               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     GERALD O. HENDERSON
             LIEUTENANT JUNIOR GRADE (O-2), U.S. NAVY

                           NMCCA 201300140
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 19 December 2012.
Military Judge: CAPT John Waits, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CAPT M.C. Holifield,
JAGC, USN.
For Appellant: Capt David Peters, USMC.
For Appellee: Capt Matthew Harris, USMC.

                             24 April 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

 PER CURIAM:

     The appellant entered mixed pleas at a trial by general
court-martial with officer members. Pursuant to his pleas, the
military judge found the appellant guilty of one specification
of violating a lawful general order in violation of Article 92,
Uniform Code of Military Justice, 10 U.S.C. § 892. The members
then convicted the appellant, contrary to his pleas, of one
specification of attempted wrongful sexual contact and, as a
lesser included offense to the charged offense of aggravated
sexual contact, one specification of wrongful sexual contact in
violation of Articles 80 and 120, UCMJ (2008), 10 U.S.C. §§ 880
and 920. The members sentenced the appellant to three months’
confinement, forfeiture of all pay and allowances, and a
dismissal. The convening authority (CA) approved the sentence
as adjudged, and except for the dismissal, ordered the sentence
executed.

     The appellant raises two assignments of error: (1) that the
military judge abused his discretion by failing to instruct the
members on the affirmative defense of consent, and; (2) that the
appellant was denied due process of law because the CA failed to
consider ethnicity when selecting the court-martial members.

     After careful consideration of the record of trial, the
appellant's assignments of error, and the pleadings and oral
arguments of the parties, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                         Background

     In November of 2011, while serving aboard USS THE SULLIVANS
(DDG 68), the appellant left the ship for a night ashore in
Rota, Spain, with several fellow officers. After returning to
the ship intoxicated, he encountered Fireman (FN) CL, a junior
Sailor who had also been drinking earlier that evening. During
this encounter, the appellant told FN CL that he wished he had
more to drink, at which time she offered him vodka that she had
hidden in her backpack. They went to the weapons office, shared
a drink, and engaged in conversation that FN CL described as
“flirting.” Record at 453. As the conversation progressed, FN
CL stood up to get her bag from elsewhere in the room, walking
past the appellant while doing so. As she passed, the appellant
pulled her into his lap and kissed her. FN CL testified that at
this point she kissed him back “for a second,” but then turned
away and said she needed to leave. Id. at 423. After she
turned her head, the appellant continued to kiss her on the neck
and cheek, and then pushed her shirt up and kissed her breasts.
Id. FN CL told the appellant to stop, attempted to push his
head away with her hands, and stood up to leave. Id. at 424.
The appellant pulled her back into his lap and attempted to put
his hands down the front of her pants. Id. FN CL eventually
pushed herself away from the appellant and exited the room. Id.
at 425.
     Additional facts necessary for the resolution of particular
assignments of error are included below.

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                     Instructions on Consent

     The appellant contends that the military judge’s failure to
instruct the members on the affirmative defense of consent
created constitutional error that was not harmless beyond a
reasonable doubt. We disagree.

     At trial, the military judge discussed his intentions for
instructions. Although trial defense counsel requested an
instruction on both the affirmative defense of consent and
mistake of fact as to consent, ultimately the military judge
decided to only give the mistake of fact instruction, finding
that “while mistake of fact as to consent might be a reasonable
inference from the evidence, I don’t see where, as it relates to
the charges and specifications, that the issue of consent was
raised by some evidence.” Id. at 654. However, the military
judge’s ruling was, for all practical purposes, limited to the
charged offense of aggravated sexual contact under Article
120(e), UCMJ. Id. at 658. The lesser included offense of
wrongful sexual contact has as an element that the act was
committed “without that other person’s permission . . . .”
Article 120b(13)(b), UCMJ (2008). When instructing the member’s
on this element the military judge stated:

     The term “without permission” in the elements of
     wrongful sexual contact, alleged to have been
     attempted in the Specification of Charge I, and in the
     lesser included offense of Charge III, means without
     consent.

Id. at 690. The military judge then gave the members the
standard definitions and instructions as to what does and does
not constitute consent. Id. at 690-91.

     Whether a panel was properly instructed is a question of
law this court reviews de novo. United States v. Lewis, 65 M.J.
85, 87 (C.A.A.F. 2007). A military judge is required to
instruct the members on affirmative defenses “in issue.” Id. A
matter is considered “‘in issue’ when some evidence, without
regard to its source or credibility, has been admitted upon
which members might rely if they choose.” RULE FOR COURTS-MARTIAL
920(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Discussion; see also United States v. Gillenwater, 43 M.J. 10,
13 (C.A.A.F. 1995). When the instructional error raises
constitutional implications, the error is tested for prejudice
using a “harmless beyond a reasonable doubt” standard. Lewis,

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65 M.J. at 88. The inquiry for determining whether
constitutional error is harmless beyond a reasonable doubt is
“‘whether, beyond a reasonable doubt, the error did not
contribute to the defendant's conviction or sentence.’” United
States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005) (quoting
United States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003)).

     Assuming without deciding that the appellant met the “some
evidence” standard, and that the military judge erred by not
instructing the members that consent was an affirmative defense
to aggravated sexual contact, the appellant’s acquittal to that
offense rendered any such error harmless beyond a reasonable
doubt.

     We reach this conclusion by noting first that the statutory
defense of consent listed in Article 120(r), UCMJ, distinguishes
wrongful sexual contact from those other offenses under the
statute involving force or circumstances where the victim cannot
or is unable to consent to the sexual conduct. Second, and
keeping in mind the burden allocation under the 2008 Manual, we
find it illogical that Congress would first require the
prosecution to prove lack of consent beyond a reasonable doubt,
only to then require an accused to shoulder the burden of
proving consent by a preponderance of the evidence, and then
require the prosecution to disprove the affirmative defense of
consent beyond a reasonable doubt—-essentially the same burden
the prosecution carried at the onset. See Article 120(r) and
(t)(16), UCMJ. We presume that Congress did not intend such an
illogical interpretation of the offense under Article 120(m),
and the affirmative defense under Article 120(r) and t(16),
UCMJ. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 580 (2009)
(holding that courts must avoid interpreting a statutory
provisiion in a way that renders other provisions of the statute
meaningless or “a dead letter”) (citing United States v.
Atlantic Research Corp., 551 U.S. 128, 137 (2007)). Instead, we
find that Congress intended to except the affirmative defense of
consent from the offense of wrongful sexual contact.

     Lastly, assuming that the affirmative defense of consent
was available for Article 120(m), UCMJ, we would find no
prejudice to the appellant. The military judge instructed the
panel that, to find the appellant guilty of the attempted
offense in Charge I and the lesser included offense in Charge
III, they must be convinced beyond a reasonable doubt that the
sexual contact either attempted or committed was without the
consent of FN FC. Record at 687-90. The panel’s guilty finding


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to this element forecloses the possibility of any reasonable
doubt that FC consented to the sexual contact.

                      Selection of Members

     The appellant next asserts that the CA deprived him of a
fair and impartial panel by refusing to consider potential panel
members’ race when weighing the experience requirement set forth
in Article 25, UCMJ. Again, we disagree.

     The appellant, an African-American, was originally
scheduled to be tried before a panel that included one officer
who identified his race as both “African-American (Black)” and
“Caucasian (White),” a second officer who identified his race
only as “African-American (Black),” Appellate Exhibit XVII at 1,
14, and seven “Caucasian” officers. However, on the eve of
trial, the appellant fired his civilian attorney, thus forcing a
three-month delay in his court-martial. During the delay, both
officers with African-American heritage became unavailable and
were replaced. Upon learning that the new panel consisted
entirely of white officers, the appellant requested that the CA
detail new members that included “racial diversity.” Record at
144. The CA denied that request. AE XV at 4.

     The appellant then filed a motion challenging the selection
of members as violative of Article 25, UCMJ, and requested that
the military judge stay the proceedings and order the CA to
detail two members of the appellant’s race to the court-martial.
AE XVI. After hearing testimony from both the CA and his staff
judge advocate that the members were selected on a race-neutral
basis, and that neither of them was aware of the appellant’s
ethnicity, or the racial composition of either panel until the
motion was filed, the military judge denied the appellant’s
motion, specifically finding no evidence of systematic exclusion
or that the panel was improperly selected. On appeal, the
appellant now argues that “[r]ace and ethnicity are inexorably a
part of an individual’s experience” and that CA’s must “consider
race to give full effect to the meaning of ‘experience’ as an
Article 25 criteria.” Appellant’s Brief of 3 Sep 2013 at 31-32.

     Whether a panel is properly selected is a matter of law
that this court reviews de novo. United States v. Gooch, 69 M.J.
353, 358 (C.A.A.F. 2011) (citing United States v. Dowty, 60 M.J.
163, 171 (C.A.A.F. 2004)). A defendant has both a
constitutional and regulatory right to a fair and impartial
panel. Id. at 357 (citation omitted). When selecting a panel,
a CA must select members who, in the CA’s opinion, are best

                                5
qualified for the duty by reason of age, education, training,
experience, length of service and judicial temperament. Art.
25, UCMJ.

     We know of no authority that requires a CA to consider a
potential member’s race when choosing a court-martial panel.
Although such consideration is permissible as part of “‘good
faith attempts to be inclusive and to require
representativeness,’” the consideration of race is not required.
Gooch, 69 M.J. at 358 (quoting Dowty, 60 M.J. at 171).
Accordingly, we decline the appellant’s invitation to find that
the race-neutral approach used by the CA amounts to improper
member selection. Because the record shows that the CA utilized
the proper Article 25 criteria when selecting the panel, we
reject the appellant’s contention that his right to a fair and
impartial panel was violated.

                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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