                                   CORRECTED COPY


UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          BURTON, HAGLER, and SCHASBERGER
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Sergeant TRAVIS HERNANDEZ
                            United States Army, Appellant

                                     ARMY 20160558

                       Headquarters, 82d Airborne Division
                        Deidra J. Fleming, Military Judge
       Lieutenant Colonel Susan K. McConnell, Acting Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W.
Simpson, JA; Captain Heather M. Martin, JA (on brief); Lieutenant Colonel Tiffany
Pond, JA; Major Todd W. Simpson, JA; Captain Heather M. Martin, JA (on reply
brief).

For Appellee: Colonel Tania M. Martin, JA; Major Austin L. Fenwick, JA; Captain
Joshua Banister, JA (on brief).

                                      31 January 2019

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       A panel composed of officers and enlisted members, sitting as a general court-
martial, convicted appellant, contrary to his pleas, of one specification of
maltreatment and one specification of abusive sexual contact in violation of Articles
93 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 893 and 920 (2012)
(UCMJ). Additionally, pursuant to his plea, appellant was convicted of one
specification of violating a lawful general regulation, in violation of Article 92,
HERNANDEZ— ARMY 20160558

UCMJ. 1 The convening authority approved the adjudged sentence of a dishonorable
discharge, confinement for 90 days, forfeiture of $1,566.90 pay per month for three
months, and reduction to the grade of E-1.

       We review this case under Article 66, UCMJ. Appellant raises three
assignments of error: none merit relief, but one merits discussion. 2 Specifically,
appellant asserts for the first time on appeal that the military judge erred when she 3
failed to instruct the panel on the proper mens rea for the offense of abusive sexual
contact. Even assuming arguendo appellant is correct, we find that he cannot
establish material prejudice to a substantial right.

                                     BACKGROUND

       Appellant was Private First Class (PFC) PR’s supervisor. Once appellant and
PFC PR both self-identified as being homosexual, they became friends and began to
socialize outside of work. According to appellant, they cuddled, watched movies
together, shared intimate details about previous relationships, and had seen each
other naked. 4 Appellant testified that nothing sexual had ever happened between
himself and PFC PR.

       On 11 February 2016, appellant and PFC PR were roommates on a training
exercise. After a cookout, PFC PR went into the restroom to take a shower.
Appellant subsequently entered the restroom to urinate and started a conversation
with PFC PR. During this conversation, appellant believed it was time to make his
move. According to appellant, he entered the shower uninvited and touched PFC
PR’s penis. When PFC PR pushed appellant’s hand away and exited the shower,
appellant did not attempt to touch him again. When PFC PR texted appellant about
his actions in the shower, appellant apologized. At trial, appellant was asked about
why he apologized, and he explained, “Because I was like, ‘My bad . . . I thought we
were on the same page.’”

       At the close of the evidence, the military judge held an Article 39(a), UCMJ
session to discuss the findings instructions. With input from the parties, the military


1
 Appellant was found not guilty of one specification of maltreatment and one
specification of indecent exposure in violation of Articles 93 and 120c, UCMJ.
2
 We have considered the matters personally asserted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and found that they lack merit.
3
    Corrected
4
    Private First Class PR denies these interactions.



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HERNANDEZ— ARMY 20160558

judge concluded she would give the standard Military Judges’ Benchbook 5
instructions on abusive sexual contact, including note five (“by causing bodily
harm”); note seven (“lack of consent as an element”); note twelve (“mistake of fact
as to consent in cases involving bodily harm where lack of consent is an element”);
and note thirteen (“voluntary intoxication and mistake of fact as to consent in cases
involving bodily harm where lack of consent is an element”).

       Prior to providing the instructions to the panel, the military judge specifically
inquired whether either party had any concerns with the proposed findings
instructions. Neither party had any concerns. The military judge then instructed the
panel that to convict appellant of abusive sexual contact, they had to be convinced
beyond a reasonable doubt of the following:

             One, that at or near Fort Hood, Texas on or about 11
             February 2016, the accused committed a sexual contact
             upon [PFC PR], to wit: grabbing [PFC PR]’s penis with
             his hand;

             Two, that the accused did so by causing bodily harm to
             [PFC PR], to wit; grabbing [PFC PR]’s penis with his
             hand without [PFC PR]’s consent; and

             Three, that the accused did so without the consent of [PFC
             PR].

      The military judge further instructed the panel concerning the sexual contact:

             “Sexual contact” means: (A) touching, or causing another
             person to touch, either directly or indirectly or through the
             clothing, the genitalia, anus, groin, breast, inner thigh, or
             buttocks of any person, with an intent to abuse, humiliate,
             or degrade any person; or (B) any touching, or causing
             another person to touch, either directly or through the
             clothing, any body part of any person, if done with an
             intent to arouse or gratify the sexual desire of any person.

       These instructions mirrored the template in the Benchbook and the statutory
language of Article 120, UCMJ. Based on the government’s charging decision, the
military judge further explained to the panel that proof of the victim’s lack of
consent was required for both the sexual contact and bodily harm elements. The


5
 See Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook
[Benchbook], para. 3-45-16 (10 Sep. 2014).



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HERNANDEZ— ARMY 20160558

panel was told to consider “[a]ll the surrounding circumstances” to determine
whether PFC PR gave consent.

       The military judge also provided the following instructions on mistake of fact
as to consent:

                Mistake of fact as to consent is a defense to that charged
                offense. “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 reasonable careful person would do
                under the same or similar circumstances. 6

       This instruction required the panel to consider appellant’s state of mind and
the reasonableness of his belief about the victim’s consent.

                                 LAW AND ANALYSIS

       Citing Elonis v. United States, 135 S. Ct. 2001 (2015), and other related
cases, appellant asserts for the first time on appeal that the military judge erred
when she 7 failed to instruct the panel on the proper mens rea for the offense of
abusive sexual contact by bodily harm. 8

      The elements for this offense are: (1) that the accused committed a sexual
contact upon another person by; (2) causing bodily harm to that other person.


6
    See Benchbook, para. 3-45-16 n.12.
7
    Corrected
8
  We note that the merits of this case were tried in August 2016, which was more
than a year after Elonis was decided.



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HERNANDEZ— ARMY 20160558

Manual for Courts-Martial, United States (2012 ed.) [MCM], pt. IV. ¶ 45.a.(d). In
appellant’s case, the sexual contact – grabbing PFC PR’s penis with his hand – was
also the bodily harm, and the military judge followed the Benchbook in instructing
the panel on a third element of non-consent.

       What mens rea applies to an offense is a question of law that we review de
novo. United Sates v. Gifford, 75 M.J. 140, 142 (C.A.A.F. 2016). We acknowledge
that our superior court noted in United States v. Caldwell, 75 M.J. 276, 280 n.3
(C.A.A.F. 2016), that Elonis has broader implications than just its interpretation of
18 U.S.C. § 875(c); however, that broad implication extends only to situations where
a statute is silent as to the requisite mental state. Here, appellant was convicted of
abusive sexual contact. The requisite mens rea is listed in the definition of sexual
contact: appellant must have either an intent to abuse, humiliate, or degrade any
person; or an intent to arouse or gratify the sexual desire of any person. See Article
120(g)(2), UCMJ. Therefore, this case falls outside the Supreme Court’s decision in
Elonis, and the military judge provided the correct instruction.

       However, even assuming arguendo that the military judge’s instructions were
somehow erroneous, “[b]ecause Appellant did not object to the military judge’s
instructions at trial, we review for plain error ‘based on the law at the time of
appeal.’” United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018) (quoting
United States v. Guardado, 77 M.J. 90, 93 (C.A.A.F. 2017)). As such, appellant
“bears the burden of establishing: (1) there is error; (2) the error is clear or obvious;
and (3) the error materially prejudiced a substantial right.” Id. (citation omitted).

       To establish plain error, “all three prongs must be satisfied.” United States v.
Gomez, 76 M.J. 76, 79 (C.A.A.F. 2017) (internal quotation marks omitted) (quoting
United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)). Put another way, “the
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) (quoting Bungert, 62 M.J. at
348)). The third prong is satisfied if the appellant shows “a reasonable probability
that, but for the error [claimed], the outcome of the proceeding would have been
different.” Robinson, 77 M.J. at 299 (quoting United States v. Lopez, 76 M.J. 151,
154 (C.A.A.F. 2017)) (citation omitted) (internal quotation marks omitted).

       In this case, as in Robinson, “the third prong . . . resolves the issue before
us.” 77 M.J. at 299. In discussing the night in question, appellant testified that PFC
PR did not invite appellant to get undressed, join him in the shower, or touch his
penis. Instead, appellant was sexually aroused and believed it was a good time to
make his move. According to appellant, “with gay guys . . . you just pretty much go
straight to it.” Simply put, appellant chose to take matters into his own hands, and
his actions consciously disregarded a substantial and unjustifiable risk that PFC PR
did not consent. In light of this uninvited and unrequested conduct, we find a lack
of material prejudice from the alleged error.



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HERNANDEZ— ARMY 20160558

       In sum, because appellant “has not demonstrated that the military judge’s
failure to instruct on [a higher] mens rea requirement would have changed the
outcome of the court-martial, we hold that the military judge did not plainly err in
instructing the members.” Robinson, 77 M.J. at 300.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty are AFFIRMED.
We AFFIRM only so much of the sentence as includes a dishonorable discharge,
confinement for 90 days, reduction to the grade of E-1, and forfeiture of $1,566 pay
per month for three months. 9

      Judge HAGLER and Judge SCHASBERGER concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




9
 The sentence to forfeiture must “state the exact amount in whole dollars to be
forfeited each month.” Rule for Courts-Martial 1003(b)(2).



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