United States v. Feliciano
2017 CAAF LEXIS 482
| C.A.A.F. | 2017Background
- Appellant, Feliciano, and two others drank; all returned to the barracks and later shared a bed. PV2 KF was groggy/substantially incapacitated.
- SPC RS awoke to see Appellant on top of PV2 KF, her pants around her knees, and heard PV2 KF saying “No. No, no, no.”
- SPC RS intervened, told Appellant that continuing would be rape and that he could be punished; Appellant said, “You know what? You’re right,” got off PV2 KF, and left the immediate area.
- Appellant was charged with two specifications of attempted aggravated sexual assault (Article 80/120 UCMJ) and other minor offenses; convicted by a court-martial and sentenced.
- At trial the military judge instructed the panel on mistake of fact as to consent (requiring the mistake to be honest and reasonable) but did not instruct on the affirmative defense of voluntary abandonment; defense counsel did not object to instructions.
- On appeal to the Army Court of Criminal Appeals and then to this Court, Appellant argued (1) the judge erred by failing to instruct on voluntary abandonment and (2) the mistake-of-fact instruction improperly required reasonableness rather than mere honesty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the military judge erred by not instructing on voluntary abandonment | Prosecution: No error because record lacked evidence of abandonment based solely on Appellant’s change of heart | Feliciano: Judge should have instructed because he ceased conduct before completion | Held: No error — no evidence of voluntary abandonment; Appellant stopped due to SPC RS’s intervention (fear of detection/apprehension) not a sole change of heart |
| Whether the mistake-of-fact-as-to-consent instruction was erroneous by requiring reasonableness | Prosecution: Instruction harmless because no evidence Appellant believed PV2 KF consented; instruction did not shift burden | Feliciano: Instruction should have required only honest belief, not reasonable belief | Held: Court did not reach merits; found no evidence Appellant believed victim consented and any error was superfluous and harmless beyond a reasonable doubt |
Key Cases Cited
- United States v. Byrd, 24 M.J. 286 (C.M.A. 1987) (voluntary abandonment is a defense to attempt)
- United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (judge must instruct on a defense when some evidence in the record supports it)
- United States v. Schumacher, 70 M.J. 387 (C.A.A.F. 2011) (same standard for instructing defenses)
- United States v. Knapp, 73 M.J. 33 (C.A.A.F. 2014) (plain-error review framework for forfeited claims)
- United States v. Bungert, 62 M.J. 346 (C.A.A.F. 2006) (failure to establish any plain-error prong is fatal)
- United States v. Jones, 49 M.J. 85 (C.A.A.F. 1998) (assessment that no evidence supported defendant’s belief in consent)
- United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (distinguishing waiver from forfeiture)