U.S. v. Feliciano, 76 M.J. 237

Military Justice Personnel: Military Judge: Instructions

1. a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could find in the favor of the accused in regard to that defense

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. voluntary abandonment is a defense to the crime of attempt
2. it is a defense to an attempt offense that the person voluntarily and completely abandoned the intended crime, solely because of the person’s own sense that it was wrong, prior to the completion of the crime; the voluntary abandonment defense is not allowed if abandonment results, in whole or in part, from other reasons, for example, the person feared detection or apprehension, decided to await a better opportunity for success, was unable to complete the crime, or encountered unanticipated difficulties or unexpected resistance

Core Criminal Law Subjects: Defenses: Generally

1. voluntary abandonment is a defense to the crime of attempt
2. it is a defense to an attempt offense that the person voluntarily and completely abandoned the intended crime, solely because of the person’s own sense that it was wrong, prior to the completion of the crime; the voluntary abandonment defense is not allowed if abandonment results, in whole or in part, from other reasons, for example, the person feared detection or apprehension, decided to await a better opportunity for success, was unable to complete the crime, or encountered unanticipated difficulties or unexpected resistance
3. because there was no evidence that appellant decided not to complete the sexual assault of the victim solely because of his own sense that it was wrong, appellant was not entitled to an instruction on the affirmative defense of voluntary abandonment for the charge of attempted aggravated sexual assault; rather, the evidence showed that he only ceased his attempted aggravated sexual assault of the victim after being reminded by a witness that what he was about to do was wrong and that he would suffer serious repercussions if he continued

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. the three defenses under RCM 916 for which the defense bears the initial burden of proof (lack of mental responsibility, mistake of fact as to age, and mistake of fact as to consent) should be appropriately referred to as affirmative defenses, and every other defense under the rule is a special defense that, if raised at trial, the defense need not initially prove in order for the burden of proof to be placed on the prosecution

Trial Stages: Merits: Instructions › Generally

1. generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous

Trial Stages: Appeals: Harmless / Prejudicial Error

1. generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous
2. where consent was not evidenced in the record, any possible error resulting from the military judge instructing on the mistake of fact as to consent defense was harmless beyond a reasonable doubt; the instruction was superfluous and did not shift the burden of proof

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where appellant failed to object at trial to the military judge’s failure to instruct panel members on the affirmative defense of voluntary abandonment, the issue was forfeited and an appellate court reviews the matter for plain error
2. on plain error review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim
3. where appellant failed to establish that the military judge erred in not instructing on the voluntary abandonment defense, the plain error test was not met

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where appellant failed to object at trial to the military judge’s failure to instruct panel members on the affirmative defense of voluntary abandonment, the issue was forfeited and an appellate court reviews the matter for plain error

Trial Stages: Appeals: Waiver

1. waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; if an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews for plain error; when, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal