UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

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

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Before MARKS, JONES, and WOODARD, 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

2

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.
United States v. Hogan, No. 201700058

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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.
United States v. Hogan, No. 201700058

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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.
United States v. Hogan, No. 201700058

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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.
United States v. Hogan, No. 201700058

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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.