13 M.J. 803 | U S Air Force Court of Military Review | 1981
DECISION
Tried by special court-martial with members, the accused was convicted, pursuant to his pleas, of wrongfully transferring, possessing and using marijuana, and despite his pleas, of wrongfully selling and possessing marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The approved sentence extends to a bad conduct discharge, confinement at hard labor for five months, forfeiture of $334.00 per month for five months and reduction to E-l.
Appellate defense counsel argue that the accused’s plea of guilty to transferring marijuana (Specification 2 of Charge I) was improvident as he did not acknowledge, during the Care
A transfer includes any act by which the holder of an object delivers it to another person with the intent of passing
The accused next urges that the evidence does not establish beyond a reasonable doubt that the “green, leafy material with seeds and stems” the accused possessed and sold during December 1980, and February 1981, was marijuana (Specifications 2,4,5 and 6 of the Additional Charge). We conclude otherwise.
We held in United States v. Richards, 47 C.M.R. 544, 545 (A.F.C.M.R.1973) that:
[T]he identity of a drug may be proved through the testimony of an individual who is not an expert, in the technical sense, providing his familiarity with the drug has been established (citations omitted).
The identification of the questioned material as marijuana was provided by Sergeant Burris, an accomplice and drug user, who testified under a grant of immunity that he had smoked similar “green, leafy material with seeds and stems” before, and on that earlier occasion the substance was marijuana. The substance he saw during December 1980, and February 1981, in the accused’s possession was identical in color and composition to the earlier quantity of marijuana. We find his testimony to be clear, consistent and certain. Sergeant Burris was competent to give his opinion as to the material’s identity; the extent of his prior use and basis for identification affects only the testimony’s weight. United States v. Villamil-Durand, 46 C.M.R. 1070 (A.F.C.M.R.1973). We are convinced beyond a reasonable doubt that the “green, leafy material with seeds and stems” was marijuana. Article 66(c), Code, 10 U.S.C. § 866(c), supra.
The remaining assignments of error have been examined and are resolved adversely to the accused. The findings of guilty and the sentence are
AFFIRMED.
POWELL, Senior Judge, and MILLER, Judge, concur.
United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (C.M.R.1969).