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

                             No. 201700058
                         _________________________

                 UNITED STATES OF AMERICA
                                  Appellee
                                     v.

                        GREGORY J. HOGAN
               Lieutenant Junior Grade (O-2), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Robert J. Crow, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                    Air Station, Jacksonville, FL.
  Staff Judge Advocate’s Recommendation: Commander George W.
                         Lucier, JAGC, USN.
    For Appellant: Philip D. Cave, Esq.; Lieutenant Commander
                   William L. Geraty, JAGC, USN.
 For Appellee: Captain Sean M. Monks, USMC; Lieutenant Megan
                        Marinos, JAGC, USN.
                       _________________________

                        Decided 25 January 2018
                        _________________________

  Before M ARKS , J ONES , and W OODARD , 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.
                        _________________________

   JONES, Judge:
   A military judge sitting as a general court-martial convicted the
appellant, contrary to his pleas, of making a false official statement and
sexual assault, in violation of Articles 107 and 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 907 and 920 (2012). The military judge
                        United States v. Hogan, No. 201700058


sentenced the appellant to four years’ confinement and a dismissal. The
convening authority (CA) approved the adjudged sentence and, except for the
dismissal, ordered it executed.
   The appellant asserts that the evidence is factually insufficient to prove
the sexual assault. We disagree and, finding no error materially prejudicial to
the substantial rights of the appellant, affirm the findings and sentence.
Arts. 59(a) and 66(c), UCMJ.
                                I. BACKGROUND
    In early 2015, EM was romantically interested in Lieutenant (Junior
Grade) FD (FD), and they had been dating for some weeks. FD was the
appellant’s friend and they served together in the same squadron. On 21
February 2015, EM, FD, and the appellant joined one of EM’s friends, SS, to
have drinks at a bar in Oklahoma City. EM drove her car to SS’s house and
parked it, and then SS drove the two of them in her car to the bar. Around
0130, after drinking at various bars for a few hours, the four agreed to meet
at the appellant’s apartment to continue hanging out. SS, EM, and the
appellant drove to the appellant’s apartment in SS’s car. FD—who lived
across the street from the appellant—said he would join them at the
appellant’s apartment after a short while. But FD never showed up that
night, even after EM texted and phoned him several times. The group was
joined, however, by one of EM’s friends, AN.
    EM had consumed approximately four drinks at the bars that night, and
when she arrived at the appellant’s apartment she made herself a cocktail.
EM claims that she has no memory of any of the events that occurred after
she drank that cocktail. A few hours later, around 0300-0400, she became
very tired, or drunk, or both. SS, with the appellant’s permission, put EM—
fully clothed—in the appellant’s bed. SS did this assuming FD was still
coming by to meet EM and take her back to his place and because the
appellant “said that he was going to be sleeping on the couch.”1
    SS and AN went home, leaving EM alone in the apartment with the
appellant. The next thing EM remembers is waking up in the morning in an
unfamiliar room, with her head spinning. She was lying on her side, and the
appellant’s penis was penetrating her vagina from behind. As soon as she
realized she was not in FD’s apartment and the person penetrating her was
not FD, she screamed, hit the appellant, and jumped off the bed. She
immediately found her underwear and jeans and put them on. She also began
texting FD about what just happened.



   1   Record at 167.


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    EM testified that the appellant laughed at her reaction. She continued to
call and text FD, trying to persuade him to take her to her car at SS’s house,
which was 10-15 miles away. After FD declined to help EM, she accepted a
ride from the appellant. But instead of driving her to her car, the appellant
drove EM to a hotel breakfast bar—where she refused to eat—and then back
to his apartment. On the way back to the apartment, the appellant suggested
going back and lying down together to rest. Once they arrived at the
appellant’s apartment complex, EM ran away from him and hid in an outdoor
stairwell. EM again texted FD and begged for a ride to her car. Finally, FD
acquiesced. In FD’s car, EM was upset, quiet, and tearful. She told FD she
felt violated by the appellant.
    As soon as EM arrived home, she collapsed on the floor in front of her
mother. Eventually she told her mother how she had awakened to the
appellant penetrating her. EM’s mother took her to a hospital where EM was
interviewed by law enforcement personnel and participated in a sexual
assault exam. EM then gave a statement to the Naval Criminal Investigative
Service (NCIS), detailing what occurred. Later, NCIS interrogated the
appellant, who repeatedly claimed he had not had any sexual contact
whatsoever with EM.
                                   II. DISCUSSION
    The appellant asserts the sexual assault conviction is factually
insufficient.2 The test for factual sufficiency is whether “after weighing all the
evidence in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987) and Art. 66(c), UCMJ), aff’d on other grounds, 64 M.J. 348 (C.A.A.F.
2007). In conducting this unique appellate function, we take “a fresh,
impartial look at the evidence,” applying “neither a presumption of innocence
nor a presumption of guilt” to “make [our] own independent determination as


    2 We note that the appellant does not challenge the legal sufficiency of the sexual
assault conviction evidence upon which the military judge returned a finding of
guilty for the sexual assault. However, we are mindful that Article 66(c), UCMJ
requires us “to conduct a de novo review of [both the] legal and factual sufficiency of
the case.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing
United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). “The test for legal sufficiency of
the evidence is whether, considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential elements
beyond a reasonable doubt.” United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F.
2002) (citation and internal quotation marks omitted). We find the evidence legally
sufficient.


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                        United States v. Hogan, No. 201700058


to whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
   The appellant was convicted of sexual assault under Article 120(b)(2),
UCMJ. To sustain a conviction under this statute, we must find the
prosecution proved beyond a reasonable doubt that: (1) the appellant
committed a sexual act upon EM by causing penetration of her vulva by his
penis; and (2) the appellant did so when he knew or reasonably should have
known that EM was incapable of consenting because she was asleep. Art.
120(b)(2), UCMJ.3
    The government presented compelling evidence that the appellant wanted
to have sex with EM, in spite of EM’s strong feelings for FD and her complete
lack of romantic interest in the appellant. Text messages between the
appellant and FD from the day before revealed the appellant had looked up
photos of EM on social media and was very interested in having sex with her.
He repeatedly implored FD to let him have sex with her, even though the
appellant had only met EM a few days before. He texted FD “[y]ou have to
tell her to hook up with me.”4 But EM was not at all interested in the
appellant. In fact, she was “creeped . . . out” by him and “didn’t like how crass
and derogatory he was about women.”5
    At his apartment that night, the appellant made repeated romantic
overtures towards EM, but there is no evidence that EM ever reciprocated
any of his advances. Rather, the evidence shows she rebuffed him at every
turn. EM did not have any memory of these events, but, while at the
apartment, SS witnessed the appellant trying to dance with EM and
attempting to kiss her. SS testified that EM never returned any of his
advances and, in fact, tried repeatedly to get away from him. SS confronted
the appellant and told him what he was doing to EM was not right. In fact,
SS was so disturbed by the appellant’s behavior that she “got on the phone”
with FD and told him the appellant was being “very touchy feely” with EM
and acting inappropriately.6 FD responded that he would be over later, after
the bars closed.
    SS also shed light on EM’s level of intoxication that night and how heavy
a sleeper she is after drinking. SS testified that she has seen EM get drunk


   3 See also Military Judges’ Benchbook, Department of the Army Pamphlet 27-9 at
3-45-14 (10 Sep 2014); Art. 120(g)(8)(B), UCMJ.
   4   Prosecution Exhibit (PE) 10 at 4.
   5   Record at 120.
   6   Id. at 166.


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before, and that night EM was a 7 or 8 on a scale of 1-10, with 1 being sober
and 10 being extremely intoxicated. SS related that EM was somewhat
coherent because she could still stand up and move around, but she
eventually became more drunk and tired to the point SS had to put her to
bed.7 EM testified that she is a very heavy sleeper and that people even joke
about how hard it is to wake her. SS confirmed that “[w]henever [EM] is
drunk, it’s very hard to wake her up. It’s extremely hard.”8 SS added,
“[t]here’s been a couple of times where it’s been really hard to wake her up,
that I’ve had to slap her in the face.”9 This testimony helps explain how EM
could have slept through the removal of her pants and underwear.
    The government presented other evidence that corroborated EM’s account
of what occurred. When NCIS seized FD’s phone, they found text messages
between FD and the appellant, as well as FD and EM, that all supported
EM’s narrative. The records included a text from EM to FD, immediately
after the incident, in which she described waking up to the appellant’s penis
inside of her and that she felt violated. The phone records confirmed that EM
phoned and texted FD dozens of times that morning, attempting to persuade
him to drive her to her car and help her get away from the appellant. The
text messages between FD and the appellant further verified that the
appellant had sex with EM—in spite of the appellant’s claim to the contrary.
   The appellant’s principal arguments on appeal echo the same
contradictory positions the military judge rejected at trial. He asserts that a
sexual act never occurred; but if it did occur it was consensual and EM falsely
accused him to save her relationship with FD.
    We are convinced the appellant committed a sexual act on EM. The
military judge twice found—in his special findings of fact—that EM’s
testimony was “very credible:”10
            [EM] was very clear and very credible that she awoke in the
         morning on 22 February 2015 in the [appellant’s] bed while
         being penetrated by the [appellant]. Her friend, [SS], had put
         [EM] to bed fully dressed. When [EM] awoke she was lying on
         her side and her jeans and underwear were off. The [appellant]
         was behind her “already participating” with his penis inside
         her vagina. She was positive it was the [appellant] and
         identified him as the person who sexually penetrated her while

   7   At the time, EM was 5 foot, 3 inches tall and weighed 100 pounds. Id. at 74.
   8   Id. at 168.
   9   Id. at 169.
   10   Appellate Exhibit XI at 2, 3.


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         she was sleeping. She never provided him consent to engage in
         sexual intercourse.11
    It is true that the sexual assault exam did not reveal the appellant’s DNA
on EM’s body or conclusively prove a sexual act had occurred. However, these
findings are not dispositive on the issue of whether the appellant penetrated
EM. They are matters to be considered, along with all other evidence in the
case. Although there was no objective physical evidence of penetration such
as tears or foreign substances discovered during the exam, the nurse
examiner did note tenderness and pain in EM’s vaginal area. More
importantly, the appellant admitted in text messages to FD—immediately
after the incident—that he had sex with EM. FD asked the appellant, “Haha
but she f****d you?!?” and the appellant answered, “Yes. . . . She claims to
say she thought I was you.”12 His disclosure to FD is made more credible by
his previously expressed desires to have sex with EM. And it contradicts his
denial of sexual contact with EM to NCIS.
    The government also proved beyond a reasonable doubt that EM was
asleep. There was no evidence that EM awoke from the alcohol-fueled
slumber in which SS left her and engaged in consensual intercourse with the
appellant. Even assuming arguendo that the appellant was ignorant of the
fact or mistaken as to whether or not EM was asleep at the time he
penetrated her vulva with his penis, we are convinced beyond a reasonable
doubt, after applying the standard of what an ordinary, prudent, sober adult
would believe under the circumstances, that the appellant’s ignorance or
mistake was unreasonable.
    We do not believe EM consented to sex with the appellant and then
fabricated the allegation to save her relationship with FD. Admittedly, EM
was very concerned with her relationship with FD. She hoped their
relationship would ripen into something more serious because they had seen
each other “non-stop” since they had met some weeks earlier, and FD “had
taken the initiative to take [her] mother out to dinner.”13 She appears to have
been much more smitten with him than he was with her, and she was
unaware of the crass text messages between FD and the appellant prior to
that night, wherein the two discussed their prurient interest in her.
Regardless, we reject the appellant’s contention that EM was a willing
participant in the sexual encounter but then afterwards suffered “buyer’s
remorse” because of her romantic interest in FD. There is overwhelming


   11   Id. at 3.
   12   PE 10 at 5.
   13   Record at 98.


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                      United States v. Hogan, No. 201700058


evidence of the appellant’s strong desire to have sex with EM, while there is
not a shred of evidence EM shared his desire. Even in her state of
drunkenness that night, EM refused all of the appellant’s romantic advances.
It strains credulity to believe that the next morning EM awoke from a
drunken slumber and suddenly decided to have sex with the appellant.
    The strongest evidence supporting the proposition that EM fabricated the
allegation to preserve her relationship with FD are the repeated statements
she made right after the incident that she felt what happened was her fault
and that she had cheated on FD. EM initially believed she was not sexually
assaulted because she had been asleep when the appellant inserted his penis
in her vagina. She told her mother how she had awakened to the appellant’s
penis inside of her. When her mother told her she had been raped, EM
responded, “No, I was asleep, that’s not--[rape].”14 EM’s misunderstanding of
what constitutes sexual assault has no bearing on the appellant’s criminal
liability. We also reject the appellant’s contention that EM contrived the
sexual assault allegation because her mother labeled the appellant’s conduct
a crime.
    We recognize that we did not see or hear EM testify. But after carefully
reading the record we find—as the military judge did—that EM’s testimony
is credible and compelling. We are convinced beyond a reasonable doubt that
the appellant committed a sexual act upon EM while she was sleeping and
without her consent. We find the evidence both legally and factually
sufficient.
                              III. CONCLUSION
   The findings and the sentence as approved by the CA are affirmed.
   Senior Judge MARKS and Judge WOODARD concur.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




   14   Id. at 103.


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