United States v. Hogan

United States Navy-Marine Corps Court of Criminal Appeals · 2018 · Evidence

EvidenceFactual SufficiencySexual Assaultfactual sufficiencylegal sufficiencyArticle 120Article 66(c)sleeping victim

Facts

After a night of drinking, EM was placed fully clothed in appellant's bed by a friend, who did so on the understanding that appellant would sleep on the couch. EM testified that she later awoke in appellant's bed with her jeans and underwear removed and appellant penetrating her vagina from behind. The record also showed appellant had earlier expressed a strong desire to have sex with EM, had made advances toward her that she did not reciprocate, and texted FD after the incident admitting he had sex with EM. EM immediately texted FD that she woke up to appellant's penis inside her and said she felt violated.

Issue

Whether the evidence was factually sufficient to prove beyond a reasonable doubt that appellant committed a sexual act on EM when he knew or reasonably should have known that she was incapable of consenting because she was asleep.

Rule

Under Article 66(c), factual sufficiency asks whether, after weighing all the evidence in the record and recognizing the appellate court did not see or hear the witnesses, the court itself is convinced of guilt beyond a reasonable doubt. For sexual assault under Article 120(b)(2), the prosecution must prove beyond a reasonable doubt that the accused committed a sexual act by causing penetration of the victim's vulva by his penis and did so when he knew or reasonably should have known the victim was incapable of consenting because she was asleep.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Diego, Nora Lin testified that after friends left her asleep on a couch fully clothed, she woke with Evan Mercer already penetrating her from behind. A sexual-assault exam found no DNA and no tearing, but noted vaginal soreness. Minutes later, Evan texted Nora's friend, "Yeah, we had sex," after earlier asking that friend to help him "hook up" with Nora.

If an appellate court independently weighs the record for factual sufficiency, which is the strongest conclusion?

Explanation. Under the majority opinion, the absence of DNA or conclusive physical findings is not dispositive. The factfinder may rely on credible testimony that the complainant awoke while already being penetrated, along with corroborating circumstances such as soreness and the accused's text admission that he had sex with her. Those facts can support proof of penetration beyond a reasonable doubt.