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

                             UNITED STATES, Appellee
                                          v.
                          Private E2 ANTHONY M. BODOH
                            United States Army, Appellant

                                      ARMY 20150218

                       Headquarters, 1st Cavalry Division
                        Wade N. Faulkner, Military Judge
       Lieutenant Colonel Alison C. Martin, Staff Judge Advocate (pretrial)
      Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (post-trial)

For Appellant: Captain Joshua B. Fix, JA (argued); Lieutenant Colonel Melissa R.
Covolesky, JA; Captain Katherine L. DePaul, JA; Captain Joshua B. Fix, JA (on
brief); Lieutenant Colonel Tiffany M. Chapman, JA; Captain Bryan A. Osterhage,
JA; Captain Heather M. Martin, JA; Captain Joshua B. Fix, JA (on reply brief).

For Appellee: Captain Cassandra M. Resposo, JA (argued); Colonel Tania M.
Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith, JA;
Captain Cassandra M. Resposo, JA (on brief).


                                      16 February 2018
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       A panel of officers sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault and one specification of
assault consummated by battery in violation of Articles 120 and 128, Uniform Code
of Military Justice, 10 U.S.C. §§ 920, 928 (2012 & Supp. I 2014). The panel
sentenced appellant to a bad-conduct discharge, confinement for five years,
forfeiture of $1,546.80 per month for sixty months, and reduction to the grade of E-
1. The military judge credited appellant with 277 days towards his sentence to
confinement. The convening authority approved the adjudged sentence.

      This case is before us for review pursuant to Article 66, UCMJ. On appeal
appellant assigns five errors, two of which warrant discussion but no relief. First,
appellant alleges the military judge abused his discretion when he denied the defense
BODOH—ARMY 20150218

motion to dismiss for violation of Rule for Courts-Martial [hereinafter R.C.M.] 707.
Second, appellant alleges the military judge erred when instructing the panel on the
mens rea required for the charged sexual assault. Appellant personally raised two
issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which we
reviewed and find warrant neither discussion nor relief.

                                    BACKGROUND

       On 24 June 2014, appellant was placed in pretrial confinement for sexually
assaulting the spouse of another soldier. On 18 July 2014, multiple charges were
preferred against appellant, including a charge of sexual assault by bodily harm in
violation of Article 120, UCMJ. A pretrial investigation pursuant to Article 32,
UCMJ, was originally scheduled for 7 August 2014. Trial defense counsel requested
a fourteen-day delay, which was granted by the Article 32, UCMJ, investigating
officer (IO). The IO conducted the pretrial investigation on 21 August 2014. On
23 October 2014, the charges were referred to a general court-martial and received
by the military judge. On 24 November 2014, appellant was arraigned. The period
of delay from the military judge’s receipt of the referred charges until arraignment
was thirty-two days.

       Forty-three days later, on 7 January 2015, the charges against appellant were
withdrawn by the 1st Cavalry Division (Rear) (Provisional) convening authority
[hereinafter “provisional convening authority”], and a transfer request was sent to
the 1st Cavalry Division convening authority [hereinafter “division convening
authority”]. 1 In the transfer request, the provisional convening authority excluded
the delay under R.C.M. 707(c) between the time the military judge received the
referred charges—23 October 2014—and the eventual date of re-referral of the same
charges by the division convening authority. On 9 January 2015, the division
convening authority accepted the transferred charges and excluded the same period
of delay as the provisional convening authority. The same day, the charges were re-
referred to a general court-martial and received by the military judge. The period of
delay the convening authorities excluded was seventy-eight days.

       On 12 January 2015, appellant was arraigned on the re-referred charges. The
period of delay from the military judge’s receipt of the re-referred charges until
arraignment was three days. The sum total of days between the imposition of
restraint and arraignment on the re-referred charges was 202 days.

      At trial, the military judge engaged in the following discussion with counsel
about panel instructions:

               [MJ:] So I intend to give the following instructions. I’ll
               give the elements of the offenses. With respect to the
               sexual assault offense, I’m going to give note 2, note 3,
1
    The 1st Cavalry Division (Rear) (Provisional) was disestablished shortly thereafter.

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BODOH—ARMY 20150218

             note 8, and then notes 13, mistake of fact as to consent in
             cases involving bodily harm, and note 14, voluntary
             intoxication and mistake of fact as to consent in cases
             involving bodily harm.

             ....

             Does either side object to those instructions or request
             additional instructions?

After the government proposed additional instructions regarding false exculpatory
statements and variance, the military judge asked the defense for their position.

             [The civilian defense counsel conferred with the defense
             counsel.]

             DC: No objection to variance, Your Honor.

             MJ: No objection? You said no objection?

             CDC: No objection, Your Honor.

             DC: Yes, Your Honor. Apologies.

             MJ: Okay. All right. I’ll give that as it relates to that
             one specification.

In response, the government advocated for an expanded application of the variance
instruction. The military judged, however, agreed with defense counsel’s objection
to the expanded application and limited the variance instruction to one specification.

             [MJ:] Anything else, government?

             ATC: I don’t believe so, Your Honor.

             MJ: Defense?

             DC: Your Honor, I believe you did say for the Article 120
             that consent and mistake of fact as to consent?

             MJ: I did.

             DC: Thank you, Your Honor. Nothing additional, Your
             Honor.

             MJ: Okay.



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BODOH—ARMY 20150218

             CDC: I have one more, Your Honor. Did you say you’re
             going to give spillover instructions?

             MJ: I didn’t.

             CDC: I’d like to have it given, if it’s possible, especially
             as to the assault charges.

             MJ: Okay. I’ll give spillover.

             ....

             [MJ:] Anything further, defense?

             DC: Nothing additional, Your Honor.

      The military judge then promised to draft and email the proposed instructions
to counsel for review the same evening. The next morning, the military judge
continued the discussion with counsel as follows:

             MJ: And my instructions have been marked as Appellate
             Exhibit LII. I emailed them to both sides last night. This
             morning, prior to trial, I conducted an R.C.M. 802 session,
             present at which were both trial counsel, both defense
             counsel, and myself. The defense counsel had some minor
             corrections that I have made to the findings worksheet.

             Any objection from either side to the instructions?

             ATC: No, Your Honor.

             CDC: No, Your Honor.

After government and defense counsel disclaimed any objection to the proposed
instructions, the military judge provided the instructions to the panel before their
deliberation on findings. At the conclusion of their deliberation, the panel found
appellant guilty, inter alia, of sexual assault by bodily harm.

                              LAW AND DISCUSSION

           A. Exclusion of Time from 120-Day Period under R.C.M. 707.

      In a case involving a speedy-trial claim under R.C.M. 707, the ultimate
conclusion whether an accused received a speedy trial is a legal question that is
reviewed de novo. United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003) (citing
United States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999)). In our review, a “military
judge’s findings of fact are given ‘substantial deference and will be reversed only

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BODOH—ARMY 20150218

for clear error.’” Doty, 51 M.J. at 465 (quoting United States v. Taylor, 487 U.S.
326, 337 (1988)). However, “[t]he interpretation of UCMJ and R.C.M. provisions
and the military judge’s compliance with them are questions of law, which we
review de novo.” United States v. St. Blanc, 70 M.J. 424, 427 (C.A.A.F. 2012)
(italics omitted).

       As mandated by R.C.M. 707, “[i]t is incumbent upon the government to
arraign the accused within 120 days after the earlier of preferral of charges, the
imposition of restraint, or entry on active duty.” United States v. Leahr, 73 M.J.
364, 367 (C.A.A.F. 2014) (citing R.C.M. 707(a)). Where charges are dismissed, “‘a
new 120-day time period under this rule shall begin on the date of dismissal.’” Id.
(quoting R.C.M. 707(b)(3)(A)). “If charges are merely withdrawn and not
subsequently dismissed, however, the R.C.M. 707 ‘speedy-trial clock continues to
run.’” Id. (quoting United States v. Britton, 26 M.J. 24, 26 (C.M.A. 1988)). The
remedy for failing to arraign an accused within the 120-day period is dismissal of
the charges, either with or without prejudice. See R.C.M. 707(d) (“A failure to
comply with this rule will result in dismissal of the affected charges . . . . Dismissal
will be with or without prejudice to the government’s right to reinstitute court-
martial proceedings against the accused for the same offense at a later date.”).

       The calculation of days against the 120-day period is not a simple addition of
consecutive calendar days between preferral or restraint and arraignment. Instead,
the procedural rules automatically exclude specific periods of time from the 120-day
calculation. See R.C.M. 707(c) (“All periods of time during which appellate courts
have issued stays in the proceedings, or the accused is absent without authority, or
the accused is hospitalized due to incompetence, or is otherwise in the custody of the
Attorney General, shall be excluded when determining whether the period in
[R.C.M. 707(a)] has run.”). The rules also grant broad authority to the convening
authority and the military judge to approve pretrial delays, which “shall be similarly
excluded” from the 120-day time period. R.C.M. 707(c); see also R.C.M. 707(c)
discussion (“The decision to grant or deny a reasonable delay is a matter within the
sole discretion of the convening authority or a military judge”).

       Accordingly, “[a]ll pretrial delays approved by authorized personnel are
excludable unless the decision to approve the delay was an abuse of discretion.”
United States v. Torres, ARMY 20111168, 2014 CCA LEXIS 180, at *6 (Army Ct.
Crim. App. 19 Mar. 2014) (mem. op.) (citing United States v. Lazauskas, 62 M.J. 39,
41 (C.A.A.F. 2005), and R.C.M. 707(c)). It does not matter which party is
responsible for the delay. Lazauskas, 62 M.J. at 41. However, “[t]here must be
‘good cause’ for the delay and the length of time requested must be ‘reasonable’
based on the facts and circumstances of each case.” Torres, 2014 CCA LEXIS at *6
(quoting United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F. 1997)). “In sum,
when this court reviews a military judge’s denial of a motion for violation of speedy
trial pursuant to R.C.M. 707, we must answer two questions: (1) was the delay



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BODOH—ARMY 20150218

granted by a person authorized to grant the delay; and (2) was the decision to grant
the delay an abuse of discretion.” Id.

       Regarding the first question, we must consider the timing of the delay. “Prior
to referral, all requests for pretrial delay, together with supporting reasons, will be
submitted to the convening authority . . . .” R.C.M. 707(c)(1). The convening
authority may also delegate the authority to grant continuances to an Article 32
investigating officer. R.C.M. 707(c)(1) discussion. “After referral, such requests
for pretrial delay will be submitted to the military judge for resolution.”
R.C.M. 707(c)(1). “Any period of delay from the judge’s receipt of the referred
charges until arraignment is considered pretrial delay approved by the judge per
RCM 707(c), unless the judge specifies to the contrary.” Rules of Practice Before
Army Courts-Martial [hereinafter Rule of Court] 1.1 (1 Nov. 2013). 2

       Regarding the second question, we must consider the reason for the delay to
determine whether the authorized officer abused his or her discretion. “An abuse of
discretion occurs when either there was not good cause for granting the delay, or the
amount of delay granted was unreasonable under the facts and circumstances of the
case.” Torres, 2014 CCA LEXIS at *6-7 (citing Thompson, 46 M.J. at 475).

      In this case, the military judge made the following findings of fact and
conclusions of law when denying the defense motion to dismiss:

             The accused was arraigned 153 days after being placed
             into pretrial confinement. Of those days, 14 are excluded
             based on the Defense request for delay in the Article 32,
             and 32 days are excluded under Rule 1.1 of the Rules of
             Practice. Accounting for time excluded under
             RCM 707(c), the accused was arraigned 107 days after
             being placed in pretrial confinement. There is therefore
             no violation of the RCM 707 120-day clock in this case.
             On 7 January 2015, the charges were withdrawn and
             referred by a different [convening authority] 2 days later.
             Adding those two additional days to the 107 days for the
             withdrawal and referral under a new [convening
             authority], and excluding the days between 9 January 2015
             and 12 January 2015, the day the accused was arraigned

2
  Pursuant to R.C.M. 108, “The Judge Advocate General . . . may make rules of court
not inconsistent with these rules for the conduct of court-martial proceedings.” In
turn, “The Judge Advocate General authorize[d] the Chief Trial Judge under
RCM 108 to promulgate local or general rules of court.” Army Reg. 27-10, Legal
Services: Military Justice, para. 7-8 (3 Oct. 2011). “We have previously found Rule
of Court 1.1 is not inconsistent with R.C.M. 707(c)(1).” United States v. Hawkins,
75 M.J. 640, 641 (Army Ct. Crim. App. 2016) (citation omitted).

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BODOH—ARMY 20150218

             again, the accused was arraigned 109 days after being
             placed into pretrial confinement. There is therefore no
             violation of the RCM 707 120-day clock in this case.

(emphasis added). The military judge’s findings of fact were based on a stipulated
timeline jointly signed by appellant, defense counsel, and the government. Since the
parties stipulated to a chronology of pretrial events, the military judge’s adoption of
the chronology for his findings of fact was not clearly erroneous. For our de novo
review of the legal questions involved, we similarly find a sufficient amount of time
was excluded from the 120-day period as properly-approved delay that the
government did not violate the speedy trial requirements of R.C.M. 707. Therefore,
the military judge did not err when he denied the defense motion to dismiss.

        1. Was the delay granted by a person authorized to grant the delay?

       Appellant does not dispute that the IO was a person authorized to grant the
fourteen-day delay prior to the Article 32 hearing. The IO granted the delay under
authority delegated from the provisional convening authority and before the charges
were referred to a military judge. Although the military judge when ruling on the
motion to dismiss purported to exclude this same period of delay, the practical effect
of the military judge’s duplication was to recognize and ratify the delay already
approved by the IO, a person authorized to grant the delay.

       The thirty-two day delay from the referral of charges on 23 October 2014
until arraignment on 24 November 2014 was excluded by the military judge by
operation of Rule of Court 1.1. Pursuant to Rule of Court 1.1, the military judge
exercised his authority under R.C.M. 707(c) to exclude the thirty-two-day delay
between receipt of charges and arraignment because he did not specify to the
contrary. Addressing below whether the military judge abused his discretion, it is
clear from the plain text of R.C.M. 707(c) that the military judge was a person
authorized to exclude delay post-referral. The same operation of Rule of Court 1.1
supports the military judge’s exclusion of a three-day delay from the re-referral of
charges on 9 January 2015 until arraignment on 12 January 2015, which he expressly
ratified in his ruling on the motion to dismiss.

           2. Was the decision to grant the delay an abuse of discretion?

       Appellant does not challenge the delay approved by the IO as an abuse of
discretion. The IO had good cause to grant appellant’s delay (i.e., to accommodate a
defense request), and the length of time (i.e., fourteen days) was not unreasonable.
Similarly, the military judge did not abuse his discretion when excluding the two
periods of post-referral delay by operation of Rule of Court 1.1. First, the military
judge had good cause to permit the normal operation of Rule of Court 1.1 because
the reason for the delay was to accommodate civilian defense counsel’s participation
in the trial scheduling process. Second, the amount of post-referral delay under Rule
of Court 1.1 (i.e., thirty-five days) was reasonable under the circumstances of this

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case. The military judge took an active role in prompting civilian defense counsel to
comply with established docketing procedures to ensure the length of delay did not
become unreasonable, intervening after twelve days before receiving civilian defense
counsel’s docketing request eight days later. 3 Therefore, the military judge did not
abuse his discretion by permitting the normal operation of Rule of Court 1.1.

    3. Periods of time otherwise excluded from the R.C.M. 707 speedy trial clock.

       During the forty-three days between arraignment on 24 November 2014 and
the withdrawal of charges on 7 January 2015, the R.C.M. 707 speedy-trial clock was
tolled. See Thompson, 46 M.J. at 474 (“Except for certain ‘events which affect time
periods’ that are specified in RCM 707(b)(3), this 120-day clock is tolled only by
arraignment of an accused at a court-martial.”); R.C.M. 707(b)(1).

       Appellant’s challenge of the convening authority’s ability to approve a delay
retroactively, sua sponte, and ex parte presumes the period of time during which the
120-day clock was tolled was invalidated when the convening authority withdrew the
referred charges. Although appellant relies on dicta from our superior court to
bolster this claim on this matter of first impression, this reliance is misplaced.

        In United States v. Britton, the Court of Military Appeals (CMA) considered
whether withdrawal and re-preferral of charges had the same legal consequence (of
resetting the 120-day speedy-trial clock) as dismissal and re-preferral of charges. 26
M.J. 24, 24 (C.M.A. 1988). Importantly, neither the CMA nor the lower Air Force
Court of Military Review (AFCMR) purported to address all the collateral issues in
the case. “Without addressing the issue of waiver the [AFCMR] dismissed the
earlier charges, holding that withdrawal was not a condition under R.C.M. 707(b)
which would cause the speedy-trial clock to start anew upon the reinstatement of the
charges” Id. at 25. Without delineating the number of days tolled after the first
arraignment, the CMA similarly held that “[u]nless a convening authority acts to
dismiss the withdrawn charges, R.C.M. 707(b)(2) does not apply, and the speedy-
trial clock continues to run.” Id. at 26. Whether the speedy-trial clock continues to
run absent dismissal of charges, is a different question than whether properly-
excluded time (e.g., post-arraignment, during unauthorized absence or
hospitalization) is permanently invalidated by withdrawing charges.

       In United States v. Leahr, our superior court considered: (1) whether the
military judge erred in denying a defense motion to dismiss for violation of an
appellant’s right to speedy trial under R.C.M. 707; and (2) whether the government’s
withdrawal and re-referral of charges was for an improper reason in violation of
R.C.M. 604(b). 73 M.J. 364, 365 (C.A.A.F. 2014). The appellant argued the
R.C.M. 707 clock continued to run from the date the original charges were preferred,

3
 In the electronic docketing request, civilian defense counsel requested a trial date
of 23 March 2015, one day before appellant’s trial on the merits actually began.

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BODOH—ARMY 20150218

and the arraignment that tolled the R.C.M. 707 clock was “vitiated” by the
withdrawal of charges. Id. at 367. Our superior court ultimately concluded the
appellant’s “right to a speedy trial under [R.C.M.] 707 was not violated because
[the] original charges were dismissed” and “the dismissal and re-referral of the
charges to another court-martial did not violate R.C.M. 604(b) because the dismissal
was for a proper reason.” Id. Notwithstanding its holding, the court surmised that if
the convening authority’s action amounted to a withdrawal only, the speedy-trial
clock would not have reset and the 190-day period between the initial preferral and
the final arraignment would violate R.C.M. 707. Id. (citing Britton, 26 M.J. at 26).

       It seems clear that our superior court did not intend to establish a procedural
rule for vitiating previously-tolled periods of delay in the background section in
Britton or in a hypothetical in Leahr. Moreover, we are reluctant to string dicta
from two cases, twenty-six years apart, to establish binding precedent that places
previously-tolled periods of time beyond the reach of subsequent military judges and
convening authorities whenever charges are properly withdrawn post-arraignment.
We are particularly hesitant when the text of R.C.M. 707 does not require such an
interpretation, but does require as the remedy dismissal of charges for any violation.
From the context of R.C.M. 707, the President, in his rule-making authority, seems
to have contemplated and authorized two categories of time to be exempt from the
120-day clock: (1) delay excluded by the proper exercise of discretion from an
authorized officer; and (2) delay resulting from a qualifying event. Appellant’s
interpretation would create a third category of time in which properly excluded time
would move beyond the reach of military judges and convening authorities after any
post-arraignment withdrawal of charges. If our superior court intended to create a
new rule not found in the text of R.C.M. 707, it would have done so explicitly in a
case where the matter of previously-tolled delay was at issue. Therefore, we decline
to adopt such a rule in this instance.

      4. The convening authorities excluded delay imperfectly but effectively.

      Even if the previously-tolled period of delay was vitiated by the subsequent
withdrawal of charges, the convening authorities’ potentially imperfect exclusions of
delay were still effective. First, both convening authorities were personnel
authorized under R.C.M. 707(c) to exclude periods of delay. By withdrawing the
charges from the court-martial under R.C.M. 604(a), the decision to exclude
reasonable delay returned to the sole discretion of the convening authority. Before
the charges were transferred, the provisional convening authority exercised his
authority to exclude delay. After the charges were transferred, the division
convening authority exercised his authority to exclude the same period of delay.

       Second, the convening authorities did not abuse their discretion when
excluding the seventy-eight days from the military judge’s receipt of the referred
charges until the military judge’s receipt of the re-referred charges. They had good
cause to exclude the delay that resulted from the disestablishment of 1st Cavalry


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BODOH—ARMY 20150218

Division (Rear) (Provisional). Moreover, the amount of the delay was reasonable as
it essentially covered the same time that had been properly excluded by the military
judge under Rule of Court 1.1 or tolled by operation of R.C.M. 707(b)(1). But for
the disestablishment of the division, the time the convening authorities acted on
would have remained properly-excluded delay. At least with respect to the division
convening authority, the excluded delay was not open-ended because the period of
delay was terminated the same day by his re-referral of the same charges.

        In addition, even assuming the actions of the convening authorities were truly
ex parte (as opposed to merely sua sponte), the ex parte nature of their actions, while
discouraged, did not rise to an abuse of discretion. The discussion section of
R.C.M. 707 states: “Pretrial delays should not be granted ex parte, and when
practicable, the decision granting the delay, together with supporting reasons and
the dates covering the delay, should be reduced to writing.” R.C.M. 707(c)(1)
discussion (emphasis added). The discussion section, however, is non-binding and,
under a plain reading of its text, advisory. See Willenbring v. Neurauter, 48 M.J.
152, 168 (C.A.A.F. 1998) (explaining the “non-binding” nature of the discussion
sections within the Rules for Courts-Martial, “which are not part of the Manual and
. . . do not contain official rules or policy”).

       Furthermore, there is no prohibition or advisement against excluding delay
retroactively or sua sponte. Notably, Rule of Court 1.1 serves to exclude delay both
retroactively and sua sponte, which we have previously found compliant with
R.C.M. 707. Hawkins, 75 M.J. at 641. Here, there was a practical reason for the
convening authorities to exclude the delay retroactively and sua sponte. Before the
withdrawal of charges, the same period of time was already excluded. But for the
convening authorities’ action of transferring the case, the effectiveness of the
previously-excluded delay would not be in question. Also, at the time the charges
were first referred, there was no reason to believe the trial could not be completed
before the disestablishment of the division.

      In sum, even if the previously-tolled period of time was invalidated by the
subsequent withdrawal of charges, the convening authorities effectively excluded the
same period of delay in the proper exercise of their discretion. Accordingly, we find
no violation of appellant’s speedy-trial rights under R.C.M. 707.

                   B. Mens Rea for Article 120(b)(1)(B), UCMJ.

       The offense of sexual assault by bodily harm contains two elements under
Article 120, UCMJ: (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.), pt. IV, ¶ 45.a.(b)(1)(B). In appellant’s case the charged sexual
act—penetrating the victim’s vulva, anus, and mouth with his penis—was also the
bodily harm.



                                          10
BODOH—ARMY 20150218

       At trial, the military judge instructed the panel that, to convict appellant of
sexual assault by bodily harm, they had to be convinced beyond a reasonable doubt
of the following:

             One, that at Fort Hood, Texas, on or about 22 June 2014,
             the accused committed sexual acts upon [the victim], to
             wit: penetrating her vulva, anus, and mouth with his penis;
             two, that the accused did so by causing bodily harm to [the
             victim], to wit: penetrating her vulva, anus, and mouth
             with his penis; and three, that the accused did so without
             the consent of [the victim].

These instructions mirrored the template in the Military Judges’ Benchbook and the
statutory language of Article 120, UCMJ. See Dep’t of Army, Pam. 27-9, Legal
Services: Military Judges’ Benchbook, para. 3-45-14 (10 Sept. 2014). Based on the
government’s charging decision, the military judge explained to the panel that proof
of the victim’s lack of consent was required for both the sexual act and bodily harm
elements. The panel was told to consider “[a]ll the surrounding circumstances” to
determine whether the victim gave consent. Furthermore, the military judge
provided an instruction concerning the defense of mistake of fact as to consent, and
told the panel to consider appellant’s state of mind and the reasonableness of his
belief about the victim’s consent.

       For the first time on appeal, appellant argues the military judge erred by
instructing the panel that a negligent mens rea was sufficient to make his otherwise
lawful conduct criminal. Appellant claims, after Elonis v. United States, 135 S. Ct.
2001 (2015), and United States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016), the minimal
mens rea to separate wrongful from otherwise innocent conduct is recklessness.

       What mens rea applies to an offense is a question of law that we review de
novo. Gifford, 75 M.J. at 142. Similarly, we review de novo the legal correctness
of the instructions given by the military judge. United States v. Payne, 73 M.J. 19,
22 (C.A.A.F. 2014) (citations omitted). “Failure to object to an instruction or to
omission of an instruction before the members close to deliberate constitutes
[forfeiture] of the objection in the absence of plain error.” R.C.M. 920(f); see
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (clarifying the misuse of
the term “waiver” in the procedural rules when the term “forfeiture” was actually
intended). When forfeited at trial, we review for plain error. Payne, 73 M.J. at 22-
23 (citing United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013)).

       “Under a plain error analysis, the accused ‘has the burden of demonstrating
that: (1) there was error; (2) the error was plain or obvious; and (3) the error
materially prejudiced a substantial right of the accused.’” Tunstall, 72 M.J. at 193-
94 (quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)). “Once
[appellant] meets his burden of establishing plain error, the burden shifts to the


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BODOH—ARMY 20150218

Government to convince us that this constitutional error was harmless beyond a
reasonable doubt.” United States v. Paige, 67 M.J. 442, 449 (quoting United States
v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)). On the other hand, “[t]he 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 United States v. Bungert, 62 M.J.
346, 348 (C.A.A.F. 2006)).

                    1. Affirmative waiver of instructional error.

       There is a subtle but consequential difference between counsel failing to
object and counsel choosing not to object. Here, defense counsel made the decision
not to object to the proposed instructions and affirmatively stated their choice to the
military judge. This decision came after defense counsel helped craft the
instructions by proposing additional instructions and limiting the instructions
requested by the government. Defense counsel also received a copy of the proposed
instructions the night before and discussed the matter in-chambers the following
day. By inattention or otherwise, counsel may fail to consider a potential issue and
miss their opportunity to raise a timely objection. This failure to consider an issue
is properly seen as forfeiture. However, counsel making the “wrong” choice when
confronted with a potential objection bears a different consequence than counsel
neglecting to make a choice.

        If counsel improperly waived an objection to instructional error, the appellate
standard for obtaining relief is whether counsel provided ineffective assistance at
trial, not whether a bad decision in hindsight can be recast as a missed opportunity
to object. In this case, where counsel’s attention was directed by the court to the
sufficiency and propriety of those instructions and counsel affirmatively disclaimed
any objection, the consequence of counsel’s considered decision is waiver, not
forfeiture. This conclusion is consistent with the approach taken by our federal
civilian counterparts. See United States v. Hoffman, 76 M.J. 758, 765-66 (Army Ct.
Crim. App. 2017) (detailing the holdings of courts of appeals from various federal
circuits that the affirmative statement “no objection” constitutes waiver of error, not
forfeiture). More importantly, our conclusion is consistent with our superior court’s
recent holding in United States v. Swift, 76 M.J. 210, 217 (C.A.A.F. 2017).

                    2. Plain-error review of instructional error.

       Even if he did not waive his claim of instructional error or we looked beyond
his waiver in the exercise of our Article 66, UCMJ, authority, 4 appellant has not met
his burden for relief under plain-error review. Because any error in this case was

4
  In United States v. Chin, our superior court made clear that waiver of an error,
absent a complete waiver of appellate review under Article 61, UCMJ, does not limit
this court’s authority to provide relief for errors under Article 66(c), UCMJ. 75 M.J.
220, 222-23 (C.A.A.F. 2016).

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BODOH—ARMY 20150218

not plain and obvious, we do not directly determine whether the challenged
instruction constituted error. See United States v. Battles, ARMY 20140399, 2017
CCA LEXIS 380, at *9-10 (Army Ct. Crim. App. 31 May 2017) (mem. op.) (finding
assumed instructional error was neither plain and obvious nor prejudicial).

       Moreover, even assuming plain and obvious error, appellant would still not be
entitled to relief absent prejudice. In his brief, appellant alleges prejudice because
“a correct instruction with respect to mens rea would have fundamentally changed
the nature of the case.” Based on the facts of this case—most notably appellant’s
version of events—we disagree. While the military judge gave a mistake-of-fact
instruction, appellant’s defense was actual consent. Appellant’s account—either
from his sworn statement admitted as a prosecution exhibit or his trial testimony—
did not require him to infer the victim’s consent from the circumstances. Instead, he
described the victim as the sexual aggressor, initially making multiple unwanted
sexual advances until he eventually relented. In fact, the only state-of-mind
question defense counsel asked appellant was whether in hindsight he regretted the
incident, not what his state of mind was at the time of the offense. In our review of
the record, appellant’s testimony left no middle ground for an honest but incorrect
belief concerning the victim’s consent due to ignorance or mistake. Either his belief
about the victim’s consent was correct because she expressly stated it and acted as
the sexual aggressor in the situation; or he lied about her repeated and overt
demands for oral and vaginal intercourse, making his claimed belief dishonest and
not the result of ignorance or mistake.

       Specifically, appellant claimed he was using the restroom when the victim
came out of her bedroom where her husband was asleep, entered the unlocked
restroom, and tried to remove his shorts and perform fellatio on him while he
resisted her advances. Appellant testified the victim ripped her shirt off exposing
her bare breasts before he forced his way out of the restroom, past the victim, and
went to kitchen. He said the victim followed him to the kitchen, while asking for
appellant and a co-assailant in the living room to let her perform fellatio on both of
them. At the time the victim entered the kitchen, she had removed all of her clothes.
Although initially resistant, appellant testified he eventually relented, allowing the
victim to remove his shorts and perform fellatio on him while the co-assailant had
either vaginal or anal intercourse with her. After a few minutes, appellant claims he
and the co-assailant felt remorseful and ended the sexual encounter even though the
victim expressed a desire to continue.

       Regarding the vaginal intercourse, appellant claimed the victim followed him
from the kitchen to the living room where she continued to act as the aggressor. As
he sat in a recliner, appellant testified the victim again tried to remove his shorts
until he relented, allowing her to fondle his penis before she initiated vaginal
intercourse. After approximately five minutes, appellant again terminated the sexual
activity even though the victim wanted to continue. By appellant’s own account of



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BODOH—ARMY 20150218

the oral and vaginal intercourse, the only consent that appears to have been
inconsistent was appellant and the co-assailant’s.

       Not only did appellant claim overt expressions of the victim’s consent for
both the oral and vaginal intercourse, he specifically disclaimed facts that would
have given rise to a potential mistake of fact as to consent. For example, appellant
denied having any prior sexual history with the victim. In addition, appellant denied
the victim made any statement during intercourse about wanting to go to bed. 5
Under appellant’s version of consensual intercourse, this statement could have given
rise to a potential mistake about whether the victim was immediately withdrawing
her consent or stating a desire for the consensual intercourse to conclude relatively
soon because she was getting tired. However, appellant testified the victim never
made such a statement.

       In conclusion, appellant’s testimony left no room for the theory he mistakenly
believed, either negligently or recklessly, the victim consented to the oral or vaginal
intercourse. Accordingly, we are convinced any instructional error—plain or
otherwise—was harmless beyond a reasonable doubt based on the facts and
circumstances in this case.

                                   CONCLUSION

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

      Judge CELTNIEKS and Judge SCHASBERGER concur.

                                           FORTHE
                                          FOR  THECOURT:
                                                   COURT:




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




5
  In her testimony, the victim repeatedly and emphatically denied consenting to any
of the sexual acts appellant perpetrated against her. Specifically, the victim testified
that she asked appellant if she could go to bed while he assaulted her in the restroom
but “[h]e said no and this was going to happen every time he came over.” The
victim also testified that while appellant assaulted her in the living room, she was
crying and “asked him a couple times if [she] could just go to bed, and he said that
[she was] not going until [she] made him come.”

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