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

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

                      UNITED STATES OF AMERICA

                                     v.

                       DANIEL J. ZAMBRANO
            PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                            NMCCA 201500002
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 18 September 2014.
Military Judge: Col D.J. Daughtery, USMC.
Convening Authority: Commanding Officer, Combat Logistis
Regiment 35, 3d Marine Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Maj M.C. Evans,
USMC.
For Appellant: Eric S. Montalvo, Esq.; LT David Warning,
JAGC, USN.
For Appellee: LT Jetti Gibson, JAGC, USN; Capt Cory Carver,
USMC.

                            19 January 2016

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                     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.

RUGH, Judge:

     A military judge, sitting as a special court-martial,
convicted the appellant, contrary to his pleas, of one
specification of assault consummated by battery in violation of
Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928.
The military judge sentenced the appellant to confinement for a
period of 125 days, reduction to pay grade E-1, and a bad
conduct discharge. The convening authority (CA) approved the
adjudged sentence.
     The appellant alleges two assignments of error (AOE): (1)
legal and factual insufficiency; and (2) ineffective assistance
of counsel. Although not raised by the appellant, we also
review whether it was plain error for the military judge to use
improper opinion evidence in his special findings.
     While the findings and sentence are otherwise factually and
legally sufficient, we find the admission of improper opinion
evidence to be plain error, materially prejudicing a substantial
right of the appellant, and we grant relief in our decretal
paragraph. As a result, AOE (2) is moot. We resolve the
additional issue below.
                           Background

     It was the night before Christmas 2013, and Lance Corporal
(LCpl) ALW was lying on her friend’s bed in the barracks on
board Camp Kinser, Okinawa, Japan. Earlier, she dined with a
small group including her friend, LCpl YA. Returning tipsy and
tired, LCpl ALW changed into sleeping clothes and lay down. She
then briefly played with her phone before drifting to sleep.
     LCpl ALW awoke momentarily when LCpl YA sat down at the
head of the bed and began playing with her smartphone. The room
was dark and the curtains were drawn, but some light entered the
room from the bathroom and under the hallway door.
     LCpl ALW woke again when the appellant entered the   room and
sat at the foot of the bed. There, the appellant tried    to
convince LCpl YA to join him in celebrating the holiday   with
other barracks’ residents. The appellant had no prior
discussions or interactions with LCpl ALW, whom LCpl YA   assumed
was asleep. From her vantage at the top of the bed and    with her
smartphone in front of her, LCpl YA could only make out   the
appellant’s features. She could not see his hands, and    she was
not otherwise focused on his behavior.
     LCpl ALW drifted back to sleep. She was awakened when the
appellant reached under the blanket and placed his hand on her
knee. He slid his hand up her thigh towards her crotch, causing
LCpl ALW to pull her knees closer to her body assuming a fetal
position. The appellant grabbed her calf under the covers and
pulled her down as he moved closer to her on the bed. This time


                                2
he reached between LCpl ALW’s legs and rubbed the lower part of
her buttocks.
     Although she kept her eyes shut, she “knew he was right
below my feet. And I would – when I’d try to squirm away, I
would slightly, you know, hit his thigh while I was trying to
squirm away because – it’s like, when I’d try to move, I’m
trying to kick so hard to where I’d kind of touch him.” 1 Still,
LCpl ALW did not cry out. Instead, she whined in hopes of
alerting LCpl YA to what was happening.
     Believing that LCpl ALW was sick or having a bad dream,
LCpl YA asked the appellant to leave. She then sent text
messages to friends, including LCpl SC, who arrived to escort
the appellant from the room. Shortly after the appellant left,
it was “like somebody took the tape off [LCpl ALW’s] mouth,” 2 and
LCpl ALW reported what happened to others.
                     Improper Opinion Evidence

     At trial LCpl SC testified that he returned to the barracks
room about a half-hour after escorting the appellant away, at
which time he saw LCpl ALW crying heavily. LCpl ALW then told
him, “I tried to move and tell him to stop but he didn’t,” or
words to that effect. 3 LCpl ALW testified that when LCpl SC
asked her where she was touched, “I [LCpl ALW] patted my legs,
my thigh area, and I put my hand like right over my vagina. And
he [LCpl SC] was just like, ‘F[**]k.’ And then just put—he just
laid me back down, put the covers over me, and he went back
out.” 4
     Corporal (Cpl) JD testified he saw LCpl SC shortly after
this conversation, and LCpl SC told him, “I just want to punch
someone in the face.” 5 The defense did not object to the
relevance of Cpl JD’s testimony or LCpl SC’s reaction to the
victim’s communications.
     The military judge found the appellant guilty of assault
consummated by battery for “touching [LCpl ALW’s] knee, touching

1
    Record at 309.
2
    Id. at 317.
3
    Id. at 185.
4
    Id. at 318.
5
    Id. at 164.


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her thigh, and by rubbing the lower part of her buttocks.” 6 The
military judge, sua sponte, made special findings pursuant to
RULE FOR COURT-MARTIAL 918(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). His special findings, first read on the record and
then attached as Appellate Exhibit XIX, comprised four pages.
Among his findings the military judge stated, “the court found
the testimony of [LCpl ALW] to be credible,” 7 and he resolved
several, minor inconsistencies in the evidence in her favor.
     The military judge used three paragraphs of his special
findings to support his credibility determination of LCpl ALW,
concluding with:
        The testimony of [LCpl SC] shows that he talked
        directly to [LCpl ALW] after the initial report and
        questioned her as to what happened. The testimony of
        [Cpl JD] shows that he encountered [LCpl SC] shortly
        after [LCpl SC] talked to [LCpl ALW] and at that time,
        [LCpl SC] wanted to punch someone in the face. This
        testimony shows that [LCpl SC] appeared to believe
        what he heard directly from [LCpl ALW]. The testimony
        of [LCpl ALW] was that when she told [LCpl SC] what
        happened, “he was like FUC@.” 8
     The defense never objected to the military judge’s special
findings either at the time they were read on the record or
subsequent to the adjournment of trial.
                                  Discussion

      Where an appellant did not preserve an 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 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.




6
    Appellate Exhibit XIX at 1.
7
    Id. at 3.
8
    Id. at 4 (emphasis added).
                                      4
          A.   There was error
     Admission of “human lie detector” testimony is error,
United States v. Whitney, 55 M.J. 413, 415 (C.A.A.F. 2001), a
holding underscored by subsequent cases, including United States
v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2013) (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. 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), and exceeds the scope of the
witness’s knowledge, in violation of MIL. R. EVID. 701 (opinion
testimony by lay witnesses). See Kasper, 58 M.J. at 315.
     In this case, the original purpose for testimony about LCpl
SC’s reactions to the victim’s allegations is ambiguous.
However, the military judge’s rationale for inclusion of that
same testimony in his special findings is clear: “[T]his
testimony shows that [LCpl SC] appeared to believe what he heard
directly from [LCpl ALW].” 9 The only interpretation of this
special finding is that the military judge used this testimony
to show that LCpl SC believed the victim’s allegations and that
she was therefore a more credible witness.
     As we have previously articulated, “[s]pecial findings are
to a bench trial as instructions are to a trial before members.”
United States v. Postle, 20 M.J. 632, 638 (N.M.C.M.R. 1985). It
is a purpose of special findings to provide a record from which
the court can rectify judicial misconceptions regarding the
significance of a particular fact.
     Applying this analogy, we resolve that it would have been
error to instruct a panel of members to use LCpl SC’s or Cpl
JD’s testimony as a substitute for their own assessment of the
victim’s credibility. The instruction would improperly permit
the members to use the testimony as “an opinion as to whether
[the victim] was truthful in making a specific statement
regarding a fact at issue in the case.” Kasper, 58 M.J. at 315.
Therefore, just as it would be error to instruct a panel in this
way, it is also error for the military judge to use the evidence
in the same fashion.
     Additionally, while military judges are “presumed to know
the law and apply it correctly,” that presumption can only apply
in the absence of contrary evidence. United States v. Robbins,
52 M.J. 455, 457 (C.A.A.F. 2000). Our reliance on the
9
    Id.
                                 5
presumption is significantly diminished when the legal and
factual assertions at issue are contained within the military
judge’s own special findings.
      Here, the military judge used LCpl SC’s and Cpl JD’s
testimony as “human lie detector” evidence, and to do so was
error.
     B.   The error was clear and obvious
     The law regarding improper opinion testimony, including the
use of witnesses as “human lie detectors” is well-settled.
Knapp, 73 M.J. at 37. As a result, this error was clear or
obvious.
     C. The error was materially prejudicial to the appellant’s
substantial rights
     An error materially prejudices the substantial rights of
the accused when it has an unfair prejudicial impact on the
deliberations. Id. To determine unfair prejudice, the court
must be persuaded that the error had a substantial influence on
the findings. 10 Kotteakos v. United States, 328 U.S. 750, 765,
(1946). “If so, or if one is left in grave doubt, the
conviction cannot stand.” Id. The question is not merely
whether, without the error, there remains sufficient evidence to
support the verdict. Instead, the court must determine whether
the military judge’s verdict was “substantially swayed by the
error.” United States v. Rhodes, 61 M.J. 445, 453 (C.A.A.F.
2005). In this case, we are persuaded that the testimony had a
substantial influence on the findings.

     First, the victim’s credibility was not a “peripheral
matter” but of central importance to the Government’s case.
Knapp, 73 M.J. at 37. While other witnesses corroborated the
victim’s testimony, no other person directly witnessed the
assault. It was on the victim’s testimony alone that the
military judge could determine that the bodily harm occurred.

     Second, the military judge recognized the importance of the
victim’s credibility to the verdict. The military judge

10
  We find the military judge’s error involved inadmissible evidence that did
not implicate a constitutional right of the accused. Therefore, the error
was nonconstitutional. See United States v. Armstrong, 53 M.J. 76, 81
(C.A.A.F. 2000) (treating human lie detector testimony as nonconstitutional
error); see also United States v. Pablo, 53 M.J. 356, (C.A.A.F. 2000)
(applying the Kotteakos “substantial influence” test after observing the
“case involve[d] inadmissible evidence rather than a denial of
confrontation.”).
                                      6
concisely stated, “[t]he court found the testimony of [LCpl ALW]
to be credible.” The military judge’s placement of this
sentence at the beginning of a lengthy paragraph highlighted its
significance to his verdict. The military judge used the next
three paragraphs to support this statement, resolving
inconsistencies in the victim’s favor as a result of her deemed
credibility.

     Finally, within the corners of the record, LCpl SC’s
reaction to the victim appeared to have meaningful impact on the
military judge’s determination as to the victim’s credibility.
At liberty to include any evidence at his discretion, the
military judge chose to specifically include the testimony of
LCpl SC and Cpl JD in his special findings. Indeed, of the
three paragraphs devoted to the victim’s credibility, the
evidence regarding LCpl SC’s reaction takes up nearly an entire
paragraph. Furthermore, there is nothing in the record that
would otherwise provide us “with fair assurance,” that the
military judge’s error did not substantially influence his
decision to convict the appellant. Kotteakos, 328 U.S. at 765.

     For these reasons, we find the improper opinion testimony
substantially influenced the military judge’s decision to
convict the appellant and was, therefore, materially prejudicial
to a substantial right of the appellant.

                           Conclusion

     The findings of guilty and the sentence are set aside. The
record is returned to the Judge Advocate General of the Navy for
remand to an appropriate CA with a rehearing on findings and
sentence authorized. Art. 66(d), UCMJ.

     Senior Judge FISCHER and Senior Judge KING concur.

                             For the Court




                             R.H. TROIDL
                             Clerk of Court




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