UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and SCHASBERGER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class RYAN E. MANNAN 

United States Army, Appellant 

ARMY 20170096 

Headquarters, 82d Airborne Division 

Deidra J. Fleming and Daniel G. Brookhart, Military Judges 

Colonel Dean L. Whitford, Staff Judge Advocate 

For Appellant: Captain Benjamin A. Accinelli, JA; William E. Cassara, Esquire (on 

brief and brief on specified issue). 

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford, 

JA; Lieutenant Colonel Wayne H. Williams, JA; Captain KJ Harris, JA (on brief and 

brief on specified issue). 

11 April 2019 

--------------------------------- 

MEMORANDUM OPINION 

---------------------------------

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

FEBBO, Judge: 

 Appellant argues his convictions of sexual assault under two different theories 

of liability are legally and factually insufficient. We find otherwise.1 Further, we 

considered whether the military judge applied the wrong mens rea to two of the 

specifications of which appellant was convicted. As appellant forfeited any issue 

 

1

 We have also considered appellant’s claim of dilatory post-trial processing under 

United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). We find appellant has 

suffered no actual prejudice due to delay in the post-trial processing of his case. We 

further find no other relief for the delay is warranted under Article 66, UCMJ. 
MANNAN—ARMY 20170096 

2 

relating to mens rea at trial, we conclude appellant has not carried the burden of 

demonstrating plain error in his case. 

A military judge sitting as a general court-martial convicted appellant, 

contrary to his pleas, of four specifications of sexual assault, in violation of Article 

120, Uniform Code of Military Justice, 10 U.S.C. §§ 920 (2012) [UCMJ]. 

Contingent upon completion of appellate review, the military judge conditionally 

dismissed Specifications 2 and 4 of The Charge, which alleged bodily harm, because 

they were charged in the alternative to Specifications 1 and 3 of The Charge, which 

alleged incapacity to consent.2 The military judge sentenced appellant to a 

dishonorable discharge, thirteen months of confinement, reduction to the grade of E1, and forfeiture of all pay and allowances. The convening authority approved the 

adjudged sentence. This case is before us for review pursuant to Article 66, UCMJ. 

We find appellant’s convictions are legally and factually sufficient. We 

further conclude appellant has not shown the military judge committed plain error 

with respect to the mens rea applicable to the specifications alleging appellant 

committed sexual assault by bodily harm.3

BACKGROUND 

 Appellant was assigned to Fort Bragg, North Carolina. In April 2015, 

Gunner’s Mate Third Class (GM3) Mylee Novak hosted a small party at her 

apartment in Fort Lauderdale, Florida. Her cousin, Specialist (SPC) Tyler Novak 

invited three other Fort Bragg soldiers on a road trip to the party: SPC Hernandez, 

SPC Pollard, and appellant. After a day on the beach, the group picked up dinner, 

rum, and beer before returning to GM3 Novak’s apartment around 2000. Gunner’s 

Mate Third Class Novak’s mother was also visiting on the night of the party. 

Around 2100, Seaman’s Apprentice RB, a coworker of GM3 Novak, joined the 

party. RB drank some beer and ate some food. After eating dinner, RB drank two or 

three shots of an unknown clear alcohol with GM3 Novak, after which she began 

 

2

 At trial, the government dismissed the original specification 1 of the Charge and 

renumbered the remaining four specifications. 

3

 We specified this issue for briefing in light of United States v. Peebles, 78 M.J. 

658 (Army Ct. Crim. App. 2019). In our order specifying the issue, we erred by 

referring to the relevant specifications as Specifications 3 and 5. Due to dismissal 

of the original Specification 1, the relevant specifications were renumbered 

Specifications 2 and 4. Fortunately, both parties correctly ascertained our intent and 

briefed the issue on the relevant specifications. 
MANNAN—ARMY 20170096 

3 

drinking “Kraken” brand rum directly from the bottle. RB testified she drank “a 

good amount” of the bottle. After dinner, the group moved downstairs to a billiard 

area in the apartment complex. Gunner’s Mate Third Class Novak’s mother stayed 

in the apartment. At that point in the evening, GM3 Novak described RB as “pretty 

intoxicated,” and capable of walking, but unstable. RB continued to drink alcohol. 

While playing billiards, the group bet each other that the loser would get thrown in 

the pool outside the billiards area. Specialist Pollard and RB went into the pool. 

RB exited the pool and pulled appellant into the pool. 

While SPC Pollard and appellant were in the pool together, they cradled RB in 

their arms. Without any discussion or consent, appellant inserted his finger into 

RB’s vagina. At the time, appellant and RB had hardly spoken and did not even 

know each other’s names. Specialist Pollard heard RB moaning and telling appellant 

to “stop.” SPC Pollard told appellant to stop because RB was “really drunk.” RB, 

however, did not remember telling appellant to stop. 

Afterward, appellant and RB exited the pool. RB got onto appellant’s back 

and appellant carried her up the exterior cement staircase to GM3 Novak’s 

apartment. Appellant stopped on a landing. RB remembered lying on the concrete 

landing with appellant on top of her, putting his penis inside her vagina. Her shorts 

were off her body and lying next to her. RB told appellant to put her shorts back on, 

but he continued putting his penis inside her vagina. RB said “ouch,” “screamed a 

little” that it hurt, and cried. 

Appellant stopped penetrating RB’s vagina. RB tried to stand up, but she fell 

into a wall. Appellant put RB on his back again and carried her to GM3 Novak’s 

apartment. The next thing RB remembered was lying in GM3 Novak’s apartment 

and throwing up in the bathroom. RB was crying and told GM3 Novak that appellant 

“put himself inside me in the stairwell.” 

GM3 Novak drove RB home to her apartment. RB called a friend and 

reported that she was sexually assaulted. The next day, RB underwent a sexual 

assault medical forensic examination. 

Appellant drove back to Fort Bragg with his three friends. Appellant told one 

of his friends that he placed his penis in RB’s vagina, but stopped when she showed 

signs she was in pain. 

LAW AND DISCUSSION 

Article 66, UCMJ, establishes our statutory duty to review a record of trial for 

legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395 

(C.A.A.F. 2003). We may affirm only those findings of guilty that we find correct 

in law and fact and determine, based on the entire record, should be affirmed. Id. 
MANNAN—ARMY 20170096 

4 

In evaluating factual sufficiency, we take “a fresh, impartial look at the 

evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To affirm a 

conviction, “after weighing the evidence in the record of trial and making 

allowances for not having personally observed the witnesses, [we must be] 

convinced of [appellant’s] guilt beyond a reasonable doubt.” United States v. 

Turner, 25 M.J. 324, 325 (C.M.A. 1987). 

Based on appellant’s admission to other soldiers, there is no reasonable 

dispute that appellant committed the alleged sexual acts. The only issues are 

whether RB was so impaired that she could not consent to the sexual acts, whether 

RB in fact did not consent to the sexual acts, and whether appellant had a sufficient 

mens rea as to RB’s inability to consent and the fact RB did not consent. We answer 

these issues in the affirmative. First, we will discuss RB’s incapacity to consent and 

the fact she did not consent. Second, we will discuss appellant’s mens rea as to 

RB’s ability to consent and the fact she did not consent. 

A. Incapacity to Consent and Lack of Consent 

It is beyond reasonable dispute that RB was impaired by alcohol when 

appellant performed sexual acts on her. Mere impairment, however, does not end the 

analysis. Article 120(b)(3) “does not proscribe sexual acts with impaired people, 

but rather with people incapable of consenting to the conduct at issue because of 

their impairment—and even then, only when the inability to consent is known, or 

reasonably should be known, to an accused.” United States v. Solis, 75 M.J. 759, 

763 (N-M. Ct. Crim. App. 2016). An individual is incapable of consenting to sexual 

conduct when that individual lacks “the cognitive ability to appreciate the nature of 

the conduct in question, [or] the mental and physical ability to make and to 

communicate a decision regarding that conduct to the other person United States v. 

Pease, 74 M.J. 763, 770 (N.M. Ct. Crim. App. 2015), aff’d 75 M.J. 180 (C.A.A.F. 

2016). See also United States v. Bailey, 77 M.J. 11, 13 (C.A.A.F. 2017). 

Appellant asserts the evidence was factually insufficient to support his 

convictions for sexual assault. Appellant points to RB’s actions prior to the assaults 

to show she was not impaired to the point she was incapable of consenting. This 

includes, among other actions, RB playing billiards earlier in the evening, and 

finding a toilet to vomit into later in the evening. Other evidence, however, 

persuades us that RB was indeed incapable of consent at the times appellant 

committed sexual acts upon her. 

There seems to be little dispute that RB was highly intoxicated most of the 

evening in question. RB’s own testimony and the testimony of other witnesses 

establish RB was intoxicated. We have no doubt that she nevertheless had the 

cognitive ability to appreciate her surroundings and actions much of the time. This 
MANNAN—ARMY 20170096 

5 

does not answer the core question, however, of whether RB had the cognitive ability 

to appreciate the nature of appellant’s sexual acts and the ability to communicate 

consent—or lack thereof—at the critical moments when appellant performed sexual 

acts upon her. Former capacity does not guarantee capacity in the future, and later 

capacity is not necessarily indicative of capacity in the past. In other words, 

capacity to consent is not so much an event horizon—from whose bourn no traveler 

returns—as a threshold, which may be crossed in both directions. 

Although RB did not remember telling appellant to stop inserting his finger in 

her vagina, SPC Pollard heard her telling appellant to stop. At a minimum, this 

reinforces the fact RB did not consent, and also suggests that RB was not fully 

aware of what was happening at the time because she later reported being unaware of 

her own words. Further, SPC Pollard told appellant not to penetrate RB’s vagina 

with appellant’s finger because she was “really drunk.” Specialist Pollard clearly 

recognized RB was incapable of consenting to or resisting appellant’s actions. 

RB’s recollection of appellant’s sexual acts on her in the stairwell are also 

consistent with her inability to consent. RB reported being aware she was being 

carried by appellant, but she was not aware of the location to which she was being 

carried. She next remembered being laid on the cement landing, but did not 

remember how her shorts were removed. She testified she was “confused,” and 

came to realize appellant was sexually penetrating her. 

Although RB may have had moments in which she was capable of protest—

and in which she indeed protested appellant’s actions—we conclude she was 

incapable of appreciating the nature of appellant’s acts upon her or of consenting to 

those actions, at least when appellant first penetrated her vagina with his finger, and 

when he first penetrated her vagina with his penis. Even if RB became aware of 

appellant’s actions or regained the capacity to protest moments later, we find she 

was incapable of consent as appellant penetrated her. We further find appellant 

knew, or reasonably should have known, RB was incapable of consenting to 

appellant’s sexual acts. 

We also find that RB in fact never consented to any sexual acts with 

appellant. The record is simply devoid of credible evidence that RB consented. 

The military judge was presented two theories of liability—first that RB was 

incapable of consent, and second that RB did not consent, and therefore the sexual 

acts constituted bodily harm. The military judge convicted appellant under both 

theories. After reviewing the evidence ourselves, we agree with the military judge 

that the elements of all four specifications were met. 
MANNAN—ARMY 20170096 

6 

B. Appellant’s Mens Rea as to Consent 

Consent is more than an absence of protest; it is an affirmative concept. 

Consent may be explicit or implicit, and it may be verbal or nonverbal. Appellant’s 

basic approach with RB, however, turned the notion of affirmative consent on its 

head. Appellant’s course of conduct was to bypass consent and perform sexual acts 

on RB until she manifested her lack of consent. Appellant’s actions were, at a 

minimum, reckless as to the fact RB never consented to sexual acts. 

Appellant did not know RB’s name. He did not ask for her consent to any 

sexual acts. She did not indicate she wanted any sexual acts performed on her. 

Specialist Pollard recognized that RB was “really drunk” and it was wrong to 

perform any sexual acts on her. Nevertheless, appellant inserted his finger in RB’s 

vagina while in a public place, and while RB was vulnerable, both due to her level 

of intoxication, and due to her physical position—being held by two men in a pool. 

Appellant’s actions in this regard were, at a minimum, reckless.

4

Appellant’s sexual acts upon RB in the stairwell display a similar reckless 

disregard for the fact she never consented. In fact, SPC Pollard told appellant RB 

was “really drunk” and appellant should not perform any sexual acts on her shortly 

before appellant penetrated RB’s vagina with his penis in the stairwell. Moreover, 

SPC Pollard heard RB say “stop” when appellant penetrated her vagina with his 

finger in the pool. Nevertheless, absent any credible evidence RB consented in any 

way, appellant removed RB’s clothes in a public stairwell and penetrated her vagina 

with his penis. Appellant was, at a minimum, reckless. 

We also conclude that appellant has not demonstrated that the military judge 

applied the wrong mens rea in appellant’s case. Further, even assuming, arguendo, 

that the military judge applied the wrong mens rea in light of our decision in 

Peebles, we conclude appellant has not demonstrated that any such error materially 

prejudiced his substantial rights. See generally Peebles, 78 M.J. at 667. 

The model panel instruction on mistake of fact as to consent in the Military 

Judges’ Benchbook undergirds appellant’s best argument that the military judge 

 

4

 We also find a reasonable person would have realized that RB was too intoxicated 

to consent to the sexual acts. The reasonable person standard is, however, 

synonymous with negligence. For the reasons set forth in Peebles, however, our 

analysis of appellant’s mens rea as to the fact that RB never consented to any sexual 

acts centers on the mens rea of recklessness. We find appellant’s actions, at the 

very least, display a reckless disregard for whether RB consented to any sexual acts. 

See Peebles, 78 M.J. at 664-67. 
MANNAN—ARMY 20170096 

7 

applied the wrong mens rea to the element of non-consent in the specifications 

alleging sexual assault by bodily harm. See Dep’t of the Army, Pam. 27-9, Legal 

Services: Military Judges’ Benchbook [Benchbook], para. 3-45-14 (10 Sep. 2014). 

See also, Peebles, 78 M.J. at 662-67. This case, however, was a bench trial and

therefore there were no instructions to a panel. 

“The Benchbook is not a source of law, but represents a snapshot of the 

prevailing understanding of the law, among the trial judiciary, as it relates to trial 

procedure.” United States v. Cornelison, 78 M.J. 739, 745 (Army Ct. Crim. App. 

2019) (citing United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013)). “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)). 

Unlike the Benchbook, on-point precedential opinions of the Supreme Court, 

the Court of Appeals for the Armed Forces (CAAF), and this court, are the law 

binding on courts-martial. Our opinion in Peebles, was a direct application of the 

principles previously set forth in Elonis v. United States, 135 S. Ct. 2001 (2015), 

and United States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016). See Peebles, 78 M.J. at 

664-67. The merits portion of appellant’s court-martial took place well after both 

Elonis and Gifford were decided. Thus, we presume the military judge knew and 

correctly applied the law set forth in those opinions and did not apply a mens rea of 

negligence to the specifications alleging sexual assault by bodily harm. We 

conclude the mere existence of an instruction in the Benchbook that could be applied 

in conflict with Elonis and Gifford, without further support in the record, does not 

overcome the presumption the military judge knew and applied the law correctly in 

this case. 

Moreover, even if appellant were to overcome the presumption that the 

military judge knew and applied the law, we conclude he is not entitled to relief 

under the plain error standard of review. To show a material prejudice to his 

substantial rights, appellant must show “there is a ‘reasonable probability’ that the 

[court-martial] would have found that appellant acted less than recklessly.” Id. at 

667. Appellant simply has not met this burden. Appellant’s actions toward RB 

were, as discussed above, quintessentially reckless as to whether RB consented to 

any sexual acts with appellant. 

CONCLUSION 

We are mindful that the trial court saw and heard the witnesses and we have 

not. See Washington, 57 M.J.at 399. Considering the totality of the evidence, we 

find appellant’s convictions legally and factually sufficient. See id. Further, we 

find that appellant has failed to show he is entitled to relief for any alleged error of 
MANNAN—ARMY 20170096 

8 

the military judge as to the mens rea applicable to Specifications 2 and 4 of The 

Charge. 

Upon consideration of the entire record, the findings of guilty and sentence 

are AFFIRMED. Specifications 2 and 4 of The Charge will be DISMISSED upon 

Specifications 1 and 3 of The Charge surviving “final judgment” of the proceedings. 

See UCMJ, art. 71(c)(1) (defining “final judgment”). 

Senior Judge MULLIGAN and Judge SCHASBERGER concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: