This opinion is subject to administrative correction before final disposition.




                                Before
                 CRISFIELD, HITESMAN, and GASTON
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                         Kareem I. DIGGS
                        Seaman (E-3), U.S. Navy
                              Appellant

                             No. 201800087

                        Decided: 26 September 2019

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Commander Hayes C. Larsen, JAGC, USN. Sentence
 adjudged 18 November 2017 by a general court-martial convened at
 Naval Station Norfolk, Virginia consisting of officer and enlisted
 members. Sentence approved by the convening authority: forfeiture of
 all pay for three months, reduction to pay grade E-1, confinement for
 six months, and a bad-conduct discharge.

 For Appellant: Lieutenant Clifton E. Morgan III, JAGC, USN.

 For Appellee: Lieutenant Timothy C. Ceder, JAGC, USN; Major Kelli
 O’Neil, USMC.

                        _________________________

       This opinion does not serve as binding precedent, but
            may be cited as persuasive authority under
           NMCCA Rule of Practice and Procedure 30.2.

                        _________________________
                    United States v. Diggs, No. 201800087


PER CURIAM:
    Appellant was convicted, contrary to his pleas, of one specification of in-
decent visual recording in violation of Article 120c, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920c (2012 ed.). He was acquitted of two specifi-
cations of sexual assault under Article 120, UCMJ.
    The appellant raises two assignments of error (AOE): (1) the military
judge abused his discretion when he denied the trial defense counsel’s (TDC)
challenge for implied bias, and (2) the evidence is factually insufficient to sus-
tain the conviction.
   We find no prejudicial error and affirm the findings and the sentence.

                               I. BACKGROUND

    The appellant and Logistics Specialist 3d Class (LS3) MR were best
friends celebrating LS3 MR’s 21st birthday in her apartment with her boy-
friend, Hull Maintenance Technician 2d Class (HT2) Askew. HT2 Askew
worked the night shift and left for work around 1800. The appellant and LS3
MR then watched a movie. They were both drinking hard alcohol throughout
the night and became intoxicated. Later in the evening, the appellant asked a
friend, LS3 Ortiz, to bring him some food. LS3 Ortiz arrived at what she
thought was LS3 MR’s apartment sometime after 2100 and stayed outside in
the hall until about 2315, during which time, the appellant and LS3 Ortiz
exchanged several phone calls and text messages.
    HT2 Askew left work early and returned to LS3 MR’s apartment around
midnight. When he arrived, he found LS3 MR naked from the waist up, hang-
ing off her bed, and very intoxicated. HT2 Askew shook her and called her
name as she regained consciousness. He helped her stand up and carried her
to the common living room because she was having trouble walking on her
own. HT2 Askew then went back to LS3 MR’s bedroom to look for clothes. He
looked in the closet and found the appellant sitting on the floor of the closet,
apparently asleep, shirtless, and wearing different pants than he had been
wearing earlier in the evening.
   HT2 Askew ended up putting some of his clothes on LS3 MR because it
was easier than trying to dress her in her own clothes. He returned to the
bedroom to look for signs of what happened. He found the appellant’s phone
and discovered that it contained naked pictures of LS3 MR in which she ap-
peared to be asleep, as well as “selfie” pictures of the appellant. HT2 Askew
then used his phone to take a picture of the appellant’s phone displaying the
thumbnail pictures of LS3 MR. After returning LS3 MR to her bed, HT2
Askew decided to leave and stay with a friend. The next morning, he sent
LS3 MR the picture he had taken of the appellant’s phone.


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                    United States v. Diggs, No. 201800087


   Additional facts necessary to resolve the AOE’s raised are addressed be-
low.

                                II. DISCUSSION

A. Challenge for Cause
   The appellant asserts the military judge erred in denying a defense chal-
lenge for cause against one of the court members, LT JY.
    RULE FOR COURTS-MARTIAL (RCM) 912(f)(1)(N), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.), states a “member shall be excused for
cause whenever it appears that the member . . . [s]hould not sit . . . in the in-
terest of having the court-martial free from substantial doubt as to legality,
fairness, and impartiality.” This rule applies to both actual bias and implied
bias. United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998).”The burden of
establishing that grounds for a challenge exist is upon the party making the
challenge.” RCM 912(f)(3).
    Actual bias is a personal bias that will not yield to the military judge’s in-
structions and the evidence presented at trial. United States v. Nash, 71 M.J.
83, 88 (C.A.A.F. 2012) (citation omitted). We review the military judge’s rul-
ing on a challenge for cause based on actual bias for an abuse of discretion
and we afford the military judge a high degree of deference on such rulings.
United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015). Actual bias is a
subjective test viewed through the eyes of the military judge. United States v.
Warden, 51 M.J. 78, 81 (C.A.A.F. 1999). The military judge’s ability to watch
the challenged member’s demeanor during the voir dire process makes him
specially situated to make factual determinations when assessing actual bias.
United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007).
    The implied bias test is one of public perception and appearance of fair-
ness. Woods, 74 M.J. at 243. The question before us is “whether the risk that
the public will perceive that the accused received something less than a court
of fair, impartial members is too high.” United States v. Bagstad, 68 M.J. 460,
462 (C.A.A.F. 2010) (quoting United States v. Townsend, 65 M.J. 460, 463
(C.A.A.F. 2008)). We review the totality of the circumstances and assume the
public is familiar with the unique structure of the military justice system.
Our 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. Rogers, 75 M.J. 270, 273 (C.A.A.F. 2016) (citation
omitted). “[W]here the military judge places on the record his analysis and
application of the law to the facts, deference is surely warranted.” Id. Howev-
er, less deference is given when the military judge’s implied bias analysis is



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                    United States v. Diggs, No. 201800087


not comprehensive or not articulated in the record at all. See United States v.
Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).
   For defense challenges, “[t]he military judge is also mandated to err on
the side of granting a challenge. This is what is meant by the liberal grant
mandate.” United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (citation
omitted).
    LT JY, was the staff duty officer for the Commander, Naval Surface Force
Atlantic (SURFLANT), the appellant’s ship’s parent command, when the ini-
tial and subsequent reports of sexual assault and video recording were
transmitted through the naval messaging system. In that capacity, LT JY
received and reported those messages to the SURFLANT Chief of Staff. LT
JY remembered very little about the content of the messages and recalled on-
ly generic details such as the on or about dates, the ship the appellant was
assigned to, paygrades of those involved, and that photography was an issue.
When initially asked by the trial counsel if, despite his knowledge of some of
these facts, he could still be impartial, LT JY replied: “Yes, I assume I can.” 1
    During group voir dire, LT JY indicated an affirmative response to the de-
fense counsel’s question regarding whether cheating on one’s boyfriend or
girlfriend is immoral, and whether people who have made immoral choices
are more likely to commit crimes. During individual voir dire, LT JY stated
that “immorality is a greased load. The more immoral you are, the more
tempted you are about other crimes.” 2 When asked by the trial counsel if he
could separate those behaviors he considered to be immoral from his deter-
mination of whether the appellant committed the offenses as charged, LT JY
replied: “I believe I could.” 3 When asked by the assistant defense counsel if
there was anything about the case with “cheating involved” 4 that would cause
him difficulty in hearing the facts, looking at the credibility, and determining
the appellant’s guilt based only on the facts before him, LT JY replied: “No,
sir.” 5
    Also during individual voir dire, LT JY stated that “[c]onsent can’t be im-
plied; it has to be given.” 6 The trial counsel followed up on this response ex-


   1   R. at 210.
   2   R. at 209.
   3   Id.
   4   R. at 212.
   5   Id.
   6   R. at 214.




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                     United States v. Diggs, No. 201800087


plaining that the military judge would instruct him on what consent means
and that consent can be implied. When asked if he would be able to follow
that instruction, LT JY replied: “yes.”
    The TDC challenged LT JY at trial on grounds of both actual and implied
bias, arguing that LT JY had prior involvement with the investigation, could
not separate his views on immoral conduct from a determination of criminal
guilt, and could not be fair and impartial. The military judge denied the chal-
lenge for cause stating:
         I have considered the challenge for cause on the basis for both
         actual and implied bias, as well as the mandate to liberally
         grant defense challenges. The challenge against [LT JY] is de-
         nied because in the Court’s perspective, [LT JY] was very
         forthright and open in the Court’s questioning. He indicated
         that he would follow the Court’s instructions during the robust
         discussion between both trial counsel and defense counsel. I be-
         lieve that [LT JY] exhibited . . . his impartiality and he would
         be open to hear from both sides on issues and he would be will-
         ing, also, to [keep] an open mind on these issues discussed by
         the parties. 7
    On appeal, the appellant asserts the military judge erred in not granting
the challenge on grounds of implied bias, and we confine our analysis to those
grounds. Because the military judge made no specific findings regarding
LT JY’s implied bias, we review the record for ourselves to determine wheth-
er a member of the public would perceive LT JY’s court-martial participation
as unfair. Clay, 64 M.J. at 277. We note that a challenged member’s elabora-
tion and responses to additional voir dire questions can cure circumstances
which could otherwise support a finding of implied bias. See United States v.
Schlamer, 52 M.J. 80, 87, 93 (C.A.A.F. 1999).
    We find that implied bias was not a close question on the record before us,
given that LT JY had no prior meaningful involvement with the case, that he
agreed to follow the military judge’s instructions, and that he assured the
court that he would decide the case based only on the information presented
at trial.
   With respect to his prior involvement, LT JY described the facts he was
aware of as “generic,” noting that he only remembered the general dates, the
ship and paygrades of those involved, and that photography was an issue.



   7   R. at 298.




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                    United States v. Diggs, No. 201800087


When asked if he could “be impartial at this court-martial” despite his
knowledge of the case, LT JY answered, “Yes – I assume I can.” Although this
response was also somewhat equivocal, we note that LT JY’s prior knowledge
and involvement with the case was minimal and extended only to receiving
generic message traffic regarding the report of sexual assault and passing
that information on to the SURFLANT Chief of Staff as one of his duties as
the staff duty officer. The extent of his involvement was explored by both par-
ties as well as the military judge. Finally, LT JY answered directly and une-
quivocally that he could follow the military judge’s instructions on consent,
incapacitation, the full range of punishment, the government’s burden to
prove their case beyond a reasonable doubt, and that he could decide the case
only on the information presented before him.
   We further find the record does not support the appellant’s claim that LT
JY could not disconnect his own sense of morality from the determination of
the appellant’s criminality. When asked if he could separate the appellant’s
immoral behavior from determining any criminal behavior, LT JY equivocally
replied, “I believe I could.” However, when the assistant defense counsel
asked if there was anything that would prevent LT JY from deciding the case
based only on the facts before him, despite the fact that there was cheating
involved. LT JY answered unequivocally, “No, sir.” We find that this further
elaboration, elicited by the defense, cured any potential issue raised by LT
JY’s earlier responses.
    Based on the record before us, we are confident that a member of the pub-
lic would not reasonably have substantial doubt about the legality, fairness,
or impartiality of the appellant’s court-martial due to LT JY’s participation
as a panel member. Taking into account the mandate that defense challenges
be liberally granted, we find no error in the military judge’s denial of the
TDC’s challenge for cause against LT JY.

B. Factual Sufficiency
    The appellant contends that the evidence is factually insufficient to sup-
port his conviction. We review questions of factual sufficiency de novo. Article
66(c), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
In evaluating factual sufficiency, we determine whether, after weighing the
evidence in the record of trial and making allowances for not having observed
the witnesses, we are convinced of the appellant’s guilt beyond a reasonable
doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting
this unique appellate function, we take “a fresh, impartial look at the evi-
dence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the evi-
dence constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399. However, proof beyond a reasonable doubt does


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                       United States v. Diggs, No. 201800087


not mean the evidence must be free from conflict. United States v. Norwood,
__ M.J. __ , No. 201800038, 2019 CCA LEXIS 318, *25 (N-M. Ct. Crim. App. 9
Aug. 2019) (citing United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim.
App. 2006)).
    The appellant was convicted of indecent visual recording. To support this
conviction, the government was required to prove beyond a reasonable doubt
that: (1) the appellant knowingly photographed the private area of LS3 MR;
(2) the photographing was done without LS3 MR’s consent; (3) the photo-
graphing was done under circumstances in which LS3 MR had a reasonable
expectation of privacy; and (4) the appellant’s conduct was wrongful. Article
120c(a)(2), UCMJ.
    The appellant argues that there is reasonable doubt that he knowingly
took the nude pictures of LS3 MR, based on two possible theories: either (1)
the appellant was too intoxicated to form the required mens rea to intention-
ally take the photographs, or (2) while the appellant was passed out, someone
else accessed his phone and took nude photographs of LS3 MR. Based on the
record, we are not persuaded that either theory, nor any other, creates rea-
sonable doubt as to the appellant’s guilt.
    The photographs themselves are strong evidence that the appellant knew
what he was doing and that LS3 MR did not consent to being photographed
and was not even aware she was being photographed. The images are well
framed and focused starting from some distance away and moving progres-
sively closer to LS3 MR, until they are eventually so close that they become
blurry and out of focus. During his interview with the Naval Criminal Inves-
tigative Service (NCIS), the appellant stated he remembered the details of
what was going on less than an hour prior to HT2 Askew returning to LS3
MR’s room and described several events in detail, to include that he stopped
LS3 MR’s sexual advances and texted LS3 Ortiz to “hurry up.”8 LS3 Ortiz
testified that she spoke on the phone and exchanged several texts with the
appellant before she left the apartment complex at 2315. She testified that
the appellant did not sound intoxicated during their conversations. 9 The ap-
pellant went on to describe in detail to NCIS that after he texted LS3 Ortiz,
LS3 MR became more sexually aggressive, that they eventually had sex, and




   8   Prosecution Exhibit (PE) 8 at 23.
   9   R. at 563.




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                      United States v. Diggs, No. 201800087


that the last thing he heard LS3 MR say was that her “boyfriend doesn’t love
her.” 10
    The picture of the appellant’s phone with the thumbnail photographs dis-
played was entered into evidence as Prosecution Exhibit (PE) 2. This is the
only evidence that the appellant’s phone was used to take indecent pictures of
LS3 MR. HT2 Askew, LS3 Ortiz, and LS3 MR all testified that the phone
shown in PE 2 belonged to the appellant. The appellant obtained a new
phone within a few days of learning that LS3 MR was aware of the photo-
graphs, and the record is devoid of any evidence of what happened to the ap-
pellant’s phone displayed in PE 2. HT2 Askew testified and explained what
he saw when he returned to LS3 MR’s room, including finding the appellant
in the closet and finding the photographs on the appellant’s phone.
    While the record establishes that the appellant was intoxicated to some
degree, the military judge properly instructed the members that “the fact
that the accused may have been intoxicated, at the time of the offense, does
not necessarily indicate that he was unable to have the required knowledge;
because a person may be drunk yet still be aware at the time of his actions
and their probable results.” 11 The appellant was able to take nine well-
framed and well-focused pictures of LS3 MR’s exposed vagina and breasts.
Additionally, the appellant’s statements to NCIS indicate that he remembers
the details of what occurred leading up to, during, and after he had sex with
LS3 MR. Finally, the appellant and LS3 Ortiz continued to communicate af-
ter HT2 Askew sent LS3 MR the pictures. LS3 Ortiz testified that the she
and the appellant talked about what happened at LS3 MR’s apartment and
that the appellant “just knew that he had hurt her [LS3 MR] in some way
because of the pictures.” 12 Taking the evidence together as a whole, we are
convinced that the appellant was not so intoxicated that he could not form
the requisite specific intent to knowingly photograph LS3 MR.
    With respect to the issue of identity, HT2 Askew was the only person to
enter the room while both the appellant and LS3 MR were asleep or passed
out. He was the only witness to see the pictures on the appellant’s phone. He
testified how he found LS3 MR half-naked and hanging off her bed, carried
her to another room and dressed her, and then returned her to her bed. HT2
Askew testified that after finding the appellant in the closet, he noticed a



   10   PE 8 at 34.
   11   R. at 791.
   12   R. at 595.




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                     United States v. Diggs, No. 201800087


phone and attempted to access it but could not because it was locked. He then
noticed another phone and successfully accessed it; found selfies of the appel-
lant and the nude pictures of LS3 MR; and used his phone to take a picture of
the thumbnail images; and later sent that picture to LS3 MR. HT2 Askew
was subject to cross-examination and impeachment for not telling NCIS that
he had to shake LS3 MR to get a response and for his counterintuitive act of
leaving LS3 MR in her room with the appellant. The TDC argued that HT2
Askew took the pictures as “revenge porn” to shame LS3 MR for cheating on
him. 13
    “When weighing the credibility of a witness, this court, like a fact finder
at trial, examines whether discrepancies in witness testimony resulted from
an innocent mistake, such as a lapse of memory or a deliberate lie.” United
States v. Berger, No. 2015000254, 2016 CCA LEXIS 322, at *36 (N-M. Ct.
Crim. App. 26 May 2016) (citation omitted), rev’d on other grounds, 76 M.J.
128 (C.A.A.F. 2017). The members were best situated to judge HT2 Askew’s
credibility, and nothing in the record compels us to believe that he lied when
he testified about what he observed and what he did when he returned to LS3
MR’s room. Further, HT2 Askew’s testimony was compelling and we see no
reason to conclude that he took the nude pictures of LS3 MR.
    LS3 MR testified that she is the subject of the nude photographs, and that
she neither consented to being photographed, nor was aware that she was
being photographed. While we acknowledge that the record is not clear on
exactly when the nude pictures were taken, there was no indication that any-
one other than LS3 MS or the appellant was present in the room until HT2
Askew returned around midnight. The appellant’s assertions that he was too
intoxicated to remember taking any pictures is belied by his very detailed
statement to NCIS about having consensual sex with LS3 MR a mere 45 to
60 minutes before being found in the closet. Based on this evidence and the
surrounding circumstances, the members could reasonably infer that the ap-
pellant was in fact the person who took the pictures of the victim that even-
ing and that he knew what he was doing.
    After weighing the evidence in the record of trial and making allowances
for not having personally observed the witnesses, we are convinced beyond a
reasonable doubt that the appellant knowingly took the nude photographs of
LS3 MR during the night of her twenty-first birthday and that he is guilty of
indecent visual recording in violation of Article 120c, UCMJ.




   13   R. at 830.




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                    United States v. Diggs, No. 201800087


                              III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the finding and the sentence, as approved, are cor-
rect in law and fact and that no error materially prejudicial to the appellant’s
substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866.
Accordingly, the finding and sentence are AFFIRMED.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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