United States v. Harrison

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman JERRY C. HARRISON
United States Air Force

ACM 38745

20 July 2016

Sentence adjudged 26 September 2014 by GCM convened at Peterson Air
Force Base, Colorado. Military Judges: Grant L. Kratz (arraignment) and
Todd E. McDowell.

Approved Sentence: Bad-conduct discharge, confinement for 4 years,
forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for Appellant: Captain Annie W. Morgan.

Appellate Counsel for the United States: Major Mary Ellen Payne; Major
Meredith L. Steer; Major J. Ronald Steelman III; and Gerald R. Bruce,
Esquire.

Before

ALLRED, DUBRISKE, and MAYBERRY
Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.

DUBRISKE, Judge:

Contrary to his pleas, Appellant was convicted by a panel of officer and enlisted
members of rape, aggravated sexual assault, and communicating a threat, in violation of
Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934. The rape and aggravated sexual
assault convictions were based on the 2007 Manual for Courts-Martial (MCM) version of
Article 120, UCMJ. Appellant was acquitted of additional specifications alleging sexual
assault and communicating a threat, as well as specifications of forcible sodomy, assault,
and adultery.

Appellant was sentenced to a bad-conduct discharge, four years of confinement,
forfeiture of all pay and allowances, and reduction to E-1. The convening authority
approved the sentence as adjudged.

Appellant raises nine assignments of error on appeal. In his first three complaints,
Appellant attacks the legal and factual sufficiency of his convictions for rape, aggravated
sexual assault, and communicating a threat. Appellant next raises two assignments of error
surrounding the military judge’s handling of a Defense challenge for cause and a
peremptory challenge by the Government during voir dire. Thereafter, Appellant argues
the military judge erred in his handling of testimony from two witnesses. Appellant’s final
two arguments surround the military judge’s management of propensity evidence.

Although we find error based on the military judge’s use of charged offenses as
propensity evidence, we have determined the error was harmless beyond a reasonable
doubt and, therefore, affirm the findings and sentence in this case.

Background

The sexual assault offenses charged in this case surrounded Appellant’s relationship
with three different Airmen at Peterson Air Force Base, Colorado, over an approximately
19-month period from May 2011 until December 2012. The three Airmen did not know
each other before the investigation of Appellant by the Air Force Office of Special
Investigations (AFOSI). The Airmen were also not aware of Appellant’s relationship with
each Airman prior to the beginning of the criminal investigation.

AFOSI began their investigation of Appellant when the victim of the May 2011 rape
allegation filed a complaint in January 2013. While this investigation was ongoing, another
Airman, who had recently married Appellant, notified her supervisor that Appellant had
assaulted her. This complaint was brought to the attention of AFOSI due to the ongoing
rape investigation, and a subsequent interview of Appellant’s spouse identified a second
sexual assault victim. AFOSI eventually identified a third sexual assault victim during the
course of their investigation.

Additional facts necessary to resolve the assignments of error are provided below.

Sufficiency of the Evidence––Rape Conviction

Appellant, in his first assignment of error, argues the evidence produced at trial was
factually and legally insufficient to support his conviction for rape of Senior Airman (SrA)
BG. In addition to attacking SrA BG’s credibility, including her inability to remember

2 ACM 38745
specific details of the incident, Appellant focuses on the prosecution’s supposed failure to
prove Appellant used sufficient force in committing the sexual act.

We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our
assessment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

The test for factual sufficiency is “whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed the witnesses, [we are]
convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987); see also United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000). In conducting this unique appellate role, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.

The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324; see also
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term reasonable doubt
does not mean that the evidence must be free from conflict. United States v. Lips,
22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are
bound to draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).

As there was no dispute over whether the sexual act occurred, the primary question
for the factfinder was whether Appellant used sufficient force to sustain a conviction for
rape. “‘[F]orce’ means action to compel submission of another or to overcome or prevent
another’s resistance by . . . physical violence, strength, power, or restraint applied to
another person, sufficient that the other person could not avoid or escape the sexual
conduct.” MCM, United States, app. 28, ¶ 45.a.(t)(5) (2012 ed.).

The testimony of SrA BG was sufficient to sustain Appellant’s conviction for the
elements of rape. SrA BG informed the court that Appellant showed up to her room one
evening unannounced as she was engaged in personal Bible study. Appellant and SrA BG
had only limited contact since initially meeting the previous week and had absolutely no
discussions about their relationship ever becoming romantic or sexually intimate in nature.

In response to Appellant’s question, SrA BG explained the meaning of the purity
ring she wore and informed Appellant she did not believe in premarital sex. As she was
showing Appellant where the Bible discusses premarital sex, SrA BG testified Appellant
forcibly pushed her back onto her bed and pinned her arms down. His actions restricted

3 ACM 38745
her ability to move her hands and thereby prevented her from being able to push Appellant
off of her. This testimony provided sufficient evidence Appellant used force necessary to
compel SrA BG’s submission or to prevent her resistance. Furthermore, contrary to
Appellant’s claim in his brief, the factfinder was made aware Appellant outweighed SrA
BG by approximately 60 pounds. This factor lends additional support to SrA BG’s
testimony about her inability to defend herself against Appellant’s assault.

In attacking the factual sufficiency of this conviction, Appellant argues SrA BG’s
poor credibility and her inability to recall sufficient details about the incident provides
justification for reversal. Based on the fact Appellant assaulted her without warning,
however, it was not unreasonable for SrA BG to only recall limited details of the assault.
Furthermore, the attack on SrA BG’s credibility was minimized by the fact she had
absolutely no motive to falsely accuse Appellant of rape. While the Defense tried to paint
SrA BG as a jilted lover constantly trying to convince Appellant to continue their
relationship, SrA BG did not report the assault for almost 20 months. She was not aware
of Appellant’s other romantic relationships during this intervening time, thereby
discounting any claim that jealously drove her to report the crime to AFOSI. Her testimony
that she finally decided to report Appellant after seeing sexual assault response program
materials was more than plausible and mitigated concerns with her credibility

The evidence best supporting SrA BG’s testimony, however, was Appellant’s own
statements. Although he had just met SrA BG and had not even begun to build a
relationship with her, Appellant informed his supervisor he was aware SrA BG was a virgin
and that he planned to “take her virginity.” Approximately a week later, even though he
had almost no personal contact with SrA BG, Appellant confirmed to his supervisor that
he had taken SrA BG’s virginity as planned. Appellant further informed his supervisor
SrA BG just lay there during sex “like a dead fish.” While Appellant’s statements do not
equate to a confession of the charged offense, they lend sufficient credence to SrA BG’s
testimony about Appellant’s aggression towards a woman he barely knew for us to be
convinced of his guilt beyond a reasonable doubt.

Sufficiency of the Evidence––Aggravated Sexual Assault Conviction

Next, Appellant attacks the legal and factual sufficiency of his conviction for
aggravated sexual assault of Staff Sergeant (SSgt) EB. Appellant argues the evidence
produced at trial fails to prove beyond a reasonable doubt that SSgt EB was substantially
incapacitated as charged. Appellant highlights SSgt EB’s lack of credibility as well as
evidence contradicting her testimony that she was intoxicated on the evening of the sexual
assault.

As an aside, Appellant asks us to consider a clemency submission from the
Defense’s expert witness at trial when examining whether this offense is legally and
factually sufficient. This request, however, we cannot accommodate. Instead, we will only

4 ACM 38745
examine the evidence admitted before the finder of fact at trial. See United States v. Pease,
75 M.J. 180, 184 (C.A.A.F. 2016).

Appellant and SSgt EB began dating in September 2011 and engaged in sexual
activity over the course of their short relationship. In November 2011, SSgt EB ended the
relationship, which caused some friction between Appellant and SSgt EB when they saw
each other in public. In an effort to create a civil relationship with Appellant after their
break up, SSgt EB testified she invited Appellant to a holiday party at a co-worker’s home
in December 2011. Appellant agreed to be the designated driver for this party.

SSgt EB testified she became intoxicated at this party after consuming two or three
shots of alcohol and five or six mixed drinks. SSgt EB also remembered consuming
alcohol while playing various drinking games. She clearly remembered kissing Appellant
earlier during the party when she had only consumed a couple of drinks. SSgt EB testified
she did not remember much towards the end of the party. She was later told she threw up,
and was eventually cut off from consuming alcohol at the party.

Upon leaving the party, Appellant drove SSgt EB and a friend, SrA AD, to an off-
base apartment where SrA AD was housesitting. SSgt EB testified she had no recollection
of the ride to the apartment, but believed she had to be assisted into the vehicle. SSgt EB
remembered being provided some sweatpants to sleep in when she arrived at the apartment.

SSgt EB further testified she remembered throwing up in the apartment bathroom
twice that evening. After the second time, she believed Appellant carried her back to a
couch in the living room where they both slept on it “foot to head.” SrA AD slept in a
separate bedroom.

At some point in the evening, SSgt EB remembered waking up on her stomach to
significant pain. Although she was initially unclear as to what was happening, she realized
Appellant was on top of her having sexual intercourse. SSgt EB testified she was too
intoxicated to resist and she eventually fell back asleep.

When she awoke the next morning, SSgt EB suspected something sexually had
happened to her as her sweatpants were on the floor. SSgt EB did not have any discussion
with Appellant and eventually returned with SrA AD to their dormitory on base. Once
back in her dormitory room, SSgt EB retrieved a tampon that had been pushed into her
vaginal cavity due to sexual intercourse with Appellant. SSgt EB testified she would have
obviously removed her tampon had she consented to sexual activity with Appellant the
previous evening.

Later that day, SSgt EB spoke with Appellant about the incident. She testified
Appellant acknowledged she was “asleep,” but told SSgt EB she was “wet when [he] went
in.” Still later that same day, SSgt EB and Appellant engaged in consensual sexual

5 ACM 38745
intercourse. When asked why she engaged in this activity given the incident the night
before, SSgt EB stated she did it to show that she, and not Appellant, controlled her body
when she engaged in sexual intercourse.

Approximately a week after the incident, SSgt EB told a friend about Appellant’s
assault. The friend testified at trial that SSgt EB was crying and distraught when discussing
the incident. SSgt EB testified she never intended to report the assault to law enforcement,
but did so once confronted with the incident by AFOSI. AFOSI had only learned of the
allegation involving SSgt EB when Appellant’s spouse provided limited details of an
incident disclosed to her by Appellant. The AFOSI agent who interviewed SSgt EB
testified she was clearly unaware as to why AFOSI called her in for an interview and
repeatedly broke down emotionally when confronted with the allegation that Appellant
engaged in sexual activity with her while she was intoxicated.

In claiming SSgt EB was not substantially incapacitated as supported by her
testimony, Appellant first attacks her credibility by pointing to two witnesses who testified
SSgt EB either did not drink much at the party or did not appear to be intoxicated. This
attack is not compelling. Both witnesses admitted they had been drinking that evening,
were unable to observe SSgt EB during the entire evening to know how much she had to
drink, and generally had deficient memory due to the passage of time since the party.
Moreover, one of these witnesses called by the Defense testified SSgt EB had good
character for truthfulness.

Appellant also challenges SSgt EB’s level of intoxication by noting the testimony
of SrA AD. Although she admittedly did not have the ability to observe SSgt EB’s alcohol
consumption during the entire evening, SrA AD was able to observe SSgt EB after the
party until she went to bed. SrA AD opined SSgt EB did not appear intoxicated. Moreover,
SrA AD had no reason to believe SSgt EB vomited at any point after returning to the
apartment.

SrA AD’s testimony, albeit on its face damaging to the prosecution’s theory, was
rebutted by multiple statements from Appellant to SSgt EB and two other individuals in
which he noted his awareness of SSgt EB’s intoxicated state. Notwithstanding the
statements made to SSgt EB after the assault as noted above, Appellant informed a mutual
friend who confronted him about the incident that he knew he was wrong for how he acted
during the evening. Later, Appellant made another statement to this same friend, in a
conversation recorded by AFOSI, which could reasonably be interpreted as confirming
SSgt EB was “intoxicated” at the time they engaged in sexual intercourse. Appellant also
discussed his suspicions it was SSgt EB who had filed the initial sexual assault complaint
against him.

Additionally, Appellant made statements to his wife after she confronted him about
the AFOSI investigation when she learned about the various allegations of sexual assault.

6 ACM 38745
Appellant informed her he had been sexually intimate with someone who had been drinking
to a point she had vomited during the evening. When asked whether the female was “into”
or actively engaged in the sexual activity, Appellant vaguely answered, “yeah . . .
maybe . . . I don’t know.” While Appellant’s spouse admitted she was unsure if he was
confirming the incident occurred instead of just reporting what had been alleged against
him, these statements corroborated SSgt EB’s testimony, while concomitantly negating any
claim of mistake of fact as suggested by Appellant.

Considering SSgt EB’s testimony and the various statements from Appellant, we
find the evidence was sufficient, when viewed in the light most favorable to the
prosecution, for a reasonable finder of fact to conclude Appellant engaged in sexual
intercourse with SSgt EB while she was substantially incapacitated. Moreover, making
allowances for not personally observing the witnesses, we also conclude beyond a
reasonable doubt, based upon our independent review of the record, that Appellant is guilty
of the charged offense of aggravated sexual assault.

Sufficiency of the Evidence––Communicating a Threat Conviction

Appellant also attacks his conviction for communicating a threat to his wife, SrA
LP. Appellant argues the evidence produced at trial was legally and factually insufficient
as the prosecution failed to establish his conduct was service discrediting. Specifically,
Appellant claims the evidence did not show the reputation of the United States Air Force
was impugned by Appellant’s conduct.

The incident giving rise to the charged specification developed one evening while
Appellant and SrA LP were hosting a friend, Ms. JM, for dinner. Ms. JM was not
associated with the military, and only knew Appellant and his spouse because of her duties
as an apartment manager in the complex where they resided.

Appellant, who had been drinking during the evening, became upset when SrA LP
made a joke about him “hitting like a girl” during a previous combatives course. Appellant
immediately told SrA LP in an angry tone that he “would beat the f**king sh*t out of
[her].” According to Ms. JM, Appellant then departed the room. A few nights after the
incident, however, Appellant approached Ms. JM and apologized for his conduct as he was
“way out of line.”

Considering the entire record of the proceedings and our standards of review for
legal and factual sufficiency, we find Appellant is also not entitled to relief on this
assignment of error. To establish the element of service discrediting conduct, the
prosecution must prove Appellant’s conduct “would tend to bring the service into disrepute
if it were known.” United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011). This legal
determination depends on the facts and circumstances of the conduct, including the setting
and the extent to which Appellant’s conduct is known to others. Id. However, the

7 ACM 38745
Government is not required to show anyone witnessed or became aware of the conduct. Id.
In fact, proof of the conduct itself can be sufficient for a rational trier of fact to conclude
an appellant’s conduct was of a nature to bring discredit upon the armed forces. Id. at 163.

Here, even though neither SrA LP nor Ms. JM testified that Appellant’s conduct
lowered the reputation of the United States Air Force in their eyes, Appellant’s threat,
considering the totality of the circumstances, was more than sufficient to establish service
discrediting conduct. First, given Appellant threatened to engage in an act of domestic
violence, we are confident this type of conduct would bring the service into public
disrepute. Second, Appellant’s vulgar outburst was overheard by Ms. JM and there was
evidence she was uncomfortable with the situation Appellant placed her in that evening.
Appellant, himself, apparently realized the significance of his actions and apologized to
Ms. JM after acknowledging he was in the wrong. For these reasons, we find Appellant’s
conviction for communicating a threat legally and factually sufficient. See United States
v. Caldwell, 72 M.J. 137, 146 (C.A.A.F. 2013) (recognizing service discrediting conduct
can be shown when conduct negatively impacts public opinion in theory and not in fact.).

Denial of Defense Challenge for Cause

In his fourth assignment of error, Appellant argues the military judge erred in
denying his challenge for cause against Senior Master Sergeant (SMSgt) TE. Appellant
argued at trial that SMSgt TE displayed both actual and implied bias when he made
statements during voir dire that he believed a witness testifying under oath is presumed to
be telling the truth until proven otherwise. Appellant argues this belief shifted the burden
of proof to the Defense as Appellant was then forced to discredit the Government witnesses
testifying under oath.

On appeal, Appellant expands his argument by alleging SMSgt TE’s previous
participation as a bystander intervention trainer should have caused the military judge to
sua sponte excuse him for implied bias. Appellant opines SMSgt TE’s training and
personal research on alcohol consumption and its impact on the issue of consent would
cause the public to question the fairness of Appellant’s trial.

Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that 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 the court-martial free from substantial doubt as to legality, fairness,
and impartiality.” “This rule encompasses challenges based upon both actual and implied
bias.” United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008).

“The test for actual bias is whether any bias ‘is such that it will not yield to the
evidence presented and the judge’s instructions.’” United States v. Terry, 64 M.J. 295, 302
(C.A.A.F. 2007) (quoting United States v. Napoleon, 46 M.J. 279, 283
(C.A.A.F. 1997)). Because “[t]he existence of actual bias is a question of fact,” we

8 ACM 38745
“provide the military judge with significant latitude in determining whether it is present in
a prospective member.” Id. (citing United States v. Warden, 51 M.J. 78, 81 (C.A.A.F.
1999)). “‘Actual bias is reviewed’ subjectively, ‘through the eyes of the military judge or
the court members.’” Warden, 51 M.J. at 81 (quoting Napoleon, 46 M.J. at 283). “[A]
challenge based on actual bias is ‘essentially one of credibility,’ and because ‘the military
judge has an opportunity to observe the demeanor of court members and assess their
credibility on voir dire,’ a military judge’s ruling on actual bias is afforded deference.”
United States v. Briggs, 64 M.J. 285, 286 (C.A.A.F. 2007) (quoting United States v.
Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996)).

Implied bias is “viewed through the eyes of the public, focusing on the appearance
of fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting United
States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)). Therefore, appellate courts employ an
objective standard when reviewing a military judge’s decision regarding implied bias.
United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004). We review issues of implied
bias “under a standard less deferential than abuse of discretion but more deferential than
de novo.” Id. (quoting United States v. Miles, 58 M.J. 192, 195 (C.A.A.F. 2003)). In
reviewing challenges for cause under the implied bias standard, military judges are required
to follow the “liberal grant” mandate, which “supports the UCMJ’s interest in ensuring that
members of the military have their guilt or innocence determined ‘by a jury composed of
individuals with a fair and open mind.’” United States v. James, 61 M.J. 132, 139
(C.A.A.F. 2005) (quoting United States v. Smart, 21 M.J. 15, 18 (C.M.A. 1985)). “[I]n the
absence of actual bias, where a military judge considers a challenge based on implied bias,
recognizes his duty to liberally grant defense challenges, and places his reasoning on the
record, instances in which the military judge’s exercise of discretion will be reversed will
indeed be rare.” Clay, 64 M.J. at 277.

During voir dire, Appellant’s trial defense counsel attempted to explore the
members’ ability to assess credibility. One question asked whether any member believed
a person reporting they were sexually assaulted must “automatically be telling the truth.”
All members provided a negative response. The members also agreed with trial defense
counsel that the testimony of a witness would not be more credible just because they
reported they had been sexually assaulted.

For individual voir dire, trial defense counsel asked SMSgt TE a question about
witness credibility based on his perceived reaction to the questions noted above during
group voir dire. SMSgt TE provided the following response:

[A]t face value I always give a person who is on the stand and
who has sworn to tell the truth that they are going to tell the
truth, but you can’t guarantee that always. So I guess the
question made me think a little bit about how trustworthy a
person is, whether they are on the stand or not. I believe the

9 ACM 38745
 question was phrased as they actually get a, you know, an
absolute un-judgmental view of being trustworthy. You can’t
guarantee that always so, I guess, that’s what I was thinking of.

Based on this response, the following colloquy took place between trial defense
counsel and the now-challenged member:

[Defense Counsel] Okay. So let me kind of -- let me follow-
up a little bit on that. Someone comes in here and they raise
their hand and they take the stand, and they swear to tell you
the truth. Are you essentially going to believe them unless
there’s some other reason [not] to believe them?

[SMSgt TE] Um -- I try to give everyone the benefit of the
doubt for honesty until I’m given a reason not to so . . .

[Defense Counsel] Okay. Do you -- do you give any weight
-- any particular weight to the oath that the person is taking that
they’re coming in here to tell the truth?

[SMSgt TE] Yes, sir. I would hope that they will tell the truth
because they’re taking an oath in front of the court and in front
of God. So I would hope they would be honest.

[Defense Counsel] And so, essentially, if they are taking that
oath and they are raising their hand, the default is you’re
essentially you think you ought to be believing them until
given a reason not to?

[SMSgt TE] Yes, sir.

Trial defense counsel subsequently challenged SMSgt TE based on these specific
statements regarding witness credibility. With regard to actual bias, the military judge
found SMSgt TE credible when he stated he would apply the law as provided to him and
decide the case based solely on the evidence and instructions given by the military judge.
After hearing arguments on the challenge, the military judge also entered the following
findings regarding implied bias:

I do not find that there is anything with regard to any of the
answers to the questions posed by the parties or the court with
regard to Senior Master Sergeant [TE] that will -- would lead
to a perception of an injury to the appearance of fairness in the
military justice system based on Senior Master Sergeant [TE’s]

10 ACM 38745
 circumstances with regard to the issue raised by counsel, and
that is the issue of taking an oath and having to evaluate
credibility of a witness who provides testimony under oath.
This member, along with all the members, clearly answered the
questions with regard to the assessment that is to be applied to
the credibility of witnesses. This particular member
understood that instruction, answered affirmatively that he
would apply that same standard in assessing the credibility of
the witnesses and would not alter that based on the station or
the circumstances of a particular witness. I take that to include
the circumstances of whether a witness is an alleged victim of
an offense presented or not and that he would apply that same
standard to assessing the credibility of the witnesses.

And the member clearly understood that the burden remains
with the government with regard to the burden of proof and he
would apply that burden. Taking that into consideration along
with the liberal grant mandate, I do not find evidence of
implied bias. And, as I indicated, the defense challenge for
cause against Senior Master Sergeant [TE] is denied.

We find no basis to question the military judge’s findings on actual bias. The
discussion during voir dire establishes SMSgt TE would yield to the evidence presented
and the military judge’s instructions.

We, likewise, find no error with the decision to deny the implied bias challenge. As
noted by the Government in its brief, SMSgt TE’s recognition of the importance of
testimony under oath is not some novel concept indicative of bias. See United States v.
Stuckey, 10 M.J. 347, 364 (C.M.A. 1981) (“[S]worn testimony typically is more credible
and entitled to greater weight than information not given under oath.”). SMSgt TE noted
a witness should not get an “absolute un-judgmental view of being trustworthy” by
testifying under oath, but instead must be evaluated based on all circumstances surrounding
their testimony. This position is entirely consistent with the instructions provided by the
military judge on assessing the credibility and believability of witnesses during trial.
Moreover, as SMSgt TE did not differentiate his belief based on whether the witness was
testifying for the prosecution or Defense, we find no basis to question the military judge’s
findings under a theory of implied bias.

With regard to Appellant’s expanded bias claim based on SMSgt TE’s experience
as a bystander intervention trainer, we find this claim has been forfeited absent plain error
as it was not asserted at trial. See United States v. Bannwarth, 36 M.J. 265, 268 (C.M.A.
1993); R.C.M. 912(f)(4). To establish plain error, Appellant must prove: “(1) there was

11 ACM 38745
an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial
right.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011).

Appellant appears to argue SMSgt TE’s experience as a trainer caused him to form
a personal belief that a person cannot consent to sexual activity after consuming alcohol.
This claim, however, is not supported by the record. SMSgt TE personally disagreed with
the statement that a person could not consent to sexual activity after consuming alcohol.
In doing so, he astutely noted that alcohol consumption effects the decision-making process
of each person differently. We see nothing else in SMSgt TE’s responses during voir dire
which causes us to find error, plain or otherwise, in this case. The challenged member
repeatedly advised he understood the military judge’s instructions were the sole guidance
to be applied by the panel members to the evidence elicited in Appellant’s case.

Granting of the Government’s Peremptory Challenge

Appellant next contends the military judge erred in granting the prosecution’s
peremptory challenge of Major NB in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
Appellant specifically argues the proffered reasons for the Government’s challenge of the
only African-American on the panel were unreasonable, implausible, or nonsensical. As
we find the military judge’s findings are adequately supported by the record, we decline to
grant relief on this issue.

“As a matter of due process, an accused has a constitutional right, as well as a
regulatory right, to a fair and impartial panel.” United States v. Downing, 56 M.J. 419, 421
(C.A.A.F. 2002) (quoting United States v. Wiesen, 56 M.J. 172, 174 (2001)).
“Discrimination in the jury selection process undermines our criminal justice system and
poisons public confidence in the evenhanded administration of justice.” Davis v. Ayala,
135 S. Ct. 2187, 2208 (2015).

In Batson, the United States Supreme Court prohibited the use of a peremptory
challenge based on race. Our superior court has adopted a per se application of Batson,
placing the burden on the challenging party, upon timely objection, to provide a race-
neutral explanation for the challenge. United States v. Moore, 28 M.J. 366, 368 (C.M.A.
1989). The proffered reason for the challenge may not be one “that is unreasonable,
implausible, or that otherwise makes no sense.” United States v. Tulloch, 47 M.J. 283, 287
(C.A.A.F. 1997). A military judge’s determination that the trial counsel’s peremptory
challenge was race-neutral is entitled to “great deference” and will not be overturned absent
“clear error.” United States v. Williams, 44 M.J. 482, 485 (C.A.A.F. 1996).

Here, the Government challenged Major NB based, in part, on her judicial
temperament and demeanor in the courtroom. After reviewing the discussion in the record
and the military judge’s limited factual findings, we do not believe the military judge erred
in granting the Government’s peremptory challenge in this case. In so holding, we would

12 ACM 38745
first note the member had recently served as an administrative discharge board member in
a misconduct case where assistant trial counsel served as recorder. The final result of this
board––retention of the respondent––was adverse to the Government’s interest as put forth
during the hearing. The use of this information in assessing Major NB’s judicial
temperament is race-neutral and, therefore, an appropriate consideration in weighing
whether to keep Major NB on the panel.

Second, as relied on by the military judge, Major NB had a difficult time providing
details about her prior service as a discharge board member. She had initially reported in
response to the military judge’s questioning that she had served as a panel member of a
court-martial. In response to additional questioning, however, it became apparent Major
NB had only participated in a discharge board. Major NB was unable to provide any details
about the nature of the allegations heard by the board, claiming she had “brain dumped”
the case once it was finished. While the member’s confusion regarding the different forums
is understandable, it, along with her inability to recall some basic facts of the previous case,
also provides a race-neutral explanation justifying the military judge’s ruling in this case.

Military Judge’s Ruling on Limited Testimony of the Victim’s Background

Turning to the merits of the trial, Appellant claims the military judge erred in
allowing one of the victims, SSgt EB, to discuss her family’s history of military service.
Appellant argues this testimony was improper bolstering as the prosecutor was trying to
suggest SSgt EB’s testimony would be truthful because of her upbringing.

We review a military judge’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). Under the abuse
of discretion standard, we review the military judge’s findings of fact under the clearly
erroneous standard and his or her conclusions of law de novo. Id.

We do not believe the military judge erred in allowing SSgt EB to provide some
limited information about her family, her upbringing, and her service in the United States
Air Force. While the information did allow the court members to “get to know” SSgt EB
when judging her credibility, her testimony did not suggest she was somehow more truthful
because of how she was raised. Moreover, as the testimony was not focused on SSgt EB’s
character traits, including her character for telling the truth, the admission of this
background information, which is commonly offered by fact witnesses during court-
martial proceedings, was not error.

Even assuming the military judge erred, we are firmly convinced Appellant was not
prejudiced by the admission of this testimony. See Article 59(a), UCMJ, 10 U.S.C. §
859(a). SSgt EB’s credibility was primarily impacted by two factors unrelated to her
testimony about her family’s history of military service. First, a Defense witness testified
SSgt EB possessed good character for truthfulness. Second, Appellant’s own words helped

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bolster SSgt EB’s testimony about her level of intoxication on the evening of the charged
sexual assault. Considering the entire record of trial, we are confident SSgt EB’s testimony
about her background did not improperly influence the guilty finding in this case.

Military Judge’s Ruling Prohibiting Panel Member’s Question

Related to the testimony of SSgt EB, Appellant also argues the military judge erred
in refusing to allow a Defense witness, SrA AD, to respond to a court member’s question
regarding the reasons why SrA AD and SSgt EB were no longer friends. As with the
previous assignment of error, we review the military judge’s ruling for an abuse of
discretion. See Clayton, 67 M.J. at 286.

As discussed in more detail above, SrA AD testified that SSgt EB did not appear
intoxicated on the evening of the charged sexual assault. SrA AD also had no reason to
believe SSgt EB vomited at any point after returning to the apartment after the party, which
the Defense argued at trial rebutted SSgt EB’s claims about her level of intoxication.

Trial defense counsel asked SrA AD at the start of her direct examination whether
she was still friends with SSgt EB. SrA AD informed the court they were no longer friends.
During cross-examination, in response to trial counsel’s questioning, SrA AD reiterated
she was no longer friends with SSgt EB and that the two of them had not had any recent
contact with each other. SrA AD then informed the court members during her redirect
examination that the change in her relationship with SSgt EB was not in any way
motivating her to testify for the Defense in the case, or to tell lies regarding what she
witnessed on the evening of the charged sexual assault.

After completion of SrA AD’s testimony, a court member informed the military
judge that he had a question for SrA AD. The question inquired as to what caused the
friendship between SrA AD and SSgt EB to end. The Government objected to the question
based on its belief SrA AD’s answer would involve testimony covered by Mil. R. Evid.
412. The Government proffered SrA AD would testify SSgt EB was dating both a friend
of SrA AD’s boyfriend and another acquaintance at the same time. SrA AD felt SSgt EB’s
multiple relationships put her in an awkward position.

Prior to ruling on the matter, the military judge held a closed Article 39(a), UCMJ,
10 U.S.C. § 839(a), hearing to allow SrA AD to provide her answer to the question. SrA
AD advised SSgt EB started “having relations with my friends or friends of friends,” which
put SrA AD in the middle of situations she did not want to associate herself with at the
time. The military judge ruled the answer would implicate Mil. R. Evid. 412 as evidence
regarding SSgt EB’s sexual behavior.

As SrA AD did not explain what she meant by the term “relations” when discussing
SSgt EB’s conduct, there is an initial question as to whether the testimony actually

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encompassed the definition of sexual behavior or sexual predisposition as restricted by Mil.
R. Evid. 412. We need not address this question, however, as we find Appellant was not
prejudiced by the military judge’s decision not to allow the question to be answered.

We find no prejudice given SrA AD’s credibility was effectively attacked by
multiple statements from Appellant, as noted above, regarding his awareness of SSgt EB’s
intoxicated state. Given SrA AD’s testimony was rebutted by Appellant’s own words, we
do not believe the elimination of any possible bias resulting from SrA AD’s falling out
with SSgt EB would have changed the result in this case.

Improper Admission of Propensity Evidence

Appellant next argues the military judge abused his discretion by failing to perform
the necessary Mil. R. Evid. 413 analysis on the record before admitting propensity
evidence. Appellant also alleges the propensity evidence instruction should not have been
given due to the Government’s failure to provide Appellant with notice of its intent to argue
propensity. Appellant also attacks the constitutionality of Mil. R. Evid. 413. In doing so,
Appellant acknowledges this rule has repeatedly been found constitutional by our superior
court. See United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007); United States v. Dewrell,
55 M.J. 131 (C.A.A.F 2001); United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000).

After the completion of the Defense’s case-in-chief, the military judge held two
R.C.M. 802 sessions where instructions on findings were discussed. The military judge
then went over the instructions on the record inquiring whether the parties had any
objections to the proposed instructions. One of the instructions addressed the factfinder’s
consideration of the charged offenses involving three different victims as evidence of
Appellant’s propensity to commit sexual assault. There was limited discussion of this
particular instruction on the record, which failed to draw an objection from either side at
trial. The court members were then instructed on their use of propensity evidence based
on the pattern instruction in Department of the Army Pamphlet 27-9, Military Judges’
Benchbook, ¶ 7-13-1 (10 September 2014).

Our superior court recently ruled in Appellant’s favor on this particular matter in
United States v. Hills, __ M.J. __, No. 15-0767/AF (C.A.A.F. 27 June 2016). The court
determined the military judge erred in admitting three charged sexual assault offenses
involving a single victim as propensity evidence. In so holding, the court noted that
because the evidence of a charged sexual assault was already admissible to prove the
underlying offense, the use of Mil. R. Evid. 413 was error.

We hold that because the evidence of the charged sexual
misconduct was already admissible in order to prove the
offenses at issue, the application of Military Rule of Evidence
(M.R.E.) 413—a rule of admissibility for evidence that would

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 otherwise not be admissible—was error. Neither the text of
M.R.E. 413 nor the legislative history of its federal counterpart
suggests that the rule was intended to permit the government
to show propensity by relying on the very acts the government
needs to prove beyond a reasonable doubt in the same case.

Hills, slip op. at 2.

In addition to finding the military judge erred in admitting charged offenses as
propensity evidence, the court ruled the military judge’s spill-over and propensity
instructions were improper as the court members were provided with “directly
contradictory statements about the bearing that one charged offense could have on
another.” Id. at 11. In so finding, the court noted it could not determine if “Appellant’s
right to a presumption of innocence and to be convicted only by proof beyond a reasonable
doubt was not seriously muddled and compromised by the instructions as a whole.” Id.

Given the instructional error raised constitutional due process concerns, the court
examined the prejudicial effect of the error under the standard of harmless beyond a
reasonable doubt. As similar instructions faulted by our superior court in Hills were given
to the court members in this case, it is through this single lens that we now examine the
impact of the propensity instruction errors in Appellant’s case. We apply this more
stringent standard of prejudice even though Appellant forfeited review of this issue absent
plain error by not objecting to the military judge’s instructions at trial. See United States
v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011) (prejudice during a plain error review of a
constitutional violation is examined under a harmless beyond a reasonable doubt standard).

We review de novo whether a constitutional error was harmless beyond a reasonable
doubt. United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001). A constitutional error
is harmless if it appears “beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.
2002) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Stated differently, “Is it
clear beyond a reasonable doubt that a rational jury would have found the defendant guilty
absent the error?” Id. (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). In answering
this question, we consider the entire record. Delaware. v. Van Arsdall, 475 U.S. 673, 681
(1986).

Applying this standard, we find any errors surrounding the admission of propensity
evidence in this case to be harmless beyond a reasonable doubt. As noted by the
Government in its brief, propensity evidence was not the focus of the prosecution case. In
fact, during rebuttal argument, trial counsel specifically distanced the Government from
any argument regarding Appellant’s predisposition to commit sexual misconduct.

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 Regarding the strength of the Government’s case, the two victims testified under
oath and were subject to the crucible of cross-examination. While each victim had
difficulty recalling certain details and engaged in counterintuitive behavior with Appellant
after the assaults, their credibility was buttressed by Appellant’s own statements. With
regard to SrA BG’s allegation, Appellant’s braggadocio about taking her virginity affirmed
SrA BG’s testimony about Appellant’s aggressive actions that resulted in the charged
violation. Similarly, Appellant’s multiple statements regarding his knowledge of SSgt
EB’s intoxicated state on the evening of the assault solidified the victim’s testimony against
him.

Our conclusion regarding the importance of Appellant’s admissions is supported by
the court members’ findings. “Absent evidence to the contrary, court members are
presumed to comply with the military judge’s instructions.” United States v. Thompkins,
58 M.J. 43, 47 (C.A.A.F. 2003). Here, Appellant was only convicted of sexual assault and
threat offenses where the victim’s testimony was aided by either Appellant’s admissions
or the testimony of an eyewitness. Provided the court members had misinterpreted the
propensity instruction and applied a lesser burden of proof as suggested as a possibility in
Hills, one would have expected guilty verdicts on the two sexual assault offenses Appellant
was acquitted of at trial. For all of these reasons, we find any errors surrounding the
admission of propensity evidence in this case to be harmless beyond a reasonable doubt.

In proceeding directly to a harmless error analysis, we recognize the facts of
Appellant’s case differ significantly from the evidence before the military judge in Hills.
In particular, the propensity evidence in this case was primarily derived from charged
offenses involving three separate victims over an extended period of time. While our
superior court specifically recognized the purpose of Mil R. Evid. 413 is to address
recidivism and, therefore, permits the bolstering of a victim’s credibility through the use
of evidence from other victims of an accused’s sexual misconduct, it does not appear to us
that the ultimate holding in Hills would have been different had the charged offenses
involved multiple victims as found here. Regardless, given our ultimate conclusion
regarding prejudice to this particular Appellant, we need not venture down this road today
and attempt to further interpret the meaning of our superior court’s holding in Hills.

Corrected Promulgating Order

Although not alleged as an assignment of error, Appellant noted the initial court-
martial order addressing Specification 3 of Charge I failed to include the “by causing bodily
harm” language as alleged by the Government on the charge sheet. We direct the
publication of a new court-martial order to remedy this oversight.

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 Conclusion

The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and
66(c), UCMJ. Accordingly, the findings and the sentence are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN
Clerk of the Court

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