                                   CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              TOZZI, SALADINO, and BURTON
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Sergeant ANTHONY J. PATTON
                            United States Army, Appellant

                                      ARMY 20150675

                        Headquarters, 2d Infantry Division
                         Tiernan P. Dolan, Military Judge
          Lieutenant Colonel Timothy P. Hayes, Jr., Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief)

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Tara O’Brien Goble, JA (on brief)


                                         7 April 2017

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SALADINO, Judge:

       A panel with officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of maltreatment of a
subordinate, and one specification of wrongfully accessing a barracks closed-circuit
television system, in violation of Articles 93 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 893, 934 (2012 & Supp. I 2014) [hereinafter UCMJ]. The
panel sentenced appellant to a bad-conduct discharge, forfeiture of $1,596.00 pay for
one month, a reprimand, 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. Appellant
raises two assignments of error, both of which merit discussion but no relief.
Appellant personally raises additional matters pursuant to United States v.
PATTON—ARMY 20150675

Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which warrants discussion, but none
of which warrant relief.

                                  BACKGROUND

      Appellant was a noncommissioned officer assigned to the 2d Infantry Division,
Camp Carroll, Republic of Korea, where he served as a supervisor for newly-arrived
soldiers. In August or September 2014, Private First Class (PFC) SC was assigned
as one of appellant’s subordinates. Like many other junior-enlisted soldiers under
his charge, PFC SC arrived at Camp Carroll from Advanced Individual Training as
her first duty station. Upon her arrival, and for reasons of accountability, appellant
asked PFC SC and all his other soldiers to provide him their personal cell phone
numbers. Shortly thereafter, appellant began speaking with and sending text
messages to PFC SC in a manner that was more personal than professional in nature.
For example, he asked her if she could show him around Korea and if she was
“talking” to anyone. Because she did not want to seem rude or insubordinate,
PFC SC answered his questions and replied to his text messages. When returning his
text messages, she often ended her responses with the tag line, “LOL,” as an
acronym for “laugh out loud.” On one occasion, he sent her a text message asking
whether she was single or attached. After PFC SC responded that she was
unattached, appellant sent her the following text message: “the next man has nothing
to do with anything. Anything I want, I obtain it.” On another occasion, appellant
rubbed PFC SC’s shoulders while calling her “babe.” Appellant also wrongfully
accessed the closed-circuit television system in the barracks building where he and
his soldiers lived, apparently seeking the existence of unfavorable footage of him or
his soldiers.

                             LAW AND DISCUSSION

                      A. Consent and Acquiescence Instruction

       On appeal appellant argues the military judge erred in failing to instruct the
panel to consider evidence of PFC SC’s consent or acquiescence in determining
whether appellant maltreated her. We find merit in appellant’s contention, but find
no prejudice to his substantial rights.

       In general, whether a panel was properly instructed is a question of law
reviewed de novo. United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017).
However, the particular factors at play in each case can modify this general standard
of review. For example, “[w]hile counsel may request specific instructions from the
military judge, the judge has substantial discretionary power in deciding on the
instructions to give.” United States v. Carruthers, 64 M.J. 340, 345 (C.A.A.F. 2007)
(quoting United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993)); see
Rule for Courts-Martial [hereinafter R.C.M.] 920(c) discussion. “Thus, the military
judge’s denial of a requested instruction is reviewed for abuse of discretion.
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Carruthers, 64 M.J. at 345-46 (citing Damatta-Olivera, 37 M.J. at 478, and United
States v. Rasnick, 58 M.J. 9, 10 (C.A.A.F. 2003)).

       In the absence of a specific request, “for mandatory instructions under
R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on
defenses raised by some evidence.” United States v. Davis, 75 M.J. 537, 543 (Army
Ct. Crim. App. 2015) (en banc); see also United States v. MacDonald, 73 M.J. 426,
433 n.2 (C.A.A.F. 2014) (“If an affirmative defense is reasonably raised by the
evidence, the military judge has a sua sponte duty to instruct the members on that
defense.”). Nevertheless, in the case of any unpreserved error, the failure to object
or request an instruction forfeits the matter, absent plain error. United States v.
Payne, 73 M.J. 19, 23 (C.A.A.F. 2014); United States v. Tunstall, 72 M.J. 191, 193
(C.A.A.F. 2013); United States v. Simpson, 56 M.J. 462, 465 (C.A.A.F. 2002);
Davis, 75 M.J. at 543-44; R.C.M. 920(f) 1

       Under our superior court’s plain error jurisprudence, “‘[a]ppellant has the
burden of establishing (1) error that is (2) clear or obvious and (3) results in material
prejudice to his substantial rights.’” McClour, 76 M.J. at 25 (quoting United States
v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014)). “‘[T]he failure to establish any one of
the prongs is fatal to a plain error claim.’” Id. (quoting United States v. Bungert, 62
M.J. 346, 348 (C.A.A.F. 2006)). Furthermore, whether an error is constitutional or
non-constitutional determines the level of 2 scrutiny applied during our prejudice
analysis. Instructional errors are of constitutional magnitude if “‘there is a
reasonable likelihood that the jury has applied the challenged instruction in a way’
that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting
Boyde v. California, 494 U.S. 370, 380 (1990)). If we find the instructional error
rises to a constitutional dimension, we may only affirm the affected findings of
guilty if we determine the error was harmless beyond a reasonable doubt. Chapman
v. California, 386 U.S. 18, 24 (1967); United States v. Kreutzer, 61 M.J. 293, 298–
99 (C.A.A.F. 2005). If, however, the error falls short of this standard and is non-
constitutional, we must determine “whether the instructional error had ‘substantial


1
  R.C.M. 920(f) continues to use the word “waiver.” For consistency and accuracy,
we follow our superior court’s example and use the correct term of “forfeiture.”
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (“Whereas forfeiture is
the failure to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right. The distinction between the terms
is important. If an appellant has forfeited a right by failing to raise it at trial, we
review for plain error. When, on the other hand, an appellant intentionally waives a
known right at trial, it is extinguished and may not be raised on appeal.”) (internal
citations and quotations marks omitted).
2
    Corrected.
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PATTON—ARMY 20150675

influence’ on the findings.” United States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003)
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

       Here, at the close of evidence on findings, the military judge discussed with
counsel the instructions he intended to provide the panel. After discussing proposed
instructions, neither the government nor the defense raised an objection or asked for
additional instructions. As a result, the military judge instructed the panel as
originally proposed. As an initial matter, therefore, we find appellant forfeited any
claim of instructional error and review the military judge’s instructions for plain
error.

       With regard to the first and second prongs of plain-error review, we must
determine whether the military judged committed obvious error when he failed to
instruct the panel concerning evidence of consent or acquiescence. The relevant
instruction in the Military Judges’ Benchbook reads as follows:

             (Along with all other circumstances, you must consider,
             evidence of the consent (or acquiescence) of (state the
             name (and rank) of the alleged victim), or lack thereof, to
             the accused’s actions. The fact that (state the name (and
             rank) of the alleged victim) may have consented (or
             acquiesced), does not alone prove that he/she was not
             maltreated, but it is one factor to consider in determining
             whether the accused maltreated, oppressed, or acted
             cruelly toward, (state the name (and rank) of the alleged
             victim).)

Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook], para. 3-17-1.d. (10 Sept. 2014); see United States v. Carson, 57 M.J.
410 (C.A.A.F. 2002); United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2001).

       Based on the facts in this case, we find the failure to provide this portion of
the Benchbook instruction to the panel prior to its deliberations constitutes obvious
error on the part of the military judge. As the court in Carson previously explained,
“[w]hether conduct constitutes ‘maltreatment’ within the meaning of Article 93,
UCMJ, in a particular case requires consideration of the specific facts and
circumstances of that case.” 57 M.J. at 415 (emphasis added). One of the issues
expressly raised in this case was whether PFC SC consented or acquiesced to the
charged conduct. The government and defense specifically questioned PFC SC and
appellant about PFC SC’s use of “LOL” in her text messages and continued dialogue
with appellant via text messages. Also, in the closing argument on findings, defense
counsel cited the Benchbook instruction on acquiescence and PFC SC’s text messages



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as proof of acquiescence. 3 Because it was expressly raised by the evidence and
argued to the panel, the instruction to consider evidence of PFC SC’s consent or
acquiescence (or lack thereof) to the charged conduct should have been given by the
military judge.

       Turning to the third prong of plain-error review, we must determine whether
appellant was materially prejudiced by the obvious error. After a complete and
thorough review of the entire record of trial, there is no reasonable interpretation of
the facts to conclude this non-constitutional error resulted in material prejudice to
appellant’s substantial rights, nor did it have a substantial influence on the findings
of this court-martial.

        Even if we accepted the higher prejudice standard for constitutional error
argued by appellant, we reach the same conclusion. First, as explained below when
discussing the mistake-of-fact instruction, consent is not a defense to maltreatment.
The argument that an instruction about PFC SC’s “acquiescence” to appellant’s
advances would have negated an element of the offense misunderstands the desired
instruction. The fact that the victim may have consented or acquiesced, does not
alone prove that she was not maltreated, but it is one factor to consider. See
Benchbook, para. 3-17-1.d. Second, while evidence of consent or acquiescence was
raised, it was far from persuasive. Private First Class SC gave a credible
explanation for her habitual use of “LOL” while sending text messages, which
included her fear of seeming insubordinate when rebuffing appellant’s advances.
Similarly, appellant’s text messages did not show PFC SC’s consent; rather, it
illustrated his belief that he always gets what he wants. Third, it is important to
note the panel was not entirely without guidance when evaluating the charged
conduct. The military judge instructed the panel that the “maltreatment must be
real,” and “viewed objectively under all of the circumstances . . . .” For the above
reasons, even when the evidence clearly raised the issue of consent or acquiescence,
we are convinced appellant was not prejudiced by the instructional error.

                             B. Cruelty and Maltreatment



3
  After the instructions on the law, defense counsel argued: “And when you consider
maltreatment, the instructions say the maltreatment has to be real. Now, it also says
that along with all of the other circumstances you must consider evidence of the
consent or acquiescence of PFC [SC] or lack thereof of the accused’s actions.” Trial
counsel did not object this characterization of the instructions, and defense counsel
continued its argument: “Does, ‘LOL’ not indicate acquiescence? ‘Laugh out loud,’
continuously. But she texted, ‘dot-dot-dot’ and ‘dot-dot-dot’ is supposed to mean,
‘Stop,’ that, ‘I am uncomfortable.’ It doesn’t make sense.”

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PATTON—ARMY 20150675

       On appeal, appellant argues the military judge erred in his instructions to the
panel regarding Article 93, UCMJ, in that when a statute is silent as to intent, it
must be read to require more than mere negligence, in accordance with the principles
enunciated in Elonis v. United States, 135 S. Ct 2001, 2009, 192 L. Ed. 2d 1 (2015).
We do not find merit in appellant’s contention.

       When an instructional error is preserved as explained above, “[q]uestions
pertaining to the substance of a military judge’s instructions, as well as those
involving statutory interpretation, are reviewed de novo.” United States v. Caldwell,
75 M.J. 276, 280 (C.A.A.F. 2016) (citing United States v. Lopez de Victoria, 66 M.J.
67, 73 (C.A.A.F. 2008), and United States v. Smith, 50 M.J. 451, 455 (C.A.A.F.
1999)). When, however, the instructional error is forfeited, it is reviewed on appeal
for plain error. Payne, 73 M.J. at 23. “Importantly, we stress [again] that a de novo
review and plain error review are not mutually exclusive.” Davis, 75 M.J. at 542
(citing Tunstall, 72 M.J. at 193) (emphasis omitted). Here, when reviewing the first
prong under plain error analysis (i.e., whether there was error), we review the
substance of the instruction given de novo. Finding no error, further analysis for
plain error is unnecessary. McClour, 76 M.J. at 25.

      In this case, when instructing the panel, the military judge stated maltreatment
includes:

             [T]reatment that when viewed objectively and under all
             circumstances is abusive or otherwise unwarranted,
             unjustified and unnecessary for any lawful purpose, and
             the–and that results in physical or mental harm or
             suffering or reasonably could have caused physical or
             mental harm or suffering.

(Emphasis added.).

       “It is a fundamental principle of criminal law that ‘wrongdoing must be
conscious to be criminal.’” Caldwell, 75 M.J. at 280 (quoting Elonis, 135 S. Ct. at
2009). The general rule is that a guilty mind is “a necessary element in the
indictment and proof of every crime.” United States v. Balint, 258 U.S. 250, 251
(1922). “This does not mean that an accused must know that his actions constitute
criminal conduct. Rather, an accused must have knowledge of ‘the facts that make
his conduct fit the definition of the offense.’” Caldwell, 75 M.J. at 280 n.4 (quoting
Staples v. United States, 511 U.S. 600, 607 n.3 (1994)).

      As our superior court explained in United States v. Caldwell:

             the Supreme Court has held that even when a mens rea
             requirement is not explicitly included in a criminal statute,
             that does not necessarily mean that such a requirement can
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             be dispens[ed] with. Rather, generally speaking, criminal
             statutes should be interpreted by courts as still including
             broadly applicable [mens rea] requirements, even where
             the statute . . . does not contain them. However, in
             inferring a mens rea requirement in a statute that is
             otherwise silent as to intent, courts must only read into the
             statute that mens rea which is necessary to separate
             wrongful conduct from innocent conduct.

             Importantly, in some instances, the mere requirement in a
             statute that a defendant commit an act with knowledge of
             certain facts—i.e., that the defendant possessed “general
             intent”–is enough to ensure that innocent conduct can be
             separated from wrongful conduct.

Id. at 281 (internal citations and quotation marks omitted) (emphasis added).

        In the context of maltreatment, our superior court has found “there is no
scenario where a superior who engages in the type of conduct prohibited under
Article 93, UCMJ, can be said to have engaged in innocent conduct.” Id. This is
based on “the unique and long-recognized importance of the superior-subordinate
relationship in the United States armed forces, and the deeply corrosive effect that
maltreatment can have on the military’s paramount mission to defend our Nation.”
Id. “[T]he military must insist upon a respect for duty and a discipline without
counterpart in civilian life. The laws and traditions governing that discipline have a
long history [and] are founded on unique military exigencies as powerful now as in
the past.” United States v. Heyward, 22 M.J. 35, 37 (C.M.A. 1986) (quoting
Schlesinger v. Councilman,420 U.S. 738, 757 (1975)). “The very lifeblood of the
military is the chain of command.” Id. “The armed forces depend on a command
structure that at times must commit men [and women] to combat, not only hazarding
their lives but ultimately involving the security of the Nation itself.” United States
v. Priest, 21 U.S.C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972). The corollary
principle is that superiors must not maltreat their subordinates. Caldwell, 75 M.J.
at 282. Article 93, UCMJ, is intended to preserve the integrity of the superior-
subordinate relationship. Id. (citing United States v. Dickey, 20 C.M.R. 486, 488
(A.B.R. 1956)).

       Accordingly, “a superior who voluntarily engages in objectively abusive
conduct towards a subordinate cannot be heard to complain that his actions were
protected by his freedom of speech, or that his actions were lawful in any other
sense.” Id. at 282 n.8. “[B]ecause of the unique nature of the offense of
maltreatment in the military, a determination that the Government is only required to
prove general intent in order to obtain a conviction under Article 93, UCMJ,
satisfies the key principles enunciated by the Supreme Court in Elonis.” Id. at 278.

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PATTON—ARMY 20150675

Accordingly, the “key question is whether appellant possessed general intent to
undertake the conduct that either caused or could have caused suffering.” Id. at 282
(citing Carter v. United States, 530 U.S. 255, at 269-70 (2000)). The military
judge’s instructions comport with the standards articulated herein. We therefore
conclude there was no error in the substance of the instructions the military judge
provided to the panel.

                                  C. Mistake of Fact

       Finally, appellant personally contends in his Grostefon matters the military
judge committed plain error when he failed to give the mistake of fact instruction to
the panel for the charge of maltreating PFC SC. We disagree. As a matter of law,
mistake of fact regarding a victim’s consent is not available as a complete or partial
defense for a violation of Article 93, UCMJ. The purpose of Article 93, UCMJ, is
“to preserve the integrity of the superior-subordinate relationship. . . . It is for this
reason [our superior court has] held that criminal liability for maltreatment does not
depend on whether conduct actually effects harm upon the victim, and that ‘[t]he
essence of the offense [of maltreatment] is abuse of authority.’” Id. at 281-82
(quoting Carson, 57 M.J. at 415). Accordingly, if “[t]he abusive conduct . . . is
consciously directed at a subordinate[, it] is in no sense lawful.” Id. at 282.

       Since mistake of fact regarding a subordinate’s consent does not reduce a
superior’s criminal responsibility for abusive conduct consciously directed at the
subordinate, it is not an available defense against the mens rea required for
maltreatment. See R.C.M. 916(a) (“As used in this rule, ‘defenses’ includes any
special defense which, although not denying that the accused committed the
objective acts constituting the offense charged, denies, wholly or partially, criminal
responsibility for those acts.”); R.C.M. 916(j)(1) (“[I]f the accused’s knowledge or
intent is immaterial as to an element, then ignorance or mistake is not a defense.”).
Accordingly, the Benchbook instruction correctly describes evidence of consent or
acquiescence as merely one, non-dispositive factor to consider whether the charged
conduct amounts to cruelty, oppression, or maltreatment (i.e., whether the actus reus
is proved beyond a reasonable doubt). See Benchbook, para. 3-17-1.d.

       Therefore, this error personally asserted by appellant is distinguishable from
the assigned instructional error regarding evidence of consent or acquiescence. This
claim of instructional error fails as a matter of law. Appellant was not entitled to a
mistake-of-fact instruction as to consent, and the military judge did not err 4 by not
giving it. As a result, there is no prejudice to assess, and no relief warranted.




4
    Corrected.
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PATTON—ARMY 20150675




                                  CONCLUSION

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

      Senior Judge TOZZI and Judge BURTON concur.

                                          FOR THE COURT:




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




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