A few weeks ago – in this post – I discussed the NMCCA’s per curiam opinion that reversed convictions of rape and forcible sodomy because the CCA found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).
The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. Notably, the appellant was acquitted of aggravated sexual assault by engaging in a sexual act with a person who was substantially incapacitated that was charged in the alternative with the rape charge. Slip op. at 2 n.1.
Reversing the findings, the CCA concluded that “hav[ing] made allowances for not having heard and observed the
witnesses. . . . and having considered the unique facts of this case, we are not personally convinced of the appellant’s guilt of rape or forcible sodomy.” Slip op. at 13.
Now the Judge Advocate General of the Navy has certified the case to CAAF:
No. 16-0068/NA. United States, Appellant v. Dustin M. Clark, Appellee. CCA 201400232. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:
ARTICLE 66(c), UCMJ, REQUIRES THAT COURTS OF CRIMINAL APPEALS CONDUCT A PLENARY REVIEW OF THE ENTIRE RECORD AND “RECOGNIZ [E] THAT THE TRIAL COURT SAW AND HEARD THE WITNESSES.” IN REVERSING APPELLEE’S CONVICTIONS FOR FACTUAL INSUFFICIENCY WITHOUT ACKNOWLEDGING THE MILITARY JUDGE’S NON-GUILT SPECIAL FINDINGS DID THE LOWER COURT FAIL TO CONDUCT A COMPLETE ARTICLE 66(c) REVIEW?
IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW, THE LOWER COURT USED A DIFFERENT STANDARD OF REVIEW FOR THE NON-GUILT SPECIAL FINDINGS MADE BY THE MILITARY JUDGE UNDER RULE FOR COURTS-MARTIAL 918(b) THAN THAT ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS. SHOULD THE LOWER COURT HAVE REVIEWED THE MILITARY JUDGE’S NON-GUILT SPECIAL FINDINGS UNDER THE CLEAR ERROR STANDARD ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS?
Significantly, other than the footnote mentioned above, the CCA’s decision does not discuss the military judge’s “non-guilt” findings (presumably this means the acquittal of the alternative charge), nor does the decision reference R.C.M. 918 or any special findings made by the military judge.
Additionally, I’ve been advised that Clark has now been released from confinement.