## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, CAMPANELLA, and HERRING Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class TH OMAS A. CHESTNUT United States Army, Appellant

ARMY 20140547

Headquarters, 1st Cavalry Division

Gregory A. Gross, Military Judge

Lieutenant Colonel James D. Le vine, II, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D. Coleman, JA; Captain Payum Do roodian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham , JA; Major Melissa Dasgupta Smith, JA; Captain Christophe r A. Clausen, JA (on brief).

14 December 2016

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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 appell ant’s conviction for sexual assaul t is fa ctually

insufficient. Accordi ngly, we overturn and va cate the judgment of the trial court.

A panel of milita ry officers sitting as a gene ral court-martial convicted appellant, contrary to his pleas, of two spec ifications 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 appr oved the adjudged sentence of a dishonorable discharge, confinement for three years, forfeitu re of all pay and allowances, and reduction to the grade of E-1.

We review this case u nder Article 66, UCMJ. Appellant asserts three assignments of error. Beca use of the relief this co urt provides based on factual insufficiency, we need not ad dress appellant’s additional a ssertions of dilatory posttrial processing or the unreasonable multiplication of charges. 2

BACKGROUND

A. Specialist GT’s Version of Events

Specialist (SPC) GT suffered from inso mnia and was prescr ibed Ambien to aid in the inducement of sleep. On the night in question, SPC GT ingested his prescribed dosage of Ambien before the final evenin g unit formation. 3

Shortly after the formatio n, SPC GT walked from his barracks room to appellant’s barracks room dow n the hall to socialize with appellant as he had done on previous occasions. Specialist GT knocke d on appellant’s door and was let inside by Private First Class (PFC) JC, appellant’ s roommate. Appellan t was also present

in the room.

Specialist GT testified he spoke with PFC JC for somewh ere between fifteen and thirty minutes about a video game PFC JC was playing. Specialist GT remembered that during the conversation wi th 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 appell ant not guilty of violating Article 12 8, UCMJ, to wit: grabbing his roommate’s buttocks with his hand on divers occasions. The government charged Specifi cations 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 consen ting due to impairment by a drug and that the condition reasonably shou ld have been known to appellant. Specification 2 alleges appellant committed a sexual act upon SPC GT when appellant shou ld have reasonably known SPC GT was asleep or otherwise unaw are the sexual act was occurring.

2 Additionally, we have co nsidered the matters person ally 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 matter s.

3 Specialist GT testified that Ambien cause d him to experience memory loss before the alleged incident.CHESTNUT–ARMY 20140547

3 point, or just believes he fell asleep—bec ause he simply coul d not remember what occurred subsequently.

The next thing SPC GT recal led was being on his back in a dark place with a light shining th rough a doorway, with someone to uching him sexua lly 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 ac tually 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 u nusual bruising on his body, but felt strang e—like something happened that he couldn’t quit e remember.

B. The Roommate’s Version of Events

Private First Class JC test ified that SPC GT had stum bled into the barracks room, tripped, fell on the fl oor, and just laid there. Accordi ng to PFC JC, appellant then moved SPC GT to appell ant’s bed. In appe llant’s bed, appellant and SPC GT engaged in kissing and touchi ng 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 wh ile he was in the bathroom, appellant as ked him for a condom— and he told appell ant 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 ki ssing “gross” and “unpleasan t.” While in the other soldier’s room, he did not indicate to them that SPC GT was as leep or impaired. When asked why he did not te ll them, he stated “he hadn ’t put two and two together on that yet.”

Private First Class JC testif ied that the next day he spoke to SPC GT about the events of the previ ous 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 ap pellant. 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 th at SPC GT did not re member 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 “int o the sex.” When PFC JC asserted SPC GT was “not right, ” appellant responde d “no, he enjoyed it , he was fine.”CHESTNUT–ARMY 20140547

4 On cross-examination, PFC JC agreed appellant se emed surprised at the

assertion that SPC GT was not alert or unaware and pe rsisted in c ountering that

assertion.

C. Expert Testimony Rega rding Effect of Ambien

During the defense case, ex pert witness, Doctor Laquisha Cartright, a clinical pharmacist was called to testify. She indicat ed that a side effect of Ambien use is “sleep related activity” or performing complex behaviors while on the dr ug and later having no recollection of having performed such tasks. Sleep re lated activities may include such behaviors as driving a car , cooking a meal, ea ting, having sex, and making phone calls, to name a few. She also testified th at if you’re not familiar with a person’s normal dem eanor and you witness such complex behaviors, you may not know the person was on Am bien.

Specialist GT admitted at trial that si nce the night in question, hi s doctor had cut his Ambien dosage in half to lessen the effects of the dr ug after he reported difficulty waking up and memory loss while taking Ambien. Specialist GT also testified that the experience of memory lo ss on the night in ques tion was si milar to other memory loss experiences he had while on Ambien.

D. Reporting Triggered by PFC JC’s Misconduct

The aforementioned incident was reported to authoritie s seven months later by PFC JC. He had changed duty locations and had gotten into troubl e for violating a barracks policy invo lving alcohol. When confronted by his first se rgeant for his misconduct, PFC JC allege d 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 an d sentence as approved by the convening auth ority. It may affirm only such findings of gu ilty and the sentence or such part or

amount of the sentence , as it finds correc t in law and fact and determines, on the basis of the entire record, should be approved. In co nsidering the recor d, it may weigh the evidence, judge the credibility of witnesses, and determine

4 The panel found appellant no t guilty of the inappropri ate touching of PFC JC.CHESTNUT–ARMY 20140547

5 controverted questions of fact , recognizing that the trial

court saw and heard the witnesses.

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

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

Appellant asserts that th e government failed to prov e beyond a reasonable doubt both that appe llant: 1) should have reasonab ly 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 unawa re the acts were occurring. After thor oughly reviewing the evidence in this case, we agree.

We are lead to this co nclusion for severa l reasons. Based on SPC GT’s testimony, when he arrive d 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 cont rast 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 conc ern 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 on e—seeming to indicate a lack of concern that SPC GT was impaired or asleep. It was only after speaking with SPC GT the ne xt 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 te stimony 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 assaulte d 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 activi ty that occurred the evening before.

We also found the ex pert testimony in th is case regarding memory loss and the performance of complex activities after taking Am bien highly probative and persuasive under the facts of this case. Doctor Cartwright’s testimony was illuminating regarding how a person on Ambien may ap pear to have a normal demeanor to an unwitting on looker observing them perfor m complex acti vities. We

also found it relevant that SPC GT testified to havi ng 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 asso ciated with taking the drug.CHESTNUT–ARMY 20140547

6 After taking into account all the evidence presented in this case, we find the evidence does not prove appellant’ s guilt beyond a re asonable doubt. 5

CONCLUSION

In view of the fore going, the findings of guilty and the sent ence are set aside. The Charge is DISMISSED. All rights, priv ileges, and property, of which appellant has been deprived by virtue of the findi ngs and sentence set aside by our decision,

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

Senior Judge MULLIGAN an d 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 convenin g authority to disapp rove the findings

of the court-martial and ov erturn the verdict.

In conducting our analys is we are required “to evaluate not only the sufficiency of the evidence but also its weight.” United States v. Turner , 25 M.J. 32 4, 325 (C.M.A. 1987). Article 66(c), UCMJ st ates that “we should recogn ize that the tr ial court saw

and heard the witnesses.” This court follow ed the mandates of Article 66(c), UCMJ, and our superior cour t in reaching our deci sion. Our ruling ov erturning findings of guilt on factual sufficiency grounds was not und ertaken lightly an d 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: