        This opinion is subject to revision before publication



          UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                           Appellee
                              v.
                Jason A. KOHLBEK, Specialist
                 United States Army, Appellant
                           No. 18-0267
                      Crim. App. No. 20160427
       Argued November 6, 2018—Decided February 25, 2019
                 Military Judge: John S. T. Irgens
   For Appellant: Lieutenant Colonel Christopher Daniel Car-
   rier (argued); Barry Steinberg, Esq. (on brief); Captain Co-
   dy Donovan Cheek.
   For Appellee: Captain Brian Jones (argued); Colonel Ste-
   ven Haight, Lieutenant Colonel Eric K. Stafford, and Major
   Virginia Tinsley (on brief); Captain Jeremy S. Watford.
   Judge RYAN delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges OHLSON,
   SPARKS, and MAGGS, joined.
                    _______________

   Judge RYAN delivered the opinion of the Court.
    A military judge sitting as a general court-martial con-
victed Appellant, contrary to his pleas, of three specifica-
tions of sexual abuse of a child and one specification of com-
municating indecent language to a child, in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920b (2012). 1 He was sentenced to confinement for
fifteen months, reduction to E-3, and a bad-conduct dis-
charge. 2 The convening authority approved the sentence.



   1 The complicated procedural history that preceded the court-
martial’s conviction for these offenses is detailed infra pp. 3–5.
   2 The ACCA opinion indicates that Appellant was sentenced to
a reduction to the grade of E-1, United States v. Kohlbek, No.
ARMY 20160427, 2018 CCA LEXIS 177, at *1–2, 2018 WL
1779325, at *1 (A. Ct. Crim. App. Apr. 12, 2018) (unpublished),
            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

   The United States Army Court of Criminal Appeals
(ACCA) affirmed the findings and the sentence as approved
by the convening authority. Kohlbek, 2018 CCA LEXIS 177,
at *2–3, 2018 WL 1779325, at *1. We granted Appellant’s
petition to review the following issue:
       Whether the military judge erred by misconstruing
       Mil. R. Evid. 707 and prohibiting Appellant from
       presenting evidence relevant to Appellant’s post-
       polygraph statement.

   Military Rule of Evidence (M.R.E.) 707 provides that:
       Notwithstanding any other provision of law, the re-
       sults of a polygraph examination, the opinion of a
       polygraph examiner, or any reference to an offer to
       take, failure to take, or taking of a polygraph exam-
       ination, shall not be admitted into evidence.

    The military judge and the ACCA construed M.R.E. 707’s
language (“or any reference to . . . taking of a polygraph”) to
prohibit the introduction of any evidence regarding the facts
or circumstances involving a polygraph examination offered
to explain a later confession—even without reference to the
results. While that is a possible reading of the rule, it is not
a necessary reading of the rule. Moreover, it is not a rule fol-
lowed in any federal district court, it is not a rule with any
military purpose assigned to it, and it is not a rule dictated
by the Supreme Court’s decision in United States v. Scheffer,
523 U.S. 303 (1998).
    Accordingly, interpreting M.R.E. 707 in line with
ordinary rules of statutory construction and the “rules of
evidence generally recognized in the trial of criminal cases
in the United States district courts,” Article 36(a), Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 836(a) (2012),
we hold that the prohibition on “any reference to . . . [the]
taking of a polygraph examination,” does not encompass
evidence regarding the facts and circumstances of a
polygraph examination procedure offered to explain the
reason or motivation for a confession. See, e.g., Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988); Crowell v. Benson, 285
U.S. 22, 62 (1932).


but the convening authority action indicates that the reduction
was to the grade of E-3.



                                2
           United States v. Kohlbek, No. 18-0267/AR
                     Opinion of the Court

   However, we also hold that the military judge’s error in
excluding evidence about the circumstances of the polygraph
examination in this case did not have “a substantial influ-
ence on the findings.” See United States v. Fetrow, 76 M.J.
181, 187 (C.A.A.F. 2017) (quoting United States v. Gunkle,
55 M.J. 26, 30 (C.A.A.F. 2001)). The decision of the United
States Army Court of Criminal Appeals is affirmed.
                     I.    Facts
    On September 19, 2015, Appellant’s stepdaughter, KG,
had her fourteen-year-old friend, AH, at their house for a
sleepover. AH and KG went to sleep in KG’s room. Sometime
after midnight Appellant entered that room, nibbled on AH’s
ear, grabbed her breast and buttocks, and asked her, “Do
you want me?” AH pulled away from Appellant and woke up
KG. Appellant left and AH locked the door “[s]o [Appellant]
couldn’t come back in the room.” Appellant returned some-
time later and, although initially unable to get back into the
room, he eventually unlocked the door. This prompted AH to
ask KG if she could go home, and KG agreed to walk her
part of the way there. AH immediately reported the incident
to her father and a criminal investigation ensued.
    After waiving his right to remain silent under Article 31,
UCMJ, 10 U.S.C. § 831 (2012), Appellant made an initial
statement to law enforcement and agreed to submit to a pol-
ygraph examination, which lasted four hours. When the ex-
amination concluded, law enforcement told Appellant that
his answers indicated deception. Appellant subsequently
drafted a detailed statement regarding his conduct, stating
that on the night in question, AH was flirting with him, that
he consumed several alcoholic beverages, entered her bed-
room, and put his hand under her shirt. When asked what
his intent was when he asked AH “Do you want me?,” he an-
swered that it was “sexual.”
    As a result of these events, Appellant was charged with
four specifications of sexual abuse of a child, violations of
Article 120b, UCMJ, 10 U.S.C. § 920b (2012). Appellant
pleaded guilty to three specifications of the lesser included
offenses of assault consummated by battery on a child under
the age of sixteen, violations of Article 128, UCMJ, 10 U.S.C.
§ 928 (2012).




                              3
              United States v. Kohlbek, No. 18-0267/AR
                        Opinion of the Court

   The case was heard by a military judge sitting as a gen-
eral court-martial. During the Care 3 inquiry, Appellant indi-
cated that he was “highly intoxicated” at the time of the al-
leged offenses and was “[un]aware of what [he] did or what
[he] could have done.” However, he admitted the facts neces-
sary for the military judge to accept his guilty pleas as to the
three Article 128, UCMJ, specifications.
   The Government then proceeded to trial to prove the
greater offense and specifications thereunder of Article 120b,
UCMJ, which requires specific intent. Kohlbek, 2018 CCA
LEXIS 177, at *2–3, 2018 WL 1779325, at *1. As relevant to
the granted issues, prior to trial, Appellant filed a motion in
limine, arguing that he should be permitted, pursuant to his
Sixth Amendment right to present a defense, to introduce
evidence relating to the polygraph to explain the circum-
stances of his post-polygraph confession. At the hearing on
the motion:
         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 con-
         tinued 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 de-
         ceptive and that he was hiding something. Appel-
         lant stated that after talking for twenty- to twenty-
         five minutes, he told the agent “Fine. I did it. I will
         write whatever you want. I’ll write a sworn state-
         ment to it. Just get me out of here.” Appellant testi-
         fied that he then was left alone to write the narra-
         tive portion of the sworn statement, which was
         then followed by a question and answer section.

Kohlbek, 2018 CCA LEXIS 177, at *6–7, 2018 WL 1779325,
at *2.
    Appellant further testified that: (1) he was told that he
could only answer “yes” or “no” to the polygrapher’s ques-
tions even though he did not remember the events he was
asked about; (2) that sitting still during the polygraph exam-
ination was painful because of his hip issues; (3) that he was


   3   United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).



                                   4
            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

“visibly in discomfort during the interrogation due to pain
caused by hip issues”; and (4) that the polygrapher indicated
that if Appellant “continued to say that [he had no recollec-
tion of the events in question], that he would have to hook
[Appellant] back up to the machine, and . . . go more rounds
[on the polygraph].”
    The military judge denied the motion, citing M.R.E. 707
and Scheffer, and convicted Appellant, contrary to his pleas,
of four specifications of Article 120b, UCMJ. 4
              II.    Procedural History
   On appeal to the ACCA, Appellant argued, inter alia,
that the military judge erred when he did not allow Appel-
lant to tell the court-martial that the polygraph examination
was the source of his significant pain and discomfort that
purportedly led to his admissions, and that his admissions
only came after he was administered a polygraph and told
his answers were deceptive. In response, the ACCA noted
that “[M.R.E.] 707 clearly prohibits this information,”
Kohlbek, 2018 CCA LEXIS 177, at *8–9, 2018 WL 1779325,
at *3, and that it barred two types of evidence that Appel-
lant wanted to introduce:
       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.

Id. at *11–12, 2018 WL 1779325, at *4. Finally, the ACCA
essentially concluded that no information related to Appel-
lant’s decision to confess necessitated mention of the poly-
graph because he could have permissibly testified that he
confessed because he wanted to leave, had hip pain, and
wanted to end the interview, all without reference to the
polygraph. Thus, M.R.E. 707 “was not unconstitutionally

   4  Appellant also moved to suppress his confession entirely. The
military judge denied his motion on the basis that the Govern-
ment “sufficiently established that the statement [of Appellant] is
reliable as a matter of law and was voluntarily made.”



                                5
            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

applied in appellant’s case.” Id. at *14, 2018 WL 1779325, at
*5.
                   III.   Discussion
    For purposes of construing the Military Rules of Evi-
dence, “ ‘[i]t is a well established rule that [this Court uses]
principles of statutory construction.’ ” United States v. Mat-
thews, 68 M.J. 29, 36 (C.A.A.F. 2009) (quoting United States
v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007)). We review ques-
tions of statutory construction de novo. United States v.
Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016). Where the lan-
guage of the rule is susceptible to only a single interpreta-
tion, we apply the rule as written. See Hartford Underwrit-
ers Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6
(2000) (“[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposition re-
quired by the text is not absurd—is to enforce it according to
its terms.” (citations omitted) (internal quotation marks
omitted)). But where the language is susceptible to more
than one interpretation, we can and may consider whether
one interpretation or the other creates potential constitu-
tional or other issues. See Panama Refining Co. v. Ryan, 293
U.S. 388, 439 (1935) (Cardozo, J., dissenting) (“[W]hen a
statute is reasonably susceptible of two interpreta-
tions . . . the court prefers the meaning that preserves to the
meaning that destroys.”).
   M.R.E. 707 provides that:
       Notwithstanding any other provision of law, the re-
       sults of a polygraph examination, the opinion of a
       polygraph examiner, or any reference to an offer to
       take, failure to take, or taking of a polygraph exam-
       ination, shall not be admitted into evidence.

   The question here is how broadly the prohibition on evi-
dence of “any reference to . . . [the] taking of a polygraph ex-
amination” sweeps. The prohibition can be read as a blanket
per se prohibition on introducing any evidence that refer-
ences a polygraph examination in any way. Kohlbek, 2018
CCA LEXIS 177, at *9–11, 2018 WL 1779325, at *3–5. Al-
ternatively, it can be read as an exclusion of evidence refer-
encing taking a polygraph that implicates the reliability of
the results of a polygraph. United States v. Wheeler, 66 M.J.
590, 592–95 (N–M. Ct. Crim. App. 2008). Because there are
two plausible interpretations of this language, this Court
may consider whether one of the interpretations creates any


                                6
             United States v. Kohlbek, No. 18-0267/AR
                       Opinion of the Court

constitutional or other problems. See Edward J. DeBartolo
Corp., 485 U.S. at 575 (1988) (“[T]he Court will construe the
statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.”).
    We do not undertake this inquiry in a vacuum. Rather,
we view it through the dual lenses of the Supreme Court’s
decision in Scheffer and the limitations on the President’s
ability to make rules of evidence contained in Article 36(a),
UCMJ. On balance, we are unpersuaded by the Govern-
ment’s arguments that the rule sweeps so broadly as to per
se prohibit evidence about the facts and circumstances about
a polygraph examination procedure offered to explain the
reason or motivation for a confession and that the issue in
this case is controlled by Scheffer.
               A. Statutory Interpretation
    The prohibition on “any reference to . . . [the] taking of a
polygraph examination” must be understood in the context
of the entire rule. See United Sav. Ass’n of Tex. v. Timbers of
Inland Forest Assoc., Ltd., 484 U.S. 365, 371 (1988) (“Statu-
tory construction . . . is a holistic endeavor.”). M.R.E. 707
lists three categories of polygraph examination information
that may not be admitted into evidence: (1) the results; (2)
the polygraph examiner’s opinion; and (3) “any reference to
an offer to take, failure to take, or taking of a polygraph ex-
amination.” The prohibition on evidence of the results of a
polygraph examination is the clear target of this rule, and
the remaining prohibitions are calibrated to exclude evi-
dence that would permit panel members to infer, or other-
wise draw conclusions about, the results of a polygraph ex-
amination. All these prohibitions are tied to the core concern
that polygraph examinations are scientifically unreliable. 5
Evidence of the facts and circumstances of a polygraph ex-
amination procedure offered to explain the reason or motiva-
tion for a confession are in no way tied to the reliability of
the test itself. We thus adopt the more narrow interpreta-
tion of “reference to . . . [the] taking of a polygraph examina-
tion,” which permits military judges to exercise their discre-

   5 The majority opinion in Scheffer recognized that the drafters
of M.R.E. 707 cited concerns regarding the scientific reliability of
polygraph examination results, usurping the role of the panel
members in adjudging guilt or innocence, and avoiding litigation
on collateral issues as justification for the rule. Scheffer, 523 U.S.
at 309 n.5.



                                  7
            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

tion in deciding whether to admit evidence regarding the
facts and circumstances surrounding a polygraph examina-
tion to explain the reason or motivation for a confession.
    This interpretation of the relevant language in M.R.E.
707 is further supported by two additional canons of con-
struction: (1) the “constitutional doubt” canon, and (2) the
“presumption of validity” canon. Under the former, statutes
“should be interpreted in a way that avoids placing [their]
constitutionality in doubt.” Antonin Scalia & Bryan A. Gar-
ner, Reading Law: The Interpretation of Legal Texts 247
(2012). Interpreting M.R.E. 707 as broadly as the Govern-
ment suggests would raise a potentially serious constitu-
tional question. In Scheffer, the Government justified the
prohibition of the results of the polygraph exam on concerns
regarding the scientific reliability of polygraph results. The
Court determined that this was a permissible rather than an
arbitrary interest. Scheffer, 523 U.S. at 309 (observing that
there is “unquestionably . . . a legitimate interest in ensur-
ing that reliable evidence is presented to the trier of fact in a
criminal trial”).
    In contrast, here no justification is offered by the Gov-
ernment for a rule preventing Appellant from referencing
the polygraph examination, and the painful circumstances
surrounding it, to explain the reason for his confession.
While rules may permissibly exclude relevant evidence, they
may not be “arbitrary or disproportionate to the purposes
they are designed to serve.” Id. at 308 (internal quotation
marks omitted). No purpose is identified here, and the Gov-
ernment’s interpretation could infringe upon “weighty” Fifth
Amendment due process and Sixth Amendment concerns.
Crane v. Kentucky, 476 U.S. 683, 690–91 (1986) (permitting
state to exclude competent, reliable evidence regarding the
circumstances of a confession violated defendant’s rights to
due process and to present a complete defense).
    The latter canon also counsels that we interpret M.R.E.
707 more narrowly than the Government requests. Unsur-
prisingly, under the “presumption of validity” canon, an in-
terpretation of a statute or rule that renders it valid is pref-
erable to an interpretation that would invalidate the rule.
Scalia & Garner, Reading Law, at 66. Reading M.R.E. 707
as broadly as the text might allow would likely exceed the
scope of President’s authority under Article 36, UCMJ. See
infra pp. 9–11. However, reading the statute to only cover
“references” to polygraph exams that implicate the result, or


                               8
             United States v. Kohlbek, No. 18-0267/AR
                       Opinion of the Court

the reliability of the test would be well within the Presi-
dent’s authority under Article 36, UCMJ. See infra pp. 9–11.
               B. United States v. Scheffer
   Further, the Government’s argument that M.R.E. 707
must be read to prohibit the admission of any evidence re-
garding a polygraph for any reason reads the Supreme
Court’s decision in Scheffer too broadly. In Scheffer, the Su-
preme Court addressed the question whether M.R.E. 707’s
prohibition on admitting evidence of polygraph results im-
posed a constitutionally impermissible barrier on a defend-
ant’s Sixth Amendment right to present a defense. 523 U.S.
at 308–09. The Court held that this portion of the rule was
not an arbitrary or disproportionate restriction on a defend-
ant’s right to present evidence, in violation of the Sixth
Amendment, because it was a legitimate means of prohibit-
ing scientifically unreliable evidence. Id. at 312.
    That holding, which involved a defendant’s ability to in-
troduce evidence of the results of a polygraph examination or
evidence that assumes the reliability of such results, turned
on the unreliability of the test itself under Daubert v. Mer-
rell Dow Pharm., Inc., 509 U.S. 579 (1993). See Scheffer, 523
U.S. at 305–06. It neither answers nor controls the altogeth-
er different question whether M.R.E. 707 prohibits any men-
tion of the fact or circumstances surrounding a polygraph for
any purpose. 6 The scientific reliability of Appellant’s poly-
graph test is irrelevant to his purpose in introducing the ev-
idence in question—explaining the context in which his con-
fession was made. The reasons justifying a per se ban on the
introduction of the results of polygraph examinations,
Scheffer, 523 U.S. at 309–11, are not present here.
                   C. Article 36, UCMJ
    Moreover, the Government’s interpretation of M.R.E. 707
yields other problematic consequences. Whether a rule
promulgated by the President is consistent with his authori-
ty under Article 36, UCMJ, is a question of statutory con-
struction, which this Court reviews de novo. United States v.
Nerad, 69 M.J. 138, 141–42 (C.A.A.F. 2010). Under Article
36(a), UCMJ, the President may, “so far as he considers

   6  We further note that adopting the Government’s interpreta-
tion of the rule would require resolution of the constitutional issue
raised in Scheffer as it relates to the remainder of the rule and the
facts of this case.



                                 9
            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

practicable,” prescribe regulations for courts-martial that
“apply the principles of law and the rules of evidence gener-
ally recognized in the trial of criminal cases in the United
States district courts, but which may not be contrary to or
inconsistent with this chapter.”
    There is no counterpart to M.R.E. 707 in either the Fed-
eral Rules of Evidence (Fed. R. Evid.) or the Federal Rules of
Criminal Procedure. Scheffer, 523 U.S. at 323 (Stevens, J.,
dissenting). However, consistent with M.R.E. 707, the re-
sults of polygraph tests are generally inadmissible in U.S.
district courts, after applying Fed. R. Evid. 702 and Daubert,
alone or in conjunction with Fed. R. Evid. 403, due to their
perceived scientific unreliability. See, e.g., United States v.
Tenorio, 809 F.3d 1126, 1130 (10th Cir. 2015); United States
v. Montgomery, 635 F.3d 1074, 1094 (8th Cir. 2011)); United
States v. Rodríguez-Berríos, 573 F.3d 55, 73 (1st Cir. 2009).
As Scheffer recognized, a rule permitting a per se ban on un-
reliable evidence in the military justice system is neither an
arbitrary nor a disproportionate restriction on a defendant’s
Sixth Amendment right to present evidence in his defense.
Scheffer, 523 U.S. at 312.
    But it is not the practice in U.S. district courts—
generally or otherwise—to flatly prohibit evidence about the
facts and circumstances about a polygraph examination pro-
cedure offered to explain the reason or motivation for a con-
fession. See, e.g., United States v. Blake, 571 F.3d 331, 346
(4th Cir. 2009) (“[T]estimony concerning a polygraph exami-
nation is admissible where it is not offered to prove the truth
of the polygraph result but is instead offered for a limited
purpose such as rebutting a defendant’s assertion that his
confession was coerced.” (quoting United States v. Allard,
464 F.3d 529, 534 (5th Cir. 2006)). Rather, those evidentiary
decisions are made on a case-by-case basis and reviewed for
an abuse of discretion. See id. at 348 (finding no abuse of
discretion in the district court’s ruling that Fed. R. Evid. 403
did not prohibit the admission of the evidence of the context
of the polygraph examination). Under the Government’s in-
terpretation, then, the President would not have applied
“the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States
district courts.” Article 36(a), UCMJ.
    The presence of a unique military concern could make
following the federal practice regarding the admission of ev-
idence surrounding polygraph examinations impracticable


                              10
            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

and justify a divergent rule. Scheffer, 523 U.S. at 323 (Ste-
vens, J., dissenting); see also United States v. Scheffer, 44
M.J. 442, 445 (C.A.A.F. 1996), rev’d on other grounds by 523
U.S. 303 (1998). But no such military concern is obvious
here, and the Government was unable to provide anything
other than generalized concerns about the low reliability of
polygraph evidence and the collateral problems associated
with its use as evidence. Neither of those concerns is ger-
mane when it is the circumstances of the polygraph exami-
nation offered to explain a confession, rather than the re-
sults and scientific reliability, that are implicated.
                      D. Prejudice
    A military judge’s decision to exclude evidence is re-
viewed for an abuse of discretion. United States v. Jasper, 72
M.J. 276, 279 (C.A.A.F. 2013). “A military judge abuses his
discretion if his findings of fact are clearly erroneous or his
conclusions of law are incorrect.” United States v. Olson, 74
M.J. 132, 134 (C.A.A.F. 2015) (internal quotation marks and
citations omitted). This Court reviews “ ‘the prejudicial effect
of an erroneous evidentiary ruling de novo.’ ” United States
v. Savala, 70 M.J. 70, 77 (C.A.A.F. 2011) (quoting United
States v. Toohey, 63 M.J. 353, 358 (C.A.A.F. 2006)). Given
our interpretation of M.R.E. 707, the military judge “operat-
ed under an erroneous view of the law.” United States v.
Hills, 75 M.J. 350, 355 (C.A.A.F. 2016).
    Article 59(a), UCMJ, provides that the “finding or sen-
tence of a court-martial may not be held incorrect on the
ground of an error of law unless the error materially preju-
dices the substantial rights of the accused.” 10 U.S.C.
§ 859(a) (2012). For nonconstitutional evidentiary errors, the
test for prejudice “is whether the error had a substantial in-
fluence on the findings.” Fetrow, 76 M.J. at 187 (citation
omitted). In conducting the prejudice analysis, this Court
weighs: “(1) the strength of the Government’s case, (2) the
strength of the defense case, (3) the materiality of the evi-
dence in question, and (4) the quality of the evidence in
question.” United States v. Norman, 74 M.J. 144, 150
(C.A.A.F. 2015) (quoting United States v. Hall, 66 M.J. 53,
54 (C.A.A.F. 2008)); United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999). Applying these factors, we conclude that the
failure to admit the requested information regarding the
polygraph examination did not have a “substantial impact
on the findings.”



                              11
            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

    The Government’s case was strong. The victim, AH,
provided detailed testimony and material evidence of
Appellant’s actions. She testified that Appellant touched her
breast, pelvic area, and buttocks, that he nibbled her ear,
that he asked her, “Do you want me?,” and that he reentered
the room after she locked the door. AH immediately left
Appellant’s house after these events and told her father that
she was “almost raped.” Appellant’s stepdaughter, KG, also
testified that AH told her that Appellant tried to rape her.
    While Appellant’s alleges that the information would ex-
plain his reason for confessing, his alternative motion—that
his confession was coerced—was denied. Moreover, Appel-
lant’s case rested on his assertion that he was too intoxicat-
ed to form the specific intent necessary to have committed
the charged offenses. In support of that theory, he offered
several witnesses to support his claim that he was heavily
intoxicated around the time the crime was committed. One
of Appellant’s friends who attended the gathering at the
house testified that Appellant was “a little shambly on his
feet,” and that he felt the need to walk beside him to ensure
that Appellant “made it to the bed” at the end of the even-
ing. AH similarly testified that Appellant smelled of alcohol
when he entered her room, and described his appearance as
“kind of conscious, kind of not . . . . Like he seemed in and
out of it.” The first responding officer to arrive at Appellant’s
home believed Appellant was intoxicated because he was
“leaning on the wall” and “slurring his speech.”
    Nevertheless, AH’s description of Appellant’s actions and
her nearly contemporaneous reports of the incident to other
individuals provide ample evidence that Appellant acted
with specific intent to gratify his sexual desires. It strains
reason to infer anything other than the specific intent to
gratify sexual desires from Appellant’s own words, “Do you
want me?”—especially when considered in the context of
grabbing AH’s breast and buttocks, nibbling her ear, and
trying to reenter the locked room. Finally, Appellant’s own
expert witness conceded that a “blackout” state of
intoxication does not preclude an individual from forming
specific intent.
    Nor is the evidence particularly material. Even assuming
the trier of fact believed the facts and circumstances of Ap-
pellant’s polygraph examination explained the reasons for
his confession, it would only call into question the reliability
of his confession. It would not, however, negate or otherwise


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            United States v. Kohlbek, No. 18-0267/AR
                      Opinion of the Court

disprove the remaining evidence supporting Appellant’s spe-
cific intent.
    In light of the overwhelming strength of the Govern-
ment’s case, we are not persuaded that admission of testi-
mony about the circumstances of the polygraph examination
would have had a substantial impact on the evidence related
to specific intent or the findings in this case. 7
                  IV.    Conclusion
   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




   7  Appellant contends that exclusion of the evidence violated
both M.R.E. 707 and the Constitution. Because we have concluded
that excluding the evidence violated M.R.E. 707, we do not reach
the question whether the exclusion of the evidence also violated
the Constitution. If excluding the evidence was a constitutional
error, the test for prejudice would be whether the error was
“harmless beyond a reasonable doubt.” United States v. Robinson,
77 M.J. 294, 299 (C.A.A.F. 2018). Even under this higher stand-
ard, we would conclude that there was no prejudice based on the
analysis above.



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