UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.A. FISCHER, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

DUSTIN M. CLARK

AIRMAN (E-3), U.S. NAVY

NMCCA 201400232

GENERAL COURT-MARTIAL

Sentence Adjudged: 21 February 2014.

Military Judge: CDR Robert P. Monahan, Jr., JAGC, USN.

Convening Authority: Commandant, Naval District Washington, 

Washington Navy Yard, Washington, DC.

Staff Judge Advocate's Recommendation: LCDR J.D. Pilling, 

JAG, USN.

For Appellant: David Sheldon, Esq.; Capt Michael Magee, 

USMC.

For Appellee: LT Jetti Gibson, JAGC, USN; Capt Matthew M. 

Harris, USMC.

14 July 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM: 

A military judge sitting as a general court-martial 

convicted the appellant, contrary to his pleas, of one 

specification each of rape and forcible sodomy, in violation of 

Articles 120 and 125, Uniform Code of Military Justice, 10 
2

U.S.C. §§ 920 and 925.1 The military judge sentenced the 

appellant to seven years’ confinement, reduction to pay grade E1, and a dishonorable discharge. The convening authority 

approved the sentence as adjudged and, except for the punitive 

discharge, ordered it executed.

The appellant raises two assignments of error (AOE): 

(1) his convictions are legally and factually insufficient and 

(2) his trial defense counsel were ineffective in failing to 

compel discovery of the victim’s mental health records. 

After carefully considering the record of trial and the 

submissions of the parties, we find merit in the appellant’s 

first AOE asserting that the evidence is factually insufficient 

to sustain his convictions. We take action in our decretal 

paragraph.2 Arts. 59(a) and 66(c), UCMJ.

Background

On the evening of Saturday 24 March 2012, Ms. SW 

accompanied her friend, Petty Officer AM, to a house party on 

the military installation where AM was stationed. After 

consuming alcohol and socializing at the party, SW, AM, and 

several other party goers accompanied the appellant to his 

house, located on the same military installation, to continue 

socializing. 

At trial, SW testified that throughout the evening she 

engaged in consensual amorous activity with three different men, 

including the appellant, before ultimately “blacking out” while 

at the appellant’s house. At the initial party, SW and AM went 

into a bedroom where, according to SW’s testimony, she and AM 

laid together in bed for about fifteen minutes and kissed

“probably briefly.”3

 This encounter ended when another party 

goer, Mr. WC, interrupted and asked them to rejoin the party 

downstairs.4

 Shortly thereafter, SW and WC5 went to an upstairs 

 

1 The military judge acquitted the appellant of one specification of 

aggravated sexual assault for engaging in a sexual act with a person who was 

substantially incapacitated. The rape and aggravated sexual assault 

specifications were pled in the alternative.

2 AOE 2 is rendered moot by our actions.

3 Record at 224-25.

4 Id. at 168.
3

bedroom where they consensually participated in sexual activity 

short of intercourse.6

 This encounter ended when WC retreated to 

a nearby bathroom to vomit due to his alcohol consumption. A 

witness testified to seeing WC come out of the bedroom and head 

to the bathroom and that WC was naked and wearing a condom.7 AM

testified that he saw SW in the bedroom after WC left for the 

bathroom and she was in her underwear and getting dressed.8 

A group including SW, AM, and the appellant then left the 

party and went to the appellant’s house. SW testified that 

while at the appellant’s house, she and the appellant “made out” 

while sitting on the couch in the living area.9

 Other witnesses 

reported seeing SW and the appellant mutually kissing while 

seated on the couch.10 SW testified that at the end of the 

evening she accepted the appellant’s offer to spend the night at 

his home because she was too intoxicated to drive. SW testified 

that the next morning she awoke in an upstairs room, completely 

naked and on the floor, next to the appellant who was also 

naked.11 SW testified that at this point her last clear memory 

was of going upstairs with the appellant.12 

According to SW, she then left the appellant’s house, 

retrieved her car from the site of the original party, and drove 

off the base. SW testified that she got lost while attempting 

to drive home, so she stopped and slept in her car for several

more hours. After she awoke, SW went to a friend’s house where 

she spent the remainder of her Sunday.13 

SW testified that on Monday afternoon, after work, she 

noticed bruises on her thighs.14 Still unable to recall events 

 5 WC testified that he is six-foot four inches tall and weighs two hundred and 

thirty pounds. Id. at 507.

6 Id. at 169, 229-34, 509-10.

7 Id. at 401.

8 Id. at 385.

9 Id. at 178-79.

10 Id. at 364, 386, 399-400.

11 Id. at 188-89.

12 Id. at 190.

13 Id. at 190-94.
4

from Saturday night, SW took photos of the bruises and then went 

to a local hospital to have a sexual assault exam performed.15 

The exam results proved inconclusive as to whether SW had 

engaged in intercourse.16 SW was at the hospital from Monday 

night until early Tuesday morning. 

SW testified that on Tuesday she began to have 

recollections of what happened Saturday night. SW described 

having four segmented memories of what occurred with the 

appellant that night. In further clarifying her recollections 

SW testified, “[s]egmented, just like there’s spaces of time in 

between them that I have absolutely no recollection of what 

happened. I don’t remember the specific order of--of 

occurrences.”17 SW then testified to recalling the following 

“segmented” memories:

 

(1) She was clothed and lying on her back on the floor and 

appellant was on top of her and holding her arms down. She 

also testified to recalling feeling pressure on her legs, 

but she could not specifically recall how the appellant was 

positioned. She testified that she resisted and asked the 

appellant to stop, but she “gave up pretty quickly” because 

she was intoxicated and scared. She did not testify to 

what, if anything, the appellant was doing to her in 

addition to holding her in this position;18

(2) She was completely naked on her back and the appellant was 

on top of her and penetrating her vagina with his penis. 

She testified that she recalled it being painful. She 

could not recall whether the appellant was clothed or 

unclothed at this time. Additionally, she could not recall 

whether the appellant was restraining her arms and did not 

testify to the appellant restraining her in any fashion or 

to any communication between her and the appellant at this 

point;19 

 14 Id. at 201.

15 Id. at 209.

16 Id. at 349.

17 Id. at 183.

18 Id. at 183-85.
5

(3) She was on her back and the appellant turned her over by 

the hips from her back to her front. SW did not testify as 

to her or the appellant’s state of dress at this time, 

whether she resisted the appellant’s actions or whether 

they engaged in any communication;20

(4) She was lying on her back facing upward and the appellant 

used his hand to open her mouth and insert his penis. She 

provided no information as to what, if anything, she did to 

resist the appellant’s actions. Nor did she testify to the 

amount of force the appellant used to open her mouth. She 

could not testify to the appellant’s physical position 

during this event, but recalls that she gagged when he 

inserted his penis in her mouth.21 

SW also testified to a memory of the appellant sucking and 

biting her breasts,22 however she did not clarify whether this 

was part of one of aforementioned segmented memories or 

separate. She testified that none of this sexual activity with 

the appellant was consensual.23 She further testified that while 

“making out” with the appellant on the couch earlier that night, 

she told him she was not interested in having sex with him.24 

Approximately three months later, SW reported that she had 

been raped to law enforcement personnel. She testified that she 

did so following advice from her therapist that reporting the 

incident was a better course of action than her plan to confront 

the appellant directly. SW testified, however, that her primary 

motive in going to law enforcement was to do all she could to 

protect others from the appellant.25

 19 Id. at 185-86.

20 Id. at 186.

21 Id. at 187-88.

22 Id. at 187.

23 Id. at 189.

24 Id. at 179.

25 Id. at 212-13.
6

The appellant provided two sworn statements to Naval 

Criminal Investigative Service (NCIS) investigating agents.26 In 

his initial statement the appellant confirmed that he met SW 

when she and others came to his house on the night in question. 

However, the appellant denied that she spent the night at his 

house and further denied engaging in any sexual activity with 

her. In his second statement, given approximately five months 

later, the appellant stated that he blacked out that night and 

awoke the next morning alone on the floor of his room wearing 

only his boxers and with a condom lying next to him. He further 

stated that he thought, at that moment, that he’d had sex with 

SW because she was the only woman at his home the prior night. 

He indicated that he felt ashamed at that time because, although 

he and his wife had recently separated, he was still married. 

Expert Testimony

Dr. Stafford Henry, M.D., was called as an expert witness27

by the Government and provided the following testimony:

TC Doctor, are you familiar with the phrase “alcoholinduced blackout”?

WIT I am.

TC Can you tell the military judge what is that.

WIT Sure. An alcohol-induced blackout is a--it is a form 

of amnesia. Amnesia is basically a lack of memory. 

It is an antegrade amnesia. It is an amnesia which is 

causally linked to the self-administration of alcohol.

MJ Doctor, what’s the meaning of the term “antegrade”?

WIT Judge, there are—there are two kinds of amnesia, 

retrograde and antegrade. Antegrade amnesia is an 

amnesia, for the purposes of this hearing, of what 

occurred during a period of intoxication. Retrograde 

amnesia would be biographical information such as 

where you went to school, what your mother’s maiden 

name is. So antegrade means from—from—from—to one 

point forward. Retrograde means historical.

MJ I understand. You may proceed.

 

26 Prosecution Exhibits 1 & 2.

27 Dr. Henry testified that he is board certified in general psychiatry, 

forensic psychiatry and addiction psychiatry and he was recognized by the 

court as an expert witness in those fields. 
7

TC Doctor, are there different types of blackout?

WIT Yes, there are.

TC And what are they?

WIT There are two kinds of blackouts. One is fragmentary, 

which is more common. The second is en bloc ... 

TC Can you describe the difference between a fragmentary 

and an en bloc.

WIT Sure. Essentially, Judge, en bloc blackout is a—it’s 

an antegrade amnesia----

MJ I’m sorry, we’re speaking of en bloc right now or 

fragmentary?

WIT En bloc.

MJ Okay, I understand. Please proceed.

WIT An en bloc is an antegrade amnesia with generally a 

very discrete beginning and a very discrete end. So 

there’s a block of time for which that person cannot 

recall. Alternatively, a fragmentary blackout is just 

that. It is a recollection of events which occurred 

during the period of intoxication which is partial.

TC Can alcohol cause fragmentary blackouts?

WIT Yes, alcohol can cause fragmentary blackouts.

TC Is there a set or required BAC or amount of alcohol 

one would have to consume in order to experience some 

type of blackout?

WIT No.

TC At what point would the—would an individual who 

experienced a blackout realize that they experienced a 

blackout? More specifically, while a person is in a 

state that they later will not recall, does that 

individual know that they are in a blackout?

WIT You only know you’re in a blackout retrospectively. 

Only—it is only after the fact, after—after—at some 

point later that you realize you do not have a 

recollection for a past event. 

TC And then can a person walk and talk and then later not 

have memory of that walking and talking?

WIT That is possible.
8

MJ That’s within the context of an alcohol-induced 

blackout?

WIT Absolutely, sir.

MJ You may continue.

TC So is it possible that an individual could—could be 

somewhat functioning, moving, communicating, but then 

later have no recollection of that due to a 

fragmentary blackout?

WIT Yes, that is possible.28

Dr. Henry further testified on direct examination that he 

thoroughly reviewed the investigations and medical information 

in this case and he extensively interviewed SW. Dr. Henry 

testified that, in his professional opinion, SW “provided a 

description which was very clinically consistent with a 

fragmentary blackout.”29

During the defense case in chief, Dr. Thomas Grieger, M.D., 

was called as an expert in the fields of clinical and forensic 

psychiatry. Dr. Grieger testified extensively regarding the 

formation of memories and the potential effect of alcohol on 

memory retention. Dr. Grieger provided the following testimony:

DC Okay. Can you describe the mechanism of a fragmentary 

blackout, what—what that means in terms of memory.

WIT Yeah, what—what a fragmentary blackout is is that you 

are putting portions of an experience into short-term—

into long-term memory as that event is occurring. It 

can also--it can often be the most salient aspects of 

something, the most significant aspects of something 

that’s going on, the most emotional aspects of 

something that’s going on, but you’re not really 

putting into long-term memory all of the details that 

go between those salient events. So the next day you 

would recall the salient events and the emotion tied 

to those but would not recall the details of events 

that went on in between those events, and they could 

be in an incorrect temporal sequence. In other words, 

you might remember a conversation with Mr. Smith first 

and Mr. Jones second. In fact, that conversation 

could have occurred in reverse order. You may 

remember a conversation with a group of five people on 

 

28 Id. at 448-50.

29 Id. at 451.
9

a particular topic. You then have another 

conversation with seven other people on a different 

topic. You might, when you recall this, incorrectly 

mix up who was involved in which of those 

conversations and incorrectly think that somebody from 

the second conversation actually was also in on the 

first conversation. So you’re capturing the most 

salient, most significant aspects and not capturing 

the things that go in between.

 An en bloc blackout or period of amnesia, similarly, 

would be a consistent period of time. You wouldn’t be 

capturing those moments of salient information. You 

would have a point at which your memory would 

gradually fade out and then you would have a period at 

which you can remember again. Commonly with en bloc 

blackouts the memory ends sometime while you’re still 

awake and active in what you’re doing and doesn’t come 

back until you’ve gone to sleep and wake up the next 

day. It’s less common that someone will have an en 

bloc blackout say from 2200 to 0200 and then all of a 

sudden remember everything clearly from 0200 through 

the rest of the night. Typically the en bloc, the 

very solid blackouts, would last until you’ve gone to 

sleep and your alcohol level has come back down while 

you’re sleeping. 

DC Okay. Do you believe that—do you agree with Dr. Henry 

that a person only knows if they were in a blackout 

retrospectively, looking back?

WIT Yes, you could end up in a different place, you could 

end up with a person you don’t know and have no 

recollection of how that occurred. So you might know 

on your own that you had a blackout or you might be 

involved in a conversation with someone who was at the 

same event that you were at at a later point in time 

and they might ask you about something you said or 

did. You would simply not remember that you said or 

did it. The important thing with blackouts is that 

they—once—you haven’t put it into long-term memory, 

it’s no longer retrievable. It’s not—it’s not that—

those neurologic changes which put it into long-term 

memory have not occurred. So, if it’s not present the 

next day, it won’t somehow be formed later on because 

the short-term memory is lost.

MJ Could you say that again for me, Doctor?
10

WIT The--the process of remembering something is that it’s 

transitioned from short-term memory to long-term 

memory. If that process never occurs in reasonable 

proximity to when the events occurred, it never will 

occur, because the short-term memory will be gone. 

There is no mechanism by which it can move into longterm memory after the fact. 

MJ So the transfer will not have occurred? So there’s no 

memory to remember?

WIT Exactly. You haven’t saved the document in your word 

processor. So, when you shut the computer off, it’s 

gone.

DC So, with regard to a fragmentary blackout, that 

meaning that some--some memories are retained and some 

memories are just never transmitted into long-term 

memory, for those memories that--that were formed, 

when will those be retrievable?

WIT They would be retrievable at the end of that evening, 

for example and be retrievable the next day. As with 

all memories, they would decay with time. So, to the 

extent that they are retrievable, they would be most 

retrievable the next day, the next period of being 

awake and not intoxicated. 

DC So those fragments that a person is able to remember 

from a fragmentary blackout, is it your testimony that 

if those memories that were truly formed during--

during the blackout, that they would be retrievable 

the following--the following day?

WIT Yes, they would. You might not spontaneously recall 

all of the details. Someone might prompt you and say, 

“Do you also remember that we talked about this?” 

With that prompting you say, “Okay, yes, I remember 

that conversation.” It wasn’t as salient as the other 

pieces of the conversation. So you didn’t—you didn’t 

just spontaneously come up with it, but with a little 

bit of prompting you can expand a bit. There has to 

be the primary memory there to being with if you’re 

going to anything more. Then the prompting would have 

to be very specific to what the primary memory is to 

be able to capture it accurately.

DC So, for a memory that was actually formed during a 

fragmentary blackout, if that was not retrieved on the 

first day or the second day but retrieved on the third 
11

day, based on your understanding of how memory works, 

is that--is that scientifically possible to retrieve 

on a third day a memory that was actually formed 

during a fragmentary blackout?

WIT It doesn’t fit with any construct of the way memories 

actually work.

DC And why is that, sir?

WIT Because you have to go through that process while the 

information is fresh in your mind. It doesn’t--it 

doesn’t sit in a--you know, in a vacuum someplace that 

you can then reopen it later and push it into longterm memory. It’s there while it’s there. When the 

period of time has passed, it’s no longer accessible.30 

 The Government recalled Dr. Henry in rebuttal and he 

provided the following testimony:

TC Doctor, would you agree with Dr. Grieger’s testimony 

that if you cannot—after—after a night of heavy 

drinking of alcohol, if one cannot recall a memory the 

following day, that they never will?

WIT Well, I would respectfully disagree with Dr. Grieger 

on that point. I have never ever heard that. I’ve 

never read that. I think that that may be true of an 

en bloc blackout but certainly is not true of a 

fragmentary blackout. That is not true because I 

don’t see it clinically and, secondly, the science is 

that, in fact, alcohol disrupts that transfer process. 

The transfer process is disorganized. It would then 

stand to reason that, given the disorganization of the 

transfer and encoding process, that later retrieving 

those memories will also be haphazard. 

. . . .

TC Doctor, to clarify, would you agree that in an en bloc 

blackout an individual never lays down long-term 

memories during that blackout?

WIT In an en bloc, yes, I think I would agree with that 

statement more than I would disagree with it. What I 

would say is when an en bloc blackout occurs there has 

been a disruption in the transfer of memory from 

 

30 Id. at 541-45.
12

short-term to long-term. It, in a sense, never got 

there.

TC Would you agree that in a fragmentary blackout—could 

you describe in a fragmentary blackout, how that is 

different.

WIT In a fragmentary blackout the transfer of information 

and the laying down of information occurs but in a 

disorganized and haphazard fashion. That is very 

simple. It--on a neurocellular level, it’s far more 

complex, but for the purposes of this discussion, it 

was laid down and transferred in a disorganized 

fashion. Because of that disorganization in how it 

was laid down, it then cannot oftentimes be retrieved 

in an organized fashion. The manner in which a person 

retrieves fragmentary blackouts is random, just as 

[SW] described. She described pieces. She described 

scenes. She specifically told me there was no order. 

MJ Doctor, state that again so I can follow you.

WIT Sure. In this case [SW] was sleep deprived. For 

example, she said that Monday night she got to the 

hospital at around 10:30 and then didn’t leave until 

5:30 and then went to--directly to her employer’s 

house. She is sleep deprived. Monday night she was 

able to get more sleep. The way the body works is, if 

you are sleep deprived, it will take--it will use an 

opportunity to catch up on sleep. It this case, it 

would make perfect sense that she was then able to 

retrieve her memories several days down the road when 

she caught up in her--in her sleep. The memories that 

she retrieved were fragmented, were disorganized 

because that’s how they were laid down.31 

Factual Sufficiency

We review issues of factual sufficiency de novo. United 

States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007).

The test for factual sufficiency is “whether, after 

weighing the evidence in the record of trial and making 

allowances for not having personally observed the witnesses, [we 

are] convinced of the [appellant]’s guilt beyond a reasonable 

doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). 

In conducting this unique appellate role, we take “a fresh, 

 

31 Id. at 605-07.
13

impartial look at the evidence,” applying “neither a presumption 

of innocence nor a presumption of guilt” to “make [our] own 

independent determination as to whether the evidence constitutes 

proof of each required element beyond a reasonable doubt.” 

United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 

Our factual sufficiency determination is limited to a review of 

the “entire record,” meaning evidence presented at trial. United 

States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973).

We have reviewed the record of trial and evaluated the 

arguments by the appellant and the Government. Additionally, we 

have made allowances for not having heard and observed the 

witnesses. Having done so, and having considered the unique 

facts of this case, we are not personally convinced of the 

appellant’s guilt of rape or forcible sodomy. 

The appellant was convicted of causing SW to engage in 

sexual intercourse “by using strength, sufficient that she could 

not avoid or escape the sexual contact” and committing sodomy 

with SW “by force and without [her] consent.” The appellant was 

charged under the version of Article 120, UCMJ, in effect from 1 

October 2007 to 27 June 2012, which made it an offense to cause 

another person to engage in a sexual act by using force against 

that other person. Art. 120(a), UCMJ (2007). In pertinent 

part, “force” was defined as, “action to compel submission of 

another or to overcome or prevent another's resistance by . . . 

strength, power, or restraint applied to another person, 

sufficient that the other person could not avoid or escape the 

sexual conduct.” Art.120(t)(5), UCMJ (2007). Similarly, under 

Article 125, UCMJ, “force” is physical violence or power applied 

by the accused to the victim. An act of sodomy occurs “by 

force” when the accused uses physical violence or power to 

compel the victim to submit against his/her will. See Military 

Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at ¶ 3-51-2 

Note 4 (25 Jun 2014).

We are unconvinced by the record before us that the 

Government met their heavy burden of proving the required 

element of force for either offense. While SW's description of 

appellant holding her by her arms provided some evidence of 

force, she could not link this action by the appellant to any 

further act, sexual or otherwise, and the disorganized, 

potentially non-sequential order of her memories prevents us

from concluding that the charged forcible sexual acts

necessarily followed. 
14

SW’s segmented memories lacked significant details and she 

could provide no chronology of the events she did remember. The 

events of SW’s segmented memories accounted for at most minutes 

or perhaps only seconds out of at least a seven-hour period and 

there is no further evidence in the record of what happened 

between the appellant and SW during the relevant time frame. As 

our sister court succinctly stated in a recent opinion, it is 

simply not our role to speculate as to what may have occurred 

between the appellant and SW or to fill in the gaps left by the 

Government’s presentation of its case. See United States v. 

Soto, 2014 CCA LEXIS 681, unpublished op. (A.F.Ct.Crim.App. (16

Sep 2014) (en banc), aff’d, __ M.J. __, 2015 CAAF LEXIS 398 

(C.A.A.F. 2015). The Government’s case rested nearly

exclusively on SW’s delayed and partial memories that ultimately 

lack the detail and completeness necessary to prove the charges. 

 

The lack of physical findings to support SW’s description 

of events also gives rise to reasonable doubt. SW testified to 

memories of the appellant holding her down by the arms, using 

his hand to open her mouth, biting her breasts, and taking her 

by the hips and turning her over to her front from her back. 

The sexual assault exam performed within forty-eight hours of 

the incident documented no physical findings on SW’s arms, 

breasts, face, mouth or hips. Nor was there DNA evidence 

introduced linking the appellant and SW in any fashion. The 

primary physical findings were bruises on SW’s legs. Although

SW was insistent that the bruises did not come from her 

interactions with AM and WC that night, she specifically 

testified that she could recall no actions by the appellant that 

caused the bruises. While we are not suggesting that physical 

findings are required to prove rape or forcible sodomy charges, 

in the case at bar, the lack of such evidence further amplifies

deficiencies in the Government’s case.

Finally, the conflicting expert testimony concerning the 

circumstances and validity of SW’s delayed recollection of the 

events at issue contributes to our reasonable doubt in this 

case. Dr. Henry and Dr. Grieger are both qualified experts with 

extensive experience in clinical and forensic psychiatry. Their 

testimony was largely consistent with the notable exception of 

their differing opinions on the reliability of SW’s delayed 

recollection of events. Dr. Grieger stated that SW’s testimony 

regarding her recollections “doesn’t fit with any construct of 

the way memories actually work” and to the extent SW had 

retrievable memories they would be most retrievable the next 

period of being awake and not intoxicated, which in this case 

was Sunday. Dr. Henry disagreed stating that “I have never ever 
15

heard that. I’ve never read that ... [t]hat is not true because 

I don’t see it clinically and, secondly, the science is that, in 

fact, alcohol disrupts that transfer process.” We find nothing 

in the record to favor one expert’s opinion over the other on 

this point, but we do note that Dr. Henry stressed the 

importance of sleep in the memory recovery process following an 

alcohol induced blackout. We further note SW’s testimony that 

she regained the bulk of her memories throughout the day on 

Tuesday, after she underwent the sexual assault exam at the 

hospital from Monday night until early Tuesday morning. 

Although SW did not testify to how much, if any, sleep she got 

that night, based on the information before us it is reasonable 

to conclude that she did not experience a restful night of sleep 

prior to regaining her memories of the event in question. 

Additionally, contrary to her in court testimony, SW told Dr. 

Henry that she regained her memories of the event over the 

course of a week which helped inform his opinion that SW 

provided him a description that was clinically consistent with 

experiencing a fragmentary blackout.

Conclusion

Under the facts presented and for the reasons stated we 

simply are not convinced that the Government satisfied its 

burden of proving the appellant’s guilt to the charges of rape 

and forcible sodomy beyond a reasonable doubt. We therefore 

find the appellant’s convictions factually insufficient. The

findings of guilty and the sentence are set aside. The charges 

and specifications are dismissed with prejudice.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court