UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, CAMPANELLA, and HERRING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class THOMAS A. CHESTNUT 

United States Army, Appellant 

ARMY 20140547 

Headquarters, 1st Cavalry Division 

Gregory A. Gross, Military Judge 

Lieutenant Colonel James D. Levine, II, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D. 

Coleman, JA; Captain Payum Doroodian, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Melissa Dasgupta Smith, JA; 

Captain Christopher A. Clausen, JA (on brief). 

14 December 2016 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge: 

 In this case we find, after a fresh and impartial look at the evidence, and 

taking into account the fact that the trial court saw and heard the witnesses, that the 

evidence supporting appellant’s conviction for sexual assault is factually 

insufficient. Accordingly, we overturn and vacate the judgment of the trial court. 

 

 A panel of military officers sitting as a general court-martial convicted 

appellant, contrary to his pleas, of two specifications of sexual assault, in violation 

of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) 
CHESTNUT–ARMY 20140547 

2

[hereinafter UCMJ].1 The convening authority approved the adjudged sentence of a 

dishonorable discharge, confinement for three years, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. 

We review this case under Article 66, UCMJ. Appellant asserts three 

assignments of error. Because of the relief this court provides based on factual 

insufficiency, we need not address appellant’s additional assertions of dilatory posttrial processing or the unreasonable multiplication of charges.2

 

BACKGROUND 

A. Specialist GT’s Version of Events 

Specialist (SPC) GT suffered from insomnia and was prescribed Ambien to 

aid in the inducement of sleep. On the night in question, SPC GT ingested his 

prescribed dosage of Ambien before the final evening unit formation.3

 

Shortly after the formation, SPC GT walked from his barracks room to 

appellant’s barracks room down the hall to socialize with appellant as he had done 

on previous occasions. Specialist GT knocked on appellant’s door and was let inside 

by Private First Class (PFC) JC, appellant’s roommate. Appellant was also present 

in the room. 

Specialist GT testified he spoke with PFC JC for somewhere between fifteen 

and thirty minutes about a video game PFC JC was playing. Specialist GT 

remembered that during the conversation with PFC JC he began to get sleepy while 

he was laying down on a pile of clean clothes on the floor. Specialist GT admitted 

on cross-examination that he could not be certain if he actually fell asleep at this 

 

1

 The panel also found appellant not guilty of violating Article 128, UCMJ, to wit: 

grabbing his roommate’s buttocks with his hand on divers occasions. The 

government charged Specifications 1 and 2 of Charge I in the alternative. 

Specification 1 alleges appellant committed a sexual act upon SPC GT while he was 

incapable of consenting due to impairment by a drug and that the condition 

reasonably should have been known to appellant. Specification 2 alleges appellant 

committed a sexual act upon SPC GT when appellant should have reasonably known 

SPC GT was asleep or otherwise unaware the sexual act was occurring. 

2

 Additionally, we have considered the matters personally asserted by appellant 

under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find no need to 

comment further upon those matters. 

3

 Specialist GT testified that Ambien caused him to experience memory loss before 

the alleged incident. 
CHESTNUT–ARMY 20140547 

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point, or just believes he fell asleep—because he simply could not remember what 

occurred subsequently. 

The next thing SPC GT recalled was being on his back in a dark place with a 

light shining through a doorway, with someone touching him sexually and “poking 

and prodding” his buttocks with what felt like a finger. He testified that eventually 

he was penetrated with something that felt like a penis. He could not be certain, 

however, what or who was actually penetrating him. The next thing SPC GT 

remembers is awaking up the next morning in his barracks room in his own bed with 

no recollection of how he got there. He testified that when he awakened, he was in 

no pain and had no unusual bruising on his body, but felt strange—like something 

happened that he couldn’t quite remember. 

B. The Roommate’s Version of Events 

Private First Class JC testified that SPC GT had stumbled into the barracks 

room, tripped, fell on the floor, and just laid there. According to PFC JC, appellant 

then moved SPC GT to appellant’s bed. In appellant’s bed, appellant and SPC GT 

engaged in kissing and touching under the covers. Private First Class JC did not 

intervene or attempt to stop the activity. 

At some point, PFC JC went to take a shower, leaving appellant and SPC GT 

on appellant’s bed. Private First Class JC testified that while he was in the 

bathroom, appellant asked him for a condom—and he told appellant where he kept 

them. 

After showering, PFC JC left the room and went to another soldier’s room. 

Private First Class JC agreed on cross-examination that he left to be “polite” and 

because he found two men kissing “gross” and “unpleasant.” While in the other 

soldier’s room, he did not indicate to them that SPC GT was asleep or impaired. 

When asked why he did not tell them, he stated “he hadn’t put two and two together 

on that yet.” 

 

Private First Class JC testified that the next day he spoke to SPC GT about the 

events of the previous evening and based on that conversation, PFC JC became 

concerned that SPC GT was “not right” the night before. 

Private First Class JC then confronted appellant. Private First Class JC told 

appellant that SPC GT “was not completely alert” or “aware” of what was going on 

the previous night, alluding to the fact that SPC GT did not remember the specifics 

of the evening because he was on Ambien. Appellant confirmed that he had sex with 

SPC GT that evening and SPC GT was “into the sex.” When PFC JC asserted SPC 

GT was “not right,” appellant responded “no, he enjoyed it, he was fine.” 
CHESTNUT–ARMY 20140547 

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On cross-examination, PFC JC agreed appellant seemed surprised at the 

assertion that SPC GT was not alert or unaware and persisted in countering that 

assertion. 

C. Expert Testimony Regarding Effect of Ambien 

During the defense case, expert witness, Doctor Laquisha Cartright, a clinical 

pharmacist was called to testify. She indicated that a side effect of Ambien use is 

“sleep related activity” or performing complex behaviors while on the drug and later 

having no recollection of having performed such tasks. Sleep related activities may 

include such behaviors as driving a car, cooking a meal, eating, having sex, and 

making phone calls, to name a few. She also testified that if you’re not familiar 

with a person’s normal demeanor and you witness such complex behaviors, you may 

not know the person was on Ambien. 

Specialist GT admitted at trial that since the night in question, his doctor had 

cut his Ambien dosage in half to lessen the effects of the drug after he reported 

difficulty waking up and memory loss while taking Ambien. Specialist GT also 

testified that the experience of memory loss on the night in question was similar to 

other memory loss experiences he had while on Ambien. 

D. Reporting Triggered by PFC JC’s Misconduct 

The aforementioned incident was reported to authorities seven months later by 

PFC JC. He had changed duty locations and had gotten into trouble for violating a 

barracks policy involving alcohol. When confronted by his first sergeant for his 

misconduct, PFC JC alleged he witnessed something inappropriate at AIT and 

further alleged appellant touched him inappropriately.4 

LAW AND ANALYSIS 

Article 66(c), UCMJ, provides: 

In each case referred to it, the Court of Criminal Appeals 

may act only with respect to the findings and sentence as 

approved by the convening authority. It may affirm only 

such findings of guilty and the sentence or such part or 

amount of the sentence, as it finds correct in law and fact 

and determines, on the basis of the entire record, should 

be approved. In considering the record, it may weigh the 

evidence, judge the credibility of witnesses, and determine 

 

4

 The panel found appellant not guilty of the inappropriate touching of PFC JC. 
CHESTNUT–ARMY 20140547 

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controverted questions of fact, recognizing that the trial 

court saw and heard the witnesses. 

Accordingly, this court has an independent duty to review the record and 

determine whether it is correct in law and fact. UCMJ art. 66(c). 

Appellant asserts that the government failed to prove beyond a reasonable 

doubt both that appellant: 1) should have reasonably known SPC GT was incapable 

of consenting to the sexual act due to impairment by a drug, and 2) reasonably 

should have known SPC GT was asleep or otherwise unaware the acts were 

occurring. After thoroughly reviewing the evidence in this case, we agree. 

We are lead to this conclusion for several reasons. Based on SPC GT’s 

testimony, when he arrived at appellant’s room, he was able to carry on a 

conversation with PFC JC for fifteen to thirty minutes after his arrival. His 

testimony stands in stark contrast to PFC JC’s story of SPC GT stumbling, tripping, 

and just lying on the floor upon his entry in the room. Private First Class JC did not 

behave in such a way as to indicate concern or distress for SPC GT at the time the 

events were unfolding. Private First Class JC did not hesitate to provide appellant a 

condom when he asked for one—seeming to indicate a lack of concern that SPC GT 

was impaired or asleep. It was only after speaking with SPC GT the next day that 

PFC JC became concerned that SPC GT was not in the “right” state of mind the night 

prior. In fact, PFC JC’s testimony is that it wasn’t until the next day, that “he put 

two and two together.” 

Also significant, according to PFC JC, when he confronted appellant with the 

allegation that he had sexually assaulted SPC GT, he admitted having sex with SPC 

GT but showed surprise and disbelief at the suggestion that SPC GT was not a 

willing participant in the sexual activity that occurred the evening before. 

We also found the expert testimony in this case regarding memory loss and 

the performance of complex activities after taking Ambien highly probative and 

persuasive under the facts of this case. Doctor Cartwright’s testimony was 

illuminating regarding how a person on Ambien may appear to have a normal 

demeanor to an unwitting onlooker observing them perform complex activities. We 

also found it relevant that SPC GT testified to having memory loss while on Ambien, 

that this episode was similar to others, and that he had to have his Ambien 

prescription reduced because of side effects associated with taking the drug. 
CHESTNUT–ARMY 20140547 

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After taking into account all the evidence presented in this case, we find the 

evidence does not prove appellant’s guilt beyond a reasonable doubt.5

CONCLUSION 

In view of the foregoing, the findings of guilty and the sentence are set aside. 

The Charge is DISMISSED. All rights, privileges, and property, of which appellant 

has been deprived by virtue of the findings and sentence set aside by our decision, 

are ordered restored. See UCMJ arts. 58b(c) and 75(a). 

Senior Judge MULLIGAN and Judge HERRING concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

 

 

5

 In arriving at our decision herein, this court did not take into account the military 

trial judge’s recommendation to the convening authority to disapprove the findings 

of the court-martial and overturn the verdict. 

In conducting our analysis we are required “to evaluate not only the sufficiency of 

the evidence but also its weight.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 

1987). Article 66(c), UCMJ states that “we should recognize that the trial court saw 

and heard the witnesses.” This court followed the mandates of Article 66(c), UCMJ, 

and our superior court in reaching our decision. Our ruling overturning findings of 

guilt on factual sufficiency grounds was not undertaken lightly and decreed only 

after lengthy consideration of the law and with the utmost respect for the role of the 

court-martial panel in our system of justice.

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: