U.S. v. Moore, 86 M.J. 308

Military Justice Personnel: Military Judge: Instructions

1. in a contested case of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, a military judge may not instruct the members that they may find the without consent element to be proved beyond a reasonable doubt based solely on evidence that the victim was asleep or incapacitated

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Offenses on/after 1 Jan 2019 › (b) Sexual Assault

1. the government cannot prove the absence of consent for the purposes of the offense of sexual assault without consent under Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was incapable of consenting at the time of the sexual act
2. the principle that the government cannot prove the absence of consent for the purposes of the offense of sexual assault without consent under Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was incapable of consenting at the time of the sexual act applies to both victims who are incapacitated by intoxication and victims who are sleeping
3. in an uncontested case, a plea of guilty to sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, is not provident if the accused admits solely that the victim was sleeping or incapacitated when the sexual act occurred
4. in a contested case of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, if the accused moves for a finding of not guilty, the military judge may not deny the motion based solely on evidence that the victim was asleep or incapacitated when the sexual act occurred
5. if a rational trier of fact could find from the evidence both that the victim did not consent before falling asleep and that the sexual act subsequently occurred while the victim was asleep, the evidence is legally sufficient to prove the without consent element of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ; of course, in any given case, a rational trier of fact also could find that the admitted evidence is insufficient to prove beyond a reasonable doubt that the victim did not consent before falling asleep, and a CCA performing a factual sufficiency review on appeal could reach the same conclusion
6. if a victim did not consent to a sexual act before falling asleep, and the victim later could not consent to a sexual act while asleep, then a sexual act occurring while the victim is asleep is without consent for the purposes of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ
7. evidence that the alleged victim for the purposes of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, did not consent to a sexual act before falling asleep and evidence that the victim was asleep when the sexual act occurred are relevant surrounding circumstances; together, they may establish the without consent element
8. the government can offer evidence of an alleged victim's intoxication to prove the absence of consent, but it cannot prove the absence of consent for purposes of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was too intoxicated to consent; likewise, the government can offer evidence of an alleged victim's sleep to prove the absence of consent, but it cannot prove the absence of consent for purposes of the offense of sexual assault without consent io violation Article 120(b)(2)(A), UCMJ, only with evidence that the victim was asleep
9. evidence may be legally sufficient to prove the without consent element of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, if the evidence shows that the victim was asleep when the sexual act began but awoke before the sexual act was complete and, while awake, did not consent to the ongoing sexual act; in such cases, the government is not attempting to prove the absence of consent under Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was incapable of consenting; instead, the government is proving that a person who was awake during the sexual act did not consent, thus satisfying both elements of Article 120(b)(2)(A), UCMJ
10. in this case, the evidence was legally sufficient to prove that the accused committed the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, where the victim testified that the accused's fingers were inside of her vaginal area and were penetrating her vulva when she awakened and where the victim testified that she did not consent to the sexual act before she fell asleep and that when she awoke during the sexual assault, she immediately expressed her lack of consent

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. evidence that the alleged victim for the purposes of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, did not consent to a sexual act before falling asleep and evidence that the victim was asleep when the sexual act occurred are relevant surrounding circumstances; together, they may establish the without consent element
2. the government can offer evidence of an alleged victim's intoxication to prove the absence of consent, but it cannot prove the absence of consent for purposes of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was too intoxicated to consent; likewise, the government can offer evidence of an alleged victim's sleep to prove the absence of consent, but it cannot prove the absence of consent for purposes of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, only with evidence that the victim was asleep
3. evidence may be legally sufficient to prove the without consent element of the offense of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, if the evidence shows that the victim was asleep when the sexual act began but awoke before the sexual act was complete and, while awake, did not consent to the ongoing sexual act; in such cases, the government is not attempting to prove the absence of consent under Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was incapable of consenting; instead, the government is proving that a person who was awake during the sexual act did not consent, thus satisfying both elements of Article 120(b)(2)(A), UCMJ

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. on appeal, a CCA may not find that the evidence is legally sufficient to prove the without consent element of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, solely because there was evidence that the victim was asleep or incapacitated when the sexual act occurred

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. on appeal, a CCA may not find that the evidence is factually sufficient to prove the without consent element of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, solely because it finds that the evidence proved the victim was asleep or incapacitated when the sexual act occurred

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF may review whether a CCA applied correct legal principles in performing its factual sufficiency review
2. on appeal, the CAAF may not find that the evidence is legally sufficient to prove the without consent element of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, solely because there was evidence that the victim was asleep or incapacitated when the sexual act occurred

Trial Stages: Appeals: Remedies › Remand

1. in this case, because the CCA erred in its legal analysis and because it stated that the evidence was factually insufficient for the same reasons that it was legally insufficient, a remand is necessary for the CCA to conduct a new factual sufficiency review

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews de novo the legal sufficiency of the evidence
2. the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt