                                      CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                  MULLIGAN, FEBBO, and WOLE
                                    Appellate Military Judges

                               UNITED STATES, Appellant
                                             v.
                              Specialist JASON A. KOHLBEK
                               United States Army, Appellee

                                        ARMY 20160427

                                 Headquarters, Fort Stewart
                               John S. Irgens, Military Judge
                      Colonel Luis O. Rodriguez, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA 1; Barry P. Steinberg,
Esquire (argued); Lieutenant Colonel Melissa R. Covolesky, JA; Lieutenant Colonel
Christopher D. Carrier, JA; Captain Katherine DePaul, JA; Captain Cody Cheek, JA;
Barry P. Steinberg, Esquire (on brief); Lieutenant Colonel Christopher D. Carrier,
JA; Barry P. Steinberg, Esquire (Petition for New Trial and reply brief to Petition for
New Trial).

For Appellee: Captain Cassandra M. Resposo, JA (argued); Colonel Tania M.
Martin, JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on
brief); Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith, JA;
Captain Cassandra M. Resposo, JA (response to Petition for New Trial).

                                           12 April 2018

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      Specialist Jason A. Kohlbeck appeals his conviction of three specifications of
sexual abuse of a child and one specification of communicating indecent language to




1
    Corrected.
KOHLBECK—ARMY 20160427

a child. 2 In his judge alone trial, appellant was sentenced to a bad-conduct
discharge, confinement for fifteen months, and a reduction to the grade of E-1. 3
       This appeal centers on statements made by appellant after he had been
administered a polygraph test. Appellant first complains that the military judge
should have suppressed the statements as being unreliable. Second, the appellant
alleges that the military judge erred when he did not allow appellant to tell the
court-martial that his admissions only came after he was administered a polygraph.
Third we address appellant’s claim that the evidence is legally and factually
insufficient. 4

       Our review of these assignments of error is complicated by the unique
circumstances of the case. First, with regard to three of the offenses, appellant
entered an unconditional guilty plea to the conduct in question as a violation of
Article 128, UCMJ. The government then proved the greater offenses as charged.
Second, during the contested portion of the trial appellant did not directly challenge
the reliability of his confession. Indeed, the defense counsel appeared to present the
defense case under the assumption that the military judge would consider appellant’s
statements during the Care 5 inquiry and suppression motion when weighing the
evidence of appellant’s guilt.

        We find no error and therefore affirm the findings and the sentence.

                                   BACKGROUND

       Miss AH was the fourteen-year-old friend of appellant’s daughter. On the
night of 19 September 2015, Miss AH was staying at appellant’s house in his
daughter’s room. Early in the morning of 20 September, appellant entered his
daughter’s room where Miss AH was sleeping on the floor. Appellant laid down
next to Miss AH and nibbled her ear, grabbed her breast and then her buttocks, and
whispered in her ear, “Do you want me?”

      Miss AH reported appellant’s actions to her father that night. A law
enforcement investigation immediately followed.




2
 Appellant was convicted of violating Articles 120b and 134, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. §§ 920b, 934 (2012).
3
 We heard oral argument on 22 February 2018.
4
 We do not directly address appellant’s petition for a new trial or his claim that the
offenses are unreasonably multiplied. We conclude that neither warrant relief.
5
    United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).


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        All four offenses were charged as violations of Article 120b, UCMJ. All four
specifications required proof that appellant committed the act with a specific intent
(e.g. the intent to gratify his sexual desire).

       At trial and on appeal, appellant claimed that he was too drunk to form the
specific intent necessary to commit the offense. While appellant did not dispute that
he committed the actus reus of each offense, appellant denied that he was guilty of
an Article 120b, UCMJ, violation because he claimed he was too intoxicated to form
the mens rea necessary to commit the offense.

       Based on his claim of a lack of memory, appellant entered an unconditional
guilty plea, by exceptions and substitutions, to three specifications of assault
consummated by battery. In the Care inquiry, while disavowing any memory of the
offenses, appellant admitted facts necessary for the military judge to accept his
pleas. Appellant told the military judge that after having reviewed all the evidence
against him, he was convinced that he had nibbled Miss AH’s ear, grabbed her breast
and buttocks, and asked her, “Do you want me?”.

                                  A. The Statement

        After waiving his rights under Article 31, UCMJ, appellant made an initial
statement to law enforcement. Appellant then agreed to take a polygraph. The
polygraph took about four hours. After being told that his answers were deceptive,
appellant wrote a detailed sworn statement in which he admitted key incriminating
facts, including: after graduating from the Warrior Leader Course, appellant was
drinking with friends at his home; appellant’s stepdaughter and her friend, Miss AH,
were at the house and made cookies; while making cookies Miss AH was “flirting
and giggling” with him and his friends (appellant clarified that she was giving
everyone a “pouty look” and would then giggle); appellant went into his daughter’s
room and laid down next to Miss AH; appellant woke up with his hand “up [AH’s]
shirt.” The statement included the following questions and answers:

             Q: What was [AH] doing when you got into the room?

             A: She was laying down and I think she was asleep.

             ...

             Q: Earlier you mentioned that when your hand was in
             [AH]’s shirt you asked, “Do you want me?” Is that right?

             A: Yes.

             Q: So, you were aware you put your hand in her shirt?



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KOHLBECK—ARMY 20160427

             A: Yes, my hand was under her shirt and I rubbed my hand
             up.

             ...

             Q: What was your intent when you asked her [Do you
             want me?]?

             A: [S]exual.

       As mentioned above, appellant entered an unconditional guilty plea to three
specifications of touching Miss AH in violation of Article 128, UCMJ. At the
contested portion of his trial the key issue was whether appellant touched Miss AH
with a sexual intent. Appellant’s confession, especially in light of the corroborating
testimony of Miss AH, was significant proof of his intent.

      Appellant filed two motions regarding his post-polygraph statement. The first
motion argued that his statement should be suppressed under Military Rule of
Evidence [Mil. R. Evid.] 403 because the probative value of the statement was
substantially outweighed by the danger of unfair prejudice. 6 The second motion,
which was filed in the alternative, argued that if his post-polygraph statement was
admissible, then he had a constitutional right to tell the court-martial about the
circumstances under which his statement was made. Essentially, appellant argued
that Mil. R. Evid. 707, which prohibits any evidence regarding a polygraph test, was
unconstitutional as applied in this case.

                             B. The Suppression Motion

      Both appellant and the polygrapher testified at the motion hearing. Both
agreed that appellant had told the polygrapher that appellant had no memory of the
evening. Both also agreed that the polygrapher explained that for the polygraph test
to work he needed yes or no answers to questions.

       Appellant testified that he was very uncomfortable during the test. He
claimed his arm was turning purple because of a blood pressure cuff and that he had
hip pain that was “extreme.” However, he continued to agree to participate because
he “felt [he] had nothing to hide” and he “wanted to show that [he] was being honest
and truthful.” When the test was over, (and after appellant was no longer hooked up
to the polygraph), the polygrapher told appellant that the test indicated he was being
deceptive and that he was hiding something. Appellant stated that after talking for

6
  The motion also claimed that the statement was involuntary. Appellant made his
statement after waiving his Article 31(b), UCMJ, rights. Appellant does not reassert
this issue on appeal and we find the military judge was well within his discretion in
denying the defense suppression motion on this basis.


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KOHLBECK—ARMY 20160427

twenty- to twenty-five minutes, he told the agent “Fine. I did it. I will write
whatever you want. I’ll write a sworn statement to it. Just get me out of here.”
Appellant testified that he then was left alone to write the narrative portion of the
sworn statement, which was then followed by a question and answer section.

                              LAW AND DISCUSSION

    A. Was appellant’s post-polygraph statement more unfairly prejudicial than
                                   probative?

       At the suppression hearing and on appeal there are two competing factual
theories about how appellant came to write a statement in which he admitted key
inculpatory facts. Appellant claims that he has never had any memory of committing
the offenses, and that his confession is false. The alternative claim is that
appellant’s asserted lack of memory is false and that his confession correctly admits
his conduct.

       Although the military judge denied the Mil. R. Evid. 403 motion, he did not
specifically put his reasoning on the record. Nonetheless, it is clear to us that the
military judge did not err. Appellant’s assessment of the Mil. R. Evid. 403
balancing test depends entirely on the factfinder crediting his version of events.
That is, appellant’s rationale for finding his post-polygraph statement to be unfairly
prejudicial depends entirely on accepting his testimony that he had no memory of the
offense. Our superior court has explicitly rejected “‘weed[ing] out’ evidence” under
Mil. R. Evid. 403 based on the military judge’s assessment of credibility. United
States v. Gonzalez, 16 M.J. 58, 60 (C.M.A. 1983) (stating that such a ruling would
“usurp the function of the factfinder”); see generally United States v. Banker, 60
M.J. 216, 224 (C.A.A.F. 2004) (in the context of Mil. R. Evid. 412, “the judge
correctly identified credibility as an issue for the members”). The military judge
correctly determined that credibility determination should be left for the factfinder.

     B. Should appellant have been permitted to tell the court-martial about the
                                    polygraph?

      Military Rule of Evidence 707 prohibits the admission of the results of a
polygraph as well as any “reference to an offer to take, failure to take, or taking of a
polygraph examination.”

       Appellant argues that the military judge erred in prohibiting him from telling
the court-martial that his admissions were made after being subjected to a polygraph
and being told his answers were deceptive. As Mil. R. Evid. 707 clearly prohibits
this information, appellant argues that the rule is unconstitutional, at least as applied
to his case. Appellant argues that being deprived of this information misled the
factfinder about the circumstances under which he confessed.



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       Indeed, our sister court at the Navy Yard has provided some support for
appellant. In United States v. Wheeler, the accused filed a “motion in limine to
allow evidence of his polygraph examinations focused on the circumstances
surrounding the polygraph examinations and not on the specific results.” 66 M.J.
590, 592 (N.M. Ct. Crim. App. 2008). The court held that the accused in Wheeler
“was denied this right when the military judge prohibited him from presenting
factual evidence, relevant to his statement’s voluntariness and credibility, in the
form of his own testimony regarding the polygraph examinations.” Id. at 595.

       Importantly, neither appellant in this case, nor the accused in Wheeler, sought
to introduce the results of the polygraph examination for their truth. Military Rule
of Evidence 707, and as specifically affirmed by the Supreme Court in United States
v. Scheffer, 523 U.S. 303 (1998), completely bars the admissibility of polygraph test
results. Certainly, nothing in this opinion should be interpreted as challenging that
prohibition. Rather, today we address the unusual circumstance where an accused
wants to tell the court-martial that he “failed” the polygraph. Indeed, it is certain
that the accused in Wheeler (and the appellant here) did not want the court-martial to
credit the results of the test. Rather, the accused in Wheeler wanted to explain to his
court-martial the circumstances that lead to his confession.

             [T]he appellant's understanding and perception of those
             polygraph examinations are important factual matters
             related to his confession. Even though the appellant was
             unsuccessful in suppressing his confession, he still had the
             right to present relevant evidence with respect to the
             voluntariness of the statement during the trial on the
             merits.

66 M.J. at 595 (quotations omitted).

       We need not decide today whether or to what extent we would follow
Wheeler. There may be a circumstance where prohibiting an accused from
explaining the circumstances that led to his confession deprive him of due process or
amounts to a deprivation of his constitutional right to testify in his defense. In this
case, however, the defense failed to provide the factual basis to support such a
claim.

      As an initial step in our analysis, we consider the range of permissible
evidence and testimony that was unaffected by Mil. R. Evid. 707’s prohibitions on
polygraph evidence. Military Rule of Evidence 707 did not prohibit appellant from
attempting to undermine the reliability of his statement by telling the court-martial
about his age, education, intelligence, or life experience. The rule did not prohibit
appellant from explaining the length of his interview, his amount of sleep, or
whether he was provided adequate food and rest breaks. Nor did the rule prohibit
him from testifying (as he did in the suppression motion) that he was in severe pain


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KOHLBECK—ARMY 20160427

during the interrogation. Military Rule of Evidence 707 did not prohibit appellant
from telling the court-martial that: his interrogator told him that he was lying; he
was told he was prohibited from claiming a lack of memory; or he must answer
questions “yes” or “no.” Finally, the rule did not prohibit appellant from testifying,
consistent with his suppression motion testimony, that he confessed because he
wanted to end the interrogation and did not think he would be allowed to leave until
he gave law enforcement what they wanted.

       Instead, Mil. R. Evid. 707 operated to prohibit appellant from putting on two
types of evidence. First, appellant was prohibited from telling the court-martial that
he had taken a polygraph. Second, appellant was prohibited from explaining to the
court-martial the effect that having taken a polygraph (and being told he had been
deceptive) had on his decision to make admissions. It is the latter of these two that
is important. That appellant took a polygraph is irrelevant unless it has a logical
connection to appellant’s decision to make admissions. Put differently, evidence
regarding the polygraph was only conditionally relevant. It was logically relevant
only to the extent it affected his decision to confess.

       Appellant testified at the suppression motion that he confessed because he
wanted to end the interview as soon as possible. Appellant never directly claimed
that his decision to confess was related to being told the polygraph results.
Appellant made his post-polygraph statement after the test was completed, and after
a twenty- to twenty-five minute interview. Military Rule of Evidence 707 did not
prohibit appellant from testifying that he confessed because he wanted to leave.

       Critically, appellant’s stated explanation for confessing, (wanting to end the
interrogation), did not require disclosure of the polygraph testing. Or at least,
evidence that appellant took a polygraph was only tangentially relevant to
appellant’s proffered explanation for allegedly signing a false confession. Nothing
in Mil. R. Evid. 707 prohibited appellant from testifying at trial that he falsely
confessed because he wanted to end the interview. While appellant’s post-hoc
arguments on appeal could implicate the reasoning in Wheeler, we are limited to the
factual record as developed at trial.

       In other words, appellant did not specifically explain during the suppression
motion how the polygraph itself was the basis for his decision to falsely confess.
Yes, he did testify that the circumstances surrounding the polygraph test contributed
to his allegedly false confession. However, those circumstances (e.g. his claim of
hip pain) were not barred by Mil. R. Evid. 707. By contrast, the constitutional issue
would be more squarely before us had appellant testified that he falsely confessed
only because he believed the inculpatory polygraph result must be right when he
gave his answer. (E.g. “if the machine says my answers are wrong, then the opposite
of my answers must be the truth”). In such a case, the constitutional question is not
whether the accused can admit the polygraph results for their accuracy (which is


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KOHLBECK—ARMY 20160427

clearly prohibited) but rather whether Mil. R. Evid. 707 can operate to bar an
appellant from explaining the voluntariness and reliability of his statement.

      Accordingly, we hold that Mil. R. Evid. 707 was not unconstitutionally
applied in appellant’s case.

                                C. Factual Sufficiency

       As discussed above, appellant pleaded guilty to three specifications of assault
consummated by battery. A contested trial then occurred as the government
attempted to prove the sexual offenses as they had been charged. The contested
portion of the trial focused on whether appellant was too drunk to form the specific
intent to gratify his lust when he, e.g., nibbled on AH’s ear and grabbed her breast
and buttocks.

       In his brief, appellant argues that someone who is drunk to the point of
blacking out cannot form the specific intent to commit an offense. We think this
likely incorrect. Evidence that someone is blackout drunk is certainly evidence that
the person is highly intoxicated. However, we reject a per se conclusion such a
person cannot form a specific intent to gratify sexual desire. During the contested
portion of the trial, which is the part of the trial we are concerned with in our factual
sufficiency review, there was overwhelming evidence that appellant formed the
required intent.

        Here, the acts themselves belie an obvious specific sexual intent. Miss AH
testified, consistent with appellant’s admitted confession, that appellant touched her
breast under her bra and then moved his hand to her pelvic area and touched her
buttocks. She said appellant nibbled on her ear for over a minute, that she couldn’t
leave because he was holding her back, and that appellant said to her, “Do you want
me?” It is hard to attribute appellant’s actions to anything other than the specific
intent to gratify his sexual desire.

       Appellant did not testify or offer direct evidence that he was in a blackout or
that he was too drunk to form a specific intent. An accused’s intent may nonetheless
be proven by circumstantial evidence. See Dep’t of Army, Pam 27-9, Legal
Services, Military Judges’ Benchbook, para. 7-3 n.2 (10 Sep. 2014).

       Several witnesses testified about appellant’s pre- and post-offense drunken
demeanor. Appellant was described as leaning against walls and slurring his speech.
The defense also elicited that a military police officer had heard that appellant’s
blood alcohol level was 0.165. The defense called an expert witness who testified
that blackouts do not occur below a blood alcohol level of 0.15 but can, depending
on the person, occur above that level. The expert further opined that appellant’s
blood alcohol level was around 0.21 at the time of the offense.



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KOHLBECK—ARMY 20160427

      But, appellant’s own expert agreed that persons in a blackout state can still
form specific intents. Thus, even assuming that there was sufficient circumstantial
evidence to infer appellant was blacked out, this would not directly answer the
question of whether appellant was so drunk as to be unable to form a specific intent.

       After having reviewed the entire record, we find the evidence legally and
factually sufficient in all regards. 7


7
 We note one final issue regarding the sufficiency of the evidence during the
contested portion of the trial.

During the case on the merits, appellant’s defense counsel appears to have believed
that appellant’s statements made during the Care inquiry would be considered by the
court-marital in determining appellant’s guilt to the contested offenses. For
example, the defense counsel moved to admit evidence in reliance on the
presumption that appellant’s Care inquiry statements were part of the evidentiary
record. In responding to a government objection, the defense made the following
argument: “The defense position on that is that [] a statement that has been taken,
has been entered into evidence in this trial, [and] will be considered by Your Honor
during deliberations. . . .” The defense counsel further argued that the Care inquiry
“is evidence that will be considered by Your Honor on the merits.” In the closing
argument, the defense counsel likewise referred to facts and “evidence” that had
been introduced during the Care inquiry but had not been introduced during the
contested portion of the trial. The military judge did not correct the defense
counsel.

However, we see no error warranting relief for several reasons.

First, appellant never specifically moved to have his Care statements admitted
during the contested portion of the trial. Accordingly, we need not decide whether
Mil. R. Evid. 410, which prohibits admitting Care inquiry statements “against” the
accused is applicable in light of our superior court’s case law that has specifically
stated an intent to not apply the rule strictly. United States v. Barunas, 23 M.J. 71,
76 (C.M.A. 1986) (Judge Sullivan argued for “enforce[ing] the military expansion of
the rule” and against “[a]n excessively formalistic or technical approach to [Mil. R.
Evid. 410]”); United States v. Anderson, 55 M.J. 182, 184 (C.A.A.F. 2001)
(“Accordingly, we apply the broad interpretation of Mil. R. Evid. 410 adopted in
[United States v. Vasquez, 54 M.J. 303, 304 (C.A.A.F. 2001)] as necessary to carry
out the policy underlying the Rule”); United States v. Grijalva, 55 M.J. 223, 228
(C.A.A.F. 2001). Nor need we address whether the defense admitting an accused’s
statements from a Care inquiry during the merits portion of the trial is hearsay. See
Mil. R. Evid. 801(c)(1) (definition of hearsay does not include testimony made “at
the current trial”).
                                                                        (continued . . .)


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KOHLBECK—ARMY 20160427

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:




                                      MALCOLM H.
                                      MALCOLM     H. SQUIRES,
                                                     SQUIRES, JR.
                                                               JR.
                                      Clerk of
                                      Clerk of Court
                                               Court




(. . . continued)
Second, we invited appellant to file a supplemental assignment of error if he
determined that a claim of ineffective assistance was warranted. Appellant declined.


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