UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

BURTON, HAGLER, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Cadet JACOB D. WHISENHUNT 

United States Army, Appellant 

ARMY 20170274 

United States Military Academy 

S. Charles Neill, Military Judge 

Colonel James Robinette, II, Staff Judge Advocate 

For Appellant: William E. Cassara, Esquire (on brief); Captain Zachary Szilagyi, 

JA; William E. Cassara, Esquire (on supplemental brief and reply brief). 

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford, 

JA; Major Hannah E. Kaufman, JA; Captain Meredith M. Picard, JA (on brief and 

supplemental brief). 

3 June 2019 

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SUMMARY DISPOSITION 

--------------------------------

Per Curiam: 

 Appellant raises numerous assignments of error and issues pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), related to his convictions and 

sentence for sexual assault. We need only address one. Pursuant to our review of 

the record, we find that appellant’s convictions are factually insufficient. 

 An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of three specifications of sexual assault, in violation of Article 

120, Uniform Code of Military Justice, 10 U.S.C. § 920 [UCMJ]. The panel 

sentenced appellant to be dismissed from the service, confinement for twenty-one 

years, total forfeitures, and a reprimand. The convening authority approved the 

sentence as adjudged. 
WHISENHUNT—ARMY 20170274 

2 

BACKGROUND 

The government charged appellant with three specifications of sexually 

assaulting his fellow West Point cadet, LM, during Cadet Field Training at Camp 

Buckner; two of the specifications related to digital penetration, while the third 

related to penile penetration. Each of the specifications related to a sexual 

encounter in LM’s sleeping bag (also referred to as a “bivy cover”). 

Appellant and LM were assigned to the same squad during Cadet Field 

Training, which started in late-June 2016. On the night of 7 July 2016, their squad 

bedded down along with the remainder of their company at a field bivouac site. The 

site was open (although there were some trees), and the cadets slept on the ground. 

Appellant’s and LM’s sleeping bags were next to one another, and the other squad 

members were within a few feet of them. There was also evidence that LM had a 

“crackly” space blanket under or around her sleeping bag. 

Cadets were not authorized to have sex during Cadet Field Training. That 

night, however, appellant penetrated LM’s vagina with his finger and then with his 

penis. These sexual acts were not observed by any other cadets in their squad or 

company, but appellant’s semen was found inside LM’s sleeping bag. 

At trial, the parties presented competing theories over this sexual encounter. 

The government asserted that appellant was a sexual aggressor who assaulted LM in 

her sleeping bag, while the defense averred that the parties engaged in a consensual 

sexual encounter while taking active measures to avoid detection. The parties 

provided a variety of evidence and arguments – both direct and circumstantial – in 

support of these theories, to include what happened before and after the encounter. 

LM and appellant both testified at trial. In describing the alleged assault, LM 

said she was inside her bivy cover to the point that it completely covered her head, 

but she woke up to appellant penetrating her with his finger and then with his penis. 

LM said she remained frozen in the fetal position during the entire assault. By 

contrast, appellant testified that the sexual acts were precipitated by a series of 

escalating and consensual touchings. Appellant also said that both parties tried to 

avoid detection and even stopped and held their breaths after hearing a nearby noise. 

 

Following closing arguments, in which the parties reiterated their contrasting 

theories, the panel convicted appellant of all three specifications. 

 

 On appeal, the government concedes that these specifications involved the same 

penetration and thus one of them should be set aside. This issue is mooted by our 

finding that all of the specifications are factually insufficient. 
WHISENHUNT—ARMY 20170274 

3 

LAW AND DISCUSSION 

Article 66, UCMJ, establishes our statutory duty to review a record of trial for 

legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395 

(C.A.A.F. 2003). We may affirm only those findings of guilt that we find correct in 

law and fact and determine, based on the entire record, should be approved. Id. 

In weighing factual sufficiency, we take “a fresh, impartial look at the 

evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To affirm a 

conviction, “after weighing the evidence in the record of trial and making 

allowances for not having personally observed the witnesses, [we must be] 

convinced of [appellant’s] guilt beyond a reasonable doubt.” United States v. 

Turner, 25 M.J. 324, 325 (C.M.A. 1987). 

We have carefully reviewed the evidence and, taking into consideration that 

the panel saw and heard the witnesses and we did not, we nevertheless conclude that 

appellant’s convictions are factually insufficient. At a minimum, affirming these 

convictions would require us to reach a number of conclusions that are inadequately 

supported by the evidence. 

The defense theory was that appellant and LM engaged in a consensual sexual 

encounter while taking active measures to avoid detection. In our view, the 

circumstantial evidence in support of this defense theory severely undercuts the 

government’s case. For example, to be convinced of appellant’s guilt, we would 

have to conclude beyond a reasonable doubt that the sexual acts could plausibly 

occur (and would not be discovered) without active cooperation from both parties. 

Given different circumstances, this might not be a stretch. But in the unique 

circumstances here – which include a bivy cover, a noise-producing space blanket, 

and numerous squad mates in very close proximity – it is hard to conclude beyond a 

reasonable doubt that appellant could complete the charged offenses without 

cooperation or detection. 

It is even harder to conclude beyond a reasonable doubt that appellant would 

anticipate that LM would not make any reflexive noise or movements upon being 

awakened, which would have alerted multiple others to his criminal activity. This is 

particularly true when there is no evidence that appellant threatened LM or took any 

steps, such as covering her mouth, to prevent an outcry. Additionally, appellant 

would have needed to anticipate that LM would not report his crimes at a later date, 

when the record is devoid of any evidence that LM could not identify him, that she 

was incapacitated, or that he had threatened or coerced her. Furthermore, appellant 

left his semen on LM’s bivy cover, and there is no evidence that he tried to remove 

this evidence. 
WHISENHUNT—ARMY 20170274 

4 

The scenario outlined by the defense and the record leaves us with a fair and 

rational hypothesis other than guilt. United States v. Billings, 58 M.J. 861, 869 

(Army Ct. Crim. App. 2003); see also Dep’t of the Army, Pam. 27-9, Legal Services: 

Military Judges’ Benchbook, para. 8-3-11 (10 Sep. 2014). Ultimately, we are not 

required to determine categorically whether appellant or LM’s testimony is true, or 

even whether their testimony is more likely true than not. We do not review 

convictions under a preponderance of the evidence standard. Instead, we may only 

affirm convictions that we are ourselves convinced have been proven beyond a 

reasonable doubt. We are not so convinced in this case. 

CONCLUSION 

The findings of guilty and the sentence are SET ASIDE. Specifications 1, 2, 

and 3 of The Charge and The Charge are DISMISSED. All rights, privileges, and 

property of which appellant has been deprived by virtue of the findings and sentence 

set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a). 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: