(dissenting):
Reluctantly, I must dissent from both aspects of the majority opinion. Instead, I would set aside the guilty finding as to kidnapping and dismiss that Charge; and I would set aside the remaining findings, as well, and authorize a rehearing by a new panel of members.
I
The prosecution was required to prove that appellant had “willfully and wrongfully inveigle[d]” his victim in order to convict him of kidnapping. As the majority opinion correctly states, “ ‘Inveigle’ means to lure, lead astray, or entice by false representations or other deceitful means.” Para. 92c(1), Part IV, Manual for Courts-Martial, United States, 1984. Thus, for this Court to sustain this charge of kidnapping, we must find some evidence upon which rational factfinders could have found beyond a reasonable doubt that appellant had duped his victim to go to the geographic location of the rape by using “false representations or other deceitful means.” See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The Government’s theory is that appellant did so on either or both of two occasions: First, when he offered his victim and her friend a ride home and assured them, in response to their reluctance to go with a stranger, that they could trust him; second, when he departed the main road and headed down a hiking path and explained, in response to his victim’s verbal protest/inquiry, that he did so because he had to urinate. If there is any evidence, when viewed in the light most favorable to the Government, upon which the factfinders could have found such deceit, then appellant’s claim of legal insufficiency of the evidence would fail. See id.
Unfortunately, instead of any evidence— even circumstantial evidence from which reasonable inferences of such deceit could be drawn — all I find is speculation. There literally is nothing to suggest that, on either occasion, appellant did not mean exactly what he said when he said it. Hopefully, none of us is so far removed in years from our days of courting that we could infer an evil intent from a young man’s renewal of attention or an offer for a ride home after a girl has once declined; many successful relationships would never have blossomed if every young man was logically and legally required to accept that first brush-off or else later risk the inference that, all along, he intended at that moment to pursue his desires forcefully.
As to Blocker’s explanation for pulling off the road, again there is nothing to *288suggest that this was anything except truthful. Both appellant and his victim had been at social clubs for many hours; and it had been over 45 minutes since they had departed the club in appellant’s car. Indeed, the victim testified at trial that, when appellant left the car to urinate as he had said he had to do, she likewise “urgently had to urinate myself” and so exited the car right after appellant. When trial counsel asked her why she did not wait until she “got home,” she explained, “It would have been another 10 minutes and as I said I had to urgently go.” In light of such testimony and under the circumstances described, how could any reasonable inference be drawn that appellant was lying when he explained that he was leaving the road because he had to relieve himself?
Moreover, even if one assumes (though not from the evidence) that appellant additionally intended to make a romantic advance on the prosecutrix once he had relieved himself, there still is an absence of any evidence at all that, if she resisted, he intended to force himself upon her against her will. The majority concludes, “A reasonable factfinder could infer from this evidence that appellant’s sexual interest in the victim that evening was constant and that he intended to have sex with her when he redirected his vehicle down the hiking path.” 32 MJ at (286) (emphasis added). Nonetheless, this evidence does not permit the logical leap that, if she resisted his efforts to have sex with her, he further intended to force the matter — and that precisely is the problem with the state of the evidence in this case.
The evidence is adequate to convince a factfinder that appellant did, ultimately, thrice commit this crime of personal violation; and he should be punished for it. But our personal disgust with these crimes must not cloud our judicial search for evidence of a different crime.*
I don’t know when appellant first formed his intent to hold his victim against her will and take what he wanted from her: It might have been sometime right after she first had rebuffed him; it might have been when he offered her and her friend a ride home (but, recall that it was the prosecutrix — not appellant — who decided to drop her friend off first, then herself); it might have been just prior to pulling off the road; it might have been while he was urinating; or it might have been at the point when, after returning to the car and engaging in some idle chatter, he offered his affections and she resisted.
I don’t know — and I don’t find any basis at all in the evidence for anyone to know.
II
I am constrained to note two points of disagreement with the majority as to the second issue.
First, I do not read defense counsel’s objection to the colonels so narrowly as does the majority — that is, based solely on “their substantial seniority to other members of the panel.” 32 MJ at (286). Instead, I believe counsel’s expressed concern was with the military relationship between the colonels and several noncommissioned officers on the panel, not merely with their difference in rank.
For instance, counsel began his objection as to Colonel Noles by noting: “Your Hon- or, we have the unfortunate situation where 3d Armored Division with several thousand members has created a jury in which a brigade commander has (1) his sergeant major; and (2) a platoon sergeant [under that sergeant major].” (Emphasis added.) Later, he explained his objection to Colonel Roe as one based, in part, “once again [on] the superiority/subordinate relationship between Colonel Roe and uh ... First Sergeant Baker.” He made no notice at all regarding the rank disparity between *289the colonels on the one hand and the whole remainder of the panel on the other.
Accordingly, I believe that defense counsel, loudly and clearly, raised before the military judge his concern with the relationship between the two colonels and three noncommissioned officers on the court.
Second, in that circumstance, I believe the military judge had a sua sponte duty— in the interest of ensuring the fairness, in fact and appearance, of the proceedings, see RCM 912(f)(1)(N), Manual, supra — to inquire of the parties concerned whether the military relationships involved would affect in any way their duties as court members. See United States v. Smart, 21 MJ 15 (CMA 1985). Our decision in United States v. Murphy, 26 MJ 454 (CMA 1988), held that such a relationship is not an automatic disqualifier from common panel service; but it did not excuse the military judge from fulfilling his general responsibility to assure a fair proceeding by affirmatively inquiring into that relationship and its possible effect. Indeed, the military judge in Murphy had done just that.
Additionally, decisions by the Army Court of Military Review that preceded our decision in Murphy should have led the military judge here to conduct such an inquiry under these circumstances. See, e.g., United States v. Garcia, 26 MJ 844 (1988); United States v. Eberhardt, 24 MJ 944 (1987). Command influence is anathema to military justice; I would have hoped that, especially in this command — the 3d Armored Division, see United States v. Thomas, 22 MJ 388 (CMA 1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987) — this military judge would have been more sensitive and more responsive to defense counsel’s expressed concerns by, at a minimum, conducting an appropriate and reassuring inquiry of the parties.
I conclude by repeating what I urged in my separate opinion in Murphy:
[I]mpartiality can be assured by means of proper voir dire on the part of the judge and counsel, liberality in granting challenges for cause, and instructions by the military judge to the court-martial members that for anyone to consider their performance as members in preparing a fitness report would violate the Uniform Code of Military Justice....
26 MJ at 458. Of course, the best way to assure the fairness that these measures seek is to avoid the situation in the first place. As Judge Cox wrote in a footnote to his lead opinion in Murphy: “I shall go on record as agreeing with the principle that convening authorities should avoid placing superior-subordinate combinations on courts-martial to the extent practicable.” Id. at 456 n.*. I, too, agree.
I am somewhat concerned about efforts to overcharge in rape cases. Conviction of rape carries a possible maximum sentence including death. Art. 120, Uniform Code of Military Justice, 10 USC § 920; see para. 45e, Manual for Courts-Martial, United States, 1984. To add a charge of kidnapping — especially where such a charge is as strained as it is here on the facts — seems like overkill.