          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700098
                         _________________________

                   UNITED STATES OF AMERICA
                            Appellee
                                      v.

                          JOSEPH M. WILSON
                         Midshipman, U.S. Navy
                                Appellant
                         _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judges: Commander Robert P. Monahan, Jr., JAGC, USN
  (arraignment); Captain Charles N. Purnell, JAGC, USN (trial).
            For Appellant: William E. Cassara, Esquire;
            Lieutenant Doug R. Ottenwess, JAGC, USN.
 For Appellee: Lieutenant Allyson L. Breech, JAGC, USN; Lieuten-
                ant Megan P. Marinos, JAGC, USN.
                      _________________________

                       Decided 20 September 2018
                        _________________________

  Before W OODARD , F ULTON , and J ONES , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                      _________________________

   JONES, Senior Judge:
    A panel of officers sitting as a general court-martial convicted the appel-
lant, contrary to his pleas, of sexual assault, in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012). The panel
sentenced the appellant to 30 months’ confinement, forfeiture of all pay and
allowances, and a dismissal. The convening authority approved the adjudged
sentence and, except for the dismissal, ordered it executed.
                        United States v. Wilson, No. 201700098


    The appellant asserts four assignments of error (AOE): (1) the evidence is
factually insufficient; (2) the appellant’s due process right to notice was
violated; (3) the military judge erred by admitting uncharged acts of sexual
misconduct; and (4) the military judge abused his discretion by granting a
challenge for cause of a court member. We disagree and, finding no error
materially prejudicial to the substantial rights of the appellant, affirm the
findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
    The appellant and MH were midshipmen at the United States Naval
Academy. On 3 and 5 June 2015, they practiced ju-jitsu together at the
Academy’s fieldhouse, with the appellant assuming the role of teacher. At the
first session they were accompanied by MH’s roommate, and nothing sexual
occurred between MH and the appellant. But on 5 June 2015, the two were
alone in the fieldhouse and their practice session turned sexual when the
appellant began rubbing MH’s vagina over her clothes. MH permitted this,
but twice moved away from the appellant when he tried to remove her shorts.
MH explained to the appellant that she was a victim of a past sexual assault
and needed an emotional connection before she could have sex with someone.
The appellant acknowledged her concerns and stopped his sexual advances.
    When the practice session ended, the two went to dinner together and
then to the appellant’s room to watch a science video. At some point, the
appellant placed his hand on MH’s leg, and then on her vagina, over her
clothes. MH did not object to these actions. The appellant then placed his
hands on MH’s hips and guided her to a standing position. He pulled MH’s
pants and underwear down, pulled his own pants down, and pressed MH
against the desk, with her buttocks touching the desk. The appellant then
penetrated MH’s vulva with his penis. MH responded by pushing the appel-
lant off of her and pulling up her underwear and pants.
    MH then reminded the appellant—in more explicit terms—of her prior
sexual assault and that she did not want to have sex with him. She told him
she “fe[lt] like an object” because she was not “having an intimate connection”
with him. 1 MH told the appellant that she needed to feel in control to engage
in sexual activity, and that having sex with him on the desk failed to give her
that control. In response, the appellant suggested that if he sat on a chair
and she straddled him, she would be in control. In an attempt to “remain
close with him,” MH agreed to engage in further sexual activity on the chair.
She removed one leg from her pants and underwear and mounted the appel-
lant, who was seated on the chair. 2 But as the appellant began thrusting

   1   Record at 459.
   2   Id. at 461.


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                      United States v. Wilson, No. 201700098


inside of her, she felt more and more uncomfortable with the situation, and
abruptly stopped the coitus by lifting herself off of the appellant. At trial, MH
described how she told the appellant again that she did not want to have sex
with him.
         At this point my emotions were really high, and I told him that
         I didn’t want to be f****d because I felt as though . . . I still
         wasn’t getting that . . . intimate connection, and it still felt like
         I was just there to please him, and it was not how I wanted it
         to go. 3
    Before MH could put her pants back on, however, the two heard the ap-
pellant’s roommate entering the adjoining room. As having a member of the
opposite sex in the room with the door closed was prohibited in the barracks,
they attempted to conceal their activity. The appellant guided MH onto his
desk, which was directly underneath his elevated bed, and placed a backpack
in front of her so she would not be discovered. While the appellant distracted
his roommate in the bathroom, the appellant motioned for MH to climb from
the desk up into his bed where she was concealed behind the privacy curtain.
She was still naked from the waist down.
    After a few moments, the roommate departed. The appellant then climbed
into the bed, joining MH. When he did so, MH moved from lying on her
stomach to lying on her back. When the appellant placed his hand on her leg,
she responded by telling him “just hold me.” 4 The appellant replied “okay.” 5
She then turned onto her right side so she was facing the wall and her back
was up against the appellant’s chest. MH testified that the appellant held her
for only a “matter of seconds” 6 before rolling her onto her stomach and plac-
ing his weight on top of her. She testified that the appellant said nothing, but
placed his knees between her legs and forcibly spread them apart. He then
reached underneath MH, briefly rubbed her vagina with his hand, and then
penetrated MH’s vulva with his penis. MH testified that she completely froze;
she did not say or do anything in response. After a few moments, MH asked
the appellant to get a condom. MH testified that she asked the appellant to
get a condom because just saying no, as she had done before, was not working
and she could not think of anything “that would make him care.” 7 When the
appellant left to get the condom, MH testified that although she wanted to


   3   Id.
   4   Id. at 465.
   5   Id.
   6   Id. at 466.
   7   Id. at 468.


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                      United States v. Wilson, No. 201700098


leave, she could not move. As she explained, “it was as if all of [her] limbs
were against her, and they wouldn’t—wouldn’t let [her] leave.” 8 MH testified
that when the appellant returned to the bed with the condom and once again
penetrated her vulva with his penis, she clenched her fist and expressed to
him, “you don’t have to do this.” 9 Again, she related the appellant said noth-
ing, but continued to penetrate her from behind until he ejaculated. The
appellant was charged only with sexually assaulting MH in his bed.
   Additional facts necessary to resolution of the AOEs are included below.
                                   II. DISCUSSION
A. Factual sufficiency
    1. The law
    The appellant asserts the sexual assault conviction is factually insuffi-
cient. 10 Specifically, the appellant argues that the government failed to prove
beyond a reasonable doubt that MH did not consent to the sexual act in the
appellant’s bed. Alternatively, he avers that the government failed to prove
beyond a reasonable doubt that he did not honestly and reasonably believe
that she had consented.
    We review questions of factual sufficiency de novo. Art 66(c), UCMJ; Unit-
ed States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 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, [this
court is] convinced of appellant’s guilt beyond a reasonable doubt.” United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal quota-
tion marks, and emphasis omitted). In conducting this unique appellate
function, 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. Proof beyond a reasonable doubt does not mean, however, that the

    8   Id.
    9   Id. at 469.
    10 Although the appellant does not challenge the legal sufficiency of the abusive
sexual contact convictions, we are mindful that Article 66(c), UCMJ, requires this
court “to conduct a de novo review of [both the] legal and factual sufficiency of the
case.” Washington, 57 M.J. at 399 (citation omitted). “The test for legal sufficiency is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Robinson, 77 M.J. 294, 297-98, (C.A.A.F. 2018)
(quoting United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). We find the
evidence legally sufficient.


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                        United States v. Wilson, No. 201700098


evidence must be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N-M. Ct. Crim. App. 2001).
   The appellant was charged and convicted of sexual assault in violation of
Article 120(b)(1)(B), UCMJ. To convict the appellant, the government was
required to prove the following elements:
   (1) That the accused committed a sexual act upon MH by causing penetra-
   tion, however slight, of [her] vulva . . . by [his] penis;
   (2) That the accused did so by causing bodily harm to MH; 11 and
   (3) That the accused did so without the consent of MH. 12
    Bodily harm “means any offensive touching of another, however slight,
including any nonconsensual sexual act[.]” 13 In this case, the bodily harm
alleged was “penetrating her vulva with his penis.” 14 “When the same physi-
cal act is alleged as both the actus reus and the bodily harm for the charged
sexual assault, the government must prove lack of consent as an element.” 15
In other words, the government must prove beyond a reasonable doubt that
MH did not consent to the physical act. 16
          The term “consent” means a freely given agreement to the con-
          duct at issue by a competent person. An expression of lack of
          consent through words or conduct means there is no consent.
          Lack of verbal or physical resistance or submission resulting
          from the use of force, threat of force, or placing another person
          in fear does not constitute consent. A current or previous da-
          ting relationship or social or sexual relationship by itself or the
          manner of dress of the person involved with the accused in the
          conduct at issue shall not constitute consent. 17
          Lack of consent may be inferred based on the circumstances of
          the offense. All the surrounding circumstances are to be con-
          sidered in determining whether a person gave consent, or

   11  MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (MCM), Part IV, ¶
45.a.(b)(1)(B).
   12    Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 574 (10 Sep
2014).
   13   MCM, Part IV, ¶ 45.a.(g)(3).
   14   Charge Sheet.
   15   Military Judges’ Benchbook at 575.
   16 United States v. Guin, 75 M.J. 588, 592-93 (N-M. Ct. Crim. App. 2016), rev. de-
nied, 75 M.J. 367 (C.A.A.F. 2016).
   17   MCM, Part IV, ¶ 45.a.(g)(8)(A). See also Military Judges’ Benchbook at 576.


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                         United States v. Wilson, No. 201700098


         whether a person did not resist or ceased to resist only because
         of another person’s actions. 18
    Evidence of a misunderstanding of the circumstances surrounding an of-
fense may give rise to the defense of mistake of fact. “[I]t is a defense to an
offense that the accused held, as a result of ignorance or mistake, an incorrect
belief of the true circumstances such that, if the circumstances were as the
accused believed them, the accused would not be guilty of the offense.” RULE
FOR COURTS-MARTIAL (R.C.M.) 916(j)(1), MANUAL FOR COURTS-MARTIAL
(MCM), UNITED STATES (2012 ed.). The evidence triggering the mistake of
fact defense must show that the accused’s mistake was both honest and
reasonable. United States v. Hibbard, 58 M.J. 71, 72 (C.A.A.F. 2003). Alt-
hough the appellant bears the burden of raising some evidence of a mistake
of fact, the burden remains on the government to prove, beyond a reasonable
doubt, that there was neither consent nor an honest and reasonable mistake
of fact as to consent.
   2. Application of the law to the facts
    We are convinced that MH did not consent to the sexual intercourse in the
appellant’s bed, and that the appellant was not under the mistaken belief
that she consented. It is indisputable that MH engaged in consensual sexual
intercourse with the appellant twice that evening immediately prior to the
charged offense; she ultimately testified that the sex on the desk and in the
chair were both consensual encounters. But it is axiomatic that a woman may
revoke consent to sexual intercourse at any time—even immediately after
initially consenting to it.
    Before 5 June 2015, the appellant and MH had had no romantic or sexual
interactions. From the first sexual encounter at the fieldhouse—when MH
rebuffed the appellant’s repeated efforts to remove her shorts—MH put the
appellant on notice that she was a victim of prior sexual abuse and that she
needed an emotional connection prior to having sex with him. After abruptly
stopping the sexual encounter in the chair, MH told the appellant, “I don’t
want to be f****d.” 19 Then in the bed some moments later, when the appel-
lant touched her leg in an attempt at foreplay, MH reiterated that she did not
want to have sex when she told the appellant to “just hold [her].” 20 The
appellant verbally acknowledged this boundary set by MH when he respond-
ed “okay.” 21 But then, without any verbal or physical warning, the appellant


   18   MCM, Part IV, ¶ 45.a.(g)(8)(C). See also Military Judges’ Benchbook at 576.
   19   Record at 461.
   20   Id. at 465.
   21   Id.


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                       United States v. Wilson, No. 201700098


rolled MH onto her stomach, forcefully spread her legs with his knees, rolled
over onto her, and penetrated her vulva with his penis. In doing so, the
appellant sexually assaulted MH because she had physically and verbally
withdrawn her consent to sexual intercourse in the chair and then again
verbally reiterated that lack of consent before he penetrated her vulva with
his penis in the bed.
    MH testified that during the assault she froze and felt helpless because
all of her previous attempts to communicate her need for intimacy before
engaging in sex had failed. 22 But unlike the two previous sexual encounters
in the room where MH could disengage from the appellant, in the small bed
above the appellant’s desk there was nowhere for her to escape. MH testified
that when she realized that the appellant was going to have sex with her
without her consent, she asked him to use a condom. We do not find that
MH’s request that the appellant get a condom transformed a sexual assault
into a consensual sexual encounter. See United States v. Robinson, No.
200000681, 2003 CCA LEXIS 163 at *10, (N-M. Ct. Crim. App. 30 Jul 2003)
(unpub. op.) (the victim’s request that her assailant use a condom could not
honestly and reasonably be interpreted as consent), rev. denied, 59 M.J. 474
(C.A.A.F. 2004). In fact, when the appellant returned to the bed, MH again
manifested her lack of consent by clenching her fist and telling the appellant
he did not have to do this to her. The appellant again said nothing. He did not
seek clarification of MH’s statement. His only response was to penetrate MH
until he ejaculated. We are convinced that MH made her lack of consent to
the sexual act in the appellant’s bed reasonably manifest, and that she never
freely agreed to the sexual act. In considering all of the surrounding circum-
stances, MH’s expressions of lack of consent through her words and actions
indicate there was no consent.
    We are also convinced beyond a reasonable doubt that the appellant was
not under the mistaken belief that MH consented to the sexual intercourse in
the bed. The appellant knew that MH had just revoked her consent to sexual
intercourse by abruptly stopping the sex in the chair and through the conver-
sation that followed. In the bed, she again reiterated she was not interested
in sex by telling the appellant she only wanted to be held. Finally, when the
appellant returned with a condom, MH told him he did not have to do this to
her. The appellant ignored these three stop signs. Even if we assume that the
appellant had a reasonable mistake of fact that MH consented when he first
penetrated her in the bed, we find that he was not mistaken as to her lack of
consent when he returned with the condom and MH again verbally expressed
her lack of consent. The evidence shows the appellant chose to ignore MH’s
readily discernable, and multiple verbalizations of her lack of consent. Fur-

   22   See generally id. at 467.


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                       United States v. Wilson, No. 201700098


ther, assuming the appellant honestly believed MH consented to his advanc-
es, we find that belief unreasonable.
    Furthermore, the parties’ behavior after the incident supports MH’s claim
that the appellant sexually assaulted her. The appellant demonstrated a
consciousness of guilt in his admissions to MH in an email a few days after
the incident. In responding to MH’s consternation over what had occurred
that night, he conceded, “You’re right, I messed up.” 23 Later, he met with MH
face-to-face in a stairwell and agreed that what had happened should not
have happened. At that meeting, MH gave the appellant a deadline to report
what he had done or else she would report it. The appellant never self-
reported. So, three months after the incident, MH again confronted the
appellant by email regarding her feelings about what the appellant had done
to her. In response, the appellant admitted that “[w]hat happened has been
haunting me as well . . . but . . . I am scared to even talk about something like
that.” 24 These admissions belie the appellant’s mistake of fact claim and
demonstrate his consciousness of guilt.
   The government also called three of MH’s classmates who testified that
MH’s demeanor noticeably changed after the incident and she became more
quiet and withdrawn. They also testified that whereas she had been very
involved in extracurricular activities, she scaled back her participation
dramatically after the incident. This circumstantial evidence is consistent
with MH’s claim that she was sexually assaulted.
    We find no persuasive motive why MH would fabricate the allegation. 25 It
is true that being behind a closed door in a room of a member of the opposite
sex and having sex with a fellow midshipman were against the Academy’s
rules and could have led to disciplinary action against MH. However, until
MH reported the assault, there is no evidence anyone even knew she was in
the appellant’s room, let alone that she had engaged in sexual activity with
him—to include the consensual sexual encounters in the appellant’s room on
the chair and desk. Accordingly, we reject the appellant’s argument that that
MH reported a consensual sexual encounter as a sexual assault to avoid
getting into trouble.
    Finally, we acknowledge there were inconsistencies in MH’s testimony.
But proof beyond a reasonable doubt does not mean that the evidence must
be free from conflict. United States v. Diaz, 61 M.J. 594, 599 (N-M. Ct. Crim.
App. 2005), aff’d, 64 M.J. 176 (C.A.A.F. 2006). Overall, we find the victim’s

   23   Prosecution Exhibit 4 at 1-2.
   24   Id. at 2.
   25 The government also presented unrebutted evidence of MH’s good character for
truthfulness.


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                       United States v. Wilson, No. 201700098


testimony compelling and supported by the circumstantial evidence. After
weighing all the evidence and making allowances for not having personally
observed the witnesses, we are convinced of the appellant’s guilt beyond a
reasonable doubt.
B. Due process right to notice
    The appellant alleges for the first time on appeal that the government vio-
lated his due process right to notice by suggesting throughout the trial that
the sex on the desk was nonconsensual. He avers this resulted in a fatal
variance of the Specification of the Charge. 26 We disagree.
    The appellant did not object at trial to lack of notice or a fatal variance.
Therefore, these issues were forfeited and we review the appellant’s claims
for plain error. United States v. Finch, 64 M.J. 118, 121 (C.A.A.F. 2006); see
also United States v. Ahern, 76 M.J. 194, 197-98 (C.A.A.F. 2017) (distinguish-
ing forfeiture, which is reviewed for plain error, from waiver). On plain error
review, an “[a]ppellant has the burden of establishing (1) error that is
(2) clear or obvious and (3) results in material prejudice to his substantial
rights. The failure to establish any one of the prongs is fatal to a plain error
claim.” United States v. Feliciano, 76 M.J. 237, 240 (C.A.A.F. 2017) (internal
citations omitted). Here, we find no error in the government’s notice and no
fatal variance.
   1. Proper notice
    “The due process principle of fair notice mandates that an accused has a
right to know what offense and under what legal theory he will be convict-
ed. . . .” United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (internal
quotation marks and citation omitted). “[T]he Due Process Clause of the Fifth
Amendment also does not permit convicting an accused of an offense with
which he has not been charged.” United States v. Girouard, 70 M.J. 5, 10
(C.A.A.F. 2011).
   Prior to trial, in a written response to the appellant’s MILITARY RULE OF
EVIDENCE (MIL. R. EVID.) 412, MCM, UNITED STATES (2012 ed.) motion, the
government informed the defense that the basis for the Specification was the
sex in the appellant’s bed. 27 Although the defense never requested a bill of
particulars, they sought government verification that the Specification was




   26 The government had initially charged the appellant with sexual assault for
penetrating MH’s vulva with his finger in the bed, but the specification was later
withdrawn and dismissed prior to trial. See Charge Sheet.
   27   Appellate Exhibit (AE) XI at 3, para. n.


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                         United States v. Wilson, No. 201700098


based only on the sex that occurred in the bed after MH said “just hold me.” 28
On the record, the government “wholeheartedly” agreed this was accurate. 29
    The genesis of this AOE is MH’s conflicting and confusing trial testimony
regarding the sex on the desk. When she first described the incident, she
testified how quickly it had happened and that she did not have time to fully
react until she pushed the appellant away after he penetrated her. 30 During
cross-examination, she disagreed that she had engaged in sex with the
appellant: “we didn’t have sex on the desk; it was just penetrating, and then
he was pushed off, ma’am.” 31 These statements could indicate that she
thought the sex was nonconsensual, and this would be consistent with her
previous statement to the Naval Criminal Investigative Service. 32 However,
in her later testimony on re-direct examination, MH clarified that she did not
initially express a lack of consent to the appellant penetrating her on the
desk. 33 Finally, in re-cross examination, she described the sex on the desk as
consensual, and conceded that she had told the trial counsel and others prior
to trial that it was consensual. 34
    It appears from her testimony that emotionally MH did not want the sex
on the desk to occur, but she did not make her lack of consent reasonably
manifest until she pushed the appellant away after the appellant had already
penetrated her. This explains why the government and the defense agreed
prior to trial that what occurred in the appellant’s bed was the only basis for
the Specification.
   But now the defense alleges that the government impermissibly used the
sexual encounter on the desk to pull a bait-and-switch with regard to what
misconduct formed the basis of the Specification. We disagree. Long before
the trial began, both sides had MH’s NCIS statement and were aware of what
her testimony would be in this regard, and at trial both sides sought to use


   28   Record at 58-59.
   29  Id. at 59. We agree with the government that it is unclear from the record
whether the parties at this time considered the two penetrative acts in the bed as
separate or as one course of conduct. Appellee’s Brief of 17 Jan 2018 at 4, n. 2.
Evidence at trial seemed to distinguish the “hold me” intercourse from the “condom”
intercourse. Regardless, the appellant’s AOE alleges lack of notice and fatal variance
for what occurred on the desk, not in the bed.
   30   Record at 458.
   31   Id. at 499.
   32   Id. at 525.
   33   Id. at 560.
   34   Id. at 526.


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                      United States v. Wilson, No. 201700098


this evidence to their advantage. The government used the episode to support
their contention that the appellant was single-mindedly determined to satisfy
himself sexually, regardless of how many times MH had disengaged from his
earlier sexual forays. The defense—who had won a motion to get the evidence
admitted—used the incident to explain that what occurred in the bed was
just an extenuation of the sexual encounters on the desk and the chair, that
the appellant desisted every time MH made her lack of consent manifest, and
that this event substantially contributed to the appellant’s reasonable mis-
take of fact as to MH’s consent to the sex act in the bed.
    In United States v. Fields, the appellant claimed a lack of notice when the
government presented four different theories of larceny at trial. No.
201100455, 2012 CCA LEXIS 129, at *9 (N-M. Ct. Crim. App. 12 Apr 2012)
(unpub. op.), rev. denied, 71 M.J. 380 (C.A.A.F. 2012). In Fields, we rejected
the appellant’s contention that he lacked notice on what he needed to defend
against. We held that “notice was readily apparent throughout pretrial
discovery and motions litigation. . . . The appellant never requested a bill of
particulars nor raised any objection during or after the [g]overnment’s case.
In addition, he failed to object to the findings instructions and worksheet
crafted by the military judge.” Id. At *10. So, too, here. The defense’s failure
to object to statements by the trial counsel, evidence regarding the sex on the
desk, and the military judge’s instructions—all contradict the appellant’s
recent contention that he was confused as to what to defend against. The
government did not argue that the appellant was guilty of sexually assault-
ing MH on the desk. The appellant had adequate notice. We find no plain
error because the appellant was not misled in any way that prohibited him
from adequately preparing for trial.
   2. Fatal variance
    “A variance between pleadings and proof exists when evidence at trial es-
tablishes the commission of a criminal offense by the accused, but the proof
does not conform strictly with the offense alleged in the charge.” United
States v. Lubasky, 68 M.J. 260, 264 (C.A.A.F. 2010) (citation omitted). A fatal
variance is one “that either deprives the defendant of fair notice of the charg-
es or exposes the defendant to the risk of double jeopardy.”35 Here again we
find no plain error. In so concluding, we utilize the Court of Appeals for the
Armed Forces’ material variance test in our plain error analysis.
   To prevail on a fatal variance claim, an appellant must show that the var-
iance was (1) material and (2) that it substantially prejudiced him. Finch, 64
M.J. at 121. A variance that is “material” is one that substantially changes
the nature of the offense, increases the seriousness of the offense, or increas-

   35   Variance, BLACK’S LAW DICTIONARY (10th ed. 2014).


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                         United States v. Wilson, No. 201700098


es the punishment of the offense. Id. When applying this two-part test, our
superior court has noted that even where there is a variance in fact, the
critical question is one of prejudice. Id. In other words, (1) has the accused
been misled to the extent that he has been unable adequately to prepare for
trial; and (2) is the accused fully protected against another prosecution for
the same offense. Id.
   The appellant fails the first prong because he has not shown that there
was a material variance. In the appellant’s trial, neither the offense nor its
elements changed, nor did the members find by exceptions and substitutions.
Accordingly, there was no increase in the seriousness of the offense or the
authorized punishment for the offense.
    The government’s opening statement and closing arguments, the evidence
produced at trial, and the findings of the members all show that there was no
variance, let alone material variance. In the trial counsel’s opening state-
ment—after reciting the facts of 5 June 2015—he told the members the
appellant was charged with one specification of “sexual assault by bodily
harm for what occurred in the rack 36 that evening, after [MH] told him ‘just
hold me.’” 37 On the merits, the trial counsel only used the incidences on the
desk and in the chair to prove lack of consent in the appellant’s bed and their
surrounding circumstances to prove that any mistake of fact the appellant
may have had as to MH’s consent to the sexual act in the bed was not reason-
able. At no point during the trial did the government attempt to prove that
the appellant was guilty of a sexual assault that occurred on the desk. In fact,
the government was stuck with MH’s conflicting testimony regarding how
she viewed the incident. In the closing arguments, the trial counsel empha-
sized no less than six times that what occurred in the bed was the charged
offense. 38 The trial counsel ended his closing argument by summarizing, “The
accused sexually assaulted [MH] in his rack on 5 June 2015.” 39
    Finally, we reject the appellant’s contention that the verdict exposes him
to double jeopardy because we cannot be sure that the members convicted
him for the occurrence in his bed. In sum, we find no plain error as the
appellant was on fair notice of what he had to defend against and there was
no fatal variance.




   36   “Rack” is a common military term for “bed.”
   37   Record at 428.
   38   Id. at 663, 665-66, 668, 671, 683-84, 687.
   39   Id. at 671.


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                     United States v. Wilson, No. 201700098


C. Admission of MIL. R. EVID. 412 evidence
    The defense filed a pre-trial motion seeking to admit the sexual encoun-
ters on the desk and the chair. 40 The government did not oppose the motion,
and agreed that the interaction between the appellant and MH at the field-
house was also relevant. The military judge granted the motion. During trial,
the government chose to elicit these prior sexual encounters during their
direct examination of MH. Unsurprisingly, the defense did not object, and
they also cross-examined MH on the instances. But now, on appeal, the
appellant asserts that this evidence was inadmissible under MIL. R. EVID.
404(b) and 413. 41 We disagree. We conclude that the military judge did not
err in admitting the evidence, and even if he did, in applying the invited error
doctrine, we conclude that the appellant is precluded from raising this issue
on appeal.
    First, we find the military judge did not err in granting the appellant’s
MIL. R. EVID. 412 motion. This rule provides that “evidence of specific in-
stances of sexual behavior by the alleged victim with respect to the person
accused of the sexual misconduct offered by the accused to prove consent or
by the prosecutions” is admissible. MIL. R. EVID. 412 (b)(1)(B). The sexual
interactions between MH and the appellant at both the fieldhouse and in his
room were highly relevant to show previous consent to sexual activity be-
tween the parties and to raise the appellant’s mistake of fact defense.
   The appellant contends, without citing any authority, that after the mili-
tary judge ruled the MIL. R. EVID. 412 evidence admissible, only the appellant
held the key to introduce that evidence at trial. This is simply not the case.
MIL. R. EVID. 412 is intended to protect the privacy rights of alleged victims of
sexual assaults while ensuring an accused’s right to a constitutionally-sound

    40 See AE V; Record at 27. It appears that at the time the defense filed their mo-
tion, they did not seek admissibility of what occurred at the fieldhouse. The govern-
ment in their response to the motion noted that the specification relating to what had
occurred at the fieldhouse had been dismissed. See n. 26, supra. They conceded that
the interaction at the fieldhouse was admissible under MIL. R. EVID. 412, and as
evidence of a prior inconsistent statement by MH regarding whether the appellant
had penetrated her with his fingers. Regardless, in a motions session, both sides
agreed that all of the prior sexual conduct between MH and the appellant was
admissible. Record at 27.
    41MIL. R. EVID. 404(b)(1) is a rule of exclusion to prevent “evidence of a crime,
wrong, or other act” to be used “to prove a person’s character” and “to show that on a
particular occasion the person acted in accordance with the character.” MIL. R. EVID.
404(b)(1). MIL. R. EVID. 413 is a rule of inclusion which allows a military judge to
“admit evidence that the accused committed any other sexual offense” as defined
“[u]nder the Uniform Code of Military Justice . . . federal or state law.” MIL. R. EVID.
413.


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                         United States v. Wilson, No. 201700098


trial. The rule does not give the government or the defense the exclusive right
to decide if, when, and how to present MIL. R. EVID. 412 evidence. Once the
military judge ruled that all of the sexual contact between the appellant and
MH was admissible, the government was free to address those matters in
their direct examination of MH during their case-in-chief. We reject the
appellant’s contention that the government used the MIL. R. EVID. 412 ruling
as license to impermissibly introduce MIL. R. EVID. 404(b) and 413 evidence.
In reality, both sides wanted this evidence admitted for their own purposes,
and both sides used the evidence in their theories of the case. We also reject
the appellant’s claim that the military judge erred when he failed to give MIL.
R. EVID. 404(b) and 413 instructions to the members for the properly-
admitted MIL. R. EVID. 412 evidence.
    Even assuming the military judge erred, we would still decline to grant
relief based on the invited error doctrine. The propriety of the invited error
doctrine is a question of law we review de novo. United States v. Martin, 75
M.J. 321, 325 (C.A.A.F. 2016). “The invited error doctrine prevents a party
from creating error and then taking advantage of a situation of his own
making on appeal.” Id. (citation and internal quotation marks omitted). Here,
the appellant sought admission of evidence of prior sexual acts between MH
and himself to show consent and mistake of fact. The appellant then used
this evidence at trial. It is difficult to find fault in this commonsense trial
strategy. But the appellant cannot successfully win admissibility of evidence
at trial and then seek to re-characterize that evidence on appeal and argue it
should not have been admitted. We decline to grant relief where the appel-
lant attempts to re-classify what was properly admitted evidence at trial into
inadmissible MIL. R. EVID. 404(b) and 413 evidence on appeal.
D. Granting the government’s challenge of CDR JT
  The appellant avers that the military judge erred in granting the govern-
ment’s challenge of CDR JT for cause. We disagree.
   1. The facts
    During individual voir dire, CDR JT disclosed that she had a good friend,
and fellow Academy graduate, who had previously been falsely accused of
rape. As part of the investigation CDR JT was interviewed by the Naval
Criminal Investigative Service. She felt that the accusation was a personal
attack on her friend. After a lengthy trial, CDR JT’s good friend’s accuser
admitted that she had falsely accused him of rape because she “needed
someone to blame at the time, [and] he just happened to be in the wrong
place at the wrong time.” 42


   42   Record at 211.


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                         United States v. Wilson, No. 201700098


   CDR JT was friends with one of the defense witnesses, CDR DF. They
met years ago when they were on the swim team together for two years at the
Academy. The two had stayed in contact over the years, and CDR DF had
assisted CDR JT navigate the application process to become an instructor at
the Academy. However when asked to define their current relationship, CDR
JT replied, “[j]ust a distant friend.” 43
     Another defense witness, Midshipman W, was then CDR JT’s student at
the Academy. When CDR JT announced to the class her planned absence due
to her being detailed to the court-martial, Midshipman W approached her
and said, “Ma’am, . . . I’m a witness.” 44 When asked by counsel how well she
knew Midshipman W, CDR JT replied, “I know his performance and I know a
little bit of his personality, but just in the classroom.” 45
   Finally, CDR JT revealed that, prior to the court-martial, she had heard
rumors from Academy instructors that a midshipman had fabricated a sexual
harassment charge to justify returning late from liberty.
   The government challenged CDR JT for cause, and the military judge
granted it based on actual bias. The military judge gave three reasons for the
grant. First, observing CDR JT’s demeanor in court when she answered
questions regarding her officer friend who had been falsely accused of rape,
the military judge noted that CDR JT appeared
         in terms of her tone and her attitude irritated about the false
         allegation against her friend, and seemed somewhat firm and
         annoyed, I guess, that it had even been made, . . . I think that
         experience may have created some bias against sexual assault
         allegations on the part of [CDR JT]. 46
    Second, the military judge cited the relationship between CDR JT and
two of the defense witnesses. The military judge found that the member’s
close association on the swim team with CDR DF and CDR DF’s assistance
with CDR JT obtaining a teaching position created actual bias. With respect
to Midshipmen W, the military judge felt that CDR JT’s relationship with
him as his teacher would have the “potential to taint [CDR JT’s] evaluation of
the evidence.” 47



   43   Id. at 216.
   44   Id. at 220.
   45   Id. at 218.
   46   Id. at 401-02.
   47   Id.


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                         United States v. Wilson, No. 201700098


   Third, the military judge was concerned with CDR JT’s knowledge of ru-
mors at the Academy that possibly implicated the appellant’s case. The
military judge explained that
         Another very important factor . . . is that [CDR JT] was aware
         of a rumor concerning this case[] . . . it’s something that she
         knows about and associates with this case, and could introduce
         an alternative explanation that’s outside the scope of facts, and
         so I believe that because she was considering it as potential in
         this case, I don’t know how we cure that taint. 48
   2. Application of the law to the facts
    R.C.M. 912(f)(1) states a “member shall be excused for cause whenever it
appears that the member . . . [s]hould not sit . . . in the interest of having
the court-martial free from substantial doubt as to legality, fairness, and
impartiality.” This rule encompasses both demonstrations of actual bias and
implied bias. United States v. Warden, 51 M.J. 78, 81 (C.A.A.F. 1999). “A
military judge’s determinations on the issue of member bias, actual or im-
plied, are based on the totality of the circumstances particular to a case.”
United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (citation and internal
quotation marks omitted). “The burden of establishing that grounds for a
challenge exist is upon the party making the challenge.” R.C.M. 912(f)(3).
Actual bias exists when a member’s bias “is such that it will not yield to the
evidence presented and the judge’s instructions. Actual bias is reviewed
subjectively, through the eyes of the military judge or the court members.”
Warden, 51 M.J. at 81 (citations and internal quotation marks omitted).
    Generally, military appellate courts have addressed challenges for cause
when those challenges made by the accused at trial have been denied by the
military judge. United States v. James, 61 M.J. 132, 138 (C.A.A.F. 2005). In
the context of challenges brought by the accused, military judges must
liberally grant challenges for cause. Id. at 139. However, given the convening
authority’s broad power to appoint court members, the “liberal grant” policy
does not apply to ruling on the government’s challenges for cause. Id. Never-
theless, in evaluating on appeal a military judge’s ruling on a government
challenge for cause, it is “appropriate to recognize the military judge’s superi-
or position to evaluate the demeanor of court members. A military judge’s
ruling on a challenge for cause [in favor of the government] will therefore not
be reversed absent a clear abuse of discretion.” Id. at 138.
    The abuse of discretion standard calls for more than a mere difference of
opinion; the challenged action must be arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous. United States v. Baker, 70 M.J. 283, 287 (C.A.A.F.

   48   Id. at 400-01.


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                   United States v. Wilson, No. 201700098


2011). Importantly, a military judge receives latitude on his factual determi-
nations of actual bias because he personally observed the member’s demean-
or. United States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006). However, “[a]n
abuse of discretion has occurred ‘if the military judge’s findings of fact are
clearly erroneous or if the decision is influenced by an erroneous view of the
law.’” United States v. Dockery, 76 M.J. 91, 96, (C.A.A.F. 2017) (quoting
United States v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006) (citation omit-
ted)).
    Applying the abuse of discretion standard for actual bias and giving the
military judge’s ruling “great deference,” United States v. Miles, 58 M.J. 192,
195 (C.A.A.F. 2003), we conclude the military judge did not err in granting
the challenge for cause of CDR JT for actual bias. His ruling was not arbi-
trary, fanciful, clearly unreasonable, or clearly erroneous. Baker, 70 M.J. at
287. We concur that there was ample evidence to support the military judge’s
conclusion of CDR JT’s actual bias. We agree with the military judge that
CDR JT’s observable irritation regarding her close friend’s false rape allega-
tion is evidence of actual bias against persons alleging sexual assault. We
find this alone is reason enough to remove the member from the panel.
Furthermore, CDR JT’s relationships with two defense witnesses, and her
knowledge of rumors that the military judge felt she may confuse with the
facts of the case further support her removal from the panel. We conclude the
cumulative effect of CDR JT’s answers and demeanor established actual bias.
Under all the circumstances, allowing CDR JT to remain on the appellant’s
panel would have created substantial doubt as to the legality, fairness, and
impartiality of the court-martial.
    Even assuming, arguendo, there was an abuse of discretion, the appellant
would need to demonstrate that he suffered actual prejudice from CDR JT’s
exclusion from the panel. See United States v. Dockery, 76 M.J. 91, 97-98
(C.A.A.F. 2017). The appellant argues that he was prejudiced because the
number of persons on the panel was impermissibly reduced by the granted
challenge for cause of CDR JT, and because the government failed to state a
gender-neutral basis for excluding CDR JT. We summarily reject both argu-
ments. See United States v. Newsom, 29 M.J. 17, 21 (C.M.A. 1989) (rejecting
the notion that a different mix of members would have produced more favor-
able results for the appellant); United States v. Elliott, 89 F.3d 1360, 1364-65
(8th Cir. 1996) (Batson v. Kentucky, 476 U.S. 79, 89 (1986) applies only to
peremptory challenges, not challenges for cause). The appellant fails to show
any actual prejudice. This AOE is without merit.
                              III. CONCLUSION
   The findings and the sentence as approved by the CA are affirmed.
   Chief Judge WOODARD concurs.


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                        United States v. Wilson, No. 201700098




   Senior Judge FULTON, dissenting:
   The record does not convince me beyond a reasonable doubt that MH did
not consent to sex, or that the appellant did not reasonably think that MH
consented. I would disapprove the findings.
      The record shows that MH, a first class midshipman at the United States
Naval Academy, was an unreliable relator of relevant facts. MH originally
told NCIS that the appellant had sexually assaulted her in the fieldhouse by
penetrating her vagina with his finger. At trial, she said that the appellant
touched her over her shorts while they were practicing ju-jitsu, and that she
consented to this. (“[T]hat was fine for a second. I was prepared to do that
. . .”). 1
   MH was also inconsistent about whether the sex on the desk was consen-
sual. She acknowledged telling NCIS that the sex on the desk was noncon-
sensual. But she also acknowledged telling trial counsel, in the presence of
two others, that the sex on the desk was consensual:
            Defense counsel: And you told the group that sex on the
         desk was consensual.
             MH: I believe so, ma’am.
             DC: So you told NCIS that it was nonconsensual.
             MH: Yes, ma’am.
             DC: But you testified in court that it was consensual.
             MH: Yes, ma’am. 2
    Even where MH’s testimony was consistent, it tended to show ambiva-
lence about engaging in sex with the appellant. MH was uncomfortable while
having sex on the desk, so she pushed the appellant away. The two discussed
her discomfort. Part of MH’s discomfort stemmed from her feeling that she
and the appellant were not having “an intimate connection.” 3 She also said
that she “didn’t have any control of the situation.” 4 The appellant’s suggested
solution was to have sex with MH on top. The appellant sat in a chair, and
MH straddled the him. After having sex in this position for a while MH
decided that she was still uncomfortable and got off the appellant. This sex


   1   Record at 449.
   2   Id. at 526.
   3   Id. at 459.
   4   Id.


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                     United States v. Wilson, No. 201700098


was indisputably consensual, and the appellant stopped having sex with her
when she indicated that she no longer consented.
    After the appellant’s roommate left, the appellant joined MH, who was
already in his bed. The appellant put MH’s clothes in the bed, but MH did not
get dressed. Instead, she asked the appellant to hold her. MH was nude from
the waist down, except for socks. The appellant held her for a while and then
began to have sex with MH. MH did not express her lack of consent.
    The reason MH gave for not saying no was that she had already made it
clear that she did not want to have sex, but that “[a]t this point, it didn’t
seem like what [she] said mattered.” 5 But she had in fact expressed her lack
of consent twice mid-coitus in the moments leading up to the offense. On both
occasions the appellant stopped having sex with her.
      The majority gives considerable weight to the fact that MH told the appel-
lant that she wanted an emotional connection with a partner before she had
sex with him—that she “didn’t want to be f****d because [she] felt as though
. . . [she] still wasn’t getting . . . that intimate connection . . . .”6 True, MH
said that she wanted more from a sexual relationship than feeling “like [she]
was just there to please him . . . [.]” 7 In my view the majority’s reliance on
this evidence confuses what MH wanted with what she consented to: MH
wanted an emotional connection with a prospective sexual partner. But she
consented—at least once and perhaps twice—to sex with the appellant in the
moments leading up to the alleged offense. It is not unreasonable to suppose
that she consented a second or third time while she lay naked with the
appellant in his bed. Nor is it unreasonable to think that the appellant would
have thought that she was consenting again, particularly since MH had
proved capable of refusing sex in a way he understood.
   Because the record leaves me unconvinced that MH did not consent to sex
with the appellant, or that the appellant did not reasonably believe that she
consented, I would find disapprove the findings. I respectfully dissent.

                                     FOR THE COURT




                                     RODGER A. DREW, JR.
                                     Clerk of Court

   5   Id. at 549.
   6   Id. at 461.
   7   Id.


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