United States v. Davis

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Nicholas E. DAVIS, Private
United States Army, Appellant
No. 19-0104
Crim. App. No. 20160069
Argued November 6, 2019—February 12, 2020
Military Judge: Wade Faulkner
For Appellant: Captain Joseph C. Borland (argued); Lieu-
tenant Colonel Tiffany D. Pond, Major Jack D. Einhorn, and
Captain Benjamin A. Accinelli (on brief); Captain Bryan A.
Osterhage.
For Appellee: Captain Brian Jones (argued); Colonel Steven
Haight, Lieutenant Colonel Wayne H. Williams, and Major
Craig Schapira (on brief); Captain Jeremy S. Watford.
Chief Judge STUCKY delivered the opinion of the Court,
in which Judges RYAN, OHLSON, SPARKS, and
MAGGS, joined. Judge MAGGS filed a separate concur-
ring opinion.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
Any person subject to the Uniform Code of Military Jus-
tice (UCMJ) who, “without legal justification or lawful au-
thorization” nevertheless “knowingly…records by any means
the private area of another person, without that other per-
son’s consent and under circumstances in which that other
person has a reasonable expectation of privacy…is guilty of
an offense.” Article 120c(a)(2), UCMJ, 10 U.S.C. § 920c(a)(2)
(2012). We granted review to determine whether, as Appel-
lant argues, the offense requires the prosecution to prove be-
yond a reasonable doubt that he subjectively knew the alleged
victim was not consenting. Because Appellant affirmatively
waived any objection to the military judge’s instructions on
the elements of Article 120c(a)(2), we need not reach the
granted issue of whether the mens rea of “knowingly” applies
United States v. Davis, No. 19-0104/AR
Opinion of the Court
to the consent element of that offense, and thus affirm the
judgment below.
I. Posture
At a general court-martial, the military judge convicted
Appellant, pursuant to his pleas, of two specifications of vio-
lating a lawful general order, in violation of Article 92, UCMJ,
10 U.S.C. § 892 (2012). Court members convicted Appellant,
contrary to his pleas, of one specification of false official state-
ment, one specification of indecent recording, and one specifi-
cation of broadcasting an indecent recording, in violation of
Articles 107, 120c, UCMJ, 10 U.S.C. §§ 907, 920c (2012). The
court members sentenced Appellant to a bad-conduct dis-
charge and reduction to the grade of E-1. The military judge
granted Appellant fifteen days of credit, for time spent in pre-
trial confinement, against the adjudged sentence. The con-
vening authority approved the adjudged sentence. That ac-
tion was withdrawn and a new convening authority approved
the adjudged sentence and credited Appellant with fifteen
days of confinement against his sentence. 1
The United States Army Court of Criminal Appeals (CCA)
dismissed the indecent broadcasting specification as factually
and legally insufficient, but otherwise affirmed the findings
and sentence. United States v. Davis, No. ARMY 20160069,
2018 CCA LEXIS 417, at *27–28, 2018 WL 3996488, at *10
(A. Ct. Crim. App. Aug. 16, 2018). The court did not address
this granted issue. The CCA denied Appellant’s motion for re-
consideration. United States v. Davis, No. ARMY 20160069
(A. Ct. Crim. App. Oct. 17, 2018).
This Court initially granted review to determine whether
the military judge was required to instruct that the prosecu-
tion prove not just that Appellant knowingly recorded but also
that he knew the recording was done without the alleged vic-
tim’s consent, and affirmed the CCA’s judgment on June 18,
2019. United States v. Davis, 79 M.J. 148 (C.A.A.F. 2019)
1 As Appellant’s sentence did not include confinement, hard la-
bor without confinement, restriction, fine, or forfeiture of pay, Ap-
pellant was not entitled to sentence relief. See United States v.
Rosendahl, 53 M.J. 344, 347–48 (C.A.A.F. 2000); Rule for Courts-
Martial (R.C.M.) 305(k).
2
United States v. Davis, No. 19-0104/AR
Opinion of the Court
(summary disposition). Following Appellant’s petition for re-
consideration, and in light of Rehaif v. United States, 139 S.
Ct. 2191 (2019), this Court then granted review of whether
the mens rea of “knowingly” applies to the consent element of
Article 120c(a)(2). United States v. Davis, 79 M.J. 213(C.A.A.F. 2019).
II. Background
As the underlying facts leading to the charges and convic-
tions in this case are not relevant to the granted issue, it suf-
fices to say that Appellant was accused of recording the pri-
vate area of another without her consent and when she had a
reasonable expectation of privacy. The following facts from
Appellant’s court-martial, however, are relevant to the
granted issue.
At the court-martial, the military judge gave the following
instructions pertaining to the consent element of the indecent
recording charge:
[T]he accused is charged with the offense of indecent
visual recording, in violation of Article 120c, UCMJ.
In order to find the accused guilty of this offense, you
must be convinced by legal and competent evidence
beyond a reasonable doubt…[t]hat the accused did
so without the consent of [the victim]….
….
“Consent” means a freely given agreement to the
conduct at issue by a competent person. An expres-
sion of lack of consent through words or conduct
means there is no consent. Lack of verbal or physical
resistance or submission resulting from the ac-
cused’s use of force, threat of force, or placing an-
other person in fear does not constitute consent. A
current or previous dating or social or sexual rela-
tionship by itself or the manner of dress of the per-
son involved with the accused in the conduct at issue
shall not constitute consent.
Lack of consent may be inferred based on the cir-
cumstances of the offense. All of the surrounding cir-
cumstances are to be considered in determining
whether a person gave consent, or whether a person
did not resist or ceased to resist only because of an-
other person’s actions. A sleeping, unconscious, or
incompetent person cannot consent.
3
United States v. Davis, No. 19-0104/AR
Opinion of the Court
The prosecution has the burden to prove lack of
consent beyond a reasonable doubt. Therefore, to
find the accused guilty of the offense of indecent vis-
ual recording…you must be convinced beyond a rea-
sonable doubt that, at the time of the conduct al-
leged, [the victim] did not consent.
Before issuing the above instructions to the panel, the mil-
itary judge explained to counsel for both parties the instruc-
tions that he chose to give, including the consent element in-
struction. Afterwards, the military judge asked whether the
defense had any objections or requests for additional instruc-
tions. After consulting with the assistant defense counsel, the
defense counsel answered, “No changes, sir.” After the mili-
tary judge granted a finding of not guilty on one of the speci-
fications and marked the instructions as an appellate exhibit,
he again asked the defense if there were any objections to the
findings instructions. The defense counsel replied: “No, Your
Honor.”
Appellant now argues that it was plain error for the mili-
tary judge to instruct the members that a required element of
Article 120c(a)(2) is lack of consent, without also specifying
that the accused must have subjectively known that the al-
leged victim did not consent. However, we cannot decide
whether Appellant’s interpretation of Article 120c(a)(2) is cor-
rect, because Appellant waived this claim.
III. Discussion
A. Waiver
Whether an appellant has waived an issue is a legal ques-
tion that this Court reviews de novo. See United States v.
Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019). “ ‘Waiver is different
from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional relin-
quishment or abandonment of a known right.’ ” United States
v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (internal quota-
tion marks omitted) (citation omitted) (quoting United States
v. Olano, 507 U.S. 725, 733 (1993)). Consequently, while 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.” United States v. Campos, 67 M.J. 330,
332 (C.A.A.F. 2009) (internal quotation marks omitted) (cita-
tion omitted).
4
United States v. Davis, No. 19-0104/AR
Opinion of the Court
B. Analysis
As relevant here, “[f]ailure to object to an instruction or to
omission of an instruction before the members close to delib-
erate constitutes waiver of the objection in the absence of
plain error.” R.C.M. 920(f). This Court has interpreted that
provision as referring to forfeiture, not waiver. See, e.g.,
United States v. Davis, 76 M.J. 224, 227 n.1 (C.A.A.F. 2017);
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). But
Appellant did not just fail to object and thereby merely for-
feited his claim. He affirmatively declined to object to the mil-
itary judge’s instructions and offered no additional instruc-
tions. By “expressly and unequivocally acquiescing” to the
military judge’s instructions, Appellant waived all objections
to the instructions, including in regards to the elements of the
offense. United States v. Smith, 2 C.M.A. 440, 442, 9 C.M.R.
70, 72 (1953); see also United States v. Wall, 349 F.3d 18, 24
(1st Cir. 2003) (“[C]ounsel twice confirmed upon inquiry from
the judge that he had ‘no objection and no additional requests
[regarding the instructions].’ Having directly bypassed an of-
fered opportunity to challenge and perhaps modify the in-
structions, appellant waived any right to object to them on
appeal.”). 2 As Appellant has affirmatively waived any objec-
tion to the military judge’s findings instructions, there is
nothing left for us to correct on appeal. See, e.g., Campos, 67
M.J. at 332; Ahern, 76 M.J. at 198 (“[U]nder the ordinary
rules of waiver, Appellant’s affirmative statements that he
had no objection [to the admission of the contested evidence]
also operate to extinguish his right to complain…on appeal.”);
cf. United States v. Payne, 73 M.J. 19, 23–24 (C.A.A.F. 2014)
(holding that where trial defense counsel objected generally
to all of the military judge’s proposed findings instructions,
only plain error review was appropriate, as the objection was
not sufficiently specific to preserve the error on appeal).
Citing United States v. Haverty, 76 M.J. 199, 208 (C.A.A.F.
2017), Appellant nevertheless asks us to review the granted
2 Other federal courts have ruled similarly. See, e.g., United
States v. Smith, 531 F.3d 1261, 1268 (10th Cir. 2008) (deciding that
the defendant had waived the issue when he had “affirmatively rep-
resented that he had no objection to the admission of the evidence
at issue” and “also relied on the evidence himself”).
5
United States v. Davis, No. 19-0104/AR
Opinion of the Court
issue for plain error. We previously have said that “[p]anel
instructions are analyzed for plain error based on the law at
the time of appeal.” Id. We generally only review the matter
for plain error when a new rule of law exists, as “[a]n appel-
lant gets the benefit of changes to the law between the time
of trial and the time of his appeal.” United States v. To-
varchavez, 78 M.J. 458, 462 (C.A.A.F. 2019); see also United
States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017) (“[W]hen
there is a new rule of law, when the law was previously un-
settled, and when the [trial court] reached a decision contrary
to a subsequent rule…it is enough that an error be plain at
the time of appellate consideration.” (alterations in original)
(internal quotation marks omitted) (quoting Henderson v.
United States, 133 S. Ct. 1121, 1130) (2013))).
In this case, however, Appellant was tried after the appli-
cable precedents 3 were decided, yet affirmatively declined to
object to the military judge’s instructions. Appellant’s reli-
ance on Rehaif, 139 S. Ct. 2191, to excuse his waiver is una-
vailing. There, the Supreme Court held that the trial judge’s
findings instructions had inappropriately limited the reach of
the statute’s mens rea of “knowingly,” over the appellant’s ob-
jection. Id. at 2200. But Rehaif did not create new law. See,
e.g., Flores-Figueroa, 556 U.S. at 652–53. As Appellant con-
cedes, it merely reiterated that, “[a]s a matter of ordinary
English grammar, we normally read the statutory term
“knowingly” as applying to all the subsequently listed ele-
ments of the crime.” Rehaif, 139 S. Ct. at 2196 (internal quo-
tation marks omitted) (citation omitted).
Therefore, we cannot review the granted statutory inter-
pretation question because Appellant waived the claim by
waiving any objection to the military judge’s instructions re-
garding the consent element. Accordingly, we hold only that
Appellant has affirmatively waived the issue.
3 Appellant relies upon several Supreme Court decisions in ob-
jecting to the military judge’s instructions regarding the consent el-
ement. See Flores-Figueroa v. United States, 556 U.S. 646, 650
(2009); United States v. X-Citement Video, Inc., 513 U.S. 64, 72
(1994); Staples v. United States, 511 U.S. 600, 605 (1994).
6
United States v. Davis, No. 19-0104/AR
Opinion of the Court
IV. Judgment
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
7
United States v. Davis, No. 19-0104/AR
Judge MAGGS, concurring.
The Court’s decision has important consequences for coun-
sel in all future trials before members. In this case, the mili-
tary judge informed counsel of the instructions that he in-
tended to give. Then, in accord with the script in the Military
Judges’ Benchbook, the military judge asked both parties
whether they had any objections to the instructions. 1 Both
counsel answered in the negative. The Court holds that their
answers waived (and not merely forfeited) any objection to the
instructions and that this waiver prevents any review of the
instructions. Counsel in future cases therefore must be espe-
cially careful to raise any objections that they might have to
proposed instructions when the military judge asks them—as
military judges do in almost every case before members—
whether they have any objections.
I write separately to address the question of whether to-
day’s decision is inconsistent with United States v. Haverty,
76 M.J. 199 (C.A.A.F. 2017). Appellant cites Haverty for the
proposition that, in the absence of a defense objection, this
Court reviews panel instructions for plain error. Brief for Ap-
pellant at 6, United States v. Davis, No. 19-0104 (C.A.A.F.
Aug. 29, 2019) (citing Haverty, 76 M.J. at 208). In other words,
Appellant contends that Haverty requires us to treat his fail-
ure to object as mere forfeiture rather than waiver. I believe
that this argument warrants careful attention.
This case and Haverty are nearly identical in a key re-
spect. A review of the record in Haverty reveals that the mili-
tary judge in that case, as in this case, presented proposed
instructions to the parties and asked the parties, in accord
with the Military Judges’ Benchbook, whether they had any
objection. In both cases, the parties told the military judge
that they had no objection. Yet the holdings of the cases are
different. In Haverty we held that the appellant merely for-
feited his objection, 76 M.J. at 208, while in this case we hold
that Appellant waived his objection.
1 The Military Judges’ Benchbook includes the question: “Does ei-
ther side have any objection to those instructions?” Dep’t of the
Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 2,
§ V, para. 2-5-8 (Sept. 10, 2014).
United States v. Davis, No. 19-0104/AR
Judge MAGGS, concurring
The only explanation that we expressly gave in Haverty
for our conclusion that the appellant forfeited his objection is
that he did not object. 2 That explanation by itself does not
distinguish Haverty from this case because the same is true
here. What we left unstated in Haverty, but what we certainly
understood, was that the appellant’s failure to object could
not be a waiver because it was not an intentional relinquish-
ment of a known right. See United States v. Gladue, 67 M.J.
311, 313 (C.A.A.F. 2009) (defining waiver). The appellant in
Haverty could not have intentionally waived his objection to
an instruction regarding the required mens rea because the
relevant controlling precedent of both this Court and the Su-
preme Court about the mens rea at issue were decided after
the appellant’s court-martial had been completed. See
Haverty, 76 M.J. at 208. Thus, Haverty involved more than
counsel for both sides merely answering the military judge’s
question whether they had any objections in the negative and
is therefore distinguishable from this case.
2 In Haverty, we stated: “Because Appellant did not object to the
military judge’s failure to instruct the members on a mens rea re-
quirement for the offense of hazing under Article 92, UCMJ, we re-
view this issue for plain error.” 76 M.J. at 208.
2