    United States Navy-Marine Corps
        Court of Criminal Appeals
                     _________________________

                       UNITED STATES
                           Appellee

                                  v.

                   Royal J. WASHINGTON
           Private First Class (E-2), U.S. Marine Corps
                            Appellant

                          No. 201700242

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
                      Decided: 8 February 2019
                         Military Judges:
      Lieutenant Colonel E.H. Robinson, USMC (arraignment);
               Colonel D.W. Gardner, USMC (trial).
Sentence adjudged 19 April 2017 by a general court-martial consisting
of officer and enlisted members convened at Camp Foster, Okinawa,
Japan. Sentence by convening authority: reduction to E-1, forfeiture of
$1,499.00 pay per month for 4 years, confinement for 4 years, and a
dishonorable discharge.
                         For Appellant:
          Lieutenant Commander Jon Taylor, JAGC, USN;
                Captain Thomas R. Fricton, USMC.
                           For Appellee:
              Lieutenant Kimberly L. Rios, JAGC, USN;
                    Major Kelli A. O’Neil, USMC.
                     _________________________

       This opinion does not serve as binding precedent,
        but may be cited as persuasive authority under
         NMCCA Rule of Practice and Procedure 30.2
                     _________________________
                     United States v. Washington, No. 201700242


                      Before FULTON, TANG, and CRISFIELD
                              Appellate Military Judges.
   Judge TANG delivered the opinion of the Court, in which Senior Judge
   FULTON and Judge CRISFIELD joined.

TANG, Judge:
    A general court-martial convicted the appellant, contrary to his pleas, of
one violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). Though charged
with two specifications alleging violations of Article 107, UCMJ, 10 U.S.C.
§ 907, he was acquitted of those offenses.
    The appellant avers five assignments of error (AOEs): (1) the conviction is
factually and legally insufficient; (2) the military judge erred by permitting the
government to elicit “human lie detector” testimony from an agent of the Naval
Criminal Investigative Service (NCIS); (3) the military judge abused his dis-
cretion by denying the defense motion to compel the expert assistance of a fo-
rensic psychologist and further erred in disallowing the defense-funded expert
psychologist to testify by telephone; (4) the military judge erred by denying a
challenge for cause of a member who believed homosexuality is a sin; and
(5) the trial defense counsel rendered ineffective assistance of counsel. Because
we find the appellant’s conviction is factually insufficient and set aside the ap-
pellant’s conviction, his remaining AOEs are rendered moot.

                                 I. BACKGROUND

A. The Appellant’s Relationship with Sergeant W and the Alleged Sex-
ual Assault
   The appellant was stationed in Okinawa, Japan. In March 2016, he met
Sergeant (Sgt) W through the mobile application Grindr. Sgt W described
Grindr as a “gay social app.” 1 Sgt W is openly homosexual and married, but his
husband did not accompany him to Okinawa. Sgt W stated he used Grindr be-
cause he wanted to make friends who could relate to him, explaining that it
was difficult for him to meet other homosexual men in the Marine Corps. 2
Sgt W agreed that many people use Grindr as a “hookup application,” allowing
individuals to find other individuals interested in casual sexual encounters. 3




   1   Record at 346.
   2   Id. at 408.
   3   Id. at 346, 407.


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                     United States v. Washington, No. 201700242


    After they first met, the appellant and Sgt W had intermittent contact for
over a month, conversing through Grindr and then through Snapchat, an elec-
tronic messaging application that automatically deletes messages after the re-
cipient reads them. The men socialized several times, usually one-on-one in
Sgt W’s barracks room.
   Sgt W underwent an extensive leg surgery in May 2016 to repair a com-
pound fracture of his tibia. He was prescribed Percocet to manage “excruciat-
ing” pain during his recovery. 4 He was directed to take two pills, as needed for
pain. Percocet is a combination of an opioid and Tylenol. 5 Sgt W testified
Percocet would “knock” him out and make him “drowsy” and “incapacitated.” 6
    Sgt W testified that on Monday, 20 June 2016, his pain was so severe that
he could barely straighten his leg. That day, the appellant texted him after
Sgt W had retired to his barracks room for the night around 2200. Sgt W told
the appellant his leg was hurting, so the appellant offered to massage Sgt W’s
leg, as he had done in the past. Sgt W accepted the appellant’s offer. Sgt W had
already taken two Percocet pills and, still hurting, decided to exceed the pre-
scribed dosage by taking two more pills just prior to the appellant’s planned
arrival.
    The appellant came to Sgt W’s barracks room around 2230 and, according
to Sgt W, sat on a second, unoccupied bed. Sgt W testified that soon after the
appellant arrived, and without having received the planned leg massage, he
told the appellant he would be going to sleep soon. Sgt W stated he then fell
asleep on his side, wearing gym shorts, with his injured leg propped up on a
pillow. He felt nothing until he awoke the next morning around 0650 to the
sound of his alarm clock. When he awoke, he was laying on his back. 7
    Upon waking alone in his bed Tuesday morning, Sgt W stated he felt pain
in his anus and saw a three-to-four-inch “dark-red-in-color” stain on his tan
comforter. 8 He believed it was blood. He immediately texted the appellant and
asked whether they had sex on “Monday night,” to which the appellant replied




   4   Record at 403.
   5   Id. at 612.
   6   Id. at 404.
   7   Neither party elicited evidence about Sgt W’s state of dress when he awoke.
   8   Record at 422.




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                    United States v. Washington, No. 201700242


they did. 9 He stated the appellant also texted, “[w]as that not okay?” and that
he had no further communications with the appellant after Tuesday morning. 10

B. Sgt W’s Report of Sexual Assault and the NCIS Investigation
    Sgt W made a restricted report of sexual assault. He stated he sought med-
ical treatment the day after the sexual assault, which would have been Tues-
day, 21 June 2016, but he did not immediately make an unrestricted report. 11
About 10 days later, he made an unrestricted report of sexual assault and sub-
mitted to a partial sexual assault forensic examination (SAFE). Neither party
presented any evidence of the SAFE results at trial. Investigator S, an inves-
tigator assigned to the NCIS Adult Sexual Assault Team in Okinawa, inter-
viewed Sgt W. Sgt W told him that he met the appellant on Grindr, but he said
their relationship was strictly a platonic friendship. Sgt W said he consistently
rebuffed the appellant every time the appellant tried to pursue a romantic or
sexual relationship with him. Sgt W stated he never had any consensual sexual
or intimate contact with the appellant.
    When agents asked Sgt W if he would permit a search of his cell phone, he
would not allow a forensic examination, nor would he permit the agents to
touch his phone. Sgt W had already taken screenshots of portions of his text
conversation with the appellant and, keeping his phone in his possession, al-
lowed the agents to photograph his phone displaying the two screenshots. The
messages, as captured, do not show the date they were sent or received. The
first screenshot depicted a portion of a conversation with a header labelled,
“Today,” and contained the following exchange:
             Sgt W:        Did we have sex the Monday night?
             Appellant: Yes 12




   9   Record at 423; Prosecution Exhibit (PE) 2.
   10 As further described below, Sgt W provided screenshots of a part of his text mes-
sage conversation with the appellant. The screenshots did not include any text from
the appellant asking “[w]as that not okay?” See Record at 348-49, 450.
   11  PE 4 contains Sgt W’s medical records and indicate an “initial encounter” date
of 24 June 2016 for this treatment.
   12   PE 2 at 1. Text reproduced as written in original.




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                    United States v. Washington, No. 201700242


The second screenshot contained a header labelled “Tuesday,” and contained
this exchange:
             Appellant: Hi [Smile emoticon]
             Sgt W:        Please leave me alone.
             Appellant: [Sad emoticon with tear] Oooooh Ok, I’m sorry
                        for bothering you. [Sad emoticon]
             Sgt W:        As in don’t message me again.
             Appellant: Wow! Well looks like I lost yet another friend . . .
                        Very well as you wish
             Sgt W:        You’re no friend . . .
             Appellant: That’s how you think of me wow OK then13
   Sgt W adamantly maintained that the appellant also texted him to ask,
“Was that not okay[?]” in reference to Sgt W’s question whether they had sex
Monday night. Sgt W specifically stated the comment upset him and that he
saved the text in the text message conversation. 14
    On 1 July 2016, Special Agent G took photographs of Sgt W’s room and
seized his comforter for forensic testing. Sgt W did not launder the comforter
prior to its seizure; he had merely folded it and stored it. Special Agent G did
not see the three-to-four-inch dark red blood stain Sgt W described, or any
blood stain at all. However, using an alternate light source, which permits one
to see “things that you would not normally see under the naked eye,” he did
notice a “slight discoloration.” 15 Forensic examination revealed the comforter
had semen and blood on it, containing Sgt W’s DNA and an unidentified DNA
profile. 16
   Also on 1 July 2016, Investigator S interviewed the appellant. The appel-
lant admitted he met Sgt W through the Grindr application and that he had
anal sex with Sgt W on the night of 20-21 June 2016. He told the agents he had
consensual sex with Sgt W twice before the alleged sexual assault and that he
was pursuing a relationship with Sgt W. He described both prior sexual en-
counters in detail. He stated on 20 June 2016, Sgt W invited him to his bar-
racks room to massage his leg. When the appellant arrived, he found Sgt W



   13   PE 2 at 2. Text reproduced as written in original. Record at 348-49.
   14   Record at 348.
   15   Id. at 481-82.
   16 This evidence was not presented through an expert in DNA analysis, but rather,
was elicited without objection through an NCIS agent who reviewed the results.


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                     United States v. Washington, No. 201700242


shirtless. The appellant stated he got in bed, under the covers, with Sgt W.
Then they kissed, undressed, and engaged in anal sex, with the appellant pen-
etrating Sgt W’s anus. The appellant stated that Sgt W masturbated himself
to climax afterwards.
    When asked about his text messages with Sgt W, the appellant agreed
Sgt W texted him to ask whether they had sex “Monday night.” But he stated
that conversation took place Thursday, not Tuesday morning as Sgt W
claimed. The appellant consented to a forensic search of his cell phone, but
agents could not recover any text messages with Sgt W. The appellant ex-
plained that Sgt W demanded he delete their text message conversation and
that he did so. Only one item of evidentiary value was recovered from the ap-
pellant’s phone: a self-photograph of Sgt W depicting Sgt W standing in front
of a mirror, shirtless, with his pants unzipped to expose a substantial portion
of the front of his underwear.
    Investigator S contacted Sgt W’s victim’s legal counsel, asking to conduct a
follow-on interview. He wanted to ask Sgt W about details the appellant pro-
vided, including the appellant’s claim that the two men had engaged in con-
sensual sex twice before the alleged sexual assault. Sgt W refused.
    Investigator S asked the appellant if he would submit to a polygraph ex-
amination. 17 The appellant agreed. He met with Special Agent P, an agent
trained in advanced interrogation techniques at the Defense Academy for
Credibility Assessment. During his initial interview with Special Agent P, the
appellant maintained that Sgt W was awake and participated in consensual
anal sex. Special Agent P persisted in his interrogation and administered the
polygraph. Then the appellant changed his statement and told Special Agent
P his first statement was not true.
    The appellant told Special Agent P he knew Sgt W was asleep during sex.
He stated Sgt W awoke several times during the sex act. He said Sgt W helped
lubricate the appellant’s penis to help him achieve penetration, and at one
point, Sgt W made a comment, “It’s in and out, not up and down.” 18 He also
said Sgt W awoke one or two more times and placed his hand on the appellant’s
stomach as if to indicate the appellant was doing something wrong. The appel-
lant would stop moving, but then continue when he thought Sgt W fell back
asleep. The appellant eventually lost interest when he realized he would not
ejaculate. He dressed and left around 0140 to 0200. The appellant admitted he



    17At trial, the parties referred to this interrogation as a “re-interview,” and Special
Agent P made no reference to a polygraph examination during his trial testimony. Rec-
ord at 494.
    18   Record at 512; PE 9 at 1-2.


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                    United States v. Washington, No. 201700242


lied when he told Investigator S that Sgt W masturbated and that Sgt W was
awake and participated in the sexual act. Special Agent P drafted a written
statement, with the appellant’s input, and the appellant signed it. The entire
“re-interview” process lasted nearly six hours.

C. Expert Pharmacist Testimony about Percocet
    During trial, both the government and defense presented evidence from ex-
pert pharmacists to describe the effects of Percocet on the human body. The
government’s witness testified that Percocet can cause drowsiness and users
may experience slowed reaction times. The purpose of Percocet is to inhibit the
feeling of pain. Different people react to drugs in different ways. On cross-ex-
amination, the government’s expert conceded that extensive studies demon-
strated that only 4% of patients experienced drowsiness, and fewer than 1%
experience memory loss or “blackouts.” 19 The government expert further testi-
fied it would be “highly unlikely,” at least with appropriate dosing, for a patient
to have such severe side effects that they could be made to sleep so soundly
that they would not notice a non-consensual penetration of their anus by a
penis. 20 However, the government’s expert witness testified that four Percocet
pills in a short period of time is not a recommended dose.
    The defense expert pharmacist agreed that drowsiness is a known side ef-
fect of Percocet, and she described drowsiness as a central nervous system side
effect that can cause impaired vision, slightly slurred speech, slower reaction
time and muscle weakness. Although Percocet causes drowsiness or sleepiness,
she explained that it does not cause a person to fall asleep, to stay asleep, or to
sleep more deeply. Percocet would not cause a person to sleep through ordinary
stimulus, such as a person attempting to shake them awake. Most importantly,
she testified that it is “very unlikely” and “almost impossible” that Percocet
would cause a person to “pass out,” even if a man of Sgt W’s height and weight
took four Percocet pills in a short period of time. 21 She further stated that am-
nesia is not a recognized side effect of Percocet.




   19   Record at 394.
   20   Id.
   21Id. at 613. The defense expert based this opinion on Sgt W’s weight of 135 pounds
and height of 67 inches.




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                     United States v. Washington, No. 201700242


D. The Military Judge’s Instructions and the Findings Worksheet
    The sole Specification under Charge I alleged, in pertinent part:
          In that [the appellant], did, at or near Okinawa, Japan, on or
          about 21 June 2016, commit a sexual act upon [Sgt W], to wit:
          penetrate [Sgt W’s] anus with his penis, when the [appellant]
          knew or reasonably should have known that [Sgt W] was asleep,
          unconscious, and otherwise unaware that the sexual act was oc-
          curring. 22
    The military judge instructed the members they could find the appellant
guilty on only one of the three charged theories of liability, that Sgt W was
asleep, unconscious, or otherwise unaware. He charged:
          The government does not have to prove all of these for you to
          return a guilty verdict on this charge. Proof beyond a reasonable
          doubt on one is enough. But in order to return a guilty verdict,
          you must agree by the required number of votes that the same
          one has been proved. 23
   He provided the members with a findings worksheet that contained three
check boxes, one alongside each theory of liability. The worksheet contained a
note indicating:
          You should select one below, by checking the box next to that
          reasons [sic], in which you believe the Government proved be-
          yond a reasonable doubt as to what [the appellant] knew or rea-
          sonably should have known when he committed the sexual act. 24
   The members checked the box for “otherwise unaware that the sexual act
was occurring” and left the boxes for “asleep” and “unconscious” blank.
    Although the appellant was charged with violations of Article 107 for mak-
ing two false statements, the members acquitted him of both. 25



    22   Charge Sheet.
    23   Appellate Exhibit (AE) XLI at 2.
    24   AE XXXIX at 1.
    25   The pertinent allegedly false statements were: (1) “[Sgt W] was fully awake and
participated in the sex,” or words to that effect; and (2) “After I could not finish, [Sgt W]
started to jack off, he came on his body, and he told me to get the T-shirt by the TV to
wipe off with,” or words to that effect.” Charge Sheet.




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                  United States v. Washington, No. 201700242


                                  II. DISCUSSION

A. United States v. Sager and the Meaning of “Otherwise Unaware”
    In United States v. Sager, the Court of Appeals for the Armed Forces
(CAAF) examined the theory of liability under Article 120(b)(2), involving a
victim who is “otherwise unaware” of the sexual act. United States v. Sager, 76
M.J. 158 (C.A.A.F. 2017). The facts and issues presented in Sager are very
similar to those in the appellant’s case. In Sager, the members also acquitted
on the “asleep” and “unconscious” theories of liability and convicted on the “oth-
erwise unaware” theory. 26 In deciding Sager, the CAAF evaluated whether the
element “‘asleep, unconscious, or otherwise unaware’ create[d] three separate
theories under which one may be guilty of the offense or . . . the language cre-
ate[d] a single theory of criminal liability.” Id. at 161. The CAAF expressly
rejected this court’s interpretation that “asleep or unconscious are examples of
how an individual may be otherwise unaware.” Id. at 160 (quoting United
States v. Sager, 2015 CCA LEXIS 571 at *1-2 (N-M Ct. Crim. App. 29 Dec
2015)). Instead, the CAAF held that “asleep,” “unconscious,” and “otherwise
unaware” constitute three separate theories of liability. Applying both the “or-
dinary meaning” and the “surplusage” canons of statutory construction, the
CAAF held the words “asleep,” “unconscious” and “or” would be “mere surplus-
age” if they did not reflect separate theories of liability. Id. at 162.
    Applying the “plain meaning” of the statute and relying on the dictionary
definition of “otherwise,” the CAAF held “otherwise unaware” means “unaware
in a manner different from asleep and different from unconscious.” Id. Based
on the CAAF’s construal, a victim cannot simultaneously be asleep and “oth-
erwise unaware,” nor can a victim be simultaneously unconscious and “other-
wise unaware.” The theories are mutually exclusive. 27
    Our interpretation of “otherwise unaware” comports with the interpreta-
tion of our sister service court, the Army Court of Criminal Appeals. In United
States v. Brantley, the Army court was ordered to re-evaluate its prior opinion



   26 In Sager, the military judge presented the members with a findings worksheet
that invited them to choose between “knew” or “should have known” and to choose
between “asleep,” “unconscious,” and “otherwise unaware.” The various choices were
expressed in parentheses. The members circled “otherwise unaware.”
   27  The Army Court of Criminal Appeals has subsequently held that a victim can be
both asleep and unconscious. The third theory, that the victim is “otherwise unaware,”
is different because of the modifier “otherwise.” See United States v. Williams, 78 M.J.
543, 547 (A. Ct. Crim. App. 2018).




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                  United States v. Washington, No. 201700242


in light of the CAAF’s opinion in Sager. United States v. Brantley, 2017 CCA
LEXIS 742 (A. Ct. Crim. App. 30 Nov 2017) (unpub. op.). Like the appellant in
this case, Private First Class Brantley was convicted of a violation of Article
120(d) solely on theory that his victim was “otherwise unaware” of the sexual
contact. 28 The Army court concluded the government had to prove “that the
victim was not unconscious, was not asleep, but was unaware of the sexual
conduct.” Brantley, 2017 CCA LEXIS 742 at *5. The court explicitly rejected
the government’s contention that “otherwise unaware” “nonetheless incorpo-
rates a sleeping or unconscious victim.” Id. We agree that a plain reading of
the statute, consistent with the CAAF’s interpretation in Sager, requires that
an “otherwise unaware” victim be neither asleep nor unconscious but still un-
aware of the sexual act.
    We will review the factual sufficiency of the appellant’s conviction in light
of the guidance from our superior court in Sager. Because we reverse the ap-
pellant’s conviction for lack of factual sufficiency, we need not evaluate legal
sufficiency.

B. Factual Sufficiency
    When reviewing a case for factual sufficiency, we must “make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” United States v. Washing-
ton, 57 M.J. 394, 399 (C.A.A.F. 2002). We must weigh all of the evidence in the
record of trial, recognizing that we neither heard nor saw the witnesses. Id. We
take a “fresh, impartial look at the evidence,” presuming neither innocence nor
guilt. Id.
    Conducting our de novo factual sufficiency review, we find the evidence
does not support the appellant’s conviction on the theory of “otherwise una-
ware.” We can only affirm the appellant’s conviction if we are convinced beyond
a reasonable doubt that Sgt W was unaware of the sexual act for a reason other
than sleep or unconsciousness. If Sgt W was aware of the sexual act, he was
not “unaware” of it for any reason.




   28 Although Brantley involved a sexual contact and the appellant was convicted of
a sexual act, the statutory definitions of Article 120(d) incorporate those in Article
120(b)(2) but apply to sexual contacts.




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                  United States v. Washington, No. 201700242


   The government’s evidence showed Sgt W was either asleep or unconscious
or he was aware of the sexual act. 29 We first examine Sgt W’s testimony to
determine whether there is any evidence that he was “otherwise unaware.”
    According to Sgt W’s testimony, he was asleep. He fell fast asleep after tak-
ing four Percocet pills, and did not wake until his alarm sounded the next day.
He testified that he did not feel anything; he did not see anything; he did not
say anything. He had no memory of any sexual act. He only suspected the ap-
pellant had sex with him because his anus hurt and because he saw the three-
to-four-inch red stain he believed was blood. Sgt W’s testimony yields no reason
to believe he was “otherwise unaware” of the sexual act for a reason other than
he was asleep.
   Thus, if there is any evidence to sustain the appellant’s conviction, it must
come from his own statements. In the first statement to Investigator S, the
appellant said Sgt W was awake and participated in the sexual act and then
masturbated himself to ejaculation. This statement provides no support to find
that Sgt W was ever in a state of “otherwise unawareness.” Therefore, evi-
dence, if any, of Sgt W’s “otherwise unawareness” would have to be found in
the appellant’s second statement.
    In his re-interview with Special Agent P, the appellant said Sgt W alter-
nated between being asleep and awake. The appellant’s statement admitting
that Sgt W was asleep cannot sustain a conviction on the theory that Sgt W
was “otherwise unaware.” So we will carefully analyze the points when appel-
lant described Sgt W as being awake or falling back asleep. The appellant de-
scribed his sexual encounter with Sgt W as follows:
        [A]nd at some point we began to make out, kissing and rubbing
        on each other’s bodies. . . . This lasted about 8-10 minutes, then
        he just stopped kissing me and turned over to face the wall, and
        I just laid behind him rubbing his shoulders and back. At some
        point I realized he fell asleep, so I pushed him to wake him up,
        and he responded for a second, but he eventually fell asleep
        again. . . . I am not sure if he was awake or asleep, but at some
        point, I attempted to insert my penis into his anus, and it
        wouldn’t go in, due to a lack of lubricant. [Sgt W] also realized it
        wouldn’t go in, so he reached up with his right hand, and got



   29 In closing, the trial counsel argued: “The second piece is that the accused must
have known or reasonably believed that the victim, [Sgt W], was asleep, unconscious,
or otherwise unaware. Based on the testimony of both [Sgt W] and both of the phar-
macists, the government would submit that we’ve proven beyond a reasonable doubt
that he was asleep during that time.” Record at 652.


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                   United States v. Washington, No. 201700242


         some of his own saliva, and rubbed it on my penis. He then rolled
         back over towards the wall, and I was then able to insert my
         penis into his anus. I had sex with him for maybe 3-5 minutes
         and at some point, he put his right hand against my stomach as
         if to indicate something was wrong and I needed to stop. I
         stopped momentarily, however [Sgt W] fell immediately back to
         sleep, and his arm fell limp. After he fell back to sleep, I started
         again to have sex with him for another 3-5 minutes, and again,
         he woke up and put his hand on my stomach, so I stopped. He
         mumbled the words, “It’s in and out, not up and down,” but I am
         not sure what exactly he meant, only that I must be doing some-
         thing wrong, so I stopped. A short time, later, I noticed he fell
         back to sleep, so I started having sex with him again, pushing
         my penis into his anus. A third time, he stopped me by placing
         his hand back on my stomach, so I stopped. This time he did not
         say anything, and his arm fell limp again. I started up one more,
         [sic] time, however [I] realized he was sound asleep, and I real-
         ized I was not going to ejaculate, and lost the mood, so I stopped
         altogether. At that point, I leaned up on my elbow to look at his
         face, and could tell his eyes were closed and he was asleep. 30
    All told, the appellant described five points in time just before and during
the sexual act when Sgt W was awake. All five times, Sgt W was aware of the
sexual act. Lubricating the appellant’s penis indicates awareness of the sexual
act the appellant was attempting and Sgt W’s knowledge that adding lubrica-
tion would assist. Sgt W’s action in directing the appellant, “[i]t’s in and out,
not up and down,” likewise demonstrates awareness of the sexual act and
providing feedback to improve the appellant’s performance. And the times
Sgt W placed his hand on the appellant’s stomach, in the context of his other
behaviors, also indicates his awareness of the sexual act and that he was at-
tempting to alert the appellant to his desire for the appellant to either pause,
cease, or modify his behavior. 31 Even though these actions may demonstrate a
withdrawal of consent or lack of consent, they also demonstrate awareness. 32



   30   PE 9 at 1-2 (emphasis added).
   31  The record evidence shows this movement was a reaction by Sgt W in response
to his awareness that the appellant was penetrating him. The government did not pre-
sent any evidence to show this movement was a non-volitional act.
   32 The government could have charged the appellant with a violation of Article
120(b)(1)(B) or Article 120(b)(3)(A), but it did not.




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                 United States v. Washington, No. 201700242


And that awareness, at all points when Sgt W was not asleep, renders the ap-
pellant’s conviction unsustainable.
    The appellee argues that Sgt W was “otherwise unaware” of the sexual act
because: 33 (1) Sgt W took four Percocet pills in a short period of time, and he
testified that Percocet makes him drowsy; (2) an expert pharmacist testified
that Percocet causes a person to be “not alert,” and that a person should not
drive while taking Percocet; (3) the appellant stated that Sgt W’s hand “fell
limp” a few times during the sexual act; and (4) the appellant stated that Sgt W
mumbled vice spoke clearly when he said “It’s in and out, not up and down.”
    We do not agree that these points of testimony support a finding beyond a
reasonable doubt that Sgt W was “otherwise unaware” of the sexual act. We
find “alertness” to be different from awareness. An unalert person is aware of
his or her surroundings but lacks mental sharpness. More importantly, Sgt W
never testified that he suffered from a lack of alertness—he said he was asleep.
The appellant’s statement that Sgt W’s hand “fell limp” signifies that Sgt W
either went to sleep or lapsed into unconsciousness, but does not demonstrate
that he was “otherwise unaware.” Nor does mumbling signify that Sgt W was
unaware of the sexual act.
    To help understand the effects of Percocet on Sgt W, we have the testimony
of not one, but two expert pharmacists. Their testimony only reinforces our
view that the appellant is not guilty beyond a reasonable doubt on the theory
of “otherwise unaware.” Although Percocet can cause drowsiness, slowed reac-
tion times, slightly slurred speech, muscle weakness, or impaired vision, none
of those symptoms affects the crucial factor of “awareness.” And Percocet does
not cause a person to fall asleep, to stay asleep, or to sleep through ordinary
stimulus.
    We find no support in the testimony of two expert pharmacists to suggest
that Sgt W was “otherwise unaware” of the sexual act. The experts’ testimony
did not even support the government theory that Percocet caused Sgt W to fall
asleep or to sleep through the sexual act. Nor did their testimony provide a
reason to believe Sgt W would be unable to remember what happened if he
awoke during the sexual act. The government’s expert testified that fewer than
one percent of patients administered Percocet experience memory loss, and the
defense expert stated amnesia is not a known side effect. We are further



   33 Appellee’s Brief of 20 Jul 2017 at 25-26. Although the government made this
argument in support of a finding of legal sufficiency, the government incorporated
those arguments into its argument in support of factual sufficiency.




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swayed by: (1) the government expert’s conclusion that it would be “highly un-
likely” for a properly dosed patient to sleep through anal penetration; 34 and (2)
the defense expert’s conclusion that it is “very unlikely” and “almost impossi-
ble” that Percocet would cause a person of Sgt W’s size to “pass out,” even with
an excessive dosage. 35 The government presented no evidence to explain why
Sgt W would inexplicably react to Percocet in a manner that is dramatically
different from the subjects in extensive studies.
   In addition, Sgt W was impeached by prior inconsistent statements and by
contradictions in the evidence, and made statements we find are not credible. 36
Examining all of the evidence, we do not find it supports the appellant’s guilt
beyond a reasonable doubt on the offense of conviction.

C. Lesser Included Offense of Attempted Sexual Assault
    When we set aside a guilty finding, we have the power to affirm a finding
of guilty on a lesser included offense. Article 59(b), UCMJ, 10 U.S.C. § 859(b);
States v. Medina, 66 M.J. 21, 24 (C.A.A.F. 2008). The appellee urges us to find
the appellant guilty of attempted sexual assault if we reverse his conviction for
sexual assault. We decline to do so.
    An attempt under Article 80, UCMJ requires proof of the following ele-
ments beyond a reasonable doubt: (1) that the appellant did a certain overt act;
(2) that the act was done with the specific intent to commit the underlying
offense; (3) that the act was a substantial step that constituted more than mere




    34   Record at 394 (emphasis added).
    35   Id. at 613 (emphasis added).
    36 Specifically, he testified he saw a three-to-four-inch red stain on his comforter,
but NCIS agents saw no such stain on the unwashed comforter just 10 days later. Alt-
hough he claimed he immediately texted the appellant upon waking, we believe his
message “[d]id we have sex on the Monday?” was not likely sent immediately upon
waking up on Tuesday morning. He further claimed he made an unrestricted report of
sexual assault the day after conferring with a female Marine who had done the same.
He claimed this female Marine inadvertently learned of his allegation because she
overheard Sgt W telling his brother about it. But Sgt W did not tell his brother about
the allegation until long after he filed an unrestricted report. Sgt W claimed the appel-
lant texted him to ask, “Was that not okay?” referring to anal sex, but this message
was not recovered from Sgt W’s screenshots. Although Sgt W stated he sought medical
treatment on Tuesday, 21 June 2016, his medical records indicate this initial encoun-
ter took place on 24 June 2016.




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                   United States v. Washington, No. 201700242


preparation; and (4) that the act apparently tended to effect the commission of
the offense. 37
    The offense of attempt requires the government to prove the appellant spe-
cifically intended to commit every single element of the underlying offense. 38
The “‘specific intent’ which must be proved is the intent to commit the pro-
scribed act.” United States v. Foster, 14 M.J. 246, 249 (C.M.A. 1982). A specific
intent crime “requires that the accused must have acted with the specific pur-
pose of violating the law.” United States v. Axelson, 65 M.J. 501, 512 (A. Ct.
Crim. App. 2007).
    The elements of Article 120(b)(2), as remain on appeal, are: (1) that the
appellant committed a sexual act upon Sgt W; (2) that Sgt W was “otherwise
unaware that the sexual act was occurring”; and (3) that the appellant knew
that Sgt W was “otherwise unaware that the sexual act was occurring.” 39 To
affirm a conviction of attempted sexual assault, we must be convinced beyond
a reasonable doubt that the appellant specifically intended to penetrate
Sgt W’s anus and that he specifically intended to do so while Sgt W was “oth-
erwise unaware.”
    We find support in United States v. Langley, 33 M.J. 278, 281-282 (C.M.A.
1991) that attempted sexual assault requires the government to prove not only
that the appellant specifically attempted to commit the sexual act, but that the
appellant intended to commit the sexual act while he knew that Sgt W was
“otherwise unaware” of the sexual act. 40 In Langley, the Court of Military Ap-
peals (CMA) held that the former Article 134, UCMJ offense of assault with
intent to commit rape required “the prosecution [to] affirmatively prove that,
at the time of the assault, the accused specifically intended to forcibly accom-
plish sexual intercourse,” as opposed to a specific intent merely to accomplish
sexual intercourse. Id. at 282.
   The appellant specifically intended to penetrate Sgt W’s anus. He repeat-
edly stated he did so while he believed Sgt W was asleep and while Sgt W was
awake. Although there is ample evidence the appellant specifically intended to


   37   MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) Part IV, ¶ 4b.
   38 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 177 (1 Sep
2014), Instruction 3-4-1d.
   39  Although the specification alleged that the appellant “knew or should have
known,” actual knowledge will be required in order to satisfy the specific intent mens
rea for attempt.
   40 Although the specification alleged the appellant “knew or reasonably should
have known,” to prove an attempt, the government must show the appellant had actual
knowledge of the circumstances which render his conduct criminal.


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                 United States v. Washington, No. 201700242


penetrate Sgt W’s anus, even while Sgt W was asleep or unconscious, we find
no evidence that the appellant specifically intended to do so while Sgt W was
“otherwise unaware.”
    The appellee cites United States v. Welch, 2016 CCA LEXIS 253 (N-M. Ct.
Crim. App. Apr. 21, 2016) (unpub. op.), a case in which this court disapproved
a finding of guilt for abusive sexual contact but approved a conviction for at-
tempted abusive sexual contact. Although the evidence showed the victim was
awake at the time of sexual contact, this court found that Petty Officer Welch
believed the victim was asleep and therefore affirmed a conviction of attempted
abusive sexual contact. We find Welch to be distinguishable. In Welch, this
court found sufficient evidence of Petty Officer Welch’s specific intent to com-
mit sexual contact upon his victim while the victim was asleep. By contrast,
here there is no evidence that the appellant knew Sgt W was “otherwise una-
ware.” Nor did the government present any evidence that the appellant specif-
ically intended to sexually assault Sgt W while he was “otherwise unaware.”
The government only presented evidence to show that the appellant believed
Sgt W was asleep at certain points during the sexual act. Without evidence to
show the appellant specifically intended every element of the offense, we can-
not affirm a finding of guilt to the lesser included offense of attempted sexual
assault.

                              III. CONCLUSION

   When members had a “full opportunity” to convict the appellant of an of-
fense but make no such finding, the legal effect of their action is a finding of
not guilty. See Green v. United States, 355 U.S. 184 (1957). The government’s
theory, as developed through witness testimony and as emphasized during the
government’s argument on findings, was that Sgt W was asleep during the sex-
ual act. In spite of a “full opportunity” to convict on that theory, the members
acquitted the appellant. Double jeopardy bars retrial under the two rejected
theories of liability, and it likewise bars conviction on attempts based on those
theories.
   Having found the evidence insufficient to sustain any conviction on the sole
remaining theory, the findings and sentence are SET ASIDE and DIS-
MISSED WITH PREJUDICE.




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           United States v. Washington, No. 201700242


Senior Judge FULTON and Judge CRISFIELD concur.


                         FOR THE COURT:




                         RODGER A. DREW, JR.
                         Clerk of Court




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