                                      CORRECTED COPY


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

                                 UNITED STATES, Appellee
                                              v.
                              Staff Sergeant RUDY L. RIVERA
                               United States Army, Appellant

                                        ARMY 20160393

            Headquarters, United States Army Maneuver Center of Excellence
                           Richard J. Henry, Military Judge
                   Colonel Wendy P. Daknis, Staff Judge Advocate


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

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


                                       28 November 2017

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SALUSSOLIA, Judge:

       In this case we hold that that the offenses for which appellant was convicted
fall outside the Supreme Court’s decision in Elonis v. United States, 135. S. Ct. 2001
(2015) 1. We so find because a mens rea of knowledge or recklessness with respect
to whether the victim consented to the offenses of sexual assault and abusive sexual
contact is not required to separate wrongful conduct from innocent conduct.

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault and one specification of

1
    Corrected
RIVERA—ARMY 20160396

abusive sexual contact, in violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for twelve
months, and reduction to the grade of E-3. The convening authority credited
appellant with fifty-five days of pretrial confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises two assignments of error, one of which merits discussion but no relief. We
have also reviewed the matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are without merit.

                                  BACKGROUND

       Appellant and Ms. TA were close friends for years and often discussed their
private lives with one another. They did not, however, have a romantic relationship.

       In December of 2014, Ms. TA saw appellant at his brother’s house when she
stopped by to drop off a Christmas present. Ms. TA became upset upon seeing
appellant because they had not talked to each other in a while. Later that night, Ms.
TA returned to the house to attend a party. Upon seeing appellant, she apologized
for her earlier behavior. Ms. TA also learned that appellant had gotten married one
week prior.

      At the party, both appellant and Ms. TA participated in drinking games and
consumed alcohol. Appellant claimed that Ms. TA revealed some cleavage during
the games to distract his play. Ms. TA denied this claim and others viewing the
games described their interaction as playful but not flirtatious.

       As the party wound down early the next morning, appellant and Ms. TA sat in
separate chairs and talked. They discussed the evening’s events and appellant’s new
spouse. Ms. TA told appellant she was not used to sleeping with her legs hanging
over the arm of chair, and stated “I’m not used to sleeping like this; I usually sleep
cuddling pillows or this was going to be hard for me to sleep without cuddling.”
After this statement, appellant placed her on a small sofa with him and they laid next
to each other with her back toward his chest in a “spooning position.” There she fell
asleep.

       Ms. TA was first awakened upon feeling appellant touch her left hip under her
clothing. She believed the touching was accidental and went back to sleep.
Appellant then began manipulating the clasp of her bra causing her to wake up. Ms.
TA continued to believe appellant’s touching was accidental and “shuffle[d] a bit” to
move his hand in case he was asleep.


                                          2
RIVERA—ARMY 20160396


       She next woke up upon feeling appellant touch her breasts. This time Ms. TA
moved her body in an effort to get appellant to stop, which he did. Ms. TA was
awakened one more time when she felt appellant’s fingers penetrate her vulva.
Although she wanted to say something during these incidents, she described herself
as being in a “drunken haze” and unable to find words. Rather, she again moved
around, eventually turning over to face him. This caused appellant to remove his
fingers from her vulva. He then picked her up and placed her on the floor. She
reported the incident to law enforcement a month later.

      At trial, appellant admitted to fondling her breasts and penetrating her vulva.
He claimed, however, it was consensual based on her movements, which he
characterized as “grinding” against him. Appellant also answered in the negative
when asked on cross-examination whether, prior to her “grinding,” there was
“nothing in [appellant’s] mind” that indicated to him that Ms. TA was “consenting to
sex” or “consenting to being touched in a sexual manner.”

                               LAW AND ANALYSIS

       Appellant was convicted of one specification of sexual assault under Article
120, UCMJ. The pertinent elements for the offense of sexual assault are: (1) that the
accused committed a sexual act upon another person; by (2) causing bodily harm to
that other person. UCMJ art. 120(b)(1)(B). Here, the sexual act—penetrating Ms.
TA’s vulva with his fingers—was also the very same bodily harm caused. Appellant
was also convicted of one specification of abusive sexual contact in violation of
Article 120, UCMJ. The pertinent elements for the offense of abusive contact are:
(1) that the accused committed a sexual contact upon another person by (2) causing
bodily harm to that other person. Id.; UCMJ art. 120(d). In this instance, the sexual
act—touching Ms. TA’s breasts—was also the very same bodily harm caused.

       Appellant asserts that the findings of guilty are legally insufficient in light of
the U.S. Supreme Court's decision in United States v. Elonis, 135 S. Ct. 2001 (2015),
and requests this court set aside appellant’s conviction. 2 Specifically, appellant
asserts “lack of consent” is a “material element” of both sexual assault and abusive
sexual contact and because Congress was silent as to an applicable mens rea for this
element, Elonis requires this court to apply a mens rea of either knowingly or
recklessly. We disagree. Rather we hold that the offenses under Article 120,
UCMJ, for which appellant was charged and convicted, fall outside the Supreme
Court’s decision in Elonis.

2
 Appellant’s trial concluded after Elonis was decided. Appellant did not raise the
issue of the mens rea requirement regarding Article 120, UCMJ, during the trial.



                                           3
RIVERA—ARMY 20160396


      Determining what mens rea is applicable to an offense is a matter of statutory
construction and is reviewed de novo. United States v. Gifford, 75 M.J. 140, 142
(C.A.A.F. 2016); United States v. Zachary, 61 M.J. 813, 820 (Army Ct. Crim. App.
2005) (citing Staples v United States, 511 U.S. 600, 604 (1994)).

       In Elonis, the Supreme Court was faced with interpreting a criminal statute,
18 U.S.C. § 875(c), that was silent on the mens rea required to commit the offense
of communicating a threat through interstate commerce. The Court emphasized that
“[w]hen interpreting federal criminal statutes that are silent on the required mental
state, we read into the statute only that mens rea which is necessary to separate
wrongful conduct from otherwise innocent conduct.” 135 S. Ct. at 2010 (quoting
Carter v. United States, 530 U.S. 255, 269 (2000)) (internal quotation marks
omitted). The Court concluded that when a statute is silent in this regard, the mens
rea required to commit the offense must be greater than simple negligence. Elonis,
135 S. Ct. at 2010. In United States v. Gifford, the Court of Appeals for the Armed
Forces (CAAF) applied Elonis to Article 92, UCMJ in finding a general order
prohibiting servicemembers from providing alcohol to individuals under twenty-one
years of age failed to state any mens rea requirement; the court determined the
minimum mens rea that could be ascribed to this offense was “recklessness.” 75
M.J. at 148 (C.A.A.F. 2015).

       The Supreme Court’s decision in Elonis and the CAAF’s decision in Gifford
are predicated on the absence of a statutory mens rea requirement and require
reading into the statute only the mens rea necessary to separate wrongful conduct
from otherwise innocent conduct.

       Article 120, UCMJ, as applied in this case, was not silent as to mens rea.
Here, the government was required to prove appellant committed both the sexual act
and the sexual contact with the specific mens rea of “an intent to abuse, humiliate,
harass, or degrade any person” or “to arouse or gratify the sexual desire of any
person.” UCMJ art. 120(g)(1)(B), (2)(B). As the bodily harm element common to
both offenses was the sexual act and sexual contact, which already had a specific
mens rea, we do not read an additional mens rea requirement into them. 3 Moreover,
the specific mens rea as to the sexual act and sexual contact, along with the

3
  We reject appellant’s assertion that “lack of consent” is a material element of the
crime of sexual assault or abusive sexual contact requiring a separate mens rea.
Consistent with our superior court, we believe it is more precise to treat the
“nonconsensual” requirement 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, 301-02 (C.A.A.F. 2010) (interpreting the 2006 version
of Article 120 to allow “treating evidence of consent as a subsidiary fact potentially
relevant to a broader issue in the case, such as the element of force.”).



                                           4
RIVERA—ARMY 20160396

government’s requirement to prove these acts were “nonconsensual” is sufficient to
separate innocent consensual sexual activity from wrongful sexual misconduct. 4

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Senior Judge BURTON concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                        MALCOLMH.
                                       MALCOLM      H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                        Clerkof
                                       Clerk  ofCourt
                                                 Court




4
  Our review is limited to the application of Article 120, UCMJ, under the specific
facts of this case. That is, we do not address the application of Elonis where a
sexual assault involves penile penetration. Nor do we address it under the
circumstances where a sexual act or sexual contact and the bodily harm are different
acts.


                                         5
