This opinion is subject to administrative correction before final disposition.




                                Before
                 CRISFIELD, HITESMAN, and GASTON
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                      Walter J. WILLIAMS III
                      Corporal, U.S. Marine Corps
                               Appellant

                             No. 201800275

                          Decided: 19 March 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                  Military Judge: Eugene H. Robinson Jr.

 Sentence adjudged 17 May 2018 by a general court-martial convened
 at Marine Corps Base Camp Foster, Okinawa, Japan, consisting of
 military judge alone. Sentence approved by convening authority: a
 reprimand, reduction to pay grade E-1, forfeiture of all pay and allow-
 ances, confinement for five years, and a dishonorable discharge.

                            For Appellant:
                     Catherine M. Cherkasky, Esq.;
         Lieutenant Commander Jeremy Wall, JAGC, U.S. Navy.

                             For Appellee:
              Lieutenant Jonathan Todd, JAGC, U.S. Navy;
              Captain Brian L. Farrell, U.S. Marine Corps.

                        _________________________
              United States v. Williams, NMCCA No. 201800275
                             Opinion of the Court

         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                           _________________________

PER CURIAM:
   A military judge sitting as a general court-martial convicted Appellant,
contrary to his pleas, of sexual assault and abusive sexual contact in violation
of Article 120, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 920
(2016), for committing a sexual act and sexual contact upon the victim when
he knew or reasonably should have known she was asleep. 1
    Appellant asserts two assignments of error: (1) the military judge erred by
prohibiting the Defense from referring to the coercive nature of Appellant’s
polygraph examination as it related to his post-polygraph statement; and
(2) the military judge erred in denying Appellant’s request for an expert
consultant in the field of toxicology. We find no prejudicial error and affirm
the findings and sentence.

                                I. BACKGROUND

   On the night of 10 March 2017, Appellant attended a farewell party for
another Marine which was held in an Okinawan bar located outside Camp
Foster. The victim, a fellow Marine corporal who was acquainted with
Appellant, was also in attendance at the farewell party. While at the party,
the victim consumed a large quantity of alcohol. She later estimated that she
drank half a pitcher of sangria and about six shots of tequila. At the party,
Appellant and the victim spoke briefly, but had no significant interaction.
    The victim was escorted back to her on-base barracks room by friends who
knew she was very intoxicated. When the victim started throwing up, her
friends stayed in the room to ensure that she was safe. About the same time,
Appellant sent Facebook messages to the victim. One of her friends in her
room responded and invited Appellant to the room. He showed up at the



   1  Appellant was also convicted of committing a sexual act and sexual contact
upon the victim by causing bodily harm (by doing so without her consent), but the
military judge conditionally dismissed those specifications on grounds of unreasona-
ble multiplication of charges. Appellant was acquitted of committing sexual acts upon
the victim while she was unconscious.




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             United States v. Williams, NMCCA No. 201800275
                            Opinion of the Court

victim’s room while two of her friends were still there. These two other
Marines left soon thereafter, leaving Appellant alone with the victim, who,
according to the two other Marines, appeared to be asleep when they left. The
next morning, the victim woke up in her bed undressed from the waist down.
Appellant was lying next to her, also undressed from the waist down.
Appellant asked the victim if she wanted to get breakfast and she said no.
   The victim had limited memories about the prior evening once she got
back to her room. She vaguely remembered waking up to someone taking off
her pants and waking up to someone penetrating her vagina with his penis.
Other than those limited recollections, she had no memory of events.
    The victim made a restricted report of sexual assault that day and un-
derwent a sexual assault forensic exam. No toxicology examination was
conducted because, according to the examining nurse, the hospital did not
conduct toxicology tests when a victim made a restricted report. Soon
afterwards, the victim changed her report to an unrestricted report.
    Appellant was interrogated twice by special agents of the Naval Criminal
Investigative Service [NCIS]. In his first interrogation, conducted the same
day the victim made her report, Appellant said that the victim initiated
sexual contact with him and was awake when he performed oral sex on her
and then penetrated her vulva with his penis. Appellant was asked if he
would take a polygraph examination. He said he would. The polygraph was
administered by an NCIS polygraph examiner during a second interrogation
over three months later. When Appellant again denied that the victim was
asleep when he penetrated her, the NCIS polygrapher told him that the
polygraph results indicated he was not being truthful and left no doubt that
the victim was asleep when Appellant had sex with her. The polygrapher
pressed Appellant on the point. After approximately 30 minutes of further
denials, Appellant admitted that the victim was asleep when he performed
oral sex on her and awoke after he had begun penetrating her vaginally with
his penis. Appellant then reviewed and signed a written statement to that
effect.
    Appellant moved to suppress his admissions during the second interroga-
tion as involuntary. Both the NCIS polygrapher and Appellant testified at
length regarding the interrogation, including the administration of the
polygraph, and a video recording of the entire session was submitted. Upon
considering the evidence, filings, and arguments of the parties, the military
judge denied the motion.
   Appellant also filed a motion to compel the Government to provide expert
assistance to the Defense in the form of a forensic toxicologist. The assistance
was necessary, the Defense argued, because a “central question” in the case


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                United States v. Williams, NMCCA No. 201800275
                               Opinion of the Court

was the victim’s “level of alcohol intoxication and whether she was incapable
of consenting due to impairment by alcohol.” 2 The Defense also argued that
“[m]ore broadly, a defense expert forensic toxicologist would be able to
explain the relationship between alcohol consumption and memory, to
include the difference between pass out and blackout.” 3 The military judge
denied the motion, determining that the Defense failed to prove that a
toxicologist was necessary for an adequate defense, especially when there
were no toxicological samples or reports for such an expert to analyze. 4
    Appellant elected trial before military judge alone. In his opening state-
ment, Appellant’s counsel referred to Appellant’s statements during his first
interrogation by NCIS, during which Appellant maintained the victim was
awake during their sexual encounter. He then contrasted those statements
with Appellant’s admissions during his second interrogation three months
later, telling the military judge, “You're going to hear about [the NCIS
polygrapher]'s exceptional credentials; how he's the only NCIS agent in the
entire far east region who’s certified and trained to conduct polygraph
exams.” 5 Government counsel immediately objected to this comment without
providing a basis, and the military judge immediately sustained the objection
without elaboration.
    The polygrapher subsequently testified about his interrogation of Appel-
lant and provided foundation for admission of the written statement that he
obtained from Appellant. Both parties elicited testimony from the polygra-
pher about the facts and circumstances of the interrogation, but neither side
referenced the administration of the polygraph itself.
   Additional facts necessary to resolve the AOEs are contained below.

                                   II. DISCUSSION

A. The Military Judge did not Prohibit the Defense from Presenting
Evidence of Coercion
   Appellant asserts the military judge improperly excluded evidence of the
coercive nature of Appellant’s second interrogation by NCIS. We normally



   2   Record at 32; App. Ex. XVIII at 4.
   3   Id.
   4   Record at 160; App. Ex. XX at 5-6.
   5   Record at 221.




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             United States v. Williams, NMCCA No. 201800275
                            Opinion of the Court

review a military judge’s decision to exclude evidence for abuse of discretion.
United States v. Jasper, 72 M.J. 276, 279 (C.A.A.F. 2013). In this case,
however, we do not get to the question of whether the military judge abused
his discretion because we find that the military judge did not exclude any
evidence related to the facts or circumstances of Appellant’s interrogation.
    Appellant appears to argue that the military judge’s action in sustaining
the Government’s objection to defense counsel’s reference to a polygraph in
his opening statement amounted to a broad curtailment of Appellant’s ability
to present evidence about the circumstances of the second interrogation. We
disagree.
    The rule regarding the admissibility of evidence of polygraph examina-
tions provides:
       Rule 707. Polygraph examinations
          (a) Prohibitions. Notwithstanding any other provision of
       law, the result of a polygraph examination, the polygraph ex-
       aminer’s opinion, or any reference to an offer to take, failure to
       take, or taking of a polygraph examination is not admissible.
           (b) Statements Made During a Polygraph Examination.
       This rule does not prohibit admission of an otherwise admissi-
       ble statement made during a polygraph examination.
Mil. R. Evid. 707. On its face, the rule’s broad language appears to be a
blanket prohibition on introducing any evidence that references a polygraph
examination—even without reference to the results. However, since the
conclusion of Appellant’s trial, our superior court has held that the “prohibi-
tion 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.” United States v. Kohlbek, 78 M.J. 326, 329 (C.A.A.F. 2019).
    While he gave no basis for sustaining the Government’s objection to the
Defense’s comment in its opening statement about the NCIS interrogator
being a polygrapher, based on its context it appears the military judge was
operating under the plain reading of Mil. R. Evid. 707(a). If the defense
counsel’s statement was directed toward discussing the facts and circum-
stances of the polygraph examination to explain the reason or motivation for
Appellant’s post-polygraph confession (as contrasted with his largely
exculpatory statements during his first interrogation) then this ruling would
be erroneous under Kohlbek. In any case, opening statements are not
themselves evidence, and are designed only to serve as a forecast of the
“evidence [the parties] expect to be offered which they believe in good faith
will be available and admissible.” Rule for Courts-Martial 913(b), Discussion.

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              United States v. Williams, NMCCA No. 201800275
                             Opinion of the Court

Further, “[a] finding or sentence of court-martial may not be held incorrect on
the ground of an error of law unless the error materially prejudices the
substantial rights of the accused.” Article 59(a), UCMJ.
    In order to mount a claim of error of the sort Appellant now appears to be
lodging—that the military judge’s ruling during opening statements somehow
prevented or “chilled” the Defense from subsequently introducing evidence
about the polygraph—it is incumbent on counsel to adequately raise and
preserve the issue in the record. In order to preserve such a claim of error at
trial, a party must ensure that there is a definitive ruling, either before or at
trial, admitting or excluding evidence, and “if the ruling excludes evidence,
[the] party informs the military judge of its substance by an offer of proof,
unless the substance was apparent from the context.” Mil. R. Evid. 103(a). In
Kohlbek, for example, the appellant filed a pretrial motion in limine, in
support of which he testified, arguing specifically 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 circumstances of
his post-polygraph confession.” Kohlbek, 78 M.J. at 330. The trial court’s
denial of the motion then preserved the issue for appeal. Id.
    Here, by contrast, the record contains no indication that the military
judge curtailed the Defense’s ability to explore the circumstances and
conditions of the second interrogation in an effort to show that Appellant’s
post-polygraph confession was involuntary. While the military judge had
already denied the Defense motion to suppress Appellant’s confession,
nothing in his written ruling preemptively limited Appellant’s ability to
present evidence of coercion at trial, and the Defense filed no motion in
limine seeking a ruling on that issue. During cross-examination of the
polygrapher at trial, the Defense elicited testimony about the circumstances
of the interrogation. There was only one objection from the Government
during cross-examination, and that was a hearsay objection. At no point in
the cross-examination did the military judge intervene sua sponte to limit the
Defense’s questioning of the polygrapher. After re-direct examination, the
Defense elected not to ask any further questions on re-cross. The Defense also
elected not to present any evidence on this issue during its case-in-chief.
Thus, the record before us is devoid of a basis on which to find the Defense’s
ability to explore the circumstances of Appellant’s second interrogation was
curtailed.
    As to whether the Defense’s desire to ask more detailed questions about
the interrogation was curtailed, to the extent that could somehow raise the
issue, all we have before us is the trial court’s ruling during opening
statements. No clarification about the court’s ruling was sought at trial,
although we believe we can ascertain its basis from context. Most damaging


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             United States v. Williams, NMCCA No. 201800275
                            Opinion of the Court

to Appellant’s argument, however, is that he does not state what additional
evidence, other than the fact that a polygraph examination was adminis-
tered, he would have introduced but for the limitation he argues the military
judge imposed. Based on the testimony elicited during the suppression
motion, we can imagine what details might have been explored, but
ultimately any finding in this regard rests on mere speculation. We simply
have no basis in the record, either at trial or on appeal, to find as a factual
matter what additional evidence the Defense was precluded from offering as
a result of the military judge’s ruling during opening statements.
    Hence, we find there is no factual basis on which to conclude that the
military judge limited Appellant’s presentation of evidence about the facts
and circumstances of his second interrogation. Absent that factual basis, we
find no error relating to the admission or exclusion of any evidence in this
regard, and no error materially prejudicial to Appellant’s substantial rights
relating to sustaining the objection to the Defense’s comment during opening
statements.

B. The Military Judge did not Abuse his Discretion in Denying the
Defense Request for Assistance from a Toxicology Expert
    Appellant asserts that the military judge erred in denying the Defense’s
request for expert assistance from a forensic toxicologist. On such motions to
compel, “the accused has the burden of establishing that a reasonable
probability exists that (1) an expert would be of assistance to the defense and
(2) that denial of expert assistance would result in a fundamentally unfair
trial.” United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008). We review
a military judge’s denial of a request for expert assistance for an abuse of
discretion. United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005). A
military judge abuses his discretion if (1) his findings of fact are not
supported by the evidence, (2) he uses incorrect legal principles, or (3) his
application of the correct legal principle to the facts is clearly unreasonable.
United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).
    Here, we find no basis to conclude that the military judge abused his
discretion in denying Appellant’s request for expert assistance. Our review of
the military judge’s ruling indicates that his findings of fact are supported by
the record and the legal principles he cited are correct, nor does Appellant
specifically argue to the contrary. Appellant’s sole argument is that absent
the requested expert assistance, his defense counsel had no reasonable way
to present evidence of the victim’s level of consciousness or memory due to
her level of intoxication.
   We believe that the military judge reasonably addressed this issue in his
analysis. He concluded that “[t]here was no evidence presented that demon-


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                   United States v. Williams, NMCCA No. 201800275
                                  Opinion of the Court

strated how a forensic toxicologist would be able to surmise the victim’s level
of intoxication given the lack of toxicological samples in this case.” 6 He also
concluded that “[t]here was no evidence presented that any toxicologist,
forensic or otherwise, expected to conclude that the victim’s mental or
physical capacity would have been affected in a particular manner or how
that would affect the accused’s perception of the victim’s state of conscious-
ness during the alleged assault.” 7 Based on these shortcomings in the
evidence, the military judge determined that Appellant had not satisfied his
burden of demonstrating that the expert would be of assistance to the
Defense and that denial of the expert assistance would result in a fundamen-
tally unfair trial. These were reasonable conclusions for the military judge to
reach.
   Even assuming error in the denial, we find no prejudice. The test for
prejudice for abuse of discretion is whether the error materially prejudiced an
appellant’s substantial rights. United States v. Lee, 64 M.J. 213, 218
(C.A.A.F. 2006). Where denial of an expert deprives an appellant of the right
to present a defense to the “linchpin of the prosecution case,” the error is
constitutional and must be harmless beyond a reasonable doubt. United
States v. McAllister, 64 M.J. 248, 252 (C.A.A.F. 2007).
    Here, multiple witnesses testified that the victim was asleep in her bed
when she was left alone in her room with Appellant, an acquaintance with
whom she had no prior romantic or sexual relationship. The victim’s account
was that she awoke the next morning lying next to Appellant, both of them
naked from the waist down, and had vague recollections of someone pulling
her pants off and later being roused from sleep by being vaginally penetrated.
In his post-polygraph written statement Appellant admitted that the victim
was asleep when he performed oral sex on her and that she awoke only after
he had already begun vaginally penetrating her with his penis. This is
precisely the charging theory upon which the military judge convicted
Appellant—i.e., for committing a sexual act and sexual contact upon the
victim when he knew or reasonably should have known she was asleep.
Under such circumstances, whether the victim was blacked out due to
intoxication for some portion of the time she was awake is of no moment.
Accordingly, we find any assumed error in denying an expert toxicologist in
this case was not materially prejudicial to Appellant’s substantial rights and,
for that matter, was harmless beyond a reasonable doubt.


   6   App. Ex. XX at 3-4.
   7   Id. at 4.




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             United States v. Williams, NMCCA No. 201800275
                            Opinion of the Court

                             III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and no error materially prejudicial to Appellant’s substantial
rights occurred. Articles 59, 66, UCMJ. Accordingly, the findings and
sentence as approved by the convening authority are AFFIRMED.


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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