UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           JOHNSON, KRAUSS, and BURTON
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                      v.
                          Specialist ROBERT R. TELLES
                          United States Army, Appellant

                                  ARMY 20100190

                            Headquarters, Fort Carson
                          Mark Bridges, Military Judge
                 Colonel Randy T. Kirkvold, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Kristin B.
McGrory, JA (on brief).

For Appellee: Major Amber J. William, JA; Major Katherine S. Gowel, JA; Captain
Kenneth W. Borgnino, JA (on brief).

                                     23 May 2012

                               ----------------------------
                               SUMMARY DISPOSITION
                               ----------------------------

Per Curiam:

      A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of abusive sexual
contact in violation of Article 120(h), Uniform Code of Military Justice, 10 U.S.C. §
920(h) (2006 & Supp. III 2009) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence to a bad-conduct discharge, confinement for six
months, forfeiture of all pay and allowances, and reduction to the grade of E-1.

       The case is now before this court for review under Article 66, UCMJ. We
have considered the record of trial and the assignments of error raised by appellant,
both through counsel and pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). We find them to be without merit, but pause here to address the
issue of waiver in this case.
TELLES—ARMY 20100190

                                  BACKGROUND

       This case stems from an evening of excessive alcohol consumption and certain
physical contact between Specialist (SPC) KJ and appellant, the exact nature of
which was in dispute at trial. Specification 1 of the Charge was that appellant
committed aggravated sexual assault in violation of Article 120(c)(2), UCMJ, by
“penetration of the genital opening of SPC [KJ] who was substantially
incapacitated.” Specification 2 of the Charge was that appellant committed abusive
sexual contact in violation of Article 120(h), UCMJ, by “touching the groin and
breasts of SPC [KJ], who was substantially incapacitated.”

       The military judge instructed the members on the elements of the charged
offenses, their lesser included offenses, and the affirmative defense of mistake of
fact as to consent. The military judge did not specifically instruct the members on
the affirmative defense of consent. Of Specification 1 of the Charge, the members
found appellant not guilty of aggravated sexual assault, but guilty of the lesser-
included offense of abusive sexual contact. Of Specification 2 of the Charge, the
members also found appellant guilty of abusive sexual contact.

                             LAW AND DISCUSSION

       Affirmative defenses can be affirmatively waived. United States v. Gutierrez,
64 M.J. 374, 376 (C.A.A.F. 2007). “An affirmative waiver is not the same as a
passive failure to request an instruction or object to its omission.” United States v.
Strachan, 35 M.J. 362, 364 (C.M.A. 1992); United States v. Smith, 50 M.J. 451, 456
(C.A.A.F 1999). There are no magic words to establish affirmative waiver.
Gutierrez, 64 M.J. at 376–77 (citing Smith, 50 M.J. at 456). Rather, we must look to
the record to see if there was a “purposeful decision” at play. Id. at 377.

       In this case the military judge discussed the proposed instructions on findings
with both government and defense counsel on the record, making reference to an
earlier Rules for Courts-Martial [hereinafter R.C.M.] 802 session on the subject.
There is no evidence of defense objection or requests for additional instructions
during the R.C.M. 802 session. On the record, the government voiced objection to
the military judge’s inclusion of the affirmative defense of mistake of fact as to
consent, contending that there was no evidence that SPC KJ consented to any of the
charged misconduct. Immediately following this proffer the military judge
explained that he was not going to provide “a consent as a defense instruction” but
that he would provide a mistake of fact as to consent instruction for both charged
offenses. Defense counsel offered nothing in rebuttal to this colloquy, nor did they
argue or even attempt to argue that consent as a defense should be forwarded to the
members. On the same page in the record of trial where the military judge
announced his intention not to instruct on consent, he asked the following question:



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TELLES—ARMY 20100190

“Defense, do you have any objections to the instructions or requests for additional
instructions?” The defense counsel replied, “[W]e do not, Your Honor.” *

       Appellant now claims that it was error for the military judge not to instruct
the members on the affirmative defense of consent. We find under the unique facts
of this case that defense counsel waived this issue at trial, and as such there is no
error to correct. United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009). The
exchange on the record in this case went beyond mere failure to request or object to
the affirmative defense of consent, but rather was a knowing and intentional
relinquishment of the opportunity to explore that avenue on behalf of their client.
Furthermore, considering all the evidence in this case, we are confident that the
instructions taken as a whole correctly conveyed concepts relevant to the matters of
consent, and also correctly conveyed the government’s burden to the members in this
case. See United States v. Ignacio, 71 M.J. 125 (C.A.A.F. 2012) (per curiam);
United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). Given the evidence presented
in this case, the instructions ultimately given were sufficient to ensure a fair trial
and sufficient to convince us that the conviction is reliable. The appellant has in no
way been prejudiced by them.

                                  CONCLUSION

       On consideration of the entire record, the assigned errors, and the matters
personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A.1982), we hold the findings of guilty and sentence adjudged and as approved
by the convening authority to be correct in law and fact. Accordingly, those
findings of guilty and the sentence are AFFIRMED.


                                       FOR THE
                                           THECOURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM       H.SQUIRES,
                                                        SQUIRES,JR.JR.
                                       Clerk of Court
                                       Clerk of Court




*
  We note that our superior court’s opinion in United States v. Neal, 68 M.J. 289
(C.A.A.F. 2010) was decided over six weeks before the case before us was actually
tried.
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