                       UNITED STATES, Appellee

                                    v.

                  Adrian TORRES, Airman First Class
                      U.S. Air Force, Appellant

                              No. 14-0222

                         Crim. App. No. 37623

       United States Court of Appeals for the Armed Forces

                       Argued December 10, 2014

                         Decided May 12, 2015

OHLSON, J., delivered the opinion of the Court, in which BAKER,
C.J., and RYAN, J., joined. STUCKY, J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.

                                 Counsel

For Appellant:    Captain Christopher D. James (argued).

For Appellee: Captain Thomas J. Alford (argued); Colonel Don
Christensen and Gerald R. Bruce, Esq. (on brief).

Military Judge:   David S. Castro



       This opinion is subject to revision before final publication.
United States v. Torres, No. 14-0222/AF

     Judge OHLSON delivered the opinion of the Court.

     At a general court-martial composed of officer members,

Appellant was convicted contrary to his plea of one

specification of aggravated assault under Article 128, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 928 (2012). 1

Specifically, Appellant was found guilty of “commit[ting] an

assault . . . [on his wife] by choking her throat with his hands

with a force likely to produce death or grievous bodily harm.”

     At trial, the defense sought to show that Appellant

assaulted his wife while in an altered state of consciousness

following an epileptic seizure, and that Appellant’s conduct was

therefore involuntary.   The defense asked the military judge to

instruct the panel accordingly.   However, the military judge

declined to do so, and instead provided the panel an instruction

consistent with the affirmative defense of “lack of mental

responsibility” due to a severe mental disease or defect under

Rule for Courts-Martial (R.C.M.) 916(k)(1).

     We find that the military judge erred in the manner in

which he handled the instructions in this case.   However, based

on the weight of the evidence, we conclude that the military

judge’s error was harmless beyond a reasonable doubt.   We


1
  Appellant also was convicted contrary to his pleas of three
simple assault specifications for assaulting his wife on divers
occasions, but was acquitted of a fourth simple assault
specification. These specifications are not relevant to the
granted issue.

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United States v. Torres, No. 14-0222/AF

therefore affirm the decision of the United States Air Force

Court of Criminal Appeals.

                                FACTS

     The evidence adduced at trial showed that on May 12, 2008,

Appellant and his wife hosted a party at their on-base

residence.   During the course of the party, Appellant consumed

approximately eight to ten shots of alcohol.    At approximately

2:00 a.m. on May 13, 2008, Appellant and his wife went to bed

while some of their guests went to sleep elsewhere in the home.

Upon rising several hours later, Appellant’s wife discovered

Appellant partially clothed and curled up on the floor,

apparently asleep.    She shook Appellant and informed him that

she was driving some of their guests home.    Appellant did not

respond.

     Appellant’s wife returned to their home a short time later.

She again shook Appellant trying to rouse him, but again he did

not respond.   When she tried to lift Appellant to an upright

position, Appellant grabbed his wife, threw her on the bed,

squeezed her head, punched her, choked her, and hit her head

against the bed’s headboard.

     Appellant’s wife finally managed to escape by hitting

Appellant in the head with a bedside telephone base and running

out of the bedroom.    Appellant walked into the living room, and

asked a remaining guest what happened to his wife.    When the



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United States v. Torres, No. 14-0222/AF

guest exclaimed that Appellant had just severely beaten his

wife, Appellant went back into the bedroom and lay down.    When

military law enforcement officials arrived shortly thereafter,

Appellant did not respond until he was shaken vigorously,

whereupon he once again inquired about the location of his wife.

     At trial, Appellant sought to show that he had an epileptic

seizure on the morning of May 13, 2008, and that he thus was

experiencing an altered state of consciousness when he assaulted

his wife.   Appellant further asserted that this altered state of

consciousness rendered his actions involuntary, and argued that

the Government had therefore failed to prove that his conduct

“was done with unlawful force or violence” as required for

aggravated assault.   Manual for Courts-Martial, United States

pt. IV, para. 54.b.(4)(a)(iii) (2012 ed.) (MCM) (emphasis

added). 2



2
  Aggravated assault under Article 128(b)(4), UCMJ, contains the
following elements:

     (i) That the accused attempted to do, offered to do, or did
     bodily harm to a certain person;

     (ii) That the accused did so with a certain weapon, means,
     or force;

     (iii) That the attempt, offer, or bodily harm was done with
     unlawful force or violence; and

     (iv) That the weapon, means, or force was used in a manner
     likely to produce death or grievous bodily harm.

MCM pt. IV, para. 54.b.(4)(a).

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United States v. Torres, No. 14-0222/AF

     Consistent with this approach, trial defense counsel asked

the military judge to give the panel the following instruction:

     An accused may not be held criminally liable for his
     actions unless they are voluntary. . . .

          . . . .

          . . .[Therefore,] [u]nless, in light of all the
     evidence you are satisfied beyond a reasonable doubt
     that the accused, at the time of the alleged offense
     acted voluntarily, you must find the accused not
     guilty of that offense.

     The military judge, however, declined to give that

instruction.   Instead he instructed the panel:   “The evidence in

this case raises the issue of whether the accused lacked

criminal responsibility for the offenses . . . as a result of a

severe mental disease or defect.”    Consistent with this

affirmative defense, the military judge further instructed the

panel that if it concluded that the Government had proved all of

the elements of the offense beyond a reasonable doubt, the

burden then shifted to the defense to show by clear and

convincing evidence that the accused suffered from a severe

mental disease or defect, making him unable to appreciate the

nature and quality or wrongfulness of his conduct.    See R.C.M.

916(k)(1).

                             ANALYSIS

     The granted issue in the instant case is as follows:

“Whether the military judge erred by denying the defense

requested instruction.”   In deciding this issue, this Court must


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United States v. Torres, No. 14-0222/AF

first consider the appropriate manner for a military judge to

instruct a panel when the evidence reasonably raises the issue

of whether an accused cannot be held criminally liable because

his conduct was involuntary due to automatism. 3

     In analyzing the matter before us, it is helpful to start

from the principle articulated by the Supreme Court in

Morissette v. United States, 342 U.S. 246 (1952).   In that case,

the Supreme Court memorably stated that in order for an accused

to be held criminally responsible, the government must prove the

“concurrence of an evil-meaning mind with an evil-doing hand.”

Id. at 251.   Stated more prosaically, “[i]n the criminal law,

both a culpable mens rea and a criminal actus reus are generally

required for an offense to occur.”   United States v. Apfelbaum,

445 U.S. 115, 131 (1980).   Accordingly, an accused cannot be

held criminally liable in a case where the actus reus is absent

because the accused did not act voluntarily, or where mens rea

is absent because the accused did not possess the necessary

state of mind when he committed the involuntary act.


3
  “Automatism” is defined as “[a]ction or conduct occurring
without will, purpose, or reasoned intention,” “behavior carried
out in a state of unconsciousness or mental dissociation without
full awareness,” and “[t]he physical and mental state of a
person who, though capable of action, is not conscious of his or
her actions.” Black’s Law Dictionary 160 (10th ed. 2014).
“Automatism” is sometimes referred to as an “‘unconsciousness
defense.’” United States v. Axelson, 65 M.J. 501, 515 (A. Ct.
Crim. App. 2007) (quoting Eunice A. Eichelberger, Annotation,
Automatism or Unconsciousness as Defense to Criminal Charge, 27
A.L.R.4th 1067, § 2 (1984)).

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United States v. Torres, No. 14-0222/AF

     Neither the UCMJ nor this Court’s precedent has provided

definitive guidance regarding whether automatism should be

viewed as negating the mens rea or the actus reus of a charged

offense.   This Court’s predecessor indicated in dicta that the

mens rea approach may be the most appropriate.   United States v.

Olvera, 4 C.M.A. 134, 140-41, 15 C.M.R. 134, 140–41 (1954).

Similarly, in a per curiam opinion in United States v. Rooks, 29

M.J. 291, 292 (C.M.A. 1989), the Court noted that “seizures

attendant to epilepsy render an accused unable to form the mens

rea required for conviction.”

     Further, in United States v. Berri, 33 M.J. 337, 344

(C.M.A. 1991), the Court of Military Appeals stated that

“evidence that an accused was unconscious or did not realize

what he was doing, etc., might suggest that he did not or could

not intend the specific consequences of his actions.”    However,

the Court in Berri also noted that the common law and the Model

Penal Code treat automatism as negating the actus reus rather

than the mens rea of the accused.    Id. at 341 n.9.   Moreover, in

Berri -- the most recent case in which this Court addressed

automatism -- we stated:   “What the status of unconsciousness

might be under the Uniform Code of Military Justice, we do not

decide here.”   Id.

     Thus, as noted above, at the time of trial in the instant

case, the state of the law was not particularly clear in regard



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United States v. Torres, No. 14-0222/AF

to whether automatism should be viewed as potentially negating

an accused’s mens rea, or potentially negating the actus reus,

or both.   What was clear, however, was that neither epilepsy nor

automatism constituted a mental disease or defect and this Court

has never held that the affirmative defense of lack of mental

responsibility applies in these cases.    Indeed, we find it was

error for the military judge in the instant case to instruct the

panel in that manner.

     In reaching this conclusion, we first note that we review

de novo the instructions given by a military judge.    United

States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).    We next

underscore the fact that by instructing the panel pursuant to

the provisions of R.C.M. 916(k)(1), the military judge shifted

the burden of proof to the defense to show that the accused

suffered from a severe mental disease or defect, which made him

unable to appreciate the nature and quality or wrongfulness of

his conduct.   This the military judge could not do.   At trial

the burden always was required to rest with the Government to

prove beyond a reasonable doubt that Appellant had committed

each element of the offense, and one of those elements pertained

to the issue of whether Appellant’s actions were voluntary, and

hence, “unlawful.”   Article 128(a), UCMJ.   Thus, we find that

the instructions given by the military judge constituted error.

See Government of the Virgin Islands v. Smith, 278 F.2d 169, 173



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United States v. Torres, No. 14-0222/AF

(3d Cir. 1960) (finding error where trial judge placed burden on

defendant to prove unconsciousness from an epileptic seizure).

     Having found instructional error in the instant case, we

will assume -- without deciding -- that the military judge’s

failure to provide the defense-requested instruction similarly

constituted error.   We now turn to whether Appellant was

prejudiced by the instructional error.    In conducting this

harmlessness analysis, we examine whether it is “‘clear beyond a

reasonable doubt that a rational jury would have found the

defendant guilty absent the error.’”   McDonald, 57 M.J. at 20

(quoting Neder v. United States, 527 U.S. 1, 18 (1999)).       We

conclude that this standard has been met in the instant case for

the reasons cited below.

     First, the Government’s expert witness, a neurologist,

testified that:   (a) postictal 4 violence is rare among people who

have epilepsy; (b) those individuals who do engage in postictal

violence do it “every time,” but Appellant did not have a

history of postictal violence; (c) in those rare instances when

postictal violence does occur, it typically happens in the

“immediate postictal state” rather than twenty to thirty minutes

from the beginning of the postictal state as posited in the

instant case; and (d) Appellant’s version of events where he


4
  The defense expert had previously testified that the term
“ictal” refers to a seizure and “postictal” refers to the period
after a seizure.

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United States v. Torres, No. 14-0222/AF

engaged in postictal violence then got up, got dressed, talked

to a guest in his home, and then regressed into a “somnolent”

state again didn’t “add up” in the expert’s mind.

     Second, the second sanity board conducted in this case

found that Appellant was not “experiencing a postictal state

during the alleged assault” but rather was suffering from an

“alcohol-induced mood disorder and partner relationship

problems.”

     Third, the military judge granted the trial defense counsel

broad latitude to introduce evidence and to argue before the

panel that:   (a) Appellant’s choking of his wife was the direct

result of his altered state of consciousness brought on by an

epileptic seizure; (b) this altered state of consciousness

caused Appellant’s conduct to be involuntary; and (c) because

Appellant’s conduct was involuntary, Appellant could not be held

criminally responsible for the assault.

     Fourth, and arguably most damaging to Appellant, when the

defense’s own expert witness testified on cross-examination, he

agreed that it was “highly improbable” that Appellant assaulted

his wife due to the effects of being in a postictal state.

(Emphasis added.)   Thus, we hold that the military judge’s

instructional error in this case was harmless beyond a

reasonable doubt.




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United States v. Torres, No. 14-0222/AF

              PROPER INSTRUCTION IN AUTOMATISM CASES

     As noted above, in the military justice system, neither

epilepsy nor automatism has been held to be a mental disease or

defect.   Therefore, the affirmative defense of lack of mental

responsibility under R.C.M. 916(k)(1) is not applicable in those

instances.   However, the state of the law regarding the

appropriate way to instruct a panel in an automatism case has

been somewhat unsettled.   We now seek to remedy that situation

by holding as follows:   In cases where the issue of automatism

has been reasonably raised by the evidence, a military judge

should instruct the panel that automatism may serve to negate

the actus reus of a criminal offense.

     In reaching this conclusion, we note that this issue is not

squarely addressed under the MCM.      Under such circumstances,

this Court has historically looked to external guidance,

including the Model Penal Code, as a “‘source of decisional

guidance in military justice.’”    United States v. Hayes, 70 M.J.

454, 463 n.5 (C.A.A.F. 2012) (quoting United States v. Curtis,

32 M.J. 252, 267 (C.M.A. 1991)).

     Although the Model Penal Code does not specifically address

automatism, many of its tenets are useful in addressing

criminality in the context of involuntary behavior.     For

example, the Model Penal Code predicates criminal liability on

the essential requirement of a voluntary act.     Model Penal Code



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United States v. Torres, No. 14-0222/AF

§ 2.01(1) (1962).    (“A person is not guilty of an offense unless

his liability is based on conduct that includes a voluntary act

. . . .”).   And we especially note that the Model Penal Code

excludes from “voluntary acts” reflexes, convulsions, and

movements occurring during unconsciousness.    Id. at §

2.01(2)(a), (b).

     The approach taken by the Model Penal Code is consistent

with the common law, which required criminal acts to be

voluntary.   See Berri, 33 M.J. at 341 n.9.   Moreover, it is

consistent with this Court’s view that “[n]o societal interest

is furthered by criminalizing acts committed in the throes of a

seizure, where there is no control over one’s reflexes.”    Rooks,

29 M.J. at 292.     Therefore, we now adopt the actus reus approach

in automatism cases, and hold that in those cases where the

evidence reasonably raises the issue of automatism, military

judges must instruct panels accordingly.

                              CONCLUSION

     The military judge committed instructional error in this

case, but the error was harmless beyond a reasonable doubt.     We

therefore affirm the decision of the United States Air Force

Court of Criminal Appeals.




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United States v. Torres, No. 14-0222/AF


     STUCKY, Judge, with whom ERDMANN, Judge, joins

(dissenting):

     I concur with the majority’s holding that the military

judge erred when he refused to give the defense-requested

voluntariness instruction and instead gave the standard mental

responsibility instruction.   I disagree with the holding that

such error was harmless beyond a reasonable doubt.

     “‘The inquiry for determining whether constitutional error

is harmless beyond a reasonable doubt is whether, beyond a

reasonable doubt, the error did not contribute to the

defendant’s conviction or sentence.’”    United States v. Davis,

73 M.J. 268, 273 (C.A.A.F. 2014) (quoting United States v.

Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006)).    In other words,

“could a rational panel have found Appellant not guilty if they

had been instructed properly?”   Id.    Here, the answer is yes.

     The evidence presented at trial included facts inconsistent

with a finding that Appellant acted voluntarily.    At trial,

Appellant’s wife endorsed her testimony from the Article 32,

UCMJ, 10 U.S.C. § 832 (2012), investigation that she had never

seen Appellant act like that before and “‘[i]t was like -- it

was a different person, not my husband.’”    After assaulting her,

Appellant emerged from the bedroom and asked what happened to

his wife.   United States v. Torres, No. 37623, 2013 CCA LEXIS

853, at *4, 2013 WL 5878809, at *1 (A.F. Ct. Crim. App. Oct. 3,
United States v. Torres, No. 14-0222/AF


2013).   A guest told him that he had beaten her up.   A few

minutes later Appellant’s flight chief found him lying face down

on the bed, where he remained unresponsive until the police

arrived.   The defense’s expert neurologist testified that, while

postictal violence is rare, Appellant suffered a history of

epileptic seizures and it was possible that Appellant’s actions

on this occasion were the product of a postictal state.    These

facts raise the possibility of a reasonable doubt.

     Since voluntariness is an implicit element of the offense,

the Government had the burden to prove beyond a reasonable doubt

that Appellant acted voluntarily.    See United States v. Berri,

33 M.J. 337, 341 n.9 (C.M.A. 1991) (noting that common law

treats voluntariness as an implicit element of an offense).    But

under the mental disease or defect instruction, the defense then

had the burden to prove with “clear and convincing evidence”

that he was in a postictal state.    2013 CCA LEXIS 853, at *10,

2013 WL 5878809, at *3.   This instruction shifted the burden to

the defense, when it should have remained with the Government.

It also deflected the panel members’ focus from the defense’s

argument that Appellant had been in a postictal state, to a

straw man which the defense did not put forth, namely, whether

Appellant suffered a mental disease or defect.

     The military judge’s failure to give the voluntariness

instruction “eviscerated” Appellant’s theory of the case and


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United States v. Torres, No. 14-0222/AF


thereby deprived him of a defense.   See Dearing, 63 M.J. at 485.

Without a correct instruction, “the members did not have

guideposts for an informed deliberation.”   Id. (internal

quotation marks omitted).   The omission of the instruction meant

that the panel members were unable to consider the defense of

involuntariness in their deliberations.   In a close case such as

this, this error cannot be harmless beyond a reasonable doubt.

     I respectfully dissent.




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