       This opinion is subject to revision before publication




        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                    Jeffrey D. SAGER,
              Aviation Ordnanceman Airman
               United States Navy, Appellant
                          No. 16-0418
                    Crim. App. No. 201400356
      Argued November 15, 2016—Decided March 21, 2017
                Military Judge: John A. Maksym
   For Appellant: Lieutenant Doug Ottenwess, JAGC, USN
   (argued); Lieutenant David W. Warning, JAGC, USN (on
   brief).
   For Appellee: Lieutenant Commander Justin C. Henderson,
   JAGC, USN (argued); Captain Mathew M. Harris, USMC,
   and Brian K. Keller, Esq. (on brief); Colonel Mark K.
   Jamison, USMC.
   Chief Judge ERDMANN delivered the opinion of the
   court, in which Judges RYAN, OHLSON, and SPARKS
   joined. Judge STUCKY filed a separate dissenting
   opinion.
                      _______________

   Chief Judge ERDMANN delivered the opinion of the
court.
    Contrary to his pleas, a mixed panel sitting as a general
court-martial convicted Aviation Ordnanceman Airman (AN)
Jeffrey D. Sager of one specification of abusive sexual
contact, in violation of Article 120(d), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 120(d) (2012).
Consistent with his plea, Sager was acquitted of a separate
specification of abusive sexual contact in alleged violation of
Article 120(d), UCMJ. Sager was sentenced to a bad-conduct
discharge and twenty-four months of confinement. The
convening authority approved the sentence as adjudged and
the United States Navy-Marine Corps Court of Criminal
Appeals (CCA) affirmed the findings and the sentence.
               United States v. Sager, No. 16-0418/NA
                        Opinion of the Court

    Article 120(d), UCMJ, prohibits sexual contact with
another person if they are “asleep, unconscious, or otherwise
unaware that the sexual [contact] is occurring.”1 We granted
review to determine whether the CCA erred when it held
that this language created a single theory of criminal
liability and also whether the CCA erred when it relied on
facts of which Sager had been acquitted to affirm his
conviction.2 We hold that the CCA erred in its interpretation
of Article 120(d) and remand the case for reconsideration
consistent with this opinion.
                              Background
    At trial, Sager was charged with two specifications of
violating Article 120(d), UCMJ. The first charge alleged that
Sager committed sexual contact on AN TK while he was
incapable of consenting due to impairment by an intoxicant.
The Additional Charge alleged that Sager committed sexual
contact on AN TK while he was incapable of consenting
because he was asleep, unconscious, or otherwise unaware
that the contact was occurring.3
   Following the merits portion of the court-martial, the
military judge provided the panel with his instructions and
the findings worksheet. The military judge explained the
format of the findings worksheet to the panel:
            As you can see, Madam President, this is very
         straightforward. The interesting part is that you
         have to circle under the charge and specification

   1   By incorporation of language from Article 120(b)(2), UCMJ.
   2   The court granted the following issues:
         I. In affirming the abusive sexual contact conviction, the
       lower court relied on facts of which the members acquitted
       Appellant. Was this error?
         II. Article 120(d), UCMJ, prohibits sexual contact on
       another person when that person is “asleep, unconscious, or
       otherwise unaware.” Despite these specific statutory terms,
       the lower court held that “asleep” and “unconscious” do not
       establish theories of criminal liability, but only the phrase
       “otherwise unaware” establishes criminal liability. Did the
       lower court err in its interpretation of Article 120(d), UCMJ?
   3  The initial Specification 1 of Charge I was subject to a
successful motion to dismiss and was later re-referred as an
Additional Charge, while the initial Specification 2 of Charge I
was renumbered as the sole Specification of Charge I.



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            United States v. Sager, No. 16-0418/NA
                     Opinion of the Court

      the theory of the government you adopt if you
      convict. You’ll notice that …. [i]t’s he knew or
      should have known …. That means you’re going to
      have to vote one that – on both theories ….
      The first vote is going to be, okay, is he guilty or not
      guilty of the charge under the … specification
      under the theory of “knew” he knew. Is he guilty or
      not guilty under the theory of “should have known”
      because the government has both theories …. But
      you have to circle the one that’s applicable, okay.
    At the conclusion of deliberations, the members found
Sager not guilty of Charge I (alleging AN TK was incapable
of consenting due to his intoxication), but guilty of the
Additional Charge (alleging AN TK was incapable of
consenting because he was otherwise unaware that the
sexual act was occurring). The members completed the
findings worksheet as follows:




   The panel’s finding was mirrored by Appellant’s Court-
Martial Order, which reflected that Appellant was “Guilty of
touching the penis of [AN TK] with his hand when he
reasonably should have known that [AN TK] was otherwise
unaware that the sexual contact was occurring.”
    On appeal before the CCA, Sager argued that Article
120(d) was unconstitutionally vague and that his conviction
for abusive sexual contact of TK while he was “otherwise
unaware” was factually and legally insufficient. United
States v. Sager, No. NMCCA 201400356, 2015 CCA LEXIS
571, at *1-2, 2015 WL 94872926, at *1 (N-M. Ct. Crim. App.
Dec. 29, 2015) (unpublished). The CCA concluded:
      that asleep or unconscious are examples of how an
      individual may be “otherwise unaware” and are not



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             United States v. Sager, No. 16-0418/NA
                      Opinion of the Court

       alternate theories of criminal liability. A plain
       reading of the phrase is that a person cannot
       engage in sexual contact with another person when
       he/she knows or reasonably should know that the
       recipient of the contact does not know it is
       happening.
2015 CCA LEXIS 571, at *9, 2015 WL 9487926, at *3.
   Further, when analyzing Sager’s challenge to the factual
and legal sufficiency of his conviction, the CCA found that:
          AN TK testified that when he awoke the
       appellant was already manually stimulating his
       penis. The Government introduced substantial
       evidence that AN TK was heavily intoxicated when
       he returned to FC2 DS’s apartment and laid on the
       futon. Whether AN TK was asleep or unconscious
       due to alcohol consumption/exhaustion, or a
       combination of these things is only relevant as to
       whether the appellant reasonably should have
       known AN TK was “otherwise unaware” of the
       sexual contact. After carefully reviewing the entire
       record of trial, to include all testimony and
       admitted exhibits, and considering the evidence in
       the light most favorable to the prosecution, we are
       convinced that a reasonable fact-finder could have
       found all the essential elements beyond a
       reasonable doubt. Furthermore, after weighing all
       the evidence in the record of trial and having made
       allowances for not having personally observed the
       witnesses, we are convinced beyond a reasonable
       doubt that the appellant reasonably should have
       known AN TK was otherwise unware [sic] that the
       sexual act was occurring. Thus, we find the
       appellant's conviction on the Additional Charge and
       specification is both legally and factually sufficient.
2015 CCA LEXIS 571, at *11-12, 2015 WL 9487926, at *4.
                           Discussion4

   We are initially asked to determine whether the CCA
erred in its interpretation of the following language of
Article 120(b)(2), as incorporated into Article 120(d):
commits a sexual contact “upon another person when the
person knows or reasonably should know that the other


   4 For discussion purposes we have reversed the order of the
issues.



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            United States v. Sager, No. 16-0418/NA
                     Opinion of the Court

person is asleep, unconscious, or otherwise unaware that the
sexual [contact] is occurring.”

    This court reviews questions of statutory interpretation
de novo. United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F.
2016). The primary issue in this case is whether the
language which states that a person may not make sexual
contact with someone who is “asleep, unconscious, or
otherwise unaware,” creates three separate theories under
which one may be guilty of the offense or, as the CCA has
held, the language creates a single theory of criminal
liability.

    Citing Richards v. United States, 369 U.S. 1 (1962), and
Platt v. Union Pac. R.R. Co., 99 U.S. 48 (1878), Sager
contends the CCA’s analysis ignores the plain language of
the statute and violates two canons of statutory
construction: the “ordinary meaning” canon – that the words
of a statute are to be taken in their natural and ordinary
signification and import; and the “surplusage” canon – that,
if possible, every word and every provision is to be given
effect and that no word should be ignored or needlessly be
given an interpretation that causes it to duplicate another
provision or to have no consequence. The government
counters that the CCA’s analysis was correct and the statute
presents only a single theory of liability. The government
goes on to argue that even if Congress did create alternative
theories of liability in Article 120(b)(2), Sager has not
carried his burden to demonstrate prejudice.

    The Supreme Court has “stated time and again that
courts must presume that a legislature says in a statute
what it means and means in a statute what it says there.
When the words of a statute are unambiguous, then, this
first canon is also the last: judicial inquiry is complete.”
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54
(1992) (internal quotation marks omitted) (citations
omitted). To that end, this court “interpret[s] words and
phrases used in the UCMJ by examining the ordinary
meaning of the language, the context in which the language
is used, and the broader statutory context.” United States v.
Pease, 75 M.J. 180, 184 (C.A.A.F. 2016). In any such
analysis, this court “should … give meaning to each word” of
the statute. United States v. Adcock, 65 M.J. 18, 24 (C.A.A.F.
2007). Only where “the statute [remains] unclear, [does the



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            United States v. Sager, No. 16-0418/NA
                     Opinion of the Court

court] look next to the legislative history.” United States v.
Falk, 50 M.J. 385, 390 (C.A.A.F. 1999).

   Article 120(d) provides that any person subject to this
chapter “who commits or causes sexual contact upon or by
another person, if to do so would violate subsection (b)
(sexual assault) had the sexual contact been a sexual act, is
guilty of abusive sexual contact.” Subsection (b)(2) contains
the language at issue: “when the person knows or
reasonably should know that the other person is asleep,
unconscious, or otherwise unaware that the sexual act is
occurring.” In reviewing the language in question, we note
that the words, “asleep, unconscious, or otherwise unaware,”
are separated by the disjunctive, “or.” “In ordinary use the
word ‘or’ … marks an alternative which generally
corresponds to the word ‘either.’” Earl T. Crawford, The
Construction of Statutes § 188 (1940); see also Reiter v.
Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of
construction ordinarily suggest that terms connected by a
disjunctive be given separate meanings, unless the context
dictates otherwise; here it does not.”). Under the “ordinary
meaning” canon of construction, therefore, “asleep,”
“unconscious,” or “otherwise unaware” as set forth in Article
120(b)(2) reflect separate theories of liability. Sager, 2015
CCA LEXIS 571, at *9, 2015 WL 9487926, at *3.
   In addition, the phrase “otherwise unaware” is important
to the context of the offense. Webster’s Third New
International Dictionary Unabridged 1598 (2002), defines
“[o]therwise” as, “in a different way or manner.” Under a
plain reading of this language, therefore, the words
“otherwise unaware” mean unaware in a manner different
from asleep and different from unconsciousness.
   Finally, to accept the view that the words “asleep,
unconscious, or otherwise unaware,” create only one theory
of criminality would be to find that the words “asleep,”
“unconscious,” and “or” are mere surplusage. This we are
unwilling to do. See Yates v. United States, 135 S. Ct. 1074,
1085 (2015) (“[T]he canon against surplusage is strongest
when an interpretation would render superfluous another
part of the same statutory scheme.”) (internal quotation
marks omitted) (citation omitted). We therefore hold that
the CCA erred in its interpretation of Article 120(d) when it
“conclude[d] that asleep or unconscious are examples of how
an individual may be ‘otherwise unaware’ and are not



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            United States v. Sager, No. 16-0418/NA
                     Opinion of the Court

alternate theories of criminal liability.” Sager, 2015 CCA
LEXIS 571, at *9, 2015 WL 9487926, at *3.
    The remaining issue asks whether the CCA erred by
relying on facts of which Sager had been acquitted when it
affirmed his conviction. Sager argues that since the
members acquitted him of the intoxication charge, the CCA
erred by relying on evidence that AN TK was intoxicated in
affirming the “otherwise unaware” charge. In light of our
interpretation of Article 120(d), we decline to address the
remaining issue and we believe that it is appropriate for the
CCA to reconsider the factual sufficiency of this case. See
Pease, 75 M.J. at 184 (holding that a CCA’s factual
sufficiency review “must ... be based on a correct view of the
law”) (emphasis omitted) (alteration in original) (internal
quotation marks omitted) (citation omitted).

    In addition to applying the law discussed above, the CCA
should also consider whether Green v. United States, 355
U.S. 184, 185 (1957), is applicable to this case. In Green, the
appellant was charged with first degree murder and,
alternatively, second degree murder. Id. The jury found him
guilty of second degree murder but did not return an express
verdict as to the first degree murder charge. Id. at 186. The
Supreme Court held that this effectively constituted a “not
guilty” verdict of the first degree murder charge for double
jeopardy purposes. Id. at 191; see also United States v.
Smith, 39 M.J. 448 (C.M.A. 1994); United States v. Bennitt,
74 M.J. 125 (C.A.A.F. 2015).

                           Decision

    The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is vacated and the case is
remanded to that court for reconsideration consistent with
this opinion.




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            United States v. Sager, No. 16-0418/NA


   Judge STUCKY, dissenting.

    I agree with the majority’s conclusion that “otherwise”
means “in a different way or manner,” and thus that the
United States Navy-Marine Corps Court of Criminal Ap-
peals misstated the law in saying that “asleep or uncon-
scious are examples of how an individual may be otherwise
unaware.” United States v. Sager, __ M.J. __ (6-7) (C.A.A.F.
2017) (internal quotation marks omitted) (citation omitted).
Nevertheless, I conclude that Appellant was not prejudiced
by this error and would affirm the judgment of the CCA.
Therefore, I respectfully dissent.
    Appellant was convicted of touching the penis of the vic-
tim with his hand when he knew or reasonably should have
known that the victim was “asleep, unconscious, or other-
wise unaware that the sexual contact was occurring.” See
Article 120(d), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920(d) (2012) (incorporating the language of Ar-
ticle 920(b)(2), UCMJ). Appellant was acquitted of perform-
ing fellatio on the victim when the victim was incapable of
consenting to the sexual contact due to impairment by an
intoxicant.
    The military judge erroneously instructed the members
that to convict, they had to agree on one of two theories of
guilt: that Appellant (1) knew or (2) reasonably should have
known that the victim was unaware the sexual contact was
occurring. The findings worksheet erroneously suggested
that, in addition to agreeing on Appellant’s knowledge, the
members also had to select from one of three reasons for the
victim being unaware the sexual act was occurring: that the
victim was (1) asleep, (2) unconscious, or (3) otherwise una-
ware. See Sager, __ M.J. at __ (3).
    Contrary to the military judge’s instructions and the
worksheet, we have long held that “military criminal prac-
tice requires neither unanimous panel members, nor panel
agreement on one theory of liability, as long as two-thirds of
the panel members agree that the government has proven
all the elements of the offense.” United States v. Brown,
65 M.J. 356, 359 (C.A.A.F. 2007) (citing United States v. Vi-
dal, 23 M.J. 319, 325 (C.M.A. 1987)). In my opinion, the
court members did not have to decide between the two theo-
               United States v. Sager, No. 16-0418
                  Judge STUCKY, Dissenting

ries set out above. Two-thirds of the members just had to
agree that he knew or reasonably should have known.
    Similarly, in my opinion, the court members did not have
to select one of the three statutory reasons a victim could be
unaware of the sexual contact. As amply shown by the facts
in this case, the evidence of which reason caused the victim
to be unaware will often overlap.
    The victim testified that he drank excessively, “passed
out,” and awoke to Appellant manually stimulating him, be-
fore Appellant then performed fellatio as the victim was too
intoxicated to respond. For the specification alleging manual
stimulation that we remand today, the panel was thus pre-
sented with evidence of sleep and unconsciousness, both due
to intoxication. Was he just intoxicated, asleep, unconscious,
or a combination thereof? The important thing is that the
members did not have to agree on the reason. The required
two-thirds just had to agree that the victim was unaware of
the sexual contact.1 So even under a correct view of the stat-
ute, the CCA could consider any evidence bearing on wheth-
er the victim was “unaware,” and need not artificially excise
from its review the evidence tending to show that the victim
was asleep or unconscious.
   I disagree with the majority’s statement that, on remand,
the CCA “should also consider whether Green v. United
States, 355 U.S. 184, 185 (1957), is applicable to this case.”
The majority’s reference to Green suggests that the CCA was
prohibited by double jeopardy concerns from considering ev-
idence of the victim’s intoxication after Appellant was ac-
quitted of performing fellatio on an intoxicated victim.
    But Green is inapplicable here. Each of Appellant’s two
abusive sexual contact charges alleged a distinct actus reus:
oral sexual contact for the first, and manual sexual contact
for the second, so this is not a case of charging in the alter-


   1  Faced with broad testimony and three reasons, an astute
panel might have selected “otherwise unaware” not as a rejection
of the theory that the victim was “asleep” or “unconscious,” but
rather because “otherwise unaware” is the language that estab-
lishes the boundaries of the element as a whole: “unaware” for any
reason whatsoever.




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              United States v. Sager, No. 16-0418
                 Judge STUCKY, Dissenting

native, as in Green,355 U.S. at 190. Accordingly, acquittal of
one charge carries no logical implications for the other. To
the extent that evidence of the victim’s intoxication is rele-
vant to both charges, a panel and a reviewing court could
permissibly consider that evidence in reviewing Appellant’s
conviction. That is the import of this Court’s reasoning in
United States v. Gutierrez, 73 M.J. 172, 176 (C.A.A.F. 2014),
as well as in United States v. Rosario, __ M.J. __ (C.A.A.F.
2017). Those cases, rather than Green, ought to inform the
CCA’s review on remand.




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