UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201400356

_________________________

UNITED STATES OF AMERICA

Appellee

v.

JEFFERY D. SAGER

Aviation Ordnanceman Airman (E-3), U.S. Navy

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: Commander John A. Maksym, JAGC, USN.

Convening Authority: Commander, U.S. Naval Forces Japan, 

Yokosuka, Japan.

Staff Judge Advocate’s Recommendations: Commander Timothy D.

Stone, JAGC, USN.

For Appellant: Lieutenant Doug Ottenwess, JAGC, USN.

For Appellee: Lieutenant Commander Justin C. Henderson, JAGC, 

USN; Lieutenant James M. Belforti, JAGC, USN.

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Decided 31 January 2018

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Before HUTCHISON, FULTON, and SAYEGH, 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.

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FULTON, Judge:

A panel of members with enlisted representation sitting as a general 

court-martial convicted the appellant, contrary to his pleas, of one 

specification of abusive sexual contact, in violation of Article 120, Uniform 
United States v. Sager, No. 201400356

2

Code of Military Justice (UCMJ).1 The members acquitted the appellant of a 

second specification also alleging abusive sexual contact against the same 

complaining witness. The convening authority approved the adjudged 

sentence of 24 months’ confinement and a bad-conduct discharge. 

This case is before us for a second time. The Court of Appeals for the 

Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s 

conviction for abusive sexual contact.2 At the heart of the appellate litigation 

in this case is a question over the interpretation of Article 120(b)(2), UCMJ, 

which proscribes sexual contact with people the accused knows, or reasonably 

should know, are incapable of consenting to the contact because they are 

“asleep, unconscious, or otherwise unaware” that the contact is occurring.3

The unusual posture of this case after trial required us to decide whether the 

terms asleep, unconscious, and otherwise unaware represented distinct 

theories of criminal liability. In our first review of this case, we held that 

they do not. Rather, we held that the reasons for a victim’s lack of awareness, 

be it sleep, unconsciousness, or something else, were only relevant to whether 

the accused should have known that the victim was unaware of the contact.4

The CAAF held that our interpretation was incorrect. Reversing this 

court, the CAAF held that “asleep, unconscious, or otherwise unaware” 

represents three separate theories of liability.5 The CAAF also held that the 

term otherwise unaware means unaware in a manner different from both 

sleep and unconsciousness.

6 The CAAF returned the case to us for a new 

factual sufficiency review, this time applying the correct interpretation of 

Article 120(b)(2).

7 In conducting that review, the CAAF directed us to 

consider whether the Supreme Court’s decision in Green v. United States, 

which held that a jury’s silence as to a charge terminates a defendant’s 

jeopardy as to that charge, applies to this case.8

 

1 10 U.S.C. § 920 (2012).

2 United States v. Sager, No. 201400356, 2015 CCA LEXIS 571 (N-M. Ct. Crim. 

App. 29 Dec 2015), rev’d and remanded, United States v. Sager, 76 M.J. 158 (C.A.A.F. 

2017).

3 10 U.S.C. § 920(b)(2) (2012).

4 Sager, 2015 CCA LEXIS at *9.

5 Sager, 76 M.J. at 162.

6 Id.

7 Id.

8 355 U.S. 184 (1957).
United States v. Sager, No. 201400356

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We have completed our review and find that the appellant’s conviction for 

abusive sexual contact is insufficiently supported by the evidence. We 

therefore set it aside. Applying Green, we dismiss the charge and its 

specification.

I. BACKGROUND

The appellant and Airman TK were shipmates on a Navy ship 

homeported in Yokosuka, Japan. On the evening of the offenses, Airman TK 

visited several bars near the naval base and met the appellant, whom he 

understood to be his “liberty buddy,” at one of the bars. Airman TK, the 

appellant, and several other Sailors spent the rest of the evening together. 

Around 2300, the group left the bar and walked to Petty Officer DS’s 

apartment, where they spent the night.

By this time, Airman TK was “[v]ery drunk.”9 He was stumbling, slurring 

his words, and he vomited into a bucket the appellant brought him. 

According to Airman TK, after vomiting, he recalls “passing out” on a futon 

in the living room.10 He awoke to the appellant manually stimulating his 

penis. Airman TK felt the appellant’s hand on his penis, but was unable to 

talk or move because he was too drunk. After about five to ten minutes of 

manual stimulation his penis was erect. Although he could not move, Airman 

TK mentally tried without success to lose his erection. After manually 

stimulating Airman TK, the appellant performed oral sex on him until he 

ejaculated.

Based on these facts, the government charged the appellant with two 

specifications of sexual assault. For fellating Airman TK, the government 

charged the appellant with committing a sexual act on Airman TK when the 

appellant knew or reasonably should have known that Airman TK was 

incapable of consenting due to intoxication. The members acquitted the 

appellant of this offense. For manually stimulating Airman TK’s penis, the 

government charged the appellant with committing a sexual contact on 

Airman TK when the appellant knew or reasonably should have known that 

Airman TK was asleep, unconscious, or otherwise unaware that the sexual 

contact was occurring. The members convicted the appellant of this offense.

The military judge took an unusual approach to findings in this case.

Instead of instructing the members to vote on the appellant’s guilt in the 

specification, the military judge directed the members to hold separate votes 

for different theories of liability under Article 120(b)(1):

 

9 Record at 522. 

10 Id. at 527.
United States v. Sager, No. 201400356

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. . . [Y]ou have to circle under the charge and specification the 

theory of the government you adopt if you convict. You’ll notice 

that . . . [i]t’s he knew or should have known . . . . That means 

you’re going to have to vote on . . . both theories . . . . The first 

vote is going to be, okay, is he guilty or not guilty of the charge 

under the . . . specification under the theory of “knew” he knew. 

Is he guilty or not guilty under the theory of “should have 

known” because the government has both theories . . . . But you 

have to circle the one that’s applicable, okay.11

The findings worksheet presented the different theories of liability as 

choices to be circled if the members convicted on that theory. Although the 

military judge did not instruct the members that they had to circle whether 

they found that Airman TK was asleep, unconscious or otherwise unaware at 

the time, the members circled not only that they found the appellant 

“reasonably should have known,” but also that Airman TK was “otherwise 

unaware” that a sexual act was occurring.12 This is the finding the CAAF has 

directed us to review for factual sufficiency.

II. DISCUSSION

A. Factual sufficiency 

We review questions of factual sufficiency de novo.

13 The test for factual 

sufficiency is whether, after weighing all the evidence in the record of trial, 

we are convinced of the appellant’s guilt beyond a reasonable doubt, allowing 

for the fact that we did not personally observe the witnesses.14

To affirm this conviction, we must be convinced beyond a reasonable 

doubt that the appellant committed a sexual contact with Airman TK when 

he reasonably should have known that Airman TK was “otherwise unaware” 

that the sexual contact was occurring.15 Because there is insufficient evidence 

 

11 Id. at 1198.

12 Appellate Exhibit (AE) 131. The findings worksheet presented to the members 

read as follows:

(b) Guilty in that AN Sager committed a sexual contact upn 

[Airman TK] when AN Sager (knew) (or) (reasonably should 

have known) that [AirmanTK] was (asleep), (unconscious), 

(or) (otherwise unaware) that the sexual act was occurring.

13 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

14 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

15 AE 131.
United States v. Sager, No. 201400356

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that the appellant was otherwise unaware that the sexual contact was 

occurring, we must set aside the conviction.

In its opinion reversing this court, the CAAF provided clarification of the 

term otherwise unaware. The CAAF determined that in the context of Article 

120(d), UCMJ, otherwise unaware means “unaware in a manner different 

from asleep and different from unconsciousness.”16 Airman TK testified that 

he awoke to the appellant touching his penis. The government argued to the 

members that Airman TK was sleeping before he became aware that the 

appellant was touching his penis. Assuming that Airman TK was unaware 

that the appellant was touching his penis before he woke up, there is little in 

the record to suggest that the reason for his lack of awareness was “in a 

manner different from asleep and different from unconsciousness.”17 The 

evidence suggests he was unaware because he was asleep. And there is no 

evidence that he was unaware of the sexual contact after he woke up. In 

short, the evidence does not convince us beyond a reasonable doubt that 

Airman TK was unaware of the sexual contact “in a manner different from 

asleep and different from unconsciousness” and we must disapprove this 

finding.18

B. Application of Green v. United States

In addition to conducting a new Article 66, UCMJ, review, the CAAF 

directed us to consider whether the 1957 Supreme Court case Green v. United 

States19 is applicable to this case. In Green, a defendant was tried for arson 

and first-degree murder.20 “[T]he trial judge instructed the jury that it could 

find Green guilty of arson under the first count and of either (1) first degree 

murder or (2) second degree murder under the second count.”21 The jury 

convicted Green of arson and second degree murder and returned no finding 

as to first-degree murder.22 After his conviction was reversed on appeal, 

Green was retried for first-degree murder under the original indictment.23

 

16 Sager, 76 M.J. at 162.

17 Id.

18 Id.

19 355 U.S. 184 (1957).

20 Id. at 185.

21 Id.

22 Id. at 186.

23 Id. 
United States v. Sager, No. 201400356

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The Supreme Court held that retrying Green for first-degree murder 

violated the constitutional prohibition against double jeopardy.24 The Court 

reasoned that the jury had “full opportunity” to return a verdict and declined 

to convict. When the jury declined to convict Green, Green’s jeopardy came to 

an end, and he could not be retried.

As was the case in Green, here the members had an opportunity to convict 

the appellant on other language in the specification. They had the 

opportunity to convict the appellant of actually knowing Airman TK was 

unaware of the sexual contact. They also had the opportunity to convict the 

appellant of committing a sexual contact with Airman TK while he was 

asleep or unconscious. The members declined to convict the appellant of this 

language. We find that the appellant’s jeopardy with respect to this language 

came to an end when the members declined to convict him of it. We therefore 

dismiss this specification. 

III. CONCLUSION

The findings and sentence are set aside. The specification and charge of 

which the appellant was convicted are dismissed.

Senior Judge HUTCHISON and Judge SAYEGH concur.

For the Court

R.H. TROIDL

Clerk of Court

 

24 Id. at 198.