CAAF issued the following summary disposition in United States v. Brantley, 76 M.J. __, No.17-0055/AR (CAAFlog case page), on Thursday, June 1, 2017:
No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. On further consideration of the granted issue (76 M.J. 62 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), to evaluate the case in light of United States v. Sager, 76 M.J. 158 (C.A.A.F. March 21, 2017).
In United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concluded that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reversed the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remanded the case for further consideration.
Brantley challenged the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching in a case where the prosecution’s argument focused on the alleged victim’s impairment. I concluded my argument preview with the following observation:
Yet I think there is also a strong argument that CAAF should summarily reverse and remand to the CCA for further consideration in light of Sager. There the CCA can also determine – based on a proper understanding of the law – whether it is personally convinced of Brantley’s guilt beyond a reasonable doubt (the test for factual sufficiency; a review available only at the CCA).