       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
              Michael J. RICH, Senior Airman
               United States Air Force, Appellant
                          No. 19-0425
                      Crim. App. No. 39224
         Argued March 16, 2020—Decided April 28, 2020
                 Military Judge: Vance H. Spath
   For Appellant: Captain David A. Schiavone (argued); Major
   Meghan Glines-Barney.
   For Appellee: Captain Kelsey B. Shust (argued); Colonel
   Shaun S. Speranza, Lieutenant Colonel Brian C. Mason,
   and Mary Ellen Payne, Esq. (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   SPARKS, and MAGGS, joined.
                   _______________

   Judge OHLSON delivered the opinion of the Court.
    A panel composed of officer members sitting as a general
court-martial convicted Appellant, contrary to his plea, of one
specification of sexual assault by false pretense in violation of
Article 120, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920 (2012).1 The court-martial sentenced Appellant
to a dishonorable discharge, confinement for sixty days, re-
duction to the grade of E-2, and a reprimand. The convening
authority approved the adjudged sentence. United States v.
Rich, 79 M.J. 572, 575 (A.F. Ct. Crim. App. 2019) (en banc).
The United States Air Force Court of Criminal Appeals set
aside the findings and sentence and authorized a rehearing.
United States v. Rich, 78 M.J. 591, 601 (A.F. Ct. Crim. App.

   1  The panel members found Appellant guilty of “commit[ting] a
sexual act upon [CS], to wit: penetrating her vulva with his penis,
by inducing a belief by concealment that the accused was another
person.” They excepted from the original specification the words
“artifice and pretense.”
               United States v. Rich, No. 19-0425/AF
                       Opinion of the Court

2018), rev’d en banc, 79 M.J. at 575. The Government timely
filed a motion for reconsideration en banc, which the Court of
Criminal Appeals granted. The original panel decision was
vacated when the court granted the Government’s motion for
reconsideration. Rich, 79 M.J. at 575 n.2. Because the Court
of Criminal Appeals was evenly divided 4–4 following the en
banc rehearing, the approved findings and sentence were af-
firmed.2 Id. at 589.
   We granted review on the following two issues:
       I. Did the Court of Criminal Appeals err when it
       found that mistake of fact as to consent is not a spe-
       cial defense “in issue” for the offense of sexual as-
       sault by inducing a belief by concealment that Ap-
       pellant was someone else?
       II. If mistake of fact was not a special defense “in
       issue,” did the military judge abuse his discretion by
       denying the defense request for an instruction on
       mistake of fact?
United States v. Rich, 79 M.J. 335 (C.A.A.F. 2019) (order
granting review). However, because Appellant affirmatively
waived any instructional error in this case, we cannot reach
the merits of the granted issues, and thus affirm the decision
of the court below.
                              I. Facts

            A. Sexual Assault by False Pretense
   Following an evening of drinking at various bars in Grand
Forks, North Dakota, Appellant, Airman First Class CS, and
CS’s boyfriend, Airman First Class BK, returned to Appel-
lant’s off-base apartment to spend the night. CS and BK slept
on the couch downstairs, and Appellant slept in his bedroom
upstairs. The three agreed that when Appellant woke up to

   2  When a service court of criminal appeals “is evenly divided on
a question of law,” the result is an “affirmance of” the lower court’s
decision. United States v. Ohrt, 28 M.J. 301, 302–03 (C.M.A. 1989)
(emphasis removed). Here, the original panel decision was vacated
when the Court of Criminal Appeals granted the Government’s mo-
tion for reconsideration, and thus the subsequent evenly divided
Court of Criminal Appeals decision resulted in an affirmance of the
findings and sentence as approved by the convening authority.
Rich, 79 M.J. at 575.



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attend weapons training, CS and BK would relocate to Appel-
lant’s bed to go back to sleep. Eventually, CS heard Appellant
get in the shower, so she got into to his bed and went to sleep.
BK decided to remain on the couch until Appellant left, and
then planned to join CS in Appellant’s bed.
    CS woke up to someone “tugging” on her pants attempting
to remove them, but the room was “really dark” so CS could
not see who it was. Believing it to be her boyfriend, BK, CS
said BK’s name “in a nice loud tone.” There was no response,
and the tugging continued. CS removed her own pants, hop-
ing it would make the tugging stop and allow her to go back
to sleep. Next, CS felt a penis penetrate her vagina. CS said
BK’s name again, this time “a little louder” with a “more agi-
tated” tone, and again, there was no response. When the per-
son kissed CS on the mouth, she suddenly realized he was not
BK and learned that he was actually Appellant. CS pushed
Appellant off of her, and he said, “Oh shit. I am so sorry. I am
so sorry. I’m drunk. I thought you were my fiancé. . . . Don’t
tell [BK]. Don’t tell [BK].”
   At trial, during closing arguments on findings, Appellant
advanced two theories attempting to negate his criminal cul-
pability for his actions: (1) CS knew she was engaging in sex-
ual intercourse with Appellant, and she consented to sexual
intercourse with him; or (2) CS consented to sexual inter-
course with BK—not with Appellant—but Appellant mistak-
enly believed that CS had consented to sexual intercourse
with him.
   B. Discussions Regarding Findings Instructions
    Throughout Appellant’s court-martial, the military judge
and the parties had several discussions regarding findings in-
structions. During an Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2012), session after voir dire and before opening statements,
the military judge indicated that he had received proposed
findings instructions from both parties, and that he planned
to send a “very draft series of instructions” to the parties later
that evening. The military judge then asked trial defense
counsel, “[A]re you going to ask for a mistake of fact instruc-
tion?” Trial defense counsel replied, “Yes, sir.” The military
judge responded, “I’m not ruling on any of this. It’s just that




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it will help me as I work towards it.” Trial defense counsel
added:
      Consent and mistake of fact. We—our position is
      that those are not necessarily defenses in this case.
      They are more of elements that have to be proven on
      the front end because it’s a—it’s a broad charge, ba-
      sically. So, the basis is specific intent.
   The military judge reiterated, “That just helps me as [I]
craft and finalize the instructions.”
   The next day, following the Government’s and the de-
fense’s presentation of evidence, the military judge again con-
ducted an Article 39(a), UCMJ, session to discuss findings in-
structions. The military judge informed the parties that he
intended to instruct the members on consent. The military
judge then asked, “Other than that, do you believe any de-
fenses have been raised by the evidence that I should instruct
on? Defense Counsel?” Trial defense counsel stated:
      Your Honor, I have not had a chance to look at the
      instructions you sent out honestly. However, with
      regard to mistake of fact, we believe it would be an
      appropriate defense—we believe it is wrapped into
      the charge itself, the way that it is charged. They
      have to prove that our client did not have a mistake
      of fact, so some language regarding mistake of fact
      may be appropriate. However, you may have already
      included it, and I just haven’t looked at it.
    The military judge replied, “I hadn’t, because I don’t know
if [a] mistake of fact defense works in this fact pattern. I am
trying to work through it.” After discussing other possible in-
structions, the military judge told the parties:
      I will send out another version [of the findings in-
      structions] tonight, that is likely the final version,
      subject to objections or requests for additional in-
      structions. So, from both sides, please let me know
      by email. . . . [L]et me know when you get them and
      any suggestions or changes you have. . . . I am open
      to input tonight, as we work through the instruc-
      tions. . . . [A]ny suggestions, comments you have to-
      night, once I send this out, I welcome them back.
    That evening, the military judge emailed both parties the
final version of his draft findings instructions. In response,
trial defense counsel emailed the military judge and made


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only one objection, which pertained to a proposed instruction
regarding whether silence constitutes concealment. Beyond
that, trial defense counsel stated in his email, “We did not
have other objections or suggested changes to the proposed
instructions.”
    The following day, the military judge held another Article
39(a), UCMJ, session to discuss findings instructions. The
military judge summarized on the record the email responses
he had received from the parties regarding his proposed find-
ings instructions, and he expressly overruled the defense ob-
jection to the silence as concealment instruction. Next, the
military judge said, “Both sides indicated they had no other
objections or requests for additional instructions. I’m going to
check. . . . Defense Counsel, I’ve noted the one objection. Any
additional objections or requests for additional instructions?”
Trial defense counsel responded, “No, Your Honor.” Before
calling the members back and issuing the final findings in-
structions, the military judge asked, “Defense Counsel, . . .
[a]nything else we can take up . . . ?” Trial defense counsel
responded, “No, Your Honor.”
   Later, when instructing the members, the military judge
did not give an instruction on mistake of fact as to consent.
Trial defense counsel neither objected nor requested such an
instruction at that time.
                      II. Applicable Law

    Rule for Courts-Martial (R.C.M.) 920(e)(3) requires the
military judge to include in findings instructions “[a] descrip-
tion of any special defense under R.C.M. 916 in issue.” Mis-
take of fact may be a special defense under R.C.M. 916(j).
       If the military judge omits a required instruction
       that is reasonably raised by the evidence, the ac-
       cused may preserve the instructional error either by
       making an adequate objection or by requesting an
       instruction in a way that sufficiently signals to the
       military judge the existence of an error in need of
       correction.
United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017).
    “While there are no ‘magic words’ dictating when a party
has sufficiently raised an error to preserve it for appeal, of
critical importance is the specificity with which counsel


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makes the basis for his position known to the military judge.”
United States v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016) (ci-
tation omitted) (quoting United States v. Smith, 50 M.J. 451,
456 (C.A.A.F. 1999)). Notably, required findings instructions
can be waived. See United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020)3 (holding that the accused waived the issue of
whether the mens rea of “knowingly” applies to the consent
element of Article 120c(a)(2)); United States v. Gutierrez, 64
M.J. 374, 376 (C.A.A.F. 2007) (“[E]ven if an affirmative de-
fense is reasonably raised by the evidence, it can be affirma-
tively waived by the defense.”).
    “Whether an appellant has waived an issue is a legal ques-
tion that this Court reviews de novo.” Davis, 79 M.J. at 332
(citing United States v. Haynes, 79 M.J. 17, 19 (C.A.A.F.
2019)). “ ‘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.’ ” Id. (quoting United States v. Gladue, 67 M.J.
311, 313 (C.A.A.F. 2009)). Stated another way, “ ‘A forfeiture
is basically an oversight; a waiver is a deliberate decision not
to present a ground for relief that might be available in the
law.’ ” United States v. Campos, 67 M.J. 330, 332 (C.A.A.F.
2009) (quoting United States v. Cook, 406 F.3d 485, 487 (7th
Cir. 2005)).
    In the most recent Davis decision, this Court further clar-
ified how waiver and forfeiture operate in the context of find-
ings instructions. 79 M.J. at 332. A mere “[f]ailure to object to
an instruction or to omission of an instruction before the
members close to deliberate constitutes” forfeiture. Id. (inter-
nal quotation marks omitted) (quoting R.C.M. 920(f)).4 But,
when counsel “affirmatively decline[s] to object” and “offer[s]



   3  There are two Davis decisions that are relevant to the dispo-
sition of the instant case: United States v. Davis, 76 M.J. 224
(C.A.A.F. 2017), and United States v. Davis, 79 M.J. 329 (C.A.A.F.
2020). For ease of reference, we will refer to the 2020 Davis decision
as “the most recent Davis decision.”
   4 R.C.M. 920(f) uses the word “waiver,” but this Court has re-
peatedly interpreted that provision as referring to forfeiture, not
waiver. See, e.g., Davis, 79 M.J. at 332.



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no additional instructions,” counsel “ ‘expressly and unequiv-
ocally acquiesce[s]’ to the military judge’s instructions,” and
his actions thus constitute waiver. Id. (quoting United States
v. Smith, 2 C.M.A. 440, 442, 9 C.M.R. 70, 72 (1953)). “[W]hile
we review forfeited issues for plain error, we cannot review
waived issues at all because a valid waiver leaves no error for
us to correct on appeal.” Id. (internal quotation marks omit-
ted) (quoting Campos, 67 M.J. at 332).
                        III. Discussion

    An examination of Appellant’s repeated discussions with
the military judge regarding findings instructions clearly
demonstrates that Appellant affirmatively waived any claim
of instructional error in this case.
    The first time the parties discussed findings instructions,
the military judge asked, “Defense Counsel, are you going to
ask for a mistake of fact instruction?” (Emphasis added.) Alt-
hough Appellant answered in the affirmative, this response
to a question that was prospective in nature was not sufficient
to put the military judge on notice that the defense was actu-
ally requesting such an instruction. This is particularly true
in light of the fact that trial defense counsel immediately also
stated the following: “Consent and mistake of fact. . . . are not
necessarily defenses” but “are more . . . elements that have to
be proven on the front end [by the Government].” (Emphasis
added.) Although “there are no ‘magic words’ ” required to
preserve an issue for appeal, we cannot conclude on these
facts that Appellant adequately made “his position known to
the military judge.” Killion, 75 M.J. at 214.
    The second time the parties discussed findings instruc-
tions with the military judge did not clarify matters. During
an Article 39(a), UCMJ, session, Appellant explained that
mistake of fact “is wrapped into the charge itself,” argued that
the Government must prove the absence of a mistake of fact,
and averred that “some language regarding mistake of fact
may be appropriate.” (Emphasis added.) The Court of Crimi-
nal Appeals aptly characterized Appellant’s “request” as
“equivocal, non-specific, and half-hearted [in] nature.” Rich,
79 M.J. at 586. Usually when requesting findings instruc-
tions, counsel will propose specific language and this Court
will analyze that language in evaluating the request. See, e.g.,



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                      Opinion of the Court

United States v. Bailey, 77 M.J. 11, 13 (C.A.A.F. 2017); Kil-
lion, 75 M.J. at 212–13. Here, Appellant neither proposed spe-
cific language nor so much as made a generalized request for
an instruction on the defense of mistake of fact as to consent.
Once again, on these facts we cannot hold that the military
judge was aware of the “basis for [Appellant’s] position.” Kil-
lion, 75 M.J. at 214.
    In this particular instance, the military judge’s response
to trial defense counsel’s statement is also instructive. The
military judge did not rule against a mistake of fact as to con-
sent instruction. Rather, he merely said, “I don’t know if [a]
mistake of fact defense works in this fact pattern. I am trying
to work through it.” He then invited the parties to offer “any
suggestions or changes” to the final version of instructions he
planned to email them later that evening, and made clear
that the instructions were “subject to objections or requests
for additional instructions.” Thus, Appellant cannot now
claim that he failed to pursue the mistake of fact instruction
further because the military judge had already overruled his
objection. This distinguishes the instant case from Killion,
where this Court held that “there [was] no indication that fur-
ther objection was likely to be successful” because “the mili-
tary judge demonstrated his awareness of defense counsel’s
specific grounds for the alternative instruction, [and] flatly
disagreed with him.” 75 M.J. at 214.
    The third discussion regarding findings instructions,
which was memorialized in an email exchange between the
military judge and the parties, solidifies the conclusion that
Appellant waived any instructional error with respect to mis-
take of fact as to consent. In that exchange, Appellant clearly
objected to the proposed instruction regarding whether si-
lence constitutes concealment, but made no mention at all
about the absence of a mistake of fact as to consent instruc-
tion. Moreover, trial defense counsel stated in his email, “We
[do] not have any other objections or suggested changes to the
proposed instructions.” Thus, Appellant “affirmatively de-
clined to object to the military judge’s instructions and offered
no additional instructions” on the issue of the defense of mis-
take of fact as to consent. Davis, 79 M.J. at 332.
   Furthermore, during the fourth exchange regarding find-
ings instructions the following day, Appellant specifically


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                      Opinion of the Court

asked the military judge to include in the record a copy of his
emailed objection regarding the silence and concealment in-
struction. Consequently, it is apparent that Appellant knew
how to preserve objections to findings instructions. And yet,
Appellant made no objection whatsoever regarding the ab-
sence of a mistake of fact as to consent instruction. Thus, it is
at this stage in the proceedings that the posture of this issue
becomes clear: Appellant never requested a mistake of fact as
to consent instruction and never objected to the absence of
such an instruction. To the contrary, he “ ‘expressly and une-
quivocally acquiesc[ed]’ to the military judge’s instructions,”
and as such, “waived all objections to the instructions” with
respect to mistake of fact as to consent on appeal. Davis, 79
M.J. at 332 (quoting Smith, 2 C.M.A. at 442, 9 C.M.R. at 72).
    Appellant cemented his position on this issue by stating
on the record that apart from the silence and concealment in-
struction, he had no other objections; telling the military
judge that there were no other matters to discuss before the
members were called back into court; and affirmatively de-
clining to object to the findings instructions when they even-
tually were given to the members.
    We note that the instant facts present an even stronger
case for waiver than the facts in the most recent Davis deci-
sion. There, the record was unclear whether the defense even
contemplated requesting a mens rea instruction. Davis, 79
M.J. at 331. Nevertheless, we found an “intentional relin-
quishment or abandonment of a known right” where the ap-
pellant twice affirmatively declined to object to the proposed
findings instructions. Id. at 331–32 (emphasis added) (inter-
nal quotation marks omitted) (quoting Gladue, 67 M.J. at
313). Here, however, it is evident that Appellant pondered the
possibility of requesting a mistake of fact as to consent in-
struction, but ultimately made no such request. These facts
support the conclusion that Appellant made a “deliberate de-
cision” to abandon the mistake of fact as to consent instruc-
tion, and thus affirmatively waived the two instructional is-
sues on appeal before this Court. Campos, 67 M.J. at 332
(quoting Cook, 406 F.3d at 487).




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                    Opinion of the Court

                      IV. Conclusion

   We affirm the judgment of the United States Air Force
Court of Criminal Appeals.




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