United States v. DavisUnited States v. Davis
To the extent that United States v. Taylor, 26 M.J. 127 (C.M.A. 1988), holds that an accused‘s right to a required instruction on findings is not waived (that is, extinguished оn appeal) by a failure to object without
Because Appellant failed to object to the omission of a required instruction on a special defense, we review the military judge‘s instructions for plain error. We agree with the ACCA that the evidence did not raise an honest and reasonable mistake of fact as to consent and affirm.
I. PROCEDURAL HISTORY
A рanel of officers and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of one specification of rape in violation of Article 120, Uniform Code of Military Justice (UCMJ),
The United States Army Court of Criminal Appeals (ACCA) affirmed the findings of guilty and sentence. United States v. Davis, 75 M.J. 537, 546 (A. Ct. Crim. App. 2015).
We granted Appellant‘s petition to review the following issue:
Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raisеd by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this Court‘s precedent in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).
II. FACTS
We adopt the facts as set forth in the ACCA‘s opinion:
Upon entering her barracks room with appellant, PFC BJH left the door to the room open and went into the bathroom to change out of her physical training gear and into her duty uniform. As she was pulling up her fatigue pants, she looked up and saw that the room door had been closed and appellant was walking towards her. Appellant stated, “You don‘t need to put those pants on,” picked up PFC BJH, and then dropped her onto her bed. While pinning her arms, appellant retriеved a dildo from BJH‘s nightstand and forcibly inserted it into her vagina. Appellant kept inserting the dildo into PFC BJH‘s vagina while she told him to stop. At some point, she began to cry. Private First Class BJH further testified that once she started to cry, appellant stopped assaulting her with the dildo, got up, and threatened to rape her with аn empty wine bottle if she did not “do him.” The encounter eventually ended when PFC BJH was able to text her girlfriend, Specialist (SPC) BH, for help and appellant left the room.
Upon receiving PFC BJH‘s text, SPC BH went to PFC BJH‘s barracks room.
When SPC BH arrived at PFC BJH‘s barracks room and heard what had happened, SPC BH decided to confront appellant. Specialist BH called appellant and found out he was in his barracks room in the same building. Both women went to his room. Private First Class BJH testified to the encounter as follows:
[S]o we both went and knocked on [appellant‘s] door. And I was standing off to the side when [SPC BH] was in the middle of the doorway, she wаs yelling at [appellant] like, “What the fuck did you do?” And that‘s whenever [appellant] said, “I didn‘t do anything.” And then whenever I came over to where he could see me that‘s when I—don‘t remember exactly what I said, but I was basically was like, “How are you going to lie? It just happened?” And that‘s whenever [appellant] said, “I thought she was joking until I saw her crying.”
On direct examination by the government, SPC BH testified to the same encounter at appellant‘s doorway as follows:
Q: When you heard [about the assault], what did you do?
A: I instantly pulled my phone out, called him, and I asked [appellant] where he was. And he said that he was downstairs in his room and I didn‘t even get off the phone, I was already down the stairs in his room, opened the door, and I then confronted him about it.
Q: Was [PFC BJH] with you?
A: Yes, sir.
Q: Tell me how the confrontation happened.
A: I opened the door and I blatantly said, “What the fuck did you do to her?” And he was like, “I don‘t know what you are talking about.” And I was like, “Bullshit. She is crying. She is telling me that something happened.” And he was like, “Oh, I thought it was a joke. I didn‘t think she was being serious. And I didn‘t realize it until she started crying.”
...
In defense, appellant offered testimony that PFC BJH was not a truthful person....
Davis, 75 M.J. at 539-40 (alterations in original).
At trial the military judge instructed the panel on the elements of rape. Appellant did not request a mistake-of-fact instruction or object to the final form of the instructions, and the military judge did not instruct on mistake of fact. See id. The panel found Appellant guilty of rape.
III. ACCA DECISION
On appeal, Appellant claimed that his statement, “I thought she was joking until I saw her crying,” reasonably raised the issue of mistake of fact as to consent. Davis, 75 M.J. at 540. Appellant argued that the military judge therefore erred by failing to instruct on a mistake-of-fact defense. Id.
To determine the standard of review, the ACCA began with the text оf Rule for Courts-Martial (R.C.M.) 920(f), which provides that “[f]ailure to object to an instruction or to an omission of an instruction before the members close to deliberate constitutes waiver1 of the objection in the absence of plain error.” R.C.M. 920(f) (footnote added). The ACCA recognized that the rule, while using the term “waiver,” actually referred to forfeiture, and then went on to hold that our Court in Taylor “rejected the language in R.C.M. 920(f)” and instead required de novo review of required instructions, regardless of whether there is an objection. See Davis, 75 M.J. at 541-42. In grappling with this perceived conflict between Taylor and
Having found that Appellant forfeited the issue, the ACCA reviewed the military judge‘s instructions and considered first whether the evidenсe raised an “honest and reasonable” mistake of fact about consent. Id. at 544-45. The ACCA concluded that even if Appellant‘s statement, “I thought she was joking until I saw her crying,” was “some evidence” that Appellant honestly believed that BJH consented, “there was no evidence that such a belief was reasonable.” Id. at 545. Therefore, because the evidence did not raise an honest and reasonable mistake of fact as to consent, the ACCA held that the military judge‘s instruction omitting that defense was not plainly erroneous. Id.
IV. DISCUSSION
A. Standard of Review
According to the ACCA, “[t]he law governing the standard of review in this case can be difficult to determine with precision.” Id. at 541. We disagree.
R.C.M. 920(e) lists ”Required instructions” on findings, meaning instructions that “shall” be given.3 This list of required instructions includes the elements of the offense, elements of each lesser included offense, and, at issue here, “any special4 defense under R.C.M. 916 in issue.” R.C.M. 920(e)(1)-(3) (footnote added). Relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, “as to the elements of the offense.”
Mistake of fact is a “special defense” under R.C.M. 916(j). Where a special defense is reasоnably raised by the evidence, an instruction on that defense is required. Taylor, 26 M.J. at 128-29; Ginn, 4 C.M.R. at 48-49. “The test for determining whether an affirmative defense of mistake of fact has been raised is whether the record contains some evidence of an honest and reasonable mistake to which the members could have attachеd credit if they had so desired.” United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003) (citing R.C.M. 916(j)); see United States v. Schumacher, 70 M.J. 387, 390 (C.A.A.F. 2011) (“This test is similar to that for legal sufficiency.“).
Whether a “[r]equired instruction[]” on findings contained within R.C.M. 920(e) is reasonably raised by the evidence is a question of law that we review de novo. See United States v. MacDonald, 73 M.J. 426, 434 (C.A.A.F. 2014); Stanley, 71 M.J. at 62. If the military judge omits a required instruction that is reasonably raised by the evidence, the accused may preserve the instructional error either by mаking an adequate objection or by requesting an instruction in a way that sufficiently signals to the military judge the existence of an error in need of correction. See United States v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016). Where required instructional error is preserved, we test for harmlessness. See, e.g., Article 59(a), UCMJ,
Because Appellant did not object to the instructions given or request a mistake-of-fact instruction, we review this case for plain error. See R.C.M. 920(f). The threshold question, of course, is whether that defense was reasonably raised by the evidence—in other words, was there error at all—a question of law that we review de novo. See MacDonald, 73 M.J. at 434; Stanley, 71 M.J. at 62. But Appellant claims that, despite his silence, he did not forfeit the issue. He relies on the ACCA‘s determination that, under Taylor, instructions on affirmative defenses, pursuant to R.C.M. 920(e)(3), “are mandatory, reviewed de novo, and with no provision for forfeiture.” Davis, 75 M.J. at 542 (second emphasis added). But Taylor did not hold that required instructions under R.C.M. 920(e)(3) could not be forfeited under R.C.M. 920(f). Rather, Taylor held that silence with respect to such required instructions would not be deemed waiver under R.C.M. 920(f). See Taylor, 26 M.J. at 129 (“[A]n accused‘s right to an instruction on affirmative defenses [is not] waived by the absence of a request.” (emphasis added)). We agree that waiver in the context of required instructions is accomplishеd by an affirmative action, not a mere failure to object. See Barnes, 39 M.J. at 233. Subsequent cases have reaffirmed that R.C.M. 920(f) is a forfeiture provision, not a waiver provision. See Payne, 73 M.J. at 22-23 (holding that when R.C.M. 920(f) uses the word “waiver,” it is actually referring to “forfeiture“).
We recognize that, on occasion, this Court has cited Taylor for the proposition that an appellant cannot forfeit an affirmative defense instruction. See, e.g., United States v. McDonald, 57 M.J. 18, 20-22 (C.A.A.F. 2002); Davis, 53 M.J. at 204-06; Barnes, 39 M.J. at 232; see also United States v. Davis, 73 M.J. 268, 271 n.4, 272 (C.A.A.F. 2014); United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007); United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). But the language of R.C.M. 920(f), a precise reading of Taylor, and the great weight of our precedent clearly call for plain error review when an appellant fails to request an affirmative defense instruction—indeed, fails
Because Appellant did not request, or objеct to the absence of, a mistake-of-fact instruction, Appellant forfeited any error under R.C.M. 920(f), and we review for plain error.
B. Plain Error
“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 а substantial right of the accused.” Payne, 73 M.J. at 23 (internal quotation marks omitted). Appellant cannot show any instructional error here, much less error that is plain or obvious.
Appellant contends on appeal that his statement to BH, “I thought she was joking until I saw her crying,” is “‘some evidence of an honest and reasonable mistake‘” about consent. Davis, 75 M.J. at 540 (quoting Hibbard, 58 M.J. at 75). But while Appellant‘s statement may constitute a scintilla of evidence about his “honest belief,” the ACCA correctly concluded that there is not an iota of evidence that such a belief was reasonable. Id. at 545. Appellant overwhelmed BJH with physical force, pinned her dоwn, and penetrated her while she repeatedly told him to stop. We agree with the ACCA that even if there was “some evidence” that Appellant honestly believed that BJH consented, “there was no evidence that such a belief was reasonable.” Id. Even if Appellant honestly believed that BJH‘s resistanсe to his assault was a “joke,” such a mistaken belief was patently unreasonable, making the defense unavailable to Appellant. The military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions.
V. JUDGMENT
We hold that Appellant forfeited any error in the panel instructions by fаiling to object or request a mistake-of-fact instruction. Furthermore, we agree with the ACCA that the evidence is legally insufficient to raise an honest and reasonable mistake-of-fact defense. Therefore, we hold that the military judge did not err at all, let alone commit plain error. The decision of the United States Army Court of Criminal Appeals is affirmed.