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

                                 Before
                F.D. MITCHELL, J.A. FISCHER, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         BEAU T. MARTIN
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201400315
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 17 April 2014.
Military Judge: LtCol E.A. Harvey, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: LT Carrie Theis, JAGC, USN; LT Jacqueline
Leonard, JAGC, USN.
For Appellee: Maj Suzanne Dempsey, USMC; Capt Matthew
Harris, USMC.

                              18 June 2015

     ---------------------------------------------------
                     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 general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his plea, of one
specification of wrongful sexual contact in violation of Article
120(m), Uniform Code of Military Justice, 10 U.S.C. § 920(m)
(2007). The appellant was acquitted of the greater offense of
aggravated sexual assault as well as two specifications of
wrongful sexual contact, in violation of Articles 120(c) and
120(m), UCMJ, 10 U.S.C. §§ 920(c) and 920(m) (2007). The
members sentenced the appellant to be reduced to pay-grade E-1
and a bad-conduct discharge. The convening authority approved
the sentence as adjudged.

      The appellant now raises four assignments of error (AOE):
(1) the military judge erred by instructing the members that
wrongful sexual contact was a lesser included offense (LIO) of
aggravated sexual assault; (2) the military judge erred by
permitting human lie detector testimony; (3) the military judge
erred by permitting the utilization of MILITARY RULE OF EVIDENCE 413,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) to argue that the
appellant had a general propensity to commit sexual crimes based
only upon the charges before the court martial; and, (4) the
evidence is legally and factually insufficient to support a
conviction. 1

     After carefully considering the record of trial and the
parties’ pleadings, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     CI enlisted in the Marine Corps in February 2011 and
reported to her first command as a private first class (PFC) in
August of 2011. 2 The appellant was her platoon sergeant and
direct supervisor at that command. A few weeks after she
arrived, the appellant invited PFC CI to a party in his honor to
be held at the on-base home of a staff sergeant (SSgt). CI
arrived at the party with her husband, Marine Corporal (Cpl) AI
and consumed alcohol throughout the evening, eventually becoming
intoxicated.

     As the party wound down, PFC CI and her husband went to
sleep in a bed in the SSgt’s spare bedroom. The appellant and
several others went to sleep on the floor of the same bedroom.
PFC CI claims she woke later that night to the appellant

1
  AOE #3 is without merit. See United States v. Bass, __ M.J. __, No.
201400229 (N.M.Ct.Crim.App. 27 May 2015). AOE #4 is also without merit.   See
United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
2
  At the time of trial PFC CI was a lance corporal, but will be referred to as
PFC CI throughout this opinion.
                                      2
kneeling on the floor next to her with his finger inside of her
vagina. When PFC CI rolled away from the appellant and
unsuccessfully attempted to wake her husband, the appellant left
the room.

     The next morning, PFC CI and her husband went home.
Although PFC CI told her husband about the assault approximately
a week later, she did not report the assault to authorities.
Instead, over a year later, PFC CI informed a female Marine co-
worker about the assault. That co-worker reported the assault
to the command and an investigation ensued. 3 Additional facts
necessary to resolve the assigned errors are included below.

                                 Discussion

     The appellant first argues that the military judge erred by
instructing the members that they could find the appellant
guilty of wrongful sexual contact as an LIO of aggravated sexual
assault. The Government responds that the appellant knowingly
waived any challenge to the applicability of the LIO by
specifically requesting the LIO instruction. We concur with the
Government.

     Specification 1 of the Charge alleged that the appellant
committed an aggravated assault by “digitally penetrating [PFC
CI’s] vagina with his finger, by causing bodily harm upon her,
to wit: touching her vagina with his hand.” At trial, the
military judge requested input from the parties as to whether
wrongful sexual contact was an LIO of the charged offense.
Although the trial counsel objected to an instruction on the LIO
of wrongful sexual contact, the defense specifically requested
the instruction, both in writing and in response to the military
judge’s question on the subject:

      ADC: [A]s far as the [LIO] under the (sic)
      Specification 1 . . . I believe that [testimony] puts
      in issue everything else for the members. They should
      be allowed to consider the full plethora of the
      charges, from the most severe to the least, ma’am.




3
  The Government also alleged that, while at the party, the appellant
unlawfully touched PFC CI’s buttocks, as well as the buttocks of another
female PFC, forming the basis of the two wrongful sexual contact
specifications of which the appellant was acquitted.


                                      3
         MJ: Okay. All right. So you do believe that the
         evidence raises the possibility of . . . wrongful
         sexual contact . . . under Specification 1?

         ADC: Yes ma’am. While it may be, you know, far
         afield, we believe that the members should at least
         have that option, ma’am. We don’t believe that’s
         actually the way the members may sit, but I do believe
         the evidence has raised it.

         MJ: Okay. All right. I will go ahead then and
         instruct on [that LIO]. 4

     The military judge then instructed the members that
wrongful sexual contact was an LIO of the charged offense and
that, to find the appellant guilty of the LIO, they must be
convinced beyond a reasonable doubt that “the accused engaged in
sexual contact, to wit: Touching her vagina with his hand, with
[CI]; that such sexual contact was without the permission of
[CI]; and That such sexual contact was wrongful.” 5 Following
deliberations, the members convicted the appellant of only this
LIO.

                                Waiver

     Under the Fifth and Sixth Amendments to the U.S.
Constitution, the accused has the right to “‘receive fair notice
of what he is being charged with.’” United States v. Gaskins,
72 M.J. 225, 232 (C.A.A.F. 2013) (quoting United States v.
Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011)). However, while there
is a “presumption against the waiver of constitutional rights,”
United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F 2008)
(citation and internal quotation marks omitted), the appellant
may waive the right to raise such issue on appeal provided it is
“‘clearly established that there was “an intentional
relinquishment or abandonment of a known right . . .”’” id.
(quoting Brookhart v. Janis, 384 U.S. 1, 4 (1966) (additional
citation omitted)).

     “‘The determination of whether there has been an
intelligent waiver . . . must depend, in each case, upon the
particular facts and circumstances surrounding that case[.]’”
United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In this
4
    Record at 659.
5
    Id. at 667.
                                   4
case, we have little difficulty concluding that the appellant
waived his right to challenge the LIO instruction on appeal.
First, we note that the appellant’s defense counsel were on
ample notice of the issue. Military jurisprudence regarding how
to determine LIOs was well-settled at the time of the
appellant’s trial. See United States v. Girourd, 70 M.J. 5,9
(C.A.A.F. 2011) (where the Court of Appeals for the Armed Forces
(CAAF) announced that “[i]n determining the whether an offense
is an LIO, this court applies the elements test.”) Moreover, at
the time of trial, the Manual for Courts Martial contained
cautionary language that: “[t]he elements of the proposed [LIO]
should be compared with the elements of the greater offense to
determine if the elements of the lesser offense are derivative
of the greater offense[.]” Art 120e, UCMJ (2007).

     Finally, the defense specifically requested the LIO
instruction over the Government’s objection. Knowledge of the
settled law regarding LIOs coupled with a specific request for
the LIO instruction after discussing the issue on the record
convinces us that the appellant waived his right to challenge
the LIO instruction on appeal.

                          Human Lie Detector

     The appellant next claims that the military judge erred by
“permitting [Cpl AI] to offer human lie-detector testimony.”
While we agree that admission of the testimony was obvious
error, we hold it was not prejudicial.

     The appellant’s defense at trial was that PFC CI’s
allegations were false. The Government called Cpl AI, who
testified, inter alia, that he and his wife were at the party
and sleeping in the bed on the night in question. During cross-
examination of Cpl AI, the defense elicited the following
testimony implying that Cpl AI doubted his wife’s version of
events:

        Q: Okay. You don’t remember anyone else getting into
        that same bed with you that night, do you?
        A: No, sir. 6

        . . . .




6
    Id. at 472.


                                  5
        Q: [S]he didn’t tell you the next morning that
        anything happened that night, did she?
        A: No, sir. 7

        . . .

        Q: And you initially thought that maybe she imagined
        it?
        A: I just – I was kind of in disbelief.

        Q:   You thought maybe she dreamed it?
        A:   Something like that, sir, yes.

        Q: The story didn’t really make too much sense to
        you?
        A: I just figured that if something like that would
        have happened then . . . where was I in this . . .
        [i]f something like that were to happen to me, sir, I
        would – I would have stopped it or done something,
        like, instantly, sir.
        . . .

        Q: [A]t no point after [she told you about the
        assault], you never went and reported it to anyone,
        did you?
        A: I honestly . . . it’s not like I didn’t believe
        her, sir. But it, kind of, it didn’t make too much
        sense to me . . . .

        Q: Okay. So you weren’t entirely convinced that this
        happened then?
        A: No, sir.

        Q:   And you told NCIS that?
        A:   Yes, sir. 8

        On redirect, the following colloquy took place:

        Q: Now, you just told the defense counsel that you
        had your doubts?
        A: Yes, sir.

        Q:   You do believe your wife, though, correct?

7
    Id. at 474.
8
    Id. at 474-75.


                                       6
        A:   I do, sir.

        Q:   And she’s telling the truth?
        A:   She is, sir.

        Q: And why do you think that?
        A: The way . . . that it’s affected her, the way that
        she’s changed, the way that its affected our marriage
        – the way that its negatively impacted us just as a
        family – we have two kids, we have three dogs, and
        she’s just depressed. And I understand that a mother
        is, obviously, is stressed out from all that,
        especially with me deploying again. But even on good
        days, she’ll just snap sometimes. And just the way
        that its affected her, something as big as it had on
        her wouldn’t have happened over a small situation,
        sir. 9

     Neither party objected to the above testimony. We review a
military judge's decision to admit evidence for an abuse of
discretion. United States v. Kasper, 58 M.J. 314, 318 (C.A.A.F.
2003). Where an appellant did not preserve the issue by making
a timely objection, that error will be forfeited in the absence
of plain error. United States v. Knapp, 73 M. J. 33, 36
(C.A.A.F. 2014) (citing United States v. Brooks, 64 M.J. 325,
328 (C.A.A.F. 2007) and MIL. R. EVID. 103 (d)) (additional citation
omitted). Plain error is established if: (1) there was error;
(2) the error was clear or obvious; and (3) the error was
materially prejudicial to the appellant's substantial rights.
Knapp, 73 M.J. at 36.

A.     There is error

     “Human lie detector testimony” has been defined as “an
opinion as to whether [a] person was truthful in making a
specific statement regarding a fact at issue in the case.”
United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003). CAAF
has been “resolute in rejecting the admissibility of so-called
human lie detector testimony[.]” Knapp, 73 M.J. at 36 (internal
quotation marks and citations omitted). This is so since such
testimony from a lay witness exceeds the limits of permissible
character evidence governed by MIL. R. EVID. 608 (evidence of
character, conduct, and bias of witness), exceeds the scope of
the witnesses knowledge, in violation of MIL. R. EVID. 701(opinion
testimony by lay witnesses), and usurps the fact-finder’s

9
    Id. at 480.
                                    7
exclusive function to weigh evidence and determine credibility.
See Kasper, 58 M.J. at 315. “The prohibition applies not only
to expert testimony, but also to conclusions as to truthfulness
offered by a nonexpert.” Id. See also United States v.
Petersen, 24 M.J. 283, 284 (C.M.A. 1987) (“We are skeptical
about whether any witness could be qualified to opine as to the
credibility of another.”). The admission of “human lie
detector” testimony is error, regardless of which party offers
it.

B. The error was clear or obvious

     “In determining whether the error was clear or obvious, we
look to law at the time of the appeal.” Knapp, 73 M.J. at 37
(citations omitted). As the law regarding admission of human
lie detector testimony is well-settled, this error was clear or
obvious. Id. 10

C. The error was not prejudicial

     An obvious error materially prejudices the substantial
rights of the accused when it has “an unfair prejudicial impact
on the [court members’] deliberations.” Knapp, 73 M.J. at 37
(internal quotation marks and citations omitted). Here, we find
no such impact.

     From legal precedent, we discern several, nonexclusive
factors relevant to an assessment of whether “human lie
detector” testimony was prejudicial: (1) the role of the
Government counsel in initiating or furthering objectionable
testimony (Kasper, 58 M.J. at 314); (2) the role of the defense
counsel, particularly if it appears the defense initiated the
testimony for strategic reasons (United States v. Schlamer, 52
M.J. 80 (C.A.A.F. 1999)); (3) the defense's failure to object or
request cautionary instructions (United States v. Halford, 50
M.J. 402 (C.A.A.F. 1999)); (4) whether the witness has been
asked for specific conclusions or their opinion about the truth
or falsity of another's statements or allegations, or about
whether a crime occurred (United States v. Anderson, 51 M.J. 145

10
  We are aware that the inadmissible opinion testimony originated with the
defense during cross-examination. We are also aware of the “invited
response” or “invited reply” doctrine, which permits the prosecution to offer
comment or testimony as a fair response to claims made by the defense. See
United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). See also United
States v. Lewis, 69 M.J. 379, 384 (C.A.A.F. 2011) (“limitation on comments
cannot be used by the defense as both a shield and a sword.”) (citations
omitted). However, this doctrine does not obviate the error.
                                      8
(C.A.A.F. 1999); United States v. Birdsall, 47 M.J. 404
(C.A.A.F. 1998); United States v. Marrie, 43 M.J. 35 (C.A.A.F.
1995)); (5) whether the testimony in question is on a central or
peripheral matter (Kasper, 58 M.J. at 314; United States v.
Robbins, 52 M.J. 455 (C.A.A.F. 2000); Birdsall, 47 M.J. at 404);
(6) whether the trial was before members or by military judge
alone (Robbins, 52 M.J. at 455; United States v. Raya, 45 M.J.
251 (C.A.A.F. 1996)); and (7) the remedial action, if any, taken
by the military judge. United States v. Eggen, 51 M.J. 159
(C.A.A.F. 1999). See United States v. Jones, 60 M.J. 964, 969
(A.F.Ct.Crim.App. 2005). While the trial was before members and
while Cpl AI was asked specifically whether he believed his wife
was lying – the central issue in this case – we are not
convinced that the error had an unfair prejudicial impact on the
member’s deliberations.

     First, any prejudice was mitigated by testimony, elicited
by the defense, that PFC CI was not truthful. This testimony
came in several forms, including: the testimony elicited by the
defense from Cpl AI that he initially did not believe his wife;
testimony from members of PFC CI’s command implying that she had
been less than honest about her medical issues while on active
duty; and the opinion of SSgt S’s that PFC CI’s truthfulness was
“questionable in nature” 11 and that she had made a “false
allegation” of sexual assault against him. 12 Second, we are
doubtful that testimony from Cpl CI that he believed his wife
had a significant impact on the members’ deliberations. Third,
the defense, perhaps recognizing its role in the error, neither
objected nor requested a curative instruction.

     Finally, although the military judge did not “issue prompt
cautionary instructions to ensure that the members do not make
improper use of such testimony," Knapp, 73 M.J. at 36 (quoting
Kasper, 58 M.J. at 315), she did provide the standard
instruction to the members that they had the “duty to determine
the believability of the witnesses.” 13 For these reasons, we
find the appellant was not prejudiced by the erroneous admission
of “human lie detector” testimony.




11
     Id. at 594.
12
     Id. at 597.
13
     Id. at 676.
                                9
                           Conclusion

     The findings and sentence as approved by the convening
authority are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               10
