          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                Senior Airman JOSEPH R. FEARS
                                      United States Air Force

                                              ACM S32331

                                             3 January 2017

         Sentence adjudged 9 April 2015 by SPCM convened at Lajes Field, Azores,
         Portugal. Military Judge: Christopher Leavey.

         Approved Sentence: Bad-conduct discharge, confinement for one month,
         and reduction to E-1.

         Appellate Counsel for Appellant: Major Lauren A. Shure.

         Appellate Counsel for the United States: Major J. Ronald Steelman III and
         Gerald R. Bruce, Esquire.

                                                  Before

                                 J. BROWN, BENNETT, and MINK
                                      Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



BENNETT, Judge:

       A panel of officers sitting as a special court-martial convicted Appellant, contrary
to his plea, of wrongful use of cocaine in violation of Article 112a, UCMJ, 10 U.S.C. §
912a. The adjudged and approved sentence was a bad-conduct discharge, confinement for
one month, and reduction to E-1. Appellant now asserts: (1) the military judge erred by
instructing the members that they must enter a finding of guilty if the Government proved
its case beyond a reasonable doubt and (2) the evidence is legally and factually insufficient
to sustain his conviction. 1 We disagree and affirm.

                                                    Background

       Following a random urinalysis, Appellant’s sample tested positive for 476
nanograms per milliliter (ng/ml) of benzoylecgonine, a metabolite for cocaine. 2 When a
person ingests cocaine, a schedule II controlled substance, the body metabolizes it, and one
of the by-products is benzoylecgonine, which can be detected in the urine of the user.

       Appellant’s urine sample was tested by the Air Force Drug Testing Laboratory, and
the results were compiled in a computer-generated drug testing report. The Government’s
case-in-chief consisted primarily of the drug testing report and the testimony of an expert
witness who provided an opinion based on the data contained in this report.

                                              Findings Instructions

        Prior to deliberations on findings, the military judge instructed the panel members
as follows with respect to the significance and requirements of the “beyond a reasonable
doubt” standard:

                            First, that the accused is presumed to be innocent until
                    his guilt is established by legal and competent evidence beyond
                    a reasonable doubt; second, if there is reasonable doubt as to
                    the guilt of the accused, that doubt must be resolved in favor of
                    the accused and he must be acquitted; and lastly, the burden of
                    proof to establish the guilt of the accused beyond a reasonable
                    doubt is on the Government. The burden never shifts to the
                    accused to establish innocence or to disprove the facts
                    necessary to establish each element of each offense.

                           A “reasonable doubt” is a conscientious doubt, based
                    upon reason and common sense, and arising from the state of
                    the evidence.

                             Some of you may have served as jurors in civil cases or
                    as members of an administrative board, where you were told
                    that it is only necessary to prove that a fact is more likely true
                    than not true. In criminal cases, the Government’s case must

1
    The second issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
    The Department of Defense threshold level for this metabolite is 100 ng/ml.


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                 be more powerful than that. It must be beyond a reasonable
                 doubt.

                         “Proof beyond a reasonable doubt” is proof that leaves
                 you firmly convinced of the accused’s guilt. There are very
                 few things in this world that we know with absolute certainty,
                 and in criminal cases the law does not require proof that
                 overcomes every possible doubt.           If, based on your
                 consideration of the evidence, you are firmly convinced that
                 the accused is guilty of the offense charged, you must find him
                 guilty.

                        If, on the other hand, you think there is a real possibility
                 the accused is not guilty, you must give him the benefit of the
                 doubt and find him not guilty.

(Emphasis added).

        Appellant did not object to this instruction, but now argues that it violates Supreme
Court precedent prohibiting a trial judge from “directing the jury to come forward with [a
guilty verdict], regardless of how overwhelmingly the evidence may point in that
direction.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572–73 (1977)
(citation omitted). Specifically, Appellant objects to this language from the instruction:
“If, based on your consideration of the evidence, you are firmly convinced that the accused
is guilty of the offense charged, you must find him guilty.”

        We review de novo the military judge’s instructions to ensure that they correctly
address the issues raised by the evidence. United States v. Maynulet, 68 M.J. 374, 376
(C.A.A.F. 2010); United States v. Thomas, 11 M.J. 315, 317 (C.M.A. 1981). Where, as
here, trial defense counsel made no challenge to the instruction now contested on appeal,
the appellant forfeits the objection in the absence of plain error. 3 R.C.M. 920(f). If we
find error, we must determine whether the error was harmless beyond a reasonable doubt.
United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011).

       The language used by the military judge in Appellant’s case is—and has been for
many years—an accepted reasonable doubt instruction used in Air Force courts-martial.
See, e.g., United States v. Sanchez, 50 M.J. 506, 510–11 (A.F. Ct. Crim. App. 1999). It
was also offered by our superior court as a suggested instruction. United States v. Meeks,
41 M.J. 150, 157 n.2 (C.M.A. 1994) (citing Federal Judicial Center, Pattern Criminal Jury


3
  We recognize that R.C.M. 920(f) speaks of “waiver;” however, Appellant’s failure to object at trial was, in fact,
forfeiture. United States v. Sousa, 72 M.J. 643, 651–52 (A.F. Ct. Crim. App. 2013).


                                                    3                                                ACM S32331
Instruction 17-18 (1987)). Both Sanchez and Meeks were decided after the authorities cited
in Appellant’s brief.

       Based on this legal landscape, we cannot say that the military judge committed error,
plain or otherwise, in his reasonable doubt instruction.

                               Legal and Factual Sufficiency

       This court reviews issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency is ‘whether,
considering the evidence in the light most favorable to the prosecution, a reasonable
factfinder could have found all the essential elements beyond a reasonable doubt.’” United
States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw every
reasonable inference from the evidence of record in favor of the prosecution.” United
States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001); see also United States v. McGinty, 38
M.J. 131, 132 (C.M.A. 1993).

        The test for factual sufficiency is “whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed the witnesses, [we are]
convinced of [Appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. In
conducting this unique appellate role, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to “make [our]
own independent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. The term
reasonable doubt, however, does not mean that the evidence must be free from conflict.
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our assessment of legal and
factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993).

       The elements of the offense Appellant was convicted of are:

       (1) That, between on or about 25 April 2014 and on or about 2 May 2014, at
           or near Terceira, Azores, Portugal, Appellant used cocaine;

       (2) That Appellant actually knew he used the substance;

       (3) That Appellant accused actually knew that the substance he used was
           cocaine or of a contraband nature; and

       (4) That the use by Appellant was wrongful.



                                           4                                       ACM S32331
       Wrongfulness of the use may be inferred in the absence of evidence to the contrary.
United States v. Bond, 46 M.J. 86, 90 (C.A.A.F. 1997). It can also be inferred that
Appellant knowingly used cocaine based on the presence of benzoylecgonine in his urine.
See United States v. Thomas, 65 M.J. 132, 134 (C.A.A.F. 2007); United States v. Harper,
22 M.J. 157, 162 (C.M.A. 1986); Manual for Courts-Martial, United States, pt. IV, ¶
37.c.(10) (2012 ed.).

        Appellant’s attack on the legal and factual sufficiency of his conviction is based,
inter alia, on the following assertions: (1) he ran a marathon the day before his urinalysis;
(2) he had elected to separate and join the Reserves; and (3) he had been accepted by an
undergraduate program and hoped to one day become an officer. In short, according to
Appellant, cocaine use was inconsistent with his lifestyle. This is essentially the same
argument he made at trial.

       Dr. HN, a lab certifying official from the Air Force Drug Testing Laboratory, was
recognized as an expert in forensic chemistry and toxicology. Based on her review of the
drug testing report and other documentary evidence, she was able to testify that the
screening of Appellant’s urine sample was done properly, without error, and that his sample
contained 476 ng/ml of benzoylecgonine. Moreover, she testified that this concentration
was consistent with recreational use.

       We have considered the evidence in the light most favorable to the prosecution. We
have also made allowances for not having personally observed the witnesses. Having paid
particular attention to the matters raised by Appellant, we find the evidence legally
sufficient to support his conviction for wrongful use of cocaine. Furthermore, we are,
ourselves, convinced of his guilt beyond a reasonable doubt; thus the evidence is also
factually sufficient to support this conviction.

                                        Conclusion

       The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of Court



                                          5                                      ACM S32331
