        UNITED STATES COURT OF APPEALS
                 FOR THE   ARMED FORCES
                       _______________

                     UNITED STATES
                         Appellee
                              v.
            Jeffry A. FELICIANO Jr., Private
              United States Army, Appellant
                         No. 17-0035
                   Crim. App. No. 20140766
       Argued February 28, 2017—Decided May 17, 2017
   Military Judges: Andrew J. Glass and Samuel A. Schubert
   For Appellant: Captain Michael A. Gold (argued); Lieuten-
   ant Colonel Melissa R. Covolesky and Captain Katherine L.
   DePaul (on brief); Major Andres Vazquez Jr. and Captain
   Scott A. Martin.
   For Appellee: Major Anne C. Hsieh (argued); Colonel Mark
   H. Sydenham, Lieutenant Colonel A. G. Courie III, and
   Captain Cassandra M. Resposo (on brief).
   Judge STUCKY delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges RYAN,
   OHLSON, and SPARKS, joined.
                    _______________

   Judge STUCKY delivered the opinion of the Court.

   Challenging his twin convictions for attempted sexual
assault, Appellant alleges two instructional errors. First, he
argues that the military judge inappropriately failed to in-
struct panel members on the voluntary abandonment de-
fense. Second, Appellant contends that the military judge
misstated the parameters of the mistake of fact as to consent
defense in his instructions to members. We conclude that
the military judge did not err by not instructing members on
voluntary abandonment, since there was no evidence sup-
porting this affirmative defense. As for the mistake of fact
instruction, consent was not raised at any point in the rec-
ord, and therefore any possible error in the military judge’s
instructions on this defense is harmless. Accordingly, we af-
           United States v. Feliciano, No. 17-0035/AR
                     Opinion of the Court

firm the judgment of the United States Army Court of Crim-
inal Appeals.
                        I. Background

    On the night in question, Appellant, Specialist (SPC) RS,
and Private (PV2) KF (the alleged victim) went out drinking.
When they were done, SPC RS drove all three back to the
barracks. On the way, they were pulled over by a police of-
ficer who administered a breathalyzer test to SPC RS, which
he barely passed. Upon determining that SPC RS was the
most sober of the three, the officer released the group. They
then completed their drive back to the barracks.
    Upon returning, Appellant and PV2 KF continued drink-
ing. Eventually, the trio climbed into Appellant’s bed to
sleep. Later in the evening, SPC RS left the bed to sleep in a
chair nearby. He testified that PV2 KF “was pretty groggy
and passed out at the time.” At some point afterward, SPC
RS woke up and saw Appellant “on top of [PV2 KF], kissing
on her neck, and starting to pull his britches down.” PV2
KF’s pants were “[a]bout around her knees,” whereas she
had been fully clothed when SPC RS had gotten out of the
bed. In addition, SPC RS heard PV2 KF saying, “No. No, no,
no.” SPC RS then intervened, getting Appellant’s attention
and telling him:
      that ain’t right. I told [Appellant] that what he was
      doing was rape …. [T]hat if he continued along that
      they would definitely get him for rape, and that will
      be 25 to life and that people would probably also
      rape him in jail.
 Appellant responded by saying, “You know what? You’re
right.” Appellant then “got up off of [PV2 KF]” and walked
with SPC RS “into the common area and continued [their]
conversation.”
    In relevant part, Appellant was charged with two specifi-
cations of attempted aggravated sexual assault under Arti-
cle 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 880 (2012). In an Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2012), hearing prior to the issuance of panel instructions,
the military judge informed counsel of the instructions he
intended to give. They included no mention of the defense of
voluntary abandonment. The military judge did list “consent


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           United States v. Feliciano, No. 17-0035/AR
                     Opinion of the Court

as to mistake of fact,” but offered no further detail. When
asked by the military judge if he had “any additional re-
quests,” defense counsel replied, “No, [y]our honor.” When
the military judge addressed the panel members, he stated
that “[m]istake of fact as to consent is a defense to th[e]
charged [attempted aggravated sexual assault] offense[s],”
and outlined it in the following manner:
          “Mistake of fact as to consent” means the ac-
      cused held, as a result of ignorance or mistake, an
      incorrect belief that the other person engaging in
      the conduct consented. The ignorance or mistake
      must have existed in the mind of the accused, and
      must have been reasonable under all the circum-
      stances. To be reasonable the ignorance or mistake
      must have been based on information, or lack of it,
      that would indicate to a reasonable person that the
      other person consented. Additionally, the ignorance
      or mistake cannot be based on the negligent failure
      to discover the true facts.
The military judge gave no instruction on the defense of vol-
untary abandonment. Neither counsel objected to the in-
structions given.
    Appellant was convicted, contrary to his pleas, of the two
attempted sexual assault specifications. He was also con-
victed, in accordance with his pleas, of one specification each
of being disrespectful to a noncommissioned officer (NCO),
disobeying a NCO, and disorderly conduct under Articles 91
and 134, UCMJ, 10 U.S.C. § 891, 934 (2012), and two speci-
fications of using marijuana under Article 112a, UCMJ,
10 U.S.C. § 912a (2012). Appellant was sentenced to a bad-
conduct discharge, confinement for one year, forfeiture of all
pay and allowances, and reduction to the lowest enlisted
grade. The findings and sentence were approved by the con-
vening authority as adjudged.
    In its opinion on appeal, the United States Army Court of
Criminal Appeals addressed the issues of legal and factual
sufficiency, unreasonable multiplication of charges, and the
appropriateness of the military judge’s sentencing instruc-
tions. United States v. Feliciano, No. ARMY, 20140766, 2016
CCA LEXIS 512, 2016 WL 4446558 (A. Ct. Crim. App. Aug.
22, 2016). One of the attempted aggravated sexual assault
specifications was conditionally dismissed on grounds of un-


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            United States v. Feliciano, No. 17-0035/AR
                      Opinion of the Court

reasonable multiplication of charges, contingent on the other
specification “surviving the ‘final judgment’ as to the legality
of the proceedings.” Id. at *10, 2016 WL 4446558, at *4; see
Article 71(c)(1), UCMJ, 10 U.S.C. § 871(c)(1) (2012). Appel-
lant did not raise the issues before us with the CCA, and the
lower court did not address them. Feliciano, 2016 CCA
LEXIS 512, 2016 WL 4446558.
                          II. Discussion

                   A. Voluntary Abandonment
    “[V]oluntary abandonment is a defense to the crime of at-
tempt.” United States v. Byrd, 24 M.J. 286, 290 (C.M.A.
1987). Appellant did not object at trial to the military judge’s
failure to instruct panel members on the affirmative defense
of voluntary abandonment.1 See id. (holding that voluntary
abandonment is a defense to charges of attempted criminal

1 Defining and differentiating the terms “affirmative defense” and
“special defense” under military law has proven troublesome over
the years. Under Rule for Courts-Martial (R.C.M.) 916(a), the
term “‘defenses’ includes any special defense,” and “[s]pecial de-
fenses are also called ‘affirmative defenses.’” R.C.M. 916(a) Dis-
cussion. The modifiers “special” and “affirmative” appear to add
nothing to the term “defense” as used in the rule. The varying
burdens of proof ascribed to the listed defenses, however, add an
aspect of difference between them: “Except as listed below in par-
agraphs (2), (3), and (4), the prosecution shall have the burden of
proving beyond a reasonable doubt that the defense did not exist.”
R.C.M. 916(b)(1). By default, therefore, the prosecution bears the
burden of having to disprove a defense raised at trial. But for the
three defenses singled out, the defense bears the burden of initial-
ly proving the defense “by a preponderance of the evidence,” and
only after that burden is met must the prosecution prove “beyond
a reasonable doubt that the defense did not exist.” R.C.M.
916(b)(2); R.C.M. 916(b)(3); R.C.M. 916(b)(4). This aligns with the
definition of an “affirmative defense” found in Black’s Law Dic-
tionary 509 (10th ed. 2014): “The defendant bears the burden of
proving an affirmative defense.” Thus, the three defenses under
R.C.M. 916 for which the defense bears the initial burden of proof
should be appropriately referred to as affirmative defenses, and
every other defense under the rule is a special defense that, if
raised at trial, the defense need not initially prove in order for the
burden of proof to be placed on the prosecution. The defense at
issue in this case is that of reasonable mistake of fact as to con-
sent with regard to the sexual conduct that took place, and this is
an affirmative defense. R.C.M. 916(b)(4).



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            United States v. Feliciano, No. 17-0035/AR
                      Opinion of the Court

conduct). Accordingly, this issue was forfeited and we review
for plain error.2 United States v. Davis, __ M.J. __, __ (7–8
(C.A.A.F. 2017); R.C.M. 920(f). “Under this Court’s plain er-
ror jurisprudence, Appellant has the burden of establishing
(1) error that is (2) clear or obvious and (3) results in mate-
rial prejudice to his substantial rights.” United States v.
Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citing United States
v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)). “[T]he failure to
establish any one of the prongs is fatal to a plain error
claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.
2006).
    We must first determine whether the military judge
erred by not instructing panel members on the defense of
voluntary abandonment. A military judge must give such an
instruction if, with regard to an affirmative defense, “there
is some evidence in the record, without regard to credibility,
that the members could rely upon if they choose.” United
States v. Behenna, 71 M.J. 228, 234 (C.A.A.F. 2012) (citing
United States v. Schumacher, 70 M.J. 387, 389 (C.A.A.F.
2011)). “In other words, a military judge must instruct on a
defense when, viewing the evidence in the light most favora-
ble to the defense, a rational member could have found in
the favor of the accused in regard to that defense.” Id.



2 This Court and military law have historically had difficulty de-

fining the terms “waiver” and “forfeiture” consistently. Our find-
ings in United States v. Gladue, however, provide clarity in this
matter:
       Waiver is different from forfeiture. Whereas forfei-
       ture is the failure to make the timely assertion of a
       right, waiver is the intentional relinquishment or
       abandonment of a known right. The distinction be-
       tween the terms is important. If an appellant has
       forfeited a right by failing to raise it at trial, we re-
       view 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.
67 M.J. 311, 313 (C.A.A.F. 2009) (internal quotation marks omit-
ted) (citations omitted).




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           United States v. Feliciano, No. 17-0035/AR
                     Opinion of the Court

   The defense of voluntary abandonment is defined as fol-
lows in the Manual for Courts-Martial, United States
(MCM):
       It is a defense to an attempt offense that the person
       voluntarily and completely abandoned the intended
       crime, solely because of the person’s own sense that
       it was wrong, prior to the completion of the crime.
       The voluntary abandonment defense is not allowed
       if abandonment results, in whole or in part, from
       other reasons, for example, the person feared detec-
       tion or apprehension, decided to await a better op-
       portunity for success, was unable to complete the
       crime, or encountered unanticipated difficulties or
       unexpected resistance.
MCM pt. IV, ¶ 4.c.(4) (2012 ed.).
    Appellant ceased his actions on PV2 KF only after SPC
RS verbally interrupted him. It was only upon being re-
minded that what he was about to do was illegal and that he
would suffer serious consequences if he followed through
with it that he stopped. To get the benefit of the voluntary
abandonment instruction, Appellant had to show some evi-
dence that he decided not to complete the sexual assault
solely because of his own sense that it was wrong. There is
no evidence that Appellant’s actions were motivated solely
by such a realization. Rather, it is conspicuous that Appel-
lant “feared detection or apprehension” as a result of SPC
RS’s statement and presence. Id. In other words, Appellant
only ceased acting against PV2 KF “‘because of unanticipat-
ed difficulties, unexpected resistance, or circumstances
which increase[d] the probability of detention or apprehen-
sion.’” State v. Mahoney, 870 P.2d 65, 71 (Mont. 1994) (quot-
ing People v. McNeal, 393 N.W.2d 907, 912 (Mich. Ct. App.
1986)). Under these circumstances, the absence of “some ev-
idence” of voluntary abandonment is apparent. There is
therefore no error to correct.
    In light of Appellant’s failure to establish the first prong
of the plain error test, we find that the military judge did
not commit plain error when he did not instruct members on
the voluntary abandonment defense.




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           United States v. Feliciano, No. 17-0035/AR
                     Opinion of the Court

              B. Mistake of Fact as to Consent
    Appellant next contends that the military judge erred
when he instructed panel members that any mistake of fact
on his part as to PV2 KF having consented to the sexual acts
in question must have been both honest and reasonable. Ap-
pellant argues that such a mistake must simply have been
honest.
    We do not reach the merits of Appellant’s argument. Ra-
ther, we find “that there was no evidence ‘whatsoever’ that
[A]ppellant believed that [PV2 KF] was consenting to sexual
[conduct] with him.” United States v. Jones, 49 M.J. 85, 91
(C.A.A.F. 1998). Appellant was very clearly attempting to
engage in sexual conduct with a substantially incapacitated
woman who was voicing her objections. Moreover, Appellant
only ceased his actions when confronted by SPC RS regard-
ing their serious repercussions. Finally, no witnesses attest-
ed to any evidence suggesting that PV2 KF was consenting,
nor did defense counsel make any mention of this theory in
his arguments.
    “Generally, a superfluous, exculpatory instruction that
does not shift the burden of proof is harmless, even if the in-
struction is otherwise erroneous.” Behenna, 71 M.J. at 234.
In this case, the military judge’s instruction on mistake of
fact as to consent was superfluous and did not shift the bur-
den of proof. Accordingly, even if Appellant is correct and
the instruction was erroneous, it is harmless beyond a rea-
sonable doubt.
                        III. Judgment

   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




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