## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before the Court Sitting En Banc

UNITED STATES, Appellee

v. Private E2 JOSHUA C. DAVIS United States Army, Appellant

ARMY 20130996

Headquarters, 21st Thea ter Sustainment Command Reynold P. Masterton, Mi litary Judge (arraignmen t & pretrial motions) David H. Robertson, Military Judge (pretria l motions & trial)
Colonel Jonathan A. Ke nt, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles Lozano, JA; Major Yolanda McCray Jones, JA; Captain Payum Doroodian, JA (on brief).

For Appellee: Major A. G. Courie III, JA; Major Steven J. Collin s, JA; Majo r Lionel C. Martin, JA (on brief).

25 November 2015

--------------------------------- OPINION OF THE COURT

---------------------------------

WOLFE, Judge:

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pl eas, of one specification of rape in violation of Article 120, Uniform Code of Militar y Justice [hereinafter UCMJ] , 10 U.S.C. § 920 (2012). The panel acquitted appellant of two specifications of rape, one specification of sexual assault, and one specification of communica ting a threat. The panel sentenced appellant to a bad-conduct discha rge, confinement for six months, and to be reduced to the grade of E-1. The convenin g authority approved the sentence as adjudged and one day of confinement credit.

Appellant’s case is now be fore us for review pursua nt to Article 66, UCMJ. Appellant raises two assignments of erro r, both of which me rit discussion, but
neither of which merits relief. Appellant personally raises two issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), neither of which merits
discussion or relief.DAVIS—ARMY 20130996

2 BACKGROUND

Appellant and Private First Class ( PFC) BJH were friends, having gone through basic training and advanced indivi dual 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 ap pellant 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 wh ich 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 ca r in a deserted area an d forcibly raped her. 1 Approximately two weeks late r, after finishing morning physical trai ning, PFC BJH ran into appellant and decide d to confront him about th e prior alleged assault. Appellant asked to speak to her and to go up to her ba rracks 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 he r room door open.

Private First Class BJH pr ovided the on ly 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 th e 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 th e room door had been closed and appellan t was walking towards her. Appellant stat ed, “You don’t need to put those pants o n,” picked up PFC BJH, and then dropped her onto her bed. While pinning her ar ms, appellant retrieved a dildo from BJH’s nightstand a nd 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, appell ant stopped assaul ting her with the dildo, got up, and threatened to rape her with an empt y wine bottle if sh e did not “do him.” 2 The encounter eventually ended wh en PFC BJH was able to text her girl friend, Specialist (SPC) BH, for help and ap pellant 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 barrac ks room and heard what had happened, SPC BH decided to confront ap pellant. Specialist BH ca lled appellant and found out
he was in his barracks room in the same building. Bo th women went to his room.

1 Appellant was acquitted of the charges stemming from this allegation.

2 This allegation formed the basis of th e threat charge of which appellant was subsequently acquitted.DAVIS—ARMY 20130996

3 As the testimony addressi ng the encounter betwee n 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 knoc ked on [appellant’s] door. And I was standing o ff to the side when [SPC BH] was in the middle of the doorway, sh e was 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 exact ly what I said, but I was basically was like, “How are you going to lie? It just happened?” And that’s when ever [appellant] said, “I thought she was joking until I sa w 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 th e assault], what did you do?

A: I instantly pu lled my phone out, ca lled 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 stai rs 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 c onfrontation happened.

A: I opened the door and I bl atantly said, “What the fuck did you do to her?” And he wa s like, “I don’t know what you are talking about.” And I wa s like, “Bullshit. She is crying. She is telling me that some thing happened.” And he was like, “Oh, I thought it was a joke. I didn’t think

3 In his first assignm ent of error, ap pellant alleges “The military judge erred in failing to sua sponte instruct the panel members of a special affirmative defense of mistake of fact reasonably raised by the evidence and th is error was not harmless beyond a reas onable doubt.”DAVIS—ARMY 20130996

4 she was being serious. And I didn’t realize it until she started crying.”

In addition to the test imony of PFC BJH and SPC BH, the government also introduced pictures of br uises on PFC BJH’s arms ta ken immediately after the
assault and evidence that there was male DNA at the base of the dildo consistent with the DNA prof ile of appellant. 4

In defense, appellant offered testim ony that PFC BJH wa s not a truthful person and expert testimony th at the age of the bruises depicted in the photographs was inconsistent with the timeline proffere d by PFC BJH. The de fense also admitted some evidence of a stormy romantic relationship between SPC BH and PFC BJH and argued that the panel could infer that th e bruises were the re sult of a domestic battery. 5

In rebuttal, the gover nment offered expert testimony attacki ng the validity of the defense expert’s ability to date brui ses based on a photogr aph. Additionally, the government offered additional eyewitness testimony on the appearance of the bruises immediately after the assault.

The government did not offe r physical evidence or expert testim ony regarding
the offenses for which appellant was acquitted.

DISCUSSION

A. Instructions

As noted, in his first as signment of error, appellan t argues the mi litary judge
failed to sua sponte instruct the panel members on th e defense of mistake of fact. Appellant argues that his statement after be ing confronted with an allegation of rape of “I thought she was joking until I saw he r crying” reasonably raised a mistake of
fact as to cons ent defense.

A military judge has an affirmative du ty to instruct on special defenses reasonably raised by the evidence. Rule for Courts-Martial [hereinafter R.C.M.] 920(e)(3). “The test for determining whet her an affirmative defense of mistake of
fact has been raised is whet her the record cont ains some evidence of an honest and

4 The government’s DNA expe rt testified that as a result of the partial Y-STR profiles obtained, she would expect to see this profile one in 2,016 Caucasian individuals, one in 685 Black individuals, and one in 917 Hispan ic individuals.

5 At the time of the assaul t, SPC BH described PFC BJH as her girlfriend. By the time of trial, SPC BH and PFC BJH ha d entered into a domestic partnership.DAVIS—ARMY 20130996

5 reasonable mistake to which the members coul d have attached cred it if they had so
desired.” United States v. Hibbard , 58 M.J. 71, 75 (C.A.A.F . 2003). Pu t differently,
an instruction on a defense is not required if no reasonable panel member could find the defense applicable. United States v. Schumacher , 70 M.J. 387, 389-90 (C.A.A.F. 2011) (stating that th e test is similar to the te st for legal sufficiency).

When a defense has more than one elemen t, in order for that defense to be reasonably raised by the evidence there must be some evidence as to each 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 3 89-90 (emphasis added).

Thus, in order to put the de fense 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 hon estly believed that BJH was consenting to the insertion of the dildo into her vagina; and 2) some eviden ce to which the member s could reasonably
attach credit that such a belief was reasonable.

An accused is not required to testify in order to es tablish 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 ca n come from evidence presented by the defense, the prosecution, or the court-martial. Id. (citing R.C.M. 91 6(b) discussion). However, the “defense theory at trial and th e nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is
entitled to a mistake of fact instruction.” Hibbard , 58 M.J. at 73; see also United States v. DiPaola, 67 M.J. 98, 100 (C.A.A.F. 2008).

1. Standard of Review

The law governing the standard of review in this case ca n be difficult to determine with precision. Co urts have at times vacillated on whethe r 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 reason s discussed below, we determine that appellant forfeited the inst ructional issue and w ill therefore review the case for plain error.

We start our analysis with the promulga tion of the rules fo r court-ma rtial in
the 1984 Manual for Courts-Martial, United States (1984 ed.) [hereinafter MCM

, 1984]. Rule for Courts-Marti al 920(f) states that “[f]ailure to object to an
instruction or to an omission of an instruct ion before the members close to deliberateDAVIS—ARMY 20130996

6 constitutes [forfeiture] 6 of the objection in the absence of plain error.” The drafter’s analysis to R.C.M. 920(f) indicates a specifi c intent to adopt the federal practice in
this area. See MCM, 1984, R.C.M. 920(f) Anal ysis at A21-61 (stating that the rule is
based on Federal Rule of Criminal Procedur e (Fed. R. Crim. P.) 30 ). Notably, such
a rule is in accordance with the mandate of Article 36, UCMJ, th at the President may prescribe rules which shall, as far as pr acticable, “apply the principles of law generally recognized in the trial of criminal cases in the United Stat es district
courts.”

The first case to address this issue was Taylor , 26 M.J. 127. In Taylor , the Court of Military Appeals re jected the language in R.C. M. 920(f) that placed the burden on the parties to obj ect to an instruction and in stead determined that there was no requirement for the defe nse to request a mistake of fact instruction in a rape
case. The Taylor court even specifically rejected the drafter’s analysis indicating an
intent to follow Fed. R. Crim. P. 30. Id. at 128. Instead, the court in Taylor noted that “from its earliest days, this Court has rested the duty to instruct on affirmative defenses primarily on Articl e 51(c) of the Uniform Code, 10 U.S.C. § 851(c), rather than on Manual provisions.” 7 Id. at 129.

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

6 Rule for Courts-Martial 920(f) continues to use the word “waiver.” For consistency, and in fidelity to the analytical construct set forth by our superior court,
we will use the correct term of “forfeiture.” United States v. Gladue , 67 M.J. 311, 313 (C.A.A.F. 2009) (“Whereas fo rfeiture is the failure to make the timely assertion of a right, waiver is th e ‘intentional relinquishment or abandonment of a known right.’ The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plai n error. When, on the other hand, an appellant intentionally waives a k nown right at trial, it is extinguished and may not be raised on appeal.”) (inter nal citations and quo tations omitted).

7 The Taylor court’s interpretation of Article 51(c), UCMJ, may be subject to
reconsideration. While Articl e 51(c) of the 1950 UCMJ, did require instructions on elements, it was silent with respect to instru ctions on defenses, th e issue in both this
case and in Taylor. Additionally, as military judg es were not adde d to the code until 1969, Article 51(c) was di rected at “the law officer of a general co urt-martial”
and “the President of a special court-martial.” Id. The Taylor court did not address
this evolution when inte rpreting Article 51(c).

8 Currently, in accordance with R.C.M. 92 0, “required instructions” include those describing the elements of th e charged offenses, the elemen ts of each lesser-included offense in issue, and any special defense in issue.DAVIS—ARMY 20130996

7 However, almost immediately, Taylor was called into question. United States v. Eckhoff , 27 M.J. 142, 144 (C.M.A . 1988) (finding forfeitu re when th e defense failed to object to the mi litary 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 instructio n constitutes forfeiture, albeit there may be a case where a judge’s fail ure to give such an instruction would be plain error); United States v. Gomez , 46 M.J. 241, 247 (C.A.A.F. 1997) (testing fo r plain error when appellant failed to object to ma ndatory 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 obje ct 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 inst ructions on the el ements of conspira cy 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 deliberati ons [forfeits] the objection in the absence of plain error.”).

This approach is consistent with our superior court’s approach when reviewing other unpreserved errors, even er rors of a “constitut ional” dimension. See United States v. Pope , 69 M.J. 328, 334 (C.A.A.F. 2011) (“Wh ether there has been improper reference to an accused’s invocation of her constitutional right to remain silent—in testimony or argumen t—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 stre ss here that a de novo review and plai n 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 le sser 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 th at 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 su perior court found error, but after testing for plain error, uph eld 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) (reviewin g for plain error when th ere 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 o ffense is a lesser-included offense is a question of
law we review de novo . As there was no ob jection to the instruction at trial, we review for plain error”) (internal ci tation and quotati on marks omitted).DAVIS—ARMY 20130996

8 Finally, and we find conclusively, in United States v. Payne , the C.A.A.F. determined that appellant’s failure to pr operly object to or request a mandatory
instruction forfeited the error. 73 M.J. 19, 23 (C.A .A.F. 2014). The Payne court specifically adopted the drafter’s analysis to R.C.M. 920(f), in direct contrast to the Court of Military A ppeals’ analysis in Taylor over twenty-five years earlier. Id

.

Thus, the overwhelming preced ent adopts the forfeiture provisions in R.C.M. 920(f), with only oc casional precedent to the contrary. See e.g. United States v.

Davis , 53 M.J. 202, 205 (C.A.A .F. 2000) (“[T]he waiver rule in [R.C.M.] 920(f) applies only to the instruct ions listed in [R.C.M.] 920(e )(7), but does not apply to required instructions such as those on reas onable doubt, elemen ts of the offenses, and affirmative defenses.”) (citing Taylor 26 M.J. at 128) (inter nal quotation marks omitted); United States v. Stanley , 71 M.J. 60, 63 (C.A.A .F. 2012) (“[forfeiture] does not apply to required in structions such as . . . a ffirmative defenses”) (citing

Davis , 53 M.J. at 205) (internal quotation marks omitted).

We therefore hold that the failure of th e defense to request or object to an instruction on a defense forfeits the issue, abse nt plain error. This is consistent with the majority and more rece nt decisions of our superi or court, adheres to the requirements of R.C. M. 920(f), and is generally consistent with the practice in
federal civilian courts. 9

9 As the first circuit stated in United States v. Gonzalez :

The scope of our re view is shaped by whether petitioner properly raised and preser ved an objection to the
instructions at trial. We review a proper ly preserved objection to the form and wording of an instruction given by the district court for abus e of discretion. While we
would review de novo a claim that an instruction embodied an error of law, we also review for abuse of
discretion whether the instructi ons adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues . A trial court’s refusal to give a particular instruction is reversible erro r only in the relatively rare case in which the reques ted instruction was (1) substantively correct; (2) not substantially covered elsewhere in the charge; and (3) concerned a sufficiently important point that the fail ure to give it seriously impaired the defendant’s ab ility to present his or her
defense.

(continued...)DAVIS—ARMY 20130996

9 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 de fense request, surv ives intact. United States v.
MacDonald , 73 M.J. 426, 434 (C.A .A.F. 2014) (“If an a ffirmative 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 “cons ider overruling” Taylor and instead “require that an accused mu st request instructio ns on affirmative
defenses

. ” Read thusly, a special defense w ould be “in issue” under R.C.M. 920(e)(3) when it is requested by the defense and is raised by some evidence. If in issue, a military judge would continue to be re quired to instruct on a defense, and the mandatory instruction requirement in R. C.M. 920(e) would be reconciled with the forfeiture provisions in R.C.M. 920(f) calling fo r plain error review for unpreserved objections. Howeve r, our superior court has never explicitly adopted the view suggested by Brown , 43 M.J. at 190 n .3, and we decline to do so today.

Accordingly, for mandatory instructi ons under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defe nses raised by some
evidence. For non-mandator y instructions under R.C.M 920(e)(7) a military judge possesses substantia l discretion in deciding wh at instructions to give. United States
v. Damatta-Olivera , 37 M.J. 474, 478 (C.M.A. 1993 ). While a military judge “has
wide discretion” as to the “form” of the instruction, United States v. Behenna , 71 M.J. 228, 232 (C.A.A.F . 2012), whether an instruction is a corr ect statement of the
law is reviewed de novo. United States v. Ivey , 53 M.J. 685 699 (Army Ct. Crim. App. 2000) aff'd on other grounds, 55 M.J. 251 (C.A.A.F. 2 001). Nevertheless, in the case of any unpreserved er ror, the failure to request or object to an instruction on
a defense forfeits the matte r, absent plain error.

2. Analysis

On appeal, appellant argues the statement “that he ‘t hought it was a joke’ and did not think PFC [BJH] was ‘s erious . . . until she started crying’” warrants the
mistake of fact instruction.

(...continued) If, however, a defendant fails to preserve his objection to jury instructions, we review only for plain error.

570 F.3d 16, 21 (1st Cir. 2009) (emphasis added) (int ernal citations and quotation marks omitted).DAVIS—ARMY 20130996

10 Under appellate defense counsel’ s view, the phra se “I thought it was a joke” (emphasis added), uttered by appellant to SPC BH, was a refe rence to PFC BJH’s conduct during the alleged assault—presumably that a ppellant thought her repeated statement of “no” was a joke . The problem with this vi ew is that there is no evidence in the record that during the co nfrontation in appell ant’s doorway, SPC BH
or PFC BJH discussed the de tails of the assault allega tions with appellant. Appellant also appears to argu e 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 u nderstanding to a degree as PFC BJH testified that appellant stopped raping her with the dildo wh en she began to cry. 10 Notably, however, the defense co unsel at trial did no t share this un derstanding as they did not pursue a mistake of fact defe nse nor argue th at 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 interaction as follows: After the door to appellant’s barracks r oom was opened, SPC BH conf ronted appellant with an expletive-laden demand for an explanation as to what happ ened. Appellant responds with a denial, claiming that he doesn’t know what SPC BH is talking about. During the initial part of the enc ounter, PFC BJH was off to th e side but then moved into view “where he could see me.” Specialist BH responded to ap pellant’s denial by stating “Bullshit. She is cr ying.” Appellant th en 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 cryin g.” The natural and clearly more likely meaning of appellant’s last statement is a commentary on the situatio n that had just unfold ed in front of him at his doorway: 1) he was confronted with an accusa tion; 2) he stated that the accusation was a joke; and 3) he realized the accusati on was not a jo ke when PFC BJH stepped into view and SPC BH drew hi s attention to the fa ct that PFC BJH was crying.

The plain error exception should “b e used sparingly, solely in those circumstances in which a miscarriage of justice would ot herwise result.” United

10 We note without cons idering that PFC BJH’ s further tes timony that ap pellant then immediately threatened to ra pe PFC BJH with a wine bo ttle would be inconsistent with the view that appellant stopped assaul ting her with the dild o when he realized she was not consenting.

11 In closing, the trial defense counse l argued the meaning of the doorway confrontation as follows: “[PFC BJH] ge ts her girlfriend and she goes up to the room of a man that just a ttacked her. And what does PFC [BJH] and SPC [BH]’s testimony say about that conv ersation? It gives us [nothing] other than a vague statement completely devoided cont act [sic] [devoid of context].”DAVIS—ARMY 20130996

11 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 ge nerally not inclined to reve rse a case wher e additional instructions are belatedly proposed by the defense for the first time on 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 pl ain error, the error must not only be both ob vious and substantial, it must also have ‘had an unfair prejudicial impact on the jury’s de liberations.’” United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986); Eckhoff , 27 M.J. 142 (C.M.A. 1988); United States v. Ruiz, 54 M.J. 138 (C.A.A.F. 2000); Cousins , 35 M.J. at 75.

Given the uncertainty in the meaning of the conversation, we find that even if appellate defense counsel’s current interp retation of the doorway confrontation is correct, such an interpre tation was not obvio us. That is, ev en assuming the conversation had the meaning that appellant now argues, that meaning was not plain and obvious, and theref ore any error di d not amount to plain error.

Moreover, even assuming the statemen t “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 woul d only be satisfying one element of the defense.

The only testimonial evidence concerning the assa ult was that of PFC BJH. According to her tes timony 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 coul dn’t pull them up, and prev ented her from buckling her belt. Appellant then “picked me up[,] he walked me over to th e bed and he dropped me down.” After obtaining the dildo from her ni ghtstand, appellan t 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-ex amination, the testimony was
even less indicative of consent. Priv ate First Class BJH testified that she was yelling and screaming for appellant to st op. In short, there was no evidence
whatsoever which would allow the panel to find appellant made a reasonable mistake

as to consent.

12 Appellant mistakenly argues to this court that based on his mistaken belief alone, the military judge was required to give the mistake of fact inst ruction. This is a correct statement of law only when the accused’s mistake is to an element that involves premeditation, specifi c intent, willfulness, or knowledge of a particular fact. R.C.M. 916(j)(1).DAVIS—ARMY 20130996

12 Additionally, we note the entire defense case was dire cted 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 th ere were no fingerpr ints show ing that appellant had been in PFC BJH’s room. Consistent wi th their opening, and the
defense’s careful cross-ex amination of the governmen t’s DNA expert, the defense argued in closing that und er the DNA test performed, there were thousands or millions of person s in the world who may have contributed the DNA that the government asserted belonged to appellant. With regard s to the sing le sperm found on PFC BJH’s fatigue pants, th e 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 message s or a false accusation af ter 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 th at the evidence poss ibly supporting a mistake of fact instruction was limited to one confusing hallway confrontation of questionable meaning and that such an in struction would have been contrary to the defense’s theory of the case, any er ror had no impact on the deli berations of the panel.

We note that appellant asse rts that the error has “c onstitutional im plications”
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 (1 967)). We disagree.

To find instructional error of a constitu tional dimension, ou r court would have
to find “‘a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)); United States v. Barnes , 74 M.J. 692, 698 (Army Ct. Crim. App. 2015), review denied , 74 M.J. __, 2015 CAAF LEXIS 641 (C.A.A.F . 28 Jul. 2015).

Even assuming error in this case, we do not see it to be of a constitutional
dimension. The absence of a mistake of fact inst ruction did not pr event 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 cons titutional issue is at play in this case.

We note that, on occasion, a court may test to see th at any error was harmless beyond a reasonable doubt as it subsumes a plain erro r analysis. Fo r instance, in
United States v. Davis , our superior court noted:DAVIS—ARMY 20130996

13 The granted issue discussed th e 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 re view should apply. Therefore, as neither pa rty 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 do ubt 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 see if any error was harmless beyond a
reasonable dou bt, we would so find.

B. Factual Sufficiency

In his second assigned error, appellant asks us to set aside his conviction as factually insufficient. See Article 66(c). Specifica lly, appellant claims the
conviction cannot stand becaus e of the incredulous nature of PFC BGH’s testimony.

Article 66(c), UCMJ , provides that this court ma y “weigh the evidence, judge the credibility of witnesses, and determine controve rted questions of fact.” When exercising this authorit y, this court does not give de ference to the decisions of the trial court (such as a finding of guilty). United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) (A cour t of criminal appeals gi ves “no deference to the
decision of the trial court” except for the “admonition . . . to take into account the
fact that the trial court saw and heard the witnesses”). The evidence against appellant came both from the emotion-laden testimony of PFC BJH as well as scientific testimony by profes sional and expert witnesses. We note that the degree to which we “recognize” or gi ve deference to the trial cour t’s ability to see and hear
the witnesses will ofte n depend on the degree to which the credibility of the witness
is at issue.

In this case, we find the testimony of PFC BJH as to the offense in question to
be credible. While trial de fense counsel did vi gorously attack th e 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 theDAVIS—ARMY 20130996

14 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 th e sentence are AFFIRMED.

Chief Judge WILSON, Chief Judge GL ANVILLE, Senior Judge MULLIGAN, Senior Judge HAIGHT, Judge HERRING, Judge CELTNIEKS, and Judge BURTON

concur.

PENLAND, Judge, with whom Senior Ju dge TOZZI and Judg e CAMPANELLA join, concurring in part and concurring in the result:

I concur with the majority opinion, includi ng its conclusion th at the correct
standards of review in this case are de novo and plain error. However, I disagree with a significant portion of the majority’s supporting analysis re garding 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). Article 51 of the UCMJ requires a military judge to instru ct a panel on, inter alia , any defenses which the evidence reasonably raises. United States v. Taylor , 26 M.J. 127, 129 (C.M.A. 1988). “Where ther e is no waiver, and in the absence of an objection, we test the instructions provided by the mil itary judge for plain er ror based on the law at the time of appeal.” United States v. Girouard , 70 M.J. 5, 11 (C.A.A.F. 2011) (citing United States v. Harcrow , 66 M.J. 154, 159 (C.A.A.F. 2 008)). These principles describe the correct appellate perspective to review this instructional dispute; in other words, fo rfeiture is not a prerequisi te to plain error review.

Considering Taylor and the considerable line of cases following it, I must therefore depart from the majority’s holdin g that an appellant may forfeit such an instruction by not requesting it or objectin g to its omission. No case cited in the majority’s opinion so holds. Assuming arguendo that a discussion of forfeiture is required, we shou ld hold that an appella nt does not forfeit the benefit of this instruction by failing to reques t it or failing to object to a list of instructions which
omits it. To hold otherwise contravenes stare decisis and deprives this statutory

13 Appellant points us to PFC BJH’s opin ion that she doesn’t drink a lot being contradicted by contrary te stimony and the photo of her r oom which includes a case
of beer and a wine bottle.DAVIS—ARMY 20130996

15 right of its sua sponte 14 nature which our su perior court has em phasized 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
63 15 ; 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 a ll, I agree with the ultimate standards of review here—I hasten to emphasize the reason for my concern re garding the expansi on of forfeiture. With today’s opinion, the majority reduces a trial judge’s burden to correctly
instruct a fact finder on fundamental matte rs of law applicable to a case. This development increases the ri sk of unrelia ble results.

Notwithstanding our di vergence of opinion regardi ng forfeiture, I fully agree with the majority’s c onclusion that appellant was not entitled to the in struction 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 reasonab le mistake to which the
members could have attached cred it 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.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

14 Sua sponte – “Of his or its own will or motion; voluntarily; without prompting or suggestion.” Black’s Law Dictionary 1277 (5th ed. 1979).

15 According to Stanley , “waiver does not ap ply to ‘“required inst ructions’ such as . . . affirmative defenses[.]’” Stanley , 71 M.J. 63 (quoting Davis , 53 M.J. at 205 (quoting Taylor , 26 M.J. at 128)). It follows that forfeiture is similarly inapplicable.

But see Payne , 73 M.J. at 23, “treat[ing] as wa ived” an instructional error where defense counsel “refus[ed] to assist the military judg e in correcting any alleged
instructional error at the trial level.” MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: