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

                                     No. 201600158
                                 _________________________

                         UNITED STATES OF AMERICA
                                          Appellee
                                             v.

                                RANDALL C. WOODY
                           Corporal (E-4), U.S. Marine Corps
                                       Appellant
                               _________________________

        Appeal from the United States Navy-Marine Corps Trial Judiciary

                Military Judge: Major Mark D. Sameit, USMC.
                  Convening Authority: Commanding General,
           3d Marine Aircraft Wing, MCAS Miramar, San Diego, CA.
  Staff Judge Advocate’s Recommendation: Colonel Daren K. Margolin, USMC.
               For Appellant: Major Benjamin A. Robles, USMC.
  For Appellee: Lieutenant Jetti L. Gibson, JAGC, USN; Lieutenant James M.
                             Belforti, JAGC, USN.
                            _________________________

                                 Decided 15 August 2017
                                 _________________________

            Before M ARKS , R UGH , 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, Judge:
    At a contested general court-martial, members with enlisted representation convicted
the appellant of sexual assault, in violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920. The convening authority (CA) approved the adjudged sentence of
fifty-four months’ confinement, total forfeitures, reduction to pay grade E-1, and a
dishonorable discharge.
    The appellant raises three assignments of error (AOEs): (1) the military judge erred by
failing to suppress the appellant’s unwarned responses to questions by the officer searching
                               United States v. Woody, No. 201600158


his home for evidence of a sexual assault;1 (2) the military judge erred by denying the
defense’s challenge for cause of Master Sergeant (MSgt) J.F.K.;2 and, (3) the military judge
committed plain error by instructing the members, “If, based on your consideration of the
evidence, you are firmly convinced that the accused is guilty of the crime charged, you must
find him guilty.”3 We disagree with AOEs (1) and (2), and, finding no error materially
prejudicial to the substantial rights of the appellant, we affirm the findings and sentence.
Arts. 59(a) and 66(c), UCMJ.
                                          I. BACKGROUND
   On 4 July 2014, A.M.B. attended a party at the appellant’s home. A.M.B. was 19 and
married to a deployed Marine. That night, A.M.B.—a novice drinker—consumed several
mixed drinks and shots until she became sick and vomited on the floor. The appellant saw
her sitting on the floor outside the bathroom, helped her up, and led her to his bedroom
where he laid her on his bed. A.M.B. immediately fell asleep.
   A.M.B. awoke when she felt someone put a hand on her leg and fingers inside of her
vagina. She tried to “swat” the person away, telling him to “stop,” but her “arms felt so
heavy like [she] couldn’t do anything,” and then she “blacked back out.”4 She awakened
sometime later to feel someone taking off her pants and inserting his tongue in her vagina.
This was followed by the person lying on top of her, and “putting his tongue in [her] mouth
and then his penis was inside of [her] vagina.”5 The next thing she remembered was the
person “lifting [her] legs and putting [her] pants back on.”6 Lastly, she remembered
someone coming in one more time and digitally penetrating her. She never saw the face of
the person who assaulted her; however, the appellant was seen going in and out of the room
multiple times throughout the night. The next day, A.M.B. reported the incident to
authorities and participated in a sexual assault examination where DNA samples were
obtained. Forensic analysis revealed the appellant’s DNA on the inside and outside of
A.M.B.’s vagina.
   The day after the party, two investigators from the Naval Criminal Investigative
Service, arrived at the appellant’s home to document the crime scene. Agent L.S.7 requested


   1   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
   2   Id.
   3 Record at 349. Having been resolved by our superior court in United States v. McClour, 76 M.J.
23 (C.A.A.F. 2017), we summarily reject the third assigned error. United States v. Clifton, 35 M.J. 79
(C.M.A. 1992).
   44   Record at 203.
   5   Id. at 204.
   6   Id.
   7  Agent L.S. was not a Naval Criminal Investigative Service Special Agent; she was an agent on
loan from the Criminal Investigative Division.


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consent from the appellant to search his home, which he granted. During this initial
introduction, the appellant spontaneously volunteered that: he was a “nervous wreck and
that he felt he was somehow responsible since it happened within his residence[;]” he knew
that he was the “No. [sic] 1 suspect;” and that all he had done was “check[] on [A.M.B.] the
whole night just so she didn’t choke on her vomit.”8 As the agents processed the crime
scene, they did not seek any conversation with the appellant, but he repeatedly denied his
guilt to them. Then, as Agent L.S. was leaving, she asked the appellant for his signature to
close out the permissive search and asked him if he had any questions. The appellant
responded by asking her a series of questions about DNA collection and examination—
which the agent indicated she could not answer—and then again stated he was nervous
“because he shed like a mother f***** and he was afraid that since A.M.B. slept in his bed,
what if his hair was all up in her.”9
                                        II. DISCUSSION
A. Suppression of statements
   The appellant claims his statements made to Agent L.S. during the crime scene
investigation should be suppressed because she had a duty to read him his rights. We
disagree.
    The military judge determined that because Agent L.S. did not suspect the appellant of
committing the offense and never asked him any questions seeking to elicit an
incriminating response, she had no duty to read him his rights. The military judge
concluded:
            [Agent L.S.] did not suspect Cpl Woody of an offense on 5 July 2014. All
         she knew was that an allegation of sexual assault had been made and that it
         was alleged to have occurred in Cpl Woody’s bedroom. The Woodys had been
         having a party the day before, many people were in the house, and at that
         time [Agent L.S.] had no reason to suspect that Cpl Woody was involved in
         the alleged offense.
             Further, [Agent L.S.] never interrogated Cpl Woody. She asked him for
         permission to search the house and he made spontaneous statements
         concerning being nervous. When the search concluded, she approached Cpl
         Woody for the ministerial task of putting his initials on the PASS [Permissive
         Authorization for Search and Seizure]. She told him the search was
         concluded and asked if he had any questions. At no time did [Agent L.S.] ask
         Cpl Woody for information concerning the alleged offense or make any
         statements in an effort to have Cpl Woody provide incriminating responses.




   8   Record at 193.
   9   Id. at 194.


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                               United States v. Woody, No. 201600158


         Her statements likewise would not reasonably be expected to result in an
         incriminating response.
             [Agent L.S.] was clearly in the home purely to conduct her assigned duties
         of collecting physical evidence and did not suspect Cpl Woody of an offense or
         interrogate him concerning the allegation.10
    “We review a military judge’s ruling on a motion to suppress . . . for an abuse of
discretion. . . . The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. . . . When there is a motion to suppress a statement on the ground
that rights’ warnings were not given, we review the military judge’s findings of fact on a
clearly-erroneous standard, and we review conclusions of law de novo.” United States v.
Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (citations and internal quotation marks omitted).
    Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2)
interrogates or requests any statement, (3) from an accused or person suspected of an
offense, and (4) the statements regard the offense of which the person questioned is accused
or suspected. United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006).
   The appellant fails prongs two and three. First, there is no evidence Agent L.S.
suspected the appellant prior to leaving his home. The military judge found that Agent L.S.
was there only to process evidence from a potential crime scene, not to interrogate the
appellant. The fact that the appellant was nervous about the incident happening at his
home does not mean Agent L.S. suspected him of a crime. We do agree with the military
judge’s conclusion that Agent L.S. “began to suspect that [the appellant] might have been
involved in the alleged sexual assault” after the appellant asked questions about DNA and
commented regarding his hair being found inside A.M.B. But at that point, Agent L.S.
immediately left the home without asking any questions.
    Second, Agent L.S. never interrogated the appellant by asking questions to elicit an
incriminating response. She was there to process the crime scene, not to interrogate
anyone. The record shows that Agent L.S. asked the appellant for little more than consent
to search the residence and whether he had any questions when she was performing the
final ministerial task of getting him to initial the consent form. Even if Agent L.S.
suspected the appellant, offering to answer his questions is not seeking an incriminating
response.11 All of the appellant’s statements were spontaneous, and not the result of any




   10   Appellate Exhibit (AE) XXXVII at 3-4.
   11 Even had she informed him of what he was suspected of, she would not have been required to
give him his Article 31(b), UCMJ, rights. See United States v. Ruiz, 54 M.J. 138, 142 (C.A.A.F. 2000)
(merely informing a person of what he is suspected of does not mandate an Article 31, UCMJ, rights’
advisement).


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coercion on the part of the agent.12 The military judge’s findings of fact are supported by the
record and not clearly erroneous, and her application of the law is correct.
B. Denial of challenge for member
    RULE FOR COURTS-MARTIAL 912(f)(1)(N), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), provides that a court-martial panel member shall be excused for cause
whenever it appears the member “[s]hould not sit as a member in the interest of having the
court-martial free from substantial doubt as to legality, fairness, and impartiality.” This
rule applies to both actual and implied bias. United States v. Daulton, 45 M.J. 212, 216-17
(C.A.A.F. 1996).
    “The 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). Here, the military judge applied the liberal grant
mandate but denied the challenge for cause for MSgt J.F.K. He denied there was any actual
bias, and ruled there was no implied bias because there were no “circumstances [that would
do] injury to the perception of appearance of fairness in the military justice system.”13 We
agree.
    During group voir dire, the military judge asked, “Do any of you believe that the
military has a problem with sexual assault that must be fixed?”14 MSgt J.F.K. answered in
the affirmative. When later asked to explain his answer, the member indicated that he had
been to sexual assault training, seen statistics of how many sexual assaults were reported,
and added “if we’re given the training . . . then I guess there’s a problem.”15 He later stated
that after all of the training, it ultimately comes down to a person’s character. When asked
if he could set aside anything he learned in training and give the appellant a fair trial, he
stated he could. In response to another statement by MSgt J.F.K.—involving a person’s
character—the military judge ensured he could give the appellant a fair trial even if people
were drinking at the appellant’s home when the incident occurred.
   The military judge found that MSgt J.F.K.’s prior sexual assault training would not
improperly inform his decisions in court:
         [A]ll that he remembers . . . in his training, is that he was briefed on the
         number of [sexual assault] cases that were reported in the military. He didn’t
         remember any sort of statistics. . . .




   12  The appellant does not argue coercion or custodial interrogation and we find no evidence of
either.
   13   Record at 154.
   14   Id. at 94.
   15   Id. at 134.


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            And as far as SAPR [Sexual Assault Prevention and Response] training
         goes, he had very generic answers that—about bystander intervention and
         expecting Marines to do the right thing, which is the same thing every senior
         Marine leader would expect in these cases. There was no sort of inference
         that [the appellant] did or did not do the right thing in this case. . . .
         He’s independent. He’s not part of the chain of command. He doesn’t have
         any specialized training. . . . He did not have any predisposition to finding
         guilty or not guilty in this case.16
    MSgt J.F.K. also stated that there are “always two sides to the story,” and that he likes
to hear both sides of an issue before he makes up his mind.17 This comment prompted the
parties to ask follow-up questions regarding the government’s burden of proof, the absence
of a burden on the defense, and the presumption of innocence. In response, MSgt J.F.K.
stated he understood the burden of proof was never on the defense, and would hold the
government to their burden of proof even if the defense presented no evidence. The military
judge found MSgt J.F.K. was not predisposed toward either side and was determined to
keep an open mind until all of the evidence was presented:
         Your average member doesn’t have a good understanding of a court-martial
         process. . . . His demeanor appeared very thoughtful, very candid. . . . [H]e
         kept saying, “There are two sides to every story. I can’t make any
         determinations until I actually hear the evidence. . . .”
         He wasn’t going to assume that [the appellant] was guilty one way or the
         other, but he made it very clear that he wanted to hear the evidence. . . . [and
         that] if the prosecution did not prove their case beyond a reasonable doubt, he
         would . . .find[] [the appellant] not guilty . . . . [J]ust like any normal member
         . . . [he] would want to hear from [the appellant]. Most people when they
         make decisions . . . get to hear both sides. The court-martial process being
         unique, he understood that if the defense did not put on any evidence, he
         would still hold the burden to the government [sic].”18
   1. Actual bias
   “The test for actual bias is whether any bias is such that it will not yield to the evidence
presented and the judge’s instructions.” United States v. Terry, 64 M.J. 295, 302 (C.A.A.F.
2007) citation and internal quotation marks omitted). “Military judges are afforded a high
degree of deference on rulings involving actual bias[,]” United States v. Woods, 74 M.J. 238,
243 (C.A.A.F. 2015), and will only be overturned for an abuse of discretion. United States v.
Reynolds, 23 M.J. 292, 294 (C.M.A. 1987). The military judge’s ability to watch the


   16   Id. at 154-55.
   17   Id. at 137.
   18   Id. at 153-54.


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challenged member’s demeanor during the voir dire process makes him specially situated to
make factual determinations when assessing actual bias. Terry, 64 M.J. at 302.
    The military judge observed the demeanor of the member to be “very thoughtful, very
candid.”19 In other words, he noted the judicial temperament of the member as being
favorable to keeping an open mind until all of the evidence had been submitted. He was
convinced the member understood the burden of proof, would hold the government to that
burden—without the defense producing any evidence, was not improperly influenced by
prior annual sexual assault training, and would follow his instructions on the law. The
military judge did not abuse his discretion in finding no actual bias in MSgt J.F.K.
   2. Implied bias
   “Implied bias exists when most people in the same position as the court member would
be prejudiced. . . . It is evaluated objectively under the totality of the circumstances and
through the eyes of the public, reviewing the perception or appearance of fairness of the
military justice system. . . . The core of that objective test is the consideration of the public’s
perception of fairness in having a particular member as part of the court-martial panel.”
United States v. Dockery, 76 M.J. 91, 96, (C.A.A.F. 2017) (citations and internal quotation
marks omitted).
    “We review implied bias challenges pursuant to a standard that is less deferential than
abuse of discretion, but more deferential than de novo review. . . . Whereas a military judge
can observe the demeanor of the court members in order to determine credibility in the case
of actual bias, cases of implied bias are based upon an objective test and therefore the
military judge is given less deference in such cases.” Peters, 74 M.J. at 33 (citations and
internal quotation marks omitted).
   To a disinterested observer, there was nothing MSgt J.F.K. said to indicate he would be
partial to the government. His initial difficulty in explaining—or even misinterpreting—the
proper burden of proof in a criminal trial without more, does not require a finding of
implied bias. See Woods, 74 M.J. at 244.
    This case is readily distinguishable from the Woods case, wherein the Court of Appeals
for the Armed Forces found that the military judge erred in denying a defense challenge for
cause of the senior member of the panel on grounds of implied bias. In Woods, (1) the
member put on her preliminary member’s questionnaire her belief that “the enforcement of
‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential
because the military needs to be held to a higher standard just for reasons of our mission[;]”
and (2) during voir dire, her elaborations on this response were confusing rather than
clarifying. Id. at 240-241. Here, MSgt J.F.K.’s initial difficulty in communicating his
understanding of the burden of proof, and his desire to hear both sides of the story before
making up his mind, are quite distinct from the facts in Woods, where there was
inadequate rehabilitation of the senior member who believed persons in the military give

   19   Id. at 153.


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up their civil rights and are presumed guilty so the military can accomplish its mission. Id.
at 244.
   The military judge must consider the totality of the factual circumstances in deciding to
grant a challenge under the implied bias test. United States v. Strand, 59 M.J. 455, 459
(C.A.A.F. 2004). But, even considering the totality of the circumstances and the liberal
grant mandate, the military judge’s denial of the challenge for cause for MSgt J.F.K. was
not a close call. Anyone in the same position as the member would not be prejudiced, and
leaving MSgt J.F.K. on the panel did no injury to the public’s perception of fairness of the
military justice system.
    Although less deference is given for challenges involving implied, vice actual, bias, we
find the military judge did not abuse his discretion in finding no implied bias for MSgt
J.F.K.
C. Error in the court-martial order (CMO)
   Although not raised by the parties, we note that the CMO fails to correctly identify the
specification of the Charge as consolidated by the military judge. After the members found
the appellant guilty of both sexual assault and abusive sexual contact of A.M.B., the
military judge consolidated the two specifications for purposes of both findings and
sentencing.20 The appellant is entitled to have the CMO accurately reflect the results of the
proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We
thus order corrective action in our decretal paragraph.
                                         III. CONCLUSION
  The findings and sentence, as approved by the CA, are affirmed. The supplemental
CMO shall correctly reflect the specification of the Charge, as consolidated:
             In that Corporal Randall C. Woody, United States Marine Corps, Marine
         Fighter Attack Squadron 121, 3d Marine Aircraft Wing, Marine Corps Air
         Station Yuma, Arizona, on active duty, did, on divers occasions, on board
         Marine Corps Air Station Yuma, on or about 5 July 2014, (1) commit a sexual
         act upon A.M.B., to wit: penetrating A.M.B.’s vulva with his finger, tongue,
         and penis by causing bodily harm to A.M.B., to wit: the offensive touching of
         another, however slight, including any nonconsensual sexual act; and (2)
         commit abusive sexual contact upon A.M.B., to wit: touching directly the
         vulva of A.M.B. when A.M.B. was incapable of consenting to the sexual
         contact because she was impaired by an intoxicant, to wit: alcohol, and this
         condition was known or reasonably should have been known by Corporal




   20   AE XXV; Record at 397.


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                       United States v. Woody, No. 201600158


    Randall C. Woody, United States Marine Corps, with an intent to gratify the
   sexual desire of Corporal Randall C. Woody, United States Marine Corps.
Senior Judge MARKS and Judge RUGH concur.
                                  For the Court




                                  R. H. TROIDL
                                  Clerk of Court




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