UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                           WOLFE, SAULSSOLIA, and ALDYKIEWICZ
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                           v.
                           Specialist JORDAN T. RODRIGUEZ
                             United States Army, Appellant

                                       ARMY 20160787

                               Headquarters, Fort Riley
                        Charles L. Pritchard, Jr., Military Judge
              Lieutenant Colonel Joseph B. Mackey, Staff Judge Advocate

For Appellant: Captain Steven J. Dray, JA; Frank J. Spinner, Esquire (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Hannah E. Kaufman,
JA; Captain Meredith M. Picard, JA (on brief).

                                        31 January 2019

                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Per Curiam:

       Following his convictions for two specifications of sexual assault and one
specification of adultery, appellant contends that he did not receive a speedy trial,
challenges his sexual assault convictions on factual and legal sufficiency grounds,
and contends that the military judge erred in instructing the panel on the applicable
mens rea for sexual assault. 1 Only the instructional issue requires extended



1
  An enlisted panel sitting as a general court-martial convicted appellant, contrary
to his pleas, of two specifications of sexual assault by bodily harm and one
specification of adultery, in violation of Articles 120 and 134, Uniform Code of
Military Justice [UCMJ]. The panel sentenced appellant to a dishonorable
discharge, confinement for ten months, total forfeitures, and reduction to the grade
of E-1. The convening authority approved the adjudged sentence. This case is
before us for review pursuant to Article 66, UCMJ.
RODRIGUEZ—ARMY 20160787

discussion, but that issue ultimately entitles appellant to no relief. 2 As such, we
affirm appellant’s convictions.

                                   BACKGROUND

                                       The Facts

       Appellant’s convictions stemmed from events in the early morning hours of
27 September 2015, in the on-post housing area of Fort Riley, Kansas. The victim,
MS, 3 was eighteen years old. Between May and August of 2015, MS had graduated
high school, married Army Private First Class (PFC) JA, and moved from
Washington State to join PFC JA at Fort Riley.

       Private (E-2) Vincent Macario lived next door to MS and PFC JA in Fort
Riley family housing. Prior to 26-27 September 2015, MS and PFC JA had
socialized occasionally with PV2 Macario and his wife.


2
 Appellant’s case is a companion case to United States v. Macario, ARMY
20160760, 2018 CCA LEXIS 494 (Army Ct. Crim. App. 12 Oct. 2018) (mem. op.).
The two cases were tried within days of each other at Fort Riley in November and
December of 2016, and the government’s case-in-chief was nearly identical in the
two cases.

Appellant makes essentially the same speedy-trial claim as the one we rejected in
Macario, 2018 CCA LEXIS 494, at *9-11. We similarly reject appellant’s claim.
The government’s withdrawal, dismissal, and subsequent re-preferral of charges
against appellant were for a proper purpose, and were not a subterfuge to avoid the
Rule for Courts-Martial [R.C.M.] 707 speedy-trial clock. See R.C.M. 707(a)
(requiring that accuseds be “brought to trial” within 120 days). As such, the
government’s withdrawal and dismissal reset the R.C.M. 707 speedy-trial clock to
zero. See R.C.M. 707(b)(3)(A)(i); United States v. Hendrix, 77 M.J. 454, 456-57
(C.A.A.F. 2018). Because the government brought appellant to trial within 120 days
of re-preferral, there was no speedy-trial violation.

We also reject appellant’s factual and legal sufficiency challenges to his sexual
assault convictions. For the reasons set forth in the “Background” section of this
opinion, a rational trier of fact could have found the elements of the contested
crimes beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 318-19
(1979), and we ourselves are convinced of appellant's guilt beyond a reasonable
doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
3
 At various times during appellant’s trial, “MS” is referred to as “MA.” We use
“MS” to avoid confusion.



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      Appellant was PV2 Macario’s friend. MS met appellant for the first time on
25 September 2015, when appellant and PV2 Macario came to MS’s home to borrow
“a mop or something,” and ended up staying for approximately one hour.

        The next evening, on 26 September 2015, MS and PFC JA argued about PFC
JA “unblocking” his ex-girlfriend on Facebook and “liking” one of his ex-
girlfriend’s photographs. MS left the home to “cool off.” Appellant -- who, along
with others, had been visiting PV2 Macario next door -- approached MS on the
street, asked about MS’s well-being as she looked distraught, and invited MS and
PFC JA to go to a bar with the group. MS declined, but gave appellant her phone
number and said appellant could text her so that she and PFC JA could come to PV2
Macario’s house to socialize later. MS then returned home, took two shots of
alcohol, and reconciled with PFC JA. Later, the couple drank a shot of alcohol
together (MS’s third).

       Around 0200 or 0300 on 27 September 2015, appellant and PV2 Macario
knocked on MS’s and PFC JA’s door. PFC JA was asleep, but MS was still awake,
watching a movie. Appellant and PV2 Macario invited MS and PFC JA to
appellant’s house; MS initially declined because PFC JA was asleep, but ultimately
agreed. At PV2 Macario’s house, PV2 Macario handed MS a beer, asked about MS’s
earlier argument with PFC JA, and told MS that she should “leave” PFC JA. MS
told PV2 Macario that the fight was “nothing,” that she “loved” PFC JA, and was
“not going to leave him over something like that.” MS took three additional shots of
alcohol while playing “rock, paper, scissors” as a drinking game, first with PV2
Macario, and then with both appellant and PV2 Macario.

       A group from the gathering, including MS, PV2 Macario, appellant, and
Specialist (SPC) W, walked to a nearby park. At the park, while MS and SPC W sat
on the swings, PV2 Macario and appellant were engaged in a conversation behind
them on a bench. 4 On the walk back to appellant’s house, appellant lagged behind
the group, and, when MS told appellant to “catch up,” appellant called her back to
him. Appellant put his hands on MS’s waist, told MS she was “really attractive,”
and “leaned in for a kiss.” MS rebuffed appellant, telling him, “You’re drunk. My
husband is right over there. This isn’t okay.”

      As MS and appellant approached PV2 Macario’s house, PV2 Macario
“rush[ed]” up to MS and appellant and said that PFC JA was “really mad and upset”



4
 MS testified that “[a]t one point, [she] turned around and looked at [appellant and
PV2 Macario] and they were . . . staring at us and talking.” MS explained that she
“had gotten an eerie feeling . . . that . . . something wasn’t right.”




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and that MS needed to “hide.” 5 MS was “confused” as to why PFC JA would be
mad, but was taking “longer to process things” due to her alcohol consumption.
When MS indicated that she wanted to “go find” PFC JA, PV2 Macario and
appellant said they would talk to him, and continued to “lead[] MS to a hiding spot”
in a small storage shed located to the rear of MS’s and PFC JA’s quarters.

       After guiding MS into the shed and closing the door, PV2 Macario and
appellant entered within five to ten seconds afterward, and asked MS “whether she
could keep a secret.” MS responded “yes.” At that, appellant responded “Okay,
good,” and began touching MS’s hips as PV2 Macario started touching MS’s chest.
MS told the two repeatedly, “No,” “Stop,” and “I don’t want to do this. I love [PFC
JA]. I love my husband.” PV2 Macario and Appellant told MS to be quiet, and
“did the shhh noise.” Appellant pulled MS’s sweatpants down, bent her over so that
her head was facing PV2 Macario, and penetrated MS’s vulva with his penis. PV2
Macario simultaneously took his hand, put it “between [MS’s] teeth, on the outside
of [her] cheeks,” “pried” MS’s mouth open, put his other hand on the back of MS’s
head, and put his penis in MS’s mouth. PV2 Macario and appellant “both began
thrusting.” MS, “panicking,” tried to “block [the assault] out” of her mind. The
next thing she remembered was PV2 Macario and appellant opening the shed door
and stepping out.

       Immediately after the assault, MS woke up her husband, called her mom, and
called the military police. DNA analysis later detected appellant’s semen in MS’s
mouth (to a certainty of 1 in 4.3 quadrillion); MS’s DNA in appellant’s underwear (1
in 67 quadrillion); MS’s DNA on appellant’s penis swab (1 in 73 quadrillion); MS’s
DNA on PV2 Macario’s underwear (1 in 40 quadrillion); and MS’s DNA on PV2
Macario’s penis swab (1 in 32 trillion), and on his scrotum (1 in 82 billion).

       Appellant presented an alternative narrative of a consensual encounter
between the three. Appellant testified that he had grabbed MS’s hand on the walk to
the park, and that she had held his hand back, and that the two “kissed and made out
for about ten seconds.” At the park, appellant explained that MS had sat “right next
to” him, and that he felt that MS was attracted to him. When the group returned
from the park, appellant testified that SPC W went inside, leaving himself, PV2
Macario, and MS outside on the porch. MS then kissed PV2 Macario “right in front
of” appellant, and then “[t]urned and kissed” appellant. After MS turned back and
forth between the two multiple times, appellant stated that,

               Everyone started using their hands, and it’s starting to
               heat up. I had my hands on her leg, hers were on mine,
               and [PV2] Macario was touching [MS]. I was touching her


5
    This was untrue. PFC JA was still asleep at home.



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RODRIGUEZ—ARMY 20160787

             private parts over her clothes, and she was touching mine.
             And the same thing with [PV2] Macario as well.

        Appellant indicated that he was “surprised,” but it was “definitely a heat of
the moment type of thing.” PV2 Macario indicated that he wished the three had
“somewhere to go,” to which MS responded that her shed was empty. Before the
three went into the shed, MS went inside her house to ensure that her husband was
still asleep.

       Inside the shed, according to appellant, MS was kissing appellant and PV2
Macario “one and then the other.” According to appellant, both he and PV2 Macario
separately “asked” MS if they could have oral sex. Ultimately, appellant described
both himself and PV2 Macario having both oral and vaginal sex with MS, and
indicated that MS did not resist, never said no, never said to stop, and was
“moaning.” Afterwards, according to appellant, MS sat with him on the curb as he
smoked a cigarette. MS later went inside her own house, and, in a surprise to
appellant, the Military Police arrived approximately fifteen to twenty minutes later.

             The Parties’ Discussion of the Mistake of Fact Instruction

       During an Article 39(a) session to discuss panel findings instructions, the
military judge had the following colloquy with appellant’s trial defense counsel
regarding the mistake of fact as to consent instruction:

             MJ: I intend to give the following instructions . . .
             mistake of fact as to consent related to Charge I and its
             specifications; and the concomitant voluntary intoxication
             instruction related to the mistake of fact as to consent . . . .
             Do Counsel concur or request additional instructions?

             ....

             DC: And you say mistake of fact as to consent as to both
             specifications of Charge I?

             MJ: Yes.

             DC: Nothing further, Your Honor.

       Prior to the military judge sua sponte raising the issue, the parties had not
discussed the applicability (or non-applicability) of a mistake of fact as to consent
instruction. After the above colloquy, but before instructing the panel, the military
judge provided a written copy of his proposed instructions to the parties.




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      Appellant’s trial defense counsel raised no objection either to the military
judge giving the mistake-of-fact instruction or to the wording of that instruction.

                                   The Instruction

      As relevant here, the military judge subsequently instructed the panel as
follows:

             The evidence has raised the issue of mistake of fact as to
             consent in relation to the offenses of sexual assault. There
             has been testimony tending to show that, at the time of the
             alleged offenses, the accused mistakenly believed that
             [MS] consented to the sexual conduct alleged in the
             specifications of Charge I.

             Mistake of fact as to consent is a defense to those
             offenses. “Mistake of fact as to consent” means the
             accused held, as a result of ignorance or mistake, an
             incorrect belief that the other person consented to the
             sexual conduct as alleged. The ignorance or mistake must
             have existed in the mind of the accused and must have
             been reasonable under all the circumstances. To be
             reasonable, the ignorance or mistake must have been based
             on information, or lack of it, that would indicate to a
             reasonable person that the other person consented.
             Additionally, the ignorance or mistake cannot be based on
             the negligent failure to discover the true facts.
             “Negligence” is the absence of due care. “Due care” is
             what a reasonably careful person would do under the
             same or similar circumstances. (emphasis added).

      At the conclusion of the military judge’s findings instructions to the panel,
the military judge asked whether counsel “object[ed] to the instructions given or
request additional instructions.” Appellant’s trial defense counsel answered, “No,
Your Honor.”

                               LAW AND ANALYSIS

      The panel convicted appellant of two specifications of sexual assault by
bodily harm, in violation of Article 120(b)(1)(B), UCMJ. The statutory elements of
that Article include: (1) that the accused committed a sexual act upon another
person by; (2) causing bodily harm to that other person. Manual for Courts-Martial,
United States (2012) [MCM], pt. IV, ¶ 45.a.(b)(1)(B). Bodily harm is defined as
“any offensive touching of another, however slight, including any nonconsensual


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sexual act or nonconsensual sexual contact.” Id. at ¶ 45.a.(g)(3). In appellant’s
case, the two alleged sexual acts – the penetration of MS’s vulva and mouth with
appellant’s penis – doubled as the alleged bodily harm. Thus, for appellant to be
found guilty of sexual assault, the government had to prove both that appellant
engaged in the sexual acts with MS, and that MS did not consent to the acts.

        For the first time on appeal, appellant asserts the military judge erred by
instructing the panel that a negligence mens rea was sufficient to make appellant’s
otherwise lawful conduct criminal under Article 120(b)(1)(B), UCMJ. Specifically,
appellant asserts a finding of guilty as to this article requires a mens rea of either
“intentional, knowing or reckless” as to the element of “bodily harm” when the
sexual act is nonconsensual and constitutes the charged bodily harm. We recently
addressed this very issue, that is, the same complaint about the same panel
instruction regarding the same sub-section of Article 120 in the same procedural
posture in United States v. Peebles, __M.J. __, 2019 CCA LEXIS 8 (Army Ct. Crim.
App. 10 Jan. 2019).

       Peebles guides our resolution of appellant’s case. First, regarding the
appropriate standard of review, while appellant contends that we should review the
military judge’s instructions de novo, he is entitled, at most, to plain error review.
Appellant’s trial defense counsel not only failed to object to the military judge’s
mistake-of-fact instruction, he affirmatively indicated that he wanted the military
judge to apply the instruction “to both specifications of Charge I.” At the close of
the military judge’s findings instructions, appellant’s trial defense counsel
affirmatively indicated that he had no objection to the instructions.

       While we noted in Peebles that similar conduct from Peebles’s trial defense
counsel could amount to waiver of an allegation of instructional error, Peebles, __
M.J.__, 2019 CCA LEXIS, at *8-10, we ultimately “save[d] for another day” the
determination of whether a statement of “no objection equate[d] to waiver of
instructional error.” Id. at *10 (citing United States v. Davis, 76 M.J. 224 (C.A.A.F.
2017) (applying plain error analysis to forfeited instructional error)). We similarly
apply plain error review here, as, like Peebles, “this case does not turn on
determining the correct standard of review.” Peebles, __ M.J.__, 2019 CCA LEXIS,
at *10; see also, e.g., United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013)
(applying plain error review to forfeited claim of instructional error); United States
v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014); Davis, 76 M.J. at 229.

       “Under a plain error analysis, the accused has the burden of demonstrating
that: (1) there was error; (2) the error was plain or obvious; and (3) the error
materially prejudiced a substantial right of the accused.” Tunstall, 72 M.J. at 193-94
(citation omitted). “[T]he failure to establish any one of the prongs is fatal to a plain
error claim.” United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017) (citation
omitted).



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       Second, Peebles compels a finding that the same panel instruction at issue in
that case amounted to “clear and obvious error” 6 in appellant’s case for the same
reason; namely:

             [W]hen a statute is silent on the scienter needed to commit
             the offense and a scienter requirement is needed to
             separate wrongful from innocent conduct, the mens rea
             required to commit the offense must be greater than
             simple negligence.

Peebles, __ M.J.__, 2019 CCA LEXIS, at *12 (citing Elonis v. United States, 135 S.
Ct. 2001, 2010 (2015)).

       Article 120(b)(1)(B), UCMJ, is such a “silent on the scienter” statute.
Peebles noted that other sub-sections of Article 120, UCMJ, such as Article
120(b)(2), were by contrast not “silent on the scienter needed to commit the
offense,” but rather expressly set forth a negligence mens rea requirement. Id. at
*15 (noting that Article 120(b)(2) “provides for a conviction of sexual assault where
the accused ‘commits a sexual act upon another person when the person knows or
reasonably should know that the other person is asleep, unconscious, or otherwise
unaware’”) (emphasis in original). We thus could “infer that Congress did not
intend for a conviction of sexual assault by bodily harm under Article 120(b)(1)(B),
UCMJ, to be predicated on negligence.” Id. at *15. This court ultimately held in
Peebles that the military judge had committed “obvious error by failing to instruct
the members that appellant could only be found guilty if he acted, at a minimum,
with a reckless disregard as to [the victim’s] lack of consent.” Id. at *19-20. As the
panel instruction here was identical to the instruction in Peebles, 7 we likewise find




6
  Our superior court has explained that the applicable test is whether an error is
clear and obvious “at the time of appeal.” United States v. Williams, 77 M.J. 459,
462 (C.A.A.F. 2018). As Peebles itself found that the military judge there had
committed clear error, the error is certainly clear and obvious at the time of
appellant’s appeal. See, e.g., United States v. Mullins, 69 M.J. 113, 117 (C.A.A.F.
2010) (“[i]t follows that an error that was plain and obvious in [an earlier case]
would be plain and obvious in a subsequent case when there were no intervening
changes in the law”).
7
  It is unsurprising that the instructions in Peebles and the instant case were
identical, as they were in concert with the then-applicable Military Judge’s
Benchbook. See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’

                                                                      (continued . . .)


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that appellant has shown plain and obvious error, thus satisfying the first two prongs
of plain error review.

       Third, like Peebles, appellant’s claim ultimately fails, because appellant
cannot show that the error materially prejudiced his substantial rights. Stated
differently, appellant cannot show a “reasonable probability” that, “but for” the
erroneous instruction, the panel would have found that appellant acted less than
recklessly, and thus acquitted him. Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016) (to demonstrate material prejudice to substantial rights,
defendants must “show a reasonable probability that, but for the error, the outcome
of the proceeding would have been different”) (citation omitted); United States v.
Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017).

       Appellant’s court-martial presented two diametrically opposing narratives
regarding MS’s consent or lack of consent. MS explained that she was quite clear
and adamant about her non-consent to the sexual acts with appellant and PV2
Macario, and told the two repeatedly, “No,” “Stop,” “I don’t want to do this,” and “I
love my husband.” Appellant, on the other hand, contended that MS was a willing
participant in the sexual acts with both himself and PV2 Macario, and, indeed, that it
was MS who suggested that the three go into the shed. In other words, either
appellant knew that MS was not consenting to the sexual acts, or MS actually
consented to the acts. Cf. Elonis, 135 S. Ct. at 2012 (“no dispute” that knowledge-
level mens rea – there, knowledge that a specific communication would be viewed as
a threat – was sufficient for criminal liability). The panel, of course, was free to
believe MS and to disbelieve appellant. See, e.g., United States v. Nicola, __M.J.
__, 2019 CAAF LEXIS 24, at *11-13 (C.A.A.F. 9 Jan. 2019). Thus, this case did not
present the middle ground where appellant could have been negligent in his mistaken
belief that MS consented when she actually did not consent. As a result, the military
judge’s erroneous mens rea instruction did not materially prejudice appellant’s
substantial rights.

                                   CONCLUSION

      Upon consideration of the entire record, the findings of guilty and sentence
are AFFIRMED.




(. . . continued)
Benchbook [Benchbook], para. 3-45-14 n.13 (10 Sep. 2014). But see, e.g., United
States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013) (“[t]he Benchbook is not binding
as it is not a primary source of law”).



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                          FOR THE
                          FOR THE COURT:
                                  COURT:




                          MALCOLM
                          MALCOLM H.  H. SQUIRES,
                                         SQUIRES, JR.
                                                  JR.
                          Clerk of Court
                          Clerk of Court




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