                       UNITED STATES, Appellee

                                    v.

                    Nicholas S. STEWART, Captain
                    U.S. Marine Corps, Appellant

                              No. 11-0440

                       Crim. App. No. 201000021

       United States Court of Appeals for the Armed Forces

                       Argued January 11, 2012

                        Decided March 6, 2012

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., STUCKY and RYAN, JJ., and COX, S.J., joined.

                                 Counsel


For Appellant:    Major Jeffrey R. Liebenguth, USMC (argued).

For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Colonel Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Louis J. Puleo, USMC.

Military Judge:   Bruce W. MacKenzie


       This opinion is subject to revision before final publication.
United States v. Stewart, No. 11-0440/MC

     Judge ERDMANN delivered the opinion of the court.

     Contrary to his pleas, Captain Nicholas S. Stewart was

convicted by members sitting as a general court-martial of one

specification of aggravated sexual assault in violation of

Article 120(c)(2), Uniform Code of Military Justice, 10 U.S.C. §

920 (2006).   The members sentenced him to confinement for two

years and a dismissal, and the convening authority approved the

sentence as adjudged.   The United States Navy-Marine Corps Court

of Criminal Appeals (CCA) affirmed the findings and the

sentence.   United States v. Stewart, No. NMCCA 201000021, slip

op. at 2 (N-M. Ct. Crim. App. Jan. 31, 2011).1

     We granted three issues in this case to determine:     (1)

whether the military judge was required to enter a finding of

not guilty pursuant to Rule for Courts-Martial (R.C.M.) 917

after he held that Stewart had met his burden of proof as to the

affirmative defense of consent under Article 120(t)(16) by a

preponderance of the evidence; (2) whether the CCA erred when it

affirmed Stewart’s finding of guilty of aggravated sexual

assault where the members had already found him not guilty for

the same conduct under the same charge; and (3) whether it was

error for the military judge to rule at a pre-trial Article

39(a) hearing on whether the defense had met its burden of proof

1
  The CCA directed that a supplemental court-martial order
reflect that Stewart was found guilty of the charged



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United States v. Stewart, No. 11-0440/MC

under Article 120(t)(16) to justify instructions addressing the

affirmative defenses of consent and mistake of fact as to

consent.2    Under the unique circumstances of this case, we hold

that the finding of guilty affirmed by the CCA was impermissibly

based on conduct for which the members had found Stewart not

guilty.     Accordingly, we reverse the decision of the CCA, set

aside the findings and the sentence, and dismiss the

specification and the charge with prejudice.    Because our




specification except for the words “substantially incapacitated
or.” No. NMCCA 201000021, slip op. at 11.
2
  We granted review of the following issues:

     I.     Under United States v. Prather, is it legally
            possible for the prosecution to disprove an
            affirmative defense beyond a reasonable doubt once
            the military judge has determined that the defense
            has been proved by a preponderance of the evidence
            and, if not, is the military judge required to
            enter a finding of not guilty in such a case under
            RCM 917?

     II.     Whether the Navy-Marine Corps Court of Criminal
             Appeals erred in finding the evidence factually
             sufficient beyond a reasonable doubt to sustain
             Appellant’s conviction under Specification 2
             because in doing so it (1) violated the Prather
             legal-impossibility principle and (2)
             impermissibly found as facts allegations that he
             was found not guilty of in Specification 1.

     III. Whether the military judge committed prejudicial
          error by requiring the defense to present
          evidence on the defense of consent at an Article
          39(a) session prior to trial.

United States v. Stewart, 70 M.J. 331 (C.A.A.F. 2011) (order
granting review).

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United States v. Stewart, No. 11-0440/MC

resolution of granted Issue II is case dispositive, we need not

address granted Issues I and III.

                         FACTUAL BACKGROUND

     Stewart and AN, a civilian, had known each other since at

least 2001.    AN testified that for several months in 2003 and

2004 she and Stewart “were more than just friends” and that

their relationship included sexual activity, but no sexual

intercourse.   In May 2008, Stewart attended a graduation party

at AN’s home to celebrate her graduation from a Masters of

Business Administration program.       Over the evening AN become

extremely intoxicated.   At approximately midnight, AN’s friends

assisted her downstairs to her bedroom and put her to bed.      At

the time she was put to bed AN was fully clothed and appeared

unconscious.   AN testified that she remembered being in bed with

her friends being around her and the next thing she remembered

was waking up with no clothes on with Stewart lying next to her.

After waking up she tried to reconstruct what had occurred and

remembered Stewart being on top of her trying to put his penis

inside her and also touching her vagina.

     Based on this incident, Stewart was charged with a

violation of Article 120(c)(2) alleging that he “engage[d] in a

sexual act, to wit:   using his penis to penetrate [AN] who was

substantially incapacitated or substantially incapable of

declining participation in the sexual act.”



                                   4
United States v. Stewart, No. 11-0440/MC

                       PROCEDURAL BACKGROUND

     The military judge recognized that pursuant to Article

120(t)(16) that when an accused asserts the affirmative defenses

of consent and/or mistake of fact as to consent, the statutory

burden is initially on the accused to prove those defenses by a

preponderance of the evidence.   If the accused is successful,

the statutory burden shifts to the government to disprove

consent and mistake of fact as to consent beyond a reasonable

doubt.   The military judge required Stewart to present evidence

of these affirmative defenses in a pre-trial Article 39(a)

hearing so that he could make a determination as to whether the

applicable instructions would be provided to the members.

Although Stewart’s trial defense counsel objected to this

procedure, he relied on a copy of Stewart’s pre-trial

declaration that had been provided to the court as an enclosure

to an unrelated motion and a copy of the verbatim transcript of

AN’s testimony during the Article 32(b) investigation.3     The

Government also provided several exhibits for the military judge

to consider before making his decision.    The military judge

ruled preliminarily that Stewart had satisfied his burden of

proof and that he would provide instructions to the members on

the affirmative defenses.   The procedure utilized by the



3
  Neither of these documents was offered or admitted into
evidence at the court-martial.

                                 5
United States v. Stewart, No. 11-0440/MC

military judge and his ruling form the bases for assigned Issues

I and III.

     Issue II is separate and distinct from Issues I and III,

and has its genesis in a pre-trial motion by Stewart’s civilian

defense counsel to require the Government to elect between the

two alleged “alternative theories of criminal liability,”

asserting that the specification was duplicitous.   The

Government conceded that the specification was duplicitous and

argued that the appropriate remedy was to sever the

specification into separate specifications.   The military judge

declined to require the Government to elect a theory of criminal

liability and gave the defense a choice of severing the

specification into two specifications or having a tailored

instruction provided to the members.   Between the two options,

the defense chose severance of the specification into two

specifications.    As a result, the flyer provided to the members

reflected the charged specification as two specifications that

were identical except that Specification 1 alleged that AN was

“substantially incapacitated” and Specification 2 alleged that

AN was “substantially incapable of declining participation in

the sexual act.”

     At the end of the presentation of evidence on the merits,

the military judge instructed the members that the Government

had the burden to disprove consent and mistake of fact as to



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United States v. Stewart, No. 11-0440/MC

consent beyond a reasonable doubt.4   In addition, the military

judge provided the following instructions to the members:

      You’re also advised that you may only find the
      accused guilty, if convinced beyond a reasonable
      doubt as to each and every element, to either
      Specification 1 or Specification 2, or their
      described lesser included offense, if appropriate.

      . . . .

      “Substantially incapacitated” means that level of
      mental impairment due to consumption of alcohol,
      drugs, or similar substance, while asleep or
      unconscious, or for other reasons, which rendered the
      alleged victim unable to appraise the nature of the
      sexual conduct at issue, unable to physically
      communicate unwillingness to engage in the sexual
      conduct at issue, or otherwise unable to make or
      communicate competent decisions.

      . . . .

      “Substantially incapable” means that level of mental
      impairment due to consumption of alcohol, drugs, or
      similar substance, while asleep or unconscious, or
      for other reasons, which rendered the alleged victim
      unable to appraise the nature of the sexual conduct
      at issue, unable to physically communicate
      unwillingness to engage in the sexual conduct at
      issue, or otherwise unable to make or communicate
      competent decisions.

      . . . .

      The following procedural rules will apply to your
      deliberation and must be observed.

      . . . .




4
  The military judge did not instruct the members of the burden
shift found to be a “legal impossibility” in United States v.
Prather, 69 M.J. 338, 345 (C.A.A.F. 2011). See also United
States v. Medina, 69 M.J. 462 (C.A.A.F. 2011).

                                7
United States v. Stewart, No. 11-0440/MC

       You are reminded that you may return only a finding
       of guilty for one but not both charged
       specifications.

       If a finding of not guilty is made to a specification
       vote next on the lesser included offense. If a
       finding of guilty is made, then you have convicted
       the accused of that lesser included offense. If you
       have voted on the lesser included offense and a
       finding of not guilty is made as to the lesser
       included offense, you have acquitted the accused of
       this specification and its lesser included offense.
       You should then use this same procedure on the second
       specification.

     The members found Stewart not guilty of Specification 1

(substantially incapacitated) and guilty of Specification 2

(substantially incapable of declining participation in the

sexual act).5

     The CCA held that the military judge erred when he required

Stewart to present evidence on the affirmative defenses of

consent and mistake of fact as to consent in a pre-trial Article


5
  Notwithstanding the requirements within R.C.M. 918 (“general
findings of a court-martial state whether the accused is found
guilty of each offense charged”) and R.C.M. 922 (“[f]indings
shall be announced in the presence of all parties”), neither
party, the military judge, nor the CCA noted any deficiency in
the findings of the court-martial. Although it is unclear based
on the military judge’s instructions whether the members thought
that they were addressing separate offenses or choosing between
theories of liability, we are satisfied that the members found
Stewart not guilty of “Alternative Specification 1.” We reach
this conclusion based on the military judge’s instructions that
the members could not find Stewart guilty of both specifications
and the Findings Worksheet that instructed the members to “[p]ut
a line through any inapplicable language” and they lined through
the option of finding Stewart guilty of “Alternative
Specification 1.” Therefore, the only way to read the Findings
Worksheet at this stage is that the members found Stewart not
guilty of “Alternate Specification 1.”

                                8
United States v. Stewart, No. 11-0440/MC

39(a) hearing.    Assuming constitutional error, the CCA then

concluded that the error had no impact on the findings or the

sentence and was therefore harmless beyond a reasonable doubt.

In addition, the CCA held that the military judge’s

determination that the affirmative defenses were raised had no

impact upon the members’ fact-finding authority or

responsibility.    The CCA also stated that the evidence clearly

established that AN was substantially incapable of declining

participation in the sexual act and therefore determined that

the evidence was factually sufficient.    Under the unique

circumstances of this case, it is this latter determination that

forms the basis for Issue II.

                             DISCUSSION

     Was the finding of guilty to aggravated sexual assault
     as affirmed by the CCA impermissibly based on conduct
     for which the members had found Stewart not guilty
     under the same charge?

     Stewart argues that in affirming the finding of guilty to

Specification 2, the CCA had to have found as fact the very

allegations that the members found him not guilty of in

Specification 1.   He asserts that this case is similar to the

case of United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003),

where we held that excepting “divers occasions” from the charged

specification and substituting therefore “one occasion” without

any indication of which act formed the basis for the conviction

created an ambiguous finding that could not be reviewed for


                                  9
United States v. Stewart, No. 11-0440/MC

factual sufficiency on appeal because “[a] Court of Criminal

Appeals cannot find as fact any allegation in a specification

for which the fact-finder below has found the accused not

guilty.”   Id. at 395.

     In response, the Government argues that in the text of

Article 120(c)(2)(A)-(C) Congress defined two separate theories

that in the alternative could comprise a conviction for

aggravated sexual assault and that “substantially incapacitated”

and “substantially incapable of declining participation in the

sexual act” do not allege the same theory of liability.   The

Government concludes that there is no ambiguity in the members’

findings as there was in Walters, and there is no danger that

the CCA affirmed a finding of guilty for a crime that the

members acquitted Stewart.6

     In North Carolina v. Pearce, 395 U.S. 711, 717 (1969), the

Supreme Court observed that, among other protections, the Double




6
  We do not agree with the Government’s argument that Stewart
invited the error because he had made a motion for appropriate
relief based on the alleged duplicitous pleading. At trial, the
Government conceded that the specification was duplicitous and
argued, based on the Discussion to R.C.M. 906(b)(5), that the
sole remedy for a duplicitous specification is severance of the
specification into two or more specifications, which was the
remedy ordered by the military judge. The problem in this case
is not whether the decision to sever the charged specification
into two specifications was proper (an issue we need not
decide), but rather the problem is with the military judge’s
subsequent instructions to the members.

                               10
United States v. Stewart, No. 11-0440/MC

Jeopardy Clause protects “against a second prosecution for the

same offense after acquittal.”   This principle “prohibit[s] a

reviewing court from rehearing any incidents for which the

accused was found not guilty.”   United States v. Wilson, 67 M.J.

423, 428 (C.A.A.F. 2009) (citing Green v. United States, 355

U.S. 184, 187-88 (1957)); United States v. Smith, 39 M.J. 448,

451-52 (C.M.A. 1994) (“Court of Military Review [CCA] may not

make findings of fact contradicting findings of not guilty

reached by the factfinder.”).    Consistent with this double

jeopardy principle, we noted in Wilson that the CCA “may not

conduct a factual sufficiency review when the findings are

ambiguous because such action creates the possibility that the

court would affirm a finding of guilt based on an incident of

which the appellant had been acquitted by the factfinder at

trial.”   67 M.J. at 428 (citing Walters at 395).

     The Government initially charged Stewart with one

specification of aggravated sexual assault for engaging in a

sexual act with a person “who was substantially incapacitated or

substantially incapable of declining participation in the sexual

act” in violation of Article 120(c)(2).    As noted, the military

judge severed the sole specification into two separate

specifications which were identical except that Specification 1

alleged that AN was “substantially incapacitated” and

Specification 2 alleged that AN was “substantially incapable of



                                 11
United States v. Stewart, No. 11-0440/MC

declining participation in the sexual act.”   Before

deliberations, the military judge instructed the members as to

the elements of each offense, the elements of the potential

lesser included offenses of each, and the definitions of the

terms applicable to each offense.    When he defined the terms

“substantially incapacitated” and “substantially incapable,” the

military judge defined them in exactly the same manner.7    Hence

the members were confronted with two offenses that, as

instructed, alleged exactly the same offense.   As a result, the

military judge created the framework for a potential double

jeopardy violation.   This potential was further crystallized by

the procedural instructions that the military judge subsequently

provided the members to assist them in reaching their findings.

The military judge’s procedural instructions included the

following as it relates to the order in which the members were

to consider the two specifications:

      You are reminded that you may return only a finding
      of guilty for one but not both charged
      specifications.
      If a finding of not guilty is made to a specification
      vote next on the lesser included offense. If a
      finding of guilty is made, then you have convicted
      the accused of that lesser included offense. If you
      have voted on the lesser included offense and a
      finding of not guilty is made as to the lesser
      included offense, you have acquitted the accused of

7
  We noted in Prather, 69 M.J. at 343, that “there may exist an
abstract distinction between ‘substantially incapacitated’ and
‘substantially incapable,’” but whatever distinction exists
between the terms, that distinction was rendered meaningless
when the military judge defined them as the same.

                                12
United States v. Stewart, No. 11-0440/MC

      this specification and its lesser included offense.
      You should then use this same procedure on the second
      specification.

Emphasis added.   The military judge specifically admonished the

members that they must follow those instructions.

     “Absent evidence to the contrary, this Court may presume

that members follow a military judge’s instructions.”   United

States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).

Consequently, based on the military judge’s instructions the

members were required to reach findings on Specification 1

before considering Specification 2.   In the absence of evidence

to the contrary, of which there is none in this case, we presume

the members followed the military judge’s instructions.   Unlike

in Walters, the findings in this case were not ambiguous as it

is possible to determine which act formed the basis of the

findings.   Here, however, Stewart was initially found not guilty

by members for certain conduct for a specific Article 120

offense as defined by the military judge, and was then found

guilty of the same conduct for the same offense.    Even if the

members did not first make a decision on Specification 1 before

considering Specification 2, as a result of the military judge’s

instructions, they were placed in the untenable position of

finding Stewart both guilty and not guilty of the same offense.

We recognize that generally consistency in a verdict is not




                                13
United States v. Stewart, No. 11-0440/MC

necessary,8 but under the unique circumstances of this case, the

principles underpinning the Double Jeopardy Clause as recognized

in United States v. Smith made it impossible for the CCA to

conduct a factual sufficiency review of Specification 2 without

finding as fact the same facts the members found Stewart not

guilty of in Specification 1.   The CCA’s holding to the contrary

was error.

                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.     The findings and the sentence

are set aside and the specification and the charge are dismissed

with prejudice.




8
  United States v. Jackson, 7 C.M.A. 67, 21 C.M.R. 193 (1956);
see also United States v. Wilson, 13 M.J. 247 (C.M.A. 1982).

                                14
