              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         JACOB G. THOMAS
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201400177
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 6 December 2013.
Military Judge: CDR M.I. Luken, JAGC, USN.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: Charles D. Swift, Esq.; Capt David Peters,
USMC.
For Appellee: Maj Suzanne Dempsey, USMC.

                              27 May 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, contrary to his pleas, of rape by
force, forcible sodomy, and adultery, in violation of Articles
120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 920, 925, and 934. The military judge sentenced the
appellant to ninety months’ confinement and a dishonorable
discharge. The convening authority (CA) “deferred” automatic
forfeitures for a period of six months. 1 He otherwise approved
the sentence as adjudged and, except for the dishonorable
discharge, ordered it executed.

     The appellant raises        two related assignments of error: (1)
the military judge abused        his discretion in denying expert
testimony proposed by the        appellant; and (2) the appellant was
denied his constitutional        right to present his defense and
confront his accuser when        the military judge denied admission of
the expert testimony.

     After carefully considering the record of trial, the
parties’ submissions, and oral argument, 2 we are convinced that
the findings and sentence are correct in law and fact and that
no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                   Background
     On 25 December 2010, Specialist (SPC) DS, traveled with her
boyfriend, Staff Sergeant (SSgt) RC, to visit his family for
Christmas. 3 SPC DS and SSgt RC arrived in the afternoon and
began socializing, eating food and drinking alcohol with the
appellant and his wife. SPC DS remembered drinking wine and
hard liquor, but could not recall exactly how much she had to
drink.

     According to SPC DS, at some point in the evening the
appellant asked her to show him her breasts, but she ignored
him. Later in the evening, the appellant and his wife left to
get food for the group. SPC DS testified that, during this
time, she started feeling dizzy and nauseous from the alcohol,
and that SSgt RC passed out on the living room floor from the
effects of alcohol. When the appellant and his wife returned,
the appellant’s wife went to their bedroom to sleep, SSgt RC
remained asleep, and SPC DS did not eat because she felt sick.
She laid on the couch in the living room and pretended to be

1
  The six “deferred” months commenced 14 days after trial and extended to a
date 48 days after the CA took his action. The post-action perid amounted to
a waiver of automatic forfeitures for that period.
2
    On 27 January 2015 we heard oral argument on both assigned errors.
3
  SPC DS and SSgt RC were both in the U.S. Army; SSgt RC and the appellant’s
wife are cousins.
                                        2
asleep. SPC DS testified that the appellant approached her
while she was on the couch, put his penis on her face, and tried
to put it in her mouth. SPC DS pressed her face into the pillow
so the appellant would go away, and he eventually did. After
the appellant left, SPC DS felt nauseous from alcohol and went
into the bathroom to vomit.

     A few moments later the appellant entered the bathroom.
SPC DS testified that while she was on her knees and bent over
the toilet, the appellant tried to pull her jeans down while she
attempted to pull them up, smack his hands away, tell him to
stop, and to get away. SPC DS testified that the appellant
eventually got on top of her as she lay on the floor on her
stomach and inserted his penis first into her vagina, then into
her anus. SPC DS testified that the appellant stopped and left
when he saw his daughter in the bathroom doorway. SPC DS
explained that she wiped her vagina and anus and noted blood and
semen on the toilet paper. She also described feeling pain in
her anus. When she left the bathroom, SPC DS tried
unsuccessfully to wake SSgt RC up.

     The appellant testified in his own defense. He denied ever
asking SPC DS to show him her breasts and denied attempting to
put his penis in her mouth. The appellant did, however testify
that he saw SPC DS enter the bathroom and went to assist her
because he thought she was going to be sick. According to the
appellant, SPC DS did not vomit, but stood up from the toilet,
pulled down her pants, and indicated that she wanted to have sex
with him. The appellant admitted that he had consensual sex
with SPC DS and that he was intoxicated.

     Both the appellant and SPC DS testified that after the
incident, they talked in the living room. According to SPC DS,
the appellant admitted he raped her. The appellant never
admitted in his testimony that he raped SPC DS, but rather
stated that he talked with her about his concern for any impact
on his marriage and asked if they could keep the incident
private. SPC DS woke SSgt RC after the appellant left the
living room and told him the appellant raped her.

     Additional facts necessary for the resolution of particular
assignments of error are included below.

                         Expert Witness

     The appellant’s two assignments of error both arise from
the military judge’s denial of defense expert testimony. In a

                                3
pretrial motion, the defense sought a ruling on the
admissibility of expert testimony regarding “source monitoring
error.” The defense intended for Dr. Montalbano, a forensic
psychologist, to explain the theory of source monitoring error
and its potential influence on SPC DS’s recall of the events on
25 December 2010.

     The military judge conducted a Daubert hearing to determine
the admissibility of the proffered testimony. Dr. Montalbano
testified to his qualifications as a forensic psychologist, the
materials he reviewed for the appellant’s case, and the theory
of source monitoring error. Dr. Montalbano testified that
source monitoring error is a form of memory distortion between
two events that causes “confusion about different sources of
information so that when you are recalling or trying to retrieve
a particular memory, you may be incorporating aspects of another
memory.” 4 The defense planned for Dr. Montalbano to testify
about a specific incident of non-consensual sex in SPC DS’s
history which, in Dr. Montalbano’s opinion, she possibly
confused with what the appellant argued was consensual sex with
him.

     Dr. Montalbano testified that certain factors increase the
likelihood for source monitoring error to occur, such as: (1)
the perceived similarity between two events; (2) perceptual,
visual, and emotional similarities between events; (3) gaps in
memory; and (4) age. 5 In his opinion, it was possible that
source monitoring error impacted the accuracy of SPC DS’s recall
of the incident with the appellant.

     Most importantly, Dr. Montalbano cited and explained the
case-specific factors upon which he based his opinion. Dr.
Montalbano testified that the factors included: (1) SPC DS’s
various statements indicating that the incident in her past “was
on her mind in the recent timeframe after the alleged incident”; 6
(2) her interviews with the Naval Criminal Investigative Service
during which “she talks about . . . how she is trying to piece
together and recall what happened . . . [and] she says something
to the effect at one point I blanked out”; 7 (3) SPC DS’s admitted

4
    Record at 317.
5
    Id. at 322, 328.
6
    Id. at 320.
7
    Id.


                                4
consumption of alcohol, which Dr. Montalbano explained can
distort memory; and (4) the similarities between SPC DS’s
allegation that the appellant placed his penis on her face and a
similar allegation from the past incident. Dr. Montalbano
opined “[s]o it looks like memories of what happened before are
also present with memories of what more recently occurred,” 8
referring to the allegation against the appellant. Trial
defense counsel argued that the emotional and physical
similarities between the past incident and interactions with the
appellant could have infiltrated SPC DS’s recall, and that
testimony on source monitoring error was “an integral theory as
a part of the defense of [SPC DS’s] fabrication of the
allegations.” 9

      Following the Daubert hearing, the military judge made
findings of fact and conclusions of law. He acknowledged Dr.
Montalbano’s testimony that source monitoring error is a
recognized theory in forensic psychology and that it has been
studied and published in peer-reviewed psychological journals. 10
The military judge also noted Dr. Montalbano’s professional
qualifications, his professional opinion that source monitoring
error potentially impacted SPC DS, and the factors Dr.
Montalbano identified as relevant to whether source monitoring
error impacted SPC DS. 11 Despite these findings, the military
judge ultimately concluded that the proffered expert testimony
was irrelevant and that its probative value was substantially
outweighed by the confusion and distraction it would cause to
the members, as well as the waste of time caused by the
inevitable “trial within a trial” involving the MILITARY RULE OF
EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.)
material. 12

     Furthermore, the military judge identified several
dissimilarities he found between the incident in SPC DS’s past
and the incident with the appellant, from which he concluded
that “the commonalities between the [two incidents] . . . are
not consistent with examples where source monitoring error more


8
     Id.
9
     Id. at 335.
10
     Appellate Exhibit XCIX at 4.
11
     Id. at 3-4.
12
     Id. at 8.


                                    5
likely occur [sic}” 13 – a finding in direct contradiction to Dr.
Montalbano’s expert opinion. The military judge determined that
Dr. Montalbano’s testimony lacked probative value because it
would “provide to the trier of fact only that a possibility of
source monitoring error occurred.” 14 Additionally, he cited the
fact that there was no evidence presented that SPC DS had any
“history showing episodes of source monitoring error or any
other psychotic condition” 15 as a reason the expert testimony was
irrelevant – a fact never addressed by Dr. Montalbano as
relevant or necessary to source monitoring error. The military
judge denied the appellant’s motion to admit expert testimony on
source monitoring error based on MIL R. EVID. 401 and 403.

     The appellant argues that the military judge abused his
discretion in excluding expert testimony from Dr. Montalbano.
We review a military judge’s ruling on the admissibility of
expert testimony for an abuse of discretion. United States v.
Baker, 70 M.J. 283, 287 (C.A.A.F. 2011). An abuse of discretion
occurs when: “[the military judge’s] findings of fact are
clearly erroneous, the court’s decision is influenced by an
erroneous view of the law, or the military judge’s decision on
the issue at hand is outside the range of choices reasonably
arising from the applicable facts and the law.” United States
v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008) (citations omitted).

     An expert witness may provide testimony if it “will assist
the trier of fact to understand the evidence or to determine a
fact in issue . . . .” MIL. R. OF EVID. 702. However, the
military judge has the responsibility to act as “gatekeeper” in
determining the admissibility of expert testimony. United
States v. Billings, 61 M.J. 163, 169 (C.A.A.F. 2005) (citations
omitted). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 593-94 (1993), the Supreme Court identified four
factors a judge may consider in determining the reliability of
expert testimony:

           (1) whether a theory or technique can be or has been
               tested; (2) whether the theory or technique has been
               subjected to peer review and publication; (3) the
               known or potential rate of error in using a
               particular scientific technique and the standards

13
     Id. at 7 (emphasis added).
14
     Id.
15
     Id. at 6.


                                     6
         controlling the technique’s operation; and (4)
         whether the theory or technique has been generally
         accepted in the particular scientific field.

Billings, 61 M.J. at 168.

     In addition to the Daubert factors, United States v.
Houser, 36 M.J. 392, 397 (C.M.A. 1993), also provides useful
criteria to determine the admissibility of expert testimony.
The Houser factors are:

     (A) the qualifications of the expert, Mil.R.Evid. 702;
     (B) the subject matter of the expert testimony,
     Mil.R.Evid. 702; (C) the basis for the expert
     testimony, Mil.R.Evid. 703; (D) the legal relevance of
     the evidence, Mil.R.Evid. 401 and 402; (E) the
     reliability of the evidence, United States v. Gipson,
     24 M.J. 246 (C.M.A. 1987), and Mil.R.Evid. 401; and
     (F) whether the ‘probative value’ of the testimony
     outweighs other considerations, Mil.R.Evid. 403.

     “[Appellate courts] review de novo the question whether the
military judge properly followed the Daubert framework.” United
States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999) (citation
omitted). If Daubert was properly applied, a ruling is not
overturned “unless it is ‘manifestly erroneous.’” Id.
(citations omitted). “‘[W]here the military judge places on the
record his analysis and application of the law to the facts,
deference is clearly warranted.’” United States v. Flesher, 73
M.J. 303, 312 (C.A.A.F. 2014) (quoting United States v. Downing,
56 M.J. 419, 422 (C.A.A.F. 2002)) (additional citation omitted).

     Here we need not decide whether the military judge abused
his discretion in denying the defense request for Dr.
Montalbano’s testimony because we find any error in this regard
to be harmless beyond a reasonable doubt.

     The military judge clearly articulated his understanding of
source monitoring error both verbally and in his findings of
fact and conclusions of law. In doing so, he provided
significant insight into his view that Dr. Montalbano’s
testimony concerning source monitoring error lacked probative
value in the appellant’s case. Moreover, upon the conclusion of
SPC DS’s testimony on the merits, the military judge asked SPC
DS if she believed she confused the alleged event involving the
appellant with any past incident, to which SPC DS responded


                                7
“no.” 16 The military judge noted on the record that in light of
SPC DS’s responses, he reconsidered his previous ruling on the
admissibility of source monitoring error testimony, and that it
did not change because SPC DS was “very direct and answering
quickly” 17, which affirmed his belief that her memory was not
confused.

     Even if Dr. Montalbano’s testimony may have been helpful to
members, we are confident it would not have aided the military
judge in evaluating SPC DS’s credibility. See United States v.
Rivers, 49 M.J. 434, 447 (C.A.A.F. 1998) (the court found any
error in the military judge’s decision to deny a defense expert
on the validity of eye-witness identification to be harmless
beyond a reasonable doubt because it would not have been helpful
to the military judge factfinder in that case). In the
appellant’s case, the military judge concluded “[t]he proposed
testimony from Dr. Montalbano regarding source monitoring error
is not legally relevant . . .” 18 and that the appellant’s theory
“work[ed] against the likelihood of source monitoring error
taking place here.” 19 The military judge’s ruling did not
deprive the appellant of a defense that may have tipped the
credibility balance in appellant’s favor because the factfinder
did not find the proposed expert testimony persuasive. See
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (the question
for a reviewing court “is not what effect the constitutional
error might generally be expected to have upon a reasonable
jury, but rather what effect it had upon the guilty verdict in
the case at hand.”)

     Accordingly, we find any error in excluding the proposed
expert testimony was harmless beyond a reasonable doubt and
further conclude that no error materially prejudicial to the
substantial rights of the appellant occurred.




16
     Record at 531-32.
17
     Id. at 535.
18
     AE XCIX at 8.
19
     Id. at 7.
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                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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