## UNITED STATES ARMY COUR T 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 A irborne Division Deidra J. Fleming and Daniel G. Brookhart, Military Judges Colonel Dean L. Whitford, Staff Judge Advocate

For Appellant: Captain Benjami n A. Accinelli, JA; William E. C assara, Esquire (on
brief and brief on specified issue).

For Appellee: Colonel Steven P. H aight, 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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent

.

FEBBO, Judge:

Appellant argues his co nvictions of sexual assault under two d ifferent theories of liability are legally and factu ally insuffici ent. We find o therwise. 1 Further, we
considered whether the milita ry judge appli ed the wrong mens rea to two of the specifications of which appellant was convicted . As appellant forfeited any issue

1 We have also consider ed appellant’s claim of dilatory post-tri al processing under

United States v. Moreno , 63 M.J. 129 (C.A .A.F. 2006). We fi nd appellant has suffered no actual prej udice due to delay i n the post-trial pro cessing of his case. We
further find no other relief fo r the delay is w arranted under A rticle 66, UCMJ.MANNAN—ARMY 20170096

2 relating to mens rea at trial, we conclude appellant has not carried the burden of demonstrating plain e rror in his case.

A military judge sitti ng as a general court-martial convicted a ppellant, contrary to his pleas, of four specifications of sexual assault , in violatio n of Article 120, Uniform Code of Military Justi ce, 10 U.S.C. §§ 920 (2012) [UCMJ]. Contingent upon comple tion of appellate rev iew, the military ju dge conditionally dismissed Specifications 2 and 4 of The Charge, which alleged b odily harm, because they were charged in the altern ative to Specifications 1 and 3 of The Charge, which alleged incapacity to consent. 2 The military judge sen tenced appellant to a dishonorable discharge, thirteen months of confinement, reducti on to the grade of E1, and forfeiture of a ll pay and allowances . The convening aut hority approved the adjudged sentence. This case is before us for r eview pursuant to Article 66, UCMJ.

We find appellant’s convictions are lega lly and factually suffi cient. We further conclude appellant has no t shown the military judge com mitted plain error with respect to the mens rea applicable to the specifications alleging appellant
committed sexual ass ault by bodily harm. 3

BACKGROUND

Appellant was assigned to Fort B ragg, North Carolina. In Apri l 2015, Gunner’s Mate Third Class (GM3) M ylee Novak hosted a small part y at her apartment in Fort Lauderdale, Flo rida. Her cousin, Specialist (SPC) Tyler Novak
invited three other Fo rt Bragg soldiers on a road trip to the p arty: SPC Hernandez, SPC Pollard, and appellant. Aft er a day on the be ach, the grou p picked up dinner, rum, and beer before r eturning to GM3 Novak ’s apartment around 2000. Gunner’s
Mate Third Class Novak’s mother w as also visitin g on the night of the party.

Around 2100, Seaman’s Apprentice RB, a coworker of GM3 Novak, j oined the party. RB drank some beer and ate some food. After eating din ner, RB drank two or
three shots of a n unknown clear alcohol with GM3 Novak, after w hich she began

2 At trial, the governm ent dismissed the original specification 1 of the Charge and
renumbered the remainin g four specifications.

3 We specified this issue fo r briefing in light of United States v. Peebles , 78 M.J. 658 (Army Ct. Crim. App. 2019). I n our order spe cifying the is sue, we erred by referring to the relevant specifi cations as Spe cifications 3 an d 5. Due to dismissal of the original Specification 1, the relevant spe cifications we re renumbered Specifications 2 and 4. Fortunate ly, both partie s correctly as certained our intent and
briefed the issue on the relevant specifications.MANNAN—ARMY 20170096

3 drinking “Kraken” brand rum direct ly from the bott le. RB testi fied she drank “a good amount” of the bottle. Aft er dinner, the group moved down stairs to a billiard area in the apartmen t complex. Gunner’s Ma te Third Class Novak ’s mother stayed in the apartment. At that poin t in the eveni ng, GM3 Novak desc ribed RB as “pretty intoxicated,” and capable of wal king, but unstab le. RB continu ed to drink alcohol. While playing billiards, the group bet each other that the lose r would get thrown in the pool outside the billiards area. Speci alist Pollard and RB went into t he pool. RB exited the pool and pulled appellant into the pool.

While SPC Pollard and appellant w ere in the pool together, they cradled RB in their arms. Without any discussi on or consent, appellant inser ted his finger into RB’s vagina. At the time, appe llant and RB had hardly spoken a nd did not even know each other’s names. Special ist Pollard heard RB moaning a nd telling appellant to “stop.” SPC Pollard told appe llant to stop because RB was “ really drunk.” RB, however, did not remember t elling appellant to stop.

Afterward, appellant and RB exit ed the pool. RB got onto appel lant’s back and appellant carried her up the exterior cement staircase to G M3 Novak’s apartment. Appellant stopped o n a landing. RB re membered lyin g on the concrete landing with appella nt on top of her, putt ing his pen is inside her vagina. Her shorts were off her body and lying next t o her. RB told appellant to put her shorts back on, but he continued putti ng his penis inside he r vagina. RB said “ouch,” “screamed a
little” that it hur t, and cried.

Appellant stopped pene trating RB’s vagina. RB tried to stand u p, but she fell into a wall. Appellant put RB o n his back again a nd carried he r to GM3 Novak’s apartment. The next thing RB re membered was lying in GM3 Novak ’s apartment and throwing up in the bathroom. RB was crying and told GM3 No vak that appellant “put himself inside me in the stairwell.”

GM3 Novak drove RB home to her a partment. RB called a friend a nd reported that she was sexually assaulted. The next day, RB und erwent a sexual
assault medical forensic examination.

Appellant drove back t o Fort Bragg with hi s three friends. App ellant told one
of his friends that he placed his penis i n RB’s vagina, but sto pped when she showed signs she was in pain.

LAW AND DISCUSSION

Article 66, UCMJ, est ablishes our statutor y duty to review a re cord of trial for legal and fac tual sufficiency de novo. United States v. Walters , 58 M.J. 391, 395 (C.A.A.F. 2003). We may affirm onl y those findings of guilty t hat we find correct in law and fact and determine, based on the entire record, shou ld be affirmed. Id

.MANNAN—ARMY 20170096

4 In evaluating factual sufficiency , we take “a fresh, impartial look at the evidence,” applying “neither a pr esumption of innocence nor a p resumption of guilt.” United States v. Washington , 57 M.J. 394 , 399 (C.A.A.F. 200 2). To affirm a conviction, “after weighing the ev idence in the record of trial and making allowances for not having persona lly observed the witnesses, [w e must be] convinced of [appellant’s] guil t beyond a reaso nable doubt.” United States v.

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

Based on appellant’s admission to other so ldiers, there is no r easonable dispute that appellant committed the alleged sex ual acts. The only issues are whether RB was so impaired that s he could not cons ent to the se xual acts, whether
RB in fact did not cons ent to the sexual ac ts, and wh ether appe llant had a sufficient

mens rea as to RB’s inability to consent and the f act RB did not consen t. We answer these issues in the affirmative. First, we will discuss RB’s i ncapacity to consent and
the fact she did not consent. Secon d, we will discuss appellan t’s mens rea as to RB’s ability to consen t and the fa ct she did no t consent.

A. Incapacity to Cons ent and Lack of Consent

It is beyond reasonable dispute that RB was impaired by alcohol when appellant performed sexual acts on her. M ere impairment, howev er, does not end the analysis. Article 120(b)(3) “do es not proscribe sexual acts wi th impaired people, but rather with people incapable of consenting to the conduct a t issue because of their impairment—and even then, o nly when the in ability to cons ent 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 tha t individual lacks “the cognitive ability to ap preciate the nature of
the conduct in question, [or] the mental and physical ability t o make and to
communicate a decisio n regarding that conduc t to the other pers on United States v.

Pease , 74 M.J. 763, 770 (N.M. Ct. Cri m. App. 2015), a ff’d 75 M.J. 18 0 (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 factuall y insufficient to su pport his convictions for sexual assault. Appellant points to RB’s actio ns prior to the assaults to show she was not impaired to the point she was incapable of consenting. This includes, among othe r actions, RB playing billiard s earlier in the evening, and finding a toilet to vomit into l ater in the even ing. Other evi dence, however, persuades us that RB was indeed i ncapable of consent at the tim es appellant committed sexual acts upon her.

There seems to be litt le dispute that RB wa s highly intoxicated most of the evening in question. RB’s own testimony a nd the testimony of o ther witnesses
establish RB was intoxicated. We have no doubt th at she nevert heless had the cognitive ability to ap preciate her surroundings and actions mu ch of the time. ThisMANNAN—ARMY 20170096

5 does not answer the core question, however, of whether RB had t he cognitive ability to appreciate the nature of appel lant’s sexual acts and the abi lity to communicate
consent—or lack thereo f—at the critical mom ents when appellant performed sexual acts upon her. Fo rmer capacity does not guarantee capacity in the future, and later capacity is not necessarily indi cative 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 thresho ld, which may be cross ed in both directions

.

Although RB did not rem ember telling appellant to stop insertin g his finger in her vagina, SPC Polla rd heard her telling appellant to stop. A t a minimum, this
reinforces the fact RB did not c onsent, and also suggests that RB was not fully
aware of what was ha ppening at the time be cause she later repor ted being unaware of her own words. Further, SPC Polla rd told appellant not to pene trate RB’s vagina with appellant’s finger because s he was “really d runk.” Specia list Pollard clearly recognized RB was incapable of con senting to or re sisting appel lant’s actions.

RB’s recollection of a ppellant’s sexual acts on her in the stai rwell are also consistent with her inability to consent. RB re ported being aw are she was being carried by appellant, but she was not aware of the location to which she was being
carried. She next remembered b eing laid on the cement landing, but did not
remember how her shorts were rem oved. She testified she was “c onfused,” and came to realize appellant was sexually penetrating her.

Although RB may have had moments i n which she was capable of pr otest— and in which she indeed protested appellant’s actions—we conclu de she was incapable of appreciating the na ture of appellant ’s acts upon h er or of con senting to those actions, at least when appellant first penetrated her vag ina with his finger, and when he first penetrat ed her vagina with h is penis. Even if RB became aware of appellant’s actions or regained the capacity to protest moments later, we find she was incapable of conse nt as appellant penetrated her. We furth er find appellant knew, or reasonably s hould have known, RB was incapable of cons enting 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 c redible evidence th at RB consented.

The military judge wa s presented two theo ries of liability—firs t that RB was incapable of consent, and secon d that RB did not consent, and t herefore the sexual
acts constituted bod ily harm. The military judge convicted app ellant under both theories. After reviewing the evidence ourselves, we agree wit h the military judge
that the elements of all fou r specifications were met.MANNAN—ARMY 20170096

6 B. Appellant’s Mens Rea as to Consent

Consent is more than a n absence of protes t; it is an affirmativ e concept. Consent may be explic it or implicit, and it may be verbal or no nverbal. Appellant’s basic approach with RB, however, turned the notion of affirmati ve consent on its head. Appellant’s course of c onduct was to bypa ss consent and perform sexual acts
on RB until she manife sted her lack of con sent. Appellant’s ac tions were, at a minimum, reckless as to the fac t RB never consented to sexual a cts.

Appellant did not know RB’s name. He did no t ask for her conse nt to any sexual acts. She did not indicate she want ed any sex ual acts p erformed on her. Specialist Pollard recognized that RB was “really drunk” and it was wrong to perform any sexual ac ts on her. Neve rtheless, appellant insert ed his finger in RB’s vagina while in a pu blic place, and while R B was vulnerable, bo th 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 regar d were, at a minimum, reckless

. 4

Appellant’s sexual acts upon RB i n the stairwell d isplay a simi lar reckless disregard for the fact she neve r consented. In fact, SPC Polla rd told appellant RB was “really drunk” and appellan t should not perf orm any sexual acts on her shortly before appellant penet rated RB’s vagina with his penis in the s tairwell. Moreover,
SPC Pollard heard RB sa y “stop” when appell ant penetrated her v agina with his finger in the pool. N evertheless, absent any credible evidence RB consented in any way, appellant removed RB’s clot hes in a public stairwell and p enetrated her vagina with his penis. Appellant w as, at a minimum, reckless.

We also conclude that appellant has not demonstr ated that the m ilitary judge applied the wrong mens rea in appellant’s case. Further , even assumin g, arguendo, that the military judg e applied the wrong mens rea in light of our decision in

Peebles , we conclude appellant has not de monstrated that any such erro r materially prejudiced his substantial rights. See generally Peebles , 78 M.J. at 667.

The model panel instru ction on mistake of f act as to consent in the Military Judges’ Benchbook unde rgirds appellant’s be st argument that the military judge

4 We also find a reason able person would hav e realized that RB w as too intoxicated to consent to the sexual acts. The reasonable person standard is, however, synonymous with neglig ence. For the reas ons set forth in Peebles , however, our analysis of appellant’s mens rea as to the fact that RB neve r consented to any sexual

acts cente rs on the mens rea of recklessness. We find a ppellant’s actions, at the very least, disp lay a reckless disregard for whether RB consent ed 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 assa ult by bodily harm. See Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benc hbook [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 repres ents a snapsho t of the prevailing understan ding of the law, among the trial judiciary, as it relates to trial procedure.” United States v. Cornelison , 78 M.J. 739, 745 (A rmy Ct. Crim. App. 2019) (citing United States v. Riley , 72 M.J. 115, 1 22 (C.A.A.F. 2013)). “Military judges are presumed to know the l aw and to follow it absent cle ar evidence to the contrary.” United States v. Erickson , 65 M.J. 221, 22 5 (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 prece dential opinions of the Sup reme Court, the Court of App eals for the Armed Force s (CAAF), and this cour t, are the law binding on courts-mart ial. Our opinion in Peebles , was a direct application of the principles previou sly 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 p ortion of appellant’s court-martial took p lace well after both

Elonis and Gifford were decided. Thus, we presum e the military j udge knew and correctly applied the law set fo rth in those opi nions and did n ot apply a mens rea of negligence to the specifications alleging sexual assault by bod ily harm. We
conclude the mere existence of a n instruction in the Benchbook that could be applied
in conflict with Elonis and Gifford , without further support in the reco rd, does not overcome the presumpt ion the military ju dge knew and applied th e law correctly in
this case.

Moreover, even if appellant were to overcome the p resumption th at the military judge knew a nd applied the law, we conclude he is not entitled to relief under the plain error standard o f review. To show a material p rejudice to his substantial rights, appellant mu st show “there i s a ‘reasonable probability’ that the [court-martial] woul d have found tha t appellant ac ted less than recklessly.” Id. at 667. Appellant simply has not met this burden. Appellant’s ac tions toward RB were, as discussed ab ove, quintessentially reckless as to wheth er RB consented to any sexual acts with appellant.

CONCLUSION

We are mindful that the trial co urt saw an d 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 leg ally and factually sufficient. See id. Further, we find that appellant has failed t o show he is ent itled to relief for any allege d error ofMANNAN—ARMY 20170096

8 the military judg e as to the mens rea applicable to Specifications 2 and 4 of The Charge.

Upon consideration of the entire record, the find ings of guilty and sentence are AFFIRMED. Specifications 2 and 4 of The Charge will be DIS MISSED upon Specifications 1 and 3 of The Charge surviv ing “final judgment” of the proceedings.

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

Senior Judge MULLI GAN and Judge SCHASBERGER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: