CORRECTED COPY



## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant TRAVIS HERNANDEZ

United States Army, Appellant

ARMY 20160558

Headquarters, 82d A irborne Division

Deidra J. Fleming, Military Judge
Lieutenant Colonel Susan K. McCo nnell, Acting Staff Judge Advoc ate

For Appellant: Lieutenant Colo nel Tiffany M. Chapman, JA; Majo r Todd W. Simpson, JA; Captain H eather M. Martin, JA ( on brief); Lieutena nt Colonel Tiffany Pond, JA; Major Todd W. Simpson, J A; Captain Heather M. Martin, JA (on reply brief).

For Appellee: Colonel Tania M . Martin, JA; Major Austin L. Fen wick, JA; Captain Joshua Banister, 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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

BURTON, Senior Judge:

A panel composed of officers and enliste d members, sitting as a general courtmartial, convicted app ellant, contrary to his pleas, of one spe cification of maltreatment and one specifica tion of abusive sex ual contact in violation of Articles 93 and 120, Uniform Code of Mil itary Justice, 10 U.S.C. §§ 893 and 920 (2012) (UCMJ). Additionally, pursuant to his plea, appellant was conv icted of one specification of violating a lawful general regul ation, in viol ation of Article 92,HERNANDEZ— ARMY 20160558

2 UCMJ. 1 The convening authori ty approved the adju dged sentence of a d ishonorable discharge, confinemen t for 90 days, forfe iture of $1,566.90 pay per month for three months, and reduction t o the grade of E-1.

We review this case under Articl e 66, UCMJ. Appellant raises t hree assignments of error: none merit relief, but one merits discuss ion. 2 Specifically, appellant asserts for the first time on appeal that the militar y judge erred when she 3 failed to instruct the panel on the proper mens rea for the offense of abusive sexual contact. Even assuming arguend o appellant is corr ect, we find that he cannot establish material prejudi ce to a substantial right.

BACKGROUND

Appellant was Private First Cla ss (PFC) PR’s supervisor. Once appellant and
PFC PR both self-identified as b eing homosexual, they became fr iends and began to
socialize outside of work. Accor ding to appellan t, they cuddle d, watched movies together, shared intimate details about previous relationships, and had seen each
other naked. 4 Appellant testified that nothing sexual had ever happened bet ween himself and PFC PR.

On 11 February 2 016, appellant and PFC PR were roommates on a training
exercise. After a cookout, PFC PR went i nto the rest room to ta ke a shower. Appellant subsequently entered the restroom to urinate and star ted a conversation with PFC PR. During thi s conversatio n, appellant believed it w as time to make his move. According to ap pellant, he entered the shower uninvited and touched PFC PR’s penis. When PFC P R pushed appellant’s hand away and exite d the shower, appellant did not attempt to tou ch him again. When PFC PR text ed appellant about
his actions in the s hower, appellant apo logized. At trial, app ellant was asked about why he apologized, and h e explained, “Because I was like, ‘My b ad . . . I th ought we
were on the sa me page.’”

At the close of the evidence, the military judge held an Arti cle 39(a), UCMJ
session to discuss t he findings instructi ons. With input from the parties, the military

1 Appellant was found not guilty of one specification of maltrea tment and one specification of indecent exposure in violation of Articles 93 and 120c, UCMJ.

2 We have considered the matters personally asserted by appellan t pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) an d found that they lack merit.

3 Corrected

4 Private First Class PR de nies these int eractions.HERNANDEZ— ARMY 20160558

3 judge concluded she would give th e standard Milita ry Judges’ Be nchbook 5

instructions on a busive sexual contact, i ncluding note five (“b y causing bodily harm”); note seven (“lack of con sent as an element”); note twel ve (“mistake of fact
as to consent in cases involvin g bodily harm whe re lack of cons ent is an ele ment”); and note thirteen (“ voluntary intoxicati on and mistake of fact as to consen t in cases involving bodily harm where lac k of consen t is an element”).

Prior to providing the instructions to the panel, the military judge specifically inquired whether either party h ad any concerns w ith the propose d findings instructions. Neither party had any concerns. T he military ju dge then ins tructed the panel that to convict appellant of abusive sexual contact, they had to be convinced beyond a reasonable doub t of the following:

One, that at or near Fort Hood, Texas on or about 11 February 2016, the accused c ommitted a sexual contact upon [PFC PR], to wit: grabbi ng [PFC PR]’s penis with his hand;

Two, that the accused did so by causing bo dily harm to [PFC PR], to wit; grabbing [PF C PR]’s penis with his hand without [PFC PR]’s consent; and

Three, that the accused did so without the consent of [PFC PR].

The military judge further instru cted the panel c oncerning the sexual contact:

“Sexual contact” mea ns: (A) touching, o r causing another person to touch, either directly or indirectly or through the clothing, the genitalia, anus, groin, breast, i nner thigh, or buttocks of any perso n, with an intent to abuse, humiliate, or degrade any per son; or (B) any touc hing, or causing another person to touch, either directly or through the clothing, any body par t of any person, i f done with an intent to arouse or gratify the sexual desire of any person.

These instructions m irrored the template in the Benchbook and t he statutory language of Article 120, UCMJ. Bas ed on the government’s charg ing decision, the military judge further explained to the pa nel that proof of the victim’s lack of consent was required for both the sexual contact and bodily har m elements. The

5 See Dep’t of the Army, Pam. 27-9, Le gal Services: Military Judges’ Benchbook [Benchbook], para. 3- 45-16 (10 Sep. 2014).HERNANDEZ— ARMY 20160558

4 panel was told to consider “[a]l l the surrounding circumstances ” to determine whether PFC PR gave consent.

The military judge also provided the following instructions on mistake of fact

as to consent:

Mistake of fact as to consent is a defense to that charged
offense. “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 ab sence of due care.

“Due care” is what a reasonab le careful person would do
under the same or similar circumstances. 6

This instruction required the pa nel to consider appellant’s sta te of mind and
the reasonablene ss of his belief about t he victim’s consent.

LAW AND ANALYSIS

Citing Elonis v. United States , 135 S. Ct. 2001 (2015), and other related cases, appellant asserts for the first time on appeal that the military judge erred
when she 7 failed to instruct th e panel on the proper mens rea for the offense of
abusive sexual cont act by bodily harm. 8

The elements for this offense ar e: (1) that the accused committ ed a sexual contact upon another person by; (2) causing bodily harm to that other person.

6 See Benchbook, para. 3-45-16 n.12.

7 Corrected

8 We note that the merits of thi s case were trie d in August 2016 , which was more than a year after Elonis was decided.HERNANDEZ— ARMY 20160558

5 Manual for Courts-Martial, United States (2012 ed.) [ MCM ], pt. IV

. ¶ 45.a.(d). In appellant’s case, the sexual con tact – grabbing PFC PR’s penis with his hand – was also the bodily ha rm, and the military judge followed the Bench book in instructing the panel on a third ele ment of non-consent.

What mens rea applies to an offens e is a question of law that we review de

novo. United Sates v. Gifford , 75 M.J. 140, 142 (C.A.A.F . 2016). We acknowledge that our superior court noted in United States v. Caldwell , 75 M.J. 276, 280 n.3 (C.A.A.F. 2016), that Elonis has broader implications tha n just its int erpretation of 18 U.S.C. § 875(c); however, that broad implicatio n extends onl y to situations where
a statute is silent as to the requisite men tal state. Here, ap pellant was co nvicted of
abusive sexual contac t. The requisite mens rea is listed in the definition of sexual contact: appellant m ust have either an in tent to abuse, humilia te, or degrade any person; or an intent t o arouse or gratify th e sexual desire of any person. See Article 120(g)(2), UCMJ. There fore, this case falls outside the Suprem e Court’s decision in

Elonis , and the military jud ge provided the corr ect instruction.

However, even assumi ng arguendo that the mi litary judge’s instr uctions were somehow erroneous, “[b]ecause Appe llant did not ob ject to the m ilitary judge’s
instructions at trial , we review for plain error ‘based on the law at the time of appeal.’” United States v. Robinson , 77 M.J. 294, 29 9 (C.A.A.F. 2018) (quoting

United States v. Guardado , 77 M.J. 90, 93 (C.A.A.F. 20 17)). As such, appellant
“bears the burden of est ablishing: (1) there is error; (2) the error is clear or obvious; and (3) the error ma terially prejudiced a substantial right.” Id . (citation omitted).

To establish plain erro r, “all three prongs must be satisfied.” United States v.
Gomez , 76 M.J. 76, 79 (C.A. A.F. 2017) (internal quotation marks omit ted) (quoting United States v. Bungert , 62 M.J. 346, 348 (C.A. A.F. 2006)). Put a nother way, “the
failure to establish a ny one of the p rongs is fatal to a plain error claim.” United

States v. McClour , 76 M.J. 23, 25 (C.A. A.F. 2017) (quoting Bungert , 62 M.J. at 348)). The third pron g is satisfied if the appellant shows “a reasonable probability that, but for the error [claimed], the outcome of the proceedin g would have been
different.” Robinson , 77 M.J. at 299 (quoting United States v. Lopez , 76 M.J. 151, 154 (C.A.A.F. 2017)) (citation om itted) (interna l quotation mar ks omitted).

In this case, as in Robinson , “the third prong . . . re solves the issue before

us.” 77 M.J. at 299. In discussing the ni ght in question, app ellant testified that PFC PR did not invite appellant to get undressed, jo in him in the s hower, or touch his penis. Instead, appellant was sexually aroused and believed it was a good time to
make his move. Accordi ng to appellant, “wi th gay guy s . . . yo u just pretty much go straight to it.” Simply put, app ellant chose to t ake matters i nto his own hands, and
his actions cons ciously disregarded a sub stantial and unjustifi able risk that PFC PR did not consent. In light of thi s uninvited and unrequested co nduct, we find a lack of material prejudice fr om the alleged error.HERNANDEZ— ARMY 20160558

6 In sum, because appel lant “has not demonstr ated that the milita ry judge’s
failure to instruc t on [a higher] mens rea requirement would have changed the outcome of the court-martial, we hold that the m ilitary judge d id not plainly err in instructing the members.” Robinson , 77 M.J. at 300.

CONCLUSION

On consideration of the entire r ecord, the findings of guilty a re AFFIRMED. We AFFIRM only so much of the sen tence as include s a dishonorab le discharge, confinement for 90 days, reducti on to the grade of E-1, and for feiture of $1,566 pay per month for three months. 9

Judge HAGLER and Judge SCHASBERGER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

9 The sentence to forfeiture mu st “state the exact amount in who le dollars to be
forfeited each month.” Rule for Courts-Martial 1003(b)(2). MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: