UNITED STATES ARMY COURT 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 Theater Sustainment Command 

Reynold P. Masterton, Military Judge (arraignment & pretrial motions) 

David H. Robertson, Military Judge (pretrial motions & trial) 

Colonel Jonathan A. Kent, 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. Collins, JA; Major 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 pleas, of one specification of rape in violation of Article 

120, Uniform Code of Military 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 communicating a threat. The panel 

sentenced appellant to a bad-conduct discharge, confinement for six months, and to 

be reduced to the grade of E-1. The convening authority approved the sentence as 

adjudged and one day of confinement credit. 

Appellant’s case is now before us for review pursuant to Article 66, UCMJ. 

Appellant raises two assignments of error, both of which merit 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 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 about 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 

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. 

 

1

 Appellant was acquitted of the charges stemming from this allegation. 

2

 This allegation formed the basis of the threat charge of which appellant was 

subsequently acquitted. 
DAVIS—ARMY 20130996 

3

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 [appellant’s] door. 

And I was standing off to the side when [SPC BH] was in 

the middle of the doorway, she 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 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 

 

3

 In his first assignment of error, appellant 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 this error was not harmless 

beyond a reasonable doubt.” 
DAVIS—ARMY 20130996 

4

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, appellant 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 appearance 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 evidence. Rule for Courts-Martial [hereinafter R.C.M.] 

920(e)(3). “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 

 

4

 The government’s DNA expert 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 Hispanic individuals. 

5

 At the time of the assault, SPC BH described PFC BJH as her girlfriend. By the 

time of trial, SPC BH and PFC BJH had entered into a domestic partnership. 
DAVIS—ARMY 20130996 

5

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). Put 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 the test is similar to the test for legal sufficiency). 

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 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 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 R.C.M. 916(b) discussion). 

However, the “defense theory at trial and the 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 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]. Rule for Courts-Martial 920(f) states that “[f]ailure to object to an 

instruction or to an omission of an instruction before the members close to deliberate 
DAVIS—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 specific intent to adopt the federal practice in 

this area. See MCM, 1984, R.C.M. 920(f) Analysis at A21-61 (stating that the rule is 

based on Federal Rule of Criminal Procedure (Fed. R. Crim. P.) 30). Notably, such 

a rule is in accordance with the mandate of Article 36, UCMJ, that the President may 

prescribe rules which shall, as far as practicable, “apply the principles of law 

generally recognized in the trial of criminal cases in the United States district 

courts.” 

The first case to address this issue was Taylor, 26 M.J. 127. In Taylor, the 

Court of Military Appeals rejected the language in R.C.M. 920(f) that placed the 

burden on the parties to object to an instruction and instead determined that there 

was no requirement for the defense 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 Article 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 forfeiture is the failure to make the timely assertion 

of a right, waiver is the ‘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 plain error. When, on the other 

hand, an appellant intentionally waives a known right at trial, it is extinguished and 

may not be raised on appeal.”) (internal citations and quotations omitted). 

7

 The Taylor court’s interpretation of Article 51(c), UCMJ, may be subject to 

reconsideration. While Article 51(c) of the 1950 UCMJ, did require instructions on 

elements, it was silent with respect to instructions on defenses, the issue in both this 

case and in Taylor. Additionally, as military judges were not added to the code 

until 1969, Article 51(c) was directed at “the law officer of a general court-martial” 

and “the President of a special court-martial.” Id. The Taylor court did not address 

this evolution when interpreting Article 51(c). 

8

 Currently, in accordance with R.C.M. 920, “required instructions” include those 

describing the elements of the charged offenses, the elements 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 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 [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 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). 
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 properly 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 Appeals’ analysis in Taylor over twenty-five years earlier. Id. 

Thus, the overwhelming precedent adopts the forfeiture provisions in R.C.M. 

920(f), with only occasional 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 instructions listed in [R.C.M.] 920(e)(7), but does not apply to 

required instructions such as those on reasonable doubt, elements of the offenses, 

and affirmative defenses.”) (citing Taylor 26 M.J. at 128) (internal quotation marks 

omitted); United States v. Stanley, 71 M.J. 60, 63 (C.A.A.F. 2012) (“[forfeiture] 

does not apply to required instructions such as . . . affirmative defenses”) (citing 

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

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 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 review is shaped by whether petitioner 

properly raised and preserved an objection to the 

instructions at trial. We review a properly preserved 

objection to the form and wording of an instruction given 

by the district court for abuse 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 instructions 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 error only in the 

relatively rare case in which the requested instruction was 

(1) substantively correct; (2) not substantially covered 

elsewhere in the charge; and (3) concerned a sufficiently 

important point that the failure to give it seriously 

impaired the defendant’s ability 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 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 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 required 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 for plain error review for 

unpreserved objections. However, 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 instructions under R.C.M. 920(e)(1)-(3), a 

military judge retains the sua sponte duty to instruct on defenses raised by some 

evidence. For non-mandatory instructions under R.C.M 920(e)(7) a military judge 

possesses substantial discretion in deciding what 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 correct 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. 2001). Nevertheless, in 

the case of any unpreserved error, the failure to request or object to an instruction on 

a defense forfeits the matter, absent plain error. 

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 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) (internal citations and quotation 

marks omitted). 
DAVIS—ARMY 20130996 

10

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 interaction 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 

 

10 We note without considering that PFC BJH’s further testimony that appellant then 

immediately threatened to rape PFC BJH with a wine bottle would be inconsistent 

with the view that appellant stopped assaulting her with the dildo when he realized 

she was not consenting. 

11 In closing, the trial defense counsel argued the meaning of the doorway 

confrontation as follows: “[PFC BJH] gets her girlfriend and she goes up to the 

room of a man that just attacked her. And what does PFC [BJH] and SPC [BH]’s 

testimony say about that conversation? It gives us [nothing] other than a vague 

statement completely devoided contact [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 generally not inclined to reverse a case where 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 plain error, the 

error must not only be both obvious and substantial, it must also have ‘had an unfair 

prejudicial impact on the jury’s deliberations.’” 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 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 meaning 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. 

 

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 instruction. This is a 

correct statement of law only when the accused’s mistake is to an element that 

involves premeditation, specific 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 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 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 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: 
DAVIS—ARMY 20130996 

13

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 see 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 Article 66(c). Specifically, appellant claims the 

conviction cannot stand because of the incredulous nature of PFC BGH’s testimony. 

Article 66(c), UCMJ, provides that this court may “weigh the evidence, judge 

the credibility of witnesses, and determine controverted questions of fact.” When 

exercising this authority, this court does not give deference 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 court of criminal appeals gives “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 professional and expert witnesses. We note that the degree 

to which we “recognize” or give deference to the trial court’s ability to see and hear 

the witnesses will often 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 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 
DAVIS—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 the sentence are AFFIRMED. 

Chief Judge WILSON, Chief Judge GLANVILLE, Senior Judge MULLIGAN, 

Senior Judge HAIGHT, Judge HERRING, Judge CELTNIEKS, and Judge BURTON 

concur. 

PENLAND, Judge, with whom Senior Judge TOZZI and Judge CAMPANELLA join, 

concurring in part and concurring in the result: 

I concur with the majority opinion, including its conclusion that 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 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). Article 51 of 

the UCMJ requires a military judge to instruct 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 there is no waiver, and in the absence of an objection, we 

test the instructions provided by the military judge for plain error 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. 2008)). These 

principles describe the correct appellate perspective to review this instructional 

dispute; in other words, forfeiture is not a prerequisite to plain error review. 

Considering Taylor and the considerable line of cases 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 

 

13 Appellant points us to PFC BJH’s opinion that she doesn’t drink a lot being 

contradicted by contrary testimony and the photo of her room which includes a case 

of beer and a wine bottle. 
DAVIS—ARMY 20130996 

15

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 standards 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.

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 apply to ‘“required instructions’ 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 waived” an instructional error where 

defense counsel “refus[ed] to assist the military judge in correcting any alleged 

instructional error at the trial level.” 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: