## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and PENLAND Appellate Military Judges

UNITED STATES, Appellant

v. Specialist TRAVI S J. GARDNER United States Army, Appellee

ARMY 20120193

Headquarters, 3d Infantry Divisi on and Fort St ewart (convened) Headquarters, Fort Stewart (action)

Tiernan P. Dolan, Military Judge Colonel Randall J. Bagwell, Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jaco b D. Bashore, JA; Ca ptain Brian J. Sulliv an, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Elisabeth A. Claus, JA; Captai n Sean P. Fitzgibbon, JA (on brief).

28 August 2014

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

KRAUSS, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specificat ion of desertion in vi olation of Article 85,

Uniform Code of Milit ary Justice [hereinaft er UCMJ], 10 U.S.C. § 885 (2006). A panel composed of o fficer and enlisted members also convicted appellant, contrary to his pleas, of three specifi cations of aggravated sexual assault upon a substantially incapacitated person in viol ation of Article 120, UCMJ , 10 U.S.C. § 920 (2006 & Supp. II 2009). The panel sentenced appella nt to a dishonorable discharge, ten years confinement, forfeiture of all pay and allowa nces, and reduction to the grade of E-1. The convening authority approved the sentence except for the adjudged forfeitures. Appellant was also credited with 343 days agai nst the sentence to confinement.GARDNER—ARMY 20120193

2 This case is before the court for review under Article 66, UC MJ. Appellant assigns one error and raises several matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982). The error assigned, and one matter ra ised pursuant to Grostefon , warrant brief discu ssion but no relief.

FACTS AND PROCEDURAL BACKGROUND

Appellant took advantage of his drunk, sleepy, and sick sister-in-law, JF, by twice penetrating her vagina on separate and distinct occasions during the course of one night, and, as part of th e initial assault, inserting his fingers into her vagina. He did this, he admitted, to take revenge upon his wife, JF’s sister, who he suspected of cheating on him. This admission was accompanied by othe r damning and selfincriminating statements made by appellant, to include: that JF never consented to any sexual activity with him; that she was passed out; that she was out of it; that he raped her; and that after he had done so he whispered in her ear “I just raped you.”

JF’s testimony corroborated appellant’s admissions to CID. She was drunk, sick from the alcohol consumed, tired, and in and out of sleep throughout the night and during appellant’s assaul ts upon her. She remembered appellant waking her up, penetrating her with his fing ers and his penis, but testified that she was unable to move or respond or ut ter any words at all. She was at a loss as to why she was so paralyzed.

Others present in the hou se where the drinking and assaults occurred

corroborated JF’s severe dr unkenness, illness from the drink, semi-intelligible reaction to questi ons, partial state of apparent conscious unde rstanding of what was going on around her, and he r falling asleep. After putting JF to bed, JF’s sister was later struck by her discovery of JF with the blankets no longer covering her, the nightdress she had been wearing pulled up, and wearing no underw ear. JF was also described as a generally shy person.

Appellant’s defense, in relevant part, was that the governme nt could not prove that JF was substantially inca pacitated. Emphasizing JF’s ability to recall and sense what happened to her with precision, and testimony that established she had some

sense of what was asked of her, appellant argued she ce rtainly was not passed out,

that her claim that she could not move or speak was unbelievable, and there was at

least reasonable doubt about whether she wa s substantially incap acitated by alcohol.

In this vein, defense counsel presented a forensic toxicologist and expert on

the effects of alcoho l on the body. The ex pert testified genera lly about ho w alcohol affects the body and cognitive abilities of a person, how it affects memory and the ability to recall, how and the distinction between a person being in a total blackout state (inability to record memory without loss of consciousne ss) and an alcoholGARDNER—ARMY 20120193

3 induced passed out state (loss of consciou sness where one is un able to be awoken

and to form and de velop memory).

The defense also wanted to elicit from the expert, in essence, the following: that in his opinion a person who could remember what ha ppened to him and perceive an assault committed upon hi m could not have been co mpletely incapacitated by alcohol; that one paralyzed by alcohol would neither be conscious nor have memories of any events that occurred duri ng the paralysis. The judge prohibited the expert from testifying that one who remembers and percei ves things that happen to

him when drunk was not then incapacitated by alcohol. He expressed a number of

reasons that essentia lly boil down to these: (1) Such testimony contradicts the statutory definition of substantial incapa citation and is therefore an inadmissible substitution for the law; (2) The expert’s testimony would be equivalent to “human lie detector” testimony beca use it would effectively comment directly on the credibility of the vi ctim; and (3) Exercising his ga tekeeper role, he ruled the testimony insufficiently reliable to admit under Daubert v. Merrell Dow Pharm.,

Inc. , 509 U.S. 579 (1993).

LAW AND DISCUSSION

Exclusion of Defens e Expert Testimony

We review a judge’s excl usion of proffere d expert testim ony for abuse of

discretion. See United States v. Flesher , 73 M.J. 303, 31 1 (C.A.A.F. 2014); United

States v. Houser , 36 M.J. 392, 397 (C.M .A. 1993). Here we find that the judge misapprehended the proffere d testimony and agree with appellant that the judge erred by refusing its admissio n. However, we hold th at the judge’s erroneous

exclusion of this evid ence was harmless. See United States v. Weeks , 20 M.J. 22, 25 (C.M.A. 1985).

Expert Testimony and Definition of Substantial Incapacitation

The proffered testimony ne ither contradicted the law nor threatened to substitute a foreign definition for substant ial incapacitation under Article 120(c)(2),

UCMJ. See Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM ], pt. IV, ¶ 45.a(c)(2). Neither defense counsel nor the expert ever intended or offered

a definition for substantial in capacitation. Rather they simply wanted to introduce the concept that one who is completely pa ralyzed by alcohol is most likely in a passed out state. This woul d be total, not substantial, incapacitation. The defense expert made quite plain his lack of qualificat ion to opine on wh ether anyone was mentally impaired in the fashion contemplated by Ar ticle 120 and declined to employ the word “incapacitation ” in favor of technical te rms that fell within the realm of his expertise and knowledge. His te stimony reveals a conscientious and honest dedication to avoid any interference with the law as the judge would instruct.GARDNER—ARMY 20120193

4 As an accused might be convicted of ag gravated sexual assault for committing a sexual act upon an unconsc ious, totally incapacitate d person, as well as a substantially incapacitated pe rson, it is certainly releva nt for the defense to admit

evidence to exclude that possibility. See MCM , pt. IV, ¶ 45.a(c)(2) , (r), (t)(14). Recognizing the low thre shold of relevance, it also tends to undermine the degree of incapacity suffered by the vi ctim and is therefore releva nt for the fact finder in determining whether the victim was substantially incapacitated. See generally

United States v. White , 69 M.J. 236, 239 (C.A.A.F. 2010); Military Rules of

Evidence 401-403. Its exclus ion on this ground is therefor e an abuse of discretion.

See Houser , 36 M.J. at 399.

“Human Lie Detector”

Second, the proffered test imony was neither equivalent to nor sufficiently

similar to “human lie detector” testimony to warr ant exclusion. See generally United States v. Knapp , 73 M.J. 33 (C.A.A.F. 2014); United States v. Brooks

, 64 M.J. 325 (C.A.A.F. 2007). JF never testified that she wa s paralyzed as a result of her consumption of alcohol or that she was passed out or unconsci ous. She testified that she was drunk, tir ed, in and ou t of sleep, and sick. Sh e specifically testified that she had no explanation for her pa ralysis and repeated that testimony.

The trial counsel did stat e, in his opening statem ent, that JF was “too intoxicated to respond.” In addition, an aspect of the trial counsel’s closing argument can be unders tood to suggest that JF was substantia lly incapacitated by alcohol. But the gov ernment never presente d evidence or argument to suggest that

JF was unconscious or totally incapacitated by alcohol or in any way tie JF’s credibility to the question of whethe r she was paralyzed by alcohol.

The defense theory of the case was that absent alcohol as the cause of JF’s paralysis there existe d reasonable doubt about her credibility and whether she was substantially incapacitated to physically communi cate an unwillingnes s to engage in the sexual activity. Expert testimony that a person w ho is not in an alcohol induced passed out state would not be paralyzed is relevant as it tends to at least raise doubts about JF’s testimony that she was paralyzed. 1 Because this ev idence does not amount to “an opinion as to whether the pe rson was truthful in making a specific statement regarding a fact at issue in the case,” and was relevant, the evidence

should not have been ex cluded as improper human lie detector testimony. See

1 Even if we were to assume that the vict im testified that she was incapacitated by alcohol, the expert’s proffered testimony would not am ount to “human lie detector” testimony under the ci rcumstances. It is reasonable for experts to offer opinions

about whether someone’s descri ption of their condition is consistent with scientific evidence accumulated on the subject. See, e.g., United States v. Paige , 67 M.J. 442, 450 n.9 (C.A.A.F. 20 09).GARDNER—ARMY 20120193

5 Knapp , 73 M.J. at 36 (quoting Brooks , 64 M.J. at 328); see also Houser , 36 M.J. at

399.

Daubert

We review de novo whether the mili tary judge proper ly followed the Daubert

framework. See Flesher , 73 M.J. at 311 (citing United States v. Griffin , 50 M.J. 278, 284 (C.A.A.F. 1999))

.

There was nothing about th e proffered testimony that warranted exclusion as

unreliable scientific or technical evidence. The evidence in this case points to quite the opposite. Th e expert testified, wit hout challenge, that ba sed on his established and undisputed qualifications as a forensic toxi cologist, his experi ence and study, as well as that of his similarly qualified co lleagues with whom he has discussed such subjects, he is unaware of any reported instance where a person was paralyzed by alcohol alone and yet able to remember or perceive even ts happening when suffering

that condition. While not impossible, his opin ion was that it is highly improbable. In light of his qualificatio n and experience, his testimony is, therefore, as reliable and helpful to the pane l as it is relevant and there is nothing so cont roversial about the proffered testimony that justifies exclusion und er the principles of Daubert

. See generally United States v. Sanchez , 65 M.J. 145 (C.A.A.F. 2007); Houser ; 36 M.J. at

398-99.

Prejudice

Despite the relevanc e and reliability of the pro ffered testimony, however, it was, and is, a bit of a red herring. It is important to repeat that one need not be totally incapacitated to be the victim of an aggravated sexual assault under Article 120, UCMJ. In addition, one need not be substantially in capacitated by alcohol or any singular thing or condition to be a victim of an aggr avated sexual assault. One might be substantially inca pacitated by any number of things or combination of things including alcohol, sleep, fear, panic, and any numb er of mental or physical infirmities by whatever cause. The crime itse lf merely requires proof that the victim was substantially incapacitated or substantia lly incapable of appr aising the nature of the sexual act, declining participation in the act, or communicating unwillingness to engage in the act. See MCM , pt. IV, ¶ 45.a(c) (emphasis ad ded). It is fully within the competence of court-martial members to resolve whether an alleged victim was substantially incapacitated as a matter of fact with the instructions pr ovided by the judge in this case which included: “‘subs tantially incapacitated’ means that level of mental impairment due to consumption of al cohol, drugs, or simil ar substance; while asleep or unconscious; or for other reasons

. . . .” (Emphasis added). See generally

MCM , pt. IV, ¶ 45.a(c)(2).

The testimony excluded, whil e relevant, was not materi al and did not deprive appellant of a defense. The judge’s error was evidentiary not constitutional. SeeGARDNER—ARMY 20120193

6 United States v. Garcia , 44 M.J. 27 (C.A.A.F. 1996). Appellant was ab le to present and argue essentially the same points on doub ts about the level of JF’s incapacity despite limits on the expert’s testimony. More importantly, as described above, there was never any issue in the case as to whether JF was completely incapacitated by alcohol and the evidence th at she was substantially in capacitated by a number of factors was abundantly availa ble for the panel members to reasonably conclude that she was in that condition when the appellan t assaulted her. Wh en one considers the damning statements made by appellant hi mself, the evidence of his guilt is overwhelming. 2 Applying the fa ctors discussed in Garcia

, 3 we hold that appellant suffered no prejudice from the exclusion of th e proffered testimony:

(1) The government’s case against a ppellant was strong and conclusive: Appellant admitted to committing sexual acts upon JF wi thout her consen t, to satisfy a malign purpose, when she was in an intoxicated, ill, and slee py state; JF described

her condition and testified that she was unable to move or speak when assaulted by appellant; and third party witnesses corrob orated JF’s conditi on and the sequence of events including the admitted assault.

2 Even if we were to assu me error of constitutional di mension, we find it harmless beyond any reason able doubt. See Garcia , 44 M.J. at 28 (citing United States v.

Wilson , 20 M.J. 31, 32 (C.M.A . 1985) (applying a harmless-beyond -a-reasonabledoubt standard in an ab undance of caution)). There is no reasonable possibility that the error complained of might have contribute d to the co nviction. See United States

v. Ellerbrock , 70 M.J. 314, 320 (C.A.A.F . 2011) (citati ons omitted); see also

Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986) (listing none xclusive factors

used to determine whether an erro r was harmless beyond a reasonable doubt).

3 The factors in Garcia are:

First: Is the Government’s ca se against the accused strong

and conclusive?

Second: Is the defense’s theo ry of the case feeble or implausible?

Third: What is the materiality of the proffered testimony?

Fourth: What is th e quality of the proffered defense evidence and is there any substitute for it in the record of

trial?

44 M.J. at 32 (interna l citations omitted).GARDNER—ARMY 20120193

7 (2) With or without the proffered test imony, the defense’s th eory of the case is relatively weak: The notion that JF lied about not being able to move or respond

to the assault and that there is reasonab le doubt about whether she was substantially incapacitated is comparativ ely feeble when compared to the strength of the government’s case.

(3) As to materiality, the question of whether or not JF was totally incapacitated by alcohol was not fairly raised by th e government’s th eory of the case; and to the extent raised by the defense, it did little to addr ess whether JF was substantially incapacitated.

(4) The quality of the defense evidence was, as describe d above, good; and though the defense e xpert was permitted to testify in a fashio n that provided the defense opportunity to generally establish points about the effect s of alcohol on the body and memory formation, the judge’s ruling did eff ectively preven t the defense from establishing that alcohol induced paralysi s is consistent with unconsciousness.

Recognizing that the fourth factor weighs in appe llant’s favor, we hold that appellant did not suffer th e prejudice necessary to succeed on appeal given the strength of the government’s case in addition to the relative weakness of the defense theory, and the fact that th e proffered testimony was not si gnificantly material to the

case. See Garcia , 44 M.J. at 32; Weeks , 20 M.J. at 25.

Unreasonable Multiplication of Charges for Sentencing

Shortly after the panel went out to deli berate on sentenci ng, defense counsel sought the judge’s pardon and requested that Specification 3 of Charge I (penetration of JF’s genital opening by appellant’s finger) be treated as an unreasonable multiplication of charges for sentencing purp oses with Specifications 1 and 2 of Charge I (penetra tions of JF’s vulv a by appellant’s pe nis). The judge denied that request as untimely. Even if we assume that exercise of our Article 66 authority would be appropri ate under the circum stances to merge the specifications for sentencing as suggested, we are confident that appe llant would have received a

sentence at least as seve re as that adjudged. See United States v. Quiroz , 55 M.J. 334, 338 (C.A.A.F. 2001); United States v. Claxton , 32 M.J. 159, 162 (C.M.A. 1991); United States v. Sales , 22 M.J. 305, 30 8 (C.M.A. 1986).

CONCLUSION

The findings of guilty and the sentence are AFFIRMED.

Senior Judge LIND and Judge PENLAND concur.GARDNER—ARMY 20120193

8 FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: