                                 CORRECTED COPY


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

                           UNITED STATES, Appellee
                                        v.
                       Specialist KENDRICK A. WOOLSEY
                          United States Army, Appellant

                                   ARMY 20150432

              Headquarters, 82d Airborne Division (Rear)(Provisional)
                  Deidra A. Fleming, Military Judge (arraignment)
                         Christopher T. Fredrickson (trial)
             Lieutenant Colonel Dean L. Whitford, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Lieutenant Colonel Christopher D.
Carrier, JA; Captain Cody Cheek (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith,
JA; (on brief).


                                    24 October 2017

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                               SUMMARY DISPOSITION
                               ---------------------------------

SALUSSOLIA, Judge:

       In this appeal we consider, but reject, appellant’s claim that the military judge
applied an impermissibly low mens rea standard in finding appellant guilty of sexual
assault by bodily harm. Rather, we see the issue here as one of legal and factual
sufficiency and affirm appellant’s conviction.

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. 1

1
  The military judge acquitted the appellant of three specifications of sexual assault,
one specification of indecent exposure, one specification of conspiracy to obstruct
justice and one specification of obstructing justice.
WOOLSEY—ARMY 20150432

The convening authority approved the adjudged sentence of a dishonorable
discharge, confinement for nine years, and reduction to the grade of E-1.

      We review this case under Article 66, UCMJ. Appellant assigned three errors,
one of which merits discussion, but no relief. 2 We have also considered the matters
personally asserted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), to include an allegation of ineffective assistance of counsel because only one
witness was called on appellant’s behalf during findings, and conclude appellant’s
Grostefon matters do not warrant relief. 3

                                  BACKGROUND

       Appellant and Private First Class (PFC) DC met each other for the first time
on the night that appellant sexually assaulted her. Both appellant and PFC DC


2
  The other two assignments of error raised by appellant are: (1) the charge for
which appellant was convicted is factually insufficient because the evidence
presented showed appellant had a reasonable mistake of fact that Private First Class
DC consented to the sexual act, and; (2) the military judge erroneously admitted two
video recordings. Neither warrant relief. Regarding the admission of the two video
recordings we review a military judge’s ruling on evidence for an abuse of
discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010) (citation
omitted). “The abuse of discretion standard is a strict one, calling for more than a
mere difference of opinion. The challenged action must be arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” United States v. White, 69 M.J. 236,
239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010)) (internal quotation marks omitted). We find that the military judge did not
abuse his discretion by admitting the videos into evidence. Private First Class DC’s
description of herself, identification of plaintiff and recognition of the location,
along with appellant’s admissions that a video recording was made of them engaging
in sexual intercourse at that location was sufficient evidence to support the military
judge’s findings that the items were what the proponent claimed them to be and the
probative value was not substantially outweighed by a danger of unfair prejudices.
See Military Rule of Evidence 403.
3
  Appellant in his brief to this court goes on at some length about the government’s
lack of competence at trial. We agree that the government struggled throughout the
trial with laying basic foundations for admitting their evidence. Appellant’s defense
team took full advantage of the government’s struggles throughout the trial. A
substantial amount of government evidence was not admitted, which likely
contributed to appellant’s acquittal of six of the specifications. We find the defense
counsels’ strategy at trial soundly sought to seek advantage of the government’s lack
of competence. Accordingly, we do not find appellant has met his burden of
establishing that his counsel were deficient.


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WOOLSEY—ARMY 20150432

attended a party in a wooded area next to a lake on Fort Bragg, North Carolina. The
gathering started in the evening and ended the next morning. Both the appellant and
PFC DC were drinking. Witnesses describe PFC DC as being in an intoxicated state.

       Private First Class DC could recall little of what occurred that night. She
remembered arriving at the party with an NCO, talking to the appellant and
consuming some alcohol. She remembered swimming in the lake with the appellant
and that she was partially clothed. She did not recall how she got in the lake or who
removed most of her clothing. Her recollection of the following morning was also
limited. She did not recall who drove her or how she got to her barracks room. She
recalled waking up later that day clothed and vomiting. She described her condition
as being extremely hungover. She also did not recall how the shoes she was wearing
that night became lost, nor how the underwear she was wearing was put on
incorrectly.

       Appellant admitted to U.S. Army Criminal Investigation Command (CID)
Special Agent DP that he met a girl with PFC DC’s first name at the lake. He
further claimed that he had consensual sexual intercourse with her on two occasions
that night at the lake, once in a grassy area and once in the bed of a pickup truck.
Appellant admitted that she was intoxicated and described her as having slurred
speech and stumbling about. He admitted that she was less functioning than himself
and he had to assist her around. He also characterized her as being “loosened” and
“dazed’ while they had sex. Appellant admitted another soldier, SPC ZW, used a
phone to video record appellant having sexual intercourse with PFC DC.

       During the findings portion of the trial, the government’s evidence included
two video recordings depicting appellant sexually assaulting PFC DC. One video
clearly shows PFC DC, unclothed except for her bra, lying on her back on the grass
with appellant positioned on top of her. Private First Class DC appears
unresponsive, with her eyes shut and hands generally limp, while appellant kisses
her, removes her bra to expose her breasts, and engages in sexual intercourse with
her. Private First Class DC remains unresponsive throughout. The second video
also clearly depicts appellant continuing to engage in sexual intercourse with PFC
DC while the latter is unresponsive and otherwise gives no visual or verbal
indication of consent.

                              LAW AND ANALYSIS

       Appellant was convicted of one specification of sexual assault by bodily
harm. The 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.) [hereinafter MCM], pt.
IV ¶45.a.(b)(1)(B). In pertinent part, a sexual act is: “contact between the penis and
the vulva . . . and for purposes of this subparagraph contact involving the penis
occurs upon penetration, however slight[.]” Id. at ¶ 45.a.(g)(1)(A). Bodily harm is

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WOOLSEY—ARMY 20150432

“any offensive touching of another, however slight, including any nonconsensual
sexual act or nonconsensual sexual contact.” Id. at ¶ 45.a.(g)(3). In appellant’s
case, the sexual act—penetrating PFC DC’s vulva with his penis—was also the very
same bodily harm caused.

        For the first time on appeal appellant asserts that 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). 4 See Dep’t of Army, Pam. 27-9, Legal Services: Military Judge’s Benchbook
[hereinafter Benchbook], para. 3-45-14 (10 Sept. 2014). Specifically, appellant
asserts Elonis and Gifford require a mens rea of at least recklessness for the
“material element of consent” and that because the military judge “did not eschew
the insufficient theory of liability promulgated in the [B]enchbook … this court
cannot be confident that [appellant] was convicted under a sufficient theory of
liability.” 5 Appellant requests the court to dismiss the specification and charge for
which he was found guilty.

       Appellant frames the issue as one of legal error by the military judge.
“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 find nothing
in the record to suggest that the military judge applied an impermissibly low mens
rea standard in adjudicating the charges against the appellant of sexual assault by
bodily harm. Instead, we view the issue as one of legal and factual sufficiency of
the evidence. However, even if we were to apply a recklessness standard in this
case, as appellant suggests, we would still find the offense for which appellant was
found guilty factually sufficient.

       Recklessness requires 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.


*4
  Appellant’s trial was conducted on 1 through 3 June 2015; Elonis was decided on
1 June 2015.
5
  The current definition of “bodily harm” under Article 120(g)(3), UCMJ, includes
the term “nonconsensual,” which indicates that Congress intended to retain lack of
consent as a relevant fact sufficient in many cases to delineate innocent sexual
activity from wrongful criminal conduct. Accordingly, it is more precise to treat
"lack of consent" as a potential subsidiary fact with respect to the element of bodily
harm, rather than a distinct element of the offense. See United States v. Neal, 68
M.J. 289, 300 (C.A.A.F. 2010).

* Corrected.
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WOOLSEY—ARMY 20150432

Haverty, 76 M.J.199, (C.A.A.F. 2017) (citing Black’s Law Dictionary 1462 (10 th ed.
2014)). Here, appellant’s misconduct of having sexual intercourse with PFC DC
while she gave no indication of consenting was clearly reckless.

       Private First Class DC was described by a witness as being very intoxicated
that night to the point where she was unable to hold her head up or walk. Appellant
also admitted that the she was so intoxicated that she slurred her words, stumbled
about and had to be assisted by him in walking. Appellant characterized PFC DC as
“loosened” and “dazed” while he was engaging in sexual intercourse with her. Most
critically, the videos clearly depict PFC DC lying on her back in an unresponsive
state during the sexual assault and demonstrating no indication or awareness, let
alone consent. While we acknowledge, as appellant argues, that there appears to be
a single muscle movement by PFC DC as her fingers contract around grass, the
overwhelming focus of the video shows the appellant having sex with an
unresponsive woman. Based on the evidence contained in the record, it is clear that
appellant had actual knowledge that PFC DC was not consenting to sexual
intercourse. Accordingly, whether the standard of mens rea is actual knowledge,
recklessness, or something else, we find the evidence legally and factually sufficient
to support the finding of guilty.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge WOLFE concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:



                                        JOHN P. TAITT
                                        Chief Deputy Clerk of Court




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