UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           TOZZI, CAMPANELLA, and WOLFE
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Specialist CHRISTOPHER B. HINES
                          United States Army, Appellant

                                   ARMY 20131049

                      Headquarters, III Corps and Fort Hood
                         Gregory A. Gross, Military Judge
           Colonel Richard W. Rousseau, Staff Judge Advocate (pretrial)
              Colonel Ian G. Corey, Staff Judge Advocate (post-trial)

For Appellant: Captain Jennifer K. Beerman, JA; Frank J. Spinner, Esquire (on
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien, JA (on brief).


                                      27 July 2016

                              -----------------------------------
                                OPINION OF THE COURT
                              -----------------------------------

WOLFE, Judge:

      A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of aggravated sexual assault and
one specification of abusive sexual contact, in violation of Article 120, [hereinafter
UCMJ], 10 U.S.C. § 920 (2006 & Supp. IV 2011). 1 The court-martial sentenced
appellant to be dishonorably discharged from the Army, to be confined for fifteen



1
 As discussed below, the court-martial returned findings of guilty to two
specifications of aggravated sexual assault and two specifications of abusive sexual
contact. After findings, the military judge granted a defense motion to dismiss two
specifications as unreasonably multiplied. See United States v. Quiroz, 55 M.J. 334
(C.A.A.F. 2001).
HINES—ARMY 20131049

years, and to be reduced to the grade of E-1. The convening authority approved the
sentence as adjudged.

         This case is before us pursuant to Article 66(b), UCMJ. Appellant raises four
assignments of error, three of which merit discussion, and one of which merits
relief. 2 Appellant alleges the military judge erred in denying the defense challenge
for cause. This requires a detailed discussion, even though we determine no relief is
warranted. We also determine the military judge did not err in deciding not to give a
mistake of fact instruction as to consent. Lastly, we grant appellant sentencing
relief because of the unreasonable post-trial delay in this case.

                                  BACKGROUND

                                A. Evidence at Trial

       Private First Class (PFC) JJ testified that she and Specialist (SPC) Garcia, a
female friend, attended a “house party” in Killeen, Texas, just outside of Fort Hood.
Appellant was also at the party. While PFC JJ was familiar with appellant, and had
“friended” him on Facebook, she stated they had never “spoke[n] on a personal
level, it was just an, I’ve seen you before [sic].”

        At the party, PFC JJ had at least three “triple shot” alcoholic drinks. She
testified it was the first time she drank alcohol in any quantity. During party, PFC
JJ did not dance, drink, or spend time with appellant.

      Well into the night, local police disrupted the party. Hearing of the police
presence, SPC Garcia and PFC JJ were concerned. They were too drunk to drive
home and PFC JJ was not old enough to drink alcohol legally. They decided to go to
one of the bedrooms, where they got in bed and quickly both fell asleep.

      Specialist Garcia testified that her next memory was of appellant grabbing her
leg and climbing into bed with the two women. She testified that she left the
bedroom when she heard moaning coming from PFC JJ.

      Private First Class JJ testified that her next memory was waking up to
appellant rubbing her buttocks. She recalled SPC Garcia then leaving the room.
While she admitted that her memory was “poor,” she said her next memory was
appellant’s penis penetrating her. At this point, she said she “froze up” but was able
to murmur the word “stop.” Appellant did not stop. At some point, someone opened
the door letting light into the bedroom. The light allowed PFC JJ to identify


2
  Appellant’s first assignment of error asserted the evidence was both factually and
legally insufficient to support the court-martial’s findings. After reviewing the
record, we disagree.
                                          2
HINES—ARMY 20131049

appellant as the person on top of her. She testified that she did not know who her
assailant was prior to this. When appellant later got off of PFC JJ, she identified
him a second time as he opened the door to leave the room.

       The next morning, after leaving the party, and while driving in a car, PFC JJ
told SPC Garcia and another soldier she had been “raped.” None of them, however,
reported the crime. Later, when a non-commissioned officer questioned her about
changes in her behavior, PFC JJ disclosed the assault.

       At trial, in addition to the testimony of PFC JJ and SPC Garcia, the
government offered into evidence electronic messages sent by appellant. The
morning after the party, appellant asked PFC JJ in a message “Hey.. About last
night. Are you upset with me?” Private First Class JJ responded as follows:

             Yeah that shit wasn’t right at all, dude I was drunk. I was
             asleep on top of that. You knew. What the fuck was
             going through your head. Scratch that I don’t wanna talk
             about it. Just stay away[.]

       The defense theory at trial was that PFC JJ fabricated the assault to avoid the
social stigma of having consensual sexual intercourse with appellant. Specifically,
the defense asserted that PFC JJ was concerned about the person who opened the
door and saw her having sex with appellant. The defense presented SPC Rodriguez
who testified that he was the person who opened the door to the bedroom and briefly
observed appellant and PFC JJ having intercourse and that they “both sounded
pleasurable.” On cross, SPC Rodriguez admitted he was friends with appellant. The
government also confronted SPC Rodriguez with text messages he had sent PFC JJ
calling her a “bitch” and implying that she was going to hell. 3 Appellant did not
testify.

      The panel convicted appellant of all offenses.

                    B. Dismissal of Specifications after Findings

      Appellant was arraigned on two charges of aggravated sexual assault and two
charges of abusive sexual contact. For each type of offense, the government charged
appellant with the alternative theories–that the offense had been committed by
bodily harm and while PFC JJ was substantially incapacitated. During a pretrial


3
 The cross-examination was even more damaging because SPC Rodriguez first
denied sending PFC JJ more than one message. When confronted with the actual
messages, he continued to deny sending them. After a recess where the defense
counsel re-interviewed SPC Rodriguez, he then testified that he had sent the
messages in question.
                                          3
HINES—ARMY 20131049

motions session, the defense moved to dismiss one of each specification as being
unreasonably multiplied. See generally United States v. Quiroz, 55 M.J. 334
(C.A.A.F. 2001). The government agreed the offenses had been charged in the
alternative. See United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014)
(convictions for the same offense cannot stand when offenses were charged in the
alternative). The military judge deferred ruling on the motion until after findings.

       When the panel convicted appellant of all offenses, the military judge
returned to this issue. The government asked the judge to merge the offenses only
for sentencing. The trial counsel reasoned that dismissal could potentially provide
appellant with a windfall if the remaining charges were set aside on appeal because
of a defect that did not apply to the dismissed charges. The military judge initially
stated he “normally” did not dismiss charges or specifications when offenses were
plead in the alternative, and appeared sympathetic to the government’s reasoning.
However, the defense persisted and stated that a “fair trial” did not encompass
preserving “the government’s bets for what may happen on appeal.” The military
judge took the issue under advisement and, when he returned, dismissed the set of
specifications that alleged an “incapacitation” theory of the offenses. 4



4
  Had the military judge dismissed the specifications conditionally, his ruling would
have been consistent with the recommendation offered by Judge Effron in United
States v. Britton, 47 M.J. 195, 203 (C.A.A.F. 1997) (J. Effron concurring). Judge
Effron’s suggestion that appellate courts “conditionally dismiss” specifications when
presented with issues of unreasonable multiplication at trial, clearly applies as well
to military judges. Id. at 203. This court has previously approved the practice of
conditional dismissal. United States v. Woods, 21 M.J. 856, 876 (A.C.M.R. 1986).
The use of conditional dismissals, while not widely practiced, has been approved by
every service court. See United States v. Thomas, 74 M.J. 563, 570 (N.M. Ct. Crim.
App. 2014); United States v. Stanley, 60 M.J. 622, 630 (A.F. Ct. Crim. App. 2004);
United States v. Frazier, 51 M.J. 501 (C.G. Ct. Crim. App. 1999). As Judge Effron
noted, the military judge is best positioned to initially assess the issue and should
make an initial decision as to whether offenses are unreasonably multiplied. This
way, at the trial stage, the accused is relieved of the prejudice of standing convicted
of more offenses than is warranted and the government’s appellate risk is minimized
as the dismissal is conditioned on the remaining specifications surviving appellate
review. This approach is favorable, especially given that not all cases qualify for
review under Article 66(b) or appeal may be waived or withdrawn. (In other words,
a military judge should not assume that a court of criminal appeals will always
address the error on appeal). Nonetheless, when a military judge conditionally
dismisses a specification as unreasonably multiplied, the military judge should
clearly state that the dismissal of the one specification is conditioned on a second
specification surviving appellate review. That way, the intent of the military judge
is clearly stated, and the parties on appeal are fully on notice of the matter.
                                          4
HINES—ARMY 20131049

      Accordingly, appellant was not convicted of any offense under an
incapacitation theory.

                              LAW AND DISCUSSION

                               A. Challenge for Cause

       On appeal, appellant argues that the military judge abused his discretion when
he denied a defense challenge for cause. During the course of voir dire, the defense
asked a series of questions about alcohol and the ability to consent. Several panel
members gave answers that warranted additional inquiry. It is the military judge’s
denial of one of the defense’s challenges that merits discussion.

                              1. The Defense Challenge

      During general voir dire, the defense counsel asked the panel members
“[d]oes any panel member believe that the consumption of any alcohol automatically
renders an individual unable to consent to sexual activity?” Sergeant First Class
(SFC) JS responded affirmatively.

      After the conclusion of general voir dire, the military judge inquired of the
panel as follows:

             Panel members, Colonel [P] stated his understanding of
             the Army policy regarding alcohol and sex and that if
             someone is inebriated they cannot consent to sexual
             activity. And that [SFC JS], you stated that if you have
             any alcohol or if the person has any alcohol, you cannot
             consent to sexual activity. And then Master Sergeant [L],
             you had a little bit different spin on it and it is that you
             simply said that alcohol and sex, they shouldn’t be mixed,
             something like that.

             Let me tell you all this. I will give you the legal
             definition of substantially incapacitated, substantial [sic]
             incapable as charged in this case. Do you all agree to
             follow my instruction on the law in this case?

       Every member agreed to follow the military judge’s instruction. During
individual voir dire, SFC JS was questioned about her initial answer in general voir
dire. In response to both trial and defense counsels’ questions, she agreed that this
belief was a good policy to avoid individuals being taken advantage of. She further
explained that if someone had any alcohol in their system they could not consent to
sexual intercourse. The military judge then had the following colloquy with SFC JS:

                                           5
HINES—ARMY 20131049


         MJ: Okay. And now, that is not the law, that is okay if
         you - - -

         MBR [SFC JS]: Right.

         MJ: - - - - if you - - - if that is your opinion that is okay.

         MBR [SFC JS]: Right.

         MJ: But we need to know that.

         MBR [SFC JS]: Yes.

         MJ: And so, I will tell you the definition of when
         someone is substantially incapacitated or substantially
         incapable of consenting or understanding the nature of the
         actions. Do you agree to follow my instruction on the law
         and not your personal opinions?

         MBR [SFC JS]: Yes, sir.

         MJ: Are you going to have any problem - - - -

         MBR [SFC JS]: No.

         MJ: - - - - at all distinguishing between the two?

         MBR [SFC JS]: No, sir. No.

         MJ: No? Okay. If you are that is okay.

         MBR [SFC JS]: No, I am not.

         MJ: And you get to go home right now.

         MBR [SFC JS]: No. [Member and counsel laugh].

         MJ: That is no problem. All right. But you are sure it
         won’t affect you?

         MBR [SFC JS]: Yes, I can follow your instructions, sir.



                                        6
HINES—ARMY 20131049

       Both counsel then declined the military judge’s invitation to further voir dire
SFC JS. While the military judge granted several defense challenges for cause, he
denied the defense challenge to SFC JS. In denying the defense’s challenge, the
military judge summarized the colloquy he had with SFC JS, specifically noting her
willingness to follow his instructions on the law. The military judge found no actual
bias, and noted that “[e]ven considering the liberal grant mandate and implied bias,
the challenge is denied.”

     The defense exercised their preemptory challenge on a member other than
SFC JS.

                                       2. Law

      Our superior court recently reiterated the standard of review of challenges for
cause based on implied bias:

             “This Court’s standard of review on a challenge for cause
             premised on implied bias is less deferential than abuse of
             discretion, but more deferential than de novo review.”
             United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F.
             2010). Under this standard, “[w]e do not expect record
             dissertations but, rather, a clear signal that the military
             judge applied the right law.” United States v. Downing,
             56 M.J. 419, 422 (C.A.A.F. 2002). Indeed, “where the
             military judge places on the record his analysis and
             application of the law to the facts, deference is surely
             warranted.” Id. As we have previously made clear,
             however, “[w]e will afford a military judge less deference
             if an analysis of the implied bias challenge on the record
             is not provided.” [United States v.] Peters, 74 M.J. [31,]
             [] 34 [(C.A.A.F. 2015)]. In cases where less deference is
             accorded, the analysis logically moves more towards a de
             novo standard of review.
             ...
             Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) sets forth
             the basis for an implied bias challenge. Peters, 74 M.J. at
             34. “The focus of this rule is on the perception or
             appearance of fairness of the military justice system.”
             United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995).
             “While actual bias is reviewed through the eyes of the
             military judge or the court members, implied bias is
             reviewed under an objective standard, viewed through the
             eyes of the public.” United States v. Wiesen, 56 M.J. 172,
             174 (C.A.A.F. 2001). “In reaching a determination of

                                          7
HINES—ARMY 20131049

             whether there is implied bias . . . the totality of the
             circumstances should be considered.” Peters, 74 M.J. at
             34.

United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F. 2016). On the other hand, our
superior court has repeatedly stated that “when there is no actual bias, ‘implied bias
should be invoked rarely.’” United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F.
2000) (citing United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)); see also
Wiesen, 56 M.J. at 174; United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007);
United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004).

                                3. Standard of Review

       As an initial matter, we assess how much deference the military judge’s denial
of the challenge is due. Our superior court has found the degree of deference
depends on the degree to which the military judge places his or her reasoning and
observations on the record. 5 In the present case, while the military judge’s ruling
summarized the relevant evidence and stated he was applying the liberal grant
mandate, he did not include his reasoning when ruling on the challenge.
Accordingly, as in Rogers, “[a]s the military judge did not perform an implied bias
analysis on the record, our review of [his] analysis will move more toward a de novo
standard of review.” Rogers, 75 M.J. at 273.

                4. United States v. Woods and United States v. Rogers

     The issue this case presents is not unfamiliar to courts-martial. When a panel
member holds a view of the law that is incorrect, when should a military judge grant


5
  Although our superior court has never explicitly said so, we understand that an
implied bias analysis is viewed through the eyes of a member of the public watching
the proceedings. That is, the hypothetical member of the public has the same
information as the military judge who is ruling on the challenge. In Woods, the
court specifically stated that “resolving claims of implied bias involves questions of
fact and demeanor, not just law.” United States v. Woods, 74 M.J. 238, 243 n.1
(C.A.A.F. 2015) (emphasis added). In so doing, our superior court appears to have
rejected earlier cases that discarded demeanor evidence. Id. at 242-43. The Woods
opinion, however, makes sense. A stale transcript will not include key information
available to the military judge and a member of the public sitting in the gallery. The
same words, stated with candor, evasion, or hesitation should, on the margin, result
in different results. Were it otherwise, the military judge would have to ignore the
tenor of the members’ answers whether they be to the prejudice of the government or
defense. Nonetheless, if the military judge’s reasoning is based–even in part–on
considerations that will not be reflected in the record, it is incumbent on the military
judge to explicitly state those considerations.
                                           8
HINES—ARMY 20131049

a challenge for cause for implied bias? We find two recent cases by our superior
court to be instructive.

       In United States v. Woods, 74 M.J. 238, 239 (C.A.A.F. 2015) a panel member
in a pretrial questionnaire expressed an opinion that in the military “you are guilty
until proven innocent.” Additionally, it is clear that the panel member not only
thought this to be the correct legal standard, but described this standard as being
“essential” to the military mission. Id. During voir dire, after being told the correct
standard, the member stated she could follow the military judge’s instructions. Id.
at 241. Our superior court quoted the colloquy between the member and the military
judge at length as well as the military judge’s findings. Id. at 241-42.
Notwithstanding the military judge’s detailed assessment of the member’s readiness
to accept the judge’s instructions, our superior court found error. Id. at 244.

       The Woods court, however, explicitly rejected a per se rule “that a panel
member’s mistake as to the proper burden of proof in a criminal trial, without more,
necessarily requires a finding of implied bias.” Id. Rather, consistent with case
law, the court looked at the “totality of the circumstances.” Id. The court then
focused on three considerations that they determined warranted reversal. First, and
relevant to public perceptions of fairness, they noted the convening authority had the
member’s questionnaire for two months prior to detailing the member to the court-
martial. Second, they noted the burdens of proof are “fundamental tenets of U.S.
criminal law that predate[] the founding of the republic.” Id. In other words, the
Woods panel member was not just mistaken about a legal technicality, but expressed
a belief that service-members were deprived of fundamental trial rights. Finally, the
court noted that in the absence of an operational military necessity, the public might
question why the member, who would serve as the highest ranking member of the
panel, was retained. 6 Id. at 245.



6
  We note that our superior court’s reasoning of “operational necessity” could be
understood to sanction a flexible standard for implied bias depending on operational
requirements. That is, what would qualify as implied bias in one case might not
qualify as implied bias in another case if “operational requirements” would
favorably affect the public’s perception of the case. Thus, for example, on the
margin, the military judge might deny a challenge for cause if additional members
could only be obtained at significant expense or delay. We are wary about allowing
a military judge to consider (and the government to introduce) such considerations
when ruling on a member’s fitness. See e.g. United States v. Wilson, ARMY
20130601, 2016 CCA LEXIS 287, at *14-15 (Army. Ct. Crim. App. 5 May 2016)
(“When a military judge considers a defense challenge for cause, the military
judge’s ruling must be based on legal norms, not procedural or practical concerns. . .
. In other words, the umpire must call the pitch as it crosses the plate. A strike is a
strike—no matter what inning; no matter the score.”).
                                           9
HINES—ARMY 20131049

       In Rogers, our superior court addressed a case in which the panel member
expressed a view, obtained from military training, that a person who is too drunk to
form memories is incapable of consenting to sexual intercourse. She further
expressed an improper burden shift to the defense in that they would have to “work
hard to make me believe [that such a person was] able to give consent. . . . That
would have to be proven to me.” 75 M.J. at 272.

       Our superior court found that the military judge erred in denying the
challenge for cause. In doing so, the court focused on several points. First, the
military judge in Rogers never corrected the member’s incorrect view of the law, but
rather “effectively endorsed her erroneous understanding. . . .” Id. at 274-75.
Second, the court focused on the importance of the misunderstanding in relation to
the evidence introduced at trial. Id. at 273. Third, when the members asked for
additional guidance on the definition of “competent” the military judge advised them
to use their “understanding of the common definition of the word.” Id. at 274.
Lastly, although not expressly affecting their reasoning as in Woods, the court noted
the panel member in question was the “senior ranking member” and “president of the
panel.” Id. at 272.

       “Members are not and should not be charged with independent knowledge of
the law.” Woods, 74 M.J. at 244. There is no per se rule that requires a member’s
exclusion because of an initial erroneous view of the law. Id. However, it is equally
clear from Woods that, in some cases, a military judge must grant an implied bias
challenge for cause based on a member’s incorrect view of the law notwithstanding
the member’s candid and credible assertion that they will follow the military judge’s
instructions. In determining an implied bias challenge, we are required to view the
facts through the eyes of an objective member of the public, considering the totality
of the circumstances. Bagstad, 68 M.J. at 462.

       In reviewing our superior court’s decisions in Woods and Rogers, we discern
the following non-exhaustive factors for evaluating the totality of the circumstances
in cases where the military judge has denied an implied bias challenge for cause
based on a member’s erroneous view of the law:

       First, whether there is evidence that the government caused or endorsed the
member’s erroneous view of the law. When the government creates or condones the
member’s misunderstanding of the law an objective member of the public may lose
confidence in the fairness of the proceedings and the selection of the members. In
Rogers the member stated that her erroneous understanding of the law came from
official Coast Guard training. In Woods, the court noted the convening authority at
least had “constructive notice” of the member’s erroneous views for two months
before selecting her as “best qualified” to sit on the panel.



                                         10
HINES—ARMY 20131049

       Second, the degree to which the member’s misunderstanding is on a
fundamental principle of law or instead reflects a mere technical legal
misunderstanding. While panel members are not required to have legal training, a
member’s view of the law may be so out of step with societal norms that an
objective member of the public may question the fitness of the member. In Woods,
the member’s incorrect view of the law was on a “fundamental tenet”—the burden of
proof.

       Third, the degree to which the member’s erroneous view of the law is strongly
held. If a member expresses that a belief is deeply held or is founded on moral
principles, a reasonable member of the public may question whether the member’s
belief will yield to the military judge’s instructions. In Woods, the member believed
it was essential to the military mission that an accused is guilty until proven
innocent. In Rogers , the member likewise expressed that it would be “hard work” to
get her to believe that someone who lacked memory could give consent.

       Fourth, whether the military judge corrected the member’s erroneous view of
the law. If the military judge does not at least tell the member their view of the law
is erroneous, an objective member of the public may lack confidence that the
member applied the correct law in the case. In Rogers, the court held “that CDR K’s
uncorrected misunderstanding of a relevant legal issue would cause an objective
observer to have substantial doubt about the fairness of Rogers’ court-martial
panel.” Rogers, 75 M.J. at 271 (emphasis added).

       Fifth, the importance of the legal issue in question to the case. An erroneous
view of the law is unlikely to undermine public confidence in the court-martial
unless it concerns an issue presented at trial. In Rogers, the court considered the
importance of the evidence introduced, and the defense theory at trial when
evaluating the “totality of the circumstances.” Id. at 273. 7 The court found that


7
  We note our superior court’s review in Rogers of the “totality of the
circumstances” included facts developed after voir dire (e.g. the defense’s theory,
the testimony of the victim, and the member’s question during deliberations). That
is, the Rogers court did not limit the inquiry to the defense’s assertions during voir
dire about what the relevant issues in the case would be or their theory of the
evidence. Thus, it appears that the appellate inquiry into an implied bias challenge
is not limited to the facts in front of the military judge when he or she rules on the
challenge. Or, put differently, we should review how an objective member of the
public would view the panel member’s fitness in light of the entire trial, not merely
the evidence in front of the judge at the time of the challenge.

                                                                       (continued . . . )


                                          11
HINES—ARMY 20131049

whether a victim with no memory of the assault was capable of consenting was “a
fundamental question” in the case. Moreover, the member in Rogers specifically
requested (but did not receive) additional instruction on the definition of
competence. Similarly, in Woods, properly understanding the burden of proof was
obviously critical.

       Lastly, whether the member was the senior member of the panel. When the
senior member of the panel holds an erroneous view of the law an objective member
of the public could reasonably fear that the senior member’s views were more likely
to unduly influence the case. In both Woods and Rogers, it was the president of the
panel who held the erroneous view of the law. In Woods, the Court of Appeals for
the Armed Forces held that “[a]n informed member of the public might well, ask
why, absent any operational military necessity, the military judge retained
Navy Captain Villalobos as the senior member of this five-member panel.” Woods,
74 M.J. at 245 (emphasis added). 8

                                     5. Analysis

        We find this case distinguishable from Woods and Rogers. In evaluating the
totality of the circumstances we assess the case as follows:

       First, there is no evidence in this case that the government caused (or
condoned) SFC JS’s erroneous view of the law. Unlike Rogers, there is no evidence
that her erroneous views of the law were from military training. While we are not
unfamiliar with military training on sexual assault, and nothing in the record


( . . . continued)
In cases with few pretrial motions, a military judge will often have limited
awareness of either side’s theory. (In this case, for example, motions were limited,
and the military judge arraigned the accused and ruled on the few outstanding
motions in the first twenty pages of transcript). While it is obvious on appeal what
were the keys aspects of the case, such clairvoyance is not always available to the
trial judge ruling on the challenge. This predicament can be resolved by requiring
an objecting party to more clearly state the basis of their objection, to include as
necessary, their theory of the case and how they believe the evidence will be
presented. Additionally, this should serve as a further reminder to military judges to
follow the mandate that defense challenges for cause be liberally granted. United
States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 1998).
8
  Of course, the fact that it was a junior member who holds an erroneous view of the
law by no means purges the error. Rather, this merely reflects that the public has
some understanding of military hierarchy and may reasonably fear that an erroneous
view held by the highest ranking individual is more likely to seep into the
deliberative process.
                                         12
HINES—ARMY 20131049

precludes that her erroneous views stem from military training, we must limit
ourselves to the evidence in the record as developed by the parties at trial.

      Next, we consider the degree to which the member’s erroneous view of the
law was technical or represented something more fundamental. We do not expect
any panel member to have a walking-in understanding of when someone is legally
incapable of consenting. Nonetheless, a belief that a person cannot consent after
consuming any alcohol would likely be viewed by the public as objectively
unreasonable. Accordingly, this weighs in favor of finding implied bias.

       Third, there is no evidence that SFC JS’s views on alcohol and consent were
strongly held or would be unyielding to the military judge’s instructions. Instead,
the record indicates that after being informed that her views were incorrect SFC JS
immediately–to the point of interrupting the military judge–agreed that she would
follow the judge’s instructions. In short, the record indicates that SFC JS’s view of
the law, while erroneous, was easily corrected.

       Fourth, unlike in Rogers, the military judge clearly explained to SFC JS that
her understanding of alcohol and consent “is not the law.” Additionally, as this case
was charged under Article 120 (2006 & Supp. IV 2011), the military judge gave the
detailed statutory definitions of when someone is incapable of consent. Unlike
Rogers, here the member was both informed that her initial view of the law was
incorrect, and was specifically instructed on when someone is legally incapable of
consenting.

       Fifth, we consider the importance of the member’s erroneous view of the law
to the case. In this case, appellant was charged with two offenses alleging that the
victim was incapable of consenting due to alcohol consumption. The government
presented evidence and the panel deliberated and returned guilty findings on the
offenses. However, after findings the military judge dismissed both offenses that
alleged the victim was incapacitated. In Rogers, our superior court’s evaluation of
the totality of the circumstances surrounding an implied bias challenge included how
the case was presented as well as a member’s question arising out of deliberations.
Thus, applying Rogers to this case would weigh heavily against appellant as he was
ultimately not convicted of any offense alleging the victim was incapable of
consenting. Nonetheless, we are wary of considering the military judge’s dismissal
of specifications after findings when determining whether the military judge erred in
granting a challenge during voir dire. Accordingly, to the extent that such a
consideration is relevant we will limit it to assessing prejudice.

     Finally, and although we assign it little weight, we note that unlike Rogers
and Woods, SFC JS was the junior member of the panel.



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HINES—ARMY 20131049

       In considering the totality of the circumstances, viewed through the eyes of
the public, an objective analysis does not reveal that the military judge erred in
ensuring that “the court-martial [was] free from substantial doubt as to the legality,
fairness, and impartiality.” R.C.M. 912(f)(1)(N). While SFC JS had an erroneous
understanding of the law, her views were not inflexible. When told that her opinion
was “not the law” there was no expression of surprise or concern. Instead, she
immediately, and without hesitation or reservation, agreed to follow the military
judge’s instructions. Accordingly, we do not find that the military judge erred in
denying the defense challenge for cause.

      Even assuming the military judge erred in denying the defense challenge, we
follow our superior court’s lead in Woods and consider whether appellant was
prejudiced by the error. Woods, 74 M.J. at 245 (assessing prejudice in accordance
with Article 59(a)). In light of the fact that all specifications concerning consent
and alcohol were dismissed before presentencing proceedings, we are convinced
beyond a reasonable doubt that any error was harmless.

                                  B. Mistake of Fact

       Appellant’s second assignment of error asserts that the military judge erred in
determining a mistake of fact as to consent defense was not raised by the evidence.
A military judge has an affirmative duty to instruct on special defenses reasonably
raised by the evidence. R.C.M. 920(e)(3). “The test for determining whether an
affirmative defense of mistake of fact has been raised is whether the record contains
some evidence of an honest and reasonable mistake to which the members could
have attached credit if they had so desired.” United States v. Hibbard, 58 M.J. 71,
75 (C.A.A.F. 2003). Put differently, an instruction on a defense is not required if no
reasonable panel member could find the defense applicable. United States v.
Schumacher, 70 M.J. 387, 389-90 (C.A.A.F. 2011).

       When a defense has more than one element, in order for that defense to be
reasonably raised by the evidence, there must be some evidence as to each separate
element of the defense. As our superior court stated in Schumacher, “the military
judge must answer the legal question of whether there is some evidence upon which
members could reasonably rely to find that each element of the defense has been
established.” Id.

       In the present case we review this issue de novo because the defense
specifically preserved the issue by requesting the instruction. United States v.
Davis, 75 M.J. 537, 542-43 (Army. Ct. Crim. App. 2015). We agree, however, with
the military judge that the defense of mistake of fact was not raised by the evidence.
Here, the only evidence regarding the abusive sexual contact was PFC JJ’s testimony
that she awoke to appellant touching her buttocks, a person with whom she had no
prior romantic or sexual relationship. There is no evidence appellant believed she

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HINES—ARMY 20131049

consented to the touching, or that such a belief was reasonable. Notably, neither at
trial nor on appeal does appellant show what evidence in the record put in issue his
subjective belief that the victim had consented. Likewise, our independent review of
the record finds none. To put the defense of mistake of fact in issue, there must be
some evidence that appellant honestly believed PFC JJ consented to the touching.
Such evidence is often established by appellant testifying as to his own perceptions,
but that is not required. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998).

                                  C. Post-trial delay

       Appellant complains he suffered an undue, nearly year-long post-trial delay.
His court-martial was held on 10 and 11 December 2013. The 381-page record of
trial was authenticated on 2 June 2014, but the staff judge advocate’s
recommendation (SJAR) was not signed until 6 October 2014 and not served until 20
October 2014. On 24 November 2014, the convening authority took action. For this
delay, the government offers no explanation.

       While we find no due process violation under Barker v. Wingo, 407 U.S. 514
(1972), we also find no reasonable explanation for the delay and processing errors in
this case and accordingly provide relief. See United States v. Collazo, 53 M.J. 721,
727 (Army Ct. Crim. App. 2000) (Army Court referring to its Article 66(c), UCMJ,
power when providing relief for the cumulative effect of post-trial delay as well as
post-trial processing errors).

                                   CONCLUSION

       The findings of guilty are AFFIRMED. After considering the entire record,
the court AFFIRMS only so much of the sentence as provides for a dishonorable
discharge, confinement for fourteen years and ten months, and reduction to the grade
of E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the sentence set aside by this decision are ordered restored.
See UCMJ art. 58b(c) and 75(a).

      Senior Judge TOZZI and Senior Judge CAMPANELLA concur.

                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




                                       MALCOLM
                                        MALCOLMH.   H.SQUIRES,
                                                       SQUIRES.JR.
                                                                JR
                                       Clerk of Court
                                        Clerk of Court



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