U.S. v. Serjak, 86 M.J. 319

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. 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; but even though the evidence may be legally sufficient to support a conviction, a CCA could still find the evidence to be factually insufficient
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

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

1. even though the evidence may be legally sufficient to support a conviction, a CCA could still find the evidence to be factually insufficient

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

Trial Stages: Appeals: Remedies › Remand

1. in this case, although the evidence was legally sufficient to prove the without consent element of the offense of sexual assault without consent in violation of Article 120(b)(2)(B), UCMJ, it is unclear whether the CCA understood the principle that 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 factually sufficient to prove the without consent element; accordingly, the case must be remanded for 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