Otherwise unaware

A 31 May 2016 grant at CAAF.

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

1. IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

1. 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?

The NMCCA opinion is here in, United States v. Sager, CCA 201400356, 2015 CCA LEXIS 571 (N-M Ct. Crim. App. 29 December 2015)(unpub.), pet. granted.