                        UNITED STATES, Appellee

                                     v.

                       Thomas M. GORENCE, Airman
                       U.S. Air Force, Appellant


                               No. 04-0607

                         Crim. App. No. S30296

       United States Court of Appeals for the Armed Forces


                       Argued March 1, 2005

                       Decided June 21, 2005

CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. ERDMANN, J.,
filed a separate opinion concurring in the result.


                                  Counsel

For Appellant: Captain David P. Bennett (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, and Major James M.
Winner (on brief).

For Appellee: Major Michelle M. Lindo (argued); Lieutenant
Colonel Gary F. Spencer and Lieutenant Colonel Robert V. Combs
(on brief).

Military Judge:    Patrick M. Rosenow

  THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gorence, No. 04-0607/AF


     Judge CRAWFORD delivered the opinion of the Court.

     At a special court-martial, a military judge alone

convicted Appellant, pursuant to his pleas, of a single use of

cocaine in violation of Article 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 912a (2000).   The convening

authority approved the sentence of a bad-conduct discharge,

three months of confinement, and reduction to the lowest

enlisted grade.   The Court of Criminal Appeals affirmed the

findings and sentence.   We granted review of the following

issues on November 18, 2004:

     I.    WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
           IMPROPERLY CONDUCTED ITS APPELLATE REVIEW UNDER
           ARTICLE 66(c), UCMJ, BY CONSIDERING EVIDENCE
           OUTSIDE THE RECORD IN VIOLATION OF UNITED STATES
           v. HOLT, 58 M.J. 227 (C.A.A.F. 2003).

     II.   WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
           BY PERMITTING THE TRIAL COUNSEL TO ELICIT
           INFORMATION CONCERNING THE APPELLANT’S PRE-
           SERVICE DRUG USE FROM THE APPELLANT’S MOTHER TO
           “REBUT” MATTERS TO WHICH THE MILITARY JUDGE
           HIMSELF “OPENED THE DOOR.”

     For the reasons set forth below, we affirm the decision of

the United States Air Force Court of Criminal Appeals.     If there

was error, it was harmless.

                               FACTS

     During sentencing, the prosecutor offered evidence from

Appellant’s personnel record reflecting three disciplinary

infractions during his seventeen months of military service:



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United States v. Gorence, No. 04-0607/AF


(1) consumption of alcoholic beverages while under the age of

twenty-one on August 18, 2002; (2) failure to obtain a medical

evaluation on July 8, 2002; and (3) failure to report to duty on

August 7, 2002.   The prosecutor also offered a detailed

confession to the use of cocaine that occurred between August 14

and August 22, 2002, and called the interrogator, who discussed

the circumstances of Appellant’s confession.

     In addition to his unsworn statement, Appellant offered

several documents from family friends, coworkers, and

supervisors attesting to his rehabilitative potential.     His

mother also testified as to Appellant’s interests and

upbringing.   When asked by defense counsel about rehabilitative

potential, she replied that her son was not a malicious person

and that his cocaine use was an “error in judgment” from which

he could learn.   “[H]e has a lot of integrity . . . and he is

honest . . . .    But . . . he’s 19, and teenagers make –- have

some poor judgments [sic] in things because they feel that they

–- they have their whole life, that they are really invincible

and that it won’t really matter this time.”    She also recognized

that her son had made mistakes.   Defense counsel inquired

further, “But with your son, does he learn from his mistakes?”

She responded, “[H]e always has learned from his mistakes.”




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United States v. Gorence, No. 04-0607/AF


     At the conclusion of her direct examination, there was no

cross-examination by the prosecutor.   However, the military

judge began the following colloquy:

     Q: [Y]ou had no concerns about the people he was
     hanging around with?

     A: Not normally, no. Every once in a while, you know,
     somebody would do something stupid, and I would say,
     you know, guys, get it together, because I’ll call you
     on it. Right?

     Q: Right. I’m trying to figure out --

     A: He didn’t hang out with the jocks, and he didn’t
     hang out with the computer geeks. He’s always been
     somewhat of a loner . . . .

     Q: Okay. Because at least from the evidence I’ve got
     so far, it appears the folks that he was hanging out
     here with . . . weren’t doing him any favors.

     A: No. And that was --

     Q: And that’s one concern I have if [he] comes back to
     you. I mean, did he have a history of kind of hanging
     out with those folks, or maybe it was just because he
     was here in San Antonio and didn’t really know anybody
     else?

     A: I have a feeling that was probably the case.

     Q: And did you   have any concerns from his prior
     history of any   sort of substance problems as far as
     alcohol beyond   I guess what you would normally expect
     of high school   kids?

     A: Nothing beyond what normal high school kids get
     involved with, no.

     Upon completion of the military judge’s questioning, the

trial counsel posed the following question:




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     Q: Do you know if your son ever used marijuana while
     he was in high school?

     A: He probably --

     DC [Defense Counsel]: Objection, Your Honor.   This is
     going into uncharged misconduct.

     MJ [Military Judge]: Well, the problem is you’ve got
     the judge asking questions and I -- you know, I was
     mostly thinking about alcohol as much as anything
     else. I didn’t realize I was wandering into uncharged
     misconduct territory. Probably that would have been
     the better place for you to object there when I said,
     you know --.

     I tell you what, I’m going to overrule the objection,
     but only to the extent -- and you can rest assured,
     I’m not going to consider it for any uncharged
     misconduct purposes. But to the extent it would only
     weigh to rebut the question I asked. Okay. So I
     asked -- I asked the question about did you have any -
     - have any reason to suspect the history of any sort
     of substance abuse. And, you know, there wasn’t any
     objection to that. I certainly had no reason to know
     what the answer was going to be . . . .

     [M]y suspicion is the witness is going to say no,
     because that’s what she told me, but I’ll go ahead and
     allow you to ask the question. But, it’s a bench
     trial, you don’t have to worry about non 403-type
     [sic] uses. I’m only going to use -- if I consider it
     at all, and it will depend on the answer, it will be
     for a very limited purpose which I’ll put on the
     record.

     Go ahead.

     [Trial Counsel (TC)]: Ma’am, again, do you know or
     are you aware that your son ever used marijuana?

     A: I believe he tried it at some point because he’s a
     normal high school kid. You know, but as far as
     continual use or -- no. No. Would he have at a
     party? Let me just put it this way: At every single
     high school party that I have known of in the last 20,
     30 years, it has been there.


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Emphasis added.

     On redirect examination, defense counsel asked:

     Q:    Just one clarification.

     A:    Uh-huh.

     Q:    You just said you’ve been to parties, too?

     A:    Uh-huh.

     Q: Is this any time soon or is this back when you
     were in high school?

     A: Oh. High school, college. Yeah, there is -– not
     recently. Actually, I don’t go to too many parties
     anymore. But it is -– it is part of the culture.
     It’s there. Whether or not your intention is to use
     when you go to a party, there is always the
     possibility that it is there, you know. And I’d be
     silly to say, no, it’s not.

     DC:    Nothing further.

     MJ: Just so the record is clear, my ruling is that
     the defense objection is overruled. I opened the door
     with my question. But what I’m taking it as that
     you’re telling me is that it was experimentation at a
     party-type environment in high school and that’s it.

     [Witness]: I would assume.          I would assume, based on
     where we are today.

     MJ: That’s fine. And, clearly, I’m not going to impose
     any other punishment for an experimental use in high
     school. But I will consider it in the context of
     everything else.

Emphasis added.

     After announcing his sentence, the military judge noted

that Appellant was an “ideal” candidate for the Air Force

Return-to-Duty Program, a rehabilitation program that allows


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United States v. Gorence, No. 04-0607/AF


convicted airmen to return to duty upon successful completion of

its rigorous requirements.   He recommended that the convening

authority approve such a course of action.

     The lower court opined that once the door was opened during

discussion of rehabilitative potential, the prosecutor’s

solicitation of the information was proper.      Thus, trial

counsel’s question properly clarified the foundational basis for

Appellant’s mother’s opinion testimony.    Id.

     On appeal, the defense did not contest the accuracy of

Appellant’s mother’s statement or the propriety of the military

judge’s question to his mother about “any substance abuse

problems as far as alcohol.”   The Court of Criminal Appeals

stated that, assuming the military judge did not open the door

with that question, “other aspects of [Appellant’s mother’s

testimony] brought out by the defense did make the Appellant’s

pre-service marijuana use proper rebuttal.”      United States v.

Gorence, No. ACM S30296, 2004 CCA LEXIS 132, at *8, 2004 WL

1239172, at *3 (A.F. Ct. Crim. App. May 18, 2004).      When the

defense counsel asked Appellant’s mother whether “appellant

learned from his mistakes and whether he had rehabilitative

potential,” this “opened the door to other information

challenging the foundation of her opinion.”      Id.   It is “not

significant” that this questioning was conducted by the trial

counsel after the judge’s questioning.    Id. at *9, 2004 WL


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United States v. Gorence, No. 04-0607/AF


1239172, at *3.   The court noted that in the trial by judge

alone, the military judge is presumed to have based his sentence

upon admissible evidence.     “The military judge made it clear he

would not increase the punishment he imposed based upon”

Appellant’s mother’s testimony.    Id. at *9-10, 2004 WL 1239172,

at *4.

                              DISCUSSION

      As to Issue I, we hold that Holt is distinguishable.         In

Holt, the military judge had admitted into evidence certain

sentencing exhibits and clearly ruled that the jury could not

consider them for the truth of the matter asserted in the

exhibits.   58 M.J. at 232.   But, the Court of Criminal Appeals

considered these exhibits as substantive evidence.      In remanding

Holt, the Court held that a court of criminal appeals “may not

resurrect excluded evidence during appellate review under

Article 66(c).”   58 M.J. at 232-33.    In Holt, the Air Force

court’s consideration of the exhibits as substantive evidence

impermissibly changed the evidentiary nature of the exhibits.

Id.   That is not what happened here.      In this case, the Air

Force court did not resurrect any excluded evidence; rather, it

found an alternative foundational basis for the rebuttal

evidence considered by the military judge.

      As to Issue II, we hold that, if there was error, it was

harmless.   This was a trial by a military judge alone in which


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United States v. Gorence, No. 04-0607/AF


Appellant’s mother testified that her son had “a lot of

integrity” but had “learned from his mistakes.”   Following this

testimony, the military judge asked questions concerning

Appellant’s future life, his dreams, and what would happen if he

left the Air Force.   After the colloquy between the military

judge and Appellant’s mother, the trial counsel asked the

questions that were the subject of the defense counsel’s

objection.   While overruling the defense counsel’s objection,

the military judge responded, “[C]learly, I’m not going to

impose any other punishment for experimental use in high school,

but I will consider it in the context of everything else.”

Admittedly, this was not a clear statement as to how the

military judge would use this evidence.    In any event, any error

was harmless because this was a trial by military judge alone,

and from the statements made by the judge on the record, we may

infer that he did not give significant weight to Appellant’s

mother’s speculative testimony that Appellant used drugs in high

school.   For example, the military judge stated, “it was

experimentation in a party-type environment in high school and

that’s it . . . . I am not going to impose any other punishment

for experimental use in high school.”   Additionally, Appellant

gave a detailed confession as to his use of cocaine, and the

military judge recommended that Appellant be returned to duty.




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United States v. Gorence, No. 04-0607/AF


     Based on all of these facts, we affirm the decision of the

United States Air Force Court of Criminal Appeals.




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United States v. Gorence, No. 04-0607/AF


     ERDMANN, J. (concurring in the result):

     I agree that any error made by the military judge in

admitting Gorence’s mother’s speculative testimony about her

son’s pre-service drug use was harmless.   As to Issue I, in

light of the lack of clarity in the military judge’s ruling, I

cannot be certain how he considered the mother’s testimony, if

at all.   Consequently I cannot join in the majority’s conclusion

that the Court of Criminal Appeals “found an alternative

foundational basis for the rebuttal evidence considered by the

military judge.”   __ M.J. at __ (8).   However, in light of the

fact that the Court of Criminal Appeals found no prejudice “even

if we were to assume there was error,” I would affirm the

decision below on that basis.
