          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                          UNITED STATES

                                                    v.

                         Staff Sergeant CHRISTOPHER B. STARKS
                                    United States Air Force

                                             ACM S32221

                                              16 July 2015

         Sentence adjudged 2 October 2013 by SPCM convened at Holloman
         Air Force Base, New Mexico. Military Judge: Michael J. Coco.

         Approved Sentence: Bad-conduct discharge, confinement for 3 months and
         28 days, and reduction to E-3.

         Appellate Counsel for the Appellant: Captain Travis L. Vaughn.

         Appellate Counsel for the United States: Major Daniel J. Breen;
         Major Roberto Ramírez; and Gerald R. Bruce, Esquire.

                                                 Before

                               HECKER, SANTORO, and TELLER
                                   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         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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:

       A special court-martial composed of officer and enlisted members convicted the
appellant, contrary to his pleas, of wrongfully using and possessing methamphetamine,
and possessing drug paraphernalia, in violation of Articles 112a and 134, UCMJ,
10 U.S.C. §§ 912a, 934. The adjudged sentence consisted of a bad-conduct discharge,
confinement for 4 months, and reduction to E-3. The convening authority reduced the
confinement to 3 months and 28 days but otherwise approved the adjudged sentence.
       The appellant argues that (1) the military judge erred in admitting portions of a
drug testing report and expert testimony related thereto, and (2) the evidence is factually
and legally insufficient to sustain his convictions.1 We disagree and affirm.

                                                  Background

       On 8 January 2013, the appellant, a member of the Security Forces squadron, was
not scheduled to work and invited several friends to have a video game day at his house.
He and two female civilians went to a mobile home to pick up a third friend, who was
also going to participate in the game day. They waited approximately an hour before
eventually leaving the third friend and going back to the appellant’s house. Others joined
them later in the day, and they played video games and engaged in other activities past
midnight.

       The following day, the appellant went to work and left, at minimum, the two
female civilians at his residence. When the women awoke, they cleaned the appellant’s
house, did his laundry and, according to their testimony, closed but did not lock his front
door when they left.

       Later that afternoon, a neighbor called the local police and reported the appellant’s
front door was open. Police responded and, while securing the residence, found plastic
baggies containing a white substance, a glass pipe wrapped in a washcloth, and other
materials the officers believed were drug paraphernalia. Scientific testing determined the
baggies contained methamphetamine residue, and the appellant’s DNA was found on the
glass pipe.

       Police called the appellant to tell him his residence was unsecured. He responded
and was arrested when he arrived. As part of the ensuing investigation, Air Force
investigators obtained a search authorization and obtained a sample of the appellant’s
urine which later tested positive for methamphetamine.

        Additional facts necessary to resolve the assigned errors are included below.

                                   Admission of Drug Testing Report

       Prosecution Exhibit 1 was an excerpt from the report of the analysis of the
appellant’s urine. It was initially offered by the prosecution in an Article 39(a), UCMJ,
10 U.S.C. § 839(a), session without objection from the defense. In a subsequent
Article 39(a), UCMJ, session and before the members had seen the exhibit, trial defense
counsel noted that he should have objected and asked the military judge to reconsider the

1
 The appellant raised this assignment of error, as it applies to Charge I, Specification 2, and the Specification of
Charge II, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                         2                                            ACM S32221
document’s admissibility on hearsay, chain of custody, and confrontation clause grounds.
The military judge agreed to reconsider and, after hearing the defense’s objection,
declined to admit Prosecution Exhibit 1 without additional foundation. The government
then called additional foundational witnesses, and the military judge admitted the
document.

       The government’s attempt to establish the foundation for Prosecution Exhibit 1
covered several Article 39(a), UCMJ, sessions and was muddled at best. Although the
military judge did not explicitly cite Mil. R. Evid. 104(b),2 the context of the discussion
suggests he believed sufficient facts would be introduced during trial to connect the
necessary foundational dots.

       Prosecution Exhibit 1 was eventually shown to the court members, who also heard
testimony of an expert forensic toxicologist about the testing process and the positive
methamphetamine result. However, there was a missing critical foundational element:
there was no witness or evidence that directly tied the tested urine sample to the
appellant. The Air Force investigators who seized the sample did not follow the
collection, marking, or reporting procedures outlined in Air Force Instruction 44-120,
Military Drug Demand Reduction Program (3 January 2011, Incorporating Change 1,
6 June 2012), nor did they take sufficient other steps to create an evidentiary link between
the seized sample, the sample that formed the basis of the drug testing report, and the
expert’s opinion.

       The military judge identified the deficiency at the conclusion of the evidence and
took two remedial measures. First, he declined to include what would otherwise have
been a standard panel instruction about the inferences that could be drawn from the
presence of a drug in one’s urine. Second, he instructed the members they were not to
consider the expert’s testimony or any reference to a positive urinalysis for any reason
with respect to any of the charges and specifications. The military judge specifically
asked the members if they could follow that instruction. Each replied that he or she
could. In his discussions with counsel, the military judge noted that his remedial
measures had “effectively granted the motion to suppress” that evidence.

      We review a military judge’s evidentiary rulings for an abuse of discretion.
See United States v. Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001). Under that analysis,

2
    Mil. R. Evid. 104(b):

                    Relevancy that Depends on a Fact. When the relevance of evidence depends on
                    whether a fact exists, proof must be introduced sufficient to support a finding
                    that the fact does exist. The military judge may admit the proposed evidence on
                    the condition that the proof be introduced later. A ruling on the sufficiency of
                    evidence to support a finding of fulfillment of a condition of fact is the sole
                    responsibility of the military judge, except where those rules or this Manual
                    provide expressly to the contrary.


                                                           3                                           ACM S32221
findings of fact are reviewed for clear error and conclusions of law are reviewed de novo.
United States v. Gallagher, 66 M.J. 250, 253 (C.A.A.F. 2008). The abuse of discretion
standard is strict, calling for the challenged action to be “arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997);
United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)) (internal quotation marks
omitted). “[T]he abuse of discretion standard recognizes that a judge has a range of
choices and will not be reversed so long as the decision remains within that range.”
United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace,
964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).

       The appellant’s brief extensively discusses the evidentiary infirmities of
Prosecution Exhibit 1 and the related expert testimony. It also notes the military judge’s
ultimate exclusion of the contested evidence and his instruction to the members that they
were to disregard it. However, without elaboration, the appellant asserts the only
“reasonable conclusion” is that the members ignored the military judge’s instruction to
disregard the evidence.

       Assuming without deciding that the military judge abused his discretion in initially
admitting the evidence, the military judge permissibly––and appropriately––reconsidered
and reversed his admissibility ruling.3 A military judge has inherent authority to
reconsider any ruling made and to receive additional evidence thereon if appropriate.
See Rule for Courts-Martial (R.C.M) 905(f) (“On request of any party or sua sponte, the
military judge may . . . reconsider any ruling, other than one amounting to a finding of
not guilty.”); Harrison v. United States, 20 M.J. 55 (C.M.A. 1985).

       We next turn to the question of whether the members impermissibly considered
the excluded evidence in reaching their verdict. Court members are “presumed to follow
instructions, until demonstrated otherwise.” United States v. Washington, 57 M.J. 394,
403 (C.A.A.F. 2002) (citing United States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991)). We
will address the appellant’s legal and factual sufficiency arguments below; however, he
points to nothing specific in the record to suggest that the members failed to follow the
military judge’s instructions to disregard the evidence.



3
  The military judge’s instruction to the members to disregard completely any reference to the urinalysis result may
have given the appellant an undeserved windfall. The test result’s exclusion was based on a failure in the chain of
custody linking the specimen to the appellant. At the time military investigators interviewed the appellant and
confronted him with the positive urinalysis result, they reasonably believed he had tested positive and based their
questions on that belief. He made admissions that, pursuant to the military judge’s instructions, the members were
to disregard. Even had investigators not yet received the urinalysis results, they could still permissibly have told
him his test was positive, in an effort to gauge his reaction. See United States v. Thrower, 36 M.J. 613, 614
(A.F.C.M.R. 1992) (“The use of deception in obtaining a confession is not impermissible as long as the artifice was
not designed or calculated likely to produce an untrue confession.”).


                                                         4                                            ACM S32221
       The appellant’s argument appears to be that, despite the military judge’s ultimate
exclusion of the evidence and despite his instructions to the members, the very fact that
they heard the evidence was so prejudicial that an instruction was insufficient to cure the
potential prejudice. However, the experienced civilian defense counsel at trial apparently
disagreed, as he did not request a mistrial.4

       Rule for Courts-Martial 915(a) provides that a mistrial may be declared when it is
“manifestly necessary in the interest of justice because of circumstances arising during
the proceedings which cast substantial doubt upon the fairness of the proceedings.” The
rule’s discussion offers the example of granting a mistrial “when inadmissible matters so
prejudicial that a curative instruction would be inadequate are brought to the attention of
the members.” R.C.M. 915(a), Discussion. “[A] mistrial is an unusual and disfavored
remedy. It should be applied only as a last resort to protect the guarantee for a fair trial.”
United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003). The decision to declare a mistrial
sua sponte is within the sound discretion of the military judge. As our superior court
noted:

                 [An appellate court] will not reverse such a determination
                 unless the military judge has abused his discretion under the
                 particular facts and circumstances of the case before him. An
                 abuse of discretion cannot be readily defined in general terms
                 so as to establish hard and fast rules applicable to all
                 individual courts-martial; to do so would curtail the broad
                 powers of the trial judge to act in response to the particular
                 facts and circumstances as perceived by him at the trial level.

United States v. Rosser, 6 M.J. 267, 270–71 (C.M.A. 1979) (footnote omitted). In the
absence of a defense request, and based on the facts of this case, we cannot say that the
military judge abused his broad powers to act in response to the facts as he perceived
them.

                                      Legal and Factual Sufficiency

       The appellant challenges the legal and factual sufficiency of the evidence of each
specification. With respect to the specification alleging use of methamphetamine, he
asserts the only evidence supporting that specification was the excluded urinalysis result.
With respect to the convictions for possession of methamphetamine and drug
paraphernalia, he argues, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.


4
 Trial defense counsel did make a motion for a finding of not guilty pursuant to Rule for Courts-Martial 917. The
military judge, after noting that he was obligated to review the evidence in the light most favorable to the
prosecution, identified other evidence which, if believed, could support a guilty finding. We discuss that evidence
more fully when we consider the sufficiency of the evidence.


                                                        5                                            ACM S32221
1982), that the drugs and paraphernalia were introduced into his residence by a third
party without his knowledge.

       We review issues of legal and factual sufficiency de novo. See Washington,
57 M.J. at 399. “The test for legal sufficiency of the evidence 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 (C.M.A. 1987)). Proof beyond a reasonable doubt does not mean that the
evidence must be free of conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.
1986).

       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 the [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.

       A reasonable factfinder could have found the appellant guilty of using
methamphetamine even without consideration of the urinalysis result and related expert
testimony. In the appellant’s bedroom, investigators found next to his bed a glass
smoking pipe of the type commonly used to smoke methamphetamine. The pipe
contained methamphetamine residue and burn markings. It also contained the appellant’s
DNA. The appellant told investigators he knew it was a pipe used for smoking
methamphetamine.        He testified he was in his bedroom on the evening of
8 January 2013 but did not see the pipe next to his bed. The appellant’s testimony at trial
contained other issues and inconsistencies which the members could reasonably have
found negatively impacted his credibility. For example, the appellant testified that when
he was waiting at the mobile home, he noted that there was “a lot of smoke” and that “it
smelled a little weird,” but he did not tell investigators that when they interviewed him.
He also testified that on 9 January 2013 when he went to work, he took a pack of
cigarettes from his coffee table and smoked the entire pack that day which left him
feeling “weird.” He noted that the cigarettes had “kind of like a liquid, or it seemed like
they got wet after lighting them.” After considering all the admissible evidence in the
case, we are convinced beyond a reasonable doubt that the appellant knowingly used
methamphetamine.

      The evidence is also legally and factually sufficient to support the appellant’s
convictions for possession of methamphetamine and drug paraphernalia. Local police
found jewelers’ bags on a Styrofoam plate in the appellant’s kitchen. There was


                                             6                                  ACM S32221
methamphetamine in the bags.        As noted above, a glass smoking pipe with
methamphetamine residue was found in the appellant’s bedroom next to his bed and
contained his DNA. The appellant became the sole occupant of the apartment when his
wife moved out in approximately June 2012. We have considered, but are unpersuaded,
by the appellant’s various explanations for the sudden appearance of the drugs and
paraphernalia in his home without his knowledge, as well as how he believes his DNA
might have gotten onto the smoking pipe. The members could reasonably have found
him guilty of these offenses, and we are ourselves convinced of his guilt beyond a
reasonable doubt.

                                       Conclusion

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



             FOR THE COURT



             STEVEN LUCAS
             Clerk of the Court




                                            7                                  ACM S32221
