United States v. Davis
2017 CAAF LEXIS 407
| C.A.A.F. | 2017Background
- Appellant (Pfc. Joshua C. Davis) was convicted at a general court-martial of one specification of rape based on forcibly inserting a dildo into the victim and threatening further sexual violence; sentenced to a bad-conduct discharge, six months confinement, and reduction to E‑1.
- At trial the military judge instructed on the elements of rape but did not give a mistake-of-fact (affirmative/special defense) instruction; defense did not request the instruction or object to the instructions given.
- On appeal to the Army Court of Criminal Appeals (ACCA) Davis argued his statement, "I thought she was joking until I saw her crying," raised a mistake-of-fact defense as to consent and so required an instruction.
- The ACCA held the appellant forfeited review by failing to object and applied plain-error review, concluding the evidence did not show a reasonable mistake of fact and affirmed.
- The Court of Appeals for the Armed Forces (CAAF) granted review to resolve whether required affirmative-defense instructions are subject to forfeiture/plain-error review or must be reviewed de novo regardless of objection.
- CAAF held that R.C.M. 920(f) governs and failure to request or object forfeits the claim, so plain-error review applies; independently, the evidence did not reasonably raise a reasonable mistake-of-fact defense, so no plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of a required mistake-of-fact (affirmative/special) defense instruction is forfeited when not requested/ objected to | Davis: His statement to a third party constituted some evidence of an honest and reasonable mistake of fact about consent, so a required instruction should have been given and review should be de novo | Government/ACCA: Under R.C.M. 920(f) failure to object forfeits the claim and subjects it to plain-error review; the evidence did not show a reasonable mistake anyway | CAAF: Failure to request/object forfeits under R.C.M. 920(f); plain-error review applies. On the merits, the record lacked evidence a mistake of fact belief was reasonable, so no error. |
| Whether Taylor v. United States prevents forfeiture and requires de novo review of omitted affirmative-defense instructions | Davis relied on Taylor to argue affirmative defenses cannot be forfeited by silence | Government argued Taylor was distinguishable/overruled to the extent it precluded plain-error review; R.C.M. 920(f) controls | CAAF: To the extent Taylor suggested no plain-error review is ever appropriate for omitted required instructions absent objection, it is overruled; R.C.M. 920(f) forfeiture/plain-error framework applies. |
Key Cases Cited
- United States v. Taylor, 26 M.J. 127 (C.M.A. 1988) (originally held an accused’s right to affirmative-defense instruction not waived by silence)
- Johnson v. United States, 520 U.S. 461 (1997) (instructional errors reviewed for plain error when not objected to at trial)
- United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014) (applied plain-error review to failure to give a required instruction)
- United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012) (discussed standard for instructional error and review)
- United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003) (test for when mistake-of-fact affirmative defense is raised: some evidence of an honest and reasonable mistake)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error standard for omission of an element when objected to)