UNITED STATES, Appellee 

v. 

Harvey A. Gardinier II, Staff Sergeant 

U.S. Army, Appellant 

No. 06-0591 

Crim. App. No. 20020427 

United States Court of Appeals for the Armed Forces 

Argued February 25, 2009 

Decided April 28, 2009 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined. 

Counsel 

For Appellant: Captain William J. Stephens (argued); Lieutenant 

Colonel Matthew M. Miller, Lieutenant Colonel Mark Tellitocci, 

Major Bradley M. Voorhees, and Major Grace M. Gallagher (on 

brief); Lieutenant Colonel Jonathan F. Potter and Captain Teresa 

L. Raymond. 

For Appellee: Captain Philip M. Staten (argued); Colonel Denise 

R. Lind and Lieutenant Colonel Mark H. Sydenham (on brief). 

Military Judge: Gary V. Casida 

This opinion is subject to revision before final publication. 
United States v. Gardinier, No. 06-0591/AR 

2

Judge ERDMANN delivered the opinion of the court. 

This is the second time this case has been before this 

court. Staff Sergeant Harvey A. Gardinier II was convicted of 

one specification of indecent liberties with a child and one 

specification of committing an indecent act upon the same child, 

both in violation of Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (2000).1 In our first opinion we 

summarized the facts as follows: 

In December 2001, Gardinier’s five-year-old 

daughter, KG, told her mother that Gardinier had 

touched her inappropriately. Her mother immediately 

took KG to Evans Army Community Hospital in Ft. 

Carson, Colorado, where a medical examination was 

conducted. The allegations were also reported to the 

El Paso County (Colorado) sheriff’s office and the El 

Paso County Department of Human Services. On January 

2, 2002, personnel from those agencies conducted a 

joint interview of KG, which was videotaped. That 

interview was immediately followed by a forensic 

medical examination by a sexual assault nurse 

examiner. 

On January 3, 2002, Gardinier was interviewed by 

a sheriff’s department detective and then separately 

by an Army Criminal Investigation Division (CID) 

agent. The CID agent did not advise Gardinier of his 

rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b) 

(2000). Both interviews were videotaped and Gardinier 

provided a written statement at the request of the CID 

agent. On January 7, the CID agent advised Gardinier 

of his Article 31, UCMJ, rights. Gardinier waived his 

rights and provided another statement. 

At trial the military judge admitted the 

videotape of the January 3 CID interview and both the 

January 3 and January 7 statements. He also admitted 

 

1

 Gardinier was acquitted by the military judge of one 

specification of indecent liberties with a child and one 

specification of indecent acts with the same child. 
United States v. Gardinier, No. 06-0591/AR 

3

the “Forensic Medical Examination” form completed by 

the sexual assault nurse examiner and allowed her to 

testify as to what KG told her during the examination. 

Further, the military judge determined that KG was not 

available to testify at trial and admitted the 

videotape of KG’s interview with the El Paso law 

enforcement and human services officials. All of this 

evidence was admitted over defense objection. 

United States v. Gardinier (Gardinier II), 65 M.J. 60, 61-62 

(C.A.A.F. 2007). 

In its initial review of the case, the United States Army 

Court of Criminal Appeals determined the military judge erred in 

finding that KG was unavailable to testify. United States v. 

Gardinier (Gardinier I), 63 M.J. 531, 540 (A. Ct. Crim. App. 

2006). The videotape of her interview with civilian law 

enforcement was, therefore, erroneously admitted into evidence 

because it violated Gardinier’s Sixth Amendment right to 

confront his accuser. Id. That court went on to find that the 

error was harmless beyond a reasonable doubt and affirmed the 

findings and sentence. Id. at 543. 

In our 2007 decision we found that Gardinier’s January 3, 

2002, handwritten statement and the videotape of his interview 

that day were erroneously admitted because Gardinier had not 

been properly advised of his rights under Article 31(b), UCMJ. 

Gardinier II, 65 M.J. at 64. We also held KG’s statements to 

the sexual assault nurse were erroneously admitted in violation 

of the Confrontation Clause of the Sixth Amendment. Id. at 66. 
United States v. Gardinier, No. 06-0591/AR 

4

We held that Gardinier’s January 7, 2002, statement was properly 

admitted. Id. at 64. 

The effect of our decision and the initial decision of the 

Court of Criminal Appeals was that the following evidence had 

been admitted in error at Gardinier’s trial: (1) the January 2, 

2002, videotape of KG’s interview with civilian authorities; (2) 

Gardinier’s January 3, 2002, handwritten statement; (3) the 

videotape of Gardinier’s January 3, 2002, interview; and (4) the 

statements KG made to the sexual assault nurse. Given the 

“changed evidentiary landscape,” we remanded the case to the 

Court of Criminal Appeals to conduct a factual sufficiency 

review and also to consider whether the errors were harmless 

beyond a reasonable doubt. Id. at 66-67. 

On remand, the lower court held that the evidence was 

factually sufficient and the evidentiary errors were harmless 

beyond a reasonable doubt. United States v. Gardinier

(Gardinier III), No. ARMY 20020427, slip op. at 7 (A. Ct. Crim. 

App. Apr. 25, 2008). We granted Gardinier’s petition to 

determine whether the lower court was correct in holding that 

the evidentiary errors were harmless beyond a reasonable doubt. 

We hold that the errors were not harmless beyond a reasonable 

doubt and reverse the Court of Criminal Appeals. 
United States v. Gardinier, No. 06-0591/AR 

5

Discussion

“For most constitutional errors at trial, we apply the 

harmless error test set forth in Chapman v. California, 386 U.S. 

18 (1967), to determine whether the error is harmless beyond a 

reasonable doubt.” United States v. Upham, 66 M.J. 83, 86 

(C.A.A.F. 2008). Evidence admitted in violation of Article 31, 

UCMJ, or the Confrontation Clause of the Sixth Amendment is 

subject to that standard. See United States v. Brisbane, 63 

M.J. 106, 116 (C.A.A.F. 2006); United States v. Crudup, 67 M.J. 

92, 94 (C.A.A.F. 2008). “Whether a constitutional error in 

admitting evidence is harmless beyond a reasonable doubt is a 

question of law that we review de novo.” Crudup, 67 M.J. at 94. 

In assessing harmlessness in the constitutional context, 

the question is not whether the evidence is legally sufficient 

to uphold Gardinier’s conviction without the erroneously 

admitted evidence. See Fahy v. Connecticut, 375 U.S. 85, 86 

(1963). Rather, “‘[t]he question is whether there is a 

reasonable possibility that the evidence complained of might 

have contributed to the conviction.’” Chapman, 386 U.S. at 23 

(quoting Fahy, 375 U.S. at 86-87). 

In United States v. Othuru, this court discussed what 

“contribute” to the conviction means: 

To say that an error did not “contribute” to the 

ensuing verdict is not, of course, to say that the 

jury was totally unaware of that feature of the trial 

later held to have been erroneous. . . . 
United States v. Gardinier, No. 06-0591/AR 

6

To say that an error did not contribute to the 

verdict is, rather, to find that error unimportant in 

relation to everything else the jury considered on the 

issue in question, as revealed in the record. 

65 M.J. 375, 377 (C.A.A.F. 2007) (quoting Yates v. Evatt, 500 

U.S. 391, 403 (1991), overruled on other grounds by Estelle v. 

McGuire, 502 U.S. 62, 72 n.4 (1991)). 

Additionally, in Confrontation Clause cases, this court 

frequently looks to the factors set forth in Delaware v. Van 

Arsdall, 475 U.S. 673, 684 (1986), to assess whether an error is 

harmless beyond a reasonable doubt. See, e.g., Crudup, 67 M.J. 

at 94-95; Othuru, 65 M.J. at 378. The Van Arsdall Court stated: 

Whether such an error is harmless in a particular case 

depends upon a host of factors, all readily accessible 

to reviewing courts. These factors include the 

importance of the witness’ testimony in the 

prosecution’s case, whether the testimony was 

cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the 

witness on material points, the extent of crossexamination otherwise permitted, and, of course, the 

overall strength of the prosecution’s case. 

Van Arsdall, 475 U.S. at 684 (citations omitted). We commence 

our analysis with a review of the erroneously admitted evidence: 

Videotape of KG’s January 2, 2002, Interview 

The videotape of KG’s January 2, 2002, interview with 

personnel from the department of human services and the 

sheriff’s office contains a number of allegations supportive of 

the Government’s case: KG responded affirmatively when asked if 

Gardinier touches children; she related that Gardinier touched 
United States v. Gardinier, No. 06-0591/AR 

7

her crotch area with his hand after she had taken a bath and 

that he was naked during this incident; she acknowledged that 

Gardinier had touched her crotch area other times; when the 

interviewers ask if Gardinier ever makes KG touch him, KG 

responds affirmatively and says that “it’s bigger” when she 

touches “it”; KG went on to say that “daddy was naked” and “[a] 

lot” of “pee” comes out of “it” after she touches “it.” 

When the military judge admitted the tape into evidence he 

stated he had watched the videotape more than once and the 

videotape was “direct evidence of the alleged acts” and “more 

probative than any other evidence.” The military judge went on 

to state that “the videotape allows the finder of fact to 

actually view directly [KG]’s demeanor and her statements 

unfiltered by any other person’s perceptions or memory.” As the 

military judge was the finder of fact in this case, we need not 

speculate as to the importance of this evidence to the finder of 

fact. The military judge considered KG’s videotaped interview 

as “direct evidence” that was “more probative than any other 

evidence.” 

Videotape of Gardinier’s January 3, 2002, Interview

The videotape of Gardinier’s January 3, 2002, interview 

with civilian police and Army CID is over four hours in duration 

and includes the administration of a “computer voice stress 

test,” which was explained to Gardinier as the next generation 
United States v. Gardinier, No. 06-0591/AR 

8

polygraph which does not create false positives. The video 

reflects that during the computer voice stress test Gardinier 

was asked: (1) “Have you ever touched [KG]’s vaginal area for 

sexual gratification?” and (2) “Have you ever had or asked KG to 

touch your penis?” The detective explained that he was not 

talking about “normal parental maintenance” such as bathing, 

diapering and hygiene, and Gardinier indicated he understood 

this. 

Gardinier responded “No” to both of those questions. When 

the test was completed, the detective showed Gardinier that the 

computer voice stress test printout indicated he was not being 

truthful in response to the two substantive questions. 

Gardinier continued to say he had “never done that” and such 

activities are “not what I do.” After about thirty minutes of 

additional questioning, Gardinier began making incriminating 

statements. 

On the tape Gardinier stated that perhaps he made a 

mistake, but that did not make him a bad person. He 

acknowledged having sexual thoughts when KG touched his penis, 

but argued he was merely excited for his wife to return home. 

He also acknowledged that he touched her vagina while both of 

them were naked in the shower. He stated his penis became erect 

and he was sexually aroused while touching her. Additionally, 

Gardinier told the detective that KG touched his penis for about 
United States v. Gardinier, No. 06-0591/AR 

9

five seconds and it grew a little bit after she touched it. 

Further describing this incident, Gardinier stated that after KG 

touched his penis he stroked his penis one or two times and some 

fluid came out. He also admitted that KG had touched his penis 

two to three times on other occasions. When he admitted the 

videotape, the military judge stated he had viewed the taped 

interview more than once. 

In reviewing the tape the military judge saw Gardinier 

“fail” the computer voice stress test in regard to two pivotal 

questions concerning his conduct towards KG. He also saw the 

detective explain on the video how he knew from the test that 

Gardinier was not telling the truth. Military Rule of Evidence 

(M.R.E.) 707 prohibits the results of a polygraph examination 

and the opinion of a polygraph examiner from being admitted into 

evidence. Polygraph evidence is prohibited because the 

“reliability of polygraph evidence has not been sufficiently 

established and its use at trial impinges upon the integrity of 

the judicial system.” Manual for Courts-Martial, United States, 

Analysis of the Military Rules of Evidence app. 22 at A22-51 

(2008 ed.) (citing People v. Kegler, 242 Cal. Rptr. 897 (Cal. 

Ct. App. 1987)).2

 

 

2

 The admission of the polygraph evidence was not objected to at 

trial nor argued by the parties on appeal. We do not base our 

decision on the apparent violation of M.R.E. 707, but we do take 

notice of the content of the videotape viewed by the military 

judge in applying the Chapman test. 
United States v. Gardinier, No. 06-0591/AR 

10

KG’s Hearsay Statements to the Sexual Assault Nurse and 

Gardinier’s January 3, 2002, Statement

In addition to the videotapes of the Gardinier and KG 

interviews, the military judge erroneously admitted KG’s 

statements to the sexual assault nurse and Gardinier’s January 

3, 2002, statement. The sexual assault nurse was permitted to 

testify that KG told her she touched “Daddy’s cooter” and 

“sometimes she saw Daddy’s cooter get bigger,” which was 

consistent with KG’s statement in the videotaped interview. 

Gardinier’s January 3, 2002, written statement closely 

paralleled many of the oral statements he made during the 

videotaped interview after he had been administered the computer 

voice stress test. At trial the Government placed great 

emphasis on this statement because it was “in his own writing, 

in his own words, without others coaching him and without others 

putting any words in his mouth. He sits there alone in the room 

and writes these statements out.” 

Analysis

The impact of the admission and consideration of the two 

videotapes is problematic for the Government in its efforts to 

establish that there is no reasonable possibility that the 

evidence complained of might have contributed to the conviction. 

The military judge viewed both videotapes more than once. There 

can be little doubt that he placed a great deal of importance on 

KG’s interview as he stated that her recorded statements were 
United States v. Gardinier, No. 06-0591/AR 

11

“more probative than any other evidence” and that “the videotape 

allows the finder of fact to actually view directly [KG]’s 

demeanor and her statements unfiltered by any other person’s 

perceptions or memory.” 

While the military judge did not make specific findings as 

to the weight he attributed to the Gardinier videotape, his 

statements about the KG videotape illustrate the importance that 

he, as the factfinder, placed on seeing the demeanor and hearing 

the statements of key witnesses. Not only did the military 

judge observe Gardinier’s demeanor during the videotaped 

interview, he witnessed the entire computer voice stress test 

where the detective informed Gardinier that the test reflected 

that he was untruthful. 

We have already discussed the importance of the erroneously 

admitted evidence to the Government’s case and the importance 

that the military judge placed on that evidence. The centrality 

of the videotapes to the Government’s case and probative value 

given to them by the factfinder weighs heavily against the 

Government. 

As to whether the evidence was cumulative, important 

portions of KG’s videotaped interview were not cumulative of 

untainted evidence. While several hearsay statements made by KG 

were admitted into evidence, as the military judge noted, those 

statements were filtered by the perceptions and memory of the 
United States v. Gardinier, No. 06-0591/AR 

12

persons who heard them.3 Her videotaped interview was the only 

opportunity for the factfinder to see and hear her give an 

accounting of the incidents. 

Nor was Gardinier’s January 3 statement entirely cumulative 

of the more formal January 7 statement which was admitted into 

evidence. The Government urged greater emphasis on the January 

3 statement because it was handwritten, in his own words and 

without coaching from the police. While the two statements 

contained many similarities pertaining to the offenses of which 

Gardinier was convicted, the January 3 statement contained 

admissions from Gardinier not found in the January 7 statement. 

In the January 3 statement, Gardinier states that he admonished 

KG and sent her out of the room after his “hand went to [his] 

penis which ejaculated a little which she noticed.” However, in 

the January 7 statement, Gardinier indicates that he had already 

 

3

 This hearsay testimony was admitted through three witnesses. 

Douglas H. Lehman, a social worker who provided six hours of 

treatment for KG, testified that KG only made one statement 

pertaining to sexual abuse, i.e., that Gardinier made her touch 

his “cooter.” Saundra M. Freeman was a friend of the family who 

stayed with the family after the allegations arose. She 

testified that KG drew pictures that KG said were “her daddy’s 

pee-pee,” “her daddy laying on the bed naked” and “her mom 

wearing underwear.” Tracy Gardinier, Gardinier’s wife and KG’s 

mother, testified that she asked KG if anyone ever touched her 

private parts and KG responded “Daddy does.” Tracy further 

testified that KG said Gardinier touched her every time Tracy 

left the house. These hearsay statements do not provide the 

detail or specificity present in the erroneously admitted 

evidence. 
United States v. Gardinier, No. 06-0591/AR 

13

sent KG away when he saw that his penis “had gotten aroused and 

a drop of fluid was at the end of it” and he “touched it.” In 

the January 3 statement, Gardinier also stated that the incident 

where KG touched his penis, which was the basis for the indecent 

liberties offense, lasted about “five minutes.” In contrast, in 

the January 7 statement, he changed his accounting and told the 

CID agent the incident lasted “approximately one minute.” 

Finally, with regard to the indecent acts conviction where 

Gardinier touched KG’s vagina while they were in the shower 

together, in the January 3 statement, Gardinier stated he got 

“unintentionally aroused,” whereas in the January 7 statement, 

Gardinier clarified that he was only “somewhat aroused” and it 

“had nothing to with her.” His January 3 statement did not 

address whether the arousal resulted from touching KG. 

Similarly, in addition to the military judge being able to 

observe the computer stress test and having the opportunity to 

hear Gardinier and observe his demeanor, the videotape of 

Gardinier’s January 3 interview contains evidence that is not 

contained in the January 7 statement. For instance, in the 

videotape, Gardinier described how, after KG touched his penis, 

he stroked his penis and some fluid came out, whereas in the 

January 7 written statement he only admitted touching his penis, 

which already had a drop of fluid on it. His statement on the 

videotape describes more contact than either of the written 
United States v. Gardinier, No. 06-0591/AR 

14

statements. In the videotape, Gardinier also discussed that he 

made a “mistake” -- an acknowledgement not present in the 

January 7 statement. 

As to whether the evidence was corroborated or contradicted 

by admissible evidence, Gardinier’s January 7, 2002, statement 

was the principal piece of evidence remaining against him and 

was corroborated by summary hearsay statements made on different 

occasions by the alleged victim. Supra note 3. However, 

Gardinier’s January 7 statement contained no clear admission 

that he took indecent liberties with KG or engaged in indecent 

acts with her as charged. He admitted being caught partially 

naked by KG and that she, on her own accord, unexpectedly 

touched his penis. He also admitted that he twice took showers 

with her and washed her private parts. Although he admitted 

becoming sexually aroused during both these incidents, he 

unequivocally denied any deliberate sexual activity with or 

thoughts about his daughter. As discussed above, the January 3 

statement and videotape contained more serious admissions from 

Gardinier, in contrast to the properly admitted January 7 

statement. KG’s videotaped statements also provided inculpatory 

evidence of material facts for both specifications that 

contradicted the properly admitted Gardinier statement in 

important ways and strengthened the Government case. 
United States v. Gardinier, No. 06-0591/AR 

15

 KG did not testify, so the defense had no opportunity to 

cross-examine her. As a result, KG’s videotaped interview and 

her hearsay statements admitted through the sexual assault nurse 

were not tested by the crucible of cross-examination. 

Finally, without the videotapes of KG and Gardinier, 

without Gardiner’s January 3 handwritten statement and without 

the sexual assault nurse’s hearsay testimony, the overall 

strength of the Government’s case is not “‘overwhelming.’” See

United States v. Moran, 65 M.J. 178, 188 (C.A.A.F. 2007) 

(quoting United States v. Ross, 7 M.J. 174, 178 (C.M.A. 1979)) 

(holding a constitutional error harmless because the 

government’s untainted evidence was overwhelming). 

In analyzing all of the erroneously admitted evidence and 

the remaining evidence of record under the Van Arsdall factors, 

we find that there is a reasonable possibility that the 

erroneously admitted evidence might have contributed to the 

conviction. See Chapman, 386 U.S. at 23. We cannot find that 

videotapes containing allegations of sexual abuse by a fiveyear-old victim against her father, which the military judge as 

factfinder called “more probative than any other evidence,” and 

the father’s subsequent incriminating statements, when balanced 

with the remaining evidence of record, were “‘unimportant’” to 

the finder of fact. See Othuru, 65 M.J. at 377 (citation 

omitted). 
United States v. Gardinier, No. 06-0591/AR 

16

Decision

The decision of the United States Army Court of Criminal 

Appeals is reversed. The findings of guilty and the sentence 

are set aside. The record is returned to the Judge Advocate 

General of the Army and a rehearing is authorized.