UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                 Private First Class KESHAWN A. FLOURNOY
                         United States Army, Appellant

                                   ARMY 20160451

                       Headquarters, 25th Infantry Division
                          Mark A. Bridges, Military Judge
                  Colonel William D. Smoot, Staff Judge Advocate
                   Colonel Ian R. Iverson, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Katherine L.
DePaul, JA; Captain Joshua B. Fix, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin L. Fenwick, JA;
Captain Sandra L. Ahinga, JA (on brief).


                                   8 February 2018

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                               SUMMARY DISPOSITION
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FLEMING, Judge:

      In this case, we hold appellant’s misconduct of engaging in sexual acts
without the victim’s consent was reckless and thereby uphold his conviction.

       A military judge sitting as a general court-martial convicted appellant of two
specifications of sexual assault in violation of Article 120, Uniform Code of Military
Justice [UCMJ], 10 U.S.C. § 920 (2012). The convening authority approved the
adjudged sentence of a dishonorable discharge, confinement for thirty-eight months,
and reduction to the grade of E-1.

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant asserts one assigned error, which merits discussion but no relief.
Appellant personally raises additional issues pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), which we find meritless.
FLOURNOY—ARMY 20160451

                                  BACKGROUND

       Appellant and his roommate, Specialist (SPC) John Clow, worked in the same
dining facility with SPC CH. While SPC CH and SPC Clow were close friends,
appellant and SPC CH were mere work acquaintances. On 23 April 2015, all three
individuals gathered in appellant and SPC Clow’s barrack’s room to consume
alcohol. Specialist CH became intoxicated. Both SPC CH and SPC Clow described
SPC CH as very drunk and said she “passed out” on SPC Clow’s bed because of her
alcohol consumption. Specialist CH remembered her shorts getting pulled down but
being too drunk to move. She also remembered appellant penetrating her vulva with
his penis and SPC Clow penetrating her mouth with his penis without her consent.
Specialist CH did not remember appellant penetrating her vulva with his mouth.

       Specialist Clow described the same scene as SPC CH and provided even
greater incriminating details. Specialist Clow stated he and appellant watched SPC
CH as she laid “passed out” and “not moving” on his bed with her face in his pillow.
Appellant stated to SPC Clow, “I am going to eat her out.” Specialist Clow watched
appellant pull off SPC CH’s shorts and put his face close to her vagina and SPC
Clow heard a licking noise. Specialist CH remained unconscious. After
approximately thirty seconds of oral sex, she made a “slight movement, wiggling,
but nothing too drastic.” Appellant then stopped performing oral sex, pulled up SPC
CH’s hips, and inserted his penis in her vulva. Specialist Clow then inserted his
penis in her mouth and moved her head back and forth. Specialist Clow described
SPC CH as being in a “drunk state” and not an “active participant” while the two
men simultaneously penetrated SPC CH’s vulva and mouth. After some amount of
time, the two men went to change positions. Specialist Clow let go of SPC CH’s
head and it fell back onto the pillow.

       After first denying to law enforcement that any sexual activity occurred with
SPC CH, appellant radically revised his version of events and claimed SPC CH
consented to all the sexual activity. Appellant’s statement to law enforcement
corroborated SPC CH and SPC Clow’s testimony that SPC CH was intoxicated.
Appellant believed SPC CH had consumed “at least 14 ounces” of hard liquor and
stated she was “hammered.” Appellant corroborated SPC CH and SPC Clow’s
testimony that he penetrated SPC CH’s vulva with his penis. Appellant corroborated
SPC Clow’s testimony that appellant penetrated SPC CH’s vulva with his mouth.

                             LAW AND DISCUSSION

       Appellant was convicted of two specifications of sexual assault under Article
120, UCMJ. The pertinent elements for a violation of Article 120, UCMJ are: (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 ed.)
[MCM], pt. IV, ¶ 45.a.(b)(1)(B). A sexual act is “contact between the penis and the

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FLOURNOY—ARMY 20160451

vulva . . . [which] occurs upon penetration, however, slight” and “penetration,
however slight, of the vulva . . . by any part of the body . . . with an intent to abuse,
humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of
any person.” Id. at ¶ 45(a)(g)(1). Bodily harm is “any offensive touching of
another, however slight, including any nonconsensual sexual act or nonconsensual
sexual contact.” Id. at ¶ 45(a)(g)(3). Appellant’s sexual acts of penetrating SPC
CH’s vulva with his penis and tongue were the same acts constituting the bodily
harm.

       While not raised at trial, on appeal appellant now asserts the Military Judge’s
Benchbook instructions on the elements for sexual assault by bodily harm and the
scienter for a mistake of fact defense are insufficient in light of Elonis v. United
States, 135 S. Ct. 2001 (2015), and United States v. Gifford, 75 M.J. 140 (C.A.A.F.
2016). * Dep’t of Army Pam. 27-9, Legal Services: Military Judge’s Benchbook
[hereinafter Benchbook], para. 3-45-14, n. 10. Specifically, appellant asserts that
Elonis and Gifford require a mens rea of at least reckless for the “material element
of consent” and “the Benchbook led the military judge to apply the wrong mens rea
to the charged offense.” (Appellant Br. at 13). Appellant requests the court dismiss
the specifications and charge for which he was found guilty.

       “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)). We do not
find the military judge applied an impermissibly low mens rea standard in
adjudicating the charges against appellant of sexual assault by bodily harm.
Moreover, even if we applied a recklessness standard in this case, we would still
find the offenses for which appellant was found guilty factually sufficient beyond
any reasonable doubt.

       A recklessness standard requires a mens rea where an accused “knew that
there was a substantial and unjustifiable risk that the social harm the law was
designed to prevent would occur and ignored this risk when engaging in the
prohibited conduct.” See United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017)
(citing Reckless, Black’s Law Dictionary (10th ed. 2014)). Here, appellant’s
misconduct of having sexual intercourse with SPC CH while she gave no indication
of consent was clearly reckless.

       Appellant, SPC Clow, and SPC CH all describe SPC CH as being intoxicated
and “hammered.” Specialist CH testified that she did not consent to any sexual
activity with appellant. Most importantly, SPC Clow testified in detail as to his and
appellant’s sexual acts against SPC CH while she was “passed out,” “not moving,”
and not engaged as an “active participant.” Appellant also admitted to performing
*
    Elonis was decided before the commencement of appellant’s court-martial.

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FLOURNOY—ARMY 20160451

all charged sexual acts against SPC CH, despite her lack of memory as to his
performance of oral sex. Appellant’s initial assertion that he did not engage in any
sexual activity with SPC CH and his changed version of events that SPC CH
consented to all the sexual activity is unbelievable in light of SPC Clow’s and SPC
CH’s testimony. Based on the evidence contained in the record, we find appellant
was well aware of the risk of SPC CH’s non-consent to sexual activity. Appellant
nonetheless chose to recklessly disregard this risk and penetrated SPC CH’s vulva
with his penis and mouth despite her lack of consent.

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:


.

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




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