United States v. Clark

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
U.S.C. §§ 920 and 925. 1 The military judge sentenced the
appellant to seven years’ confinement, reduction to pay grade E-
1, 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 WC 5 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.

2
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.

3
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.

4
(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.
5
 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 witness 27
by the Government and provided the following testimony:

TC Doctor, are you familiar with the phrase “alcohol-
induced 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.
6
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.

7
 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.
8
 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?

9
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 long-
term 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

10
 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 long-
term 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.

11
 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.
12
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.

13
 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

14
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

15