              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                   ALLYSSA K. SIMMERMACHER
          HOSPITAL CORPSMAN THIRD CLASS (E-4), U.S. NAVY

                           NMCCA 201300129
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 4 October 2012.
Military Judge: LtCol Charles Hale, USMC.
Convening Authority: Commander, Walter Reed National
Military Medical Center, Bethesda, MD.
Staff Judge Advocate's Recommendation: LCDR K.J. Ian, JAGC,
USN.
For Appellant: LT Jared A. Hernandez, JAGC, USN.
For Appellee: Maj Crista D. Kraics, USMC; Maj David N.
Roberts, USMC.

                              29 May 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

JAMISON, Judge:

     A general court-martial composed of officer and enlisted
members convicted the appellant, contrary to her pleas, of
making a false official statement and wrongfully using cocaine
in violation of Articles 107 and 112a, Uniform Code of Military
Justice, 10 U.S.C. §§ 907 and 912a. The members sentenced the
appellant to reduction to pay grade E-3 and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged.

     The appellant raises three assignments of error (AOE). In
her first AOE, the appellant argues that the military judge
abused his discretion when he denied her motion to suppress her
positive urine sample and abate the proceedings based on the
fact that the Naval Drug Screening Laboratory Jacksonville,
Florida (NDSL JAX) destroyed her urine sample prior to the
preferral of charges. In her second AOE, the appellant argues
that the military judge erred when he applied only a
constitutional due process analysis in his ruling denying the
appellant’s motion to suppress and not the more favorable
military regulatory due process requirements associated with the
destruction of evidence. In her third AOE, the appellant argues
that the military judge erred by admitting testimonial hearsay
in the form of a handwritten notation in the NDSL JAX
documentation in violation of her right to confrontation.

     After consideration of the pleadings of the parties and the
record of trial, we conclude that the findings and sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.

                           Background

     This case originally began as an investigation into
allegations of abuse of the appellant’s infant son, which
allegedly occurred in November of 2008. In 2009, the Montgomery
County Police Department, Maryland, opened an investigation into
those allegations of abuse. For reasons that are unclear in the
record, the Montgomery County Police Department suspended its
investigation and, at some point in 2010, the Naval Criminal
Investigative Service (NCIS) took over the investigation.

     On 3 March 2011, while the NCIS investigation was ongoing,
the appellant submitted a urine sample as part of a random
urinalysis. After assigning her urine sample a unique
laboratory accession number (LAN), NDSL JAX screened her sample
and it tested presumptively positive for cocaine based on two
immunoassay tests. The NDSL then conducted a gas
chromatograph/mass spectrometry (GC/MS) confirmation test for
cocaine on 15 March 2011. The GC/MS test detected the presence
of the cocaine metabolite above the Department of Defense (DoD)
cutoff level.

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     On 21 March 2011, NCIS agents interrogated the appellant
regarding her positive urinalysis for cocaine use, as well as
the allegations of abuse of her son. The appellant denied using
cocaine or any other illegal drug. She also denied having
injured her son, and she provided a timeline of events
surrounding the alleged injuries.

     Based on a request from the CA, NDSL JAX provided the
appellant’s command by letter dated 11 April 2011 with a full
report of the testing that revealed that the appellant’s urine
sample had been confirmed as positive for the cocaine
metabolite. Appellate Exhibit XX at 24; Prosecution Exhibit 1
at 1. In this letter, the NDSL informed the appellant’s command
that her urine sample would be disposed of on 16 March 2012
unless an extension was requested. No request having been
forthcoming, NDSL JAX destroyed the appellant’s sample on or
about 16 March 2012, consistent with its own and DoD policy.

     Following an Article 32, UCMJ, investigation, the CA
referred two specifications of making a false official
statement, one specification of wrongful use of cocaine, two
specifications of assault consummated by a battery upon a child,
and one specification of child endangerment. As part of
pretrial litigation, the appellant moved for, and the military
judge granted, severance of the charges associated with the
appellant’s wrongful use of cocaine from the charges alleging
child abuse and child endangerment. AE XLIII.

     In addition to the motion to sever, the appellant moved to
suppress the results of the urinalysis based on the fact that
NDSL JAX destroyed her positive urine sample. AE XX. The
appellant called the Commander, Fort Meade Forensic Toxicology
Drug Testing Laboratory, Major MM, U.S. Army, to offer expert
testimony on the motion to suppress. Record at 304. The
military judge qualified Major MM as an expert in forensic
toxicology. He testified that the appellant’s sample tested
above the Department of Defense (DoD) cutoff level of 100
nanograms per milliliter and that her sample was kept in frozen
storage and destroyed one year after testing positive in
accordance with DoD policy. Major MM also testified that in his
experience, he had never had a sample subject to a retest come
back as negative. Id. at 321. Additionally, he testified that
if the appellant’s sample would have been retested, Major MM
would have expected the sample to test positive at a slightly
lower nanogram level, but not enough to make a difference for
purposes of the DoD cutoff level. Id.


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     After considering all the evidence, the military judge
denied the appellant’s motion to suppress. AE XLII. He
concluded the following: that the appellant had not met her
burden of having shown bad faith on the part of the Government;
that the sample was destroyed as part of the NDSL’s normal
handling procedures; and, that the appellant had provided no
evidence that the retest would have had any exculpatory value.
Id. As a remedial measure, however, the military judge
instructed the members that the sample was destroyed and that
they may “infer the missing evidence would have been adverse to
the prosecution.” Record at 892. Additional facts necessary
for the resolution of a particular AOE are included below.

                             Discussion

Destruction of the Appellant’s Positive Urine Sample

      In her first two AOEs, the appellant takes issue with the
military judge’s denial of the motion to suppress. First, she
argues that the military judge erred by failing to suppress the
appellant’s sample because the evidence was of central
importance to a fair trial and denied her the opportunity to
request to retest the sample to “examine all possible forensic
defenses.” Appellant’s Brief of 3 Oct 2013 at 10. Second, the
appellant argues that the military judge erred when he
considered only the constitutional due process implications
associated with the destruction of evidence and not the
implications of RULE FOR COURTS-MARTIAL 703(f)(2), MANUAL FOR COURTS-
MARTIAL (2012 ed.). Id. at 16. We disagree and address these two
AOEs seriatim.

     We review a military judge’s denial of a suppression motion
under an abuse of discretion standard and “consider the evidence
‘in the light most favorable to the’ prevailing party.” United
States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (quoting
United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)). We
review the military judge’s “factfinding under the clearly
erroneous standard and [his] conclusions of law under the de
novo standard.” United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995) (citations omitted). We will find an abuse of
discretion if the military judge’s “findings of fact are clearly
erroneous or his conclusions of law are incorrect.” Id.

     Based on our review of the record, we conclude that the
military judge’s findings were not clearly erroneous, and we
adopt them for purposes of our appellate review. With regard to
the military judge’s conclusions of law and his ruling, the

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central question turns on whether the appellant’s destroyed
sample was “material exculpatory evidence” or “potentially
useful evidence.” Illinois v. Fisher, 540 U.S. 544, 547-48
(2004). The appellant bears the burden to show that the
destroyed evidence was exculpatory. United States v. Kern, 22
M.J. 49, 51 (C.M.A. 1986). The military judge concluded that
the appellant failed to demonstrate that the destroyed urine
sample was materially exculpatory. AE XLII at 3. We agree.
The appellant’s own expert testified that a retest would have
resulted in a slightly lower nanogram level, but still above the
DoD cutoff level. Record at 321. As a consequence, the
destroyed sample, at best, met the definition of “potentially
useful evidence,” which includes evidence “‘of which no more can
be said than that it could have been subjected to tests, the
results of which might have exonerated the [appellant].’”
Fisher, 540 U.S. at 547-48 (quoting Arizona v. Youngblood, 488
U.S. 51, 57 (1988)).

     Having found that the destroyed urine sample was at best
“potentially useful evidence,” we next consider the military
judge’s ruling denying the motion to suppress. Based on our
analysis, we conclude that the military judge did not abuse his
discretion because suppression is only required if the
Government acted in bad faith in destroying the appellant’s
positive urine sample. Youngblood, 488 U.S. at 57-58; see
Fisher, 540 U.S. at 549 (holding in a per curiam opinion that
the “bad-faith requirement in Youngblood depended” not on the
value or weight of the destroyed evidence, “but on the
distinction between ‘material exculpatory’ evidence and
‘potentially useful’ evidence”).

     Under the circumstances of this case, we find no bad faith
on the part of the Government in following NDSL and DoD policy
and destroying the appellant’s urine sample one year after it
was confirmed positive for the cocaine metabolite. We agree
with the military judge that the Government’s negligent
oversight in not requesting the NDSL to retain the appellant’s
positive urine sample did not rise to the level of bad faith.
The investigatory and -- until the military judge severed the
charges -- the prosecutorial focus was on the appellant’s
alleged culpability with regard to the injuries to her son.

     We also conclude that the military judge fashioned an
appropriate remedy for the Government’s having destroyed the
appellant’s positive urine sample. He instructed the members
that because of the destruction of the appellant’s sample, they
“may infer that the missing evidence would have been adverse to

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the prosecution.” Record at 892; AE XXXVII at 2-3. 1 Not only
was this remedy within the clear discretion of the military
judge, Kern, 22 M.J. at 52, but it was also arguably more
helpful to the appellant’s case. See Youngblood, 488 U.S. at 60
(stating that based on the state’s inadvertent destruction of
certain evidence, the trial court’s instruction that the jury
could infer this evidentiary fact against the prosecution, “the
uncertainty as to what the evidence might have proved [in Mr.
Youngblood’s case] was turned to [his] advantage”) (Stevens, J.,
concurring in the judgment). In this regard, based on the
military judge’s instruction, the appellant was able to turn an
evidentiary unknown into an evidentiary advantage.

     Next, we consider the appellant’s related AOE (AOE II), in
which she argues that even if the military judge correctly
applied the constitutional due process requirements of
Youngblood, he erred in failing to analyze the regulatory
implications of the destroyed sample. Citing United States v.
Manuel, 43 M.J. 282 (C.A.A.F. 1995), for the general proposition
that due process requirements for destroyed evidence under
R.C.M. 703(f)(2) are more favorable to an accused than
constitutional requirements, the appellant argues that the
military judge erred by not analyzing the destruction of the
appellant’s sample through the President’s regulatory due
process lens. Appellant’s Brief at 16-17. We disagree both
with the appellant’s premise and her conclusion.

     We first consider the appellant’s underlying premise that
the military judge did not consider R.C.M. 703(f)(2). Having
considered the military judge’s ruling, we find that he did
apply R.C.M. 703(f)(2) in his analysis. First, the military
judge specifically cited R.C.M. 703(f)(2). AE XLII at 1.
Second, he articulated his analysis in terms of both
“constitutional” and “military standards of due process.” Id.
at 3.

     We also disagree with the appellant’s conclusion that
Manuel stands for the general proposition that with regard to
destroyed evidence, the President’s due process requirements are
analyzed differently under R.C.M. 703(f)(2) than the
constitutional due process requirements. See Kern, 22 M.J. at

1
  The military judge invited defense counsel to craft an instruction for the
members with regard to the destroyed evidence. The appellant’s defense
counsel submitted AE XXXIV. After discussing the matter on the record, the
military judge agreed with the defense request that the tailored instruction
to be given would be “adverse to the prosecution” as opposed to “favorable to
the defense.” Record at 878.
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51 (holding that military law “does not place stricter
requirements on the Government to preserve evidence which is not
‘apparently’ exculpatory than is required of the states under
the fourteenth amendment to the Constitution. . . . [as
California v.] Trombetta[, 467 U.S. 479 (1984)] satisfies both
constitutional and military standards of due process”).

     We do not interpret Manuel as broadly as the appellant. In
Manuel the Air Force Court of Military Review (AFCMR) set aside
Staff Sergeant (SSgt) Manuel’s conviction for cocaine, and the
Air Force Judge Advocate General certified the case to the Court
of Appeals for the Armed Forces (CAAF). Manuel, 43 M.J. at 283.
Evidence at trial reflected that SSgt Manuel’s sample was
destroyed in an untimely manner contrary to the drug testing
laboratory’s policy and that its destruction was “grossly
negligent.” Based on those facts, the CAAF concluded that the
AFCMR did not abuse its discretion in setting aside the
conviction. Id. at 289. In fact, the CAAF went to great
lengths to narrow its holding in Manuel. See id. (“[w]e hold
only that the Court of Military Review did not abuse its
discretion by following that course of remedial action here”)
(footnote and citations omitted).

     Unlike our sister court, we exercise our discretion and
chose not to follow the AFCMR’s remedial action in Manuel.
Unlike the facts in Manuel, we find no “gross negligence” on the
part of the Government and no violation of NDSL or DoD policy
with regard to the destruction of the appellant’s urine sample.
Accordingly, we distinguish Manuel on its facts and conclude
that the military judge did not abuse his discretion in denying
the appellant’s motion to suppress. Additionally, we hold
consistent with Kern and Manuel that the military judge’s course
of remedial action -- a favorable evidentiary instruction -- was
not an abuse of discretion. See Manuel, 43 M.J. at 289 (holding
that the appropriate remedy for “destruction of evidence is left
to the lower court’s discretion”) (citation omitted).

Handwritten Annotation on the Drug Testing Documentation Report

     As part of its case-in-chief, the prosecution offered PE 1,
the drug testing documentation report associated with the LAN
linked to the appellant’s urine sample. Record at 554. The
appellant interposed no objection and the military judge
admitted the 40-page-exhibit. 2 Id.

2
  PE 1 is heavily redacted to ensure compliance with United States v. Blazier,
69 M.J. 218 (C.A.A.F. 2010) and Sweeney. With the exception of the
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     The prosecution called Dr. RB, chemist and certifying
official, NDSL JAX. Record at 748. Without objection by the
appellant, the military judge qualified Dr. RB as an expert in
chemistry and toxicology. Id. at 752. Dr. RB was the NDSL’s
certifying official for the appellant’s positive urine sample.
With regard to the GC/MS testing of the appellant’s sample, Dr.
RB testified that the label that contained the bar code with the
appellant’s LAN was placed either too high or too low on the
vial so that the instrument was unable to read the LAN. Id. at
763-64. Because the machine was unable to read the bar code, a
technician had to physically pick up the vial and verify the LAN
printed on the bar code. Id.

     For the first time on appeal, the appellant argues that the
hand-written annotation of the appellant’s LAN was testimonial
and the Government’s failure to call the technician who made the
handwritten annotation violated her constitutional rights to
confrontation. We disagree.

     Because the appellant failed to object at trial to the
admission of PE 1, we review for plain error. United States v.
Sweeney, 70 M.J. 296, 303 (C.A.A.F. 2011). We find none.

     The initial question in this AOE is whether the handwritten
copy of the machine-generated LAN printed on the bar code
qualifies as a testimonial statement. We review this legal
question de novo. United States v. Tearman, 72 M.J. 54, 58
(C.A.A.F. 2013). Whether a particular statement is testimonial
turns on whether that statement is an “‘incontrovertibl[e] . . .
affirmation[] made for the purpose of establishing or proving
some fact’ in a criminal proceeding.” Bullcoming v. New Mexico,
564 U.S. __, 131 S.Ct. 2705, 2716 (2011) (quoting Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 310 (2009)); see also Sweeney,
70 M.J. at 305 (stating that signatures and notations on
internal chain of custody documents and data review sheets are
nontestimonial for purposes of plain error review); Tearman, 72
M.J. at 59 (holding that none of the chain-of-custody documents
or the internal review worksheets that contained names,
signatures, and dates qualify as testimonial statements).

     Under the circumstances of this case, we conclude that the
technician’s handwritten copy of the LAN associated with the
appellant’s urine sample did not qualify as a solemn affirmation
“made in order to prove a fact at a criminal trial.”


handwritten LAN entry, the appellant does not assert that any other
annotation within the redacted exhibit is testimonial.
                                      8
Bullcoming, 131 S.Ct. at 2716 (citation and internal quotation
marks omitted). The LAN, J1002833048, while unique to the
appellant, and printed throughout Prosecution Exhibit 1, does
not prove a fact at a criminal trial. Rather, the handwritten
annotation is similar in evidentiary scope to a machine-
generated data entry. In fact, this was a mere repetition of
machine-generated data because the machine-generated LAN appears
twice on the two lines immediately above the handwritten
annotation. PE 1 at 30. 3 Accordingly, we hold that the simple
copying of a machine-generated LAN does not qualify as
testimonial hearsay.

     Additionally, we conclude that under the unique
circumstances of this case, the appellant cannot meet her plain
error burden. First, she cannot meet her burden of
demonstrating an error because her assertion of error is
predicated the assertion that the handwritten copy of the LAN is
testimonial, a premise we reject. The appellant cites no
authority for her argument that the handwritten LAN is
testimonial, other than her desire to preserve this issue for
purposes of appeal. Appellant’s Brief at 18. 4 Accordingly, the
appellant fails in her burden to demonstrate that the error was
plain or obvious. United States v. Harcrow, 66 M.J. 154, 158
(C.A.A.F. 2008).

     Finally, the appellant cannot demonstrate any prejudice
associated with the apparent misplacement of a bar code label on
her vial that caused the machine to be unable to read the label. 5
Dr. RB testified that the technician had to make an additional
and independent verification to ensure that the appellant’s
sample was injected into the vial in question. Record at 763.
This required the technician to “pick up the vial [and] verify
the Laboratory Accession Number that’s printed by the bar code.”
Id. at 764.

3
  PE 1 contains two different paginations. Based on our review of the record,
Dr. RB refers to page 30 of PE 1. Record at 763-64. For purposes of our
analysis we cite to the pagination as referenced in the record.
4
  The appellant’s preservation of this issue is premised on the-then pending
petition for writ of certiorari in Tearman. That writ was denied on 7
October 2013. 134 S.Ct. 268 (Oct. 7, 2013) (summary disposition).
5
  Because we conclude that the physical verification and annotation on PE 1 by
a lab technician does not qualify as testimonial hearsay, we analyze the
appellant’s assertion of error by placing the burden on her to demonstrate
material prejudice to her substantial rights by analyzing the handwritten
annotation as nontestimonial hearsay. Harcrow, 66 M.J. at 158; M ILITARY RULE OF
EVIDENCE 103(d), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed).
                                       9
     In this case, we agree with the military judge’s
observation that, if anything, the appellant’s sample received
greater scrutiny due to the fact that its LAN had to be manually
read and verified. Record at 949. There is no evidence the
technician associated the appellant with that particular LAN.
In fact, Dr. RB testified that this manual verification did not
affect in any way the chain-of-custody or the testing procedures
and that every other sample was read properly by the machine.
Id. at 764. Additionally, Dr. RB testified as the certifying
official that there were no discrepancies associated with
testing of the appellant’s sample. Id. at 769, 783, and 785.

     Under the circumstances of this case, we find that even if
error, the admission of the handwritten LAN did not prejudice
the appellant. See United States v. Marcus, 560 U.S. 258, 262
(2010) (stating that to be “prejudicial” under the Supreme
Court’s plain error test, a defendant must demonstrate “a
reasonable probability that the [alleged] error affected the
outcome of the trial”). Redacting the handwritten LAN would not
have had an effect on the overall integrity of the testing of
the appellant’s sample because the technician’s manual
verification did not in any way affect the calibration or
testing parameters of the GC/MS test. With regard to factors
that may have affected the outcome of the appellant’s trial, we
note that the Government relied on additional circumstantial
evidence to argue its case. In addition to the positive
urinalysis, we are mindful of the testimony of CD, the
appellant’s estranged boyfriend. According to CD, the appellant
requested on at least ten separate occasions that he testify
falsely at her court-martial that he had used cocaine and that
cocaine got into the appellant’s system through their having had
sexual intercourse. Record at 800.

                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

     Senior Judge MITCHELL and Judge FISCHER concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court


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