UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                           WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                   First Lieutenant HECTOR HERNANDEZAVILES
                             United States Army, Appellant

                                       ARMY 20170131

                           Headquarters, 25th Infantry Division
                            Mark A. Bridges, Military Judge
                       Colonel Ian R. Iverson, Staff Judge Advocate


For Appellant: Captain Oluwaseye Awoniyi, JA; Nathan Freeburg, Esquire (on brief
and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Wayne H. Williams, JA; Captain KJ Harris, JA (on brief).


                                       26 February 2019

                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

       Appellant asserts he was denied his Sixth Amendment right to effective
counsel and, as a result, to an impartial factfinder because his defense counsel failed
to challenge a panel member on actual and implied bias. We disagree and find that
his defense counsel made reasonable tactical decisions at trial. 1 Appellant also
asserts the military judge’s inclusion of questioning on appellant’s alcohol

1
 An officer panel sitting as a general court-martial convicted appellant contrary to
his plea of one specification of sexual assault, in violation of Article 120, Uniform
Code of Military Justice, 10 U.S. C. § 920 (2012) [UCMJ]. The members sentenced
appellant to a dismissal, confinement for eighteen months, forfeiture of all pay and
allowances, and a reprimand. The convening authority approved the sentence as
adjudged.
HERNANDEZAVILES—ARMY 20170131

consumption was error and prejudicial to appellant. We will discuss this issue
briefly, but find it is meritless. 2

                                  BACKGROUND

        Appellant and JV met on a dating website. Appellant was living in Hawaii
and JV was living in California. After approximately ten days of messaging and
video chatting with each other, JV flew to Hawaii to meet appellant in person for the
first time. She planned to stay with him for several days at his home. The first
couple of days were rocky. Appellant and JV did not get along. They spent most of
the third day not talking to each other. Eventually, appellant and JV reconciled and
went out to dinner together in the evening of the third day of her visit.

       When they returned to appellant’s home, they began to have consensual
vaginal intercourse. Appellant attempted to anally penetrate JV, but she told him to
stop, and he did. They resumed having vaginal intercourse. Appellant, again,
attempted to anally penetrate JV. She, again, told him to stop. Appellant told her,
“Just let me, I’ll be careful,” and he continued to penetrate JV’s anus. When JV
tried to get up and leave, appellant grabbed her by the neck and forced his penis
inside her vagina. JV screamed and pushed appellant off her. She went to the
bathroom and called 9-1-1.




2
  We do not address in depth appellant’s claim the military judge committed plain
error when he improperly limited individual voir dire. Due to a military judge’s
broad discretion in conducting voir dire, we find this assignment of error does not
merit any further discussion, nor relief. See Rule for Courts-Martial [R.C.M.]
912(d) (“The military judge may permit the parties to conduct the examination of
members or may personally conduct the examination. . . . [T]he military judge shall
permit the parties to supplement the examination by such further inquiry as the
military judge deems proper.”); see also R.C.M. 912(d) discussion (“The nature and
scope of the examination of members is within the discretion of the military
judge.”); United States v. Nieto, 66 M.J. 146, 149 (C.A.A.F. 2008).

Appellant also personally raised matters pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). After due consideration, we find appellant’s Grostefon
matters do not warrant discussion nor relief.



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HERNANDEZAVILES—ARMY 20170131

                              LAW AND DISCUSSION

                          1. Effective Assistance of Counsel

       On appeal, appellant claims his trial defense counsel should have challenged a
panel member, Lieutenant Colonel Morris, for actual and implied bias. After
reviewing the entire record of trial and the sworn affidavits submitted by appellant’s
trial defense counsel, we find the trial defense counsel’s decision not to challenge
LTC Morris was reasonable.

       During individual panel member voir dire, LTC Morris stated that, fourteen
years ago, a classmate of his from his officer advanced course was “allegedly raped”
in a car by University of South Carolina football players. He stated the police
“never went forward with charges based on the attack into her character.” He stated
he felt bad for his friend, and his wife tried to comfort her. Lieutenant Colonel
Morris stated he had not spoken with his friend in over ten years and his friend’s
situation would not affect his ability to be fair and impartial in appellant’s case.

       When the military judge asked the trial defense counsel whether he had any
challenges for cause, the defense counsel provided two names, LTC Poole and LTC
Jackson. After the military judge first granted the challenge for LTC Jackson, the
military judge asked the trial defense counsel to repeat the name of the second
member being challenged for cause. The defense counsel stated a new name, LTC
Slover. The military clarified that the two defense challenges for cause were for
LTC Poole and LTC Slover, and the defense counsel confirmed. Appellant’s trial
defense counsel did not challenge LTC Morris and he ultimately sat on the panel.

       The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish that
his counsel were ineffective, appellant must satisfy the two-part test, “both (1) that
his counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We review both prongs of the
Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)
(citations omitted).

       On appeal, there is a presumption that a trial defense counsel’s conduct “falls
within the wide range of reasonable professional assistance.” United States v.
Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (quoting Strickland, 466 U.S. at 689). In
order to avoid “the distorting effects of hindsight . . . [a] court must indulge a strong
presumption that . . . under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 689. (quoting Michael v.
Louisiana, 350 U.S. 91, 101 (1955)).



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HERNANDEZAVILES—ARMY 20170131

       Both of appellant’s defense counsel submitted affidavits to this court
explaining their strategic reasons for not challenging LTC Morris as a panel member
for actual or implied bias. The defense counsel state in their affidavits that they
considered LTC Morris to be a panel member favorable to the defense. They
focused on LTC Morris’s choice of words, classifying what happened to his friend as
“an alleged rape.” This gave the defense counsel the impression that LTC Morris
did not believe his friend was raped. Additionally, the defense counsel observed
that LTC Morris did not appear angry when discussing the police’s “character
assassination” of his friend. This lead the defense counsel to believe that LTC
Morris perhaps agreed with the police. Further, defense counsel recalled, “It was all
very matter of fact to him. Based on my evaluation of [LTC Morris], I thought he
would be capable of seeing [appellant’s case] as another alleged rape.”

       We find that appellant’s trial defense counsel made a strategic choice not to
challenge LTC Morris. Based on LTC Morris’ responses, which indicated he might
not have believed his friend’s rape allegation, and his “matter of fact” demeanor,
this decision was objectively reasonable. As such, appellant’s trial defense counsel
were not deficient and appellant was not denied effective assistance of counsel, nor
was he denied the right to an impartial panel. 3

       Whether to challenge a panel member is part science, 4 in part an art, and in
part gut, and is therefore difficult to second-guess on appeal. Absent circumstances
not present here, it is the type of discretionary decision in which Strickland’s
presumption of competence will serve as a bar to relief.

                          2. Questioning on Alcohol Consumption

       Appellant also claims he was prejudiced by evidence of his alcohol
consumption on the evening of the sexual assault because it was improper character
evidence under Military Rules of Evidence [Mil. R. Evid.] 404(b). During the
government’s case, JV testified regarding appellant’s alcohol consumption during
the three days leading up to and including the evening of the sexual assault.
Defense did not object. During the defense case, appellant offered additional


3
 In regards to appellant’s claim that his defense counsel were disorganized during
voir dire, the defense counsel stated in his affidavit that he “simply misread [his]
notes” when he initially stated the defense challenges for cause were for LTC Poole
and LTC Jackson.
4
 See, e.g., United States v. Kelly, 76 M.J. 793, 796-97 (Army Ct. Crim. App. 2017)
(Discussing the tactical “numbers game” where counsel exercise preemptory
challenges to obtain a favorable number of members); rev’d on other grounds, 77
M.J. 404 (C.A.A.F. 2018).



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HERNANDEZAVILES—ARMY 20170131

testimony on direct examination about his alcohol consumption during the same
period. During the trial counsel’s cross-examination of appellant, the military judge
sua sponte interrupted and instructed the panel members to disregard evidence of
appellant’s alcohol consumption two days prior to the sexual assault because it is
irrelevant. All members agreed to follow the military judge’s instruction.

       After this instruction, during an Article 39(a) session outside the presence of
the members, the trial counsel requested permission to question appellant regarding
his alcohol consumption during the evening of the sexual assault. The military
judge agreed it was relevant and permitted the trial counsel to only ask questions
regarding appellant’s alcohol consumption during the evening of the sexual assault.
The defense counsel did not object. The trial counsel continued asking appellant
about his alcohol consumption on the evening of the sexual assault. When asked
whether he was intoxicated when he began to have sex with JV just prior to the
sexual assault, defense objected on the basis that intoxication “calls for a legal
conclusion.” The military judge overruled the objection.

       Although the defense eventually objected to this evidence during appellant’s
cross-examination, the basis for the objection was not Mil. R. Evid. 404(b), but
rather that the question “calls for a legal conclusion.” Thus, we apply a plain error
standard of review to determine whether the military judge erred in his decision to
allow the government to introduce evidence of appellant’s alcohol consumption
during the evening of the sexual assault. United States v. Davis, 76 M.J. 224, 229.
“Under a plain error analysis, the accused has the burden of demonstrating that: (1)
there was error; (2) the error was plain or obvious; and (3) the error materially
prejudiced a substantial right of the accused.” United States v. Payne, 73 M.J. 19,
23 (C.A.A.F. 2014) (internal quotation marks omitted).

       Appellant cannot show error, much less any error that is plain or obvious.
The military judge correctly ruled that evidence of appellant’s alcohol consumption
during the evening of the sexual assault was relevant. Appellant’s alcohol
consumption was part of the facts and circumstances explaining the res gestae of the
offense. See, e.g., United States v. Metz, 34 M.J. 349, 351 (C.A.A.F. 1992) (“[res
gestae evidence] enables the factfinder to see the full picture so that evidence will
not be confusing and prevents gaps in a narrative of occurrences which might induce
unwarranted speculation.”). Appellant’s alcohol consumption was also relevant to
assist the factfinder’s assessment of the reliability and credibility of appellant’s
recollection of the events, which greatly differed from JV’s testimony. 5



5
  In regards to prejudice, appellant does not specifically state how he was
prejudiced by this evidence, beyond a claim of “significant stigma” in the Army

                                                                       (continued . . .)


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HERNANDEZAVILES—ARMY 20170131

                                  CONCLUSION

     Upon consideration of the entire record, the finding of guilty and sentence are
AFFIRMED.

                                       FOR THE COURT:




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




(. . . continued)
surrounding alcohol. We are unaware of any such stigma. Therefore, appellant has
not met his burden of showing any error resulted in prejudice to his substantial
rights.



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