                       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

     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.

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

     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.




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

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.




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

                            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. . . .


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

          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 cross-
     examination 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



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

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



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

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



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

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.

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

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


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

“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



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

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.




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

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



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

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.




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

     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 five-

year-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).



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

                             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.




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