              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     DARRON D. WARD, JR.
     CULINARY SPECIALIST SEAMAN APPRENTICE (E-2), U.S. NAVY

                           NMCCA 201400021
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 13 September 2013.
Military Judge: CDR Michael J. Luken, JAGC, USN.
Convening Authority: Commander, Naval Air Force Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CAPT T.J. Welsh,
JACG, USN.
For Appellant: LT Jessica L. Fickey, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Maj David
N. Roberts, USMC.

                              31 July 2014

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                     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.

PER CURIAM:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification each of fleeing apprehension, rape, and
communicating a threat, in violation of Articles 95, 120, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 895, 920,
and 934. 1 The members sentenced the appellant to confinement for
933 days and a dishonorable discharge. The convening authority
(CA) approved the sentence as adjudged and, except for the
punitive discharge, ordered it executed.

     The appellant raises three assignments of error: (1) that
members below the rank of E-7 and above the rank of O-5 were
impermissibly excluded in the nomination process; (2) that the
Government failed to respond to a specific defense discovery
request for materials used by the CA in the nomination and
selection of members; and, (3) that the appellant’s conviction
for rape under Article 120 was not legally or factually
sufficient. 2

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

                                 Background

     The appellant and the victim in this case, a nineteen-year-
old civilian named KB, met on a social networking website. On 21
February 2013, the appellant and KB began messaging one another
via the website. Though the two had not previously met, KB
asked the appellant to come and pick her up because she was
bored. The appellant indicated that he would not pick her up
unless they were going to have sex. After some banter about how
much time they would spend getting to know one another first, KB
agreed and asked the appellant to meet her at a fast food
restaurant near her home.

     Upon meeting the appellant at the restaurant, KB determined
that she was not physically attracted to the appellant, and
communicated that to him. Nonetheless, KB got into the car with
the appellant, but quickly changed her mind and asked to be let
out of the vehicle. After she got out, the appellant convinced

1
  The members acquitted the appellant of one specification of assaulting a
commissioned officer in violation of Article 128, UCMJ, 10 U.S.C. § 928.
2
  This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1992).


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KB to return to the vehicle by stating the two would not have to
do anything physical, but rather would just spend some time
together.

     Although the appellant told KB they were going to his
apartment, he drove KB to an on-base hotel where he had procured
a room. Once in the room, the appellant began to pursue a
physical relationship with KB. The appellant hugged her, kissed
her, and tried to remove her pants. During these encounters KB
tried to discourage the appellant by telling him she didn’t want
to do anything, and by repeatedly going to the bathroom to get
away from him. While in the bathroom, KB sent a text to a Navy
friend, who she knew would have access to the base, and asked
him to come pick her up.

     At trial, KB testified that when she returned to the main
room, the appellant was irritated, and that he again sought to
unbuckle her belt and remove her pants. KB testified that she
extricated herself from the situation by offering to remove the
pants herself. When she got up, she did not remove her pants,
but rather went to the other side of the hotel room. KB
testified that the appellant became angry, pushed her down on
the bed, and started to pull down her pants. KB testified that
she yelled “no” and “don’t rip my pants.” KB also testified
that she placed a pillow over her head to protect herself from
the appellant, and that she used the cover to attempt to call
911. Although KB did not believe the call connected, it did,
but only for a short period of time. A recording of that call,
during which you can clearly hear a woman screaming, was
admitted into evidence. Prosecution Exhibit 3. KB further
testified that the appellant then penetrated her vagina, with
either his fingers or his penis, two times. KB testified that
she was fighting with the appellant, screaming, and saying “no”
to him throughout the assault. KB also testified that, as a
result of the struggling, they both fell off the bed and ended
up on the floor. KB then testified that the assault was
interrupted by someone pounding on the door.

     Lieutenant Colonel (Lt Col) T, USAF, who was staying in the
room directly above the appellant’s room, heard KB’s screams and
responded immediately. He testified that once he heard the
commotion he ran down stairs and pounded on the door. During

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the course of that response, Lt Col T called the police and told
the appellant that he was under military apprehension, and that
he needed to stand down and wait for the police to arrive. The
appellant ignored those orders, got into his vehicle, and left
the scene.

     Additional facts necessary to resolve the assigned errors
are included herein.

                     Panel Member Selection

     In his first assignment of error the appellant avers that
members below the pay grade of E-7, and above the pay grade O-5,
were impermissibly and systematically excluded from the
nomination process by the CA. In July of 2008, Commander, Naval
Air Force Atlantic issued an instruction to subordinate commands
establishing the procedure for nominations of prospective court-
martial members. That instruction directed each subordinate
command to provide a certain number of nominees in the ranks of
E-7 through O-5. The instruction did not call for nominees
below E-7, regardless of how junior a particular appellant may
be, and did not call for anyone O-6 or above.

     The standard of review for the proper selection of a court-
martial panel is de novo. United States v. Kirkland 53 M.J. 22,
24 (C.A.A.F. 2000). We look at three primary factors to
determine whether an impermissible member selection has taken
place:

     1. Improper motive in packing a member pool;

     2. Systematic exclusion of potential members based on rank
     or other impermissible variable; and,

     3. Good faith attempts to be inclusive and open the court-
     martial process to the entirety of the military community.

United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 50
M.J. 66, 69 (C.A.A.F. 1999).

                                4
     In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
exclusion. Kirkland, 53 M.J. at 24. Once improper exclusion
has been established, the burden is placed on the Government “to
demonstrate that the error did not ‘materially prejudice the
substantial rights of the accused.’” Dowty, 60 M.J. at 173
(quoting Art. 59(a), UCMJ).

     Although the record is clear that service members were
impermissibly excluded from the member selection process by
virtue of their rank, the question remains whether that improper
nomination process materially prejudiced the appellant. In
reviewing this case we find: (1) no evidence that the errant
instruction was issued with an improper motive; (2) no evidence
that the CA had an improper motive when detailing the members
assigned to the appellant's court-martial; (3) the CA was a
person authorized to convene a general court-martial; (4) the CA
was properly advised of his Article 25 responsibilities, and
that he could pick any member of his command, not just those who
had been nominated; (5) the court members were personally chosen
by the CA from a pool of eligible candidates; and, (6) the court
members all met the criteria in Article 25, UCMJ. Under these
circumstances, we are convinced that the appellant’s case was
heard by a fair and impartial panel, and that the error in this
case was harmless. See United States v. Bartlett, 66 M.J. 426,
431 (C.A.A.F. 2008).

              Discovery of Member Selection Matters

     In the course of the discovery process, civilian defense
counsel requested all information which the CA and his advisors
used in the nomination of prospective members and in the final
selection of the court members for the court-martial orders
issued in this case. The instruction discussed above, which had
the effect of systematically excluding members below E-7 and
above O-5, was not provided to the defense, despite their
request.

     Through Article 46, UCMJ, a military accused is granted the
“equal opportunity to obtain witnesses and other evidence in
accordance with such regulations as the President may
prescribe.” Moreover, upon request, an appellant is permitted
to inspect “papers . . . within the possession, custody, or
                                5
control of military authorities . . . which are material to the
preparation of the defense.” RULE FOR COURTS-MARTIAL 701(a)(2)(A),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

     When determining whether there has been a discovery
violation, this court must determine whether the evidence at
issue was subject to discovery and, if so, determine what effect
the failure to disclose had on the appellant’s trial. United
States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004). To be
eligible for discovery by defense a document must be in the
Government’s possession or control and material to the
preparation of the defense. R.C.M. 701(a)(2)(A). When there
has been a discovery violation we test that violation for
prejudice. In cases where the appellant either did not make a
discovery request or made only a general request for discovery,
the Government has the burden of proving that the error was
harmless. However, in those cases where the appellant made a
specific request for the undisclosed information, the Government
must show that the error was harmless beyond a reasonable doubt.
Roberts, 59 M.J. at 327.

     Although the appellant did not ask for the instruction in
question by name, his request was specific enough to trigger the
heightened requirement of proof beyond a reasonable doubt. See
United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008); United
States v. Gonzalez, 62 M.J. 303, 304 (C.A.A.F. 2006); United
States v. Garlick, 61 M.J. 346, 352 (C.A.A.F. 2005). However,
even applying that higher standard, we find against the
appellant. For the same reasons articulated above, we find that
despite the discovery violation, the appellant was tried by a
fair and impartial panel, and that the discovery error was
harmless beyond a reasonable doubt.

                  Legal and Factual Sufficiency

     In his final assignment of error, the appellant asserts
that his rape conviction is both legally and factually
insufficient. We disagree.

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most

                                 6
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). The test for factual sufficiency is whether “after
weighing all the evidence in the record of trial and recognizing
that we did not see or hear the witnesses as did the trial
court, this court is convinced of the accused's guilt beyond a
reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006) (citing Turner, 25 M.J. at 325 and Art.
66(c), UCMJ), aff'd, 64 M.J. 348 (C.A.A.F. 2007). Beyond a
reasonable doubt, however, does not mean that the evidence must
be free from conflict. Id.

     In this case, the evidence of the appellant’s guilt was
overwhelming. KB’s allegations were supported by the 911 tape,
which captured her screams during the assault, and by Lt Col T,
who heard her pleas for help and rushed to the scene to lend
assistance. The fact that she had engaged in sexual banter with
the appellant on line, before they ever met, does little to
undermine her credibility, or suggest that a reasonable person
would have thought that she was consenting to the forcible acts
the appellant committed.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact-finder
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant's guilt.




                                7
                           Conclusion

     Accordingly, 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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