       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                 Mario I. LOPEZ, Sergeant
                United States Army, Appellant
                          No. 16-0487
                    Crim. App. No. 20140973
           Argued January 10, 2017—March 20, 2017
  Military Judges: Wade N. Faulkner and Kenneth W. Shahan
   For Appellant: Captain Timothy G. Burroughs (argued);
   Colonel Mary J. Bradley, Lieutenant Colonel Melissa R.
   Covolesky, and Major Christopher D. Coleman (on brief);
   Captain Jennifer K. Beerman.
   For Appellee: Captain Jennifer A. Donahue (argued); Colo-
   nel Mark H. Sydenham, Lieutenant Colonel A. G. Courie
   III, and Major Melissa Dasgupta Smith (on brief).
   Judge STUCKY delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges RYAN and
   OHLSON joined. Judge SPARKS filed a separate opin-
   ion concurring in part and dissenting in part.
                       _______________

   Judge STUCKY delivered the opinion of the Court.

    Appellant is challenging his convictions for indecent lib-
erties with a child and rape, arguing that each conviction
was prejudiced by a different inadmissible statement from a
Government witness. We hold that Appellant cannot estab-
lish material prejudice with respect to his conviction for
rape, but that his indecent liberties conviction was preju-
diced by improper testimony. We therefore reverse only Ap-
pellant’s conviction for indecent liberties with a child, set-
ting aside the sentence and returning the record to the
Judge Advocate General of the Army with authorization for
a rehearing.
                     I. Procedural History

   At a general court-martial with an officer panel, Ser-
geant (SGT) Mario I. Lopez was convicted, contrary to his
              United States v. Lopez, No. 16-0487/AR
                      Opinion of the Court

pleas, of indecent liberties with a child, and rape, in viola-
tion of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2007). He was acquitted of aggra-
vated sexual assault and forcible sodomy. The panel ad-
judged and the convening authority approved the following
sentence: a dishonorable discharge, confinement for five
years, forfeiture of all pay and allowances, and reduction to
the lowest enlisted grade. The United States Army Court of
Criminal Appeals (CCA) summarily affirmed the findings
and sentence. United States v. Lopez, No. 20140973 (A. Ct.
Crim. App. Apr. 5, 2016).
                          II. Discussion

    Because Appellant is challenging two distinct convic-
tions, we will discuss the facts and arguments for each speci-
fication separately.
                   A. The Rape Specification
1. Facts
    For the rape specification, the Government put on four
central witnesses: the victim (Appellant’s wife CL), CL’s
children (NM and JDM), and the doctor who conducted the
sexual assault examination.
    CL testified that she married Appellant in 2001. But in
July 2010, she informed SGT Lopez that, due to ongoing
marital issues, she would no longer engage in sexual rela-
tions with him. This stance continued for months.
    On the day of the assault, April 17, 2011, Appellant told
CL that if she “didn’t perform sexually for him, he would
have to stop treating [her] like a lady.” That night in bed,
SGT Lopez “started pulling [CL] close to him, not gently, but
strongly.” CL “reminded him . . . that he knows . . . what’s
happening between us, that you know . . . we’re not doing
this,” but “he wasn’t listening” and began touching CL’s vag-
inal area and breasts.1 After an interlude in which CL re-
treated to the bathroom to “to try to collect [herself]” and
then returned, Appellant resumed his advances, followed CL

   1  CL testified that Appellant’s finger penetrated her vagina,
but the panel acquitted Appellant of the specification alleging this
conduct.



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out of the bed, and pushed her upper body back onto it, hold-
ing her down face-first. Despite CL’s repeated attempts to
escape, Appellant then had sex with her vaginally.2
   The next day, CL performed “a Google search on the
computer about spousal rape.” She reported the rape to
Chaplain Dillard, and then to a victim advocate, before un-
dergoing a medical examination performed by Major Wil-
liams. It was stipulated that Appellant’s DNA was found in-
side of CL. Major Williams recounted that CL told him a
substantially identical version of her in-court testimony, and
described her demeanor as “teary eyed, as if she was in
shock, and just teary eyed . . . a flat effect face.” Major Wil-
liams observed red marks that looked like finger marks on
CL’s right shoulder, a scratch on her left upper back, a
scratch on her right lower back, and bruising on her inner
thigh.
    JDM, CL’s son and Appellant’s stepson, testified that the
night of April 17, 2011, stood out in his mind. He heard “cry-
ing and moaning” coming from his mother’s room, and stat-
ed that the noises “were sad noises.”
    NM, CL’s daughter and Appellant’s stepdaughter, testi-
fied that she walked past the bedroom and heard CL say
“get off me.” On the day after the assault, as NM was using
CL’s computer, she discovered CL’s Internet search history.
She testified:
       my brother was on the computer, and he asked me
       if my mom had ever—had asked me whether I
       heard anything last night, and so we were wonder-
       ing why she had asked him that, and I got on the
       computer. I was watching my shows, and I deleted
       my history, because I know my mom doesn’t like
       me watching shows on her computer, so I saw when
       I was deleting my history that she had been looking
       up spousal rape sites, like how to deal with it, who
       to go to, and so I gathered that Mario [Appellant]
       had probably raped her by the evidence that I
       found that day.



   2  CL also claimed that Appellant’s penis “slightly” penetrated
her anus, but the panel acquitted Appellant of this specification as
well.



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                      Opinion of the Court

NM explained that she “just kind of put two and two togeth-
er” even before CL told her, later in the day, what had “real-
ly happened.” Appellant did not object to any of this testi-
mony.
2. Analysis
    Appellant argues that NM’s statement “I gathered that
[Appellant] had probably raped her” was erroneously admit-
ted because it was human lie detector testimony, impermis-
sible lay witness opinion, and an opinion regarding the ulti-
mate issue of guilt or innocence. However, we need not reach
these questions. Appellant never objected to this testimony,
and when “an appellant has forfeited a right by failing to
raise it at trial, we review for plain error.” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Appellant thus
“has the burden of establishing (1) error that is (2) clear or
obvious and (3) results in material prejudice to his substan-
tial rights.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F.
2014); see also United States v. Dominguez Benitez, 542 U.S.
74, 82 (2004) (“the burden of establishing entitlement to re-
lief for plain error is on the defendant claiming it”).
“[F]ailure to establish any one of the prongs is fatal to a
plain error claim.” United States v. Bungert, 62 M.J. 346,
348 (C.A.A.F. 2006). Here, Appellant cannot establish mate-
rial prejudice.
    In this context, material prejudice to the substantial
rights of the accused occurs when an error creates “an unfair
prejudicial impact on the [court members’] deliberations.”
Knapp, 73 M.J. at 37 (alteration in original) (internal quota-
tion marks omitted) (citation omitted). In other words, the
appellant “must show a reasonable probability that, but for
the error, the outcome of the proceeding would have been
different.” Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016) (internal quotation marks omitted) (cita-
tion omitted).
   The Government had a very strong case, including (a)
CL’s direct testimony to the event, (b) physical evidence, in-
cluding marks of struggle on CL’s right shoulder, back, and
inner thigh, and Appellant’s DNA inside of CL, (c) Appel-
lant’s two stepchildren testifying to “sad noises” and “get off
me” coming from the bedroom, (d) CL’s immediate reporting



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                       Opinion of the Court

of the assault to a chaplain, a victim advocate, and a medical
examiner, and (e) CL’s searches for “spousal rape” on the In-
ternet the next day. All of this evidence was properly admit-
ted for the panel’s consideration. The defense case was rela-
tively weak, as defense counsel conceded that sex had
occurred, but argued that CL had fabricated the rape allega-
tion and that the evidence supporting it did not stack up. In
view of the Government’s overwhelming evidence, NM’s tes-
timony that Appellant “probably raped” CL touched on an
obviously material question, but was of only passing signifi-
cance. Ultimately, we conclude that Appellant has failed to
establish that the challenged testimony had “‘an unfair
prejudicial impact on . . . deliberations.’” Knapp, 73 M.J. at
37 (quoting United States v. Powell, 49 M.J. 460, 463
(C.A.A.F. 1998)). Appellant thus fails to establish material
prejudice.
       B. The Indecent Liberties with a Child Specification
1. Facts
    The evidence supporting Appellant’s second conviction
consisted entirely of the testimony of two witnesses. CL’s
minor son JM3 testified that when he lived with CL and Ap-
pellant in Korea, Appellant introduced him to pornography,
and he and Appellant would watch it together “maybe at
most once a week, maybe twice a month, three times a
month . . . [m]aybe forty or fifty, maybe at most sixty times
over the course I lived with [Appellant].” JM testified that
the pornography included vaginal, oral, and anal sex, and
the number of participants would vary from two or three up
to “about six girls, three guys.” He explained that “[Appel-
lant] said not to tell my mom or my brother or sister, be-
cause it was a thing between me and him.”
    CL testified that she discovered JM looking at pornogra-
phy on her computer. When she heard JM’s explanation that
Appellant had introduced him to pornography, she decided
to confront Appellant over the phone “to find out what was
going on.” The challenged testimony then followed, as CL
recounted JM’s confrontation with Appellant:

   3  JM should not be confused with JDM, an older son who testi-
fied on the rape specification about hearing “sad noises.”



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                      Opinion of the Court

      [CL]: …[I]t took several minutes of [JM] insisting,
      recounting events of what had happened and say-
      ing you remember you did this with me, and so fi-
      nally Sergeant Lopez started calming down and
      acting like he was going towards admission.
      Q: What does that mean to you, acting?
      [CL]: Well, in the sense where it kind of ended with
      him saying [JM] if I did anything wrong, then I—
      you know, I apologize, and I knew from living with
      him, instead of coming out and saying yes, I did
      this and I was wrong—
      DC: Objection.
      MJ: Basis?
      DC: Human lie detector testimony.
      MJ: I’m going to overrule the objection based on the
      witness’s interactions with the accused as husband
      and wife.
      ….
      Q: And to you after ten years of marriage, what did
      that mean?
      [CL]: That meant that he was loosely admitting
      guilt without coming out and saying it, because he
      said things like that to me before.
      Q: The accused had said things like that to you be-
      fore?
      [CL]: Yes, so I knew what that meant, and that was
      the thing I needed to know, because I really was
      trying to feel out who was telling the truth here. I
      wanted to get to the bottom of it and resolve this
      with my son.
2. Analysis
    Because Appellant preserved this error with a timely ob-
jection, we review the military judge’s admission of this evi-
dence not for plain error, but for abuse of discretion. United
States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007). We con-
clude that CL’s testimony constituted human lie detector
testimony, and accept the Government’s concession that it
was also inappropriate lay opinion testimony.
    Human lie detector testimony is “an opinion as to wheth-
er [a] person was truthful in making a specific statement re-



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                     Opinion of the Court

garding a fact at issue in the case.” Knapp, 73 M.J. at 36 (in-
ternal quotation marks omitted) (quoting Brooks, 64 M.J. at
328). Even without an express statement to this effect, tes-
timony may still be excluded as the functional equivalent of
human lie detector testimony where “the substance of the
testimony leads the members to infer that the witness be-
lieves the victim is truthful or deceitful with respect to an
issue at trial.” United States v. Martin, 75 M.J. 321, 324
(C.A.A.F. 2016); accord Brooks, 64 M.J. at 329 (“the expert
should not be permitted to give testimony that is the func-
tional equivalent of saying that the victim in a given case is
truthful or should be believed”).
    In isolation, CL’s statement that Appellant was “loosely
admitting guilt without coming out and saying it,” might
present a difficult question under our human lie detector ju-
risprudence, because the sentence does not explicitly ad-
dress the truth or falsity of Appellant’s alleged confession.
But CL’s next sentence removed all doubt: “so I knew what
that meant, and that was the thing I needed to know, be-
cause I really was trying to feel out who was telling the truth
here.” (Emphasis added.)
    By explaining her truth-seeking aim in interpreting Ap-
pellant’s apology as an admission, CL in effect testified that
JM was “telling the truth here,” and that Appellant was
truthful in “loosely admitting guilt” but not in denying JM’s
allegations. Her opinion bolstered JM’s credibility, and ques-
tioned Appellant’s claims of innocence. This violates the core
prohibition on human lie detector testimony. See Knapp, 73
M.J. at 36. Such testimony “is inadmissible at a court-
martial . . . because it is a ‘fundamental premise of our crim-
inal trial system [that] ‘the [panel] is the lie detector’ and
‘[d]etermin[es] the weight and credibility of witness testimo-
ny.’” Martin, 75 M.J. at 325 (alterations in original) (cita-
tions omitted). We conclude that the military judge abused
his discretion in admitting this evidence.
    Furthermore, we accept the Government’s concession
that CL’s testimony fails to satisfy the standards for admis-
sion of a lay opinion. Lay opinion testimony is only admissi-
ble if (1) the opinion is rationally based on the witness’s per-
ception; and (2) the opinion is “‘helpful either to an
understanding of the testimony of the witness on the stand


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                     Opinion of the Court

or to the determination of a fact in issue.’” United States v.
Byrd, 60 M.J. 4, 7 (C.A.A.F. 2004) (quoting United States v.
Cox, 633 F.2d 871, 875 (9th Cir. 1980)). When “facially co-
herent communications” are at issue, no lay interpretation
will be helpful or admissible, unless the proponent “‘estab-
lish[es] a foundation that call[s] into question the apparent
coherence of the conversation so that it no longer seem[s]
clear, coherent, or legitimate.’” Id. (quoting United States v.
Garcia, 291 F.3d 127, 142 (2d Cir. 2002)). The Government
now concedes that Appellant’s statement—“if I did anything
wrong, then I—you know, I apologize”—was a facially coher-
ent communication.
    “Having determined that the military judge abused his
discretion, we must now determine whether this error re-
sulted in material prejudice to Appellant’s substantial
rights.” United States v. Barnett, 63 M.J. 388, 397 (C.A.A.F.
2006) (citing Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000)).
“We evaluate prejudice from an erroneous evidentiary ruling
by weighing (1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999).
    If CL’s inadmissible interpretation is removed, the Gov-
ernment’s case wholly consisted of (1) JM’s testimony and (2)
the admissible portion of CL’s testimony, which recounted
Appellant denying JM’s claims and apologizing “if [he] did
anything wrong.” Although the defense case merely cast
doubt on JM’s account,4 it is the explosive nature of the er-
ror itself that ultimately decides the question. In the panel’s
mind, CL’s inadmissible testimony may well have trans-
formed Appellant’s noncommittal apology into a material
admission and a validation of JM’s story, as interpreted by
JM’s mother, Appellant’s wife of ten years. Given the highly
persuasive effect that this type of lie detector testimony

    4 The defense case largely consisted of defense counsel asking

the panel whether it was “reasonable” to think that Appellant
could “spend over a hundred hours . . . watching porn with his
stepson and no one notices.”




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            United States v. Lopez, No. 16-0487/AR
                    Opinion of the Court

would likely have on a panel, we cannot conclude that the
error was harmless.
                       C. Conclusion
    Appellant’s conviction for indecent liberties with a child
was prejudiced by CL’s inadmissible testimony, but his con-
viction for rape was not so prejudiced.
                       III. Judgment

    The judgment of the United States Army Court of Crimi-
nal Appeals is reversed with respect to Specification 3 of
Charge I, and the sentence. The findings of guilty as to that
offense and the sentence are set aside. The judgment is af-
firmed as to the approved findings of guilty for Specification
1 of Charge I. The record is returned to the Judge Advocate
General of the Army, and a rehearing is authorized.




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             United States v. Lopez, No. 16-0487/AR


   Judge SPARKS, concurring in part and dissenting in
part.
      I agree with the majority that NM’s testimony was
not prejudicial for the reasons cited. I also agree that CL’s
testimony qualified as improper lay opinion and arguably
impermissible human lie detector testimony. However, I
part with the majority as to whether CL’s improper testimo-
ny materially prejudiced Appellant’s substantial rights.
        As stated by the majority, prejudice resulting from an
erroneous evidentiary ruling is determined by weighing the
Kerr factors: “(1) the strength of the Government’s case, (2)
the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999). Here, I conclude that this erroneously admitted evi-
dence lacked any real quality, that the Government’s case
was strong enough, and the defense case was less so. CL tes-
tified that Appellant stated, while on the phone with herself
and JM, that “if I did anything wrong, then … you know, I
apologize.” To my mind, this is essentially an admission of
guilt that certainly required no further interpretation by CL.
My reading of the statement is that Appellant was not leav-
ing open the question whether he had watched pornography
with his minor stepson or not, but rather leaving open for
question whether or not engaging in this conduct with his
minor stepson was wrong. In other words, Appellant was es-
sentially saying, “If what we were doing can be considered
wrong, then I apologize.” Thus, the members were likely to
reach the conclusion that Appellant was admitting to having
watched pornography with JM, regardless of what CL might
have added through her testimony.
        In addition, the Government’s case on these charges
was strong. JM’s testimony about the numerous times he
and Appellant watched pornography together was full of the
sort of specific detail that could credibly lead the members to
convict. Finally, on this record I cannot conclude the mem-
bers found convincing defense counsel’s insinuation that JM
invented the story of watching pornography with his stepfa-
ther and stuck with that story throughout the trial simply in
order to deflect his mother’s anger. Therefore, given the
strength of the Government’s case and what little CL’s tes-
timony added, CL’s improperly admitted testimony could not
have prejudiced Appellant’s case. Accordingly, I respectfully
concur in part and dissent in part.
