## UNITED STATES ARMY COUR T 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: W illiam E. Cassara, Esquir e (on brief); Captain Zachary Szilagyi, JA; William E. Cassara, Esquire ( on supplemental brief and repl y brief).

For Appellee: Colonel Steven P. H aight, 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

-------------------------------- SUMMARY DISPOSITION

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

Per Curiam:

Appellant raises num erous assignments of e rror and issues purs uant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), r elated to his convictions and
sentence for sexual assault. We need only address one. Pursua nt to our review of the record, we find that appellant’s convictions are factually insufficient.

An officer panel sitting as a ge neral court-mart ial convicted appellant, contrary to his pleas, of three specifications of sexual assaul t, in violation of Article 120, Uniform Code of Military Justi ce, 10 U.S.C. § 920 [UCMJ]. The panel sentenced appellant to be dismissed from the service, confineme nt for twenty-one years, total forfeitures, and a reprimand. The c onvening autho rity approved the sentence as adjudged.WHISENHUNT—ARMY 20170274

2 BACKGROUND

The government charged appellant with three specifications of s exually assaulting his fellow West Point cadet, LM , during Cadet Field Training at Camp Buckner; two of the s pecifications r elated to digital penetrati on,  while the third related to penile pe netration. Each of the specifications rela ted to a sexual encounter in LM’s sleeping bag ( also referred to as a “bivy cov er”).

Appellant and LM were assigne d to the same squa d during Cadet F ield Training, which started in late -June 2016. On the night of 7 J uly 2016, their squad bedded down along with the remai nder of their company at a fiel d bivouac site. The site was open (although there we re some trees), and the cadets slept on the ground. Appellant’s and LM’s s leeping bags were next to one another, an d the other squad
members were within a few feet of them. There was also evidenc e that LM had a “crackly” space bla nket under or around her sleeping bag.

Cadets were not authorized to ha ve sex during Cad et Field Train ing. That night, however, appella nt penetrated LM’s v agina wit h his finge r and then with his penis. These sexual acts were not observed by a ny other cadets in their squad or company, but appellant ’s semen was found in side LM’s sleeping b ag.

At trial, the parties presented competing theories over this se xual encounter. The government asserte d that appellant was a sexual aggressor w ho assaulted LM in her sleeping bag, while the defense averred that the parties en gaged in a consensual sexual encounter while taking active measures to avoid detectio n. The parties provided a variety of evidence and argumen ts – both direct and circumstantial – in support of these theories, to in clude what happened before and after the encounter.

LM and appellant both testified at trial. In describing the al leged assault, LM said she was inside her bivy cover to the point that it complet ely covered her head, but she woke up to appellant pen etrating her with his finger an d then with his penis.
LM said she remained frozen in t he fetal position during the en tire assault. By contrast, appellant te stified that the sexual acts were precipi tated by a series of escalating and conse nsual touchings. Appel lant also said that both parties tried to avoid detection and even stoppe d and held their b reaths after h earing a nearby noise.

Following closing argu ments, in which the pa rties reiterated th eir contrasting theories, the panel c onvicted appellant of all three specificat ions.

 On appeal, the governm ent concedes that these specifications i nvolved the same penetration and thus one of them should be se t aside. This iss ue is mooted by our finding that all of the specifi cations are factua lly insufficie nt.WHISENHUNT—ARMY 20170274

3 LAW AND DISCUSSION

Article 66, UCMJ, est ablishes our statutor y duty to review a re cord of trial for legal and fac tual sufficiency de novo. United States v. Walters , 58 M.J. 391, 395 (C.A.A.F. 2003). We may affirm onl y those findings of guilt th at we find correct in

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

. In weighing factual sufficiency, we take “a fresh, impartial lo ok at the evidence,” applying “neither a pr esumption of innocence nor a p resumption of guilt.” United States v. Washington , 57 M.J. 394 , 399 (C.A.A.F. 200 2). To affirm a conviction, “after weighing the ev idence in the record of trial and making allowances for not having persona lly observed the witnesses, [w e must be] convinced of [appellant’s] guil t beyond a reaso nable doubt.” United States v.

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

We have carefully reviewed the evidence and, taking into consid eration that the panel saw and heard the witnesses and we did not, we nevert heless concl ude that appellant’s convictions are factually insufficient. At a minim um, affirming these convictions would requi re us to reach a number of conclusions t hat are inadequately supported by the evidence.

The defense theory was that appellant and LM engaged in a conse nsual sexual
encounter while takin g active measures to a void detection. In our view, the
circumstantial eviden ce in support of this defense theory sever ely undercuts the government’s case. For example , to be convinced of appellant’s guilt, we would have to conclude bey ond a reasonable doubt t hat the sexual acts could plausibly occur (and would not be discovered) without active cooperation from both parties.
Given different circum stances, this might not be a stretch. Bu t in the unique
circumstances here – which include a bivy c over, a noise-produc ing space blanket, and numerous squad mates in very close proximity – it is hard t o conclude beyond a
reasonable doubt t hat appellant could co mplete the charged offe nses without cooperation or detection.

It is even harde r to conclude be yond a reasonabl e doubt that ap pellant would anticipate that LM would not make any reflexive noise or moveme nts upon being awakened, which would have alerte d multiple others to his crimi nal activit y. This is particularly true when there is no evidence that appellant thre atened LM or took any steps, such as cover ing her mouth, to prev ent an outcry. Addit ionally, appellant would have needed to anticipate that LM would not report his cr imes at a later date,
when the record is de void of any evidence th at LM could not ide ntify him, that she was incapacitated, o r that he had threat ened or coe rced her. F urthermore, appellant left his semen on LM’s bivy cover, and there is n o evidence tha t he tried to remove
this evidence.WHISENHUNT—ARMY 20170274

4 The scenario outlined by the defense and the record leaves us w ith 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). Ultim ately, we are not required to determine categorically whether appellant or LM’s t estimony is true, or
even whether their tes timony is more likel y true than not. We do not review convictions under a pr eponderance of the e vidence standard. In stead, we may only
affirm convictions that we are o urselves convinc ed have been pr oven beyond a
reasonable doubt . We are not so convince d in this case.

CONCLUSION

The findings of guilt y and the sentence are SET ASIDE. Specifi cations 1, 2,
and 3 of The Cha rge and The Charge are D ISMISSED. All rights, privileges, and property of which appellant has b een deprived by v irtue of the findings and sentence set aside by this decision are orde red 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: