             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                       ________________________

                           No. ACM 39224
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                         Michael J. RICH
            Senior Airman (E-4), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 18 June 2019
                       ________________________

Military Judge: Vance H. Spath.
Approved sentence: Dishonorable discharge, confinement for 60 days,
reduction to E-2, and a reprimand. Sentence adjudged 21 December
2016 by GCM convened at Grand Forks Air Force Base, North Dakota.
For Appellant: Major Melissa Biedermann, USAF; Major Patricia En-
carnación Miranda, USAF; Major Meghan R. Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi-
chael T. Bunnell, USAF; Major J. Ronald Steelman III, USAF; Mary
Ellen Payne, Esquire.
Before THE COURT EN BANC.
Senior Judge JOHNSON delivered the opinion of the court, in which
Chief Judge MAYBERRY, Judge MINK, and Judge KEY joined. Judge
LEWIS filed a separate opinion dissenting in part and in the result in
which Senior Judge HUYGEN, Judge DENNIS, and Judge POSCH
joined.
                       ________________________

              PUBLISHED OPINION OF THE COURT
                       ________________________
                United States v. Rich, No. ACM 39224 (en banc)


JOHNSON, Senior Judge:
    A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of sexual assault by false pretense
in violation of Article 120(b)(1)(D), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920(b)(1)(D). 1 The court-martial sentenced Appellant to a dishon-
orable discharge, confinement for 60 days, reduction to the grade of E-2, and
a reprimand. The convening authority approved the adjudged sentence but
waived the mandatory forfeiture of pay and allowances during confinement
for the benefit of Appellant’s dependents.
    Appellant raises three issues on appeal: (1) whether the military judge
abused his discretion by excluding evidence under Mil. R. Evid. 412; (2)
whether the military judge’s instructions regarding the term “concealment”
impermissibly relieved the Government of its burden to prove every element
of the offense beyond a reasonable doubt; and (3) whether the military judge
erred by failing to instruct the court members on the defense of mistake of
fact. 2 Because the court en banc is evenly divided as to the result on a ques-
tion of law with regard to the third issue, the approved findings and sentence
are affirmed. See United States v. Ohrt, 28 M.J. 301, 302–03 (C.M.A. 1989).

                                  I. BACKGROUND
    In February 2016, Appellant was stationed at Grand Forks Air Force
Base (AFB), North Dakota. Appellant was a close friend of Airman First
Class (A1C) AK, a member of Appellant’s squadron. Appellant was also a
friend of A1C AK’s girlfriend, A1C CS, who had been dating A1C AK for ap-
proximately six months at that point. The three Airmen would often spend
time together.
    Appellant and A1C AK began the night of 19 February 2016 drinking al-
cohol and playing poker with some other co-workers and friends. Around
midnight, Appellant and A1C AK left the poker game and met A1C CS at an
off-base bar where she was celebrating a birthday with several of her co-
workers. After the bar closed at 0200, Appellant, A1C AK, and A1C CS pro-
ceeded to Appellant’s off-base apartment to sleep. At Appellant’s apartment,

1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial (R.C.M.), and Military Rules of Evidence (Mil. R. Evid.) are to the
Manual for Courts-Martial, United States (2016 ed.).
2 The court’s prior decision in this case, United States v. Rich, 78 M.J. 591 (A.F. Ct.
Crim. App. 2018), was vacated when the court granted the Government’s motion for
reconsideration on 20 November 2018.




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               United States v. Rich, No. ACM 39224 (en banc)


A1C CS and A1C AK continued an argument that had begun at the bar earli-
er in the evening. Eventually, Appellant went upstairs to his bedroom to
sleep as he was due to report to Grand Forks AFB at 0530 hours for weapons
training. By prior arrangement with Appellant, A1C CS and A1C AK planned
to share the couch downstairs and then move to Appellant’s bed after he left
for training.
    A1C CS was uncomfortable and unable to sleep on Appellant’s down-
stairs couch. After A1C CS thought sufficient time had passed, she requested
A1C AK go upstairs to wake Appellant to ensure Appellant made it to the
base on time. A1C AK went upstairs, woke Appellant, and then returned
downstairs. When A1C CS heard nothing to indicate that Appellant was ac-
tually stirring, she again sent A1C AK to wake Appellant. A1C AK did so
once more and again returned downstairs. Still hearing nothing, A1C CS sent
A1C AK a third time to rouse Appellant. A1C AK heard the shower running
and returned downstairs. Consistent with their earlier agreement, A1C AK
and A1C CS went up to Appellant’s bedroom. A1C CS got into Appellant’s bed
while A1C AK, thinking it would be inappropriate to get into Appellant’s bed
with A1C CS while Appellant was still at home, decided to go back down-
stairs to sleep on the couch until Appellant left.
    A1C CS fell asleep in Appellant’s bed, but soon woke up to the sensation
of someone tugging on her pants. A1C CS testified that she believed her boy-
friend A1C AK was doing the tugging, but she could not actually see who it
was because the only illumination was moonlight coming through a window
near the right side of the bed. According to A1C CS, she was “mad” at being
awoken, and she spoke A1C AK’s name in a “nice, loud tone.” There was no
response. Instead, A1C CS continued to feel the tugging on her pants. An-
noyed because the tugging caused her entire body to move, A1C CS testified
she “took one pant leg off” and her underwear “came down together” with it.
Shortly thereafter, she felt a penis inserted into her vagina. A1C CS testified
that she spoke A1C AK’s name again in a louder, “more agitated” tone than
the first time, but there was no response and the intercourse continued.
Thereafter, A1C CS “just laid there” while the intercourse lasted for what she
estimated to be up to five minutes. She testified that the person having sex
with her eventually leaned down to kiss her on the mouth. It was at this
point that A1C CS realized the person having sex with her was not her boy-
friend, A1C AK. She then pushed the person into the moonlight, saw his face,
realized it was Appellant, and pushed Appellant off of her. According to A1C
CS, Appellant then said, “Oh s**t. I am so sorry. I am so sorry. I’m drunk. I
thought you were my fiancé[e].” Appellant then said “Don’t tell [A1C AK].
Don’t tell [A1C AK].”




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                United States v. Rich, No. ACM 39224 (en banc)


   A1C CS grabbed her underwear, ran downstairs, and “screamed” at A1C
AK to wake up. A1C CS returned upstairs to get her pants, then went back
downstairs to A1C AK and screamed at him that she “wanted to go” and that
Appellant “had just been inside [her].” Although A1C AK perceived A1C CS
was “incredibly frantic” and she “pleaded” with him that she “wanted to leave
immediately,” once A1C AK understood what A1C CS was saying he went
upstairs to look for Appellant. A1C AK looked in both Appellant’s bedroom
and the upstairs bathroom but did not see Appellant. A1C AK and A1C CS
then departed Appellant’s residence. A1C AK drove A1C CS back to Grand
Forks AFB where A1C AK reported the sexual assault to the Security Forces
personnel at the gate. In the meantime, Appellant drove to the base for
weapons training, stopping to buy donuts on the way.

                                   II. DISCUSSION
A. Mil. R. Evid. 412
    1. Additional Background
    At trial, the Defense attempted to introduce evidence of A1C CS’s alleged
sexual behavior 3 with A1C AK under the “constitutionally required” excep-
tion to Mil. R. Evid. 412. The Defense’s theory for admissibility of the prof-
fered evidence was premised on substantial differences between A1C CS’s
typical sexual practices prior to sexual intercourse with A1C AK compared to
what happened with Appellant. The Defense argued that the constitutionally
required exception permitted them to explore each of these substantial differ-
ences to show that A1C CS knew she was having sexual intercourse with Ap-
pellant and not A1C AK.
     The Government and A1C CS, through counsel, did not object to the ad-
mission of evidence showing that the sexual encounter with Appellant was
different and more aggressive than what A1C CS would have expected with
A1C AK. However, both objected to further attempts by the Defense to ex-
plore A1C CS’s specific sexual behaviors with A1C AK.
   The military judge conducted a closed hearing pursuant to Mil. R. Evid.
412(c)(2) at which A1C CS testified. A1C CS described the “tugging of the
pants” as different and more aggressive than what she experienced with A1C


3 The trial transcript, appellate exhibits, and briefs addressing this excluded evidence
were sealed pursuant to Mil. R. Evid. 412(c)(2) and R.C.M. 1103A. These portions of
the record and brief remain sealed. Any discussion of sealed material in this opinion
is limited to what is necessary for our analysis. See R.C.M. 1103A(b)(4).




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               United States v. Rich, No. ACM 39224 (en banc)


AK, who “would have never woken me up . . . out of my sleep.” The military
judge’s written ruling permitted the Defense to point out that A1C CS and
A1C AK were involved in a physical relationship. Additionally, the Defense
could explore the “aggressive tugging and waking [A1C CS] for sex” to argue
that A1C CS should have “realized immediately that this was not [A1C AK].”
The military judge determined that the “remainder of her prior sex life” with
A1C AK was not helpful or required under Mil. R. Evid. 412. The military
judge found “cross-examination into the very specific details of the prior sex
life would not yield anything needed to defend the charge in this case. It is
the very information [Mil. R. Evid] 412 is designed to exclude.”
   During the Defense’s cross-examination in front of the court members,
A1C CS testified: (1) A1C AK “would never have taken my pants off when I
was asleep;” (2) the tugging on her pants was “a little more aggressive” than
the behavior she experienced with A1C AK; (3) there was no foreplay with
Appellant; and (4) the lack of foreplay was “for the most part” different than
what she experienced with A1C AK.
    On appeal, Appellant contends that differences between A1C CS’s sexual
practices with A1C AK and her interaction with Appellant cast doubt on A1C
CS’s claim that she did not consent to having sex with Appellant. Appellant
describes this evidence as relevant, vital, and material with a high probative
value as to whether A1C CS knew or should have known Appellant was not
her boyfriend. Appellant also argues the evidence proves A1C CS’s motive to
fabricate as it shows she knowingly and willfully cheated on her boyfriend
and then attempted to cover up her misconduct. Appellant argues the “more
distinct A1C CS’s sexual history with her boyfriend is,” the more likely it is
that she knew she was having sex with Appellant.
   2. Law
    “We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” United States v. Erikson, 76 M.J. 231, 234 (C.A.A.F.
2017) (citation omitted). “A military judge abuses his discretion when: (1) the
findings of fact upon which he predicates his ruling are not supported by the
evidence of record; (2) if incorrect legal principles were used; or (3) if his ap-
plication of the correct legal principles to the facts is clearly unreasonable.”
United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States
v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)). “The abuse of discretion stand-
ard is a strict one, calling for more than a mere difference of opinion. The
challenged action must be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clear-
ly erroneous.’” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000)
(quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States
v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)). “[T]he abuse of discretion standard
of review recognizes that a judge has a range of choices and will not be re-

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                  United States v. Rich, No. ACM 39224 (en banc)


versed so long as the decision remains within that range.” United States v.
Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citation omitted). The application of
Mil. R. Evid. 412 to proffered evidence is a legal issue that appellate courts
review de novo. United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010) (cita-
tion omitted).
    Mil. R. Evid. 412 provides that, in any proceeding involving an alleged
sexual offense, evidence offered to prove the alleged victim engaged in other
sexual behavior or has a sexual predisposition is generally inadmissible, with
three limited exceptions, one of which is pertinent to this case. The burden is
on the defense to overcome the general rule of exclusion by demonstrating an
exception applies. United States v. Carter, 47 M.J. 395, 396 (C.A.A.F. 1998)
(citation omitted).
   Mil. R. Evid. 412(b)(1)(C) provides that evidence of an alleged victim’s
other sexual behavior or sexual predisposition is admissible if its exclusion
“would violate the constitutional rights of the accused.” This exception in-
cludes an accused’s Sixth Amendment 4 right to confront witnesses against
him, including the right to cross-examine and impeach those witnesses. Unit-
ed States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (citation omitted).
Generally, such evidence is constitutionally required and “must be admitted
within the ambit of [Mil. R. Evid.] 412(b)(1)(C) when [it] is relevant, material,
and the probative value of the evidence outweighs the dangers of unfair prej-
udice.” Id. (citation omitted). Relevant evidence is evidence that has any ten-
dency to make the existence of any fact of consequence to determining the
case more probable or less probable than it would be without the evidence.
Mil. R. Evid. 401. Materiality “is a multi-factored test looking at ‘the im-
portance of the issue for which the evidence was offered in relation to the
other issues in this case; the extent to which the issue is in dispute; and the
nature of the other evidence in the case pertaining to th[at] issue.’” Eller-
brock, 70 M.J. at 318 (alteration in original) (citations omitted). The dangers
of unfair prejudice to be considered “include concerns about ‘harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.’” Id. at 319 (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)).
    “[T]rial judges retain wide latitude . . . to impose reasonable limits on
cross-examination based on concerns about, among other things, harassment,
prejudice . . . or interrogation that is repetitive or only marginally relevant.”
United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011) (first omission in


4   U.S. CONST. amend. VI.




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               United States v. Rich, No. ACM 39224 (en banc)


original) (additional citations omitted) (quoting Van Arsdall, 475 U.S. at 679).
In determining whether the exclusion of evidence deprived Appellant of a fair
trial or an opportunity for cross-examination, we ask whether “[a] reasonable
jury might have received a significantly different impression of [the witness]’s
credibility had [defense counsel] been permitted to pursue his proposed line
of cross-examination.” Van Arsdall, 475 U.S. at 680. “[O]nce the defendant
has been allowed to expose a witness’s motivation in testifying, ‘it is of pe-
ripheral concern to the Sixth Amendment how much opportunity defense
counsel gets to hammer that point home to the jury.’” United States v. James,
61 M.J. 132, 136 (C.A.A.F. 2005) (citation omitted).
   3. Analysis
    The military judge ultimately permitted the Defense to explore two areas
of prior sexual behavior between A1C CS and A1C AK to support a defense
that A1C CS knew or should have known that she was having sex with Ap-
pellant. First, the military judge allowed the Defense to explore fully the be-
havior which occurred first in the sequence of events and included Appellant
waking up A1C CS during sleep by somewhat aggressively tugging on her
pants. This was the most probative evidence for the Defense as it was the
earliest indication that A1C CS knew or should have known it was Appellant
and not A1C AK in the bedroom. The parties, A1C CS through her counsel,
and the military judge concurred on the admissibility of this evidence under
Mil. R. Evid. 412(b)(1)(C).
    The second area involved foreplay. A1C CS testified there was no foreplay
with Appellant and that fact was, “for the most part,” different than her rela-
tionship with A1C AK. The military judge did not allow the Defense to fur-
ther explore this line of questioning. While another military judge may have
permitted additional questioning, we find the military judge did not abuse his
discretion by limiting cross-examination of A1C CS in this second area. While
evidence of foreplay differences had some relevance under Mil. R. Evid. 401,
we agree with the military judge that the specific acts were not material un-
der the facts of this case. As A1C CS and A1C AK did not always engage in
foreplay in the same way prior to sex, any attempt to compare their past sex-
ual practices to the lack of foreplay with Appellant would have added little to
the Defense’s presentation.
   The Defense was able to use the evidence that was admitted under Mil. R.
Evid. 412 in conjunction with other evidence to support its argument that
A1C CS knew or should have known that Appellant was the one in bed with
her. One example of such other evidence is testimony that A1C AK took sev-
eral smoke breaks at Appellant’s apartment before going to sleep on the
couch. The Defense contrasted how a smoker would smell with how Appellant
would smell having just emerged from a shower. The Defense used a Power-

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               United States v. Rich, No. ACM 39224 (en banc)


Point slide in closing argument to propose ten reasons why the evidence sup-
ported a conclusion that A1C CS consented to sex with Appellant. One such
reason was A1C CS’s testimony that A1C AK “feels and acts different” from
Appellant. Thus the military judge’s Mil. R. Evid. 412 ruling did not prevent
the Defense from presenting its argument that Appellant’s behavior during
the encounter would have indicated to A1C CS that he was not A1C AK.
    We find that further exploration into the specifics of A1C CS’s typical
foreplay with A1C AK would have only been marginally relevant, repetitive
based on the evidence admitted, and harassing to A1C CS. We conclude the
military judge properly imposed reasonable limits on cross-examination
based on these concerns. No reasonable court member would have received a
significantly different impression of whether A1C CS knew or should have
known she was having sexual intercourse with Appellant had defense counsel
been permitted additional cross-examination. Appellant received the full ben-
efit of effective cross-examination, and his trial defense counsel explored
thoroughly A1C CS’s motives, biases, and inconsistencies. Therefore, the con-
tested evidence was not constitutionally required, it did not qualify for the
Mil. R. Evid. 412(b)(1)(C) exception, and the military judge did not abuse his
discretion by excluding it under Mil. R. Evid. 412.
B. Concealment Instruction
   1. Additional Background
   The military judge instructed the court members that the elements of the
Specification of the Charge included the following:
       (1) That at or near Grand Forks, North Dakota, on or about 20
       February 2016, [Appellant] committed a sexual act upon [A1C
       CS], to wit: penetrating her vulva with his penis; and, (2) That
       [Appellant] did so by inducing a belief by artifice, pretense, and
       concealment that [Appellant] was another person.
The military judge then proceeded to define and explain several of the terms
included in these elements. The military judge defined “concealment” as “an
act of refraining from disclosure or hiding to prevent discovery.” See People v.
Fleming, 25 Cal.App.5th 783, 791–92 (Cal. Ct. App. 2018). The military judge
further instructed—over the Defense’s objection—that “[s]ilence when the
Accused knows that the victim is acting under a misapprehension as to the
accused’s identity may constitute concealment.” In overruling the Defense’s
objection that this instruction “[w]ent beyond simply defining the term,” the
military judge explained, “I think it’s important to frame the evidence for the
members. It’s my duty to do that.”
   2. Law



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               United States v. Rich, No. ACM 39224 (en banc)


    We review a military judge’s decision to provide a non-mandatory instruc-
tion for an abuse of discretion. United States v. Barnett, 71 M.J. 248, 249
(C.A.A.F. 2012) (quoting United States v. Forbes, 61 M.J. 354, 358 (C.A.A.F.
2005)). We review the propriety of the instructions given by a military judge
de novo. United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001) (citing
United States v. Maxwell, 45 M.J. 406, 424 (1996)). A “military judge has an
independent duty to determine and deliver appropriate instructions.” Bar-
nett, 71 M.J. at 249 (quoting United States v. Ober, 66 M.J. 393, 405 (C.A.A.F.
2008)). “Instructions on findings shall include . . . [s]uch other explanations,
descriptions, or directions as may be necessary and which are properly re-
quested by a party or which the military judge determines, sua sponte, should
be given.” Rule for Courts-Martial (R.C.M.) 920(e), (7).
    “Inferences and presumptions are a staple of our adversary system of fact-
finding.” County Court v. Allen, 442 U.S. 140, 156 (1979). In order to deter-
mine whether a challenged instruction unconstitutionally relieves the Gov-
ernment of its burden of proof, a court must “determine whether the chal-
lenged portion of the instruction creates a mandatory presumption . . . or
merely a permissive inference.” Francis v. Franklin, 471 U.S. 307, 314 (1985)
(citations omitted).
    There are two possible mandatory presumptions: a conclusive presump-
tion and a rebuttable presumption. A conclusive presumption completely re-
moves the presumed element once the predicate facts have been proved. See
id. at 314 n.2 (citation omitted). A rebuttable presumption requires the jury
to find the presumed element unless the accused convinces the factfinder that
such a finding is unwarranted. Id. A mandatory presumption is a “trouble-
some evidentiary device[,]” as it carries the risk of relieving the Government
of its burden. Allen, 442 U.S. at 157. The Constitution “prohibits the State
from using evidentiary presumptions in a jury charge that have the effect of
relieving the State of its burden of persuasion beyond a reasonable doubt of
every essential element of a crime.” Franklin, 471 U.S. at 313 (citing Sand-
strom v. Montana, 442 U.S. 510, 520–24 (1979)) (additional citations omit-
ted).
    “The most common evidentiary device is the entirely permissive inference
or presumption which allows—but does not require—the trier of fact to infer
the elemental fact from proof by the prosecutor of the basic one and which
places no burden of any kind on the defendant.” Allen, 442 U.S. at 157 (cita-
tion omitted). The Supreme Court has stated:
       A permissive inference does not relieve the State of its burden
       of persuasion because it still requires the State to convince the
       jury that the suggested conclusion should be inferred based on
       the predicate facts proved. Such inferences do not necessarily

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               United States v. Rich, No. ACM 39224 (en banc)


       implicate the concerns of Sandstrom. A permissive inference
       violates the Due Process Clause only if the suggested conclu-
       sion is not one that reason and common sense justify in light of
       the proven facts before the jury.
Franklin, 471 U.S. at 314–15 (citing Allen, 442 U.S. at 157–63).
    “If a specific portion of the jury charge, considered in isolation, could rea-
sonably have been understood as creating a presumption that relieves the
State of its burden of persuasion on an element of an offense, the potentially
offending words must be considered in the context of the charge as a whole.”
Id. at 315. “This analysis ‘requires careful attention to the words actually
spoken to the jury . . . for whether a defendant has been accorded his consti-
tutional rights depends upon the way in which a reasonable juror could have
interpreted the instruction.’” Id. (quoting Sandstrom, 442 U.S. at 514); see
also United States v. Brewer, 61 M.J. 425, 430 (C.A.A.F. 2005).
   3. Analysis
    Appellant argues on appeal that the military judge’s instruction relieved
the Government of its burden to prove beyond a reasonable doubt that Appel-
lant concealed his identity from A1C CS. We find the instruction allowed the
members to make a constitutionally allowable permissive inference based on
the evidence. We conclude the military judge did not abuse his discretion by
giving the instruction.
    The instruction at issue specifically stated that silence may constitute
concealment when the accused knows the victim is acting under a misappre-
hension. It did not mandate a presumption that if the court members decided
Appellant was silent, they must conclude he concealed his identity. The in-
struction also did not create a rebuttable presumption requiring Appellant to
convince the court members that his silence was not because he was conceal-
ing his identity but due to some innocuous reason, such as Appellant failing
to hear A1C CS when she spoke A1C AK’s name. The instruction given by the
military judge placed no burden at all on Appellant. The instruction did not
implicate either of the two mandatory presumptions recognized in case law.
What the instruction did do was explain one way the members could apply
the facts in this case to the relevant law, if they chose to do so.
    We considered the Government’s proposition that the instruction was a
mere “explanation, description, or direction” under R.C.M. 920(e)(7). There is
some support for the Government’s position as the military judge described
his instruction on the record as framing the evidence for the members. Never-
theless, we instead conclude that the instruction as given established a per-
missive inference allowing the members to conclude, under the law, that si-



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               United States v. Rich, No. ACM 39224 (en banc)


lence by Appellant, in the circumstances of this case, may have constituted
concealment.
    Permissive inferences may violate due process when the suggested con-
clusion is not one that “reason and common sense justify in light of the prov-
en facts” before the members. See Franklin, 471 U.S. at 314–15 (citation
omitted). We find the suggested conclusion in the concealment instruction
given in Appellant’s case was based on reason and common sense and justi-
fied by the evidence presented in Appellant’s case. The military judge ad-
dressed when silence may constitute concealment, identified the specific
knowledge Appellant must have before the inference could be used, and en-
sured the members understood how evidence of Appellant’s voluntary intoxi-
cation impacted the permissive inference.
    Appellant contends the military judge’s concealment instruction runs
afoul of the following Supreme Court explanation of impermissible presump-
tions:
       “It follows that the trial court may not withdraw or prejudge the
       issue by instruction that the law raises a presumption of intent
       from an act. It often is tempting to cast in terms of a ‘presump-
       tion’ a conclusion which a court thinks probable from given
       facts. . . . A presumption which would permit but not require the
       jury to assume intent from an isolated fact would prejudge a
       conclusion which the jury should reach of its own volition. . . .
       [T]his presumption would conflict with the overriding pre-
       sumption of innocence with which the law endows the accused
       and which extends to every element of the crime.”
Sandstrom, 442 U.S. at 522 (quoting Morissette v. United States, 342 U.S.
246, 274–75 (1952)) (second emphasis added). Appellant argues that, contra-
ry to Sandstrom and Morissette, the military judge’s concealment instruction
is a “presumption” that “permits but does not require” the court members to
“assume intent” from the “isolated act” of remaining silent. However, as de-
scribed above, a presumption—whether mandatory or rebuttable—is distinct
from a permissible inference, and, in this case, the concealment instruction
created the latter rather than the former. The military judge did not instruct
the members to “presume” or “assume” any intent from the evidence of Appel-
lant’s silence; he merely explained that, under the law, Appellant’s silence if
he knew the victim was under a misapprehension as to his identity may con-
stitute concealment as the military judge had defined that term. The court
members were still required to decide on their own whether Appellant actual-
ly engaged in concealment, that is, “an act of refraining from disclosure or
hiding to prevent discovery.”



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                United States v. Rich, No. ACM 39224 (en banc)


    The military judge might have more explicitly emphasized that the per-
missive inference did not in any way relieve the Government of its burden of
proof. We nonetheless conclude that no reasonable court member could have
interpreted the concealment instruction in a manner that would have violat-
ed Appellant’s due process rights or shifted the burden of proof, especially in
the context of the military judge’s instructions as a whole. Thus, we conclude
the military judge did not abuse his discretion by providing the concealment
instruction.
C. Instructions and Mistake of Fact
    1. Additional Background
    Prior to opening statements, the military judge alerted counsel for both
parties that he intended to send them a “very draft series of instructions” to
“start the discussion,” although “there [was] not a ruling in any way” at that
point. He then engaged in the following colloquy with trial defense counsel:
       MJ [Military Judge]: Defense Counsel, are you going to ask for
       a mistake of fact instruction? Is that fair?
       DC [Defense Counsel]: Yes sir.
       MJ: Okay, that helps. Again, I’m not ruling on any of this. It’s
       just that it will help me as I work towards it.
       DC: 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, basically. So, the basis is specific intent.
       MJ: That just helps me as a [sic] craft and finalize the instruc-
       tions. . . .
    Evidence of two possible mistaken beliefs on Appellant’s part was elicited
during the course of trial. First, during direct examination A1C CS testified
that after she pushed Appellant off her, Appellant said, “. . . I am so sorry. I
am so sorry. I’m drunk. I thought you were my fiancé[e].”5 Second, during
cross-examination of A1C CS, the Defense explored whether the events of the
evening in general and during the sexual encounter in particular would have
led Appellant to believe A1C CS knew it was him and not her boyfriend A1C
AK.


5 Appellant repeated this claim later that morning, telling a co-worker “[Appellant]
was expecting his fiancée; got in bed [with A1C CS]. And it wasn’t who he was think-
ing it was.”




                                        12
               United States v. Rich, No. ACM 39224 (en banc)


   At the conclusion of the presentation of evidence, the military judge asked
counsel if there were any defenses raised by the evidence that should be in-
cluded in the instructions. As previously forecast, the military judge had
emailed a draft set of instructions to the parties the prior evening. Appel-
lant’s trial defense counsel responded:
       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
       [the Government] 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 responded: “I hadn’t, because I don’t know if mistake
of fact defense works in this fact pattern. I am trying to work through it.”
    Shortly after this discussion, the court recessed for the evening with a
plan for the military judge to email a second draft of his findings instructions
and for the parties to email him any suggested changes. The Defense emailed
an objection to the concealment instruction, as discussed above in section
II.B. However, although the military judge had not added any instructions
regarding mistake of fact, trial defense counsel did not object to the proposed
instructions on that basis, nor did they propose any instructions on mistake
of fact.
    At the Article 39(a), UCMJ, 10 U.S.C. § 839(a), session the next morning,
the military judge asked the Defense if they had “[a]ny additional objections
or requests for additional instructions.” Trial defense counsel replied, “No,
Your Honor,” and then requested that their email sent the prior evening stat-
ing their objection to the concealment instruction be included in the record.
The defense email was duly marked as an appellate exhibit. The trial counsel
never commented, at any point, on whether the military judge was required
to give any mistake of fact instruction.
    The military judge instructed the court members, inter alia, on the ele-
ments of the offense of sexual assault and related definitions and instruc-
tions:
       In order to find [Appellant] guilty of this offense, you must be
       convinced by legal and competent evidence beyond a reasonable
       doubt: (1) That at or near Grand Forks, North Dakota, on or
       about 20 February 2016, [Appellant] committed a sexual act
       upon [A1C CS], to wit: penetrating her vulva with his penis;
       and, (2) That [Appellant] did so by inducing a belief by artifice,


                                      13
              United States v. Rich, No. ACM 39224 (en banc)


      pretense, and concealment that [Appellant] was another per-
      son.
      . . . “Artifice” is a plan or idea intended to deceive. “Pretense” is
      an act of pretending. “Concealment” is an act of refraining from
      disclosure or hiding to prevent discovery. Silence when [Appel-
      lant] knows that [sic] victim is acting under a misapprehension
      as to [Appellant’s] identity may constitute concealment.
      The evidence has raised the issue of whether [A1C CS] con-
      sented to the sexual conduct listed in the Specification of the
      Charge. All of the evidence concerning consent to the sexual
      conduct is relevant and must be considered in determining
      whether the government has proven that the sexual conduct
      was done by inducing a belief by artifice, pretense, and con-
      cealment that [Appellant] was another person beyond a rea-
      sonable doubt. Stated another way, evidence the alleged victim
      consented to the sexual conduct, either alone or in conjunction
      with the other evidence in this case, may cause you to have a
      reasonable doubt as to whether the government has proven
      that the sexual conduct was done by inducing a belief by arti-
      fice, pretense, and concealment that [Appellant] was another
      person.
   The military judge also instructed the members that “[t]he evidence may
have raised the issue of voluntary intoxication.” He advised:
      [E]vidence the accused was intoxicated, may . . . cause you to
      have a reasonable doubt the accused engaged in the induce-
      ment [by artifice, pretense, and concealment]. . . . On the other
      hand, the fact that a person may have been intoxicated at the
      time of the offense does not necessarily indicate that he did not
      engage in the inducement as defined above because a person
      may be drunk yet still be aware at the time of his actions and
      their probable consequences. . . . If you are convinced beyond a
      reasonable doubt that the accused in fact engaged in the in-
      ducement as defined above, the accused will not avoid criminal
      responsibility because of voluntary intoxication.
    During closing argument, trial counsel addressed, inter alia, Appellant’s
statement to A1C CS, “I’m drunk. I thought you were my fiancé[e].”
      Now, a third possibility is that the accused was mistaken. That
      he really thought this was his fiancée, and we’ve talked about
      that already members. That is not a real possibility. There is
      no way that this accused could [have] thought that his fiancée


                                       14
                United States v. Rich, No. ACM 39224 (en banc)


       who lived in Canada who has just had a child was in his bed
       wanting to have sex with him. He could tell the difference. And
       he wasn’t too drunk to tell the difference. He certainly wasn’t
       too drunk to tug off her pants and put his penis inside of her.
       He certainly wasn’t too drunk to figure out, right after it hap-
       pened I better say don’t tell [A1C AK]. He wasn’t too drunk to
       put himself somewhere where nobody could find him when they
       came to look for him. He wasn’t too drunk to drive to base, to go
       get donuts. And he wasn’t too drunk to go fire a weapon. . . .
    Trial defense counsel did not argue Appellant mistakenly believed A1C
CS was his fiancée; instead, he argued that Appellant potentially mistakenly
believed that A1C CS knew she was having sex with him and that she con-
sented to the sexual intercourse. 6
       Now, I want to talk a little bit about [Appellant] and his mis-
       take of fact as to consent. He walks in his room and the last
       thing he remembers, that last thing that happened to him with
       regards to [A1C CS] is, she was downstairs arguing with [A1C
       AK]. They had been arguing all night. He offered them to sleep
       in his bed. And they slept on the couch. [A1C AK] comes and
       wakes him up. He gets in the shower. When he comes into his
       bedroom, she is in his bed alone. Not the guest bedroom, but in
       his bed. And he starts to have sex with her. She helped him
       take her pants off. What was he supposed to do?
       ....
       A full grown man is on top [of] you with his penis inside of you.
       And his weight is on you. You don’t think that wakes you up?
       You don’t think she was like, I know what’s going on now. I
       know who is on top of me now. No screaming, no fighting, no
       injuries. We talked about the injury. She indicated she never
       fought with him. And if you think that she went downstairs
       screaming, if you think that the dog didn’t flip out? They fin-
       ished having sex. She didn’t stop it. They just had sex, and he
       ejaculated in her. So, let’s look at when there is a reasonable
       doubt with regards to his mistake of fact as to consent. Well,




6The Defense offered this as an alternative to its primary theory that A1C CS in fact
knew it was Appellant and engaged in consensual sexual intercourse with him.




                                         15
                United States v. Rich, No. ACM 39224 (en banc)


       obviously, all of the reasons for consent are reasons that he too
       would believe, wait a second, she consented to this.
    The court members found Appellant guilty of the Charge and Specifica-
tion, excepting the words “artifice” and “pretense,” of which they found Appel-
lant not guilty. Thus, Appellant was found guilty of committing sexual as-
sault against A1C CS by “concealment that [Appellant] was another person.”
    2. Law
    The adequacy of a military judge’s instructions is reviewed de novo. Unit-
ed States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006) (citations omitted).
Whether the evidence reasonably raises a required findings instruction under
R.C.M. 920(e) is also a question of law we review de novo. United States v.
Davis, 76 M.J. 224, 229 (C.A.A.F. 2017) (citations omitted). However, if an
accused fails to preserve an instructional error by an adequate objection or
request, we test for plain error, even for “required” instructions. Id. “Under a
plain error analysis, the accused ‘has the burden of demonstrating that (1)
there was error; (2) the error was plain or obvious; and (3) the error material-
ly prejudiced a substantial right of the accused.’” United States v. Payne, 73
M.J. 19, 23 (C.A.A.F. 2014) (quoting United States v. Tunstall, 72 M.J. 191,
193–94 (C.A.A.F. 2013)). “[M]erely requesting an instruction is ordinarily not
sufficient to preserve a claim of error . . . . There must be an objection no later
than after the instructions are given and before the court is closed for delib-
erations, stating that the instructions did not adequately cover the matters
raised in the requested instruction.” United States v. Maxwell, 45 M.J. 406,
426 (C.A.A.F. 1996) (citing R.C.M. 920(f)) (additional citations omitted).
    The military judge’s instructions on findings “shall include . . . [a] descrip-
tion of any special defense under R.C.M. 916 in issue . . . .” R.C.M. 920(e)(3). 7
“Defenses” under R.C.M. 916 “include[ ] any special defense which, although
not denying that the accused committed the objective acts constituting the of-
fense charged, denies, wholly or partially, criminal responsibility for those
acts.” R.C.M. 916(a) (emphasis added). R.C.M. 916(j) provides in pertinent
part: “[I]t is [generally] a defense to an offense that the accused held, as a re-
sult of ignorance or mistake, an incorrect belief of the true circumstances
such that, if the circumstances were as the accused believed them, the ac-


7 To a significant extent, the terms “defense,” “special defense,” and “affirmative de-
fense” appear to be used interchangeably in various legal authorities to reference the
specific defenses enumerated in R.C.M. 916. See United States v. Feliciano, 76 M.J.
237, 239 n.1 (C.A.A.F. 2017). Here, we employ the term “special defense” to refer
generally to defenses governed by R.C.M. 916.




                                          16
                United States v. Rich, No. ACM 39224 (en banc)


cused would not be guilty of the offense.” Thus, mistake of fact “is a defense
when it negatives the existence of a mental state essential to the crime
charged.” United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011) (quot-
ing Wayne R. LaFave, Substantive Criminal Law, § 5.6(a), at 395 (2d ed.
2003)) (additional citation omitted). However, “[w]hether an instruction on a
possible defense is warranted in a particular case depends upon the legal re-
quirements of that defense and the evidence in the record.” United States v.
Jones, 49 M.J. 85, 90 (C.A.A.F. 1998).
    “[A]ny party may request that the military judge instruct the members on
the law as set forth in the request.” R.C.M. 920(c). However, the military
judge has substantial discretionary power in deciding what non-required in-
structions to give. United States v. Damatta-Olivera, 37 M.J. 474, 478
(C.M.A. 1993) (citing R.C.M. 920(c), Discussion; United States v. Smith, 34
M.J. 200 (C.M.A. 1992)). Denial of a defense-requested instruction is re-
viewed for abuse of discretion. United States v. Carruthers, 64 M.J. 340, 345–
46 (C.A.A.F. 2007) (citations omitted). We apply a three-part test to evaluate
whether the failure to give a requested instruction is error: “(1) [the request-
ed instruction] is correct; (2) it is not substantially covered in the main [in-
struction]; and (3) it is on such a vital point in the case that the failure to give
it deprived [Appellant] of a defense or seriously impaired its effective presen-
tation.” Id. at 346 (first and second alteration in original) (quoting United
States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003)). All three prongs of the test
must be satisfied in order to find error. Barnett, 71 M.J. at 253.
   3. Analysis
       a. Was the issue preserved?
   The first question to be answered is whether trial defense counsel pre-
served the issue of the military judge’s failure to provide instructions on mis-
take of fact. We conclude they did not preserve the issue.
    At best, the Defense merely requested some instruction on mistake of fact,
and a mere request “is ordinarily not sufficient to preserve a claim of error.”
Maxwell, 45 M.J. at 426. Trial defense counsel’s brief colloquy with the mili-
tary judge before opening statements was not a request for an instruction but
merely to provide the military judge situational awareness as to what in-
structions the Defense was likely to request in the future. Trial defense coun-
sel’s tepid suggestion at the conclusion of evidence that “some language re-
garding mistake of fact may be appropriate” might generously be interpreted
as a request for an instruction. However, at no point did trial defense counsel
identify a particular instruction or propose “some language” that he believed
was “appropriate.” After the military judge responded that he was unsure
whether a mistake of fact instruction “worked” in this case and was “trying to


                                        17
                 United States v. Rich, No. ACM 39224 (en banc)


work through it,” trial defense counsel never raised such an instruction
again. Significantly, the Defense did not object when the military judge did
not include a mistake of fact instruction in the findings instructions. By con-
trast, trial defense counsel objected in writing to the military judge’s instruc-
tion on concealment and specifically requested the email containing that ob-
jection be included in the record as an appellate exhibit.
    The holding of the United States Court of Appeals for Armed Forces
(CAAF) in United States v. Killion, 75 M.J. 209 (C.A.A.F. 2016), does not in-
dicate a different conclusion. In Killion, the CAAF acknowledged the general
rule that a request for an instruction is ordinarily insufficient to preserve a
claim of instructional error. Id. at 214 (quoting Maxwell, 45 M.J. at 426).
However, the CAAF emphasized that Killion was “not an ordinary case” and
excused the trial defense counsel’s apparent failure to object based on the
particular circumstances. Id. Specifically, the trial defense counsel provided
the military judge an extensive proposed instruction, “complete with citation
to supporting legal authority, [that] was specifically tailored to the circum-
stances presented in [the] case and gave the military judge the opportunity to
correct any error in his panel instructions at trial.” Id. Furthermore, “[t]he
military judge demonstrated his awareness of defense counsel’s specific
grounds for the alternative instruction, flatly disagreed with him, and there
is no indication that further objection was likely to be successful.” Id. By con-
trast, Appellant’s trial defense counsel identified no proposed instruction,
much less instructions specifically tailored to the case and supported by legal
authority. Furthermore, the military judge did not “flatly reject” the idea of
such an instruction but indicated he was still considering the matter; the De-
fense simply let the matter drop at that point.
    Quite unlike Killion, in the instant case trial defense counsel’s advocacy
for a mistake of fact instruction was distinguished by its equivocal, non-
specific, and half-hearted nature. To find the Defense adequately preserved
this issue on appeal would be to disregard the plain language of R.C.M. 920(f)
and clear precedent from the CAAF. 8 Accordingly, we review the military
judge’s decision not to provide specific instructions on mistake of fact for
plain error.



8 We recognize our authority under Article 66, UCMJ, 10 U.S.C. § 866, to grant relief
for a legal error in spite of an appellant’s failure to preserve an issue for appeal. See
United States v. Hardy, 77 M.J. 438, 443 (C.A.A.F. 2018). However, we find no such
exercise of our authority to disregard Appellant’s failure to preserve the issue is war-
ranted in this case.




                                           18
               United States v. Rich, No. ACM 39224 (en banc)


       b. Was a mistake of fact instruction required by R.C.M. 920(e)?
   The next question we must resolve is whether some instruction on mis-
take of fact was a required findings instruction under R.C.M. 920(e). We con-
clude that, under the particular circumstances of this case, it was not.
    R.C.M. 920(e)(3) provides that the military judge must provide a “descrip-
tion of any special defense under R.C.M. 916 in issue.” (Emphasis added).
Mistake of fact is, of course, a special defense under R.C.M. 916. See R.C.M.
916(j). However, whether an accused’s possible mistake of fact is “in issue” as
a special defense depends on the evidence and the legal requirements of the
defense as they apply to the circumstances of the particular case. See Jones,
49 M.J. at 90. A “special defense” is a defense that does “not deny[ ] that the
accused committed the objective acts constituting the offense charged,” but
nevertheless denies in whole or part the accused’s criminal responsibility for
those acts. R.C.M. 916(a). If a defense does deny the accused committed the
acts that constitute the charged offense, such a defense may demonstrate the
accused is not guilty of the charge, but it is not operating as a “special de-
fense” as that term is used in R.C.M. 916 and R.C.M. 920(e)(3).
    Thus, mistake of fact operates as a special defense where the Government
may have proven the accused committed all of the acts alleged in the specifi-
cation of a charge, but, because of a mistake, the accused lacked the neces-
sary mens rea to be criminally responsible for the offense. See Goodman, 70
M.J. at 399. Conversely, if the existence of a mistaken belief disproves an el-
ement of the charged offense, proof of the mistake will still exonerate the ac-
cused by proving the alleged criminal act never took place, rather than by
denying the accused’s criminal responsibility because of a special defense,
notwithstanding the facial truth of the allegation. In either situation, evi-
dence of such a mistake may be of equally critical importance to the outcome
of the trial. However, in the latter situation, mistake of fact is “in issue” as a
special defense; in the former situation, it is not.
    Our sister court addressed an analogous situation in United States v.
Teague, 75 M.J. 636 (A. Ct. Crim. App. 2016). There, the Government
charged the appellant with committing a sexual assault on a victim who was
incapable of consenting due to impairment by an intoxicant, a condition that
was known or reasonably should have been known to the appellant. Id. at
637. On appeal, the defense argued the findings of guilty were legally and
factually insufficient because the Government failed to prove the “appellant
did not have an actual and reasonable mistake of fact as to consent.” Id. at
637–38 (internal quotations omitted). The court rejected this argument, con-
cluding that “mistake of fact as to consent can never be ‘in issue’ under
R.C.M. 920(e)(3) with respect to this specific offense.” Id. at 638. The court
reasoned:

                                       19
               United States v. Rich, No. ACM 39224 (en banc)


       If the government proves that an accused had actual
       knowledge that a victim was incapable of consenting, then, by
       definition, such an accused could not simultaneously honestly
       have believed that the victim consented. Similarly, if the gov-
       ernment proves that an accused should have reasonably known
       that a victim was incapable of consenting, the government has
       also proven any belief of the accused that the victim consented
       was unreasonable.
       In other words, we cannot imagine a logically coherent set of
       circumstances where the government has proven the elements
       of the offense and not simultaneously disproven any mistake of
       fact regarding consent. . . .
       There is no circumstance where appellant could have commit-
       ted the charged offense, but nonetheless put in issue the af-
       firmative defense of mistake of fact as to consent. See R.C.M.
       916(a) (A defense “includes any special defense which, although
       not denying that the accused committed the objective acts con-
       stituting the offense charged, denies, wholly or partially, crim-
       inal responsibility for those acts.”).
Id.; see also United States v. Bannister, No. 201600315, 2017 CCA LEXIS
361, at *10 (N.M. Ct. Crim. App. 31 May 2017) (unpub. op.) (quoting Teague
with approval).
   In the instant case, in order to establish Appellant’s guilt of committing a
sexual assault against A1C CS by concealment, the Government was re-
quired to prove Appellant “induced a belief” in A1C CS by “concealment” that
Appellant was another person. The military judge instructed the members
that “concealment” is “an act of refraining from disclosure or hiding to pre-
vent discovery,” and that “[s]ilence when [Appellant] knows that victim is act-
ing under a misapprehension as to [Appellant’s] identity may constitute con-
cealment.”
   Either of the two potential mistakes of fact now asserted by Appellant—
that Appellant believed A1C CS knowingly and consensually engaged in sex-
ual intercourse with him, or that Appellant believed he was engaging in (pre-
sumably consensual) sexual intercourse with his fiancée—would necessarily
disprove that Appellant refrained from disclosing his identity in order to pre-
vent A1C CS’s discovery that he was not who she thought he was, and there-
by induced in A1C CS a belief that he was another person. If Appellant in-




                                      20
                United States v. Rich, No. ACM 39224 (en banc)


duced by concealment a belief in A1C CS that Appellant was someone else, he
could not have simultaneously believed A1C CS was consenting to sexual in-
tercourse with Appellant. 9 Similarly, if Appellant knew A1C CS was acting
under a misapprehension as to his identity and concealed his identity from
her by his silence, he could not have also believed she was his fiancée. 10 In
other words, by proving the elements of the charged offense, the Government
necessarily disproved the existence of either asserted mistake of fact. See
Teague, 75 M.J. at 638.
    Thus mistake of fact as to consent was not “in issue” as a special defense
in the instant case, and therefore a specific instruction on mistake of fact was
not required under R.C.M. 920(e)(3). Again, this is not to say that the exist-
ence of a mistaken belief was irrelevant to Appellant’s guilt or innocence. On
the contrary, mistake as to consent was one of the theories the Defense ex-
plicitly advocated at trial. The point is that the existence of such a mistaken
belief on Appellant’s part would have disproved an element of the charged
offense. If the members had a reasonable doubt as to the existence of such a
mistaken belief, applying the instructions the military judge provided them,
they would have found Appellant not guilty of sexual assault.
    Our holding is not in conflict with United States v. Curry, 38 M.J. 77
(C.M.A. 1993), cited by our dissenting colleagues. In Curry, our superior court
addressed whether the military judge erred in providing instructions regard-
ing a defense of accident where the accused was charged with intentionally
striking a superior commissioned officer. Id. at 77–78. The court did not hold
that an instruction on the special defense of accident was required for a spe-
cific-intent offense; rather, it held the instructions the military judge actually
provided were “confusing” and “misleading.” Id. at 81. Significantly, the mili-
tary judge instructed the members, inter alia, that “the defense of accident




9 The dissenting opinion expresses concern that, without further instructions, the
court members may have believed that Appellant’s purported mistake as to A1C CS’s
consent must have been reasonable as well as actual. However, once the members
determined the elements were proven beyond a reasonable doubt, there was no room
for them to conclude Appellant was nevertheless mistaken as to A1C CS’s consent,
regardless of whether such a mistake was reasonable or not.
10As noted above, the military judge recognized that Appellant’s statement to A1C
CS that “I’m drunk[,] I thought you were my fiancé[e],” in conjunction with other evi-
dence, raised the issue of voluntary intoxication, and the military judge provided an
appropriate instruction to guide the members’ deliberations with respect to this evi-
dence.




                                         21
               United States v. Rich, No. ACM 39224 (en banc)


does not lie in a specific intent offense as Specification 1 of Charge I [striking
a superior commissioned officer], . . . .” Id. at 79. The court found:
       In this regard, the military judge’s instructions were most con-
       fusing. By informing the members that “the defense of accident
       does not lie in a specific intent offense,” the judge effectively
       told the members to disregard any accident evidence with re-
       spect to the charge of striking an officer. That is a completely
       misleading statement of law. Because it can amount to a total
       refutation of the intent element, accident can be a complete de-
       fense to any specific-intent offense.
Id. at 80.
    Thus, unlike the instant case, the court in Curry was not deciding wheth-
er the defense of accident was operating as a “special defense” for purposes of
R.C.M. 916 and R.C.M. 920(e) under the circumstances of the case. Rather,
the court addressed the military judge’s confusing and misleading instruc-
tions that suggested evidence of accident would be no defense at all to the
charge of striking a superior commissioned officer. In the instant case, if the
military judge had instructed the members that mistake was “not a defense”
to the sexual assault Appellant was charged with, we would not hesitate to
find plain error. But nothing of the kind occurred in this case. As we have
emphasized, the Defense was free to argue that Appellant may have mistak-
enly believed A1C CS consented, and if the members had agreed, they would
have found Appellant not guilty.
       c. Did the military judge abuse his discretion by declining to
give a defense-requested instruction on mistake of fact?
    The next step in our analysis is to determine whether the military judge
abused his discretion by declining to give a defense-requested instruction re-
garding mistake of fact. See Carruthers, 64 M.J. at 345–46 (citations omit-
ted). As stated above, we conclude Appellant failed to preserve this issue at
trial, and accordingly we find no abuse of discretion. Assuming arguendo that
Appellant did preserve the issue, we would still find no abuse of discretion
under the three-part test set forth in Carruthers.
    In order to find the military judge’s decision not to provide a defense-
requested instruction was error, we must find all three parts of the Car-
ruthers test to be satisfied. Barnett, 71 M.J. at 253. In this case, we need not
analyze the first two parts of the test because Appellant cannot satisfy the
third part. The third part of the test requires us to determine whether the
failure to give the instruction “deprived [the accused] of a defense or seriously
impaired its effective presentation.” Carruthers, 64 M.J. at 346 (citations
omitted). The Defense was not so deprived or impaired in this case. As de-


                                       22
               United States v. Rich, No. ACM 39224 (en banc)


scribed above, although mistake of fact as to consent did not operate as a
“special defense” for purposes of R.C.M. 916 and R.C.M. 920(e), the question
of whether Appellant believed A1C CS consented to the sexual act was mani-
festly relevant to the determination of his guilt. The Defense remained free to
develop evidence of such a mistaken belief and to argue such evidence created
a reasonable doubt that Appellant committed the acts constituting the
charged offense, and trial defense counsel in fact did so. The military judge
never suggested through his instructions or otherwise that the existence of
such a belief was not relevant to the members’ deliberations on findings.
Again, employing the instructions provided by the military judge, if the
members had a reasonable doubt as to the existence of such a mistake, they
would have found Appellant not guilty of sexual assault.
   Accordingly, we find no abuse of discretion and no plain error in the mili-
tary judge’s decision not to provide a defense-requested instruction regarding
mistake of fact.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.



LEWIS, Judge (concurring in part and dissenting in part and in the result),
joined by Senior Judge HUYGEN, Judge DENNIS, and Judge POSCH:
I agree with the opinion of the court and my esteemed colleagues who found
that the military judge did not abuse his discretion by excluding evidence un-
der Mil. R. Evid. 412. I also agree that the military judge’s instruction on
concealment did not relieve the Government of its burden to prove each ele-
ment of the sexual assault offense beyond a reasonable doubt. I respectfully
dissent from the finding of no error when the military judge failed to instruct
the members on mistake of fact as a defense.
A. Specific Intent
    At the outset, I determine that sexual assault by false pretense is a specif-
ic intent offense. The second element of the offense of which Appellant was
convicted required the Government to prove beyond a reasonable doubt that
Appellant induced a belief in Airman First Class (A1C) CS, by concealment,
that he was another person. To satisfy this element of the crime, the inducing
of a belief must have been a deliberate and knowing, or intentional, act of
Appellant. The military judge defined “artifice” as “a plan or idea intended to

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               United States v. Rich, No. ACM 39224 (en banc)


deceive;” “pretense” as “an act of pretending;” and “concealment” as “an act of
refraining from disclosure or hiding to prevent discovery.” The phrases “re-
fraining from disclosure” and “hiding to prevent discovery” in the definition of
concealment both connote a specific intent of deception.
    Additionally, the military judge instructed the panel members on the
permissive inference that “[s]ilence when [Appellant] knows that [A1C CS] is
acting under a misapprehension as to [Appellant’s] identity may constitute
concealment.” The military judge also explicitly acknowledged that Appel-
lant’s knowledge was an issue in the case. In discussing the voluntary intoxi-
cation instruction the military judge had decided to give, he noted that in-
ducement “indicates some kind of knowledge” or “at least knowledge that
[Appellant] engaged in artifice, concealment, trickery, or something like
that.” Still, the military judge provided no instruction on mistake of fact as a
defense.
B. Law
    Instructions on findings “shall include . . . [a] description of any special
defense under [Rule for Courts-Martial] R.C.M. 916 in issue.” R.C.M.
920(e)(3) (emphasis added). Mistake of fact is a “special defense” under
R.C.M. 916(j). United States v. Davis, 76 M.J. 224, 228 (C.A.A.F. 2017). It “is
a defense when it negatives the existence of a mental state essential to the
crime charged.” United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)
(quoting 1 Wayne R. LaFave, Substantive Criminal Law § 5.6(a), at 395 (2d
ed. 2003) (additional citation omitted).
   According to R.C.M. 916(j)(1):
       If the ignorance or mistake goes to an element requiring pre-
       meditation, specific intent, willfulness, or knowledge of a par-
       ticular fact, the ignorance or mistake need only have existed in
       the mind of the accused. If the ignorance or mistake goes to any
       other element requiring only general intent or knowledge, the
       ignorance or mistake must have existed in the mind of the ac-
       cused and must have been reasonable under all the circum-
       stances.
    A special defense is “in issue” when “some evidence, without regard to its
source or credibility, has been admitted upon which members might rely if
they chose.” United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012) (quoting
United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)); United States v. Wat-
ford, 32 M.J. 176, 178 (C.M.A. 1991) (quoting United States v. Taylor, 26 M.J.
127, 129–30 (C.M.A. 1988) (noting a defense is reasonably raised when there
is “‘some evidence’ to which the [panel] members might attach credence”),
overruled in part on other grounds, Davis, 76 M.J. at 226.


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                United States v. Rich, No. ACM 39224 (en banc)


C. Analysis
    The opinion of the court concludes that the Defense did not preserve the
issue of instructional error and thus reviews the military judge’s decision for
plain error. “Under a plain error analysis, the accused ‘has the burden of
demonstrating that: (1) there was error; (2) the error was plain or obvious;
and (3) the error materially prejudiced a substantial right of the accused.’”
United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (citation omitted). As-
suming arguendo that plain error is the appropriate standard of review, 1 I
conclude the military judge committed plain error by failing to provide a re-
quired instruction on mistake of fact as a defense.
    To determine whether the military judge erred by not instructing on mis-
take of fact as a defense and whether that error was plain or obvious, one
must understand that evidence of various mistakes of fact permeated Appel-
lant’s trial. To prove the charged offense, the Government had to prove be-
yond a reasonable doubt that A1C CS was mistaken about Appellant’s identi-
ty. The members also had to reconcile evidence indicating Appellant may
have been mistaken about two separate facts.
    Evidence of Appellant’s first possible mistake of fact arose from the testi-
mony of A1C CS during direct examination. She recalled Appellant stating,
“Oh s**t. I am so sorry. I am so sorry. I’m drunk. I thought you were my fian-
cé[e].” (Emphasis added). The only instruction the military judge gave on this
evidence was that it could be used for the limited purpose of its tendency, if
any, to show Appellant’s awareness of his guilt of the offense charged. Alt-
hough the Government argued why this apparent mistake of fact was not a
defense, Appellant did not choose to defend his case based on this possible
mistake. Therefore, the military judge’s failure to instruct on this mistake of
fact as a defense, even if obvious error, did not materially prejudice a sub-
stantial right of Appellant and was not plain error.
    Appellant’s second possible mistake of fact was integrated fully into Ap-
pellant’s defense. This possible mistake was whether Appellant mistakenly

1 I assume without agreeing that plain error is the standard of review because of the
facts and circumstances of the Defense’s requests for instructions. I note that, prior
to opening statements, the military judge stated, “I appreciate the instructions that I
received from both sides. That will help me. In large part there is agreement. I know
that one area’s dispute has to do with defining some of the terms in the charged of-
fense.” (Emphasis added). The instructions the military judge “received” are not con-
tained in the record of trial. We do not know whether either or both parties indicated
a mistake of fact instruction was appropriate. We do know that both parties dis-
cussed mistake of fact as a defense in their respective closing arguments.




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               United States v. Rich, No. ACM 39224 (en banc)


believed that A1C CS knew she was having sex with him, not her boyfriend.
In closing argument, the Defense used a visual aid to discuss evidence of this
mistake with five points explaining why Appellant mistakenly believed that
A1C CS knew she was having sex with him. Additionally, the evidence of A1C
CS’s knowledge of Appellant’s identity was discussed by the parties and the
military judge before he decided to admit certain evidence under Mil. R. Evid.
412 as described in the opinion of the court.
    Considering the multiple mistakes of fact at issue in Appellant’s case, we
turn to the military judge’s decision not to instruct the members on mistake
of fact as a defense, even after the Defense requested that he do so. “Any
doubt whether an instruction should be given should be resolved in favor of
the accused.” United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000) (citing
United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981)). The military
judge acknowledged the Defense’s request by “trying to work through wheth-
er mistake of fact was a defense in this fact pattern.” Instead, he should have
resolved the matter in favor of Appellant and given the instruction. His fail-
ure to do so was error, and the error was obvious in the context of the multi-
ple mistakes of fact discussed throughout Appellant’s trial.
    The opinion of the court draws the opposite conclusion and finds no error
because mistake of fact was not a special defense “in issue” in Appellant’s
case under R.C.M. 920(e) and thus no instruction was required. The opinion
of the court finds support for its position in decisions of other service courts of
criminal appeals, holding that mistake of fact can never be a special defense
“in issue” in a sexual assault when the other person is incapable of consent.
See, e.g., United States v. Teague, 75 M.J. 636, 638 (A. Ct. Crim. App. 2016);
United States v. Bannister, No. 201600315, 2017 CCA LEXIS 361, at *10
(N.M. Ct. Crim. App. 31 May 2017) (unpub. op.). Thus, the opinion of the
court relies on an implicit finding that sexual assault by false pretense is
analogous to sexual assault when the other person is incapable of consent.
United States v. Rich, ___ M.J. ___, No. ACM 39224, slip. op. at 19–20 (A.F.
Ct. Crim. App. 18 Jun. 2019). I find the analogy fundamentally flawed.
    Sexual assault of a person incapable of consent has a statutory mens rea
that the impairment, mental disease or defect, or physical disability is
“known or reasonably should be known” to an accused. Article 120(b)(3),
UCMJ, 10 U.S.C. § 920(b)(3). The Army court in Teague found that if the
Government proved an accused had actual knowledge that a victim was inca-
pable of consenting, then it also disproved the accused had an honest mistake
of fact. 75 M.J. at 638. The Army court also found that if the Government
proved the accused should have known of the victim’s incapacity, then it
proved any mistaken belief of the accused was unreasonable. Id.



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                United States v. Rich, No. ACM 39224 (en banc)


   I distinguish Teague on two grounds. First, our sister court was faced
with a challenge to the factual and legal sufficiency of Teague’s conviction
under Article 120, UCMJ. Teague was a case decided by a military judge, so
there were no member instructions to dissect on appeal. 2 Second, the sexual
assault offense in Teague is a general intent crime. This means, to be a de-
fense, the mistake of fact must have been both an honest belief in Teague’s
mind and an objectively reasonable belief under the circumstances. In Appel-
lant’s case involving a specific intent crime, the mistake of fact needed only to
be an honest belief in Appellant’s mind. This distinction is important, partic-
ularly with regard to prejudice as I discuss below.
    I carefully considered whether Teague could or should be extended to con-
clude that mistake of fact is “baked into” the element of inducing a belief by
concealment in a case of sexual assault by false pretense. See 75 M.J. at 638.
While the military judge and trial defense counsel during Appellant’s trial
did not mention Teague or any other case involving mistake of fact as a de-
fense, the record indicates that both understandably struggled with how mis-
take of fact as a defense applied. Indeed, this court is split on whether mis-
take of fact is a special defense “in issue.” The conundrum is complicated by
the lack of precedent, as the offense of sexual assault by false pretense is
rarely seen in military appellate court decisions. 3 However any appellate
judge decides what may seem to be a purely legal issue of instructional error,
I ultimately base my determination of plain error on how the finder of fact
evaluates the evidence, particularly when the factfinder is a panel of mem-
bers. In Appellant’s case, the members were given no instruction on how to
consider mistake of fact as a defense. This absence of information on a purely
legal matter is precisely why any doubt whether to give a mistake of fact in-
struction should have been resolved in favor of Appellant. See Davis, 53 M.J.
at 205 (citation omitted).
    Military judges are presumed to know the law and to follow it absent
clear evidence to the contrary. United States v. Erickson, 65 M.J. 221, 225
(C.A.A.F. 2007) (citation omitted). So in a trial before a military judge sitting
alone, like Teague, an appellate court would presume, absent clear evidence

2 Bannister was also a challenge on appeal to legal and factual sufficiency, but the
conviction was decided by officer members. Bannister, unpub. op. at *1. There was no
assignment of error and the opinion does not address whether the military judge
failed to instruct or instructed on mistake of fact. Id.
3 Research disclosed only United States v. Miceli, No. 201700062, 2017 CCA LEXIS
581 (N.M. Ct. Crim. App. 31 Aug. 2017) (unpub. op.), a case involving a guilty plea to
sexual assault by false pretense under Article 120(b), UCMJ.




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               United States v. Rich, No. ACM 39224 (en banc)


to the contrary, that the military judge knew how to assess any evidence of
mistake of fact presented during the trial. The same presumption does not
apply in a case tried before members, such as Appellant’s.
     Even if the opinion of the court is legally correct that disproving mistake
of fact beyond a reasonable doubt is “baked into” the elements of sexual as-
sault by false pretense (and thus mistake of fact is not a special defense “in
issue” requiring an instruction), this does not mean a military judge is ab-
solved of giving otherwise required instructions to court members. On this
point, I consider informative our superior court’s explanation of the defense of
accident in United States v. Curry, 38 M.J. 77, 80 (C.M.A. 1993). The Court of
Military Appeals (CMA) acknowledged that accident was listed as a defense
in R.C.M. 916(f) and then explained that “[a]ccident, while loosely called an
‘affirmative defense’ is more accurately a ‘substantive law defense which neg-
atives guilt by cancelling out’ one or more mens rea components.” Id. (cita-
tions omitted). A claim of accident can only amount to an attack on an ele-
ment since the “defense” cannot exist side by side with the Government’s
prima facie case. Id. at 80 n.4. In Curry, the CMA also compared the lay defi-
nition of “accident” with the legal definition of “accident” and found the latter
was different and much narrower than the former. Id. at 80 n.5. Ultimately,
the CMA determined that the accident instruction was required because it
was raised by the evidence and reasoned that “a ‘defense’ of accident clearly
applies to all allegations of assault” and “can be a complete defense to any
specific-intent offense.” Id. at 80. Although the plain error involved in Curry
was the military judge’s instruction to the members that the defense of acci-
dent did not apply, Curry held that an instruction is still required even when
the evidence cancels out mens rea. I apply its rationale instead of Teague’s to
Appellant’s case.
    Mistake of fact is a technical legal term with differing meanings based on
the offense charged and its elements. Indeed, military judges are cautioned
they “must carefully examine the elements of the offense, affirmative defens-
es, and relevant case law, in order to determine what standard applies to a
mistake of fact instruction.” Military Judges’ Benchbook, Dept. of the Army
Pamphlet 27–9 at 1007 (10 Sep. 2014). 4 In Appellant’s case, even if the need
for a mistake of fact instruction was somehow in doubt at the conclusion of
the presentation of the evidence, the military judge should have had no hesi-
tation after hearing the closing arguments and how both parties argued the


4 Mistake of fact as a defense to sexual assault is also mentioned in the model in-
structions for Article 120, UCMJ. Benchbook, at 578 n.10.




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               United States v. Rich, No. ACM 39224 (en banc)


evidence of mistake of fact. The military judge should have realized an in-
struction on mistake of fact was necessary for the members to evaluate the
evidence and decide if the elements of the offense had been proven. In the full
context of Appellant’s trial, the military judge’s failure to instruct on mistake
of fact was plain or obvious error.
    I now turn to whether the error materially prejudiced Appellant and find
that it did. Without proper instruction from the military judge, the members
had no information on how to use the evidence of mistake of fact before they
convicted Appellant. Any confusion was compounded as each side argued evi-
dence of a different mistake. An instruction on mistake of fact would have
served as guidance on the law to accompany the practical guidance of the in-
struction that members should use their “own common sense” in weighing
and evaluating the evidence.
    Taking a closer look at only the second mistake of fact—that Appellant
mistakenly believed that A1C CS knew she was having sex with him—I find
the error all the more prejudicial when the members applied only their com-
mon sense without the benefit of any instruction on mistake of fact. As dis-
cussed above, I find not only that an instruction on mistake of fact was re-
quired but also that Appellant’s mistake of fact needed only be honest to con-
stitute a defense to the charged sexual assault by false pretense. One of the
facts relied on by trial defense counsel to present a defense of Appellant’s
mistake was the argument between A1C CS and her boyfriend that Appellant
witnessed and that lasted throughout the night. During rebuttal argument,
trial counsel, apparently sarcastically, questioned the premise of the defense
as “Really? That’s the heartbreaking argument that’s going to cause [A1C CS]
to go have sex with another man?” It is easy to see how one or more members
could, using common sense alone and not being instructed on the defense of
mistake of fact, reject Appellant’s defense of an honest mistake after conclud-
ing his mistake was not reasonable.
    I simply cannot find the verdict in Appellant’s case would have been the
same absent the military judge’s failure to instruct on mistake of fact. See
Payne, 73 M.J. at 25 (citing Neder v. United States, 527 U.S. 1, 8 (1999)). Ap-
pellant defended on mistake of fact as part of his trial strategy. He vigorously
contested the Government’s evidence, which was not overwhelmingly strong.
Evidence of mistake of fact was critical to every aspect of this case for both
Appellant and the Government. Absent evidence to the contrary, we presume
that the members who decided Appellant’s case followed the military judge’s
instructions. See United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000)
(citations omitted). By following the only instruction they had to resolve
questions of mistake of fact, which told them to just use their common sense,
the members were not required to determine whether the Government


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               United States v. Rich, No. ACM 39224 (en banc)


proved beyond a reasonable doubt that Appellant was not honestly mistaken
A1C CS knew she was having sex with him. In my view, the military judge’s
failure to instruct the members on mistake of fact as a defense to the charged
sexual assault by false pretense was plain error and requires that the find-
ings and sentence be set aside and a rehearing authorized.


                FOR THE COURT



                CAROL K. JOYCE
                Clerk of the Court




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