UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                            MULLIGAN, FEBBO, and SCHASBERGER
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                             v.
                          Private First Class RYAN E. MANNAN
                              United States Army, Appellant

                                        ARMY 20170096

                           Headquarters, 82d Airborne Division
               Deidra J. Fleming and Daniel G. Brookhart, Military Judges
                    Colonel Dean L. Whitford, Staff Judge Advocate


For Appellant: Captain Benjamin A. Accinelli, JA; William E. Cassara, Esquire (on
brief and brief on specified issue).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Lieutenant Colonel Wayne H. Williams, JA; Captain KJ Harris, JA (on brief and
brief on specified issue).


                                           11 April 2019

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .

FEBBO, Judge:

       Appellant argues his convictions of sexual assault under two different theories
of liability are legally and factually insufficient. We find otherwise. 1 Further, we
considered whether the military judge applied the wrong mens rea to two of the
specifications of which appellant was convicted. As appellant forfeited any issue


1
 We have also considered appellant’s claim of dilatory post-trial processing under
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). We find appellant has
suffered no actual prejudice due to delay in the post-trial processing of his case. We
further find no other relief for the delay is warranted under Article 66, UCMJ.
MANNAN—ARMY 20170096

relating to mens rea at trial, we conclude appellant has not carried the burden of
demonstrating plain error in his case.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of four specifications of sexual assault, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. §§ 920 (2012) [UCMJ].
Contingent upon completion of appellate review, the military judge conditionally
dismissed Specifications 2 and 4 of The Charge, which alleged bodily harm, because
they were charged in the alternative to Specifications 1 and 3 of The Charge, which
alleged incapacity to consent. 2 The military judge sentenced appellant to a
dishonorable discharge, thirteen months of confinement, reduction to the grade of E-
1, and forfeiture of all pay and allowances. The convening authority approved the
adjudged sentence. This case is before us for review pursuant to Article 66, UCMJ.

       We find appellant’s convictions are legally and factually sufficient. We
further conclude appellant has not shown the military judge committed plain error
with respect to the mens rea applicable to the specifications alleging appellant
committed sexual assault by bodily harm. 3

                                   BACKGROUND

       Appellant was assigned to Fort Bragg, North Carolina. In April 2015,
Gunner’s Mate Third Class (GM3) Mylee Novak hosted a small party at her
apartment in Fort Lauderdale, Florida. Her cousin, Specialist (SPC) Tyler Novak
invited three other Fort Bragg soldiers on a road trip to the party: SPC Hernandez,
SPC Pollard, and appellant. After a day on the beach, the group picked up dinner,
rum, and beer before returning to GM3 Novak’s apartment around 2000. Gunner’s
Mate Third Class Novak’s mother was also visiting on the night of the party.

       Around 2100, Seaman’s Apprentice RB, a coworker of GM3 Novak, joined the
party. RB drank some beer and ate some food. After eating dinner, RB drank two or
three shots of an unknown clear alcohol with GM3 Novak, after which she began


2
 At trial, the government dismissed the original specification 1 of the Charge and
renumbered the remaining four specifications.
3
 We specified this issue for briefing in light of United States v. Peebles, 78 M.J.
658 (Army Ct. Crim. App. 2019). In our order specifying the issue, we erred by
referring to the relevant specifications as Specifications 3 and 5. Due to dismissal
of the original Specification 1, the relevant specifications were renumbered
Specifications 2 and 4. Fortunately, both parties correctly ascertained our intent and
briefed the issue on the relevant specifications.




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drinking “Kraken” brand rum directly from the bottle. RB testified she drank “a
good amount” of the bottle. After dinner, the group moved downstairs to a billiard
area in the apartment complex. Gunner’s Mate Third Class Novak’s mother stayed
in the apartment. At that point in the evening, GM3 Novak described RB as “pretty
intoxicated,” and capable of walking, but unstable. RB continued to drink alcohol.
While playing billiards, the group bet each other that the loser would get thrown in
the pool outside the billiards area. Specialist Pollard and RB went into the pool.
RB exited the pool and pulled appellant into the pool.

       While SPC Pollard and appellant were in the pool together, they cradled RB in
their arms. Without any discussion or consent, appellant inserted his finger into
RB’s vagina. At the time, appellant and RB had hardly spoken and did not even
know each other’s names. Specialist Pollard heard RB moaning and telling appellant
to “stop.” SPC Pollard told appellant to stop because RB was “really drunk.” RB,
however, did not remember telling appellant to stop.

        Afterward, appellant and RB exited the pool. RB got onto appellant’s back
and appellant carried her up the exterior cement staircase to GM3 Novak’s
apartment. Appellant stopped on a landing. RB remembered lying on the concrete
landing with appellant on top of her, putting his penis inside her vagina. Her shorts
were off her body and lying next to her. RB told appellant to put her shorts back on,
but he continued putting his penis inside her vagina. RB said “ouch,” “screamed a
little” that it hurt, and cried.

       Appellant stopped penetrating RB’s vagina. RB tried to stand up, but she fell
into a wall. Appellant put RB on his back again and carried her to GM3 Novak’s
apartment. The next thing RB remembered was lying in GM3 Novak’s apartment
and throwing up in the bathroom. RB was crying and told GM3 Novak that appellant
“put himself inside me in the stairwell.”

       GM3 Novak drove RB home to her apartment. RB called a friend and
reported that she was sexually assaulted. The next day, RB underwent a sexual
assault medical forensic examination.

       Appellant drove back to Fort Bragg with his three friends. Appellant told one
of his friends that he placed his penis in RB’s vagina, but stopped when she showed
signs she was in pain.

                             LAW AND DISCUSSION

       Article 66, UCMJ, establishes our statutory duty to review a record of trial for
legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). We may affirm only those findings of guilty that we find correct
in law and fact and determine, based on the entire record, should be affirmed. Id.



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       In evaluating factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To affirm a
conviction, “after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we must be]
convinced of [appellant’s] guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987).

       Based on appellant’s admission to other soldiers, there is no reasonable
dispute that appellant committed the alleged sexual acts. The only issues are
whether RB was so impaired that she could not consent to the sexual acts, whether
RB in fact did not consent to the sexual acts, and whether appellant had a sufficient
mens rea as to RB’s inability to consent and the fact RB did not consent. We answer
these issues in the affirmative. First, we will discuss RB’s incapacity to consent and
the fact she did not consent. Second, we will discuss appellant’s mens rea as to
RB’s ability to consent and the fact she did not consent.

                    A. Incapacity to Consent and Lack of Consent

       It is beyond reasonable dispute that RB was impaired by alcohol when
appellant performed sexual acts on her. Mere impairment, however, does not end the
analysis. Article 120(b)(3) “does not proscribe sexual acts with impaired people,
but rather with people incapable of consenting to the conduct at issue because of
their impairment—and even then, only when the inability to consent is known, or
reasonably should be known, to an accused.” United States v. Solis, 75 M.J. 759,
763 (N-M. Ct. Crim. App. 2016). An individual is incapable of consenting to sexual
conduct when that individual lacks “the cognitive ability to appreciate the nature of
the conduct in question, [or] the mental and physical ability to make and to
communicate a decision regarding that conduct to the other person United States v.
Pease, 74 M.J. 763, 770 (N.M. Ct. Crim. App. 2015), aff’d 75 M.J. 180 (C.A.A.F.
2016). See also United States v. Bailey, 77 M.J. 11, 13 (C.A.A.F. 2017).

       Appellant asserts the evidence was factually insufficient to support his
convictions for sexual assault. Appellant points to RB’s actions prior to the assaults
to show she was not impaired to the point she was incapable of consenting. This
includes, among other actions, RB playing billiards earlier in the evening, and
finding a toilet to vomit into later in the evening. Other evidence, however,
persuades us that RB was indeed incapable of consent at the times appellant
committed sexual acts upon her.

       There seems to be little dispute that RB was highly intoxicated most of the
evening in question. RB’s own testimony and the testimony of other witnesses
establish RB was intoxicated. We have no doubt that she nevertheless had the
cognitive ability to appreciate her surroundings and actions much of the time. This



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does not answer the core question, however, of whether RB had the cognitive ability
to appreciate the nature of appellant’s sexual acts and the ability to communicate
consent—or lack thereof—at the critical moments when appellant performed sexual
acts upon her. Former capacity does not guarantee capacity in the future, and later
capacity is not necessarily indicative of capacity in the past. In other words,
capacity to consent is not so much an event horizon—from whose bourn no traveler
returns—as a threshold, which may be crossed in both directions.

       Although RB did not remember telling appellant to stop inserting his finger in
her vagina, SPC Pollard heard her telling appellant to stop. At a minimum, this
reinforces the fact RB did not consent, and also suggests that RB was not fully
aware of what was happening at the time because she later reported being unaware of
her own words. Further, SPC Pollard told appellant not to penetrate RB’s vagina
with appellant’s finger because she was “really drunk.” Specialist Pollard clearly
recognized RB was incapable of consenting to or resisting appellant’s actions.

       RB’s recollection of appellant’s sexual acts on her in the stairwell are also
consistent with her inability to consent. RB reported being aware she was being
carried by appellant, but she was not aware of the location to which she was being
carried. She next remembered being laid on the cement landing, but did not
remember how her shorts were removed. She testified she was “confused,” and
came to realize appellant was sexually penetrating her.

       Although RB may have had moments in which she was capable of protest—
and in which she indeed protested appellant’s actions—we conclude she was
incapable of appreciating the nature of appellant’s acts upon her or of consenting to
those actions, at least when appellant first penetrated her vagina with his finger, and
when he first penetrated her vagina with his penis. Even if RB became aware of
appellant’s actions or regained the capacity to protest moments later, we find she
was incapable of consent as appellant penetrated her. We further find appellant
knew, or reasonably should have known, RB was incapable of consenting to
appellant’s sexual acts.

      We also find that RB in fact never consented to any sexual acts with
appellant. The record is simply devoid of credible evidence that RB consented.

       The military judge was presented two theories of liability—first that RB was
incapable of consent, and second that RB did not consent, and therefore the sexual
acts constituted bodily harm. The military judge convicted appellant under both
theories. After reviewing the evidence ourselves, we agree with the military judge
that the elements of all four specifications were met.




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                       B. Appellant’s Mens Rea as to Consent

       Consent is more than an absence of protest; it is an affirmative concept.
Consent may be explicit or implicit, and it may be verbal or nonverbal. Appellant’s
basic approach with RB, however, turned the notion of affirmative consent on its
head. Appellant’s course of conduct was to bypass consent and perform sexual acts
on RB until she manifested her lack of consent. Appellant’s actions were, at a
minimum, reckless as to the fact RB never consented to sexual acts.

       Appellant did not know RB’s name. He did not ask for her consent to any
sexual acts. She did not indicate she wanted any sexual acts performed on her.
Specialist Pollard recognized that RB was “really drunk” and it was wrong to
perform any sexual acts on her. Nevertheless, appellant inserted his finger in RB’s
vagina while in a public place, and while RB was vulnerable, both due to her level
of intoxication, and due to her physical position—being held by two men in a pool.
Appellant’s actions in this regard were, at a minimum, reckless. 4

       Appellant’s sexual acts upon RB in the stairwell display a similar reckless
disregard for the fact she never consented. In fact, SPC Pollard told appellant RB
was “really drunk” and appellant should not perform any sexual acts on her shortly
before appellant penetrated RB’s vagina with his penis in the stairwell. Moreover,
SPC Pollard heard RB say “stop” when appellant penetrated her vagina with his
finger in the pool. Nevertheless, absent any credible evidence RB consented in any
way, appellant removed RB’s clothes in a public stairwell and penetrated her vagina
with his penis. Appellant was, at a minimum, reckless.

       We also conclude that appellant has not demonstrated that the military judge
applied the wrong mens rea in appellant’s case. Further, even assuming, arguendo,
that the military judge applied the wrong mens rea in light of our decision in
Peebles, we conclude appellant has not demonstrated that any such error materially
prejudiced his substantial rights. See generally Peebles, 78 M.J. at 667.

      The model panel instruction on mistake of fact as to consent in the Military
Judges’ Benchbook undergirds appellant’s best argument that the military judge


4
  We also find a reasonable person would have realized that RB was too intoxicated
to consent to the sexual acts. The reasonable person standard is, however,
synonymous with negligence. For the reasons set forth in Peebles, however, our
analysis of appellant’s mens rea as to the fact that RB never consented to any sexual
acts centers on the mens rea of recklessness. We find appellant’s actions, at the
very least, display a reckless disregard for whether RB consented to any sexual acts.
See Peebles, 78 M.J. at 664-67.




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applied the wrong mens rea to the element of non-consent in the specifications
alleging sexual assault by bodily harm. See Dep’t of the Army, Pam. 27-9, Legal
Services: Military Judges’ Benchbook [Benchbook], para. 3-45-14 (10 Sep. 2014).
See also, Peebles, 78 M.J. at 662-67. This case, however, was a bench trial and
therefore there were no instructions to a panel.

      “The Benchbook is not a source of law, but represents a snapshot of the
prevailing understanding of the law, among the trial judiciary, as it relates to trial
procedure.” United States v. Cornelison, 78 M.J. 739, 745 (Army Ct. Crim. App.
2019) (citing United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013)). “Military
judges are presumed to know the law and to follow it absent clear evidence to the
contrary.” United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing
United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)).

       Unlike the Benchbook, on-point precedential opinions of the Supreme Court,
the Court of Appeals for the Armed Forces (CAAF), and this court, are the law
binding on courts-martial. Our opinion in Peebles, was a direct application of the
principles previously set forth in Elonis v. United States, 135 S. Ct. 2001 (2015),
and United States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016). See Peebles, 78 M.J. at
664-67. The merits portion of appellant’s court-martial took place well after both
Elonis and Gifford were decided. Thus, we presume the military judge knew and
correctly applied the law set forth in those opinions and did not apply a mens rea of
negligence to the specifications alleging sexual assault by bodily harm. We
conclude the mere existence of an instruction in the Benchbook that could be applied
in conflict with Elonis and Gifford, without further support in the record, does not
overcome the presumption the military judge knew and applied the law correctly in
this case.

       Moreover, even if appellant were to overcome the presumption that the
military judge knew and applied the law, we conclude he is not entitled to relief
under the plain error standard of review. To show a material prejudice to his
substantial rights, appellant must show “there is a ‘reasonable probability’ that the
[court-martial] would have found that appellant acted less than recklessly.” Id. at
667. Appellant simply has not met this burden. Appellant’s actions toward RB
were, as discussed above, quintessentially reckless as to whether RB consented to
any sexual acts with appellant.

                                    CONCLUSION

       We are mindful that the trial court saw and heard the witnesses and we have
not. See Washington, 57 M.J.at 399. Considering the totality of the evidence, we
find appellant’s convictions legally and factually sufficient. See id. Further, we
find that appellant has failed to show he is entitled to relief for any alleged error of




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the military judge as to the mens rea applicable to Specifications 2 and 4 of The
Charge.

      Upon consideration of the entire record, the findings of guilty and sentence
are AFFIRMED. Specifications 2 and 4 of The Charge will be DISMISSED upon
Specifications 1 and 3 of The Charge surviving “final judgment” of the proceedings.
See UCMJ, art. 71(c)(1) (defining “final judgment”).

      Senior Judge MULLIGAN and Judge SCHASBERGER concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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