              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      MARSHAND A. WOODS
             LIEUTENANT JUNIOR GRADE (O-2), U.S. NAVY

                           NMCCA 201300153
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 21 December 2012.
Military Judge: CDR Marcus Fulton, JAGC, USN.
Convening Authority: Commander, Navy Region Hawaii, Pearl
Harbor, HI.
Staff Judge Advocate's Recommendation: LCDR K.A. Elkins,
JAGC, USN.
For Appellant: LT Gabriel K. Bradley, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN.

                              26 June 2014

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

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

FISCHER, Judge:

     A general court-martial composed of officer members
convicted the appellant, contrary to his pleas, of aggravated
sexual assault in violation of Article 120, Uniform Code of
Military Justice, 10 U.S.C. § 920. The members sentenced the
appellant to five months confinement, forfeiture of all pay and
allowances, and a dismissal. The convening authority approved
the sentence as adjudged, but suspended adjudged forfeitures for
a period of three months and waived automatic forfeitures
contingent on the appellant establishing an allotment for his
spouse.

      The appellant raises the following four assignments of
error (AOEs): (1) that the military judge erred by denying a
challenge for cause against the senior member; (2) that the
military judge erred by admitting improper character evidence
under MILITARY RULE OF EVIDENCE 404(b), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.); (3) that the military judge erred by failing to
find “some evidence” of unlawful command influence; and, (4)
that the appellant’s conviction is not legally or factually
sufficient.1

     After carefully considering the record of trial and the
submissions of the parties we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to a substantial right of the appellant
occurred. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     On 16 December 2011, the appellant and Lieutenant Junior
Grade (LTJG) CT (female) attended a command holiday party at a
hotel in Honolulu, HI. At the time they were both stationed
aboard the same ship and were friends, sharing a common
background as prior enlisted Sailors. Following the party the
appellant, LTJG CT, LTJG VC (female) and Lieutenant TM (male)
stayed overnight at the hotel in a room with two queen sized
beds. LTJG CT reserved the room prior to the party and sent an
email to other junior officers aboard the ship indicating others
were welcome to stay there and split the cost. LTJG VC and LT
TM were heavily intoxicated following the party and the
appellant separately helped each of them to the room where they
went to sleep in separate beds. LTJG CT and the appellant both
drank considerable amounts of alcohol at the party, but neither
was inebriated to the extent of LTJG VC and LT TM.

     Following the party, LTJG CT and the appellant returned to
the room; LTJG CT went into the bathroom and changed into
pajamas and then went to sleep in the same bed as LTJG VC.
Around 0100, LTJG CT woke up to the sensation of a hand in her
underwear. She rolled to her back and realized someone’s
fingers were moving in and out of her vagina. Coming out of
sleep it took LTJG CT a moment to realize she was being touched
in this fashion. When she felt a body next to her
1
  This AOE is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1992).

                                      2
repositioning, LTJG CT sat up on the edge of the bed, looked
over and saw the appellant lying next to her in the bed.
Additionally, she noticed LTJG VC and LT TM sleeping in the same
positions they had been in when she went to bed. While she was
sitting on the edge of the bed, the appellant placed his hand on
her shoulder and asked if she was ok. LTJG CT brushed his hand
away and went into the bathroom. She testified she wanted to
leave, but felt too intoxicated to drive, thought it would be
difficult to find a taxi, and didn’t want to leave LTJG VC in
the room without her. Subsequently, she got into the bed where
LT TM remained sleeping.

     The next morning the appellant left early with LTJG VC
because both were part of the ship’s duty section for the day.
The appellant and LTJG CT exchanged several text messages the
following day during which LTJG CT complained to the appellant
about his “touchy hands” and the appellant responded, “I’m sorry
about that too and I want to keep your trust.” Record at 626-27
and Prosecution Exhibit 2.

     Additional facts necessary for the resolution of each AOE
are developed below.

                           Discussion

Challenge for Cause

     The appellant’s first assignment of error avers that the
military judge abused his discretion in denying a challenge for
cause against Captain (CAPT) MV. The appellant argues CAPT MV
should have been disqualified from sitting as a member because
she believed that military members should be held to a higher
standard and held to that belief despite attempts by the trial
counsel and military judge to rehabilitate her. Appellant’s
Brief of 23 Dec 2013 at 12-13.

     In response to a question on a court-martial member
questionnaire that asked, “[w]hat is your opinion of the
military justice system?” CAPT MV responded:

    There is not [a] perfect system, and I understand why
    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. It is a voluntary force and you come into


                                3
    the service knowing that you will be held to this
    higher standard[] and give up your civil rights.

Appellate Exhibit L at 2.

     In individual voir dire, the trial counsel and trial
defense counsel questioned CAPT MV extensively regarding this
answer. In response to the trial counsel’s voir dire questions,
CAPT MV stated she could follow the military judge’s
instructions that it is the Government’s burden to prove guilt
beyond a reasonable doubt and that the burden of proof belongs
to the Government and never shifts to the accused. Record at
283. In response to the trial defense counsel’s query about
what she “meant by” her questionnaire response, she stated:

    Well, I mean I guess just the discussions that I’ve
    had with my husband. He’s in the Army, Special
    Forces, and you know, this is, you know, we’ve talked
    about the military system and how we are held to a
    higher standard and never being – I’ve never dealt
    officially in a court-martial, and have been told,
    ‘No, this isn’t the way it works,’ and so I understand
    the rules of the game, and I, you know, I don’t have a
    problem following them. What I meant [to say] by that
    is yes, us military think we should be held to a
    higher standard since our behavior, because you know,
    we raise our hand, and we are defending our country.

Id. at 288.

     Following both counsel’s voir dire of CAPT MV, the military
judge had the following exchange with her:

    MJ: Okay. Captain, going back to your answer to
    question 20, it appears that you, in fact, arrived at
    this court-martial with an erroneous understanding of
    the burden of proof in this case.
    CAPT MV: Right.

    MJ: Is that fair to say?
    CAPT MV: Yes.

    MJ: Okay. And your answer also tends to indicate
    that you might think that there would be a good reason
    for the military to operate under a system like the
    one that you presumed that we did.
    CAPT MV: Um-huh.

                                4
    MJ: I want to make sure in my own mind and for the
    record that you understand that the burden of proof in
    this case is on the government, that it never shifts
    to the defense.
    CAPT MV: Right. I understand that.

    MJ: And that the obligation for a conviction in this
    case is that the government must prove their case
    beyond a reasonable doubt. Do you understand that?
    CAPT MV: Yes.

    MJ: Are you completely comfortable with that?
    CAPT MV: Yes.

    MJ: You don’t have any reservations in your own mind
    about following that instruction when I give it to
    you?
    CAPT MV: I don’t have any reservations.

Id. at 296-97.

     The trial defense counsel challenged CAPT MV for cause,
contending she should be excused based on her questionnaire
answer and her belief that military members should be held to a
higher standard. The military judge denied the challenge for
cause against CAPT MV, stating:

    I have specifically considered the liberal grant
    mandate and examined her answers for actual bias as
    well as implied bias. I am going to focus here for a
    minute on her answers to the member’s questionnaire
    pertaining to what the relevant burden of proof is in
    a court-martial. It’s absolutely the case that she
    did arrive at this court-martial under a
    misapprehension of what the burden of proof is at a
    court-martial. I don’t find that to be disqualifying.
    I evaluated her demeanor as she answered questions.
    When I asked her candidly “Did you --- were you under
    the impression that that was the relevant standard in
    these cases,” and she says “Yes,” and she acknowledged
    that that was a misapprehension on her part. I asked
    her if she had any mental reservations at all about
    applying “the guilt beyond a reasonable doubt
    standard,” and upon evaluating her credibility I found
    her to be credible when she said that she would have
    no mental reservations about applying the relevant

                                5
     standard. If the relevant standard here were that
     she, you know, know what the correct standards are
     before she gets into court in order to be qualified,
     then that would be a problem, but I’m convinced that
     she is capable of following the instructions of the
     court and that she’s ready and willing to do so. I
     disagree with defense counsel’s assessment about her
     comments relating to holding people in uniform to a
     higher standard. I did not find that they were
     related to burdens of proof or the allocation of
     burdens of proof in courts-martial or civilian trials.
     I think in the full context of her answers she --- it
     was clear that she was discussing expectations of
     officers and Petty Officers and members of the service
     generally, so bearing in mind again the liberal grant
     mandate and actual or implied bias, I find that she is
     capable of sitting fairly as a member in this case.

Id. at 449-50.

      RULE FOR COURTS-MARTIAL 912(f)(1)(N), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.) requires the removal of a court member “in
the interest of having the court-martial free from substantial
doubt as to legality, fairness, and impartiality.” This rule
encompasses both actual and implied bias. United States v.
Clay, 64 M.J. 274, 276 (C.A.A.F. 2007). Although actual and
implied biases are not separate grounds for challenge, they do
require separate legal tests. Id. Challenges for both actual
and implied bias are based on the totality of the circumstances.
United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007). The
burden of establishing the basis for a challenge is on the party
making the challenge. United States v. Daulton, 45 M.J. 212,
217 (C.A.A.F. 1996) (citing R.C.M. 912(f)(3)).

     1.   Actual Bias

     A military judge’s ruling on a challenge for cause based on
actual bias is reviewed for an abuse of discretion. Because the
question of whether a member is actually biased is a question of
fact and involves judgments regarding credibility, the military
judge is given significant deference in determining whether a
particular member is actually biased. Terry, 64 M.J. at 302;
Clay, 64 M.J. at 276. Here, the military judge determined that
CAPT MV was not actually biased and simply misapprehended the
burdens and standards associated with a court-martial. She
quickly recognized and corrected her erroneous assumptions
during the voir dire process and the military judge found she

                                  6
was capable of   following his instructions and that she was ready
and willing to   do so. Based on the totality of these
circumstances,   we conclude that the military judge did not abuse
his discretion   in denying the challenge based on actual bias.

    2.   Implied Bias

     The standard of review for implied bias is “less
deferential than abuse of discretion, but more deferential than
de novo review.” United States v. Moreno, 63 M.J. 129, 134
(C.A.A.F. 2006). However, military judges who place their
reasoning on the record and consider the liberal grant mandate
will receive more deference on review. Clay, 64 M.J. at 277.
Here, the military judge recognized and applied the liberal
grant mandate and articulated his analysis on the record, and
his ruling should therefore be given greater deference.

     The test for implied bias is objective. Viewing the
situation through the eyes of the public and focusing on the
perception of fairness in the military justice system, we ask
whether there is too high a risk that the public will perceive
that the appellant received less than a court composed of fair
and impartial members. United States v. Wiesen, 56 M.J. 172,
176 (C.A.A.F. 2001). As in actual bias, we analyze implied bias
based on the totality of the circumstances. United States v.
Strand, 59 M.J. 455, 459 (C.A.A.F. 2004).

     Here, the military judge clearly understood the rule for
implied bias and the liberal grant mandate. Citing to the
mandate and articulating a lengthy and thoughtful analysis on
the record, he granted eight of ten defense challenges for
cause. Invoking the same implied bias analysis and giving due
consideration to the liberal grant mandate, he denied the
challenge against CAPT MV. We agree with the military judge’s
conclusion that CAPT MV’s was not referencing allocation of the
burden of proof at a court-martial when stating her belief that
military members are held to a higher standard of behavior. We
conclude that, viewed objectively, a member of the public would
not question the fairness of CAPT MV sitting as a panel member.
Considering the totality of the circumstances, we find that the
public would perceive this panel to be fair and impartial and
conclude that the military judge did not err in denying the
defense’s challenge against CAPT MV based on implied bias.

Evidence of Other Crimes, Wrongs, or Acts




                                  7
      The trial defense counsel made a pretrial motion to exclude
evidence that LTJG CT previously rejected romantic overtures
from the appellant. The Government provided notice under MIL. R.
EVID. 404(b) that they intended to offer the evidence. The
defense contended that such evidence was irrelevant because of
the Government’s theory that LTJG CT was substantially
incapacitated at the time of the offense, therefore consent or
mistake of fact to consent was not in issue. Additionally, the
defense contended MIL. R. EVID. 403 required exclusion of the
evidence. Citing the test set forth in United States v.
Reynolds, 29 M.J. 105 (C.M.A. 1989), the military judge found
the evidence admissible because consent was in issue for a
specification of wrongful sexual contact and also because the
evidence showed the appellant’s motive to engage in sexual
activity with LTJG CT. AE XXXV at 3. The military judge’s
ruling specifically permitted the Government to introduce
evidence that during a temporary additional duty trip to San
Diego in the fall of 2010, the appellant called LTJG CT when she
was in her hotel room and asked her what she was doing and what
she was wearing. LTJG CT then hung up the phone on him and
shortly thereafter, the appellant showed up at LTJG CT’s room
wanting to enter and LTJG rebuffed this advance telling him, “Do
we need to have this conversation again? I told you I’m never
going to have sex with you.” Id. Additionally, the military
judge held the Government could introduce evidence of a prior
instance when LTJG CT told the appellant she was not interested
in sex with him to give context to her statement about having
the conversation again. Id.

     The three-part test for the admission of MIL. R. EVID. 404(b)
evidence at trial is set forth in Reynolds, 29 M.J. at 109.
First, the evidence must reasonably support a finding that the
appellant committed prior crimes, wrongs or acts; second, the
evidence must show a fact of consequence is made more or less
probable by the existence of this evidence; and third, the
probative value of the evidence must not be substantially
outweighed by the danger of unfair prejudice. Id. See also
United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006).

     In applying the Reynolds test, the military judge made
detailed and specific findings. The military judge found that
the first prong was satisfied through the LTJG CT’s testimony,
which supported the conclusion that the accused committed the
acts. The military judge found her testimony during the motions
hearing to be credible and uncontroverted. AE XXXV at 2. With
respect to the second prong, the military judge found “that the
evidence in question tends to show motive on the part of the

                                8
[appellant] to engage in sexual conduct with [LTJG] CT.” Id. at
3. When analyzing the evidence under Reynolds’ third prong, the
military judge concluded the probative value was substantial
because it involved direct interaction between the accused and
the complaining witness and the risk of unfair prejudice was low
considering the conduct in question was “not criminal or even
uncommon.” Id. In sum, the military judge concluded, “[i]t
will not unfairly prejudice the members against the [appellant]
to learn that he expressed an interest in and was rejected by
[LTJG] CT in this way.” Id.

     Despite the military judge’s ruling, the Government did not
seek to introduce evidence of these prior interactions between
LTJG CT and the appellant during the course of her testimony.
The issue arose when a member submitted the following question
for LTJG CT: “Did [the appellant] ever approached [sic] you to
tell you that he was attracted to you?” AE LVIII. In response,
LTJG CT testified:

    Based on previous interaction, things that he had said
    and done, I knew that he wanted to have sex with me.
    I tried to make it as clear as possible that it was
    never going to happen. Not only was he a colleague,
    but he was married, and I would not cross the line
    with someone at work that I worked with, a fellow
    shipmate, and I made that very clear on one occasion.
    I even told him that we were friends and if he
    couldn’t ---- I gave him an ultimatum and told him
    that if he couldn’t respect our friendship and my
    boundaries that we would not be friends at all.

Record at 696-97.

     The trial defense counsel objected during LTJG CT’s
response, and the military judge permitted the witness to fully
answer. Id. at 697. The trial defense counsel maintained LTJG
CT went beyond the military judge’s instruction to the witness
during an Article 39(a), UCMJ, session immediately preceding her
testimony in front of the members, to “confine [her] answer to
the fact that it was [her] sense the [the appellant] was
attracted to [her] and that [she] told [the appellant] before
this incident that [she wasn’t] interested in anything other
than a friendship relationship.” Id. at 691-92. While the
military judge agreed that LTJG CT’s response was somewhat
broader than he prescribed from the bench, he did not find it
broader than his pretrial ruling on the evidence. Id. at 699.



                                9
The appellant contends the military judge erred in permitting
admission of this evidence.

     We review a military judge’s ruling admitting evidence for
an abuse of discretion. United States v. Ediger, 68 M.J. 243,
248 (C.A.A.F. 2010). The abuse of discretion standard is a
strict one, calling for more than a mere difference of opinion.
United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000).
The challenged action must be “arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” United States v. Miller,
46 M.J. 63, 65 (C.A.A.F. 1997) (citations and internal quotation
marks omitted).

     In light of the relevant case law, and giving the military
judge the deference he is due for having set forth on the record
a clearly articulated basis for his decision on this issue, we
do not find an abuse of discretion in this case.
Unlawful Command Influence

     The trial defense counsel brought a motion to dismiss for
unlawful command influence, alleging that senior leaders within
the Department of Defense and the Department of the Navy had,
through public statements and training programs related to
sexual assault2, created an environment in which the appellant

2
     The defense motion cited the following statements:

A.    Secretary of Defense, the Honorable Leon Panetta:

              i. General Dempsey and I consider [sexual assault] a
        serious problem that needs to be addressed. Commanders must hold
        offenders appropriately accountable.

              ii. The command structure from the chairman on down have
        made very clear to the leadership in the department that [sexual
        assault] is intolerable and it has to be dealt with. We have
        absolutely no tolerance for any form of sexual assault.

              iii. But what is required is that everyone, from the
        secretary to the chairman of the Joint Chiefs all the way down,
        every command level, be sensitive to this issue, be aware that
        they bear the responsibility to take action on these cases. The
        most important thing we can do is prosecute the offenders.

B.    Secretary of the Navy, the Honorable Ray Mabus:

              i. Every day there seems like there’s a new report of
        sexual assault on some of our folks. And this is not just a
        perception – there is hard data to back it up. In both of the
        last two years, there has been an average of over 900 sexual
        assaults a year – 900…Three times a day, somebody in our force

                                        10
      gets assaulted. . . Three times a day. . . And that many assaults
      are blue-on-blue.

            ii. Another disturbing trend is that reports are coming in
      later . . . And this creates problems because as time passes,
      evidence gets degraded, everything is lost. It’s a lot more
      difficult to do an accurate investigation and it’s a lot harder
      to hold offenders responsible with every day that passes between
      attack and report of investigation.

            iii. This is the sort of training – it’s focused training
      – that’s needed to ensure that every Sailor and Marine
      understands the basic message that sexual assaults are not okay,
      they’re not acceptable and they’re not going to be tolerated and
      that everybody has got to protect everybody else – that we’ve got
      to look after our shipmates – and that alcohol is not the only
      way to have a good time on liberty.

            iv. Almost every case of assault involves alcohol use by
      the victim, by the offender or by both. It’s fuel to the fire.

            v. If prevention fails, we have to be ready to respond and
      to hold offenders accountable.

            vi. To allow members of our force to be attacked an
      average of three times a day, every day of the year is just
      wrong. This cannot continue . . . It’s got to get better and it
      is not getting better.

            vii. It’s just wrong. We have a responsibility to do
      something about it. Three times a day – three times a day…If we
      are going to protect our shipmates, we cannot allow this to
      continue. If we are going to remain the Navy and Marine Corps
      that people look up to and should look up to, this cannot
      continue.

            viii.   Go make this work.   Protect our shipmates.   End this
      scourge.

C.   Chief of Naval Operations, Admiral Jonathan Greenert:

            i. On average, [sexual assaults] take place every day.
      Yes, every day.

            ii. [It] is important that we support sexual assault
      victims and hold offenders accountable.

            iii. This is my problem and this is your problem. Sexual
      assault is unacceptable and its roots need to stop at all levels;
      I can’t tolerate it and you shouldn’t either. It undermines our
      Navy Core Values and Ethos, and it undercuts safety and
      readiness. We need to address it for what it is – a real danger.
            iv. I’ve been at this in earnest for almost three years
      saying we have got to do something about this. And the numbers
      aren’t changing. We have about 600 of these a year. So today
      about two sailors are going to sexually assault two other

                                         11
could not receive a fair trial.       The military judge denied the
motion stating:

           I find that in this case, the Defense has not
      shown facts that constitute unlawful command
      influence. That senior commanders and office holders
      make pronouncements and promulgate policies that they
      view as being in the best interest of the service is
      not surprising, and, as long as they remain outside
      the courtroom, these do not constitute unlawful
      command influence. United States v. Estrada, 23
      C.M.R. 99, 102 (C.M.A. 1957). I am confident that
      through voir dire and instruction the court will
      consist of members who will understand that this case
      is to be judged according to the law and the facts,
      not on pronouncements. I am further convinced that an
      objective, disinterested observer full informed of all
      the facts and circumstances would not harbor a
      significant doubt about the fairness of the
      proceedings. See United States v. Lewis, 63 M.J. 405,
      416 (C.A.A.F. 2006)

           As the Defense has not met its initial burden to
      produce some evidence of facts that constitute
      unlawful command influence, the burden to disprove
      that the proceedings are tainted by unlawful command
      influence has not shifted to the Government.

AE XLIX at 4.

     The appellant asserts that the military judge erred by
failing to find “some evidence” of unlawful command influence at
the trial level, thereby prejudicing the appellant by not fully
litigating the issue.

     We review unlawful command influence de novo. United States
v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994). Article 37(a),
UCMJ, states, “No person subject to this chapter may attempt to
coerce or, by any unauthorized means, influence . . . the action
of any convening, approving, or reviewing authority with respect
to his judicial acts.” The appellant has the initial burden of
producing sufficient evidence to raise unlawful command

      sailors. That’s the statistics. I don’t know if it bothers you,
      but it bothers the hell out of me.

AE IV at 2-5.


                                    12
influence. United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A.
1994). This threshold is low, but it must be more than “a bare
allegation or mere speculation.” United States v. Johnston, 39
M.J. 242, 244 (C.M.A. 1994) (citation omitted).

     To raise the issue on appeal, the appellant must show: (1)
facts which, if true, constitute unlawful command influence; (2)
that the proceedings were unfair; and (3) that unlawful command
influence was the cause of the unfairness. Stombaugh, 40 M.J.
at 213. The appellant must meet this initial burden before the
burden shifts to the Government to demonstrate beyond a
reasonable doubt either that there was no unlawful command
influence or that the proceedings were untainted. United States
v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).

     In this case, the appellant has failed to show facts which,
if true, constitute unlawful command influence. Taken as a
whole, the messages contained in the complained of statements
amount to nothing more than direction to subordinate leaders to
take sexual assaults seriously. The messages do not attempt to
direct a particular disposition in sexual assault cases and do
not give a suggestion of appropriate punishment for offenders.
In short, the statements do not meet the first prong of the
Stombaugh test.

     Additionally, we find that the appellant has also failed to
meet the second and third prongs of the Stombaugh test. Even if
we were to assume that taken as a whole, the complained of
statements create the appearance of undue influence, the
appellant still has not met his burden to show: 1) that the
proceedings were unfair; and 2) that unlawful command
influence was the cause of the unfairness. Stombaugh, 40 M.J.
at 213. The appellant has failed to meet his initial burden of
production on unlawful command influence and therefore we
decline to grant relief.

Legal and Factual Sufficiency

     We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). The test for legal sufficiency is whether any rational
trier of fact could have found that the evidence met the
essential elements of the charged offense, viewing the evidence
in a light most favorable to the Government. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual
sufficiency is whether we are convinced of the appellant’s guilt
beyond a reasonable doubt, allowing for the fact that we did not

                                13
personally observe the witnesses. Id. at 325.    In this case we
find in the affirmative as to both.

     In this assignment of error, the appellant does not point
to a specific deficiency of proof, but rather asserts LTJG CT’s
testimony at trial was inconsistent with her testimony at the
Article 32, UCMJ, hearing, and therefore the evidence was
insufficient to prove the charges beyond a reasonable doubt.
The term “reasonable doubt” does not mean that the evidence must
be free of any conflict. United States v. Rankin, 63 M.J. 552,
557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F. 2007)
(citation omitted). 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. Goode, 54 M.J. 836, 844 (N.M.Crim.Ct.App 2001).

     Conducting our own legal and factual sufficiency analysis
we disagree with the appellant’s assertion. LTJG CT’s testimony
clearly established that she awoke to the appellant inserting
his fingers into her vagina. The appellant’s text message
exchange with LTJG CT the following day corroborated that he
touched her and demonstrated his consciousness of guilt. After
thoroughly reviewing the record, we find that a rational trier
of fact could have found the essential elements of the offenses
were proven beyond a reasonable doubt, and we are ourselves
convinced beyond a reasonable doubt as to the appellant’s guilt.

                           Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.

    Chief Judge MITCHELL and Judge JAMISON concur.


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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