UNITED STATES ARMY COURT 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 Joseph B. Mackey, Staff Judge Advocate 

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

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Hannah E. Kaufman, 

JA; Captain Meredith M. Picard, JA (on brief). 

31 January 2019 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

Per Curiam: 

 Following his convictions for two specifications of sexual assault and one 

specification of adultery, appellant contends that he did not receive a speedy trial, 

challenges his sexual assault convictions on factual and legal sufficiency grounds, 

and contends that the military judge erred in instructing the panel on the applicable 

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

 

1

 An enlisted panel sitting as a general court-martial convicted appellant, contrary 

to his pleas, of two specifications of sexual assault by bodily harm and one 

specification of adultery, in violation of Articles 120 and 134, Uniform Code of 

Military Justice [UCMJ]. The panel sentenced appellant to a dishonorable 

discharge, confinement for ten months, total forfeitures, and reduction to the grade 

of E-1. The convening authority approved the adjudged sentence. This case is 

before us for review pursuant to Article 66, UCMJ. 
RODRIGUEZ—ARMY 20160787 

2 

discussion, but that issue ultimately entitles appellant to no relief.2 As such, we 

affirm appellant’s convictions. 

BACKGROUND 

The Facts 

Appellant’s convictions stemmed from events in the early morning hours of 

27 September 2015, in the on-post housing area of Fort Riley, Kansas. The victim, 

MS,3 was eighteen years old. Between May and August of 2015, MS had graduated 

high school, married Army Private First Class (PFC) JA, and moved from 

Washington State to join PFC JA at Fort Riley. 

Private (E-2) Vincent Macario lived next door to MS and PFC JA in Fort 

Riley family housing. Prior to 26-27 September 2015, MS and PFC JA had 

socialized occasionally 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 Riley in November and 

December of 2016, and the government’s case-in-chief 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, at *9-11. We similarly reject appellant’s claim. 

The government’s withdrawal, dismissal, and subsequent re-preferral of charges 

against appellant were for a proper purpose, and were not a subterfuge to avoid the 

Rule for Courts-Martial [R.C.M.] 707 speedy-trial clock. See R.C.M. 707(a) 

(requiring that accuseds be “brought to trial” within 120 days). As such, the 

government’s withdrawal and dismissal reset the R.C.M. 707 speedy-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). Because the government brought appellant to trial within 120 days 

of re-preferral, there was no speedy-trial violation. 

We also reject appellant’s factual and legal sufficiency challenges to his sexual 

assault convictions. For the reasons set forth in the “Background” section of this 

opinion, a rational trier of fact could have found the elements of the contested 

crimes beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 318-19 

(1979), and we ourselves are convinced of appellant's guilt beyond a reasonable 

doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

3

 At various times during appellant’s trial, “MS” is referred to as “MA.” We use 

“MS” to avoid confusion. 
RODRIGUEZ—ARMY 20160787 

3 

Appellant was PV2 Macario’s friend. MS met appellant for the first 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 one hour. 

The next evening, on 26 September 2015, MS and PFC JA argued about PFC 

JA “unblocking” his ex-girlfriend on Facebook and “liking” one of his exgirlfriend’s photographs. MS left the home to “cool off.” Appellant -- who, along 

with others, had been visiting PV2 Macario next door -- approached MS on the 

street, asked about MS’s well-being as she looked distraught, and invited MS and 

PFC JA to go to a bar with the group. MS declined, but gave appellant her phone 

number and said appellant could text her so that she and PFC JA could come to PV2 

Macario’s house to socialize later. MS then returned home, took two shots of 

alcohol, and reconciled with PFC JA. Later, the couple drank a shot of alcohol 

together (MS’s third). 

Around 0200 or 0300 on 27 September 2015, appellant and PV2 Macario 

knocked on MS’s and PFC JA’s door. PFC JA was asleep, but MS was still awake, 

watching a movie. Appellant and PV2 Macario invited MS and PFC JA to 

appellant’s house; MS initially declined because PFC JA was asleep, but ultimately 

agreed. At PV2 Macario’s house, PV2 Macario handed MS a beer, asked about MS’s 

earlier argument with PFC JA, and told MS that she should “leave” PFC JA. MS 

told PV2 Macario that the fight was “nothing,” that she “loved” PFC JA, and was 

“not going to leave him over something like that.” MS took three additional shots of 

alcohol while playing “rock, paper, scissors” as a drinking game, first with PV2 

Macario, and then with both appellant and PV2 Macario. 

A group from the gathering, including MS, PV2 Macario, appellant, and 

Specialist (SPC) W, walked to a nearby park. At the park, while MS and SPC W sat 

on the swings, PV2 Macario and appellant were engaged in a conversation behind 

them on a bench.4

 On the walk back to appellant’s house, appellant lagged behind 

the group, and, when MS told appellant to “catch up,” appellant called her back to 

him. Appellant put his hands on MS’s waist, told MS she was “really 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 PV2 Macario’s house, PV2 Macario

“rush[ed]” up to MS and appellant and said that PFC JA was “really mad and upset” 

 

4

 MS testified that “[a]t one point, [she] turned around and looked at [appellant and 

PV2 Macario] and they were . . . staring at us and talking.” MS explained that she 

“had gotten an eerie feeling . . . that . . . 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 process things” due to her alcohol consumption. 

When MS indicated that she wanted to “go find” PFC JA, PV2 Macario and 

appellant said they would talk to him, and continued 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 Macario and 

appellant entered within five to ten seconds afterward, and asked MS “whether she 

could keep a secret.” MS responded “yes.” At that, appellant responded “Okay, 

good,” and began touching MS’s hips as PV2 Macario started touching MS’s chest. 

MS told the two repeatedly, “No,” “Stop,” and “I don’t want to do this. I love [PFC 

JA]. I love my husband.” PV2 Macario and Appellant told MS to be quiet, and 

“did the shhh noise.” Appellant pulled MS’s sweatpants down, bent her over so that 

her head was facing PV2 Macario, and penetrated MS’s vulva with his penis. PV2 

Macario simultaneously took his hand, put it “between [MS’s] teeth, on the outside 

of [her] cheeks,” “pried” MS’s mouth open, put his other hand on the back of MS’s 

head, and put his penis in MS’s mouth. PV2 Macario and appellant “both began 

thrusting.” MS, “panicking,” tried to “block [the assault] out” of her mind. The 

next thing she remembered was PV2 Macario and appellant opening the shed door 

and stepping out. 

Immediately after the assault, MS woke up her husband, called her mom, and 

called the military police. DNA analysis later detected appellant’s semen in MS’s 

mouth (to a certainty of 1 in 4.3 quadrillion); MS’s DNA in appellant’s underwear (1 

in 67 quadrillion); MS’s DNA on appellant’s penis swab (1 in 73 quadrillion); MS’s 

DNA on PV2 Macario’s underwear (1 in 40 quadrillion); and MS’s DNA on PV2 

Macario’s penis swab (1 in 32 trillion), and on his scrotum (1 in 82 billion). 

 Appellant presented an alternative narrative of a consensual encounter 

between the three. Appellant testified that he had grabbed MS’s hand on the walk to 

the park, and that she had held his hand back, and that the two “kissed and made out 

for about ten seconds.” At the park, appellant explained that MS had sat “right next 

to” him, and that he felt that MS was attracted to him. When the group returned 

from the park, appellant testified that SPC W went inside, leaving himself, PV2 

Macario, and MS outside on the porch. MS then kissed PV2 Macario “right in front 

of” appellant, and then “[t]urned and kissed” appellant. After MS turned back and 

forth between the two multiple times, appellant stated that, 

Everyone started using their hands, and it’s starting to 

heat up. I had my hands on her leg, hers were on mine, 

and [PV2] Macario was touching [MS]. I was touching her 

 

5

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

5 

private parts over her clothes, and she was touching mine. 

And the same thing with [PV2] Macario as well. 

 Appellant indicated that he was “surprised,” but it was “definitely a heat of 

the moment type of thing.” PV2 Macario indicated that he wished the three had 

“somewhere to go,” to which MS responded that her shed was empty. Before the 

three went into the shed, MS went inside her house to ensure that her husband was 

still asleep. 

 Inside the shed, according to appellant, MS was kissing appellant and PV2 

Macario “one and then the other.” According to appellant, both he and PV2 Macario 

separately “asked” MS if they could have oral sex. Ultimately, appellant described 

both himself and PV2 Macario having both oral and vaginal sex with MS, and 

indicated that MS did not resist, never said no, never said to stop, and was 

“moaning.” Afterwards, according to appellant, MS sat with him on the curb as he 

smoked a cigarette. MS later went inside her own house, and, in a surprise to 

appellant, the Military Police arrived approximately fifteen to twenty minutes later. 

The Parties’ Discussion of the Mistake of Fact Instruction

During an Article 39(a) session to discuss panel findings instructions, the 

military judge had the following colloquy with appellant’s trial defense counsel 

regarding the mistake of fact as to consent instruction: 

MJ: I intend to give the following instructions . . . 

mistake of fact as to consent related to Charge I and its 

specifications; and the 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, the parties had not 

discussed the applicability (or non-applicability) of a mistake of fact as to consent 

instruction. After the above colloquy, but before instructing the panel, the military 

judge provided a written copy of his proposed instructions to the parties. 
RODRIGUEZ—ARMY 20160787 

6 

 Appellant’s trial defense counsel raised no objection either to the military 

judge giving the mistake-of-fact instruction or to the wording of that instruction. 

The Instruction

 As relevant here, the military judge subsequently instructed the 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 show 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 consent 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 other person consented to the 

sexual conduct as alleged. The ignorance or mistake must 

have existed in the mind of the accused and must have 

been reasonable under all the circumstances. To be 

reasonable, the ignorance or mistake must have been based 

on information, or lack of it, that would indicate to a 

reasonable person that the other person 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 would do under the 

same or similar circumstances. (emphasis added). 

 At the conclusion of the military judge’s findings instructions to the panel, 

the military judge asked whether counsel “object[ed] to the instructions given or 

request additional instructions.” Appellant’s trial defense counsel answered, “No, 

Your Honor.” 

LAW AND ANALYSIS 

 The panel convicted appellant of two specifications of sexual assault by 

bodily harm, in violation of Article 120(b)(1)(B), UCMJ. The statutory elements of 

that Article include: (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) [MCM], pt. IV, ¶ 45.a.(b)(1)(B). Bodily harm is defined as 

“any offensive touching of another, however slight, including any nonconsensual 
RODRIGUEZ—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 vulva and mouth with 

appellant’s penis – doubled as the alleged bodily harm. Thus, for appellant to be 

found guilty of sexual assault, the government had to prove both that appellant 

engaged in the sexual acts with MS, and that MS did not consent 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 conduct criminal under Article 120(b)(1)(B), UCMJ. Specifically, 

appellant asserts a finding of guilty as to this article requires a mens rea of either 

“intentional, knowing or reckless” as to the element 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, regarding the 

appropriate standard of review, while appellant contends that we should review the 

military judge’s instructions de novo, he is entitled, at most, to plain error review. 

Appellant’s trial defense counsel 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 the instruction “to both specifications of Charge I.” At the close of 

the military judge’s findings instructions, appellant’s trial defense counsel 

affirmatively indicated that he had no objection to the instructions. 

While we noted in Peebles that similar conduct from Peebles’s trial defense 

counsel could amount to waiver of an allegation of instructional error, Peebles, __ 

M.J.__, 2019 CCA LEXIS, at *8-10, we ultimately “save[d] for another day” the 

determination of whether a statement of “no 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) (applying plain error analysis to forfeited instructional error)). We similarly 

apply plain error review here, as, like Peebles, “this case does not turn on 

determining the correct standard of review.” Peebles, __ M.J.__, 2019 CCA LEXIS, 

at *10; see also, e.g., United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) 

(applying plain error review to forfeited claim of instructional error); United States 

v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014); Davis, 76 M.J. at 229. 

 “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 

(citation omitted). “[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) (citation 

omitted). 
RODRIGUEZ—ARMY 20160787 

8 

 Second, Peebles compels a finding that the same panel instruction at issue in 

that case amounted to “clear 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 Article 

120(b)(2), were by contrast not “silent on the scienter needed to commit the 

offense,” but rather expressly set forth a negligence mens rea requirement. Id. at 

*15 (noting that Article 120(b)(2) “provides for a conviction of sexual assault where 

the accused ‘commits a sexual act upon another person when the person knows or 

reasonably should know that the other person is asleep, unconscious, or otherwise 

unaware’”) (emphasis in original). We thus could “infer that Congress did not 

intend for a conviction of sexual assault by bodily harm under Article 120(b)(1)(B), 

UCMJ, to be predicated on negligence.” Id. at *15. This court ultimately held in 

Peebles that the military judge had committed “obvious error by failing to instruct 

the members that appellant could only be found guilty if he acted, at a minimum, 

with a reckless disregard as to [the victim’s] lack of consent.” Id. at *19-20. As the 

panel instruction here was identical to the instruction in Peebles,

7

 we likewise find 

 

6

 Our superior court has explained that the applicable test is whether an error is 

clear and obvious “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 military 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, 117 (C.A.A.F. 

2010) (“[i]t follows that an error that was plain and obvious in [an earlier case] 

would be plain and obvious in a subsequent case when there were no intervening 

changes in the law”). 

7

 It is unsurprising that the instructions in Peebles and the instant case were 

identical, as they were in concert with the then-applicable Military Judge’s 

Benchbook. See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ 

(continued . . .) 
RODRIGUEZ—ARMY 20160787 

9 

that appellant has shown plain and obvious error, thus satisfying the first two prongs 

of plain error review. 

 Third, like Peebles, appellant’s claim ultimately fails, because appellant 

cannot show that the error materially prejudiced his substantial rights. Stated 

differently, appellant cannot show a “reasonable probability” that, “but for” the 

erroneous instruction, the panel would have found that appellant acted less than 

recklessly, and thus acquitted him. Molina-Martinez v. United States, 136 S. Ct. 

1338, 1343 (2016) (to demonstrate material prejudice to substantial rights, 

defendants must “show a reasonable probability that, but for the error, the outcome 

of the proceeding would have been different”) (citation omitted); United States v. 

Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017). 

Appellant’s court-martial presented two diametrically opposing narratives 

regarding MS’s consent or lack of consent. MS explained that she was quite clear 

and adamant about her non-consent to the sexual acts with appellant and PV2 

Macario, and told the two repeatedly, “No,” “Stop,” “I don’t want to do this,” and “I 

love my husband.” Appellant, on the other hand, contended that MS was a willing 

participant in the sexual acts with both himself and PV2 Macario, 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 that a specific communication would be viewed 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, at *11-13 (C.A.A.F. 9 Jan. 2019). Thus, this case did not 

present the middle ground where appellant could have been negligent 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 materially prejudice appellant’s 

substantial rights. 

CONCLUSION 

Upon consideration of the entire record, the findings 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 binding 

as it is not a primary 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: