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

                                Before
           F.D. MITCHELL, K.M. MCDONALD, M.C. HOLIFIELD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        TREVER E. SMITH
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201400106
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 22 November 2013.
Military Judge: LtCol E.A. Harvey, USMC.
Convening Authority: Commanding Officer, 9th Communication
Battalion, I Marine Expeditionary Force Headquarters Group,
I Marine Expeditionary Force, FMFPAC, Camp Pendleton, CA .
Staff Judge Advocate's Recommendation: Col M.D. Nafus,
USMC.
For Appellant: LT Jessica L. Fickey, JAGC, USN.
For Appellee: CDR Mary Grace McAlevy, JAGC, USN; Maj Crista
D. Kraics, USMC.

                            21 August 2014

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                     OPINION OF THE COURT
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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 panel of officer and enlisted members sitting as a
special court-martial convicted the appellant, contrary to his
pleas, of making a false official statement and two
specifications of larceny, in violation of Articles 107 and 121,
Uniform Code of Military Justice, 10 U.S.C. §§ 907 and 921. The
members sentenced the appellant to confinement for 4 months,
forfeiture of $1,010.00 pay per month for 4 months, reduction to
pay grade E-1, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged and, except for
that part of the sentence extending to a bad-conduct discharge,
ordered it executed.

     The appellant asserts three assignments of error: (1) that
the record is not substantially verbatim, thus precluding
approval of a punitive discharge; (2) that the admission of
“human lie detector” testimony was plain error; and, (3) that
his conviction is legally and factually insufficient.1

     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings as to
Charge I and its sole specification and Specification 1 of
Charge II must be set aside due to the improper admission of
human lie detector testimony coupled with the military judge’s
failure to instruct the members to disregard it. However, we
also conclude the finding as to Specification 2 of Charge II is
free of any error materially prejudicial to the substantial
rights of the appellant. In light of the serious nature of the
sole remaining specification and other factors, we conclude that
the penalty landscape has not dramatically changed, and reassess
the sentence. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     The appellant and Lance Corporal (LCpl) RP were barracks
roommates from December 2010 to 17 June 2011. During that time,
appellant had access to, and on several occasions used with
permission, LCpl RP’s Toshiba laptop computer. On 26 May 2011,
$2,500.00 was transferred from LCpl RP’s Navy Federal Credit
Union (NFCU) account to the appellant’s NFCU account. When
confronted, the appellant did not admit to effecting the
transfer, but agreed to pay LCpl RP back.

     On 17 June 2011, the appellant and his new wife moved to an
off-base apartment. On 28 June 2011, LCpl RP returned to his

1
  This last issue is raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).


                                      2
barracks room to find the door kicked in and his Toshiba laptop
missing.

     On 26 September 2011, another $2,500.00 was transferred
from LCpl RP’s NFCU account to the appellant’s NFCU account.
This transfer was effectuated electronically using a certain
internet protocol (IP) address. This IP address was associated
with the appellant’s email address in both May and September
2011. The appellant and his wife contacted LCpl RP and offered
to assist him in working with NFCU to reverse the transfer.
NFCU was able to return the funds to LCpl RP’s account.

     On the same day as the second transfer, someone using the
same IP address accessed LCpl RP’s myPay account, changed the
password, and edited the direct deposit information to reflect
the appellant’s NFCU account number. In October 2011, LCpl RP’s
two military paychecks were deposited to the appellant’s NFCU
account. These deposits were later reversed.

     On 5 January 2012, someone used a different IP address to
access LCpl RP’s myPay account, this time altering the direct
deposit information to reflect the NFCU account of a civilian
contractor working in Afghanistan. The contractor, upon
learning of the erroneous deposit to his account, directed NFCU
to return the funds to their rightful owner.

     The appellant’s bank and credit card account records for
the period April to November 2011 reflect chronic financial
issues, including repeated overdraft charges. The same was true
of his wife’s finances.

     When interviewed by Naval Criminal Investigative Service
(NCIS) Special Agent (SA) W, the appellant denied owning any
computers. However, a subsequent search of the appellant’s
apartment located three laptop computers, including LCpl RP’s
missing Toshiba laptop. The agents found LCpl RP’s laptop on a
closet shelf. Later analysis showed the Toshiba laptop had not
been accessed since the date LCpl RP reported it stolen.

     Forensic analysis of one of the other seized computers
revealed cached webpages evidencing a failed attempt to change
LCpl RP’s debit card PIN. The cached webpages also included


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copies of LCpl RP’s NFCU bank statements and the 26 May 2011
transfer from LCpl RP’s NFCU account to the appellant’s account.

     During a 15 May 2012 interview at NCIS, the appellant told
SA W that he purchased the Toshiba laptop from a third party in
the barracks parking lot; he did not mention there being any
witnesses to the transaction. At trial, the defense presented
testimony from an alleged eyewitness to the laptop transaction,
as well as testimony of the appellant’s wife to corroborate that
the transaction took place. The appellant’s sister-in-law, MA,
also testified to seeing LCpl RP in the appellant’s apartment on
several occasions, during which visits LCpl RP rummaged through
drawers and used the appellant’s computer. Despite being
certain of her memory of these visits, MA had not mentioned
these events in her previous statement to NCIS.

     In response to direct examination regarding the appellant’s
explanation of how he obtained the Toshiba laptop, SA W stated,
“Well, I felt like it was a lie.”2 Defense counsel did not
object and the military judge did not provide a limiting
instruction sua sponte. On cross-examination regarding the same
issue, SA W stated, “He was lying about a lot of things.”3
Again, there was no objection or limiting instruction.

     Prior to the court closing for deliberations, the military
judge instructed the members regarding false exculpatory
statements and provided the standard instruction on witness
credibility. No specific mention was made of SA W’s assertions
that the appellant was lying. The military judge did not
provide a “human lie detector” instruction.

     Additional pertinent facts are provided as necessary to
discuss the appellant’s assignments of error.

                         Verbatim Record

     Completeness of a record of a trial is reviewed de novo.
United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000).
Throughout the transcript of trial counsel’s rebuttal argument
are more than 70 instances where his words are transcribed as

2
    Record at 332.
3
    Id. at 361.
                                4
“[inaudible]”. Article 54(c)(1)(B), UCMJ, requires a complete
record of the proceedings and testimony be prepared in each
special courts-martial case in which the sentence adjudged
includes a punitive discharge. RULE FOR COURTS-MARTIAL
1103(b)(2)(B) and (c)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), further require that such records of trial contain
“verbatim” transcripts of all sessions except sessions closed
for deliberation and voting.

     The Court of Appeals for the Armed Forces and its
predecessor have long held that Article 54 requires only that
transcripts be “substantially verbatim.” United States v.
Lashley, 14 M.J. 7, 8 (C.M.A. 1982). Furthermore,
“[i]nsubstantial omissions from a record of trial do not raise a
presumption of prejudice or affect that record’s
characterization as a complete one.” Henry, 53 M.J. at 111.
“[I]f the record is sufficiently complete to permit reviewing
agencies to determine with reasonable certainty the substance
and sense of the . . . argument, then prejudice is not present.”
United States v. Nelson, 13 C.M.R. 38, 42 (C.M.A. 1953). “When
the omissions are so unimportant that the thought being
expressed is readily ascertainable, then the record can be said
to be verbatim.” Id.

     Here, any inaudible portions appear, at most, to be only a
few words long. Also, Appellate Exhibit LII, containing the
slides used by trial counsel during his rebuttal argument,
provides a clear map of the argument. Despite the high number
of inaudible words in the transcript, we are certainly able to
ascertain the thoughts trial counsel expressed. Therefore, we
find the transcript to be substantially verbatim, and the
assignment of error to be without merit.

                  “Human Lie Detector” 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)); MILITARY RULE OF EVIDENCE
103(d), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Plain
                                  5
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.

     Admission of “human lie detector” testimony is error.
United States v. Whitney, 55 M.J. 413, 415 (C.A.A.F. 2001).
This rule has been underscored by subsequent cases, including
Kasper, 58 M.J. at 315, defining “human lie detector testimony”
as “an opinion as to whether [a] person was truthful in making a
specific statement regarding a fact at issue in the case,” and
Knapp, 73 M.J. at 36-37. While the present case differs from
Kasper and Knapp in that SA W’s statements were not “presented
as a physiological conclusion,” Kasper, 58 M.J. at 319, and SA W
was not offered as an expert in techniques designed to “divine a
suspect’s credibility from his physical reactions to the
questioning,” Knapp, 73 M.J. at 37, the Court of Appeals for the
Armed Forces has not made such methodical or scientific bases a
requirement for a statement to qualify as “human lie detection.”
A simple statement indicating the investigator believed the
subject to be lying is enough. See Whitney, 55 M.J. at 415
(finding error where special agent testified he felt appellant
had not been truthful in answering his questions).

     Improper human lie detector testimony can be remedied
through proper instructions by the military judge; the issue of
whether the members were properly instructed is a question of
law, which we review de novo. Kasper, 58 M.J. at 318-20. “If a
witness offers human lie detector testimony, the military judge
must 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). This was not done
here.

     Accordingly, we find the admission of SA W’s statements,
combined with the military judge’s failure to issue a timely
cautionary instruction, to be error.

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


                                  6
lie detector testimony is well-settled, this error was clear or
obvious. Id.

C.   The error is prejudicial.

     Like in Kasper and Knapp, the improper testimony here was
initiated by the prosecution, and went to a central issue in the
case. The statement about which SA W opined that the appellant
was lying is the very statement alleged to be false in Charge I.
Also, SA W’s testimony was focused on the appellant’s proffered
explanation of how he obtained the laptop, impacting the element
of “wrongfulness” of the alleged larceny.

     The Government’s evidence, extremely strong regarding the
appellant’s guilt to the larceny of funds, was substantially
weaker regarding the theft of LCpl RP’s laptop. While there was
evidence the appellant had used LCpl RP’s laptop in the past,
there was no evidence to indicate the laptop was visually
distinguishable from any other Toshiba laptop. The Government’s
own expert testified the laptop had not been accessed since the
day it was stolen, so there was no way for the appellant to know
the computer’s owner by its contents. Also, a defense witness
testified to observing the parking lot transaction that the
appellant described.

     We find that even though the military judge instructed the
members that they were the sole determiners of witness
credibility, we have no means to determine what weight the
members gave to SA W’s testimony. Accordingly, we cannot find
that it did not prejudice a material right of the appellant.
United States v. Petersen, 24 M.J. 283, 285 (C.M.A. 1987). We
do find, however, no prejudice regarding Specification 2 of
Charge II, given the extensive evidence indicating the
appellant’s guilt.

                   Legal and Factual Sufficiency

     Having dealt with Charge I and its specification and
Specification 1 of Charge II, we limit our examination of this
final assignment of error to Specification 2 of Charge II. We
review questions of legal and factual sufficiency de novo.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The test for legal sufficiency is whether any rational trier of

                                 7
fact could have found that the evidence met the essential
elements of the charged offenses beyond a reasonable doubt,
viewing the evidence in a light most favorable to the
Government. United States v. Turner, 25 M.J. 324 (C.M.A. 1987).
The test for factual sufficiency is whether we are convinced of
the appellant's guilt beyond a reasonable doubt, allowing for
the fact that we did not personally observe the witnesses. Id.
at 325. Here, we find in the affirmative on both tests.

     The record contains ample evidence upon which the members
based their finding of guilt: (1) appellant had opportunity to
access LCpl RP’s personal information; (2) the funds were
transferred to the appellant’s NFCU account; (3) screen shots
from the appellant’s computer show access to LCpl RP’s NFCU and
myPay accounts; (4) LCpl RP’s accounts were accessed from
appellant’s IP address; (5) the timing of the direct deposit
sent to the account of the civilian in Afghanistan – occurring
soon after appellant’s interview with SA W – strongly suggests
it was done to direct suspicion away from the appellant; (6) the
appellant’s abysmal financial situation; (7) the appellant’s
statement to SA W that there were no computers at appellant’s
apartment; and, (8) allegations regarding LCpl RP’s presence at
appellant’s apartment, obviously critical to the investigation,
were uniformly and suspiciously late in coming to light.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable trier of fact
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record and having made allowances for not having personally
observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt.

                        Sentence Reassessment

     In reassessing the sentence pursuant to United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), and United States v.
Sales, 22 M.J. 305 (CMA 1986), we find as follows: (1) the
maximum punishment for the offenses before the court members was
the jurisdictional limit of a special court-martial, and the
findings of this court, setting aside two specifications and a

                                8
charge, do not change this; (2) the remaining offense of which
the appellant stands convicted is serious, involving complex
efforts required to steal electronically thousands of dollars –
including monthly pay - from a fellow Marine; (3) the remaining
offense is by far the most serious of the three originally
alleged; (4) nearly all of trial counsel’s closing argument
focused on the theft of funds; (5) trial counsel did not mention
the stolen laptop or false statement in his sentencing argument;
(6) throughout the presentation of its case, it was clear the
Government believed the laptop theft was a part of the
appellant’s scheme to steal funds from his former roommate; and,
(7) removing the laptop theft and related false denial does
nothing to mitigate the seriousness of the appellant’s actions.
Accordingly, we find that, absent any error, the sentence would
have been of at least the same severity as the one awarded by
the court, and no change to the adjudged sentence is required.

                           Conclusion

     The findings of guilty as to Charge I and its specification
and as to Specification 1 of Charge II are set aside and Charge
I and its specification and Specification 1 of Charge II are
dismissed. The remaining finding and the sentence as approved
by the CA are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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