                UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                                UNITED STATES

                                                          v.

                                Senior Airman TRENTLEE D. MCCLOUR
                                          United States Air Force

                                                    ACM 38704

                                                11 February 2016

              Sentence adjudged 3 July 2014 by GCM convened at Joint Base Pearl
              Harbor-Hickam, Hawaii. Military Judge: Ira Perkins.

              Approved Sentence: Bad-conduct discharge, confinement for 180 days,
              forfeiture of all pay and allowances, and reduction to E-1.

              Appellate Counsel for Appellant: Captain Annie W. Morgan.

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

                                                       Before

                                  TELLER, SANTORO, and ZIMMERMAN
                                        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               This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



SANTORO, Judge:

       Officer and enlisted members sitting as a general court-martial convicted
Appellant, contrary to his plea, of abusive sexual contact in violation of Article 120,
UCMJ, 10 U.S.C. § 920.1 The adjudged and approved sentence was a bad-conduct
discharge, confinement for 180 days, total forfeitures, and reduction to E-1. Appellant
asserts: (1) the evidence is legally and factually insufficient to sustain his conviction, (2)
the military judge erred by denying a challenge for cause, (3) the military judge erred by

1
    Appellant was acquitted of raping the same victim on the same occasion.
not providing appropriate relief after a witness offered what Appellant contends was
“human lie detector” testimony, and (4) the military judge erred by instructing the
members that they must enter a finding of guilty if the government proved its case
beyond a reasonable doubt. We disagree and affirm.

                                       Background

        The victim’s brother, stationed with Appellant at Kunsan AB, Korea, introduced
him “virtually” to the victim, Airman First Class (A1C) BS, while she was assigned to
Joint Base Pearl Harbor-Hickam, Hawaii. Appellant and the victim spoke online and on
the telephone over the following several months in anticipation of Appellant’s upcoming
reassignment to Hickam.

        Appellant arrived at Hickam in March 2013. The friendship continued,
culminating several weeks later in one occasion of consensual sexual intercourse.
Knowing Appellant had a girlfriend, the victim told him that she did not want to engage
in further intimate relations but wanted to remain friends and even entertained the idea of
residing with Appellant and his roommate.

       On 6 May 2013 around 2200 or 2230 hours, the victim and another friend, Senior
Airman (SrA) AJ, drove to Appellant’s residence. Appellant, his roommate, SrA AJ, and
the victim ate pizza; the victim studied for an upcoming military examination; and one or
more of the others settled on the couch to watch television and play video games. At
some point later in the evening, the victim also relocated to the couch. The three other
Airmen consumed varying amounts of alcohol, but the victim did not drink.

       The victim testified that she lay on the couch and pulled a blanket over her.
Appellant approached her and told her she should sleep in his room. She declined, telling
him she did not want to go to his room because the last time she was there they ended up
having intercourse. He suggested once or twice more that she sleep in his bed; she
declined each time.

       She fell asleep but was awakened to Appellant and his roommate’s carrying her
into Appellant’s bedroom. She squirmed, trying to get them to put her down, while
simultaneously laughing and joking with them. They laid her on Appellant’s bed and his
roommate left the room. Appellant remained.

       A1C BS got up to leave the room, but Appellant grabbed her by the waist and
pulled her back, shut the door, and turned off the light. She asked him what he was
doing, and he told her he was going to have sex with her, then grabbed her waist, bent her
over, and pulled her pants and underwear down.




                                             2                                   ACM 38704
       She froze and started to cry. He penetrated her several times in multiple positions
and wrapped his arm around her throat. To create lubrication, Appellant spit on his hand
several times and touched his penis.

      The victim told Appellant that he was hurting her and she needed to go to the
bathroom. He did not stop but responded, “[B]ut baby, don’t you like it? I can hear you
moan.” At this point, she pushed him away, got up off the bed, went into the bathroom,
and shut the door behind her. Appellant opened the door and said he wanted to check on
her.

       A1C BS walked out of the bathroom, picked up her         pants and underwear, and
began to get dressed. Appellant pushed her against the bed      and said, “[W]hat are you
doing? I’m not done yet.” Looking at her clothing, he said,     “[T]his is our underwear,”
then placed the victim’s hands on his penis, saying, “[T]his    is ours too.” She replied,
“[N]o, that’s you and your girlfriend’s.”

       The victim told Appellant she was going to get a drink of water and left the
bedroom. He fell asleep on the bed. She went to the living room, spoke to SrA AJ, went
outside and called her supervisor—but did not talk about what had just occurred—and
then she and SrA AJ left Appellant’s house. On the drive home, the victim told SrA AJ
that Appellant had non-consensual sex with her.

       Additional facts necessary to resolve the assignments of error are included below.

                              Legal and Factual Sufficiency

        Appellant’s attack on the sufficiency of his conviction is four-fold. He argues that
(1) SrA BS was not credible; (2) the Government failed to establish that sexual contact
occurred; (3) the Government failed to prove lack of consent and disprove a reasonable
mistake of fact defense; and (4) even if the alleged contact occurred, the Government
failed to prove that it was done with the intent to gratify sexual desires.

       This court reviews issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency 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.’” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). In applying this test, “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); see also
United States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993).




                                             3                                    ACM 38704
       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 [Appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at
325. 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
term reasonable doubt, however, does not mean that the evidence must be free from
conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). 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 elements of abusive sexual contact in this case are:

       (1) At or near Honolulu, Hawaii, on or about 7 May 2013, Appellant
          committed sexual contact upon A1C BS, to wit: causing A1C BS to
          directly touch his penis;

       (2) That Appellant did so by causing bodily harm to A1C BS, to wit:
          grabbing her hands and placing them on his penis;

       (3) That Appellant did so with the intent to gratify his sexual desires; and

       (4) That Appellant did so without the consent of A1C BS.

       While the members may have perceived a conflict in the evidence with respect to
whether A1C BS consented to the initial interaction in the bedroom, or if she did not,
whether Appellant reasonably believed that she did, we discern no meaningful conflict in
the evidence with regard to the specification of which Appellant was convicted. At the
time Appellant caused A1C BS to touch his penis, the sexual intercourse had concluded
and A1C BS had retreated to the bathroom. Her reaction to his subsequent contact with
her—both according to her testimony and the additional evidence introduced on this
point—is consistent with one who had been assaulted.

        We are similarly unpersuaded by Appellant’s remaining arguments. A1C BS
testified that the contact occurred. Other evidence in the record supports her testimony
on this point. There is ample evidence to support the members’ conclusion that
Appellant did not reasonably believe A1C BS consented to this contact. Finally, we find
no merit in Appellant’s argument that his intent was not to gratify his sexual desires
because his penis was flaccid at the time and he made the self-serving statement that he
was “joking around.”




                                              4                                       ACM 38704
       We have considered the evidence in the light most favorable to the prosecution.
We have also made allowances for not having personally observed the witnesses. Having
paid particular attention to the matters raised by Appellant, we find the evidence legally
sufficient to support his conviction for abusive sexual contact. Moreover we are,
ourselves, convinced of his guilt beyond a reasonable doubt.

                             Denial of Challenge for Cause

       Trial defense counsel challenged Senior Master Sergeant (SMSgt) SG for cause,
arguing that he was impliedly biased because his wife had been sexually assaulted by her
brother 15 years earlier and because he stated, in response to a question, that his
takeaway from Sexual Assault Prevention and Response (SAPR) training was, “[W]e
always listen to the victim. But, I mean, due process is due process.”

        The military judge denied the challenge for cause, finding that the assault of
SMSgt SG’s wife was remote in time and under facts and circumstances different than
those in Appellant’s case. The military judge also noted that SMSgt SG was not a
facilitator of SAPR training (unlike another member whom the military judge did excuse
for cause), and indicated his agreement with the trial counsel’s statement that the context
of SMSgt SG’s comment about “always listen[ing] to the victim” meant that he was
trained to listen to alleged victims, not automatically believe them.

       Appellant elected not to exercise his peremptory challenge against any member of
the panel.

        Appellant has waived appellate review of this issue. Rule for Courts-Martial
(R.C.M.) 912(f)(4) controls this very situation: “When a challenge for cause has been
denied . . . failure by a challenging party to exercise a peremptory challenge against any
member shall constitute waiver of further consideration of the challenge upon later
review.” See also United States v. Medina, 68 M.J. 587, 592 (N.M. Ct. Crim. App. 2009)
(citing R.C.M. 912(f)(4)).

       Even without waiver, we find the military judge did not err in denying the
challenge for cause. Reviewing for actual bias, implied bias, and applying the liberal
grant mandate, there is nothing about SMSgt SG’s answers in voir dire to indicate that
Appellant received anything less than a panel composed of fair and impartial members.
See United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001).

                            “Human Lie Detector” Testimony

       The victim’s direct and cross-examinations addressed aspects of her in-court
testimony that differed in certain respects from her out-of-court statements to friends and
investigators. During its case in chief, the defense offered expert testimony to establish


                                             5                                   ACM 38704
that A1C BS had been diagnosed with post-traumatic stress disorder. The Government
rebutted portions of this testimony by calling its own expert forensic psychologist,
Colonel PC. After establishing his qualifications as an expert, the following dialog
ensued:

            Q.     Now, Colonel [PC], in your opinion, can Post-
                   Traumatic Stress Disorder, maybe we’ll just use PTSD
                   from now on, can that help explain the memory loss
                   that Airman [BS] has described as part of this trial?

            A.     I want to be clear, I have not evaluated her, neither has
                   [the defense expert]. Clinical evaluation[] is the only
                   way to get into the specific weeds on her memory. But
                   Post-Traumatic Stress Disorder, to me, given all the
                   clinical data I have reviewed in her medical records,
                   i[t] absolutely accounts for her memory loss.

            Q.     So, can you explain how it might account for memory
                   loss?

            A.     So, if we go to that criteria, where the inability to
                   recall key aspects of a trauma, is part of PTSD. And
                   again, I emphasize, this is validated through the theory,
                   robust research, and clinical application. But in this
                   case, there’s an aspect in her testimony where she tried
                   to push out some thoughts. And the reality is, I don’t
                   know how well she pushed them out or not. I’ve not
                   done the clinical assessment, but what I do know is
                   this. This is not the first time I’ve heard about patients
                   trying to get thoughts out, particularly thoughts related
                   to trauma that are painful, either psychological or
                   maybe even physically. But there is an absolute
                   attempt to push these thoughts out of their
                   consciousness so that they’re not painful. I’ve seen
                   this again, and again, and again, throughout the years.
                   I do believe in her testimony, and again, I have not
                   assessed her. But I would absolutely want clarity on
                   what she meant by the way she described it, that she
                   pushed out the memory of being choked and that’s
                   why she didn’t recall it during her—




                                           6                                    ACM 38704
Trial defense counsel objected, citing the prohibition against offering human lie detector
testimony, and the military judge immediately convened an Article 39(a), UCMJ, 10
U.S.C. § 839(a) session.

       Outside the members’ presence, the military judge asked Colonel PC what he
meant by the statement, “I do believe her testimony.” Colonel PC responded that he
“grossly misspoke,” and that he intended to say that there were two parts to what he was
about to say next: “Number one, so, the inability to recall key aspects of a traumatic
event, it’s within the diagnostic criteria of PTSD; second, to get clarity. The only way to
get clarity on that challenge is to do a clinical assessment. And that’s it, sir.”

       Defense counsel then sought three specific forms of relief: that the military judge
“strike” Colonel PC’s testimony in its entirety, that his curriculum vitae (CV) be
withdrawn from evidence, and that he not be allowed to testify further. The military
judge granted the defense request to “strike” the testimony at issue but declined to
prohibit the members from considering Colonel PC’s CV. Although the military judge
did not grant the request to prohibit Colonel PC from testifying further, he did restrict
Colonel PC’s subsequent testimony to two issues: whether he believed there was PTSD
involved in the case and, if so, what impact that would have had on the victim’s memory.
Trial defense counsel then made a motion for a mistrial, which was denied.

      When the members returned, the military judge gave the following instruction:

              Members, during the direct examination, the expert had made
              a statement, I do believe in her testimony. I’m asking that
              that question and that response be stricken because an expert
              witness cannot testify to the alleged victim’s account of what
              occurred, whether it’s true or not true. They can’t—the
              expert can’t believe or not believe the alleged victim’s
              account of something. They’re not allowed to go into that.
              . . . You’re not to consider that, at all, in terms of whether
              this witness does or does not believe the victim.

      Prior to deliberations, the military judge gave the following instruction:

              Only you, the members of the court, determine the credibility
              of the witnesses and what the facts of this case are. No expert
              witness can testify that the alleged victim’s account of what
              occurred is true or credible, or not credible, or what the expert
              believes or does not believe the alleged victim or that a sexual
              encounter did or did not occur. To the extent that you
              believed that an expert testified or implied that he does or
              does not believe the alleged victim or that a crime did or did


                                              7                                    ACM 38704
                 not occur, or that the alleged victim is or is not credible, you
                 may not consider this evidence that the alleged victim is or is
                 either not credible. And as I instructed you earlier, you had to
                 strike that testimony, where the expert inadvertently made a
                 comment that sounded like that. Experts are not allowed to
                 testify [to] that. That wasn’t his intention. You must strike
                 that testimony.

       Before us, Appellant asserts the military judge erred in three ways: (1) he abused
his discretion by failing to stop the testimony, (2) he abused his discretion and
exacerbated the error by overruling the defense’s objection to “an additional elicitation of
the testimony,” and (3) he failed to give a proper instruction to ensure that the members
disregarded the testimony. Appellant does not, however, argue that the military judge
erred by denying his motion for a mistrial.

        We review a military judge’s decision to admit evidence for an abuse of
discretion. United States v. Johnson, 46 M.J. 8, 10 (C.A.A.F. 1997). The issue of
whether the members were properly instructed is a question of law, which we review de
novo. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). Although we assume
without deciding that Colonel PC’s testimony that he believed in the victim’s testimony
constituted inadmissible human lie detector testimony, see United States v. Kasper, 58
M.J. 314 (C.A.A.F. 2003),2 we are not persuaded that the military judge’s handling of the
situation constituted error. To the contrary, the military judge stopped the testimony and
issued an immediate curative instruction which he followed with another instruction at
the close of the evidence. This is precisely the judicial response suggested by our
superior court. Id. at 319.

        The military judge stopped Colonel PC’s testimony and convened an immediate
Article 39(a), UCMJ, session as soon as the objection was lodged and while the witness
was still answering the question that elicited the problematic response. When Colonel PC
returned to the stand, and after the military judge instructed the members to disregard
Colonel PC’s earlier inadmissible testimony, the military judge sustained each of defense
counsel’s subsequent objections except one.3 Finally, Appellant does not identify any
error in the military judge’s subsequent instructions that the members must disregard the
inadmissible opinion testimony. Court members are “presumed to follow instructions,

2
  Appellant also asserts that Colonel PC’s testimony that post-traumatic stress disorder (PTSD) “absolutely”
accounted for the victim’s reported memory loss similarly constitutes impermissible human lie detector testimony.
As he did not object to this testimony at trial, we test for plain error. Rule for Courts-Martial 920(f). We are not
persuaded that testimony that PTSD caused a witness’s reported memory loss is human lie detector testimony. See
United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003) (stating that human lie detector testimony is “an opinion
as to whether the person was truthful in making a specific statement regarding a fact at issue in the case”). Because
we cannot conclude that the admission of this testimony constituted plain error, we do not test for prejudice.
3
  The question to which the defense objection was overruled was, “[I]s traumatic amnesia actually a diagnosis in the
DSM-V?”


                                                         8                                              ACM 38704
until demonstrated otherwise.” Washington, 57 M.J. at 403 (citing United States v. Holt,
33 M.J. 400, 408 (C.M.A. 1991)).

                                            Findings Instructions

       Prior to deliberations, the military judge instructed the members as follows with
respect to proof beyond a reasonable doubt:

                  A “reasonable doubt” is a conscientious doubt based upon
                  reason and common sense, and arising from the state of
                  evidence. Some of you may have served as jurors in civil
                  cases, or as members of an administrative board[], where you
                  were told that it is only necessary to prove that a fact is more
                  likely true than not true. In criminal cases, the government’s
                  proof must be more powerful than that. It must be beyond a
                  reasonable doubt. Proof beyond a reasonable doubt is proof
                  that leaves you firmly convinced of the accused’s guilt.
                  There are very few things in this world that we know with
                  absolute certainty, and in criminal cases the law does not
                  require proof that overcomes every possible doubt. If, based
                  on your consideration of the evidence, you are firmly
                  convinced that the accused is guilty of any offense charged,
                  you must find him guilty. If, on the other hand, you think
                  there is a real possibility that the accused is not guilty, you
                  must give him the benefit of the doubt and find him not
                  guilty.

Appellant did not object to this instruction. Appellant now argues that this instruction
violates Supreme Court precedent prohibiting a trial judge from “directing the jury to
come forward with a [guilty verdict], regardless of how overwhelmingly the evidence
may point in that direction.” United States v. Martin Linen Supply Company, 430 U.S.
564, 572–73 (1977).

        We review de novo the military judge’s instructions to ensure that they correctly
address the issues raised by the evidence. United States v. Maynulet, 68 M.J. 374, 376
(C.A.A.F. 2010); United States v. Thomas, 11 M.J. 315, 317 (C.M.A. 1981). Where, as
here, trial defense counsel made no challenge to the instruction now contested on appeal,
the appellant forfeits the objection in the absence of plain error.4 R.C.M. 920(f). If we
find error, we must determine whether the error was harmless beyond a reasonable doubt.
United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011).

4
 Although we recognize that the rule speaks of “waiver,” this is, in fact, forfeiture. United States v. Sousa, 72 M.J.
643, 651–52 (A.F. Ct. Crim. App. 2013).


                                                          9                                              ACM 38704
       The language used by the military judge in Appellant’s case is—and has been for
many years—an accepted reasonable doubt instruction used in Air Force courts-martial.
See, e.g., United States v. Sanchez, 50 M.J. 506, 510–11 (A.F. Ct. Crim. App. 1999). It
was also offered by our superior court as a suggested instruction. See United States v.
Meeks, 41 M.J. 150, 157 n.2 (C.M.A. 1994) (citing Federal Judicial Center, Pattern
Criminal Jury Instruction 17-18 (1987)). Both Sanchez and Meeks were decided after the
authorities cited in Appellant’s brief.

        Based on this legal landscape, we cannot say that the military judge committed
error, plain or otherwise, in his reasonable doubt instruction.

                                     Conclusion

       The 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 sentence are
AFFIRMED.




             FOR THE COURT



             LEAH M. CALAHAN
             Clerk of the Court




                                          10                                 ACM 38704
