           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                 Airman KEVIN C. BURKHEAD
                                     United States Air Force

                                              ACM S32281

                                            9 February 2016

         Sentence adjudged 10 October 2014 by SPCM convened at Dyess Air Force
         Base, Texas. Military Judges: Shelly W. Schools and Lyndell M. Powell.

         Approved Sentence: Bad-conduct discharge.

         Appellate Counsel for Appellant: Captain Melissa Biedermann.

         Appellate Counsel for the United States:                Lieutenant Colonel Roberto
         Ramirez and Gerald R. Bruce, Esquire.

                                                  Before

                             ALLRED, SANTORO, and MAYBERRY
                                  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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



SANTORO, Judge:

       At a special court-martial, Appellant pled guilty to the wrongful use of oxycodone,
a Schedule II controlled substance, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.
Contrary to his plea, he was convicted by officer members of the wrongful use of
cocaine, also in violation of Article 112a, UCMJ. The adjudged and approved sentence
was a bad-conduct discharge. On appeal, Appellant asserts: (1) the record of trial is not
substantially complete and (2) the evidence is legally and factually insufficient to sustain
his conviction for wrongfully using cocaine. He raises both issues pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We disagree and affirm.
                                       Background

       Appellant told the military judge during his plea colloquy, United States v. Care,
18 C.M.A. 535 (C.M.A. 1969), that he suffered a lower extremity injury when in
technical training to become a member of the Tactical Air Control Party (TACP). That
injury resulted in both Appellant’s reclassification into materiel management and chronic
pain for which he held a prescription for several pain medications, including
hydrocodone. During a trip to his home in Dallas, Texas, in April 2014, Appellant’s
friend gave him 12 oxycodone pills. Appellant took portions of the oxycodone pills for
pain relief. He did not have a valid prescription for oxycodone.

       On 5 May 2014, Appellant’s squadron commander ordered all members of his
squadron to submit to a urinalysis inspection. Appellant’s urine tested positive for the
presence of both hydrocodone and oxycodone. A subsequent Bickel test was positive for
hydrocodone, oxycodone, and cocaine. See United States v. Bickel, 30 M.J. 277 (C.M.A.
1990).

       Additional facts necessary to resolve the assignments of error are included below.

                           Completeness of the Record of Trial

       On 29 July 2014, the Chief Trial Judge of the Air Force detailed a military judge
to preside over Appellant’s trial. On 12 September 2014, before the initial Article 39(a),
UCMJ, 10 U.S.C. § 839(a), session, the trial was reassigned to a successor military judge.
While still detailed to the case, the initial military judge held a pretrial conference
pursuant to Rule for Courts-Martial (R.C.M.) 802—apparently to discuss scheduling
matters—but the substance of that R.C.M. 802 conference was neither reduced to writing
nor summarized by the successor military judge on the record. See UNIFORM RULES OF
PRACTICE BEFORE A.F. COURTS-MARTIAL, Rule 2.6 (“Pretrial RCM 802 Scheduling
Conference”). Appellant argues that this omission precludes us from completing our
duties under Article 66, UCMJ, 10 U.S.C. § 866, because the record is not substantially
complete.

      Whether a record is complete and a transcript is verbatim are questions of law that
we review de novo. United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014).
“The requirement that a record of trial be complete and substantially verbatim in order to
uphold the validity of a verbatim record sentence is one of jurisdictional proportion that
cannot be waived.” United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000).

       Rule for Courts-Martial 1103(c)(1) requires that “the record of trial shall include a
verbatim transcript of all sessions except sessions closed for deliberation and voting.”
R.C.M. 1103(b)(2)(B) (emphasis added). The allegedly missing information in this case,



                                             2                                   ACM S32281
however, does not pertain to a session of the court-martial,1 but rather to a conference
held by the initial military judge pursuant to R.C.M. 802. That rule provides:
“Conferences need not be made part of the record, but matters agreed upon at a
conference shall be included in the record orally or in writing. Failure of a party to object
at trial to failure to comply with this subsection shall waive this requirement.” R.C.M.
802(b).

        In a preliminary Article 39(a), UCMJ, session, the successor military judge
summarized the R.C.M. 802 conferences he held with the parties. He also noted that the
initial military judge held an R.C.M. 802 conference but stated that he was not privy to
what had occurred during that conference. At the conclusion of his discussion of all of
the R.C.M. 802 conferences, the military judge asked whether either side desired to
supplement or object to his summary of the R.C.M. 802 sessions. Both answered “no.”

        By expressly declining the opportunity to supplement the record when invited to
do so, Appellant has waived review of this issue. R.C.M. 802(b); see also United States
v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussing the difference between waiver and
forfeiture and the impact of each on an appellant’s rights). Assuming arguendo this was
forfeiture, not waiver, Appellant is still entitled to no relief as the omission of a summary
of this single pretrial conference was insubstantial and did not materially prejudice
Appellant’s substantial rights. Henry, 53 M.J. at 111 (noting that insubstantial omissions
from a record of trial do not raise a presumption of prejudice or affect that record’s
characterization as complete).

                                      Legal and Factual Sufficiency

       Appellant next argues that the evidence is legally and factually insufficient to
sustain his conviction for wrongfully using cocaine. His attack is limited to the
sufficiency of the evidence to establish the situs of the offense.2

       We review 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


1
  A hearing held pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a), is a “session” of the court-martial, see Rule
for Courts-Martial (R.C.M.) 803, whereas a conference held pursuant to R.C.M. 802 is not.
2
  To sustain its burden of proof, the Government introduced the testimony of the base drug testing program manager,
the Airman who observed Appellant provide his sample, and a forensic toxicologist to explain the drug testing
process and results.


                                                        3                                            ACM S32281
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 specification alleged that Appellant used cocaine “at or near” Abilene, Texas,
between on or about 19 May 2014 and on or about 2 June 2014. The evidence adduced at
trial was that Appellant was present for duty at Dyess Air Force Base on all but one day
during that period. On 27 May 2014, however, he took leave and listed his leave location
as Dallas, Texas. Appellant argues that his cocaine ingestion—whether knowing or
unknowing—may have occurred when he was in Dallas and not “at or near” Abilene.

       Because there is no evidence that Appellant’s cocaine use actually occurred in
Dallas, nor did the members’ findings change the location of the offense, this is not a case
in which we must determine whether there was a fatal variance between the pleadings
and the findings.3 Rather, we must determine whether the members could reasonably
have concluded that the cocaine use occurred “at or near” Abilene during the charged
time frame and whether we ourselves agree with that conclusion.

       The Government offered the testimony of A1C DD, a member of Appellant’s
squadron’s command support staff. A1C DD testified not only about Appellant’s leave
status during the charged time frame but also that Appellant’s commander considered
Dallas, Texas, “within the local area” of Dyess Air Force Base. There was no evidence
introduced concerning the actual distance between Abilene and Dallas.4

       During deliberations, the members asked the military judge to define “at or near.”
After discussion with counsel, the military judge gave the following instruction without
objection from either side:

3
  “A variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal
offense by the accused, but the proof does not conform strictly with the offense alleged in the charge.” United
States v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999) (citing United States v. Lee, 1 M.J. 15, 16 (C.M.A. 1975)).
4
  In argument during an Article 39(a), UCMJ, 10 U.S.C. § 839(a) session, trial defense counsel averred that Dallas
was approximately three to three and a half hours’ driving time from Abilene.


                                                        4                                           ACM S32281
              The law doesn’t contain any specific definition of what
              constitutes at or near, other than the standard definition that
              we apply to those terms. I’ll advise you to use your
              commonsense and knowledge of the ways of the world in
              applying those terms during your deliberations. However, I
              will also redirect you to what we call the variance instruction
              that I gave to you in my verbal and written instructions. And
              I’ll reread that to you. If you have doubt about the time,
              place, or manner in which the offense described in the
              specification may have been committed, but you’re satisfied
              beyond a reasonable doubt that the offense was committed at
              a time, at a place, or in a particular manner that differs
              slightly from the exact time, place, or manner in the
              specification, you may make minor modifications in reaching
              your findings by changing the time, place, or manner
              described in the specification, provided that you do not
              change the nature or identity of the offense.

Appellant does not challenge the accuracy of that instruction.

       Based upon the evidence in the record, the members could reasonably have
concluded that Appellant’s cocaine use occurred “at or near” Abilene, Texas. 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. Moreover, we are,
ourselves, convinced of his guilt beyond a reasonable doubt.

                                       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



              LEAH M. CALAHAN
              Clerk of the Court



                                             5                                  ACM S32281
