               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

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

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




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