U NITED S TATES N AVY –M ARINE C ORPS
                     C OURT OF C RIMINAL A PPEALS
                                 _________________________

                                     No. 201400409
                                 _________________________

                         UNITED STATES OF AMERICA
                                         Appellee
                                             v.
                                JOSHUA D. NEWLAN
                           Corporal (E-4), U.S. Marine Corps
                                      Appellant
                               _________________________
        Appeal from the United States Navy-Marine Corps Trial Judiciary

           Military Judge: Lieutenant Colonel L.J. Francis, USMC.
 For Appellant: Lieutenant David W. Warning, JAGC, USN; LT Christopher C.
                           McMahon, JAGC, USN.
 For Appellee: Lieutenant Jetti L. Gibson, JAGC, USN; Captain Cory Carver,
              USMC; Lieutenant James M. Belforti, JAGC, USN .
                           _________________________

                               Decided 13 September 2016
                                _________________________

       Before PALMER, CAMPBELL, and RUGH, Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent, but may be cited as persuasive
authority under NMCCA Rule of Practice and Procedure 18.2.
                            _________________________

   RUGH, Judge:
   A general court-martial, consisting of members with enlisted representation, convicted
the appellant, contrary to his pleas, of sexual assault and adultery, in violation of Articles
120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2012). The
members sentenced the appellant to one years’ confinement, reduction to pay-grade E-1,
and a bad-conduct discharge. The convening authority approved the sentenced as adjudged.
    The appellant originally raised four assignments of error (AOE): (1) that “impairment,”
as used in Article 120(b), UCMJ, renders that statute unconstitutionally vague; (2) that the
military judge abused his discretion by providing the members an instruction which
incorrectly defined “impairment;” (3) that one of the panel members was biased; and (4)
                              United States v. Newlan, No. 201400409


that the evidence is legally and factually insufficient to support the sexual assault
conviction.
   This court specified two additional issues for briefing: (1) whether the military judge
abused his discretion when he denied a defense request for an instruction that explained
the legal relevance of intoxication on the ability to consent; and (2) whether closing
arguments of trial counsel describing the impact of alcohol on the victim’s ability to consent
were prejudicial error.
   On 16 October 2015, the appellant submitted supplemental AOE (1) claiming that his
adultery conviction denied him the equal protection of the law in violation of the Due
Process clause of the Fifth Amendment to the United States Constitution.
    On 10 November 2015, we returned the record for a hearing pursuant to United States
v. DuBay, 

(C.M.A. 1968), to develop facts related to original AOE (3). A
hearing was held on 10 February 2016, and subsequently, the DuBay judge returned his
findings of fact and conclusions of law. On 1 April 2016, the appellant submitted
supplemental AOE (2), asserting that the same panel member alleged in AOE (3) was
dishonest regarding statements made during voir dire about the legal standard for
“impairment.”
    Having considered the original and supplemental AOE and the specified issues, we
affirm the adultery conviction. However, we find merit in original AOE (2), set aside the
appellant’s sexual assault conviction and his sentence, and authorize a rehearing.1
                                         I. BACKGROUND
     On the evening of 16 November 2012, the appellant met Lance Corporal (LCpl) H for
the first time at a bar and pool hall located not far from Marine Corps Air Station Miramar,
California. The appellant and LCpl H spent the evening drinking, playing pool and
“flirting” with each other before they left the bar together to “have a cigarette.”2
   After a 20-minute absence, Sergeant (Sgt) B, a close friend of LCpl H, left the bar to find
LCpl H and accompany her home. As Sgt B walked into the parking lot, he noticed a parked
truck “shaking around” with the windows fogged.3 He looked inside the truck and saw the
appellant, naked from the waist down, on top of LCpl H and thrusting his hips.

   1 In accordance with our holding in United States v. Solis, __ M.J. __, 2016 CCA LEXIS 477 (N-
M. Ct. Crim. App. 2016), we summarily reject original AOE (1). Likewise, in accordance with our
holding in United States v. Hackler, 

(N-M. Ct. Crim. App. 2016), we summarily reject
supplemental AOE (1). We also note that CA’s action was not taken within 120 days of the
completion of trial as required by United States v. Moreno, 

(C.A.A.F. 2006). However, the
appellant alleges no prejudice resulting from this delay, and we find none.

   2   Record at 712.

   3   

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                                   United States v. Newlan, No. 201400409


     Sgt B rapped on the window and called out, “it’s time to go.”4 He then walked away
from the truck and waited in the parking lot until the appellant emerged. When LCpl H
failed to follow, Sgt B opened the passenger side of the truck and discovered her lying on
her back, unconscious, and naked from the waist down. After some effort, Sgt B was able to
rouse LCpl H and, with the appellant’s assistance, put LCpl H’s pants back on. LCpl H then
sat on the curb where she vomited. Sgt B hailed a cab and returned with LCpl H to the
barracks.
   When they arrived, Sgt B supported LCpl H, who was having trouble standing and
walking on her own, to his room, provided LCpl H some clothing, and left the room to allow
LCpl H to change.5 Once she did so, LCpl H climbed into Sgt B’s rack and fell asleep crying.
Growing concerned about the events he had witnessed, Sgt B called his supervisor and then
notified civilian authorities.
   Several hours later, LCpl H awoke confused, tired, and sick. Her genitals were sore as if
she had engaged in sexual intercourse. Otherwise, she had no memory of what occurred in
the truck. She initially declined to cooperate with authorities, to undergo a sexual assault
examination, or to permit law enforcement to confiscate her clothing. However, after
speaking to members of her command, LCpl H changed her mind and submitted to medical
examination. During this examination, she informed the doctor that “she remember[ed]
playing pool. . . and the next thing she remember[ed] was being in a truck and having
someone knock at her window.”6
   The appellant was charged with two violations of Article 120(b). Specification 1 of
Charge I alleged that he engaged in sexual intercourse with LCpl H while the appellant
knew or reasonably should have known that LCpl H was unconscious or unaware the
sexual act was occurring due to consumption of alcohol. The second specification, charged in
the alternative, alleged that the appellant engaged in the same sexual intercourse with
LCpl H but while she was incapable of consenting due to alcohol impairment and that such
condition was known or reasonably should have been known by the appellant. The military
judge informed the members that they could not convict the appellant of both specifications,
and the members returned a verdict of not guilty to Specification 1 but guilty to
Specification 2 of Charge I.
    The definition of “impairment” was of central concern to the parties before and during
trial.7 The first discussion of “impairment” occurred before trial when the defense brought a

      4   

      5   When LCpl H could not find her own room key, Sgt B took her to his room to sleep. 

83.

   6 Prosecution Exhibit 8. Neither the victim nor the appellant claimed to have any memory of

engaging in sexual intercourse.

      7   Article 120, UCMJ, does not provide a definition of “impairment.”



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                               United States v. Newlan, No. 201400409


motion to dismiss Specification 2 of Charge I as unconstitutionally vague, which resulted in
the following:
          [Military Judge] MJ: “Impaired” is the term you’re troubled by as being
          unconstitutionally vague?
          [Defense Counsel] DC: Yes, sir.
          MJ: Are DUI’s therefore unconstitutional? . . . [Y]ou’re saying a DUI, per se,
          that does not have a BAC of .08 merely charges impairment as defined under
          Article 111(c)(6)[, t]hat is unconstitutionally vague as well? Because
          impairment is pretty clear–clearly defined in Article 111(c)(6), right?
          Impairment means “[a]ny intoxication which is sufficient to impair the
          rational and full exercise of the mental or physical faculties.” So the code’s
          got a pretty good reference on what impairment means. . . . Because the
          government here is alleging that she was impaired by an intoxicant; right?
          Incapable of consenting because she was impaired by an intoxicant. They’ve
          charged it, now it’s their burden. They’ve got to tee that up and they’ve got to
          prove that beyond a reasonable doubt. . . . That there was sufficient to impair
          the rational and full exercise of mental and physical faculties.8
Relying in part upon the statutory definition of impairment in Article 111, UCMJ, the
military judge denied the defense motion to dismiss.
   During voir dire, the defense counsel queried the panel venire on how they interpreted
“consent” and “impaired” as it related to sexual assault. Many of the venire replied that
they had been trained by Sexual Assault Prevention and Response (SAPR) personnel that if
someone ingested any alcohol, that individual was no longer able to legally consent.9




    8   Record at 109.

    9 For example, comments from the venire included the following: Col C: “if you did have any
form of impairment, that [sic] you can’t have consent. You may -- the person would not be in the
proper frame of mind to provide that consent.” 

LtCol Pr: “[w]hen a person is impaired,
they are unable to give consent, regardless of what they say at the time.” Appellate Exhibit XLII at
92; LtCol Ph: “I viewed that as part of the training . . . [that for someone to consent] they just should
not be impaired.” Record at 454; also, “A person impaired from alcohol use is incapable of giving
sexual consent.” AE XLII at 180; Maj T: “A person no longer has the ability to give consent once
alcohol has impaired their judgment.” 

Captain S: “You need sober consent, per the brief.”

Captain Sa: “if there is alcohol involved, then there is no consent.” 

MSgt K: “if a
person was under the influence of alcohol, even one drink, that person is not able to give consent to
any sexual act.” 

MSgt D: “if a person has one drink of alcohol, they may be considered
impaired, therefore, they may not be able to give consent.” Record at 290; Sgt M: “once the victim
has had one drink, there is no longer a legal consent.” AE XLII at 80. LtCol Ph, Maj T, and MSgt D
all served as members on appellant’s court-martial.



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                               United States v. Newlan, No. 201400409


    As a result, the defense asked the subsequently-detailed military judge to reconsider the
ruling on the motion to dismiss Specification 2 as unconstitutionally vague, arguing that
the members had provided additional evidence on the term “impairment”:
       DC: I also have a vagueness motion, and we’ve heard repeated comments
       from the potential members. They don’t know what impairment means, and
       they don’t have an idea of whether it’s one drink, two drinks, .08.
        ....
       MJ: All right. Well, there is a definition of impaired that’s in Article 111 of
       the UCMJ. And this same definition of impaired applies to 112a, as is
       indicated here. And it’s Article 111, Paragraph (c)(6) states: ‘Impaired’ means
       any intoxication which is sufficient to impair the rational and full exercise of
       the mental or physical faculties.” So, I mean, there is a definition that’s
       included in the UCMJ of that phrase. Now, I realize, Article 120 doesn’t
       necessarily use that definition, but if there is no definition that’s in Article
       120 itself, for this particular term, then we’re supposed to turn to the Code to
       look at where it’s been defined elsewhere. So it seems to me, and I will point
       out that in the [Military Judge’s Benchbook]. . . they don’t define the word
       “impaired” either. But it seems to me, that if we’re looking for a definition of
       impaired, the best place to look would be another article under the Code, and
       that is the definition.
       DC: So we’re turning to an article involving drunk and reckless operation of
       a vehicle –-
       MJ: Right, you’re saying –-
       DC: Very, very different from a sexual act.
       MJ: Why? . . . [w]hy [would we] use a definition of impaired differently in
       120, than what we would use under Article 111?

    Not all of the members agreed with the information they received at SAPR training and the
military judge concluded that the members’ remarks described training that was focused on
prevention, e.g., “if there’s any amount of alcohol involved, it’s better safe than to be sorry. So just
assume that you can’t give consent or receive consent if there’s alcohol.” Record at 343.

     To address this issue, the military judge instructed each of these members substantially as
follows: “The accused is charged with certain offenses under the UCMJ, which require certain
elements to be met. And those elements, at least certain terms under those elements, have legal
definitions. So as you are – I mean eventually I will provide you all of those instructions. When I
provide you those instructions, if you hear something that is inconsistent with what you heard in
your SAPR training, do you agree to disregard what you heard during SAPR training and apply the
law that I provide you?” 

Every member agreed to do so.




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                             United States v. Newlan, No. 201400409


         DC: Sir, they are inherently different acts. In defining impairment, it’s
         complete[d] when driving a vehicle. People drink alcohol and they have sex.
         It’s something that happens. People do not drink alcohol to drive a vehicle.10
The military judge denied the motion to reconsider.
    At the close of evidence, trial defense counsel requested the following tailored
instruction on the interplay between alcohol impairment and LCpl H’s ability to consent:
         One of the elements that the prosecution must prove beyond a reasonable
         doubt is that at the time of the alleged sexual act, [LCpl H] was incapable of
         consenting to the sexual act due to impairment by an intoxicant.
         You are instructed that as a matter of law, an intoxicated person can consent
         to sexual activity. The mere consumption of an intoxicant, such as alcohol,
         does not necessarily render a person incapable of consenting to sexual
         activity. Persons who have consumed an intoxicant, such as alcohol, often
         exercise free will and make conscious decisions for which they are legally
         responsible. This is true even if the person does not later recall making the
         decision or if they later regret the decision. One example of this is drunken
         operation of a motor vehicle.
         The degree of an individual’s intoxication is relevant to determining if the
         person is capable of consenting to sexual activity. However, as a matter of
         law, there is no point of intoxication where a person is legally incapable of
         consenting to sexual activity. Put differently, the prosecution must
         affirmatively prove beyond a reasonable doubt that [LCpl H] was in fact
         incapable of consenting to the alleged sexual act. If you believe that [LCpl H]
         did consent, then the prosecution has failed to meet its burden and you must
         find the accused not guilty. Further, even if you do not believe that [LCpl H]
         consented, but you believe that [LCpl H] was capable of consenting at the
         time of the alleged sexual act, then the prosecution has failed to meet its
         burden and you must find the accused not guilty.
         You must totally disregard any training you may have received regarding
         consumption of alcohol and sexual activity, as that training does not
         accurately reflect the law. You must follow only my instructions on this issue
         in your deliberations.11
   The defense requested this instruction because they believed the words “incapable of
consent” and “impairment” were insufficiently defined. The defense argued that “[i]t’s vital
and the members need further explanation to clarify alcohol, especially as it relates to –

   10   Record at 347-48.

   11   AE LXVII at 3-4.



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                               United States v. Newlan, No. 201400409


well, alleged sexual acts.”12 This was so “in light of the hours of SAPR training that has
been received where they’ve been instructed regarding intoxication and alleged sexual
assaults. This [requested instruction] provides some clarity or for more – actually direction
other than what they seem to have received.”13
    The military judge declined to provide the defense instruction, opting instead to adhere
to the Military Judge’s Benchbook:
         I’m just going to give the standard [Benchbook] instruction. I think that’s the
         safest bet. That way–and you all can argue, if you’re going to argue based
         upon what the elements are and what the definitions are, but as far as trying
         to describe to the members how consent and intoxication and all of that
         might relate to each other and go contrary to what the [Benchbook] has, I’m
         not going to do that. I’m just going to go with what the [Benchbook] has. . . .
         It’s not to say that you are wrong. You certainly can argue the elements on
         that. I’m just not comfortable giving an instruction that differs from the
         [B]enchbook.14
    The military judge also informed the parties that he intended to provide the members
the definition of “impaired” found in Article 111(c)(6), UCMJ: “‘[I]mpaired’ mean[s] any
intoxication which is sufficient to impair the rational and full exercise of the mental or
physical faculties.”15
    The defense objected, arguing that such a definition would imply that “even the
slightest consumption of alcohol could cause a person to be impaired.”16 When asked why
the definition of “impairment” under Article 111, UCMJ, would be any different for “any
other offense under the code,” the defense repeated the argument provided to the previous
military judge: “it’s just a different mental acuity that it takes to drive a vehicle and the
rationale behind not driving a vehicle while intoxicated to protect the general public, I feel
that this is a more strict definition of ‘impairment’ than what should be applied to an
Article 120.”17




   12   Record at 1077-78.

   13   

   14   

   15   MANUAL FOR COURTS-MARTIAL, UNITED STATES (2102 ed.), Part IV, ¶ 35(c)(6).

   16   Record at 1075.

   17   

States v. Newlan, No. 201400409


   The trial counsel opposed the defense objection to the definition and the military judge
decided to provide it, stating that he was concerned that the members would eventually ask
him for such a definition:
         So, by me providing this up front, it eliminates the possibility, probability,
         high probability that they’re going to come back and I’m going to have to
         provide it later. So, at this point I understand, defense, your argument on
         that, but the term ‘impaired’ is a common definition under the code, and so, I
         see no reason why it shouldn’t have the same definition for an Article 120
         offense as it would for any other offense under the code.18
   The military judge then instructed the members as follows on the relevant portion of
Specification 2:
         In order to find the accused guilty of Specification 2 of Charge I, you must be
         convinced by legal and competent evidence beyond a reasonable doubt:
         One, . . . the accused committed a sexual act upon [LCpl H], to wit:
         Penetrating her vulva with his penis; and
         Two, that the accused did so at a time when [LCpl H] was incapable of
         consenting to the sexual act due to impairment by an intoxicant, to wit:
         Alcohol, and that condition was known or reasonably should have been
         known by the accused.19
         ....
         “Consent” means a freely given agreement to the conduct at issue by a
         competent person.
         An unconscious person cannot consent to a sexual act.
         “Impaired” means any intoxication which is sufficient to impair the rational
         and full exercise of the mental or physical faculties.
         The inability to remember because of intoxication is called “alcoholic
         amnesia” or “blackout.” A person in such a condition could still form the
         intent to do a certain act. Whether a person suffered a blackout is only one of
         the factors you should consider when deciding the extent and effect, if any, of
         the individual’s intoxication.20


   18  

AE LXVI at 2. However, in ruling on a separate motion to dismiss for unlawful
command influence, the military judge recognized that “there is a danger [that] . . . members could
use those expert opinions that were expressed during [SAPR] training in evaluating this evidence in
this case.” Record at 371.

   19   Record at 1105.

   20   

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                                United States v. Newlan, No. 201400409


         ....
         SAPR training. When evaluating the evidence in this case and the credibility
         of witnesses, you can only judge this case based upon the evidence admitted
         during this trial, these and other instructions on the law that I have provided
         you during the trial, and your own conscience. You shall not use anything you
         learned during SAPR training or any similar training in evaluating the
         evidence or the credibility of the witnesses in this case. As a result, during
         your deliberations, there can be no discussion among you or other comparison
         between the evidence you have heard in this case and what you may have
         been told in SAPR training.21
    Other than informing the members that an “unconscious person cannot consent to a
sexual act,” the military judge neither defined nor elaborated on “incapable of consent,” nor
did he specifically instruct them that “one drink means you can’t consent” was an erroneous
statement of the law.
                                            II. DISCUSSION
A. Instructional Error22
   The appellant argues that the military judge abused his discretion by failing to provide
an “accurate, complete, and intelligible statement of the law when instructing the
members.”23 The government counters that the instructions were not confusing and were
otherwise proper.
    Whether the members were properly instructed is an issue we review de novo. United
States v. Ober, 

, 405 (C.A.A.F. 2008). While the military judge has wide
discretion in choosing the instructions to give, the instructions must provide an “accurate,
complete, and intelligible statement of the law.” United States v. Behenna, 

, 232,
(C.A.A.F. 2012). Instructions should be “tailored to fit the circumstances of the case,” RULE
FOR COURTS-MARTIAL 920(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2102 ed.),
Discussion, and provide “lucid guideposts” to enable the court members to apply the law to
the facts. United States v. Buchana, 

, 396-97 (C.M.A. 1970).24


   21   

   22   Raised as original AOE (2).

   23   Appellant’s Brief of 16 Mar 2015 at 9.
   24  See also 

(“The military judge has an independent duty to determine and
deliver appropriate instructions.”); United States v. Dearing, 

, 479 (C.A.A.F. 2006) (noting
that “[i]t is a basic rule” that military judges provide instructions “sufficient to provide necessary
guideposts for an informed deliberation on the guilt or innocence of the accused”) (internal quotation
omitted); United States v. Curry, 

, 81 (C.M.A. 1993) (finding reversible error where the
military judge gave confusing and misleading instruction on defense of accident); United States v.
Westmoreland, 

, 163-64 (C.M.A. 1990) (noting that ”“the military judge “must bear the


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                               United States v. Newlan, No. 201400409


    We assess the military judge’s instructions “‘as a whole to determine if they sufficiently
cover the issues in the case and focus on the facts presented by the evidence.’” United States
v. Maxwell, 

, 424 (C.A.A.F. 1996) (quoting United States v. Snow, 

,
938-39 (10th Cir. 1996)). Any doubt as to how the members may interpret the instructions
must be resolved in favor of the accused. United States v. Williams, 

, 13, (C.M.A.
1977) (per curiam).
    Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who
is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the
standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you
can’t consent” axiom is the standard.25 And litigants and military judges who fixate solely
on the term “impairment” do so at their peril.26
    Instead, the statute establishes a required level of impairment. In other words, sexual
acts are prohibited only when the person’s impairment rises to the level of rendering him or
her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.
    “Consent” is a “freely given agreement to the conduct at issue by a competent person.”
Art. 120(g)(8), UCMJ. A “competent person” is one who “possesses the physical and mental
ability to consent.” United States v. Pease, 

, 770 (N-M. Ct. Crim. App. 2015),
aff’d, 

(C.A.A.F. 2016)).
    An “incompetent” person—and thus one “incapable of consenting” for purposes of Article
120—is a person whose impairment rises to the level of depriving him or her of the
“cognitive ability to appreciate the nature of the conduct in question or the physical or
mental ability to make [or] communicate a decision about whether they agreed to the
conduct.” Id; see also United States v. Solis, __ M.J. __, 2016 CCA LEXIS 477, at 10-11 (N-
M. Ct. Crim. App. 2016) (“A successful prosecution does not depend on a trial counsel’s or
panel’s subjective sense of how impaired is too impaired. Rather it depends on proving that
an accused knew, or reasonably should have known, that the other person was incapable of
consenting.”).
    With this legal foundation laid, we conclude the military judge, while adhering to the
Benchbook, nonetheless failed to provide the members an “accurate, complete, and
intelligible statement of the law.” 

. This is so for several reasons.



primary responsibility for assuring that the [panel] properly is instructed on the elements of the
offenses raised by the evidence as well as potential defenses and other questions of law”).

   25   Record at 1085.

    26 See Solis, 2016 CCA LEXIS 477, at 9 (helpfully warning that “the statue does not proscribe

sexual acts with impaired people, but rather with people incapable of consenting to the conduct at
issue because of their impairment”); United States v. Corcoran, No. 201400074, 2014 CCA LEXIS
901, unpublished op. (N-M. Ct. Crim. App. 23 Dec. 2014).



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                                  United States v. Newlan, No. 201400409


    First, we concur with the appellant that the military judge erred in providing the
members with the definition of “impairment” found in Article 111, UCMJ, which prohibits
the drunken or reckless operation of a vehicle. While “words generally known and in
universal use do not need judicial definition,” United States v. Nelson, 

, 321
(C.A.A.F. 2000) (citation and internal quotation marks omitted),27 we are mindful of a
military judge’s authority to provide additional definitions when he or she believes it to be
prudent. However, when deemed necessary, we see no reason to depart from the basic rule
of statutory construction—“[i]f a word that should be defined in a statute is not, then its
commonly accepted meaning is applied[.]”28 Moreover, as we discussed in United States v.
Chambers, 

, 835 n.4 (N-M. Ct. Crim. App. 2001), the Article 111, UCMJ,
definition of “impaired” is a term of art applicable only to that article. As is evident from
trial counsel’s closing arguments (discussed infra), instructing the members with terms
such as “any intoxication sufficient” to impair the “rational and full exercise,” amplified the
risk that members would confuse the distinction between any impairment and impairment
which was sufficient to render LCpl H “incapable of consenting.”
    We also emphasize here that the definition of impairment was not nearly as important
as informing the members that the impairment must rise to the level of rendering LCpl H
“incapable of consenting”—meaning that she was deprived of “the cognitive ability to
appreciate the sexual conduct in question or the physical or mental ability to make [or] to
communicate a decision” regarding that conduct to another person. 

.29
    While military judges are encouraged to adhere to the Benchbook under normal
circumstances,30 their obligation to tailor the instructions to the particular facts and issues
in a case is paramount.31 Strict adherence to the Benchbook must give way to “lucid
guideposts” when required.32 Under the facts of this case, and in light of this court’s

     27   See also United States v. Payne, 

, 26 n.10 (C.A.A.F. 2014).

     28   SINGER, SUTHERLAND STATUTORY CONSTRUCTION §47.07 (7th ed. 2008)

     We recognize the appellant’s trial took place prior to this court’s decision in Pease and Solis.
     29

However, on direct review courts apply the law at the time of the appeal, not the time of trial. See
United States v. Mullins, 

, 116 (C.A.A.F. 2010).

     30   See United States v. Riley, 

, 122 (C.A.A.F. 2013).

     31See United States v. Bigelow, 

, 67 (C.A.A.F. 2002) (holding that the military judge
did not err when she instructed members on the “critical principles of the standard accomplice
[testimony] instruction” instead of using “the standard [Benchbook] instruction, word for word”);
United States v. Hopkins, 

, 672 (A.F.C.M.R. 1987) (finding that the military judge did not
err in providing a non-standard instruction on the effects of a bad-conduct discharge adjudged at a
special court-martial which was more accurate than the standard Benchbook instruction).

32See 

(“To the extent military judges rely blindly on the pattern instructions
contained in . . . [the Benchbook] they may be doing so to the detriment of their records of trial.”).


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                              United States v. Newlan, No. 201400409


holdings in Pease and Solis, we find the military judge’s instructions failed to provide the
members with an accurate, complete, and intelligible statement of the law.
   In the future, when asked to provide a definition of impairment as applicable to Article
120(b), UCMJ, a military judge could instruct the members that:
        “Impairment” is the state of being damaged, weakened or diminished.
        Impairment rendering someone “incapable of consenting” is that level of
        impairment which is sufficient to deprive him or her of the cognitive ability to
        appreciate the nature of the conduct in question or the physical or mental
        ability to make or to communicate a decision regarding that conduct to
        another person.33
   Having found error, we now test for prejudice and review whether the error was
harmless beyond a reasonable doubt. United States v. Killion, 

, 214 (C.A.A.F.
2016). It is the government’s burden “‛to persuade the court that constitutional error is
harmless beyond a reasonable doubt.’” 

States v. Bush, 

, 102
(C.A.A.F. 2009)).
    We first note that the erroneous definition of “impairment” may have compounded the
legally-inaccurate proposition—that “one drink means you can’t consent”—that some
members received while attending mandatory SAPR training. While likely well-intentioned,
these statements made during training generated a significant risk of skewing the panel’s
understanding of legal consent. Though these members were generally instructed to “not
use [or discuss] anything you learned during SAPR training . . . in evaluating the evidence
or the credibility of the witnesses in this case,” a more tightly tailored and prompt
statement of the law would have ameliorated any prejudicial impact generated by the
legally-erroneous SAPR training.34 Since such a statement was not provided, we are not
convinced that any confusion created by the SAPR training was wholly eradicated and that
it did not contribute to the subsequent prejudice resulting from the incorrect definition of
“impairment.”
    Second, while the instructions informed the members that incapacity must be “due to
impairment” of alcohol, the definition of impairment that followed created a confusing mix
of terminology that risked members drawing the conclusion that “any intoxication . . .



   33 See Black’s Law Dictionary (Second Pocket Edition 2001); 

; 

n.4.

   34 When confronted with similar circumstances during voir dire, we encourage military judges to
provide an immediate curative instruction. Failing to do so forces the members to process the entire
court-martial while potentially laboring under the erroneous belief, perhaps impacting the questions
they decide to ask (or not ask), as well as the evidence they decide to request (or not request) to
inform their deliberations.



                                                12
                                United States v. Newlan, No. 201400409


sufficient to impair the rational and full exercise” of LCpl H’s faculties rendered her
incapable of consenting. While this court may be able to parse the terminology and
untangle the legal standards embedded within the instructions, we will not presume that
these members could.35
   Finally, the trial counsel’s statements during closing arguments continued to equate
incapacity with any level of impairment:
         He [the military judge] also instructed you that ‘impaired’ means any
         intoxication which is sufficient to impair the rational and full exercise of the
         mental or physical faculties. And who’s competent? Members, a mother
         walking down the aisles at the commissary, choosing what groceries to take
         off the shelf, thinking what am I going to make for dinner tonight, competent.
         You gentlemen sitting here today, competent. Marines walking around, doing
         their jobs, day to day stuff, they’re competent. At some point though, people
         stop being competent. Alcohol stops someone from being competent. So, how
         do we know that here, in this case, [LCpl H] wasn’t competent, she couldn’t
         make that choice, she couldn’t give that free agreement?36
   Next, the trial counsel asserted that LCpl H was intoxicated when she departed the bar
and, as a result, she was “someone who doesn’t have the full exercise of their rational and
physical faculties, someone who can’t make that choice to have sex, someone who can’t
consent.”37 Trial counsel then reiterated the fallacy that any level of alcohol impairment
renders one incompetent to consent to sexual activity:
         [The witness] puts us at a minimum of six [drinks], including three shots,
         and that’s just what she saw. At this point we are beyond the point where
         [LCpl H] could give that free agreement, where she was competent, had the
         full exercise of her rational and physical ability. She’s impaired members.
         She’s impaired by alcohol and she can’t consent to sex.”38
   Continuing later, trial counsel invoked the words of the court: “Now, the military judge
has instructed you what the rules are . . . and the rules say you cannot have sex with
someone who’s impaired by alcohol and, therefore, can’t consent.39 The trial counsel then

   35 See 

(“Even if we, as lawyers, can sift through the instructions and deduce
what the judge must have meant, the factfinders were not lawyers and cannot be presumed to
correctly resurrect the law.)”

   36   Record at 1127 (emphasis added).

   37   

(emphasis added).

   38   

   39   

(emphasis added).



                                                 13
                               United States v. Newlan, No. 201400409


stated: “[s]lurring, balance issues, reaction issues, walking issues. This is someone showing
signs of impairment. Sober adult watching it knows [LCpl H] is impaired by alcohol, and
right there, you get spec 2.”40
   Finally, the trial counsel’s concluding statements informed the members that:
         [I]t’s time to uphold that oath. It’s time to follow the law as the judge
         instructed you, to take those definitions of “consent,” something that is freely
         given by a competent person. It’s time to take that definition of “impaired.”. . .
         By the definition given to you of “impaired,” by the definition given to you of
         “consent,” by the law given to you by the military judge, apply the testimony
         about the number of drinks and about all the symptoms that were observed.
         It doesn’t matter that a blacked out person can still drink and had a
         conversation (inaudible) because the sober adult watching this whole thing
         evolve, sees all of these symptoms. The sober[,] prudent adult[,] that
         reasonable person knows this is someone impaired by alcohol and cannot
         consent because they’re not a competent person at this point.”41
    Trial counsel’s uncorrected comments significantly increased the risk that the members,
some of whom had already been exposed to identical, uncorrected SAPR training, would
believe that any impairment from alcohol alone legally rendered LCpl H incapable of
consenting.
   Considering these circumstances, we are left with grave doubts regarding the impact
that the instructional error may have had on the appellant’s conviction for sexual assault.42
We are therefore not persuaded that the error was harmless and will set aside the
appellant’s conviction as to this charge.

B. Biased or Dishonest Member43

   We next address the appellant’s argument that Master Sergeant (MSgt) D, a member on
the appellant’s court-martial, was biased or dishonest during voir dire regarding his beliefs
about the presumption of innocence.44



   40   

   41 

(emphasis added). No objection was lodged. Nor was any curative instruction
provided in response to any of the trial counsel’s comments.

   42 See United States v. Hartley, 

, 412 (C.M.A. 1966) (holding that where
instructions are sufficiently confusing to at least raise a “reasonable doubt” as to whether the
members “properly unders[tood] and utilized the correct standard for its findings” then “such doubt
must be resolved in favor of the accused”).

   43   Raised as original AOE (3) and as supplemental AOE (2).



                                                 14
                              United States v. Newlan, No. 201400409


    During group voir dire, the military judge instructed the members that the appellant
was presumed innocent and that “[t]he fact that charges have been preferred against this
accused and referred to this court for trial does not permit or support any inference of
guilt.”45 The military judge later asked the members whether “any of you formed or
expressed an opinion concerning the guilt or innocence of the accused.” MSgt D indicated
that he had not. Later, MSgt D responded that he could “presume [the accused] is
absolutely innocent of any wrongdoing” and that he believed that “the mere fact that he is
here today in this court martial is no indication that he is guilty of anything.”46 Neither side
challenged MSgt D.

    Approximately nine months after the appellant’s trial, MSgt D was again subjected to
voir dire in an unrelated court-martial for spousal and child abuse—United States v.
Felixcaro. During this subsequent trial, MSgt D was asked why he had a “visceral” response
to the charge sheet. He replied:

         Just the feeling that I got. The person doing—taking the charges for what
         they are, just reading them straight, what comes to mind is: I’m reading acts
         of a coward. So it’s just a reaction to—not saying that the person is guilty, but
         reaction that somebody would do something like that I have [a] strong
         reaction and—if somebody does something like that, sir.47

The trial counsel then tried to rehabilitate MSgt D by asking him to refer back to the
appellant’s case:

         [MSgt D] MBR: The Newlan case I want to say there was one—two or three
         specific occasions and it was the night the event “X” happened. They were at
         the bar. They went outside. And this is what happened. In this case, I read a
         multitude of times where the person is doing the same thing or something to
         that effect. So it—again, it just gives me a feeling of somebody dealing with
         somebody weaker and just being a coward about it.

         [Trial Counsel] TC: Uh-huh. And in your experience, for the Newlan case,
         did you necessarily think that, okay, [the appellant] was there so he must

   44 In supplemental AOE (2), the appellant also asserts that MSgt D was dishonest as to his
understanding of the level of impairment required to convict the appellant of sexual assault.
Although we strongly agree with DuBay judge’s finding that, “MSgt [D] did not omit any information
intentionally or unintentionally,” ultimately, MSgt D’s understanding of “impairment,” and thus the
supplemental AOE, is rendered moot by our decision on original AOE (2). AE XCI at 2.

   45   Record at 402.

   46   

   47   AE LXXXV at 27.



                                                15
                              United States v. Newlan, No. 201400409


         have done something wrong. He must have done—or at least he’s guiltier
         than I am sitting here.

         MBR: Well, I certainly believe if he made it all the way here, there was some
         decisions made. Because I haven’t made it to that seat. So I would assume
         there was some decisions made that were wrong. Because that’s the
         difference[—]Why I am in this seat and [the appellant] was in that seat in
         that case.48

Without opposition, the military judge excused MSgt D from further participation in the
subsequent court-martial.

   At the DuBay hearing, MSgt D was questioned on the apparent incongruity of his
answers given during the two disparate voir dire sessions. He responded:

         So when the charges were made—I answered the question honestly as I did
         with Felixcaro which brings me here today which was, “Can you look at his
         case [a]t his evidence and assume that he’s innocent and be impartial in your
         decision?” Yes, I could. Now, in Felixcaro, “Can you look at the evidence and
         be impartial?” No, because I have an initial reaction to the charges. So the
         Marine serves—his case would be looked at in a fair manner and as a
         member of the panel, can I do that? Honestly, sir, no, I could not. That’s the
         answer that I gave.49

The DuBay judge followed up:

         MJ: So you just—you think that having already sat through it and heard it
         and rendered a decision on it and then being asked about it months later was
         coloring how you were viewing it in hindsight?

         MBR: Absolutely. I mean, it would be foolish to say that the—reading the
         charges and looking at the evidence and having experienced reaching a
         verdict, having experienced reaching a sentence is not going to affect my
         views on it on the future. It’s—it’ll be, I think, a little bit irrational to think
         that it wouldn’t affect me in the future and how I view things and the
         comments that I make.

         ....

         MJ: As you sit there and think about that time and your frame of mind that
         you were in at that time and the presumption of innocence that the law

   48   

   49   DuBay Record at 17.



                                                 16
                                United States v. Newlan, No. 201400409


         requires that you presume regardless of the fact that he’s sitting where he’s
         sitting that you presume him to be innocent[?]

         MBR: Yes, sir.

         ....

         MJ: Is that how you felt at the time or did you feel like—

         MBR: That is exactly how I felt at the time, sir. Otherwise, I would’ve stated
         during the questioning that I have reservations about being there like I did
         with Felixcaro.50

    Based on these responses, the appellant asserts that MSgt D’s statements raise three
reasons why this court should set aside the findings: (1) actual bias; (2) implied bias; and
(3) untruthful responses.
    Voir dire is a critical dimension of a criminal trial as it serves to protect an accused’s
right to impartial factfinders by exposing possible biases, both known and unknown, on the
part of the jurors. The effectiveness of voir dire depends on members providing truthful
information so that both judge and counsel can evaluate the members’ qualifications and
suitability for court-marital service. In this vein, the Court of Appeals for the Armed Forces
(CAAF) has consistently emphasized member honesty during voir dire in order to permit a
fair member selection process. United States v. Mack, 

, 54 (C.M.A. 1994) (citing
United States v. Lake, 

, 323 (C.M.A. 1993) (explicitly rejecting “reticence” by
court members)); United States v. Rosser, 

, 273 (CMA 1979) (criticizing members’
“lack of candor” that “falls far short of the full disclosure mandated by . . . general
principles of military law”)).
    The Supreme Court has articulated a two-pronged test for determining if a new trial is
required when an error arises from a juror’s failure to disclose information in voir dire: “[A]
party must first demonstrate that a juror failed to answer honestly a material question on
voir dire, and then further show that a correct response would have provided a valid basis
for a challenge for cause.” McDonough Power Equipment v. Greenwood, 

, 556
(1984). Although McDonough Power is a civil case, the CAAF has applied this rule to
courts-martial.51
   We will adopt the findings of fact of the DuBay judge unless they are clearly erroneous.
United States v. Wean, 

, 463 (C.A.A.F. 1997).
   In his findings of fact, the DuBay judge found that “MSgt D was emphatic in his
responses that he was capable of following the law regarding the presumption of innocence


   50   

   51   See United States v. Sonego, 

, 3-4 (C.A.A.F. 2005).


                                                   17
                                United States v. Newlan, No. 201400409


and that he did in fact presume the appellant to be innocent.”52 He also found that MSgt D
“did not omit any information intentionally or unintentionally,” that his usage of the words
“wrong” and “decisions” within context “did not equate to criminal wrongdoing or a
predisposition towards guilt,” and that is was “clear that MSgt [D] had previously
presumed the appellant to be innocent in his case and felt he could be impartial in that
instance.”53 We do not find these facts to be clearly erroneous and thus conclude that the
appellant has failed to demonstrate that MSgt D answered dishonestly on any of the three
occasions on which he was questioned.
    Having determined that MSgt D’s responses were truthful, we must now determine
whether his expressed beliefs on the presumption of innocence would require his removal
“in the interest of having the court-martial free from substantial doubt as to legality,
fairness, and impartiality.” R.C.M. 912(f)(1)(N). This rule encompasses both actual and
implied bias. United States v. Clay, 

, 276 (C.A.A.F. 2007). Although actual bias
and implied bias are not separate grounds for challenge, they do require separate legal
tests. 

both actual and implied bias are based on the totality of the
circumstances. United States v. Terry, 

, 302 (C.A.A.F. 2007). The burden of
establishing the basis for a challenge is on the party making the challenge. United States v.
Daulton, 

, 217 (C.A.A.F. 1996) (citing R.C.M. 912(f)(3)).
    “Actual bias is personal bias that will not yield to the military judge’s instructions and
the evidence presented at trial.” United States v. Nash, 

, 88 (C.A.A.F. 2012)
(citation omitted). The test for implied bias is objective. Viewing the situation through the
eyes of the public and focusing on the perception of fairness in the military justice system,
we ask whether, despite a disclaimer of bias, most people in the same position as the court
member would be prejudiced. United States v. Moreno, 

, 134 (C.A.A.F. 2006). We
ask whether there is too high a risk that the public will perceive that the accused received
less than a court composed of fair and impartial members. United States v. Wiesen, 

, 176 (C.A.A.F. 2001).
    We decline to find bias in the context of this case in which there is no indication that
MSgt D was unwilling or unable to yield to the military judge’s direction and the evidence
during the appellant’s trial. Likewise, when viewed through the eyes of the public and
focused on the perception of fairness in the military justice system, we conclude there is no
risk that the public will perceive that the appellant received less than a court composed of
fair and impartial members based upon MSgt D’s responses.




   52   AE XCI at 2 (citation omitted).

   53   

3.


                                                 18
                           United States v. Newlan, No. 201400409


                                     III. CONCLUSION
    The appellant’s convictions on Specification 2 of Charge I and of Charge I are set aside.
His convictions on Charge II and its sole specification are affirmed. The sentence is set
aside, and a rehearing on Specification 2 of Charge I and on the sentence is authorized.
   Chief Judge PALMER and Senior Judge CAMPBELL concur.


                                             For the Court



                                             R.H. TROIDL
                                             Clerk of Court




                                             19