UNITED STATES, Appellee v. Private E2 Joshua C. DAVIS, United States Army, Appellant
ARMY 20130996
U.S. Army Court of Criminal Appeals
25 November 2015
75 M.J. 537
For Appellee: Major A.G. Courie III, JA; Major Steven J. Collins, JA; Major Lionel C. Martin, JA (on brief).
Before the Court Sitting En Banc
OPINIÓN OF THE COURT
WOLFE, Judge:
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of one specification of rape in violation of
Appellant‘s case is now before us for review pursuant to
BACKGROUND
Appellant and Private First Class (PFC) BJH were friends, having gone through basic training and advanced individual training together, to include serving in the same platoon. Both were subsequently assigned to Germany. Private First Class BJH testified that prior to the offense for which appellant now stands convicted, there were two other instances of sexual conduct between her and appellant. The first was a consensual episode which PFC BJH ended by telling appellant to stop (and to which he subsequently complied without incident). As to the second instance, PFC BJH testified that while the two of them were driving together at night, appellant parked the car in a deserted area and forcibly raped her.1 Approximately two weeks later, after finishing morning physical training, PFC BJH ran into appellant and decided to confront him abоut the prior alleged assault. Appellant asked to speak to her and to go up to her barracks room. Private First Class BJH testified that she was comfortable talking to appellant in her room because unlike the previous occasion, she was sober, it was in the middle of the morning, and she left her room door open.
Private First Class BJH provided the only witness testimony about the assault in her barracks room. 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 retrieved 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 an empty wine bottle if she did not “do him.”2 The encоunter 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.
As the testimony addressing the encounter between SPC BH, PFC BJH, and appellant is critical to resolving the first assignment of error, we include a portion of the record at length.3
Private First Class BJH testified to the encounter as follows:
[S]o we both went and knocked on [appel-
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 roоm 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 addition to the testimony of PFC BJH and SPC BH, the government also introduced pictures of bruises on PFC BJH‘s arms taken immediately after the assault and evidence that there was male DNA at the base of the dildo consistent with the DNA profile of appellant.4
In defense, apрellant offered testimony that PFC BJH was not a truthful person and expert testimony that the age of the bruises depicted in the photographs was inconsistent with the timeline proffered by PFC BJH. The defense also admitted some evidence of a stormy romantic relationship between SPC BH and PFC BJH and argued that the panel could infer that the bruises were the result of a domestic battery.5
In rebuttal, the government offered expert testimony attacking the validity of the defense expert‘s ability to date bruises based on a photograph. Additionally, the government offered additional eyewitness testimony on the appearancе of the bruises immediately after the assault.
The government did not offer physical evidence or expert testimony regarding the offenses for which appellant was acquitted.
DISCUSSION
A. Instructions
As noted, in his first assignment of error, appellant argues the military judge failed to sua sponte instruct the panel members on the defense of mistake of fact. Appellant argues that his statement after being confronted with an allegation of rape of “I thought she was joking until I saw her crying” reasonably raised a mistake of fact as to consent defense.
A military judge has an affirmative duty to instruct on special defenses reasonably raised by the еvidence.
When a defense has more than one element, in order for that defense to be reasonably raised by the evidence there must be some evidence as to eaсh separate element of the defense. As our superior court stated in Schumacher, “the military judge must answer the legal question of whether there is some evidence upon which members could reasonably rely to find that each element of the defense has been established.” Schumacher, 70 M.J. 387 at 389-90 (emphasis added).
Thus, in order to put the defense of mistake of fact as to consent at issue in this case, there must be: 1) some evidence to which the members could attach credit that the appellant honestly believed that BJH was consenting to the insertion of the dildo into her vagina; and 2) some evidence to which the members could reasonably attach credit that such a belief was reasonable.
An accused is not required to testify in order to establish a mistake of fact defense. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998). The evidence to support a mistake of fact instruction can come from evidence presented by the defense, the prosecution, or the court-martial. Id. (citing
1. Standard of Review
The law governing the standard of review in this case can be difficult to determine with precision. Courts have at times vacillated on whether instructions on defenses are reviewed for an abuse of discretion, reviewed de novo, or, reviewed for plain error when an appellant did not request an instruction.
Appellant asks this court to conduct a de novo review based on United States v. McDonald, 57 M.J. 18 (C.A.A.F. 2002). For the reasons discussed below, we determine that appellant forfeited the instructional issue and will therefore review the case for plain error.
We start our analysis with the promulgation of the rules for court-martial in the 1984 Manual for Courts-Martial, United States (1984 ed.) [hereinafter MCM, 1984].
The first case to address this issue was Taylor, 26 M.J. 127. In Taylor, the Court of Military Appeals rejected the language in
Thus, the Taylor court treated instructions on defenses similarly to instructions on elements—that is, they are mandatory, reviewed de novo, and with no provision for forfeiture.8
However, almost immediately, Taylor was called into question. United States v. Eckhoff, 27 M.J. 142, 144 (C.M.A. 1988) (finding forfeiture when the defense failed to object to the military judge‘s instruction on the defense of entrapment instruction); United States v. Gittens, 39 M.J. 328, 331 (C.M.A. 1994) (a defense failure to request an accomplice instruction constitutes forfeiture, albeit there may be a case where a judge‘s failure to give such an instruction would be plain error); United States v. Gomez, 46 M.J. 241, 247 (C.A.A.F. 1997) (testing for plain error when appellant failed to object to mandatory instructions on lesser-included offenses); United States v. Grier, 53 M.J. 30, 34 (C.A.A.F. 2000) (Failure to object to an error in instructing on definitions of the elements before the panel begins deliberation is tested for plain error.); United States v. Guthrie, 53 M.J. 103, 106 (C.A.A.F. 2000) (“failure to object to instructions as given or to request additional instructions forfeits the issue on appeal“); United States v. Browning, 54 M.J. 1, 6 (C.A.A.F. 2000) (defects in instructions on the elements of conspiracy were forfeited absent plain error); United States v. Simpson, 56 M.J. 462, 465 (C.A.A.F. 2002) (“A failure to object to an instruction [on a lesser-included offense] prior to commencement of deliberations [fоrfeits] the objection in the absence of plain error.“).
This approach is consistent with our superior court‘s approach when reviewing other unpreserved errors, even errors of a “constitutional” dimension. See United States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011) (“Whether there has been improper reference to an accused‘s invocation of her constitutional right to remain silent—in testimony or argument—is a question of law that this Court reviews de novo. Where, as here, there are no objections at trial, this Court reviews for plain error.“) (citations omitted).
Importantly, we stress here that a de novo review and plain error are not mutually exclusive. See United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (“Whether an offense is a lesser included offense is a question of law that is reviewed de novo. . . . Because there was no objection to the instruction at trial, we review for plain error.“) (citations omitted).
More recent case law also leads us to the conclusion that the appropriate standard of review when an accused fails to object to a mandatory instruction is “plain error.” In United States v. Wilkins, for example, our superior court found error, but after testing for plain error, upheld the conviction. 71 M.J. 410, 412-13 (C.A.A.F. 2012). This result is consistent with our superior court‘s most recent decisions. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (applying plain error analysis to a mandatory instruction); United States v. McMurrin, 70 M.J. 15, 17 (C.A.A.F. 2011) (reviewing for plain error when there is no objection to instructions on a lesser-included offense); United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011) (“Whether an offense is a lesser-included offense is a question of law we review de novo. As there was no objection to the instruction at trial, we review for plain error“) (internal citation and quotation marks omitted).
Thus, the overwhelming precedent adopts the forfeiture provisions in
We therefore hold that the failure of the defense to request or object to an instruction on a defense forfeits the issue, absent plain error. This is consistent with the majority and more recent decisions of our superior court, adheres to the requirements of
While we determine that Taylor‘s continued vitality has been significantly eroded, the requirement that a military judge sua sponte give an instruction on a raised defense, even without a defense request, survives intact. United States v. MacDonald, 73 M.J. 426, 434 (C.A.A.F. 2014) (“If an affirmative defense is reasonably raised by the evidence, the military judge has a sua sponte duty to instruct the members on that defense.“).
Notably, the C.A.A.F. in United States v. Brown, 43 M.J. 187, 190 n.3 (C.A.A.F. 1995), suggested in a footnote that they would “consider overruling” Taylor and instead “require that an accused must request instructions on affirmative defenses.” Read thusly, a special defense would be “in issue” under
Accordingly, for mandatory instructions under
2. Analysis
On appeal, appellant argues the statement “that he ‘thought it was a joke’ and did not think PFC [BJH] was ‘serious . . . until she started crying‘” warrants the mistake of fact instructiоn.
Under appellate defense counsel‘s view, the phrase “I thought it was a joke” (emphasis added), uttered by appellant to SPC BH, was a reference to PFC BJH‘s conduct during the alleged assault—presumably that appellant thought her repeated statement of “no” was a joke. The problem with this view is that there is no evidence in the record that during the confrontation in appellant‘s doorway, SPC BH or PFC BJH discussed the details of the assault allegations with appellant. Appellant also appears to argue for the first time on appeal that the statement that appellant didn‘t “think she was being serious” until she started crying was describing his subjective mental belief at the time of the assault, i.e., that he came to understand PFC BJH actually meant “no” to his sexual advances when she began to cry. The record supports this understanding to a degree as PFC BJH testified that appellant stopped raping her with the dildo when she began to cry.10 Notably, however, the defense counsel at trial did not share this understanding as they did not pursue a mistake of fact defense nor argue that appellant thought her resistance was a joke.11
We read the testimony of SPC BH and PFC BJH very differently from appellant. Considered together, we assess the interactiоn as follows: After the door to appellant‘s barracks room was opened, SPC BH confronted appellant with an expletive-laden demand for an explanation as to what happened. Appellant responds with a denial, claiming that he doesn‘t know what SPC BH is talking about. During the initial part of the encounter, PFC BJH was off to the side but then moved into view “where he could see me.” Specialist BH responded to appellant‘s denial by stating “Bullshit. She is crying.” Appellant then responded by stating he “thought it was a joke,” that he “didn‘t think she was being serious,” and he “didn‘t realize it until she started crying.” The natural and clearly more likely meaning of appellant‘s last statement is a commentary on the situation that had just unfolded in front of him at his doorway: 1) he was confronted with an accusation; 2) he stated that the accusation was a joke; and 3) he realized the accusation was not a joke when PFC BJH stepped into view and SPC BH drew his attention to the fact that PFC BJH was crying.
The plain error exception should “be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Cousins, 35 M.J. 70, 75 (C.M.A. 1992) (quoting United States v. Frady, 456 U.S. 152, 163 n.4 (1982)); United States v. Jackson, 38 M.J. 106, 111 (C.M.A. 1993). “[W]e are generally not inclined to reverse a case where additional instructions are belatedly proposed by the defense for the first time оn appeal.” United States v. Smith, 34 M.J. 200, 203–04 (C.M.A. 1992).
“Plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice.” United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011). With regards to instructions, “to constitute plain error, the
Given the uncertainty in the meaning of the conversation, we find that even if appellate defense counsel‘s current interpretation of the doorway confrontation is correct, such an interpretation was not obvious. That is, even assuming the conversation had the meaning that appellant now argues, that mеaning was not plain and obvious, and therefore any error did not amount to plain error.
Moreover, even assuming the statement “I thought she was joking” was clearly and obviously “some evidence” that appellant honestly believed PFC BJH had consented to the sexual act, there was no evidence that such a belief was reasonable.12 That is, appellant would only be satisfying one element of the defense.
The only testimonial evidence concerning the assault was that of PFC BJH. According to her testimony on direct examination, as she was changing into her uniform, appellant stated “You don‘t need to put those pants on” and then grabbed her pants so that she couldn‘t pull them up, and prevented her from buckling her belt. Appellant then “picked me up[,] he walked me over to the bed and he dropped me down.” After obtaining the dildo from her nightstand, appellant then proceeded to pin her arms down with one hand and inserted the dildo in PFC BJH‘s vagina while she “kept telling him to stop.” Under cross-examination, the testimony was even less indicative of consent. Private First Class BJH testified that she was yelling and screaming for appellant to stop. In short, there was no evidence whatsoever which would allow the panel to find appellant made a reasonable mistake as to consent.
Additionally, we note the entire defense case was directed not at claiming that the sexual act was consensual (or that appellant mistakenly believed it to be so). Rather, the overwhelming thrust of the defense case was that the sexual act never happened at all. In opening statement, the defense counsel asked the panel to question the DNA evidence and noted that there were no fingerprints showing that appellant had been in PFC BJH‘s room. Consistent with their opening, and the defense‘s careful cross-examination of the government‘s DNA expert, the defense argued in closing that under the DNA test performed, there were thousands or millions of persons in the world who may have contributed the DNA that the government asserted belonged to appellant. With regards to the single sperm found on PFC BJH‘s fatigue pants, the defense argued that “the only reasonable conclusion was that someone else provided the sample of sperm.” In short, the defense case was not one of mixed messages or a false accusation after consensual sex; the defense argued that there was no sexual act at all.
Reviewing the record and even assuming error, we find that any error was not obvious or clear. Given that the evidence possibly supporting a mistake of fact instruction was limited to one confusing hallway confrontation of questionable meaning and that such an instruction would have been contrary to the defense‘s theory of the case, any error had no impact on the deliberations of the panel.
We note that appellant asserts that the error has “constitutional implications” and we must test the error to determine whether it is harmless beyond a reasonable doubt. See United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). We disagree.
To find instructional error of a constitutional dimension, our court would have to find “‘a rеasonable likelihood that the jury has applied the challenged instruction in a
Even assuming error in this case, we do not see it to be of a constitutional dimension. The absence of a mistake of fact instruction did not prevent the defense from putting on a defense or place the burden on appellant to prove his innocence. Not every instructional error is of a constitutional dimension. See, e.g., United States v. Cowan, 42 M.J. 475, 478 (C.A.A.F. 1995). For example, in the case appellant points us to, United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006), the instructional issue was centered on the First Amendment limits to child pornography. No such constitutional issue is at play in this case.
We note that, on occasion, a court may test to see that any error was harmless beyond a reasonable doubt as it subsumes a plain error analysis. For instance, in United States v. Davis, our superior court noted:
The granted issue discussed the military judge‘s error in terms of harmlessness beyond a reasonable doubt, and the Government did not contest the application of this standard or argue that plain error review should apply. Therefore, as neither party raised the issue, and the outcome in this case would be the same under either standard of review, we will not address whether harmlessness beyond a reasonable doubt or plain error is the appropriate standard to apply.
73 M.J. 268, 271 n.4 (C.A.A.F. 2014) (emphasis added).
Accordingly, even were we to test to seе if any error was harmless beyond a reasonable doubt, we would so find.
B. Factual Sufficiency
In his second assigned error, appellant asks us to set aside his conviction as factually insufficient. See
In this case, we find the testimony of PFC BJH as to the offense in question to be credible. While trial defense counsel did vigorously attack the credibility of PFC BJH, she made an immediate outcry to her girlfriend, SPC BH. Private First Class BJH‘s allegation as to this offense was subsequently supported by DNA analysis, an outcome she could not have expected and relied upon if she were making up the assault out of whole cloth. While PFC BJH was at times contradictory, the contradictions were ancillary to the offense in question.13
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Chief Judge WILSON, Chief Judge GLANVILLE, Senior Judge MULLIGAN, Senior Judge HAIGHT, Judge HERRING, Judge CELTNIEKS, and Judge BURTON concur.
I concur with the majority opinion, including its conclusion that the correct standards of review in this case arе de novo and plain error. However, I disagree with a significant portion of the majority‘s supporting analysis regarding the path to the plain error standard.
We review de novo the adequacy of a military judge‘s instructions to the factfinder. United States v. Stanley, 71 M.J. 60, 62 (C.A.A.F. 2012).
Considering Taylor and the considerable line of casеs following it, I must therefore depart from the majority‘s holding that an appellant may forfeit such an instruction by not requesting it or objecting to its omission. No case cited in the majority‘s opinion so holds. Assuming arguendo that a discussion of forfeiture is required, we should hold that an appellant does not forfeit the benefit of this instruction by failing to request it or failing to object to a list of instructions which omits it. To hold otherwise contravenes stare decisis and deprives this statutory right of its sua sponte14 nature which our superior court has emphasized multiple times. Taylor, 26 M.J. 127; United States v. Brown, 43 M.J. 187, 190 (C.A.A.F. 1995); United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000); Stanley, 71 M.J. at 6315; United States v. Payne, 73 M.J. 19, 24 (2014); United States v. MacDonald, 73 M.J. 426, 435 (C.A.A.F. 2014); United States v. Davis, 73 M.J. 268, 272 (2014).
Lest readers interpret this concurrence as a pedantic treatment of something that does not matter—after all, I agree with the ultimate standаrds of review here—I hasten to emphasize the reason for my concern regarding the expansion of forfeiture. With today‘s opinion, the majority reduces a trial judge‘s burden to correctly instruct a fact finder on fundamental matters of law applicable to a case. This development increases the risk of unreliable results.
Notwithstanding our divergence of opinion regarding forfeiture, I fully agree with the majority‘s conclusion that appellant was not entitled to the instruction as a matter of law. Appellant‘s statement—“I thought she was joking until I saw her crying.“—made under the circumstances which the majority describes, did not amount to “some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired.” United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). For this reason, I concur in the result.