         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201400356
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                         JEFFERY D. SAGER
           Aviation Ordnanceman Airman (E-3), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judges: Commander John A. Maksym, JAGC, USN.
    Convening Authority: Commander, U.S. Naval Forces Japan,
                         Yokosuka, Japan.
 Staff Judge Advocate’s Recommendations: Commander Timothy D.
                        Stone, JAGC, USN.
      For Appellant: Lieutenant Doug Ottenwess, JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson , JAGC,
          USN; Lieutenant James M. Belforti, JAGC, USN .
                      _________________________

                        Decided 31 January 2018
                        _________________________

Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   FULTON, Judge:

   A panel of members with enlisted representation sitting as a general
court-martial convicted the appellant, contrary to his pleas, of one
specification of abusive sexual contact, in violation of Article 120, Uniform
                       United States v. Sager, No. 201400356


Code of Military Justice (UCMJ).1 The members acquitted the appellant of a
second specification also alleging abusive sexual contact against the same
complaining witness. The convening authority approved the adjudged
sentence of 24 months’ confinement and a bad-conduct discharge.
    This case is before us for a second time. The Court of Appeals for the
Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s
conviction for abusive sexual contact.2 At the heart of the appellate litigation
in this case is a question over the interpretation of Article 120(b)(2), UCMJ,
which proscribes sexual contact with people the accused knows, or reasonably
should know, are incapable of consenting to the contact because they are
“asleep, unconscious, or otherwise unaware” that the contact is occurring.3
The unusual posture of this case after trial required us to decide whether the
terms asleep, unconscious, and otherwise unaware represented distinct
theories of criminal liability. In our first review of this case, we held that
they do not. Rather, we held that the reasons for a victim’s lack of awareness,
be it sleep, unconsciousness, or something else, were only relevant to whether
the accused should have known that the victim was unaware of the contact.4
    The CAAF held that our interpretation was incorrect. Reversing this
court, the CAAF held that “asleep, unconscious, or otherwise unaware”
represents three separate theories of liability.5 The CAAF also held that the
term otherwise unaware means unaware in a manner different from both
sleep and unconsciousness.6 The CAAF returned the case to us for a new
factual sufficiency review, this time applying the correct interpretation of
Article 120(b)(2).7 In conducting that review, the CAAF directed us to
consider whether the Supreme Court’s decision in Green v. United States,
which held that a jury’s silence as to a charge terminates a defendant’s
jeopardy as to that charge, applies to this case.8




   1   10 U.S.C. § 920 (2012).
   2 United States v. Sager, No. 201400356, 2015 CCA LEXIS 571 (N-M. Ct. Crim.
App. 29 Dec 2015), rev’d and remanded, United States v. Sager, 76 M.J. 158 (C.A.A.F.
2017).
   3   10 U.S.C. § 920(b)(2) (2012).
   4   Sager, 2015 CCA LEXIS at *9.
   5   Sager, 76 M.J. at 162.
   6   Id.
   7   Id.
   8   355 U.S. 184 (1957).


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   We have completed our review and find that the appellant’s conviction for
abusive sexual contact is insufficiently supported by the evidence. We
therefore set it aside. Applying Green, we dismiss the charge and its
specification.
                                  I. BACKGROUND
    The appellant and Airman TK were shipmates on a Navy ship
homeported in Yokosuka, Japan. On the evening of the offenses, Airman TK
visited several bars near the naval base and met the appellant, whom he
understood to be his “liberty buddy,” at one of the bars. Airman TK, the
appellant, and several other Sailors spent the rest of the evening together.
Around 2300, the group left the bar and walked to Petty Officer DS’s
apartment, where they spent the night.
    By this time, Airman TK was “[v]ery drunk.”9 He was stumbling, slurring
his words, and he vomited into a bucket the appellant brought him.
According to Airman TK, after vomiting, he recalls “passing out” on a futon
in the living room.10 He awoke to the appellant manually stimulating his
penis. Airman TK felt the appellant’s hand on his penis, but was unable to
talk or move because he was too drunk. After about five to ten minutes of
manual stimulation his penis was erect. Although he could not move, Airman
TK mentally tried without success to lose his erection. After manually
stimulating Airman TK, the appellant performed oral sex on him until he
ejaculated.
   Based on these facts, the government charged the appellant with two
specifications of sexual assault. For fellating Airman TK, the government
charged the appellant with committing a sexual act on Airman TK when the
appellant knew or reasonably should have known that Airman TK was
incapable of consenting due to intoxication. The members acquitted the
appellant of this offense. For manually stimulating Airman TK’s penis, the
government charged the appellant with committing a sexual contact on
Airman TK when the appellant knew or reasonably should have known that
Airman TK was asleep, unconscious, or otherwise unaware that the sexual
contact was occurring. The members convicted the appellant of this offense.
    The military judge took an unusual approach to findings in this case.
Instead of instructing the members to vote on the appellant’s guilt in the
specification, the military judge directed the members to hold separate votes
for different theories of liability under Article 120(b)(1):



   9   Record at 522.
   10   Id. at 527.


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         . . . [Y]ou have to circle under the charge and specification 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 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.11
    The findings worksheet presented the different theories of liability as
choices to be circled if the members convicted on that theory. Although the
military judge did not instruct the members that they had to circle whether
they found that Airman TK was asleep, unconscious or otherwise unaware at
the time, the members circled not only that they found the appellant
“reasonably should have known,” but also that Airman TK was “otherwise
unaware” that a sexual act was occurring.12 This is the finding the CAAF has
directed us to review for factual sufficiency.
                                   II. DISCUSSION
A. Factual sufficiency
    We review questions of factual sufficiency de novo.13 The test for factual
sufficiency is whether, after weighing all the evidence in the record of trial,
we are convinced of the appellant’s guilt beyond a reasonable doubt, allowing
for the fact that we did not personally observe the witnesses.14
    To affirm this conviction, we must be convinced beyond a reasonable
doubt that the appellant committed a sexual contact with Airman TK when
he reasonably should have known that Airman TK was “otherwise unaware”
that the sexual contact was occurring.15 Because there is insufficient evidence




   11   Id. at 1198.
   12 Appellate Exhibit (AE) 131. The findings worksheet presented to the members
read as follows:
         (b) Guilty in that AN Sager committed a sexual contact upn
         [Airman TK] when AN Sager (knew) (or) (reasonably should
         have known) that [AirmanTK] was (asleep), (unconscious),
         (or) (otherwise unaware) that the sexual act was occurring.
   13   United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
   14   United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
   15   AE 131.


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                       United States v. Sager, No. 201400356


that the appellant was otherwise unaware that the sexual contact was
occurring, we must set aside the conviction.
    In its opinion reversing this court, the CAAF provided clarification of the
term otherwise unaware. The CAAF determined that in the context of Article
120(d), UCMJ, otherwise unaware means “unaware in a manner different
from asleep and different from unconsciousness.”16 Airman TK testified that
he awoke to the appellant touching his penis. The government argued to the
members that Airman TK was sleeping before he became aware that the
appellant was touching his penis. Assuming that Airman TK was unaware
that the appellant was touching his penis before he woke up, there is little in
the record to suggest that the reason for his lack of awareness was “in a
manner different from asleep and different from unconsciousness.”17 The
evidence suggests he was unaware because he was asleep. And there is no
evidence that he was unaware of the sexual contact after he woke up. In
short, the evidence does not convince us beyond a reasonable doubt that
Airman TK was unaware of the sexual contact “in a manner different from
asleep and different from unconsciousness” and we must disapprove this
finding.18
B. Application of Green v. United States
    In addition to conducting a new Article 66, UCMJ, review, the CAAF
directed us to consider whether the 1957 Supreme Court case Green v. United
States19 is applicable to this case. In Green, a defendant was tried for arson
and first-degree murder.20 “[T]he trial judge instructed the jury that it could
find Green guilty of arson under the first count and of either (1) first degree
murder or (2) second degree murder under the second count.”21 The jury
convicted Green of arson and second degree murder and returned no finding
as to first-degree murder.22 After his conviction was reversed on appeal,
Green was retried for first-degree murder under the original indictment.23




   16   Sager, 76 M.J. at 162.
   17   Id.
   18   Id.
   19   355 U.S. 184 (1957).
   20   Id. at 185.
   21   Id.
   22   Id. at 186.
   23   Id.


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    The Supreme Court held that retrying Green for first-degree murder
violated the constitutional prohibition against double jeopardy.24 The Court
reasoned that the jury had “full opportunity” to return a verdict and declined
to convict. When the jury declined to convict Green, Green’s jeopardy came to
an end, and he could not be retried.
    As was the case in Green, here the members had an opportunity to convict
the appellant on other language in the specification. They had the
opportunity to convict the appellant of actually knowing Airman TK was
unaware of the sexual contact. They also had the opportunity to convict the
appellant of committing a sexual contact with Airman TK while he was
asleep or unconscious. The members declined to convict the appellant of this
language. We find that the appellant’s jeopardy with respect to this language
came to an end when the members declined to convict him of it. We therefore
dismiss this specification.
                               III. CONCLUSION
   The findings and sentence are set aside. The specification and charge of
which the appellant was convicted are dismissed.
   Senior Judge HUTCHISON and Judge SAYEGH concur.
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




   24   Id. at 198.


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