## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before WOLFE, SAULSSOLIA, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JORDAN T. RODRIGUEZ United States Army, Appellant

ARMY 20160787

Headquarters, Fort Riley
Charles L. Pritchard , Jr., Military Judge
Lieutenant Colonel J oseph B. Mackey, Staff Judge Advocate

For Appellant: Captain Steven J . Dray, JA; Frank J. Spinner, E squire (on brief).

For Appellee: Lie utenant Colonel Eric K . Stafford, JA; Major Ha nnah E. Kaufman, JA; Captain Meredith M. Picard, JA (on brief).

31 January 2019

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

Per Curiam:

Following his convictions for t wo specification s of sexual ass ault and one specification of adultery, appellant contends that he did not r eceive a speedy trial, challenges his sexual assault c onvictions on factu al and legal sufficienc y grounds, and contends that the military judge erred in instructing the p anel on the applicable

mens rea for sexual assault. 1 Only the instructional issue requires extended

1 An enlisted panel s itting as a general c ourt-martial convicte d appellant, contrary to his pleas, of two s pecifications of sexu al assault by bodily harm and one specification of adultery, in vio lation of Artic les 120 and 134 , Uniform Code of Military Justice [UCMJ] . The panel sentenc ed appellant to a di shonorable discharge, confinement for ten m onths, total forfe itures, and r eduction to the grade
of E-1. The convenin g authority approved the adjudged sentence . This case is
before us for revie w pursuant to Artic le 66, UCMJ.RODRIGUEZ—ARMY 20160787

2 discussion, but that i ssue ultimatel y entitles appellant to no relief. 2 As such, we affirm appellant’s convictions.

BACKGROUND

The Facts

Appellant’s convictions stemmed f rom events in th e early mornin g hours of 27 September 2015, in t he on-post hous ing area of F ort Riley, K ansas. The victim, MS, 3 was eighteen years old. Betw een May and Augus t of 2015, MS ha d graduated high school, married Army Private First Class (PFC) JA, and mov ed from Washington State to join PFC JA at Fort Riley.

Private (E-2) Vincent Macario l ived next door to MS and PFC JA in Fort Riley family housing. Prior t o 26-27 September 2015, MS and PF C JA had
socialized occasiona lly with PV2 Macario and his wife.

2 Appellant’s case is a companion case to United States v. Macario

, ARMY 20160760, 2018 CCA LEXIS 494 (Army Ct. Crim . App. 12 Oct. 2018) (mem. op.).
The two cases were tried within days of each other at Fort Rile y in November and December of 2016, and the governme nt’s case-in-chi ef was nearly identical in the

two cases.

Appellant makes essentially the same speedy-trial claim as the one we rejected in

Macario , 2018 CCA LEXIS 494, a t *9-11. We similar ly reject appellant’ s claim. The government’s withdrawal, dismi ssal, and subseq uent re-prefe rral of charges against appellant were for a proper purpose, and were not a sub terfuge to a void the Rule for Courts-Martial [R.C. M.] 707 speedy- trial clock. See R.C.M. 707(a) (requiring that accu seds be “brough t to trial” wi thin 120 days) . As such, the government’s withdrawal and dismi ssal reset the R .C.M. 707 spee dy-trial clock to

zero. See R.C.M. 707(b)(3)(A)(i); United States v. Hendrix , 77 M.J. 454, 456-57 (C.A.A.F. 2018). Becau se the government bro ught appellant to t rial within 120 days of re-preferral, there was no speedy-trial violation.

We also reject appel lant’s factual and legal sufficiency challe nges to his sexual
assault convictions. Fo r the reasons set fo rth in the “Backgro und” section of this opinion, a rational tr ier of fact could hav e found the elements of the contested crimes beyond a re asonable doubt, Jackson v. Virginia , 443 U.S. 307, 318-19 (1979), and we ourselves are co nvinced of appellant's guilt bey ond a reasonable
doubt. United States v. Turner , 25 M.J. 324, 325 (C.M.A. 1987).

3 At various times during appellan t’s trial, “MS” is referred to as “MA.” We use
“MS” to avoid confusion.RODRIGUEZ—ARMY 20160787

3 Appellant was PV2 Maca rio’s friend. MS met appellant for the f irst time on 25 September 2015, when appellant and PV2 Macario came to MS’s home to borrow “a mop or something,” and ended up staying for approximately on e hour.

The next evening, on 26 September 2015, MS a nd PFC JA argued ab out PFC JA “unblocking” his ex-girlfriend on Face book and “ liking” one of his exgirlfriend’s photographs. MS lef t the home to “c ool off.” App ellant -- who, along with others, had been visiting P V2 Macario next door -- approac hed MS on the street, asked about MS’s well-being as she looked distraught, a nd invited MS and PFC JA to go to a bar with the group. MS declined, but gave ap pellant her phone number and said appella nt could text her s o that she and PFC JA could come to PV2
Macario’s house to soc ialize later. MS the n returned home, too k two shots of alcohol, and reconciled with PFC JA. Later, the couple drank a shot of alcohol together (MS’s third).

Around 0200 or 03 00 on 27 September 2015, appellan t and PV2 Mac ario
knocked on MS’s and PFC JA’s door . PFC JA was as leep, but MS w as still awake, watching a movie. Appellant an d PV2 Macario inv ited MS and PFC JA to appellant’s house; MS initially d eclined because PFC JA was asl eep, but ultimately agreed. At PV2 Maca rio’s house, PV2 Macari o handed MS a beer, asked about MS’s earlier argument with PFC JA, a nd told MS that s he should “leav e” PFC JA. MS told PV2 Macario that the fight was “nothing,” t hat she “loved” PFC JA, and was “not going to lea ve him over something lik e that.” MS took thr ee additional shots of alcohol while playing “rock, pape r, scissors” as a drinking gam e, first with PV2 Macario, and then wit h both appellant a nd PV2 Macario.

A group from the gathering, inclu ding MS, PV2 Macario, appellan t, and Specialist (SPC) W, walked to a nearby park. At the park, whil e MS and SPC W sat on the swings, PV2 Mac ario and appellant were engaged in a conv ersation behind
them on a bench. 4 On the walk back to appellant’s house, appellant lagged behin d the group, and, when MS told appellant to “catch up,” appellant called her back to him. Appellant put hi s hands on MS’s waist , told MS she was “r eally attractive,” and “leaned in for a kiss.” MS rebuffed appellant, telling him , “You’re drunk. My husband is right over there . This isn’ t okay.”

As MS and appellant approached P V2 Macario’s house, PV2 Macario “rush[ed]” up to MS a nd appellant and said that PFC JA was “rea lly mad and upset”

4 MS testified that “[a ]t one point, [she] t urned around and loo ked at [appellant and PV2 Macario] and they w ere . . . stari ng at us and talking.” M S explained that she “had gotten an eerie f eeling . . . tha t . . . something wasn’t right.”RODRIGUEZ—ARMY 20160787

4 and that MS needed to “hide.” 5 MS was “confused” as to why PFC JA would be mad, but was taking “longer to pro cess things” due to her alcoh ol consumption.
When MS indicated that she wante d to “go find” PFC JA, PV2 Maca rio and appellant said they would talk t o him, and continu ed to “lead[] MS to a hiding spot” in a small storage shed located to the rear of MS’s and PFC JA’ s quarters.

After guiding MS into the shed and closing the door, PV2 Macari o and appellant entered within five to ten seconds aft erward, and ask ed MS “whether she could keep a secret.” MS responded “yes.” At that, appellant responded “Okay, good,” and began tou ching MS’s hips as PV 2 Macario started touc hing MS’s chest. MS told the two repeatedly, “N o,” “Stop,” and “I don’t want to do this. I love [PFC JA]. I love my husban d.” PV2 Macario and Appellant told MS t o be quiet, and “did the shhh noise.” Appellant pulled MS’s sweatpants down, b ent her over so that her head was facing PV2 Macario, and penetrated MS’s vulva with his penis. PV2 Macario simultaneously took his h and, put it “bet ween [MS’s] te eth, on th e outside of [her] cheeks, ” “pried” MS’s mouth ope n, put his other hand o n the back of MS’s head, and put his penis in MS’s mouth. P V2 Macario and appella nt “both began thrusting.” MS, “pani cking,” tried to “bl ock [the assault] out ” of her mind. The next thing she remember ed was PV2 Macario a nd appellant opening the shed door and stepping out.

Immediately after the assault, M S woke up her hu sband, called h er mom, and called the military police. DNA analysis later detected appell ant’s semen in MS’s mouth (to a certa inty of 1 in 4.3 quadrillion); M S’s DNA in app ellant’s underwear (1 in 67 quadrillion); M S’s DNA on appellant’s pe nis swab (1 in 73 quadrillion); MS’s DNA on PV2 Macario’s underwear (1 in 40 quadrilli on); and MS’s DNA on PV2 Macario’s penis swab (1 in 32 tr illion), and on his scrotum (1 in 82 billion).

Appellant presented an alternative narrative of a consensual e ncounter between the thre e. Appellant testified t hat he had grabbed MS’ s hand on the walk to the park, and that s he had held his hand ba ck, and that the two “kissed and made out
for about ten seconds.” At the park, appellant e xplained that MS had sat “right next to” him, and that he f elt that MS was attr acted to him. When t he group returned from the park, appella nt testified that SPC W went insi de, leav ing himself, PV2 Macario, and MS o utside on the po rch. MS then kissed PV2 Macar io “right in front of” appellant, and th en “[t]urned and kis sed” appellant. After MS turned back and forth between the two multiple times, appellant stated that,

Everyone started usi ng their hands, and it’s starting to heat up. I had m y hands on her le g, hers wer e on mine, and [PV2] Macario was touchin g [MS]. I was touching her

5 This was untrue. PFC JA was still asleep at home.RODRIGUEZ—ARMY 20160787

5 private parts over h er clothes, and she was touching mine. And the same thing with [ PV2] Macario as well.

Appellant indicated that he was “surprised,” but it was “defin itely a heat of the moment type of thing.” PV2 Macario indicated that he wishe d the three had “somewhere to go,” to which MS re sponded that her shed was empt y. Before the three went into the shed, MS wen t inside her hous e to ensure th at her husband was still asleep.

Inside the shed, according to a ppellant, MS was kissing appell ant and PV2
Macario “one and then t he other.” Accordi ng to appellant, both he and PV2 Macario separately “asked” MS if they could have oral sex. Ultimately, appellant described
both himself and PV2 Macario havi ng both oral and vaginal sex w ith MS, and
indicated that MS did not resist, ne ver said no, nev er said to stop, and was “moaning.” Afterwards, accordin g to appellant, MS sat with him on the curb as he smoked a cigarette. MS later went inside her own house, and, i n a surprise to appellant, the Military Police a rrived approximate ly fifteen to twenty minutes l ater.

The Parties’ Discussi on of the Mistake of Fact Instruction

During an Article 39(a) session t o discuss panel findings instr uctions, the military judge had th e following colloquy w ith appellant’s tria l defense counsel regarding the mistak e of fact as to cons ent instruction:

MJ: I intend to give the fol lowing instruct ions . . .
mistake of fact as to consent related to Cha rge I and its specifications; and th e concomitant voluntary intoxication
instruction related to the mistake of fact as to consent

. . . . Do Counsel concur or request additional instructions?

. . . .

DC: And you say mistake of fact as to consent as to both specifications of Charge I?

MJ: Yes.

DC: Nothing further, Your Honor.

Prior to the military judge sua sponte raising the issue, t he parties had not discussed the applicability (or n on-applicability) of a mistake of fact as to consent
instruction. After t he above colloquy, but before instructing the panel, t he military judge provided a written copy of his proposed instructions to t he parties.RODRIGUEZ—ARMY 20160787

6 Appellant’s trial defense counse l raised no objec tion either t o the military judge giving the mistake-of-fact i nstruction or to the wording of that instru ction.

The Instruction

As relevant here, the military judge subsequently instructed t he panel as
follows:

The evidence has raised the issue of mistake of fact as to
consent in relation to the offenses of sexual assault. There has been testimony tending to sho w that, at the time of the alleged offenses, the accused mistakenly believed that [MS] consented to the sexual conduct alleged in the specifications of Charge I.

Mistake of fact as to cons ent is a defense to those
offenses. “Mistake of fact as to consent” means the accused held, as a result of ignorance or mistake, an
incorrect belief that the oth er person cons ented to the sexual conduct as alleged. The ignorance or mistake must
have existed in the mind of t he accused and must have
been reasonable under all th e circumstances. To be reasonable, the ignorance or mistake m ust have been based on information, or lack of it, that wo uld indicate to a reasonable pers on that the other p erson consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. “Negligence” is the absence of due care. “Due care” is what a reasonably careful person wo uld do under the

same or similar circumstances. (emphasis added).

At the conclusion of the milit ary judge’s findi ngs instruction s to the panel, the military judge asked whether counsel “object[ ed] to the ins tructions given or request additional ins tructions.” Appellant ’s trial defense co unsel answered, “No,

Your Honor.”

LAW AND ANALYSIS

The panel convicted appellant of two specifications of sexual assault by bodily harm, in violati on of Article 120(b)( 1)(B), UCMJ. The s tatutory elements of that Article include: (1) that the accused committed a sexual act upon another person by; (2) causing bodily harm t o that other person. Manual for Courts-Martial,

United States (2012) [ MCM ], pt. IV, ¶ 45.a.(b) (1)(B). Bodily ha rm is defined as “any offensive touching of another , however slight, including a ny nonconsensualRODRIGUEZ—ARMY 20160787

7 sexual act or nonconsensual sexual contact.” Id . at ¶ 45.a.(g)(3). In appellant’s case, the two alleged sexual acts – the penetration of MS’s vul va and mouth with appellant’s penis – doubled as the allege d bodily harm. Thus, for appellant to be found guilty of sexual assault, the govern ment had to prove both that appellant engaged in the sexual acts with MS, and that MS did not con sent to the acts.

For the first time on appeal, appellant asserts the military judge erred by instructing the panel that a negligence mens rea was sufficient to make appellant’s
otherwise lawful conduc t criminal under Arti cle 120(b)(1)(B), U CMJ. Specifically, appellant asserts a finding of gu ilty as to this a rticle requir es a mens rea of either “intentional, knowing or reckles s” as to the ele ment of “bodily harm” when the
sexual act is nonconsensual and constitutes the charged bodily harm. We recently addressed this very issue, that is, the same complaint about the same panel instruction regarding the same sub-section of Article 120 in the same procedural posture in United States v. Peebles , __M.J. __, 2019 CCA LEXIS 8 (Army Ct. Crim. App. 10 Jan. 2019).

Peebles guides our resolution of appellant’s case. First, re garding th e appropriate standard of review, while appellant contends that w e should review the military judge’s instr uctions de novo, he is entitled, at most, to plain error review. Appellant’s trial defense coun sel not only failed to object to the military judge’s mistake-of-fact instruction, he affirmatively indicated that he wanted the military judge to apply t he instruction “to both s pecifications of Charg e I.” At the close of the military judge’s findings ins tructions, appellant’s trial d efense counsel affirmatively indicated that he h ad no objection to the instruc tions.

While we noted in Peebles that similar conduct from Peebles’s trial defense
counsel could amount to waiver of an allegation of instructiona l error, Peebles

, __ M.J.__, 2019 CCA LEXIS, at *8-10, w e ultimately “save[d] for an other day” the
determination of wheth er a statement of “n o objection equate[d] to waiver of
instructional error.” Id . at *10 (citing United States v. Davis , 76 M.J. 224 (C.A.A.F. 2017) (applyin g plain error analysis t o forfeited in structional error)). We similarly apply plain error review here, as, like Peebles , “this case doe s not turn on determining the c orrect standard of review.” Peebles , __ M.J.__, 20 19 CCA LEXIS, at *10; see also, e.g., United States v. Tunstall , 72 M.J. 191, 19 3 (C.A.A.F. 2013) (applying plain error review to forfei ted claim of instructiona l error); United States v. Payne , 73 M.J. 19 , 22 (C.A.A.F. 2014); Davis , 76 M.J. at 229.

“Under a plain erro r analysis, the accus ed has the burden of d emonstrating that: (1) there was e rror; (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 (citation omitted). “[T]he failur e to establish an y one of the prongs is fata l to a plain
error claim.” United States v. McClour , 76 M.J. 23, 25 (C.A. A.F. 2017) (citation omitted).RODRIGUEZ—ARMY 20160787

8 Second, Peebles compels a finding that the same panel instruction at issue in
that case amounted to “c lear and obvious error” 6 in appellant’s case for the same reason; namely:

[W]hen a statute is silent on the scienter needed to commit
the offense and a scienter requirement is needed to separate wrongful from innocent conduct, the mens rea required to commit the offense must be greater than simple negligence.

Peebles , __ M.J.__, 2019 CCA LEXIS, at *12 (citing Elonis v. United States , 135 S. Ct. 2001, 2010 (2015)).

Article 120(b)(1)(B), UCMJ, is such a “silent on the scienter” statute.
Peebles noted that other sub-sections of Article 120, UCMJ, such as Ar ticle 120(b)(2), were b y contrast not “ silent on the sci enter needed to commit the offense,” but rather expressl y set forth a negligence mens rea requirement. Id . at *15 (noting that Article 120(b)(2) “provides for a conviction o f sexual assault where
the accused ‘commits a sexual ac t upon another pe rson when the person knows or reasonably should know that the other pers on is asleep, unconsci ous, or otherwise unaware’”) (emphasis in original). We thus could “infer that C ongress did not
intend for a convicti on of sexual assaul t by bodily harm under Article 120(b)(1)(B), UCMJ, to be predicate d on negligence.” Id . at *15. This court u ltimately held in

Peebles that the mi litary judge had c ommitted “obvious error by failin g to instruct the members that appe llant could only be found guilty if he act ed, at a minimum, with a reckless disregard as to [the victim’s] lack of consent. ” Id . at *19-2 0. As the panel instruction he re was identical to the instruction in Peebles

, 7 we likewise find

6 Our superior court ha s explained that the applicable test is whether an error is
clear and obviou s “at the time of appeal.” United States v. Williams , 77 M.J. 459, 462 (C.A.A.F. 2018). As Peebles itself found that the milit ary judge there had committed clear error, the error is certainly clear and obvious at the time of appellant’s appeal. See, e.g., United States v. Mullins , 69 M.J. 113, 11 7 (C.A.A.F. 2010) (“[i]t follows tha t an error that was plain and obvious i n [an earlier case] would be plain and obvi ous in a subsequent case when there were no intervening changes in the law”).

7 It is unsurpris ing that the ins tructions in Peebles and the insta nt case were identical, as they were in concert with the then-applicable Mil itary Judge’s
Benchbook. See Dep’t of Army, Pam. 27-9, Legal Services: Milit ary Judges’

(continued . . .)RODRIGUEZ—ARMY 20160787

9 that appellant h as shown plain a nd obvious error, thus satisfyi ng the first two prongs of plain error review.

Third, like Peebles , appellant’s claim ultimate ly fails, beca use appellant
cannot show that the error mate rially prejudice d his substantia l rights. Stated differently, appellant cannot show a “reasonable probability” t hat, “but for” the
erroneous instructio n, the panel would hav e found that appellan t acted less than recklessly, and th us acquitted him. Molina-Martinez v. United States , 136 S. Ct. 1338, 1343 (2016 ) (to demonstrate materi al prejudice to substan tial rights, defendants must “show a reasonable probability that, but for th e error, the outcome of the proceeding wou ld have been d ifferent”) (citation omitted ); United States v. Lopez , 76 M.J. 151, 154 (C .A.A.F. 2017).

Appellant’s court-martial presen ted two diametri cally opposing narratives regarding MS’s consent or lack of cons ent. MS explained that s he was quite clear and adamant about her non-consent to the sexual acts with appel lant and PV2 Macario, and told the two repeatedly, “No ,” “Stop,” “I don’t wa nt to do this,” and “I love my husband.” Appe llant, on the other ha nd, contended that MS was a willing participant in the sex ual acts with both himself a nd PV2 Macari o, and, indeed, that it was MS who suggested that the three go into the shed. In other words, either appellant knew that MS was not consenting to the sexual acts, or MS actually

consented to the acts. Cf. Elonis , 135 S. Ct. at 2012 (“no dispute” that knowledgelevel mens rea – there, knowledge th at a specific communi cation would be view ed as a threat – was sufficient for criminal liability). The panel, of course, was free to believe MS and to disbelieve appellant. See, e.g., United States v. Nicola , __M.J. __, 2019 CAAF LEXIS 24, a t *11-13 (C.A.A.F . 9 Jan. 201 9). Thus , this case did not present the middl e ground where appellant could have been negli gent in his mistaken belief that MS consented when she actually did not consent. As a result, the military judge’s erroneous mens rea instruction did not material ly prejudice appellant’s substantial rights.

CONCLUSION

Upon consideration of the entire record, the find ings of guilty and sentence

are AFFIRMED.

(. . . continued) Benchbook [Benchbook], para. 3 -45-14 n.13 (10 Sep. 2014). But see, e .g., United States v. Riley , 72 M.J. 115 , 122 (C.A.A.F. 2013) (“[t] he Benchbook is not bin ding as it is not a primar y source of law”).RODRIGUEZ—ARMY 20160787

10 FOR THE COURT:

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