UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                SIMS, COOK, and GALLAGHER,
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Private E2 ROBERT A. LYON
                             United States Army, Appellant

                                        ARMY 20090792

                    Headquarters, United States Army Alaska
             Michael J. Hargis and Donna M. Wright, Military Judges
        Lieutenant Colonel John T. Rawcliffe, Acting Staff Judge Advocate

For Appellant: Captain Richard M. Gallagher, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura R. Kesler, JA; Captain
E. Patrick Gilman, JA (on brief).

For Appellee: Captain Edward J. Whitford, JA (argued); Major Amber J. Williams,
JA; Major Sara M. Root, JA; Captain Christopher L. Simons, JA (on brief).


                                        28 February 2012
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                     MEMORANDUM OPINION ON FURTHER REVIEW
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of two specifications of aggravated sexual assault of a child
who had attained the age of twelve years but had not attained the age of sixteen
years, one specification of sodomy, two specifications of willful disobedience of a
superior commissioned officer, one specification of wearing unauthorized insignia,
one specification of wrongful appropriation of a military motor vehicle, and one
specification of failing to go to his place of duty, in violation of Articles 86, 90,
120, 121, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 890,
920, 921, 925, and 934 [hereinafter UCMJ].

      The military judge sentenced appellant to a bad-conduct discharge,
confinement for three years, and reduction to Private E-1. The convening authority
reduced the amount of confinement to two years and six months and otherwise
LYON—20090792

approved the adjudged sentence. The convening authority also credited appellant
with forty-nine days of confinement credit against the sentence to confinement.

       On 8 August 2011, this court issued a memorandum opinion which affirmed
the findings and sentence in this case. On 11 January 2012, our superior court
vacated our decision and returned the record of trial to The Judge Advocate General
of the Army for remand to this court for consideration in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). Consequently, appellant’s case is once again
before this court for review under Article 66, UCMJ, 10 U.S.C. § 866 [hereinafter
UCMJ].

       In addition to our review of this case in light of Fosler, we have also reviewed
appellant’s two assignments of error. The first alleges that the military judge
abandoned her impartial role and became an advocate for the prosecution; the second
asserts the approved sentence is disproportionate and inappropriately severe. We
find that these assignments of error lack merit, but agree with the opinion of Judge
Borgerding and our predecessor panel (as set out immediately below) that the first
assignment of error requires some discussion:

                                  BACKGROUND

             Appellant and K.A. began a sexual relationship in late December
      2008 (after meeting on “MySpace”) that continued until early February
      2009. At all times during this relationship, K.A. was fifteen years old
      and appellant was nineteen years old. Appellant’s knowledge of K.A.’s
      actual age was the primary point of litigation at the trial.

            Appellant cites myriad reasons why he believes the military
      judge abandoned her impartial role during his trial. In general, he
      argues the military judge became an advocate for the prosecution when
      she asked numerous questions of the trial witnesses, including
      appellant, and when she treated appellant’s testimony with “disbelief”
      and “incredulity.” We disagree.

                             LAW AND DISCUSSION

             “A military judge’s impartiality is crucial to the conduct of a
      legal and fair court-martial.” United States v. Foster, 64 M.J. 331, 332
      (C.A.A.F. 2007) (citing United States v. Quintanilla, 56 M.J. 37, 43
      (C.A.A.F. 2001)). The military judge may be an active participant in
      the proceedings, but must take care not to become an advocate for
      either party. Foster, 64 M.J. at 332-333 (citing United States v. Ramos,
      42 M.J. 392, 396 (C.A.A.F. 1995)). Nevertheless, “[t]here is a strong
      presumption that a military judge is impartial in the conduct of judicial



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    proceedings.” Foster, 64 M.J. at 333 (citing Quintanilla, 56 M.J. at
    44).

           The test on appeal when a military judge’s impartiality is
    questioned is “whether, ‘taken as a whole in the context of this trial,’ a
    court-martial’s ‘legality, fairness, and impartiality’ were put into doubt
    by the military judge’s questions.” United States v. Burton, 52 M.J.
    223, 226 (C.A.A.F. 2000) (quoting Ramos, 42 M.J. at 396). This is an
    objective test, judged from the viewpoint of a reasonable person
    observing the proceedings. Id.

            The military judge took an active role in this court-martial, but
    she was within her discretion in doing so. United States v. Hill, 45
    M.J. 245, 249 (C.A.A.F. 1996) (“[B]eing extremely active does not
    equate to being biased.”). A military judge has “wide latitude” to call
    and ask questions of witnesses. United States v. Acosta, 49 M.J. 14, 17
    (C.A.A.F. 1998). See also UCMJ art. 46 (affords “equal opportunity”
    to trial counsel, defense counsel, and the court-martial to “obtain
    witnesses and other evidence in accordance with such regulations as the
    President may prescribe”) (emphasis added); Military Rule of Evidence
    614 (A military judge may “interrogate witnesses, whether called by the
    military judge, the members, or a party.”). Of course, such questioning
    should not be conducted in a manner that causes the military judge to
    appear partisan in the case. Acosta, 49 M.J. at 17. “It is the tenor of
    the military judge’s questions, rather than their sheer number, that is a
    significant factor in determining whether the judge abandoned [her]
    impartial role.” United States v. Johnson, 36 M.J. 862, 867 (A.C.M.R.
    1993) (citing United States v. Shackelford, 2 M.J. 17, 19 (C.M.A.
    1976)).

           During the trial, the testimony elicited during direct and cross-
    examinations was, at times, unclear or incomplete. The military judge
    evenly elicited clarifying facts from witnesses called by both the
    government and the defense to ensure that she, as the fact finder,
    understood the facts of the case. A military judge “can and sometimes
    must ask questions in order to clear up uncertainties in the evidence or to
    develop the facts further.” Ramos, 42 M.J. at 396 (citations omitted).
    The military judge in this case did nothing more than this. Overall, we
    find the military judge maintained her “fulcrum position of impartiality”
    and her questions of the witnesses, including appellant, “did not suggest
    any judicial preference or belief.” Acosta, 49 M.J. at 18.

           Moreover, trial defense counsel never objected to any of the
    military judge’s questions; he neither requested that the military judge



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LYON—20090792

    recuse herself, nor did he request a mistrial. At no point during the
    trial did trial defense counsel make any comment or complaint as to the
    military judge’s tone or treatment of the parties. Significantly, after
    the military judge finished her questioning of appellant, trial defense
    counsel rested his case without an attempt to rehabilitate his client.
    Even if the defense failure to object at trial was a strategic attempt to
    avoid further perceived ire from the military judge, we note that trial
    defense counsel also failed to challenge the impartiality of the military
    judge in his post-trial clemency matters. We will infer from this lack
    of complaint that the defense believed the military judge remained
    impartial at trial. Burton, 52 M.J. at 226 (citing Hill, 45 M.J. at 249).

           Appellant also alleges the military judge treated trial defense
    counsel with “disdain.” We disagree. The military judge was equally
    abrupt with both trial and defense counsel. For example, at one point
    in the trial, the military judge sharply told trial counsel “you are not
    getting these documents in” as counsel was attempting to offer some
    counseling statements during sentencing. Further, several of
    appellant’s examples of purported “disdain” toward the defense team
    were simply rulings adverse to the defense. In addition, appellant
    complains that when trial defense counsel called appellant to the stand,
    the military judge stated “so you really don’t want to do that,” as if to
    suggest counsel was a “fool.” This is a mischaracterization of the
    military judge’s words. When viewed in context, we find that the
    military judge was trying to accommodate the defense by allowing a
    recess to avoid calling appellant out of order when the first defense
    witness was not present in the courtroom. The full exchange is as
    follows:

          MJ: Fine. Do you have another witness you can call, in
          the meantime?

          DC: The---Private Lyon, Your Honor.

          MJ: So you really don’t want to do that?
                (Pause.)

          MJ: Well, I mean, it’s up----

          DC: We’d rather wait.

          MJ: ---it’s up to you. Do you want to take a recess and
              wait for this guy? I mean----




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LYON—20090792

             DC: Yes, ma’am.

             MJ: All right. Fine. He works on post. Right?

             ATC: Yes, Your Honor, he does.

             MJ: Okay. Well, let’s try to get him here, as soon as
             possible.

             ATC: Yes, ma’am.

             MJ: All right. Court’s in recess.

      Abrupt comments from a military judge do not necessarily impact the
      fairness of the trial, especially when they are intended to exercise
      control over the proceedings. See United States v. Reynolds, 24 M.J.
      261, 264 (C.M.A. 1987). See also Foster, 64 M.J. at 339.

              We are satisfied that “taken as a whole in the context of this
      trial,” the military judge’s actions did not “raise substantial doubt” as
      to the court-martial’s “legality, fairness, and impartiality.” Reynolds,
      24 M.J at 265. We are also satisfied that a reasonable person viewing
      the trial would not have had any doubts about the fairness of the trial.
      Ramos, 42 M.J. at 396. *

                                     Fosler Issue

       We have also considered and find, in light of our superior court’s decision in
Fosler, that the Article 134, UCMJ, charge and its specification are not so defective
as to warrant dismissal in this case. Although appellant contested his guilt, he did
not object to the language of The Specification of Charge IV, which specification
did not expressly allege the terminal elements of wrongful wearing of an
unauthorized insignia, decoration, badge, ribbon, device, or lapel button. “[A]
charge and specification challenged for the first time on appeal is liberally construed

*
  We also disagree with appellant’s misplaced assertion that the military judge “felt
the need to justify her holding” by announcing an “unreasonable,” “unsupported by
the record,” and “unnecessary” special finding of fact. After announcing her
findings, the military judge quite properly noted that she found the government had
disproved appellant’s affirmative defense beyond a reasonable doubt. See UCMJ art.
120(t)(16). This special finding is especially helpful to this court in light of the
recent decisions by the Court of Appeals for the Armed Forces in United States v.
Prather, 69 M.J. 338 (C.A.A.F. 2011) and United States v. Medina, 69 M.J. 462
(C.A.A.F. 2011).


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LYON—20090792

and will not be held invalid absent a clear showing of substantial prejudice to the
accused-such as a showing that the indictment is so obviously defective that by no
reasonable construction can it be said to charge the offense for which conviction was
had.” United States v. Roberts, 70 M.J. 550, 553 (Army Ct. Crim. App. 2011)
(quoting United States v. Watkins, 21 M.J. 208, 209-210 (C.M.A. 1986)(internal
quotations omitted)); cf. Fosler, 70 M.J. at 230. Facially, the language of The
Specification of Charge IV in this case, combined with the charge, a violation of
Article 134, UCMJ, necessarily implies service-discrediting conduct by alleging
appellant wrongfully wore an unauthorized Ranger tab on his military uniform. This
textual relationship, when liberally construed, establishes that appellant was on
notice of the charge and specification against him and the factual allegations within
the specification, along with the record of trial, sufficiently protect him against
double jeopardy.

                                  CONCLUSION

      On consideration of the entire record, we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings and sentence are AFFIRMED.


                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:



                                      JOANNE P. TETREAULT ELDRIDGE
                                      Deputy
                                       JOANNEClerk of
                                                   P.Court
                                                      TETREAULT




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