UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                         CAMPANELLA, HERRING, and PENLAND
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                    Sergeant First Class JOHN F. SELLERS, JR.
                          United States Army, Appellant

                                      ARMY 20150045

                  Joint Readiness Training Center and Fort Polk
                 Wade N. Faulkner, Military Judge (arraignment)
                     Randall L. Fluke, Military Judge (trial)
 Colonel Jan E. Aldykiewicz, Staff Judge Advocate (pretrial and recommendation)
  Lieutenant Colonel Sean M. Wilson, Acting Staff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez,
Jr., JA; Major Joseph T. Marcee, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Michael Korte, JA; Captain Austin Fenwick, JA (on brief).


                                        20 April 2017

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       We find no error when the military judge did not sua sponte excuse or further
question panel members for implied bias after defense counsel asked the panel a
muddled and confusing question and failed to use a peremptory challenge on any of
the panel members who may have had “acquaintances” from work who had some
experience with domestic violence. Similarly, appellant failed to meet his burden to
show defense counsel’s voir dire and panel selection rose to the level of ineffective
assistance of counsel. Lastly, we disagree with appellant that the panel created a
fatal variance by excepting the word “romantic” in finding appellant guilty of a
specification that alleged appellant had an inappropriate romantic relationship with a
junior enlisted soldier.
SELLERS—ARMY 20150045

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of failure to obey a lawful general regulation, in violation of
Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892 (2012) [hereinafter
UCMJ]. A panel of officer and enlisted members convicted appellant, contrary to
his pleas, of willfully disobeying a superior commissioned officer, stalking, assault
consummated by battery, and having an inappropriate relationship in violation of
Articles 92, 120a, 128, and 134 UCMJ. The convening authority approved the
adjudged sentence of a bad-conduct discharge, thirty months confinement, and
reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises seven assignments of error, three of which warrant comment, but none of
which warrant relief. We find no merit in the matters raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

                                  BACKGROUND

       Appellant was convicted of offenses tantamount to a pattern of domestic
abuse towards his former wife. The offenses included breaking her wrist, choking
her, stalking her, and failing to comply with his commander’s order to not contact
her.

       In addition to appellant’s acts of domestic abuse, appellant was also involved
in an inappropriate relationship with Specialist (SPC) SP, a single, junior enlisted
soldier who lived with him in his off-post apartment while appellant was still
married. Although the government charged appellant with having an inappropriate
“romantic” relationship with SPC SP in violation of Article 134, the panel found
appellant guilty only of having an “inappropriate relationship” with SPC SP by
excepting the word “romantic.”

                                      Voir Dire

      At trial, during voir dire, the military judge asked the court members “[h]as
anyone or any member of your family ever been charged with an offense similar to
any of those charged in this case?” All court members responded negatively.

       The judge then asked the court members “[h]as anyone, or any member of
your family, or anyone close to you personally ever been the victim of an offense
similar to any of those charged in this case?” All court members answered
negatively.

       Later in group voir dire, defense counsel engaged in the following exchange
with the court members:


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             DC: . . . Have you or anyone close to you been a victim of
             domestic violence?

             [All members responded negatively.]

             DC: Have any of you or someone close to you ever
             witnessed an incident of domestic violence? OK, positive
             response from - - -

             MEM: Let me clarify. When you say close to you, can
             you explain. We’re all leaders, leadership positions, so
             please explain.

             DC: Yes, sir. Someone close to you would either be a
             family member or someone you work with or know
             through work, not a stranger. Someone with some type of
             acquaintance.

             MEM: Can you ask that again?

             DC: Yes, sir. I will ask the question again. How many of
             you have witnessed an incident of domestic violence
             concerning someone close to you, whether it be a family
             member or someone who is an acquaintance through work?

       To this query, defense counsel received a positive response from four
members, COL G, LTC T, CPT L, and MSG W. The defense counsel then asked
each of them if they could still hear a case involving domestic violence, to which
each indicated they could.

       Following group voir dire, defense counsel only asked to individually voir
dire one of these four members, who was challenged and removed for cause due to
his law enforcement experience. Defense counsel did not raise a challenge for
cause to the remaining three members who had answered in the affirmative to
defense counsel’s voir dire question concerning domestic violence. Defense
counsel did not exercise a peremptory challenge against any member of the panel.

                             LAW AND DISCUSSION

                     Sua Sponte Excusal of Members for Cause

      On appeal, appellant asserts the military judge erred by not exercising his sua
sponte duty to inquire into the panel members’ implied biases and to dismiss panel
members based on those biases. Specifically, appellant’s assignment of error

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extends to—and we focus our discussion here on—the three members who ultimately
sat on the court-martial who answered defense counsel’s question concerning
domestic violence in the affirmative. We disagree with both the legal and factual
basis upon which appellant formed his argument.

       First, the military judge had no duty to sua sponte remove these three
members from the panel for an implied bias. A military judge “may, in the interest
of justice, excuse a member against whom a challenge for cause would lie.” Rule
for Courts-Martial [hereinafter R.C.M.] 912(f)(4). A military judge has the
discretionary authority to sua sponte excuse the member but has no duty to do so.
United States v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015). See also Jama v.
Immigration & Customs Enforcement, 543 U.S. 335 (2005). Our superior court has
told us that the discretionary authority of a military judge to excuse a member sua
sponte in the interest of justice is a “drastic action.” United States v. Velez, 48 M.J.
220, 225 (C.A.A.F. 1998) (quoting R.C.M. 912(f)(4)).

       While we review a military judge’s decision to remove a member for actual
bias for an abuse of discretion—thus affording that decision great deference—we
afford less deference to decisions concerning implied bias. United States v. Strand,
59 M.J. 455, 458 (C.A.A.F. 2004) (citations omitted); see also United States v.
Akbar, 74 M.J. 364, 395 (C.A.A.F. 2015) (explaining why the military judge did not
abuse his discretionary authority to sua sponte remove members). We review issues
of implied bias “under a standard less deferential than abuse of discretion but more
deferential than de novo.” Strand, 59 M.J. at 458 (citation omitted). “In making
judgements regarding implied bias, this Court looks at the totality of the factual
circumstances.” Id.

       We find the military judge did not err in electing not to further question or
remove the three members based on an “implied bias.” The military judge asked two
unequivocally clear questions to which the entirety of the panel responded
negatively. The defense counsel then asked the very clear question “[h]ave you or
anyone close to you been a victim of domestic violence?,” to which all members
responded in the negative. Defense counsel then asked what can be charitably
characterized as muddled and confusing questions in an effort to further explore
these clear answers by the members. One panel member, who was later excused,
asked for clarification twice—but in neither case did defense counsel’s follow-on
questions serve to clarify the matter. Defense counsel’s reframing of the question
by interjecting “acquaintances” into the mix, did nothing more than invite confusion.
We find the court members’ initial triple negative responses to carry the day in this
exchange. Given the totality of the questions presented to the three members
concerning domestic violence and the members’ answers, we find no error by the
military judge in not, of his own accord, conducting individual voir dire of these
members on the topic of domestic violence, much less in failing to sua sponte
remove any of these members for implied bias.

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SELLERS—ARMY 20150045

       Second, the “burden of establishing that grounds for a challenge exist is upon
the party making the challenge.” R.C.M. 912(f)(3). “The party making a challenge
shall state the grounds for it.” Id. Parties have the right to challenge court members
for cause. UCMJ art. 41(a)(1). “A member shall be excused for cause whenever it
appears that the member . . . [s]hould not sit as a member in the interest of having a
court-martial free from substantial doubt as to legality, fairness, and impartiality.”
R.C.M. 912(f)(1)(N). A party may challenge a member for cause “during trial when
it becomes apparent that a ground for challenge may exist,” and a hearing may be
held to resolve the issue. R.C.M. 912(f)(2)(B). Here, defense counsel not only
passed on individual voir dire of the three members concerning domestic violence,
defense counsel did not raise a challenge for cause on this basis. In short, defense
counsel did not establish any grounds for a challenge. We will not here divine an
unspoken challenge for cause when one was not presented and the military judge
reasonably exercised his discretion in not sua sponte delving into a non-existent
basis for implied bias.

       Third, “failure by the challenging party to exercise a peremptory challenge
against any member shall constitute wavier. . . .” R.C.M. 912(f)(4). Defense
counsel had an unexercised peremptory challenge but elected not to use it on any
member of the panel, much less the three members at issue in this assignment of
error.

      As we find the military judge committed no error, the defense counsel did not
challenge these members for cause, and defense counsel waived any error concerning
the exercise of a peremptory challenge, we resolve this issue against appellant.

                          Ineffective Assistance of Counsel

      Appellant claims that even if we find the military judge did not err in
exercising a sua sponte duty to question the three aforementioned panel members
based on implied bias, then the defense counsel was ineffective because his voir dire
was inadequate. Appellant also complains defense counsel was ineffective for not
exercising a peremptory challenge.

       Claims of ineffective assistance of counsel are reviewed de novo. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011). In evaluating allegations of
ineffective assistance of counsel, we apply the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). This standard requires appellant to demonstrate:
(1) that counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice. Id at 687. Appellant must show counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment. Id. The relevant issue is whether counsel’s conduct failed to meet an
“objective standard of reasonableness” such that it fell outside the “wide range of
professionally competent assistance.” Id. at 688, 690. On appellate review, there is

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a strong presumption that counsel was competent. United States v. Grigoruk, 56
M.J. 304, 306-07 (C.A.A.F. 2002) (citing Strickland, 466 U.S. at 689).

       Even assuming defense counsel was deficient in questioning the members
concerning domestic violence, we find appellant has not met his burden to show that
any difference in counsel’s questioning would have led to a more favorable outcome
or one that is more reliable. See Akbar, 74 M.J. at 384. Defense counsel’s
extrapolation of the record during voir dire does not present the full context in
which the members responded to the questions. Again, we look to the member’s
responses to the three clear questions presented to them and we find no fertile
ground to cultivate for member biases. We also will not second guess defense
counsel’s tactical choice to forego using individual voir dire of the members on the
issue of domestic violence or the decision to forego use of their peremptory
challenge. Appellant’s claim of ineffective assistance of counsel fails. *

                        Fatal Variance and Factual Sufficiency

       Appellant argues the panel’s finding that he violated Article 134, UCMJ, by
having an inappropriate relationship versus an inappropriate “romantic” relationship,
created a fatal variance. We disagree.

        Accepting appellant’s framing of the issue as one of a fatal variance, “[a]
variance between pleadings and proof exists when evidence at trial establishes the
commission of a criminal offense by the accused, but the proof does not conform
strictly with the offense alleged in the charge.” United States v. Allen, 50 M.J. 84, 86
(C.A.A.F. 1999). To prove a fatal variance, appellant must show both that the
variance was material and that he was substantially prejudiced by the variance. Id.
(citation omitted). A material variance is “one that, for instance, substantially
changes the nature of the offense, increases the seriousness of the offense, or
increases the punishment for the offense.” United States v. Marshall, 67 M.J. 418,
420 (C.A.A.F. 2009) (citation omitted). A variance is prejudicial when it puts
appellant at risk of another prosecution for the same conduct, misleads him to the
extent he is unable to prepare for trial, or denies him the opportunity to defend
against the charge. Id. (citing United States v. Teffeau, 58 M.J. 62, 67 (C.A.A.F.
2003)).

*
  Appellant also asserts ineffective assistance of counsel because defense counsel did
not put Article 32 testimony of SPC SP into evidence to show SPC SP denied having
a “romantic” relationship with appellant and to show appellant’s wife was
aggressive. Assuming this was deficient, we find no prejudice. Appellant was not
found guilty of having a “romantic” relationship with appellant, thus the Article 32
hearing would not have changed the outcome. Thus, we do not find ineffective
assistance.


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SELLERS—ARMY 20150045

       Minor variances, such as the location or the date an offense was allegedly
committed, do not necessarily change the nature of the offense. United States v.
Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003). Further, the words “on or about” in relation
to the dates alleged in the offense generally connote any time within a few weeks of
the “on or about” date. United States v. Brown, 34 M.J. 105, 110 (C.M.A. 1992).
However, where the major focus of the litigation centers on the time, place, and
nature of the interactions between the appellant and others, a variance as to date can
result in a material and prejudicial fatal variance. See United States v. Parker, 59
M.J. 195 (C.A.A.F. 2003).

       In this case, appellant argues the panel’s finding substantially changed the
nature of the offense and denied him the opportunity to defend against the
inappropriate relationship charge. We find no material variance between the charged
offense and the panel’s finding. In essence, appellant was found guilty of a “lesser-
included” offense—and admitted facts as such during his testimony at trial. Even if
there was a material variance, appellant was not prejudiced.

       First, the change did not alter the punishment to which appellant was exposed.
Second, appellant was not prejudiced by the variance and was not misled into being
unable to prepare for trial. It is clear from his testimony that he was prepared to
address and defend against this charge. Appellant is in no danger of double jeopardy
in this case. He is fully protected from being prosecuted for the same offense. The
events that formed the basis for the “romantic” relationship charge are the same
events that formed the basis for the same inappropriate relationship charge.
Accordingly, we find no material variance.

      The test for legal sufficiency requires us to review the evidence in the light
most favorable to the government. In doing so, if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt, the
evidence is legally sufficient. That standard is met in this case.

      The test for factual sufficiency requires this court to be convinced of the
appellant’s guilt beyond a reasonable doubt, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses. United States v. Jimenez-Victoria, 75 M.J. 768, 768 (Army Ct. Crim.
App. 2016); United States v. Turner, 25 M.J. 324, 325 (C.A.A.F. 1987). In resolving
the question of factual sufficiency, we have carefully reviewed the record of trial,
but have given no deference to the factual determinations made at the trial level. See
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002); Jimenez-Victoria,
75 M.J. at 768. Applying these tests, we conclude that the government presented
credible evidence that established beyond a reasonable doubt that appellant had an
inappropriate relationship with SPC SP.



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SELLERS—ARMY 20150045

                                  CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

      Judge HERRING and Judge PENLAND concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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