when viewed in conjunction with Ms. AR’s dangerously high BAC
level, provided a sufficient basis for the panel’s finding that Appellant knew or should
have known Ms. AR was incapable of consenting to sexual activity due to her
impairment from alcohol.

       In requesting reversal of his conviction, Appellant argues his version of the events
in the dormitory room, which paints a picture of a consensual sexual encounter, is not
refuted. We disagree. Appellant’s conflicting statements to law enforcement, beginning
the morning of the assault, discredit the narrative Appellant continues to cling to during
this appeal. In particular, Appellant’s claim that Ms. AR’s only sign of intoxication was
her jovial demeanor was rebutted by not only multiple witnesses and the surveillance
video from the billeting lobby, but also by his initial report to law enforcement that the
intoxicated Ms. AR was “like this” earlier in the evening when he came in contact with
her.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence
are AFFIRMED.



              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




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