UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

LIND, KRAUSS, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellant 

v. 

Specialist TRAVIS J. GARDNER 

United States Army, Appellee 

ARMY 20120193 

Headquarters, 3d Infantry Division and Fort Stewart (convened) 

Headquarters, Fort Stewart (action) 

Tiernan P. Dolan, Military Judge 

Colonel Randall J. Bagwell, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Elisabeth A. Claus, JA; Captain Sean P. Fitzgibbon, JA (on brief). 

28 August 2014 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 specification of desertion in violation of Article 85, 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 885 (2006). A 

panel composed of officer and enlisted members also convicted appellant, contrary 

to his pleas, of three specifications of aggravated sexual assault upon a substantially 

incapacitated person in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2006 & 

Supp. II 2009). The panel sentenced appellant to a dishonorable discharge, ten years 

confinement, forfeiture of all pay and allowances, 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 against the sentence to confinement. 
GARDNER—ARMY 20120193 

2

This case is before the court for review under Article 66, UCMJ. 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 raised pursuant to 

Grostefon, warrant brief discussion 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 the 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 other 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 assaults upon her. She remembered appellant waking her up, 

penetrating her with his fingers and his penis, but testified that she was unable to 

move or respond or utter any words at all. She was at a loss as to why she was so 

paralyzed. 

Others present in the house where the drinking and assaults occurred 

corroborated JF’s severe drunkenness, illness from the drink, semi-intelligible 

reaction to questions, partial state of apparent conscious understanding of what was 

going on around her, and her 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 underwear. JF was also 

described as a generally shy person. 

Appellant’s defense, in relevant part, was that the government could not prove 

that JF was substantially incapacitated. 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 certainly 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 was substantially incapacitated by alcohol. 

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

the effects of alcohol on the body. The expert testified generally about how 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 consciousness) and an alcohol 
GARDNER—ARMY 20120193 

3

induced passed out state (loss of consciousness where one is unable to be awoken 

and to form and develop memory). 

The defense also wanted to elicit from the expert, in essence, the following: 

that in his opinion a person who could remember what happened to him and perceive 

an assault committed upon him could not have been completely incapacitated by 

alcohol; that one paralyzed by alcohol would neither be conscious nor have 

memories of any events that occurred during the paralysis. The judge prohibited the 

expert from testifying that one who remembers and perceives things that happen to 

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

reasons that essentially boil down to these: (1) Such testimony contradicts the 

statutory definition of substantial incapacitation and is therefore an inadmissible 

substitution for the law; (2) The expert’s testimony would be equivalent to “human 

lie detector” testimony because it would effectively comment directly on the 

credibility of the victim; and (3) Exercising his gatekeeper 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 Defense Expert Testimony 

We review a judge’s exclusion of proffered expert testimony for abuse of 

discretion. See United States v. Flesher, 73 M.J. 303, 311 (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 proffered testimony and agree with appellant that the judge 

erred by refusing its admission. However, we hold that the judge’s erroneous 

exclusion of this evidence 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 neither contradicted the law nor threatened to 

substitute a foreign definition for substantial 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 incapacitation. Rather they simply wanted to introduce 

the concept that one who is completely paralyzed by alcohol is most likely in a 

passed out state. This would be total, not substantial, incapacitation. The defense 

expert made quite plain his lack of qualification to opine on whether anyone was 

mentally impaired in the fashion contemplated by Article 120 and declined to 

employ the word “incapacitation” in favor of technical terms that fell within the 

realm of his expertise and knowledge. His testimony 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 aggravated sexual assault for committing a 

sexual act upon an unconscious, totally incapacitated person, as well as a 

substantially incapacitated person, it is certainly relevant for the defense to admit 

evidence to exclude that possibility. See MCM, pt. IV, ¶ 45.a(c)(2), (r), (t)(14). 

Recognizing the low threshold of relevance, it also tends to undermine the degree of 

incapacity suffered by the victim and is therefore relevant 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 exclusion on this ground is therefore an abuse of discretion. 

See Houser, 36 M.J. at 399. 

“Human Lie Detector” 

Second, the proffered testimony was neither equivalent to nor sufficiently 

similar to “human lie detector” testimony to warrant 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 was paralyzed as a result of 

her consumption of alcohol or that she was passed out or unconscious. She testified 

that she was drunk, tired, in and out of sleep, and sick. She specifically testified 

that she had no explanation for her paralysis and repeated that testimony. 

The trial counsel did state, in his opening statement, that JF was “too 

intoxicated to respond.” In addition, an aspect of the trial counsel’s closing 

argument can be understood to suggest that JF was substantially incapacitated by 

alcohol. But the government never presented 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 whether she was paralyzed by alcohol. 

The defense theory of the case was that absent alcohol as the cause of JF’s 

paralysis there existed reasonable doubt about her credibility and whether she was 

substantially incapacitated to physically communicate an unwillingness to engage in 

the sexual activity. Expert testimony that a person who 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 evidence does not 

amount to “an opinion as to whether the person was truthful in making a specific 

statement regarding a fact at issue in the case,” and was relevant, the evidence 

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

 

1

 Even if we were to assume that the victim testified that she was incapacitated by 

alcohol, the expert’s proffered testimony would not amount to “human lie detector” 

testimony under the circumstances. It is reasonable for experts to offer opinions 

about whether someone’s description 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. 2009). 
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 military judge properly 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 the proffered testimony that warranted exclusion as 

unreliable scientific or technical evidence. The evidence in this case points to quite 

the opposite. The expert testified, without challenge, that based on his established 

and undisputed qualifications as a forensic toxicologist, his experience and study, as 

well as that of his similarly qualified colleagues 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 events happening when suffering 

that condition. While not impossible, his opinion was that it is highly improbable. 

In light of his qualification and experience, his testimony is, therefore, as reliable 

and helpful to the panel as it is relevant and there is nothing so controversial about 

the proffered testimony that justifies exclusion under 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 relevance and reliability of the proffered 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 incapacitated by alcohol or 

any singular thing or condition to be a victim of an aggravated sexual assault. One 

might be substantially incapacitated by any number of things or combination of 

things including alcohol, sleep, fear, panic, and any number of mental or physical 

infirmities by whatever cause. The crime itself merely requires proof that the victim 

was substantially incapacitated or substantially incapable of appraising 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 added). 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 provided by the 

judge in this case which included: “‘substantially incapacitated’ means that level of 

mental impairment due to consumption of alcohol, drugs, or similar substance; while 

asleep or unconscious; or for other reasons . . . .” (Emphasis added). See generally 

MCM, pt. IV, ¶ 45.a(c)(2). 

The testimony excluded, while relevant, was not material and did not deprive 

appellant of a defense. The judge’s error was evidentiary not constitutional. See 
GARDNER—ARMY 20120193 

6

United States v. Garcia, 44 M.J. 27 (C.A.A.F. 1996). Appellant was able to present 

and argue essentially the same points on doubts 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 that she was substantially incapacitated by a number of 

factors was abundantly available for the panel members to reasonably conclude that 

she was in that condition when the appellant assaulted her. When one considers the 

damning statements made by appellant himself, the evidence of his guilt is 

overwhelming.2

 Applying the factors discussed in Garcia,

3

 we hold that appellant 

suffered no prejudice from the exclusion of the proffered testimony: 

(1) The government’s case against appellant was strong and conclusive: 

Appellant admitted to committing sexual acts upon JF without her consent, to satisfy 

a malign purpose, when she was in an intoxicated, ill, and sleepy state; JF described 

her condition and testified that she was unable to move or speak when assaulted by 

appellant; and third party witnesses corroborated JF’s condition and the sequence of 

events including the admitted assault. 

 

2

 Even if we were to assume error of constitutional dimension, we find it harmless 

beyond any reasonable 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 abundance of caution)). There is no reasonable possibility that 

the error complained of might have contributed to the conviction. See United States 

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

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (listing nonexclusive factors 

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

3

 The factors in Garcia are: 

First: Is the Government’s case against the accused strong 

and conclusive? 

Second: Is the defense’s theory of the case feeble or 

implausible? 

Third: What is the materiality of the proffered testimony? 

Fourth: What is the quality of the proffered defense 

evidence and is there any substitute for it in the record of 

trial? 

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

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(2) With or without the proffered testimony, the defense’s theory 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 reasonable doubt about whether she was substantially 

incapacitated is comparatively 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 the government’s theory of the 

case; and to the extent raised by the defense, it did little to address whether JF was 

substantially incapacitated. 

(4) The quality of the defense evidence was, as described above, good; and 

though the defense expert was permitted to testify in a fashion that provided the 

defense opportunity to generally establish points about the effects of alcohol on the 

body and memory formation, the judge’s ruling did effectively prevent the defense 

from establishing that alcohol induced paralysis is consistent with unconsciousness. 

Recognizing that the fourth factor weighs in appellant’s favor, we hold that 

appellant did not suffer the 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 the proffered testimony was not significantly 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 deliberate on sentencing, 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 purposes with Specifications 1 

and 2 of Charge I (penetrations of JF’s vulva by appellant’s penis). The judge 

denied that request as untimely. Even if we assume that exercise of our Article 66 

authority would be appropriate under the circumstances to merge the specifications 

for sentencing as suggested, we are confident that appellant would have received a 

sentence at least as severe 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, 308 (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: