41 M.J. 678 | A.F.C.C.A. | 1995
OPINION OF THE COURT
A military judge, sitting as a general court-martial, accepted the appellant’s guilty
I. POSSESSION OF LSD WITH INTENT TO DISTRIBUTE
Appellant contends his gufity plea to this specification was improvident. During the Care
There is no published military case law on the issue of when an accused must form an intent to distribute in order to commit the offense of possession of a controlled substance with intent to distribute under Article 112a. In a prosecution under 21 U.S.C. § 841(a)(1) (an analogue of Article 112a), the Ninth Circuit held that a conviction for possession of heroin with intent to distribute was proper “... so long as the intent coincides at some point with possession in the United States.” United States v. Gomez-Tostado, 597 F.2d 170, 173 (9th Cir.1979) (emphasis added). Although the question in GomezTostado concerned the effeet of the statute when possession of drugs is inside the United States, but the intent is to distribute them outside U.S. borders, we find the Ninth Circuit’s reasoning applicable to the issue before us. We hold that an intent to distribute, formed at any point while in possession of controlled substances, is sufficient to support a conviction for possession with intent to distribute under Article 112a. This includes an intent first formed moments before an actual distribution. Appellant unequivocally admitted forming such an intent. Accordingly, his plea of guilty to possession of LSD with the intent to distribute was provident.
II. INHALATION OF “NITROUS OXIDE”
Appellant’s assignments of error here concern the legal sufficiency of this specification, and the factual sufficiency of the evidence to support his conviction. The evidence shows the appellant bought several aerosol cans of whipped cream and inhaled the propellant, informing other airmen present that the substance was “nitrous oxide.”
A. Sufficiency of the Specification
The specification of Charge II reads: In that AIRMAN FIRST CLASS DAVID B. DESERANO, United States Air Force, 2d Airlift Squadron, did, at or near Pope Air Force Base, North Carolina, on or about 13 May 1992, wrongfully inhale nitrous oxide gas, with the intent to become intoxicated, which conduct under the circumstances was to the prejudice of good order and discipline in the armed forces.
All parties agree this specification was intended to allege a “simple disorder” under the first clause of Article 134.
We believe the reasoning in Menta and Limardo is obsolete. These cases were decided before the adoption of Article 112a, when most substance abuse offenses were prosecuted under Article 134(1). When Congress added Article 112a to the Code in 1983,
The specification of Charge II sufficiently states a “simple disorder” under Article 134(1). However, the prosecution still had the task of proving the elements of such an offense. This leads us to the appellant’s final assignment of error.
B. Sufficiency of the Evidence
Appellant contends that the prosecution did not prove his inhalation of nitrous oxide was prejudicial to good order and discipline, an essential element of any Article 134(1) offense. MCM, Part IV t60b (1984). The prosecution attempted to introduce testimony from an agent of the Air Force Office of Special Investigations (AFOSI) to the effect that abuse of nitrous oxide was an increasing problem in the Air Force, inhaling the substance was dangerous, and people have died from inhaling nitrous oxide. For the most part, the defense frustrated these efforts by successful objections based on hearsay and lack of foundation for the witness’ knowledge. As a result, the record contains no competent evidence of the harmful effects, if any, of inhaling nitrous oxide — assuming the gas was indeed nitrous oxide.
This brings us to a more fundamental problem with the prosecution’s proof of this specification — there is no evidence the substance the appellant inhaled was nitrous oxide. It is dear he believed it was nitrous oxide. He told his companions it was “nitrous oxide.” He later confessed to AFOSI that he had used “nitrous oxide.” But there
We are perplexed by these deficiencies in the prosecution’s ease. Proving the chemical contents of a common aerosol product does not appear to be an overly complex task. Assuming for the moment that the can contained nitrous oxide, we also surmise that several locally available health care professionals would have had the education and experience to qualify as expert witnesses on the effects of inhaling that substance. See Mil.R.Evid. 702. It is readily apparent these omissions did not result from unavailability of competent evidence, but from the prosecution’s failure to properly analyze the elements of proof and evidentiary foundations necessary to make its case on this specification.
Regardless of the reasons, the bottom line is the prosecution has not persuaded us beyond I reasonable doubt that the appellant committed a violation of Article 134(1). United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987). To violate this clause of the general article, the conduct must have an effect on good order and discipline which is “reasonably direct and palpable;” effects which are “indirect or remote” are not enough. United States v. Johanns, 20 M.J. 155, 159 (C.M.A.) (citing MCM ¶ 212 (1969 Rev.Ed.), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985); MCM, Part IV ¶ 60e(2)(a) (1983). Without proof of the identity of the substance the appellant ingested and its potential effects, we are unwilling to make a “leap of faith” to conclude his conduct was a disorder punishable under Article 134(1).
This opinion should not be construed as an endorsement of the appellant’s actions. We do not hold, as a matter of law, that recreational ingestion of aerosol propellants is not prejudicial to good order and discipline. To the contrary, we are inclined to think that it is. However, in deciding the factual sufficiency of the evidence supporting a conviction, we are limited to the evidence presented at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.1993). In this case, the prosecution simply failed to introduce evidence sufficient to prove to us, beyond a reasonable doubt, that a violation of Article 134(1) occurred.
III. DECISION
We set aside the findings of guilty to Charge II and its specification. In the interest of judicial economy, they are dismissed. We must now try to decide what the sentence would have been absent that improper conviction. United States v. Sales, 22 M.J. 305, 307 (C.M.A.1986). If we can determine what sentence would have been adjudged, we may reassess it; otherwise, we must return the case for a rehearing. United States v. Jones, 39 M.J. 315, 317 (C.M.A. 1994); United States v. Peoples, 29 M.J. 426 (C.M.A.1990). If we can determine what sentence would have been adjudged, we then must decide whether the sentence, as reassessed, is nonetheless appropriate. Peoples, 29 M.J. at 428; Sales, 22 M.J. at 308.
After weighing the improper conviction of Charge II and its specification against the remaining convictions, we believe we can
The findings, as modified, and the sentence are correct in law and fact. Accordingly, they are
AFFIRMED.
. 10 U.S.C. § 912a (1988).
. 10 U.S.C. § 934 (1988).
. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969).
. Apparently, there was no North Carolina statute proscribing nitrous oxide inhalation. At least, the parties at trial never mentioned.one. In states where the laws address abuse of otherwise legal substances, these statutes may be as
. See Military Justice Act of 1983, Pub.L. No. 98-209 § 8, 97 Stat. 1393 (1983).
. We do not imply that the prosecution must, in all cases, introduce expert testimony or other scientific evidence to prove the identity of an abused substance. There is a long line of military precedent that the identity of such substances may be proven by lay opinion, and that contemporaneous declarations of abusers and traffickers are competent evidence to that end. United States v. Koistinen, 27 M.J. 279, 280 n. 4 (C.M.A.1988); United States v. Matias, 25 M.J. 356, 361 n. 6 (C.M.A.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1242, 99 L.Ed.2d 441 (1988); United States v. Day, 20 M.J. 213, 215 (C.M.A. 1985); United States v. Tyler, 17 M.J. 381, 387 (C.M.A.1984); United States v. Michael, 33 M.J. 900, 901 (A.F.C.M.R.1991); United States v. Accordino, 15 M.J. 825, 827-830 (A.F.C.M.R.1983), rev'd on other grounds, 20 M.J. 102 (C.M.A.1985); United States v. Hickman, 15 M.J. 674, 675 (A.F.C.M.R.), pet. denied, 17 M.J. 16 (C.M.A. 1983); United States v. Villamil-Durand, 46 C.M.R. 1070, 1071, 1973 WL 14557 (A.F.C.M.R. 1973). In this case, however, the appellant’s statements, standing alone, are not sufficient to persuade us the whipping cream can contained "nitrous oxide.” Even if the chemical identity of the gas had been proven, we would still require evidence of the effects of this otherwise legal substance before we could conclude that its ingestion is a violation of Article 134(1).