UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              HAIGHT, PENLAND, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                            Specialist JOSEPH R. WILSON
                            United States Army, Appellant

                                     ARMY 20130601

                      Headquarters, 7th Infantry Division
                         David L. Conn, Military Judge
        Major Christopher M. Ford, Acting Staff Judge Advocate (pretrial)
  Lieutenant Colonel Michael S. Devine, Staff Judge Advocate (recommendation)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Robyn M. Chatwood, JA (on brief).


                                         5 May 2016
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       A panel with enlisted representation sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of aggravated sexual
assault, one specification of abusive sexual contact, one specification of wrongful
sexual contact, and one specification of forcible sodomy, in violation of Articles 120
and 125, UCMJ [hereinafter UCMJ], 10 U.S.C. §§ 920 and 925 (2006 & Supp. IV
2011). The court-martial sentenced appellant to a dishonorable discharge,
confinement for two years, and reduction to the grade of E-1. The convening
authority approved only twenty-three months of confinement but otherwise approved
the adjudged sentence.
WILSON—ARMY 20130601

       The case is before us for review pursuant to Article 66, UCMJ. Appellant
assigns three errors, one of which merits discussion and relief. 1 Additionally, we
note two additional errors which, although meriting discussion, did not prejudice
appellant and do not warrant relief.


                          DISCUSSION AND ANALYSIS

    A. Legal Sufficiency of Aggravated Sexual Assault and Abusive Sexual Contact

       On 2 December 2011, appellant and several other soldiers, to include
Specialist (SPC) BN, were drinking at a bar outside Joint Base Lewis-McCord.
Specialist BN became heavily intoxicated after consuming several alcoholic drinks.
Eventually, appellant drove SPC BN home while she slept in the car for most of the
drive.

       Once at her apartment, SPC BN got into bed without changing clothes and
asked appellant to sleep on the floor in the living room. Instead, appellant climbed
into bed with her. Initially, this did not bother SPC BN. Shortly thereafter,
however, and while SPC BN was still awake, appellant abruptly pushed his hand
down the back of SPC BN’s pants and digitally penetrated her vagina. She testified
that she “immediately told him to stop” and “pushed his hands away.” Specialist BN
then went to sleep and remained sleeping until she was awoken by a sharp pain when
appellant penetrated her anus with his penis. Specialist BN testified at trial that
appellant’s conduct “bothered” her and that “it was wrong because he never asked
me . . . there was no even [sic] indication that he wanted to be physical with me.”
Specialist BN stated that, although she was “extremely” intoxicated, she had no
issues with memory.

      In his first assignment of error, appellant asserts that Specifications 2 and 3 of
Charge II are legally insufficient as there is no legally competent evidence that SPC
BN was substantially incapacitated at the time of the offense. We agree.



1
 In appellant’s third assignment of error—asserted in a headnote pleading—he
raises the issue of whether there was sufficient corroboration of his admissions
admitted by the government at trial. We find sufficient corroboration. Even
assuming error, given that there was no objection or motion on the lack of
corroboration, any error did not amount to plain error. See United States v.
Semeniuk-Hauser, ARMY 20110976, 2014 CCA LEXIS 220, at *8-9 (Army Ct.
Crim. App. 31 Mar. 2014) (mem. op.). Appellant personally raised two issues
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), neither of which
merits relief.



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       The Supreme Court stated in Jackson v. Virginia that when reviewing for
legal sufficiency of the evidence, “the relevant question” an appellate court must
answer 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.” 443 U.S. 307, 319 (1979); see United States v.
Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011).

       Specifications 2 and 3 of Charge II, respectively, alleged that appellant
penetrated and touched SPC BN’s genital opening while she was “substantially
incapacitated.” 2 Under the law applicable at the time of this offense, as instructed
by the military judge, substantially incapacitated “means that level of mental
impairment which rendered the alleged victim unable to appraise the nature of the
sexual conduct at issue, unable to physically communicate unwillingness to engage
in the sexual conduct, or otherwise unable to make or communicate competent
decisions.” 3

       At trial, SPC BN presented, through her testimony, the only evidence
concerning capacity to consent at the time appellant reached his hands down her
pants. Applying the definition of “substantially incapacitated” to the testimony of
SPC BN requires answering three questions. First, was SPC BN aware of the nature
of the sexual conduct at issue? Specialist BN testified that she knew “immediately”
what was happening to her. Second, was SPC BN able to physically communicate
her unwillingness to engage in the sexual conduct? Specialist BN testified that she
was able to physically communicate her unwillingness and did just that by moving
appellant’s hand away. Third, was SPC BN able to otherwise make and
communicate competent decisions? Specialist BN’s testimony clearly indicates she
was able to make and communicate competent decisions and, in fact, did so by
telling appellant to “stop.” There is no evidence in the record that SPC BN, at the
time of these offenses, was substantially incapacitated. 4 In short, while SPC BN


2
  In his second assigned error, appellant correctly notes that the promulgating order
failed to reflect that the military judge ordered that Specifications 2, 3, and 4 of
Charge II be merged for findings. Our action to dismiss Specifications 2 and 3 of
Charge II renders this issue moot and therefore requires no corrective action on our
part.
3
 See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para.
3-64-6.d. (1 Jan. 2010); Manual for Courts-Martial, United States (2012 ed.),
Punitive Articles Applicable to Sexual Offenses Committed During the Period 1
October 2007 Through 27 June 2012, app. 28, at A28-4.
4
 As we find the evidence legally insufficient, we specifically do not reach the issue
of factual sufficiency.



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WILSON—ARMY 20130601

gave legally sufficient testimony that appellant committed an aggravated sexual
assault by bodily harm when he abruptly penetrated her vagina with his finger, this
was not the theory with which appellant was charged. See United States v. Lubasky,
68 M.J. 260, 261 (C.A.A.F. 2010) (“variance occurs at trial, not the appellate
level”).

                               B. Challenges for Cause

       Although not raised by appellant as an assigned error, we find the conduct of
the military judge during voir dire to be worthy of discussion. We conclude the
military judge erred during the course of voir dire by: a) granting a government
challenge for cause; and b) asking the defense counsel whether they intended to use
a peremptory challenge on an enlisted member before ruling upon a challenge for
cause of an enlisted member.

                          1. Government Challenge for Cause

       After group and individual voir dire, the military judge granted the single
challenge for cause raised by the government and three challenges for cause raised
by the defense. The government’s challenge of Command Sergeant Major (CSM) ER
warrants discussion here.

      During voir dire, CSM ER revealed that about a month prior to appellant’s
court-martial, CSM ER had testified as a character witness for the defense in an
unrelated court-martial.

      The military judge conducted the initial individual voir dire of CSM ER. In
response to the military judge’s questions, CSM ER stated that he could approach
appellant’s case with an open mind, be objective, and that each case is unique.

       The government, during its individual voir dire, queried CSM ER concerning
the allegations for which he provided character evidence. Sergeant Major ER related
that the accused in that case was “his soldier,” and that the charges involved an
alleged sexual assault at his soldier’s residence. He further stated that he knew the
accused in that case “very well” and that the allegations “couldn’t have been true.”
Sergeant Major ER testified for his soldier after being told he was “a key witness
that may affect the outcome of the court-martial.” When asked if he believed there
was any merit to the charges against his soldier, he responded as follows:

             Well, sir, based on my beliefs of the [s]oldier, I find - - I
             found it hard to believe that he would do something like
             that. However, I did understand it could happen. Okay,
             and I didn’t doubt that. But my own feelings, because I
             know the [s]oldier. I had done duty with him for four
             years and he’s probably one of the only specialists in the


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WILSON—ARMY 20130601

             United States Army at that time that had a Top Secret
             clearance to be involved with the Homeland Security and
             the top needs of the Army. So I would tell you I knew the
             [s]oldier like I knew one of my kids. So my own personal
             belief at that time was that I didn’t believe it.

The defense did not conduct an individual voir dire of CSM ER. Although never
directly asked, the totality of CSM ER’s responses during voir dire indicated he
never had first-hand knowledge of the allegations against his soldier.

       Upon completion of the voir dire of the members, the government challenged
CSM ER for cause based on his previous experience as a character witness. The
defense opposed the challenge. In response to a question from the military judge,
the defense acknowledged their case would include a “good soldier defense.”

       The military judge granted the government’s challenge for cause, ruling that
there was a danger that CSM ER would give too much weight to character evidence
and that his objectivity could be reasonably questioned. The military judge
explained his reasoning as follows:

             Well, in light of the fact that [CSM ER] indicated he
             perceived himself to be a key witness as a character
             witness and that he believed that, in his capacity as a
             character witness, that his testimony would affect the
             outcome, that was his perception; and that without specific
             knowledge of the facts, he didn’t believe it happened
             based solely on character. I think there is a significant
             potential that he, the sergeant major, under the
             circumstances, might view character evidence testimony in
             a way that would reasonably call into question his
             objectivity.

The military judge granted the challenge for cause. The government did not
exercise a peremptory challenge as allowed under Article 41(b)(1), UCMJ.

       “We give a military judge great deference [in deciding challenges for cause]
because we recognize that he has observed the demeanor of the participants in the
voir dire and challenge process. Because we give the military judge great deference,
we will overturn his ruling on a challenge only if we find a clear abuse of
discretion.” United States v. White, 36 M.J. 284, 287 (C.M.A. 1993).

      In accordance with White, we give significant weight to a military judge’s
personal evaluation of a member. Whether a challenge is granted will often turn not
so much on the words the member says, but the candor and confidence (or lack
thereof) with which the words are uttered. Here, however, our concern is not the


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WILSON—ARMY 20130601

military judge’s personal assessment of the member’s fitness, but rather that the
military judge had a mistaken view of the law when granting the challenge for cause.

       “Character evidence may itself generate reasonable doubt in the factfinder’s
mind.” United States v. Vandelinder, 20 M.J. 41, 47 (C.M.A. 1985) (citing
Michelson v. United States, 335 U.S. 469 (1948)). Under the rules of evidence in
effect at appellant’s trial, evidence of good military character was admissible to
show the probability of innocence. 5 Id.; see Military Rule of Evidence [hereinafter
Mil. R. Evid.] 404(a)(1). The military judge on the other hand, was concerned that
CSM ER thought someone was not guilty based solely on an evaluation of character.
The military judge also appeared to find a contradiction in that a “key” witness
could be a character witness. The military judge’s reasoning was inconsistent with
the allowable range of weight that character evidence could have been given at that
time.

       Notwithstanding the military judge’s error in granting the challenge for cause
against CSM ER, however, any error was harmless beyond a reasonable doubt. The
exclusion of a qualified member (as would be the case here) is not presumptively
prejudicial. See, e.g., United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008)
(exclusion of whole classes of qualified members found not to be prejudicial).
When a military judge errs in granting a government challenge for cause, we test for
prejudice. See United States v. Howard, No. 36466, 2008 CCA LEXIS 234, at *5
(A.F. Ct. Crim. App. 25 Jun. 2008) (unpub.) (“A military judge’s denial of a
challenge for cause is reviewed for abuse of discretion. If there is error, we must
then determine whether it was prejudicial.”) (internal citations omitted); United
States v. Miller, No. 200401906, 2007 CCA LEXIS 231, at *8 (N-M. Ct. Crim. App.
29 Jun. 2007) (unpub.) (testing for prejudice when the military judge mistakenly
applied the liberal grant mandate to a government challenge); United States v.
Record, No. 20130721, 2015 CCA LEXIS 319, at *12-13 (Army Ct. Crim. App. 31
Jul. 2015) (mem. op.). In United States v. Dockery, our sister court analyzed the
difference between error caused by: a) the presence of a biased member on a panel;
b) the improper exclusion of a member because of discrimination on the basis of
race; and c) the improper exclusion of a member for non-discriminatory reasons.
No. 38624, 2015 CCA LEXIS 540, at *11-13 (A.F. Ct. Crim. App. 2 Dec. 2015)
(unpub.). Our sister court found the first two errors to be structural, but did not find



5
  The National Defense Authorization Act for Fiscal Year 2015 required, within 180
days of passage of the act, an amendment to Mil. R. Evid. 404(a) to provide that the
general military character of an accused is not admissible for the purpose of showing
the probability of innocence with respect to violations of certain articles, to include
Article 120, UCMJ. Pub. L. No. 113-291, § 536, 128 Stat. 3292, 3369 (2014). The
President implemented this directive on 22 June 2015. Exec. Order No. 13,696, 80
Fed. Reg. 35,783 (Jun. 22, 2015).


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WILSON—ARMY 20130601

structural error when a member is improperly excluded for a reason other than
discrimination. We agree with the Air Force court’s analysis.

      Reviewing the record, we are unable to find any prejudice to appellant
based on the exclusion of CSM ER from the panel. In addition to finding no
prejudice, we note that the government did not exercise a peremptory
challenge. That is, had the military judge not granted the government’s
challenge for cause, the government could have exercised their peremptory
challenge to remove CSM ER from the panel.

                        2. Defense Challenges for Cause

       Our next concern is that the military judge appeared to condition his granting
of the defense’s third challenge for cause on whether the defense would exercise
their peremptory challenge against an enlisted member.

       The military judge entertained three challenges for cause raised by the
defense. Three enlisted members and four officer members remained on the panel
after the military judge granted the first two defense challenges. Before ruling on
the defense counsel’s third challenge for cause against Sergeant Major (SGM) JM,
the following colloquy occurred between the military judge and the defense counsel:

             MJ: All right. And defense, do you intend to exercise a
             peremptory challenge against any other enlisted member?

             DC: I do not know at this time, Your Honor.

             MJ: Well, I need to know that before I can make my
             determination.

             DC: No, Your Honor, the defense would not be using its
             peremptory challenge against any other enlisted member.

The military judge then granted the challenge for cause against SGM JM. The
defense then exercised their peremptory challenge on Lieutenant Colonel (LTC)
DW. 6



6
  The military judge asked the defense to exercise their peremptory challenge before
asking the government. See R.C.M. 912(g)(1) (“Ordinarily, the trial counsel shall
enter any peremptory challenge before the defense”). When the military judge then
asked the government if there were any peremptory challenges, he also reminded
them of the quorum and ratio requirements. The government chose not to exercise a
peremptory challenge.


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WILSON—ARMY 20130601

       Had the defense exercised their peremptory challenge on an enlisted
member, the court-martial would have fallen short of the one-third enlisted
requirement of Article 25(c)(1), UCMJ, and triggered a delay in order for the
convening authority to detail additional enlisted members. See generally
UCMJ art. 29 (“Absent and additional members”). 7

       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. Upon a showing of actual or implied bias (and taking into
account the liberal grant mandate), a defense challenge for cause should be
granted without regard to whether there are sufficient members remaining. 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.

       Here, the military judge appeared to consider the defense’s choice of
peremptory challenge when ruling on a challenge for cause. Specifically, he
stated that he “need[ed] to know” whether the defense would use a peremptory
challenge against an enlisted member before he could “make [a]
determination” on the challenge for cause.

       This was error. As there was no objection at trial, we test for plain
error and also find the error to be clear and obvious. However, we do not find
substantial prejudice to a material right of appellant. See United States v.
Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007). The military judge granted
every defense challenge—whether for cause or peremptory. With the
exception of the single member challenged by the government, 8 the panel that
heard appellant’s case was exactly the panel that the defense had shaped.
Accordingly, while we find this error worthy of discussion, we do not order
any relief. See UCMJ art. 59(a) (“A finding or sentence of a court-martial


7
  We find that the defense counsel was candid in her response to the military judge’s
question. That is, the defense did not intend to use their peremptory challenge on an
enlisted member. Were it otherwise, we would be required to assume: 1) the
counsel’s answer lacked candor; and 2) that counsel did not act in her client’s best
interest when she elected to use the peremptory challenge on LTC DW.
Additionally, we note that while the post-trial matters submitted by the defense
counsel pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105 included an
allegation that the military judge was improperly focused on the court-martial
quorum requirements, the defense did not raise any allegation that their exercise of
the peremptory challenge had been improperly influenced.
8
  While we discussed above the government’s challenge for cause, we note again that
the government has the statutory right for one peremptory challenge of a panel
member. UCMJ art. 41(b)(1).


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WILSON—ARMY 20130601

may not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused”).

                                   CONCLUSION

       The findings of guilty to Specifications 2 and 3 of Charge II are set aside and
those specifications are DISMISSED. The remaining findings of guilty are
AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

        In conducting a sentence reassessment, a Court of Criminal Appeals must
“assure that the sentence is appropriate in relation to the affirmed findings of guilty,
[and] that the sentence is no greater than that which would have been imposed if the
prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United
States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). “[I]f the court can determine to
its satisfaction that, absent any error, the sentence adjudged would have been of at
least a certain severity, then a sentence of that severity or less will be free of the
prejudicial effects of error. . . .” Sales, 22 M.J. at 308.

       In evaluating the Winckelmann factors, despite dismissing Specifications 2
and 3 of Charge II, there is no dramatic change in the penalty landscape, as appellant
faced the possibility of life without parole based solely upon his conviction for
forcible sodomy. Second, although appellant was sentenced by a panel of officer
and enlisted members, we have experience dealing with cases involving sexual
crimes. We are convinced that, absent the error at trial, the panel would have
sentenced appellant to at least the sentence adjudged. Third, the gravamen of the
criminal conduct within the original offenses remains substantially the same.
Appellant remains convicted of forcible sodomy, aggravated sexual assault, and
wrongful sexual contact, all stemming from the same series of events that included
the conduct underlying the dismissed specifications. Thus, neither the penalty
landscape nor the vast majority of admissible aggravation evidence has significantly
changed. Finally, we have the familiarity and experience with the remaining
offenses and can reliably determine what sentence would have been imposed at trial.

      Reassessing the sentence based on the noted errors and the entire record, we
AFFIRM the approved sentence of a dishonorable discharge, confinement for
twenty-three 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




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WILSON—ARMY 20130601

findings set aside and dismissed by this decision are ordered restored. See UCMJ
arts. 58b(c) and 75(a).

      Senior Judge HAIGHT, Judge PENLAND concur.


                                      FOR THE COURT:




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




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