Full Opinion

This opinion is subject to administrative correction before final disposition. Before KORN, HARRELL, and DAVIS Appellate Military Judges _________________________ UNITED STATES Appellee v. Nixon KEAGO Midshipman, U.S. Navy Appellant No. 202500175 _________________________ Decided: 30 September 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Frankie D. Hutchison Sentence adjudged 24 January 2025 by a general court-martial tried at Naval Station Norfolk, Virginia. Sentence in the Entry of Judgment: forfeiture of all pay and allowances, confinement for 10 years, and a dismissal.1 For Appellant: Lieutenant Commander Alaric A. Piette, JAGC, USN For Appellee: Lieutenant Erin H. Bourneuf, JAGC, USN 1 Appellant was credited with 1,799 days of pretrial confinement. United States v. Keago, NMCCA No. 202500175 Opinion of the Court Commander John T. Cole, JAGC, USN Lieutenant Colonel A. Louis Evans III, USMC Mr. Brian K. Keller Chief Judge KORN delivered the opinion of the Court, in which Senior Judge HARRELL and Judge DAVIS joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ KORN, Chief Judge: A panel of members convicted Appellant, contrary to his pleas, of one spec- ification of attempted sexual assault, two specifications of sexual assault, and two specifications of burglary, in violation of Articles 80, 120, and 129, Uniform Code of Military Justice (UCMJ).2 The military judge conditionally dismissed one of the specifications of sexual assault after findings. The members sen- tenced Appellant to forfeiture of all pay and allowances, confinement for 10 years, and a dismissal. Appellant raises five assignments of error (AOE): I. Whether Appellant’s right to an impartial panel was vi- olated where the military judge abused his discretion and denied voir dire of a panel member who cried during opening statements. II. Whether Appellant’s right to an impartial panel was violated where the military judge denied Appellant’s challenge for cause for implied bias for two members. 2 10 U.S.C. §§ 880, 920, 929. The members found Appellant not guilty of one spec- ification of sexual assault, two specifications of burglary, and one specification of ob- structing justice, in violation of Articles 120, 129, and 131b, UCMJ. 2 United States v. Keago, NMCCA No. 202500175 Opinion of the Court III. Whether the evidence is factually insufficient to sup- port Appellant’s conviction of sexual assault without con- sent. IV. Whether the evidence is factually insufficient to sup- port Appellant’s conviction for attempted sexual assault. V. Whether the evidence is factually and legally insuffi- cient to support Appellant’s conviction for burglary. We find no prejudicial error and affirm the findings and sentence. I. BACKGROUND Appellant, a Midshipman (MIDN) at the United States Naval Academy (USNA), was charged with committing crimes against three female Midship- men.3 The members found him guilty of the offenses relating to two of the Mid- shipmen—MIDN J.M. and MIDN G.M.—and not guilty of offenses relating to the third. Midshipman J.M. Midshipman J.M. and Appellant were in the same company at USNA. They were cordial to one another, but not friends. In October 2018, after a night out, MIDN J.M. returned to her dormitory room and went to bed. Midshipman J.M. then awoke to Appellant rubbing his penis against her vagina. Midshipman J.M. immediately pushed Appellant away. Appellant initially attempted to cover his face and identified himself as “Johnny.” But when MIDN J.M. recog- nized him, Appellant claimed that she invited him to her room. Midshipman J.M. immediately sought help and reported that Appellant had sexually as- saulted her. Midshipman G.M. In May 2019, MIDN G.M. deployed on board a USNA Yard Patrol Craft (YP) as part of a multi-ship training exercise. Appellant participated in the same exercise on a different YP. While in New York City for Fleet Week, Ap- pellant approached MIDN G.M. at a bar and they drank shots of alcohol to- gether. Appellant and MIDN G.M. then walked together to the YP berthing area. Appellant followed MIDN G.M. onto her ship. A short time later, after 3 By the time of Appellant’s court-martial, all three female Midshipmen had grad- uated. We refer to them in this opinion by their status at the time of the offenses. 3 United States v. Keago, NMCCA No. 202500175 Opinion of the Court MIDN G.M. had gone to bed, Appellant entered the female berthing and stuck his head through the curtains covering MIDN G.M.’s rack. Midshipman G.M. told Appellant to leave. She then heard the door to female berthing open and close. Later that night, MIDN G.M. awoke to Appellant in her rack. Appellant was pressing his body against her, kissing her neck, pulling her shorts down, and pressing his erect penis against her. Midshipman G.M. told him to “get the f[***] out” and said, “you need to leave.”4 Thirty minutes later, Appellant re- turned a third time, waking MIDN G.M. She told Appellant to leave, then texted the ship’s group chat asking whoever was on watch to get Appellant out of female berthing. Appellant later returned a fourth and final time. Midshipman G.M. again awoke to Appellant in her rack, pressing his body against hers and pressing his erect penis against her. Midshipman G.M. left her berthing area, found a watchstander, and led him to Appellant, who was undressed and hiding under the sheets in MIDN G.M.’s rack. First court-martial Appellant was initially tried and convicted in August 2020, contrary to his pleas, of attempted sexual assault, sexual assault, burglary, and obstructing justice, in violation of Articles 80, 120, 129, and 131b. He was sentenced to confinement for 25 years, forfeiture of all pay and allowances, and a dismissal. However, the Court of Appeals for the Armed Forces (CAAF) set aside the find- ings and sentence due to the military judge’s failure to excuse two members for implied bias.5 Second court-martial Appellant’s second court-martial resulted in this appeal. Prior to selecting members to serve on Appellant’s court-martial, the convening authority solic- ited written questionnaires from potential members. One member who ulti- mately served on Appellant’s court-martial, Chief Warrant Officer 3 (CWO3) S.L., answered “yes” on his member questionnaire to “Do you believe that peo- ple may have a subconscious bias related to race?”6 CWO3 S.L. elaborated on the questionnaire that “We live in a society where race is continuously brought up about everything. I do not have a bias against anyone but know there are 4 R. at 1530. 5 United States v. Keago, 84 M.J. 367 (C.A.A.F. 2024). 6 App. Ex. LXXXII at 49. 4 United States v. Keago, NMCCA No. 202500175 Opinion of the Court many people out there that do.”7 Defense counsel followed up on this issue dur- ing individual voir dire: Defense counsel (DC): Can you tell me a little bit about the first part of that answer, where in your view, race is kind of some- thing that’s continuously brought up. CWO3 S.L.: It’s 2025. No matter what you’re a part of, there’s always statistics and stuff going out there. So, if you’re looking on the news, any type of political thing, non--race is involved. That’s all I’m trying to--trying to say on that. DC: Yeah. CWO3 S.L.: Job interviews, you know, it’s everywhere. DC: Yeah. How do you feel about that? It’s like too much satura- tion? CWO3 S.L.: Roll with the flow. It’s--it’s the day and age we’re in and-- DC: Yeah. CWO3 S.L.: --just do what I’m supposed to do. DC: How about in the military context? Do you feel like you hear quite a bit about it, diversity, equity, inclusion-type stuff? CWO3 S.L.: You see it on boards, promotion boards, specific--for instance, you know, warrant officer boards. They come out--sta- tistics after the fact showing that-- DC: Sure. CWO3 S.L.: --there were this percentage of this ethnicity or race was chosen and so, on. So, again, it’s kind of--it’s brought up into everything, it seems. DC: Yeah, yeah, that’s true. Do you--do you have strong feelings about the fact that that is kind of brought up about everything? CWO3 S.L.: No, just answering the question, you know, in re- gard to “if yes, explain; if no, explain.” So, yes, and that’s just kind of the explanation for it. DC: Gotcha, okay. And the first part of that was just do you be- lieve that people could have subconscious biases. You said--you 7 App. Ex. LXXXII at 49. 5 United States v. Keago, NMCCA No. 202500175 Opinion of the Court said yes. So, tell me what your thoughts are about subconscious biases. CWO3 S.L.: If somebody, were to, you know, watch the news a lot or read articles and hear certain things about specific ethnic- ities or race, the next time it’s bought up, I mean, they--subcon- sciously it might pop up in the back of their head for something they heard-- DC: Right. CWO3 S.L.: --previously. DC: Gotcha, yeah. So, if you spend your time kind of mainlining, you know, news about immigration or something like that, maybe that can inform your view or opinion of a--of a person, you know, who may have immigrated to the country or something like that. Is-- CWO3 S.L.: It could. DC: --that kind of like--gotcha. And you may not even realize what you’re doing mentally as you’re--as you’re doing that. CWO3 S.L.: Sure. DC: Is that about, right? CWO3 S.L.: Yes, sir.8 Appellant then challenged CWO3 S.L. for implied bias, and the military judge denied the challenge. The military judge later denied defense counsel’s request to voir dire an- other member—Ensign (ENS) A.C.—who defense counsel claimed had cried during opening statements. Defense counsel informed the military judge that ENS A.C. “appeared to be crying at various points” of opening statements. De- fense counsel stated that ENS A.C. “was sort of tearing up, wiping away tears, et cetera,” and requested to ask additional voir dire questions of ENS A.C. The military judge denied the Defense request, stating that he had “allowed robust voir dire of all the members. . . . I’m not inclined to create a remedy for some- thing I’m not sure is an issue yet.”9 After the presentation of evidence, prior to closing arguments, defense counsel notified the military judge that another member—Lieutenant (LT) 8 R. at 639–41. 9 R. at 914–15. 6 United States v. Keago, NMCCA No. 202500175 Opinion of the Court M.L.—was in the bathroom at the same time as Appellant, who was hand- cuffed, shackled, and accompanied by a guard. The military judge asked LT M.L. a series of voir dire questions and allowed defense counsel to ask addi- tional questions. Neither the military judge nor defense counsel explicitly asked LT M.L. if he observed Appellant in handcuffs and shackles, instead asking “Anything about that interaction strike you as odd, unusual, unique? Did you notice anything peculiar about that?”10 “Did you notice anything dif- ferent or unusual about his uniform?”11 LT M.L. responded in the negative to these questions. Appellant challenged LT M.L. for implied bias, and the mili- tary judge denied the challenge. II. DISCUSSION A. The military judge did not abuse his discretion by declining to voir dire a member who appeared emotional during opening statements. 1. Standard of Review We review denial of voir dire to determine whether there was “a clear abuse of discretion.”12 An abuse of discretion occurs “when the military judge’s find- ings of fact are clearly erroneous, the court’s decision is influenced by an erro- neous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.”13 2. Analysis “As a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel.”14 Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member shall be excused for cause when- ever it appears that the member “should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fair- ness, and impartiality.” The military judge and both parties engaged in robust voir dire of all the members, including ENS A.C. Following voir dire, neither party challenged ENS A.C. After opening statements, however, defense counsel notified the mil- itary judge that ENS A.C. “appeared to be crying at various points” during 10 R. at 2002. 11 R. at 2004. 12 United States v. Jefferson, 44 M.J. 312, 317 (C.A.A.F. 1996) (citations omitted). 13 United States v. Harborth, 85 M.J. 469, 476 (C.A.A.F. 2025) (citations omitted). 14 United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001). 7 United States v. Keago, NMCCA No. 202500175 Opinion of the Court opening statements.15 Defense counsel requested to conduct additional voir dire of EN A.C. to determine: Was that related to something we talked about in voir dire, you know, that has kind of been triggered? Was it something we--you know, that she didn’t think of and is like, oh my god, and we just kind of missed it in voir dire? And then is she going to be able to, you know, sit through the case and fairly and impartially try this case . . . ?16 The military judge denied the request, determining that “[T]o bring in a mem- ber now and ask them about what they thought of opening statements, how it affected them is problematic,” but offered to “revisit it if things like that con- tinue.”17 Appellant did not challenge ENS A.C. for cause, made no additional motions, and did not raise this issue again.18 “The military judge is the presiding authority in a court-martial . . . [and] has broad discretion in carrying out this responsibility, including . . . con- trol[ling] voir dire.”19 Appellant now argues that the military judge should have allowed additional voir dire of ENS A.C. because, “At the very least, something was said during opening statements that caused a negative emotional reaction in ENS [A.C.] that she had not revealed in voir dire.”20 While we agree with the characterization of crying as an emotional reaction, Appellant’s assertion that it was based on something ENS A.C. “had not revealed in voir dire” has no basis in the record. Courts-martial are often emotionally charged, dealing with sensitive issues. Appellant’s case was no different. There was therefore nothing highly unusual or concerning about a member appearing emotional during opening statements, where counsel previewed the evidence in a case involving alleged sexual offenses. And such a reaction in no way “called into 15 R. at 913. 16 R. at 914. 17 R. at 915. 18 Appellant asserts that “Trial defense counsel believed that a ground for chal- lenging ENS [A.C.] became apparent when she started crying during opening state- ments.” Appellant’s Brief at 29. The fact that defense counsel did not challenge ENS A.C. belies this statement. 19 United States v. Quintanilla, 56 M.J. 37, 41 (C.A.A.F. 2001). 20 Appellant’s Brief at 29. 8 United States v. Keago, NMCCA No. 202500175 Opinion of the Court question the veracity of her [previous voir dire] answers,” as Appellant con- tends.21 We agree with the military judge’s determination that it is inappropri- ate to question a member following opening statements to see how she was impacted by the summation of the expected evidence.22 Such questioning could intrude on the individual’s deliberative process and could allow counsel to ad- just their strategy based on the member’s responses. The military judge’s de- cision on this issue was well within the range of choices reasonably arising from the applicable facts and the law and was therefore not an abuse of discre- tion. B. The military judge properly denied challenges for implied bias against two members. 1. Law/Standard of Review A member shall be excused for cause whenever it appears that he or she “[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.”23 The CAAF has held that this rule encompasses the two types of bias: actual and implied.24 Implied bias is “bias attributable in law to the prospective juror regardless of actual partiality.”25 The test for implied bias is one of public perception: “whether . . . the public will perceive that the accused received something less than a court of fair, impartial members . . . .”26 In applying that test, we con- sider “the totality of the circumstances, and assume the public to be familiar with the unique structure of the military justice system.”27 Military judges must err on the side of granting defense challenges for cause.28 The CAAF has termed this the “liberal grant mandate,” which recog- nizes that “the interests of justice are best served by addressing potential mem- ber issues at the outset of judicial proceedings.”29 The CAAF has held that, 21 Appellant’s Brief at 31. 22 This is especially true here, where the military judge was able to see ENS A.C. from the bench, and he did not notice anything of concern. R. at 914. 23 R.C.M. 912(f)(1)(N). 24 United States v. Miles, 58 M.J. 192, 194 (C.A.A.F. 2003). 25 United States v. Wood, 299 U.S. 123, 134 (1936). 26 United States v. Woods, 74 M.J. 238, 243-44 (C.A.A.F. 2015) (citation modified). 27 Id. at 244. 28 United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007). 29 United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (citations omitted). 9 United States v. Keago, NMCCA No. 202500175 Opinion of the Court under the liberal grant mandate, if the military judge finds an implied bias challenge to be a close question, the challenge should be granted.30 We review a military judge’s implied bias analysis under a standard of re- view “that is less deferential than abuse of discretion, but more deferential than de novo review.”31 While “it is not required for a military judge to place his or her implied bias analysis on the record, doing so is highly favored and warrants increased deference from appellate courts.”32 When a military judge fails to conduct an implied bias analysis, the standard of review shifts toward de novo.33 Accordingly, the more reasoning military judges provide, the more deference they will receive.34 “Military judges retain their discretion to deter- mine whether a challenge for cause constitutes a ‘close case’ of bias. However, when a case is close, the liberal grant mandate prohibits military judges from denying the challenge.”35 2. Analysis Chief Warrant Officer 3 S.L. Appellant alleges that CWO3 S.L. “appeared to be hiding racial animus.”36 We find this contention unsupported by the record. When asked a question about whether people may have a subconscious bias about race, CWO3 S.L. answered that people do, but he does not. Defense counsel followed up with extensive questions during individual voir dire, exploring such topics as race, immigration, and diversity, equity, and inclusion. CWO3 S.L. answered each question, reiterating throughout that race is a frequently discussed societal issue, but he made no statements indicating a personal bias or prejudice re- garding race or any similar topic. He explicitly stated in his questionnaire that “I do not have a bias against anyone but know there are many people out there that do.”37 When asked by defense counsel if he had “strong feelings about the 30 Id. 31 Peters, 74 M.J. at 33 (citations omitted). 32 United States v. Dockery, 76 M.J. 91, 96 (C.A.A.F. 2017). 33 United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F. 2016). 34 Id. 35 Keago, 84 M.J. at 372. 36 Appellant’s Brief at 31. 37 App. Ex. LXXXII at 49. 10 United States v. Keago, NMCCA No. 202500175 Opinion of the Court fact that [race] is kind of brought up about everything,” he said he did not, explaining he had only discussed race because he was asked about it.38 When resolving an issue of implied bias, we first determine where to fix our view along “a sliding standard of appellate review . . . based on the specific facts of the case.”39 Here, the military judge correctly cited the law and pro- vided a detailed explanation of his implied bias analysis, reasoning: Recognizing the liberal grant mandate, recognizing that--and applying that standard . . . implied bias is viewed objectively through the eyes of the public. Implied bias exists if an objective observer would have substantial doubt about the fairness of the accused’s panel. And in looking at the totality of the circumstances, including what an observer would know about the--and recognizing that that observer would know about the unique military justice sys- tem, I--the court did not see this to be a close call. The defense’s point is well taken that there--that he did answer questions about race on his questionnaire, but I’ll note that he says, “I do not have a bias against people--against anyone, but I recognize . . .”--I’m paraphrasing, “I recognize that people do.” Here he tes- tified that race does exist when prompted. He didn’t bring that up. And the defense counsel’s questions did sort of lead him into a line of questions about how race plays out in different boards and different--where it shows up. But I think the trial counsel’s point is well taken that it never applied to him. The last set of questions about--and I think [defense counsel’s] exact language was, you know, if you’re mainlining news about immigrants com- mitting crimes, then maybe subconsciously you could--you could harbor some ill will or bias against immigrants because that’s the news you’re feeding. And [CWO3 S.L.] agreed with that sen- timent but never tied it to him, never tied it to whether or not [CWO3 S.L.] is mainlining information about race or--or ethnic- ity or immigration status or any other cultural concern. The idea that he recognizes that subconscious bias is out there and that people who feed into narratives may exhibit that is a truism . . . doesn’t mean it applies to him. And there were no questions I found that indicated he would have any bias. And I 38 R. at 640. 39 Keago, 84 M.J. at 373. 11 United States v. Keago, NMCCA No. 202500175 Opinion of the Court think a member of the public, understanding all of the unique nature of the military justice--and knowing all the facts and cir- cumstances would not harbor any doubt that with [CWO3 S.L.] on the panel [Appellant] could get a fair trial. So, based upon that, that challenge for cause for implied bias is denied.40 Based on this comprehensive ruling which applied the correct law, our standard of review affords the military judge increased deference, closer to an abuse of discretion standard. We agree with the military judge that CWO3 S.L.’s answers did not indicate any bias, and nothing in the record would cause the public to doubt whether CWO3 S.L. could sit as a fair and impartial mem- ber. He was therefore not impliedly biased. Lieutenant M.L. Appellant challenged LT M.L. for implied bias after LT M.L. was in the bathroom at the same time as Appellant, while Appellant was in handcuffs and shackles. Despite the evidence indicating otherwise, Appellant unequivocally states that “[LT M.L.] saw the Appellant in shackles,”41 and argues that “The only inference [LT M.L.] could draw was that Appellant was dangerous and needed to be shackled: in short, that he was more likely to be guilty of the crimes he was accused of committing.”42 Appellant also argues the judge could have potentially resolved any potential issue by issuing curative instructions— which Appellant did not request at trial—and by asking “clarifying questions to further explore why LT M.L. claimed to have not seen the restraints despite being within three feet of Appellant in a well-lit room.”43 Defense counsel specifically asked the military judge to question LT M.L. “in a tactful way whereby we’re not directly sort of telling him the thing that we’re trying to keep from him.”44 This was a reasonable tactical decision by defense counsel, and we will not fault the military judge for adhering to that approach. Furthermore, defense counsel asked his own questions of LT M.L. and again made the rational tactical decision not to explicitly ask whether he observed Appellant in shackles. In denying the challenge for cause, the mili- tary judge stated, “The defense did have the opportunity to ask the ultimate question and ask whether or not you saw shackles, and it chose not to do that 40 R. at 645–47. 41 Appellant’s Brief at 24. 42 Appellant’s Brief at 36. 43 Appellant’s Brief at 37. 44 R. at 1999. 12 United States v. Keago, NMCCA No. 202500175 Opinion of the Court for very understandable reasons, but we’re left with the information we have.”45 We agree with the military judge. Appellant had every opportunity to develop the record on this issue. Defense counsel made an understandable tac- tical decision about how to question LT M.L., and ultimately did not request the military judge provide any additional instructions to LT M.L.46 We are left with the facts in the record before this Court, and we decline Appellant’s invi- tation to conclude that the record demonstrates that “The only inference [LT M.L.] could draw was that Appellant was dangerous and needed to be shack- led.”47 While there is no evidence in the record that LT M.L. saw Appellant in shackles, the record does reflect that LT M.L. observed a guard in the bathroom with Appellant. The Supreme Court has held that the use of security personnel at trial is not inherently prejudicial.48 Because “it is entirely possible that ju- rors will not infer anything at all from the presence of the guards. . . . so long as their numbers or weaponry do not suggest particular official concern or alarm,” courts take a case-by-case approach to determine whether the presence of security personnel is prejudicial.49 Here, the military judge properly applied this approach and discussed the presence of the guard with LT M.L.: MJ: Anything about him having a guard there give you any kind of feeling one way or the other? LT M.L.: No, sir. MJ: You just understand that that’s policy . . . LT M.L.: Yes, sir. ... 45 R. at 2009. 46 Appellant argues that—despite defense counsel’s lack of a requested instruc- tion—“The military judge could have instructed LT [M.L.] that the presence of the guard and even the shackles ‘are implemented for the safety of all trial participants, and they in no way have any bearing on the accused’s guilt or innocence.’ Had he done so, and LT [M.L.] understood and agreed, Appellant might not have been prejudiced by having an impartial panel.” Appellant’s Brief at 37. However, such an instruction would have highlighted the presence of the shackles for a member who, based on the evidence in the record, appears to not have seen them. 47 Appellant’s Brief at 36. 48 Holbrook v. Flynn, 475 U.S. 560, 569 (1986). 49 Id. 13 United States v. Keago, NMCCA No. 202500175 Opinion of the Court MJ: Anything about that interaction--did you see Midshipman Keago in any kind of light differently than you see him here in court today? LT M.L.: No, sir. ... MJ: And anything about that interaction at all give you any pause about being a fair and impartial member in this case? LT M.L.: No, sir.50 Appellant now argues that LT M.L. should have been dismissed for implied bias both because of the interaction in the bathroom and because of his “history as a [Sexual Assault Prevention and Response Victim Advocate]. . . [his] his- tory as a Legalman, [and] his interest in the law and being a panel member.”51 However, at trial Appellant did not challenge LT M.L. following initial voir dire, basing the later challenge solely on the interaction in the bathroom. De- fense counsel asked extensive voir dire questions of LT M.L. prior to impanel- ing the members and was aware of the additional matters Appellant now con- tends add to the implied bias argument. Because Appellant affirmatively de- clined to challenge LT M.L. after initial voir dire,52 and later challenged him based only on the interaction in the bathroom,53 Appellant waived any implied bias claim as to LT M.L.’s history as a Sexual Assault Prevention and Response Victim Advocate, his status as a Legalman, or his interest in being a panel member, and we will not consider those issues here.54 Just as he did with CWO3 M.L., the military judge correctly cited the law and provided a detailed explanation of his implied bias reasoning: The court finds that--as fact that [LT M.L.] moved past the ac- cused while the accused was washing his hand in the head. He 50 R. at 2002–04. 51 Appellant’s Brief at 37. 52 R. at 829. 53 R. at 2006–07. 54 See, e.g., United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009); United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020). Even if we were to review this for plain error, we would find no plain error in the military judge’s denial of the challenge for cause against LT M.L., as these facts would not cause a member of the public to perceive that Appellant received some- thing less than a court of fair, impartial members. 14 United States v. Keago, NMCCA No. 202500175 Opinion of the Court saw him washing his hands. . . . The court posed several ques- tions trying to see if he--[LT M.L.] would indicate in some way that he saw shackles or a belt or anything, even followed up from the defense counsel with a question about his uniform, and [LT M.L.] answered what I can only assume is truthfully, because he swore to, that he didn’t see anything, didn’t notice anything about the uniform. He was trying not to pay attention to him. He did see a guard, but when questioned he indicated that he un- derstood that was just policy and that he would not infer any guilt or dangerousness from the accused. He didn’t tell any of the other members about his interactions, to the extent there were any interactions--with any of the members. And, in fact, he described his interactions in the head with the accused as wholly unremarkable. When questioned directly about whether he could still be a fair and impartial member, he indicated he could. So, certainly I don’t find any actual bias. But I also, think a mem- ber of the public, knowing all the unique facts and circumstances and understanding the military justice system, would not harbor any doubt that [LT M.L.] could be fair and impartial or that [Ap- pellant] could continue to get a fair trial based on that. Again, the interaction, as the court finds, it was unremarka- ble. The--the defense did have the opportunity to ask the ulti- mate question and ask whether or not you saw shackles, and it chose not to do that for very understandable reasons, but we’re left with the information we have. And there’s nothing from what [LT M.L.] said that indicates to the court or to a member of the public that he had anything but a wholly unremarkable interaction, if you can call it that, with the accused. They did not speak. He did not hear anything unusual. The defense made ref- erence to a clicking sound with--I believe the defense counsel’s words were an unmistakable clicking sound of shackles being closed. When I asked if [LT M.L.] heard anything, he said he didn’t hear anything unusual. He essentially--probably recogniz- ing that he shouldn’t have interactions with the accused, he maintained as much distance as you could in that small room, used the urinal around the corner, and did not talk to, did not hear conversations. ... Just for the record, the court considered the liberal grant mandate when looking at that, and when considering the liberal 15 United States v. Keago, NMCCA No. 202500175 Opinion of the Court grant mandate, you know, close calls should be granted in favor of the defense. The court did not see this as a close call. . . . So, even recognizing the liberal grant mandate, the court does not see this as a close call and thinks that an unbiased member of the public, knowing the only--knowing and hearing the evidence that [LT M.L.] presented about what his interac- tions were, to the extent there were interactions at all, with the accused would not harbor significant doubt or any doubt that [LT M.L.] . . . could remain fair and impartial, including the fact that [LT M.L.] said he could, and that [Appellant] could get a fair trial. So, again, the implied-bias challenge is denied, even considering the liberal grant mandate.55 Based on this detailed ruling which applied the correct law, our standard of review affords the military judge increased deference, closer to an abuse of discretion standard. Lieutenant M.L.’s answers indicated that he was not im- properly impacted by his brief proximity to Appellant or the guard. Nothing in the record would cause the public to doubt whether LT M.L. could sit as a fair and impartial member. We therefore agree with the military judge that LT M.L. was not impliedly biased. C. Appellant’s conviction for sexual assault is factually sufficient. 1. Standard of Review In evaluating factual sufficiency in cases such as Appellant’s, where the alleged misconduct occurred before 2021, we consider “whether, after weighing the evidence in the record of trial and making allowances for not having per- sonally observed the witnesses, [we] are . . . convinced of [Appellant’s] guilt beyond a reasonable doubt.”56 In conducting this unique appellate function, we take “a fresh, impartial look at the evidence,” to “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.”57 Proof beyond a “[r]easonable doubt, however, does not mean the evidence must be free from conflict.”58 55 R. at 2008–12. 56 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). 57 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 58 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006). 16 United States v. Keago, NMCCA No. 202500175 Opinion of the Court 2. Analysis To convict Appellant of sexual assault, the Government had to prove that: (1) Appellant committed a sexual act upon MIDN J.M. by penetrating her vulva with his penis; and (2) that he did so by causing bodily harm to her.59 “Bodily harm” means any offensive touching of another, however slight, includ- ing any nonconsensual sexual act or nonconsensual sexual contact.60 Appellant argues that the element of bodily harm—caused by penetration of MIDN J.M.’s vulva by Appellant’s penis—is not supported by the evidence, because of contradictions “between [MIDN J.M.’s] testimony and what she told the [sexual assault nurse examiner].”61 Appellant further argues that “The [sexual assault forensic examination] provides material evidence . . . that [MIDN J.M.] was wearing . . . sweatpants at the time of the alleged assault; meaning [Appellant’s] penis could not have penetrated her vulva.”62 We disa- gree with Appellant’s description of the evidence and the weight to apply to any evidentiary inconsistencies. Midshipman J.M. provided convincing and compelling testimony describ- ing how she awoke to find Appellant “rubbing [his penis] against my clitoris and then . . . between my labia, trying to press into my vaginal canal,”63 and how she never consented to him entering her room, let alone to any sexual acts. That testimony was corroborated by both her immediate outcry and other wit- nesses who observed her and Appellant on the night in question. After weigh- ing the evidence in the record of trial and making allowances for not having personally observed the witnesses, we are convinced of Appellant’s guilt be- yond a reasonable doubt. As we have said before, reasonable doubt does not mean the evidence must be free from conflict, and none of the evidence pre- sented through the sexual assault nurse examiner lessens our level of cer- tainty. Appellant’s conviction for sexual assault is therefore factually suffi- cient. 59 Manual for Courts-Martial, United States (2016 ed.), pt. IV, para. 3.b. at IV-69. 60 Article 120, UCMJ (2016 ed.). 61 Appellant’s Brief at 40. 62 Appellant’s Brief at 40. 63 R. at 1113. 17 United States v. Keago, NMCCA No. 202500175 Opinion of the Court D.