   UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             COOK, CAMPANELLA, and HAIGHT
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                          Specialist BRANDON C. BELCHER
                            United States Army, Appellant

                                        ARMY 20110895

                        Third Army, United States Army Central
                            Frank D. Whitney, Military Judge
                   Colonel Stephanie L. Stephens, Staff Judge Advocate


For Appellant: Colonel Edye U. Moran, JA; Captain James S. Trieschmann, Jr., JA
(on brief).

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.

                                        31 July 2013
                               -------------------------------------
                                SUMMARY DISPOSITION
                               -------------------------------------

CAMPANELLA, Judge:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of wrongful use of heroin on divers
occasions while receiving special pay under 37 U.S.C § 310 and one specification of
wrongful distribution of heroin on one occasion while receiving special pay under 37
USC § 310, in violation of Article 112a, Uniform Code of Military Justice, 10
U.S.C. § 912a [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a bad conduct discharge, confinement for nine months, forfeiture of all
pay and allowances, and reduction to the grade of E-1. Additionally, the convening
authority deferred adjudged forfeitures until action and waived automatic forfeitures
in the amount of $1,000.00 per month for a period of six months.

      This case is before this court for review pursuant to Article 66, UCMJ. After
conducting our review of the record, we are not convinced beyond a reasonable
doubt that the appellant used heroin on divers occasions. This issue merits
discussion and relief.
BELCHER—ARMY 20110895

                                     BACKGROUND

      Appellant was charged with only one specification of wrongful use of heroin
but on divers occasions, in violation of Article 112a, UCMJ. The specification
alleged:

             In that [the appellant], U.S. Army, did at or near Camp Phoenix,
             Afghanistan, on divers occasions, between on or about 15
             November 2010 and on or about 30 December 2010, wrongfully
             use Heroin, a schedule I controlled substance, while receiving
             special pay under 37 U.S.C. § 310.

        Appellant’s heroin use was discovered by his command after he tested
positive, while deployed, during a 100% unit urinalysis. At trial, without the benefit
of a pretrial agreement, appellant pleaded not guilty to use of heroin on divers
occasions but guilty to the use of heroin on only one occasion. Appellant further
pleaded not guilty to the distribution of heroin on divers occasions. During the
providence inquiry, appellant admitted he obtained heroin from a local national and
ingested it on 29 December 2010, at Camp Phoenix, Afghanistan. Appellant
admitted he knew the substance was heroin when he ingested it and that his use was
wrongful. He then acknowledged testing positive on the unit urinalysis conducted
the day after his heroin use.

       Following appellant’s guilty plea inquiry, t he government attempted to prove
up appellant’s use of heroin on divers occasions and his distribution of heroin on
divers occasions. Appellant was tried before an officer panel on the remaining
specifications.

       The government built its case upon two witnesses who testified they observed
appellant using heroin, the appellant’s positive urinalysis, and a non-commissioned
officer who testified he observed behavior by appellant which he believed to be
indicative of drug use for the approximate charged period of time in question.

      First, Specialist (SPC) KS, testifying under a grant of immunity, stated he
witnessed appellant use heroin on only one occasion, that Private (PVT) LP was
present on this occassion, and that a unit urinalysis was conducted the following
day.

      On cross-examination, defense counsel questioned SPC KS regarding how
many times he actually observed the appellant use heroin. SPC KS’s testimony was
consistent in that he stated he witnessed the appellant use heroin on only one
occasion.




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BELCHER—ARMY 20110895

       The government then called PVT LP. Private LP was another soldier in
appellant’s unit. Private LP testified under a grant of immunity, and with the benefit
of a pretrial agreement. Private LP specifically testified that over a two to four hour
period, while SPC KS was present, he witnessed the a ppellant use heroin two to four
times. He also testified that a unit urinalysis was conducted within the next twenty-
four to forty-eight hours after this occasion. He further testified that he only
witnessed the appellant use heroin on that one occasion during the two to four hour
period.

       As to the testing of the urine sample, the government called Major (MAJ) DS,
commander of the Forensic Toxicology Drug Testing Laboratory at Tripler Army
Medical Center. On direct-examination, the government questioned MAJ DS on the
scientific background of the drug testing procedures. D efense counsel then cross-
examined MAJ DS as follows:

                    DC: . . . all of that data you just testified to, you
                    cannot say that [the appellant] ingested on more
                    than one occasion, correct?

                    MAJ DS: No.

                    DC: You cannot say that, correct?

                    MAJ DS: I cannot.

        During its case in rebuttal, the government called Sergeant (SGT) JJ in an
apparent attempt to establish that the appellant used heroin on multiple dates within
the charged time bracket. As a basis for his testimony, SGT JJ testified that he took
courses “like DARE,” (an apparent reference to “Drug Abuse Resistance Education”)
college courses in psychology, and drug prevention classes provided by the Army,
as well as his experiences witnessing his father after he used [unspecified] drugs.
Based on SGT JJ’s experience and his observation of the appellant’s behavior, SGT
JJ testified he believed appellant was under the influence of drugs for a period of
approximately three weeks. He based his opinion on appellant’s bloodshot eyes,
pale complexion, a change in demeanor, seeing him vomit, and appellant’s declining
duty performance. The government neither offered nor established SGT JJ as an
expert witness.

       Ultimately, the panel found the appellant guilty of heroin use on divers
occasions between on or about 15 November 2010 and 30 December 2010 and
distribution of heroin on or about 29 December 2010.




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BELCHER—ARMY 20110895

                              LAW AND DISCUSSION

       Having reviewed the evidence in the record, we are not convinced beyond a
reasonable doubt of appellant’s guilt as to specification 1 of Charge 1, as it relates
to “divers occasions.” We find, however, the evidence does sufficiently supports,
both legally and factually, a finding that the appellant used heroin on one occasion,
on or about 29 December 2010.

       Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we will approve only those
findings of guilt we determine to be correct in both law and fact. The test for legal
sufficiency is whether, when the evidence is viewed in the light most favorable to
the government, any rational fact finder co uld have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). The test for factual sufficiency is whether, after weighing the evidence and
making allowances for not having observed the witnesses, we ourselves are
convinced of the appellant's guilt beyond a reasonable dou bt. United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). We apply the latter test in the present case.

       The evidence elicited from SPC KS and PVT LP indicates they both witnessed
appellant use heroin on the same day. Each testified the other was present during
the time frame they witnessed appellant use heroin. Each said they only saw the
appellant use heroin on one occasion. Each said the urinalysis was conducted within
the next day or two after witnessing appellant’s heroin use. The positive urinalysis
corroborates the date appellant and PVT LP used heroin, in that both tests were
positive for heroin. Additionally, the government’s laboratory expert could not
confirm more than one use of heroin by appellant.

       The government attempted to establish “divers occasions” by eliciting from
PVT LP that he witnessed appellant use heroin between two to four times over an
approximately two to four hour period. Private LP described a series of acts or
occurrences which constituted a single course of criminal conduct. We find,
therefore, that the appellant’s multiple ingestions of the same drug from the same
original supply over a period of hours at the same location on the same date, were
but one criminal act.

        The only other evidence that appellant used heroin on more than one
occasion during the three week period charged was SGT JJ’s lay testimony that the
appellant appeared to be on drugs for approximately a three week period. We find
this evidence insufficient to prove appellant used heroin on more than one occasi on.

       Therefore, we find the evidence factually insufficient to find appellant guilty
of using heroin on divers occasions and will take appropriate action in our decretal
paragraph. We find, however, the evidence to be both legally and factually




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BELCHER—ARMY 20110895

sufficient to support the finding of guilty as to appellant’s use of heroin on one
occasion.

                                   CONCLUSION

      On consideration of the entire record, we approve and affirm only so much of
Specification 1 of The Charge as finds appellant did at or near Camp Phoenix,
Afghanistan, on 29 December 2010, wrongfully use heroin, a Schedule I controlled
substance, while receiving special pay under 37 U.S.C. § 310.

       The remaining findings of Guilty are AFFIRMED. Reassessing the sentence
on the basis of the factual insufficienc y noted, the entire record, and in accordance
with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United
States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by
Judge Baker in his concurring opinion in Moffeit, the sentence is AFFIRMED. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by this decis ion, are ordered restored. See
UCMJ art. 75(a).

      Senior Judge COOK and Judge HAIGHT concur.


                                        FOR THE COURT:




                                        ANTHONY        O. POTTINGER
                                        ANTHONY O. POTTINGER
                                        Chief Deputy Clerk
                                        Chief Deputy Clerk of Court
                                                                 of Court




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