Opinion Analysis: Asleep and unconscious are different from being otherwise unaware, in United States v. Sager, No. 16-0418/NA
CAAF decided the Navy case of United States v. Sager, 76 M.J. 158, No. 16-0418/NA (CAAFlog case page) (link to slip op.), on Tuesday, March 21, 2017. Reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concludes that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reverses the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remands the case for further consideration.
Chief Judge Erdmann writes for the court, joined by all but Judge Stucky who dissents.
Aviation Ordnanceman Airman (E-3) Sager was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) (2012). That statute criminalizes sexual contact in the same way that Article 120(b) criminalizes sexual acts. The Government charged Sager with two specifications, both related to a sexual encounter between Sager and his roommate. One specification alleged that the roommate was incapable of consenting due to intoxication, while the other alleged that the roommate was asleep, unconscious, or otherwise unaware. The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating unawareness:
On appeal, Sager asserted that the specification was unconstitutionally vague because it failed to identify how the roommate was otherwise unaware, and also that the finding is factually and legally insufficient because the evidence indicated that the roommate was either asleep or unconscious. Sager’s argument was essentially that the statute’s enumeration of asleep, unconscious, or otherwise unaware creates three separate and distinct theories of criminal liability. The NMCCA, however, rejected this argument, concluding that:
asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.
United States v. Sager, No. 201400356, slip op. at 7 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.). From this conclusion the NMCCA then found that evidence of the roommate’s degree of intoxication or unconsciousness was relevant, and it affirmed the conviction. CAAF then granted review of two issues questioning both the meaning of the statute and the adequacy of the CCA’s review of the evidence:
I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?
II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?
In today’s opinion Chief Judge Erdmann and the majority answer the second issue in the affirmative, finding that the CCA erred in its statutory interpretation, but decline to answer the first issue, remanding it to the CCA for further review. Judge Stucky, however, would affirm the conviction.