

   
   
   
   U.S. v. Glover



IN THE CASE OF
UNITED STATES, Appellee
v.
Grady D. GLOVER, Staff Sergeant
U.S Army, Appellant
 
No. 98-0822
Crim. App. No. 9600736
 
United States Court of Appeals for
the Armed Forces
Argued April 6, 1999
Decided July 2, 1999
EFFRON, J., delivered the opinion
of the Court, in which COX, C.J., and CRAWFORD and GIERKE, JJ., joined.
SULLIVAN, J., filed an opinion concurring in the result.

Counsel
For Appellant: Captain
Marc D. A. Cipriano (argued); Major Leslie A. Nepper (on brief);
Colonel
John T Phelps, II.
For Appellee: Major
Patricia A. Ham (argued); Lieutenant Colonel Eugene R. Milhizer
(on brief); Colonel Russell S. Estey and Major Lyle D. Jentzer.
Military Judge: Richard
J. Hough

 

THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge EFFRON delivered the opinion
of the Court.
A general court-martial composed of
officer members convicted appellant, contrary to his pleas, of resisting
apprehension, damaging military property (2 specifications), reckless driving,
and wrongful use of an inhalant (3 specifications), in violation of Articles
95, 108, 111, and 134, Uniform Code of Military Justice, 10 USC §§
895, 908, 911, and 934, respectively.
He was sentenced to a bad-conduct discharge,
confinement for 141 days, and reduction to Private E-1. The convening authority
approved the adjudged sentence and credited appellant with 141 days against
his sentence to confinement. The Court of Criminal Appeals affirmed the
findings and sentence.
Appellant's convictions arise from
his inhalation of Dust-Off, a cleaning product, and his conduct while under
its influence. On appellants petition, we granted review of the following
issue:



WHETHER THE FAILURE TO INSTRUCT THE
PANEL ON THE ELEMENT OF WRONGFULNESS NECESSARY FOR FINDINGS OF GUILTY IN
THE SPECIFICATIONS OF CHARGE IV [WRONGFUL INHALATION OF CHLORODIFLUOROMETHANE
AND DIFLUOROETHANE] WAS PLAIN ERROR BY THE MILITARY JUDGE



For the reasons stated below, we affirm
the decision of the Court of Criminal Appeals.

I. BACKGROUND
A. THE CHARGED MISCONDUCT
The granted issue concerns three separate
incidents which led to the charge of wrongful use of an inhalant. The first
incident took place while appellant was driving on post. When he reached
a "T" intersection, appellant failed to turn, gunned the engine of his
minivan, and crashed into the quarters of Staff Sergeant (SSG) Vera. Witnesses
who arrived on the scene shortly after the crash testified that appellant
appeared to be having a seizure. One witness testified that he noticed
a "silverish-gray" can between appellant's legs. Appellant was dragged
from his minivan while both the vehicle and the house caught fire. The
fire destroyed the home, and SSG Vera and his family lost all of their
possessions. A can of Dust-Off was retrieved from appellant's vehicle after
the fire was extinguished.
In the second incident, which occurred
2 weeks later, the Military Police (MPs) were called to the post library
because of suspicious activity in a restroom. When they entered the restroom,
the MPs heard moaning and a spraying sound coming from inside a locked
stall. The MPs ordered the occupant to leave the stall, and appellant emerged,
stumbling and looking confused. A can of Dust-Off was retrieved from the
stall. Appellant admitted that the Dust-Off was his and told medical personnel
that he had been inhaling it. He later told an investigator that he inhaled
the Dust-Off because it was a "quick high."
The third incident occurred 3 weeks
after the second, while appellant was on his lunch break. A coworker, SSG
Mitchel, drove appellant home for lunch. SSG Mitchel returned to appellant's
house at the end of the lunch hour, but appellant did not answer his door,
and SSG Mitchel returned to work alone. When SSG Mitchel determined that
appellant was not at work, Mitchel returned to appellant's house to check
on him. While searching through the house, SSG Mitchel heard a sound like
the discharge from an aerosol can in the bathroom. Because the bathroom
was locked, Mitchel became worried for appellant's safety. Mitchel tried
to talk appellant into opening the bathroom door while he had a neighbor
call for paramedics. When appellant finally opened the bathroom door, SSG
Mitchel witnessed appellant inhaling from a Dust-Off can. SSG Mitchel and
the neighbor then helped appellant from the bathroom.
Appellant refused to allow the paramedics
to treat him and punched his hand through a window in the house. As a result
of this confrontation, MPs were called to the scene. Appellant was belligerent
toward the MPs, refused to be frisked, and threatened to punch a car window.
Eventually, the MPs were able to frisk and handcuff him. Once in the MPs'
vehicle, appellant fought against being restrained and bit an MP on the
arm when the MP attempted to secure appellant's seat belt. The MPs retrieved
a can of Dust-Off from the house.

B. THE MILITARY JUDGE'S INSTRUCTIONS
AT TRIAL
With respect to the offense of wrongful
inhalation, the military judge instructed the members as to two elements.
First, that on the various charged dates, "Staff Sergeant Glover did a
certain act; that is, that he inhaled -- he wrongfully inhaled chlorodifluoromethane
or some hazardous substance." Second, "that under the circumstances his
conduct was to the prejudice of good order and discipline in the Army,
or was of a nature to bring discredit upon the Army." The judge gave amplifying
instructions on the meaning of "prejudicial to good order and discipline"
and "service discrediting." Appellant contends that the military judge
erred because he failed to further instruct the members as to the legal
meaning of "wrongfully inhaled," and that this failure to instruct constituted
plain error.

II. DISCUSSION
A military judge is required to instruct
the members on the elements of each charged offense. See RCM 920(e)(1),Manual
for Courts-Martial, United States (1998 ed.). If a judge "omits entirely
any instruction on an element of the charged offense, this error may
not be tested for harmlessness because, thereby, the court members are
prevented from considering that element at all." United States v. Mance,
26 MJ 244, 255 (CMA 1988) (emphasis in original). In the present case,
the military judge did not omit entirely an instruction on wrongfulness.
He instructed the members that, in order to find appellant guilty, they
had to find that he "wrongfully inhaled" the Dust-Off. Thus, reversal is
not required under Mance.
The question remains whether the judge
erred by failing to give a more specific or amplified instruction on the
meaning of wrongfulness. Because defense counsel did not request such an
instruction, we test for plain error. See generally United
States v. Powell, 49 MJ 460, 463-64 (1998) (requiring identification
of a clear or obvious error that materially prejudiced substantial
rights of the accused). We conclude there was no plain error in this case.
The failure to give a more detailed
instruction on wrongfulness was not clear or obvious error, particularly
in the absence of any explicit precedent requiring such an instruction.
The offense, wrongful inhalation of a toxic substance, was charged under
the general provisions of Article 134. The Military Judges' Benchbook (Dept.
of the Army Pamphlet 27-9 (Sept. 1996)) contains no model instruction for
the charged offense. Appellant notes that the model instruction for wrongful
use of a controlled substance requires a more detailed definition of wrongfulness.
Id.
at para. 3-37-2(d). The substance at issue in this case, however, was not
a controlled substance. In that regard, we note that the Benchbook -- with
respect to the similar offense of wrongful overindulgence of alcohol --
does not require a more detailed instruction for wrongfulness. Id.
at para. 3-76-1. It is noteworthy that, during the sentencing proceedings
at trial, appellant expressly rejected comparison of his offense to wrongful
use of a controlled substance and analogized it to alcohol abuse. The military
judge agreed, and provided a sentencing instruction that contained a maximum
punishment significantly lower than the maximum that would have applied
if the military judge had used the maximum for drug abuse. In light of
these circumstances, and in the absence of any case law requiring a more
detailed instruction, the failure to provide such an instruction was not
a clear or obvious error.
Even if there was clear and obvious
error, it was not prejudicial. See United States v. Powell,
supra;
Art. 59(a), UCMJ, 10 USC § 859(a). This case did not involve evidence
of unknowing ingestion; nor did it involve a claim of inadvertent ingestion
in the course of appropriate use of the substance. In light of the nature
of the evidence in the present case, there was little chance that the members
would be unclear about how to apply the word "wrongful" in reaching findings.
The instructions, when considered as a whole, were sufficient to ensure
that appellant would not be convicted for an innocent inhalation of the
Dust-Off in the context of the evidence in this case. As a result, appellant
was not prejudiced by the lack of an instruction defining the word "wrongfully."

III. DECISION
The decision of the United States Army
Court of Criminal Appeals is affirmed.
 
 
SULLIVAN, Judge (concurring in the
result):
The wrongfulness language in this specification
of inhalant use under Article 134, Uniform Code of Military Justice, was
clearly surplusage. See United States v. Davis, 26 MJ 445,
448-49 (CMA 1988). I would affirm on the basis that proper instructions
were given that the use of an inhalant had to be shown to be a service
disorder or discredit, and ample evidence supported such a finding in this
case. Id.

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