         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201500368
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.
                KHRISTOPHER L. SLAUGHTER
               Staff Sergeant (E-6), U.S. Marine Corps
                              Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Colonel Howard D. Russell, USMCR.
   For Appellant: Lieutenant Rachel E. Weidemann, JAGC, USN.
  For Appellee: Major Cory Carver, USMC; Lieutenant Taurean K.
                        Brown, JAGC, USN.
                      _________________________

                       Decided 29 November 2016
                        _________________________

   Before PALMER, MARKS, and F ULTON , Appellate Military Judges
                     _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

PER CURIAM:
        A panel of members with enlisted representation sitting as a special
court-martial convicted the appellant, contrary to his plea, of one
specification of wrongful use of marijuana in violation of Article 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2012). The
members sentenced the appellant to a bad-conduct discharge. The convening
authority approved the sentence as adjudged.
   The appellant assigned two errors: first, that the trial counsel’s
arguments on findings and sentencing were improper; and, second, that a
bad-conduct discharge is an inappropriately severe punishment for the
                  United States v. Slaughter, No. 201500368


appellant’s offense. We specified a third issue, whether the record of trial was
factually sufficient to support his conviction, and received briefs on the
specified issue from the appellant and the government. We decide the
specified issue in favor of the appellant and therefore do not reach the two
assigned errors.
                               I. BACKGROUND
    At the time of the offense, the appellant had just completed a tour as a
recruiter at Marine Corps Recruiting Station Houston and was in the process
of transferring to Camp Pendleton. On 9 December 2014, as he was packing
his household goods and preparing to transfer, the appellant was summoned
to provide a urine sample that ultimately tested positive for the metabolites
of THC, the psychoactive component of marijuana. The accused’s urine
contained 261 nanograms of metabolite per milliliter of urine, well over the
15-nanogram minimum necessary to establish a positive urine sample test.
   The government’s case relied primarily on the permissive inference that
the presence of THC metabolite in the appellant’s urine resulted from the
appellant’s knowing use of marijuana. The appellant presented an extensive
case on the merits and testified in his own defense. The defense theory of the
case was that the appellant innocently ingested THC when he ate THC-laced
brownies.
    The appellant’s half-brother, MB, testified for the defense. The appellant
and MB had spent time together growing up but had not been close as adults.
They made an effort to rekindle a relationship while the appellant was
stationed in Houston, but their lifestyles remained very different. MB
testified that he regularly used marijuana and had, during a trip to Colorado,
legally purchased four commercially produced THC-laced “cosmic” brownies.
The brownies were individually wrapped and labeled to indicate they
contained THC. MB ate one of the brownies in Colorado and returned to his
Houston area home with the rest of the brownies. Since THC-laced brownies
were illegal in Texas, he removed the labels. After keeping them in a drawer
for a few days, he moved them to his refrigerator.
   MB testified that he invited some friends, the appellant, and the
appellant’s wife to a going-away party to mark the appellant’s move from
Houston to California. The appellant and his wife arrived in the evening. The
appellant went upstairs and played a round of the drinking game “beer
pong.” After playing beer pong, the appellant and the other guests went
downstairs to eat and have more drinks. After eating, MB and the appellant
went back upstairs and played another round of beer pong. Halfway through
the round of beer pong, the appellant said that he was tired and wanted to
stop. The appellant and his brother went into another room, and the
appellant fell asleep on a couch, where he spent the night. The next day, MB

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noticed that two of the THC-laced brownies were missing. MB did not warn
the appellant the brownies contained THC, explaining that he did not want
to “tell him about the vice side of my life because he is a Marine.”1 He further
explained when he later surmised the appellant possibly ate the brownies, he
kept quiet hoping the drugs would “wash out” of his system,2 and only came
forward when he learned of the appellant’s positive urinalysis.
    The appellant testified and denied knowingly using marijuana. His
testimony was largely consistent with his brother’s. He testified that he
arrived at his brother’s party between 1900 and 2000. Guests were drinking
beer and playing beer pong. He drank approximately four beers and then
looked for some food in his brother’s refrigerator. The appellant testified that
he found brownies in his brother’s refrigerator and ate two of them. After
that, he remembered sitting on his brother’s couch. Even though the party
was not over, the appellant fell asleep on the couch and did not wake up until
around 0730 the following day. Although the appellant did not usually go to
bed so early, he attributed his drowsiness to his alcohol consumption, the fact
he had been up since 0430, and that he had spent much of the day packing
his household goods and loading them into a rental truck in preparation for
his move.
    According to the appellant, after waking up at his brother’s house he soon
received a message telling him to take part in a unit sweep urinalysis. He
thereafter made the 45-minute drive to the downtown Houston recruiting
station and reported to the urinalysis coordinator.
    Gunnery Sergeant MR, the urinalysis coordinator, testified that the
appellant arrived for the urinalysis on time in civilian clothes and that he did
not appear nervous. Both he and the appellant testified that the appellant
attempted to provide a sample as soon as he arrived but was unable to
provide the minimum 30 milliliters of urine. Since he had started to provide a
specimen, the appellant was required to stay at the recruiting station until
he could provide a sufficient urine sample, which he did 30-60 minutes later.
There was no evidence of any irregularities in the urine collection or testing
processes.
    The appellant learned upon reporting to his new command at Marine
Corps Base Camp Pendleton that he had tested positive for marijuana. He
testified that he was very surprised to learn that he had tested positive and
initially believed his sergeant major was joking with him.



   1   Record at 272.

   2   Id. at 267.
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   Mr. CG, a forensic chemist, testified for the government about the Navy
Drug Lab’s testing of the appellant’s urine and interpreted the laboratory’s
results for the members. He testified that the appellant’s urine contained 261
nanograms of THC metabolite per milliliter, over the DoD cutoff of 15
nanograms per milliliter. He also testified that that amount of metabolite
found in the appellant’s urine was consistent with the appellant having
unknowingly consumed edible marijuana products the night before the
urinalysis. He further testified that the appellant would not necessarily have
noticed the effects of THC ingestion resulting in that level of metabolite.
Finally, he agreed that “because . . . distilled THC is colorless and odorless, a
person consuming [it in baked goods] would have no idea that it contains
THC.”3 In short, he agreed with the defense counsel that the urinalysis
results were consistent with the defense’s theory of innocent ingestion.
   In addition to the testimony of the appellant and his brother, the defense
presented eight character witnesses who testified to the appellant’s good
military character and character for truthfulness.
                                   II. ANALYSIS
       Article 66(c), UCMJ requires this Court to review convictions for
factual sufficiency. We conduct this review using a de novo standard of
review. United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007).
       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.” United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987). Proof beyond a reasonable doubt does not mean that the
evidence must be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N-M. Ct. Crim. App. 2001). Rather, presuming neither guilt nor innocence,
we take a “fresh, impartial look” at the evidence presented in trial, “to make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
       The elements of the appellant’s offense are first, that the appellant
used marijuana; and, second, that his use of marijuana was wrongful. Article
112a, UCMJ. In order to have wrongfully used marijuana, the appellant must
have knowingly used it. MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), Part. IV, ¶37(b)(2).
      We have considered the parties’ pleadings and the entire record,
making allowances for not having heard and observed the witnesses. We


   3   Id. at 201.
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believe that there remains a real possibility that the accused did in fact
unknowingly ingest THC by eating his brother’s brownies. We are not,
therefore, personally convinced beyond a reasonable doubt that the appellant
knowingly used marijuana.
        The government’s proof in this case consisted of the positive urinalysis
and little else. In contrast, the appellant’s theory of innocent ingestion was
specific, plausible, and corroborated. It was also consistent with the
government’s only substantial proof of guilt—the urinalysis results. We find
that the government’s argument that the appellant meant to take advantage
of a drug-test-free period during his transfer to be unsupported. The
appellant had not checked out from his command. The record demonstrates
that the appellant was still subject to urinalysis testing when he ingested
THC, and there is no evidence that would tend to show that the appellant
was mistaken about this fact. Additionally, there is no evidence that the
appellant—an experienced staff sergeant who worked relatively
independently as a recruiter—made any effort whatsoever to avoid the
urinalysis. To the contrary, on a day when he did not expect to perform
military duties, he made the 45-minute drive from his brother’s house and
immediately attempted to provide a sample.
        We find MB’s testimony—that he legally acquired THC-infused
brownies in Colorado, removed the labels to facilitate interstate transport,
and stored them in his refrigerator—to be plausible. As such, given the
evidence that MB neither disclosed his recreational drug-using lifestyle nor
warned anyone the brownies contained THC, the appellant would have no
reason to believe the brownies were infused with an illegal substance.
Further, although we agree familial affection could have motivated MB to
falsely testify, we also note that his testimony was self-incriminating and
thus against his own penal interests.
       The government’s forensic chemist testified that it was possible for the
appellant to have ingested an amount of THC consistent with the urinalysis
results and not have felt the effects of the colorless and odorless THC,
particularly since the appellant had been drinking alcohol. While a positive
urinalysis result can support an inference that an accused knowingly used a
contraband substance, see United States v. Harper, 22 M.J. 157, 159 (C.M.A.
1986), the drawing of this inference is not required, and a positive urinalysis
result does not shift the burden of proving innocence to the accused. We
believe that the record as a whole does not exclude the appellant’s theory of
innocent ingestion beyond a reasonable doubt and are therefore not
personally convinced of the appellant’s guilt.




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                             III. CONCLUSION
        The findings and sentence are set aside and the charge and its sole
specification are dismissed.
                              For the Court




                              R.H. TROIDL
                              Clerk of Court




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