                            UNITED STATES, Appellee

                                            v.

                        Eric E. GRANT, Staff Sergeant
                          U.S. Air Force, Appellant

                                     No. 01-0363

                              Crim. App. No. S29569

   ___________________________________________________________

       United States Court of Appeals for the Armed Forces

                            Argued October 23, 2001

                             Decided April 18, 2002

BAKER, J., delivered the opinion of the Court, in which CRAWFORD,
C.J., GIERKE and EFFRON, JJ., and SULLIVAN, S.J., joined. SULLIVAN,
S.J., filed a concurring opinion.

                                        Counsel

For Appellant: Captain Karen L. Hecker (argued); Colonel James
   R. Wise and Lieutenant Colonel Timothy W. Murphy (on brief).

For Appellee: Major Linette Romer (argued); Colonel Anthony P.
   Dattilo, Major Lance B. Sigmon, and Major Byran T. Wheeler (on
   brief); Captain James C. Fraser.


Military Judge:       Robin D. Walmsley


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Grant, No. 01-0363/AF


     Judge BAKER delivered the opinion of the Court.

     Contrary to his pleas, appellant was convicted by a special

court-martial, composed of officer members, of one specification

of wrongful use of marijuana on divers occasions,1 in violation

of Article 112a, Uniform Code of Military Justice, 10 USC

§ 912a.   Appellant’s adjudged and approved sentence provides for

a bad-conduct discharge, forfeiture of $622 for one month, and

reduction to pay grade E-1.       The Court of Criminal Appeals

affirmed in an unpublished opinion.         We granted review of the

following issues:

                                   I

           WHETHER THE MILITARY JUDGE ERRED BY APPLYING
           A LOWER STANDARD OF ADMISSIBILITY FOR
           EVIDENCE USED AS CORROBORATION OF A
           CONFESSION TO DRUG USE THAN HE WOULD HAVE
           APPLIED IF THE SAME EVIDENCE HAD BEEN
           OFFERED AS DIRECT PROOF OF DRUG USE, AS
           SHOWN BY HIS ADMISSION OF A MEDICAL DRUG
           SCREEN TEST RESULT:

           A.   AS A BUSINESS RECORD EXCEPTION TO THE
                HEARSAY RULE DESPITE A LACK OF
                FOUNDATION AND AUTHENTICATION TESTIMONY.

           B.   WHEN THE URINE WAS NOT MAINTAINED
                SUBJECT TO ANY CHAIN OF CUSTODY
                PROCEDURES PRIOR TO TESTING AND THE
                GOVERNMENT DID NOT PRESENT ANY EVIDENCE
                THAT THE URINE WAS PRESERVED IN AN
                UNALTERED STATE.

           C.   WITHOUT ANY EXPERT TESTIMONY REGARDING
                THE TEST PROCEDURES OR THE RESULTS.
1
  “Specification: In that STAFF SERGEANT ERIC E. GRANT . . . did, . . . on
divers occasions, between on or about 15 October 1997 and on or about 23
November 1997, wrongfully use marijuana.”


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United States v. Grant, No. 01-0363/AF



                              II

          WHETHER THE MILITARY JUDGE ERRED BY FINDING
          THE 22 NOVEMBER DRUG SCREEN TEST RESULT TO
          BE CORROBORATION OF THE ESSENTIAL FACTS OF
          APPELLANT’S CONFESSION TO DIVERS USES OF
          MARIJUANA IN OCTOBER AND NOVEMBER.

                             III

          WHETHER THE MILITARY JUDGE ERRED TO THE
          SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE
          INSTRUCTED THE MEMBERS ON THE USE OF THE
          DRUG SCREEN TEST RESULTS TO CORROBORATE THE
          CONFESSION.

                              IV

          WHETHER THE MILITARY JUDGE ERRED TO THE
          SUBSTANTIAL PREJUDICE OF APPELLANT IN NOT
          GRANTING THE DEFENSE MOTION FOR A FINDING OF
          NOT GUILTY DUE TO INSUFFICIENT CORROBORATION
          OF APPELLANT’S CONFESSION.

Our resolution of the first two issues against appellant makes

it unnecessary to reach the remaining issues, and we affirm.

                               BACKGROUND

     On November 22, 1997, appellant was found unconscious at

the club complex on Incirlik Air Base in Turkey.   He was

transported by ambulance to the base hospital, where he was

evaluated by the physician on duty, Captain (Capt) Poindexter.

Observing that appellant was unconscious and unresponsive to

pain stimuli, Capt Poindexter ordered, among other things, a

drug screen urinalysis.   The drug screen was ordered in

accordance with “the customary medical protocol for diagnosis



                                   3
United States v. Grant, No. 01-0363/AF


and treatment” followed when the physician encounters a patient

in appellant’s condition.    The purpose for the screen was to

detect the presence of any “abnormal” drugs in the body.    Once

the physician learned what drug was present, a treatment option

could be selected to rapidly eliminate the drug from the body,

thereby decreasing the patient’s unresponsiveness.

     In the two years he had been stationed at the Incirlik

hospital, Capt Poindexter never ordered a drug screen prior to

this occasion.    Consequently, he was unaware that the hospital,

unequipped to perform the screen, was required to send

appellant’s urine sample to the Armstrong Laboratory at Brooks

Air Force Base in Texas.    It took two weeks for Incirlik to

receive results of any drug screen requested from Brooks Air

Force Base.   Apparently, Capt Poindexter’s experience stateside

had been that a physician could receive results of a drug screen

within an hour of requesting one.

     Meanwhile, based on results of other tests requested by

Capt Poindexter and received at the time of initial treatment,

he diagnosed appellant as suffering from acute alcohol

intoxication.    Appellant was treated accordingly and released

from the hospital the following day, November 23.    Although

appellant had been released, the hospital continued processing

Capt Poindexter’s request to test the urine sample.




                                  4
United States v. Grant, No. 01-0363/AF


      Armstrong Laboratory subsequently received the sample on

November 28, tested it, and notified Incirlik of the results by

e-mail on December 5.      Senior Airman (SrA) Lynch, a lab

technician at the hospital, received the results from Armstrong,

downloaded the report, and printed it out.           This report

contained the “Armstrong Laboratory Epidemiology Division”

heading at the top of the page.        It also contained the name and

Social Security Number of the patient, along with the various

drugs tested for and the results of those tests.            The result

column of the report indicates either “NEGATIVE” or “POSITIVE,”

depending on what drugs were detected in the patient’s urine.2

This report indicated that appellant’s urine tested positive for

cannabinoids.

      On December 9, appellant was interviewed by agents of the

Air Force Office of Special Investigations and initially denied

using marijuana.     However, after being confronted with the

results of the drug screen, appellant executed a handwritten

statement admitting to the use of marijuana on three separate

occasions.    The statement, in relevant part, reads as follows:

      15 Oct 97

        I went to the Alley and was asked by Tony if I
      wanted to go to a party. I said okay and we left.
      Tony stopped by a friends [sic] house and told me to
      come on. I said okay and we went upstairs. Tony’s
      friend got a bowl and pipe out and asked me [and] Tony
2
  For positive results, the report does not show what amount of the drug is
present.


                                      5
United States v. Grant, No. 01-0363/AF


      to take a hit. . . . I took it and I took 2 hits. . .
      . The pipe we smoked was filled with marijuana.

      1st week Nov 97

        I ran into Tony at the [A]lley and he told me to
      jump in his ride and I did. He . . . stopped by his
      [same] friends [sic] house. . . . We went upstairs and
      his friend brought out a pipe again and the same thing
      happened. Tony passed it over to me and told me to
      take a hit three times so I did. . . . Again, the pipe
      was filled with marijuana.

      2nd or 3rd week in November

        I was down in the [A]lley as usual and was having a
      drink . . . and saw him there. . . . We went to his
      buddies (sic) home again and the same thing happened
      again. He said take this and I said okay . . . . On
      this occasion I smoked 3 to 4 hits of marijuana at the
      same house.

      At trial, the Government offered the report of the positive

drug screen as an exception to the hearsay rule under

Mil.R.Evid. 803(6), Manual for Courts-Martial, United States

(2000 ed.),3 for the limited purpose of corroborating appellant’s

confession of December 9.       The Government called no witnesses

from either Incirlik or Armstrong to testify about the chain of

custody regarding appellant’s urine sample.           Nor did it call any

witnesses to testify about the testing procedures used at

Armstrong Laboratory.      Instead, the Government called Capt

Poindexter and SrA Lynch to demonstrate the hospital’s reliance

on the record and to establish that the record was procured and


3
  All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.



                                      6
United States v. Grant, No. 01-0363/AF


incorporated in the hospital’s records in the normal course of

business.    Over timely defense objection, the military judge

admitted the report to corroborate appellant’s confession and

subsequently admitted the confession.

                                 DISCUSSION

                                      I

      Appellant’s complaint on appeal is that the drug screen

report from the Armstrong lab was not admissible as a business

record, and that the military judge should have treated the

report in the same fashion as urinalysis reports admitted in the

“standard urinalysis case.”       Consequently, the members should

not have been allowed to consider his uncorroborated confession.

      Regardless of the purpose for which it is admitted, all

evidence must be authentic,4 relevant, and otherwise competent.

See generally 2 John W. Strong, McCormick on Evidence § 212 at

8, § 218 at 36 (5th ed. 1999); Black’s Law Dictionary 577 (7th

ed. 1999).    We review a military judge’s ruling admitting or

excluding evidence for an abuse of discretion.           United States v.

Hursey, 55 MJ 34, 36 (2001).

         Competence of the Lab Report as a Business Record

      Appellant asserts that at trial, the Government provided



4
  We note the report, Prosecution Exhibit 1, contained a stamped certification
from the custodian of the record. Therefore, the document was self-
authenticating under Mil.R.Evid. 902(4a), Manual for Courts-Martial, United
States (2000 ed.).


                                      7
United States v. Grant, No. 01-0363/AF


insufficient foundation to admit the Armstrong lab report under

Mil.R.Evid. 803(6) as a business record of the Incirlik

hospital.   Mil.R.Evid. 803(6) is one of a number of exceptions

to the hearsay rule.   It states in pertinent part:

     The following [is] not excluded by the hearsay rule. . .

                                 * * *

     Records of regularly conducted activity. A memorandum,
     report, record, or data compilation, in any form, of
     acts, events, conditions, opinions, or diagnoses, made
     at or near the time by, or from information
     transmitted by, a person with knowledge, if kept in
     the course of a regularly conducted business activity,
     and if it was the regular practice of that business
     activity to make the memorandum, report, record, or
     data compilation, all as shown by the testimony of the
     custodian or other qualified witness, unless the
     source of information or the method or circumstances
     of preparation indicate lack of trustworthiness.


     This Court has yet to address the foundation necessary to

admit under Mil.R.Evid. 803(6) a business record created by a

third party not before the trial court, that is incorporated

into the business records of the testifying party.    However, as

the Military Rules of Evidence are largely derived from the

Federal Rules of Evidence, we look to the federal Courts of

Appeals for treatment of the issue.   Our review reveals that

these courts have generally held that a document prepared by a

third party is properly admitted as part of a second business

entity’s records if the second business integrated the document

into its records and relied upon it in the ordinary course of


                                 8
United States v. Grant, No. 01-0363/AF


its business.   See Air Land Forwarders, Inc. v. United States,

172 F.3d 1338 (Fed. Cir. 1999); MRT Construction, Inc. v.

Hardrives, 158 F.3d 478 (9th Cir. 1998); United States v. Doe,

960 F.2d 221 (1st Cir. 1992); United States v. Jakobetz, 955

F.2d 786 (2d Cir. 1992); United States v. Ullrich, 580 F.2d 765

(5th Cir. 1978); United States v. Carranco, 551 F.2d 1197 (10th

Cir. 1977).

     At issue in Air Land Forwarders, Inc., was the trial

court’s admission of certain repair estimates produced by third

parties but maintained in the records of a military

transportation office.    Air Land Forwarders, Inc., was a common

carrier under contract with the Military Traffic Management

Command to transport servicemembers’ household goods.   When a

member initiated a claim, he was required to submit a number of

documents detailing the circumstances of the loss.

Servicemembers could also submit repair estimates prepared by

third parties to prove the amount of the claim.   The trial court

concluded that it was the regular course of the Military Traffic

Management Command to collect such information and include it in

the entire claims file.   It further concluded that the military

relied upon the repair estimates to properly adjudicate the

claims, indicating the military’s interest in the accuracy of

the claims records.   172 F.3d at 1341, 1343.   Finally, the trial

court concluded that the trial record contained assurances of


                                  9
United States v. Grant, No. 01-0363/AF


reliability.   For instance, servicemembers filed their claims

with the knowledge that filing a false claim exposed them to

criminal liability.   Id. at 1343.    The Court of Appeals then

held that the repair estimates were “properly admitted. . . even

though the government did not produce a witness that could

testify with first-hand knowledge as to the procedures used in

the original preparation of each of the repair estimates.”    Id.

at 1344.

     In Doe, the defendant was convicted of being a felon in

possession of a firearm that had moved in interstate commerce.

The Government’s evidence on this issue included, inter alia, an

invoice from a South Carolina telemarketing firm admitted

through the testimony of a Massachusetts sports shop owner who

had ordered the firearm from the firm.    The invoice was admitted

as a business record of the sports shop owner, and the Court of

Appeals found this proper.    The court noted as “irrelevant” the

fact that the invoice had earlier been the record of a different

business.   Id. at 223.   The court focused instead on the shop

owner’s testimony that he relied on such documents to show

acquisition of the firearm.    In addition, federal law required

him to keep an “acquisition and disposition book.”    Id.

Logically, he had a substantial interest in the accuracy of the

record.    See MRT Const., Inc., supra.




                                 10
United States v. Grant, No. 01-0363/AF


     What we conclude from the cited cases is that a record

incorporated by a second entity may be admitted under

Mil.R.Evid. 803(6) on the testimony of a “qualified witness” of

the incorporating entity alone if certain criteria are met.

First, the incorporating entity must obviously procure and keep

the record in the normal course of its business.    Mil.R.Evid.

803(6).   Second, the entity must show that it relies on the

accuracy of the incorporated record in its business.    Air Land

Forwarders, Inc., 172 F.3d at 1343.    Finally, there must be

“other circumstances indicating the trustworthiness of the

document.”   Id.

     In this case, both SrA Lynch and Capt Poindexter were

qualified witnesses who provided sufficient foundation to show

that the Armstrong lab report had been incorporated by the

hospital as its own business record.    SrA Lynch testified that

he was very familiar with the hospital lab’s procedures for

handling urine samples.    He testified how the samples are

prepared and shipped to the Armstrong lab and that a record was

kept of the shipments.    In the past, he had sent samples to

Armstrong and had “always gotten back results showing either

positive or negative.”    He testified as to the daily practice of

the Armstrong lab of sending results by e-mail and that they did

so “all the time” in the course of the Armstrong lab’s business.

He further testified that it was his practice when he received


                                 11
United States v. Grant, No. 01-0363/AF


results to download the e-mail, print it out, and file it.     His

testimony was that this procedure occurred in the hospital lab

“all the time.”

     Capt Poindexter also testified regarding his familiarity

with how medical records were maintained at the hospital.     He

testified that the hospital had a duty imposed by regulations to

maintain documents like the drug screen report in the patient’s

medical records.   As for the specific report in issue, he

identified it as a copy of that which was contained in

appellant’s medical record.   He further testified as to his

familiarity with Air Force medical testing and stated that he

and presumably other physicians rely on such results to be

accurate “in order to make the appropriate treatment” in cases

where the patient is unresponsive to pain stimuli.

     As for indicia of trustworthiness, Capt Poindexter’s

reliance on the report speaks directly to its trustworthiness.

Presumably, those responsible for conducting the test and

providing the results at Armstrong are aware that an incorrect

result may lead to a patient’s failure to receive proper medical

treatment, which could be potentially followed by serious

medical consequences or even death.     2 McCormick on Evidence,

supra, § 293 at 264 (discussing the reasons why modern medical

records are generally reliable).     Moreover, there is no evidence




                                12
United States v. Grant, No. 01-0363/AF


in the record that suggests the hospital had received false or

erroneous results from Armstrong in the past.

      Based on this record, we hold that witnesses Lynch and

Poindexter provided a sufficient basis for admitting the

Armstrong lab report as a business record of the Incirlik

hospital, and the military judge did not abuse his discretion in

doing so.5

                  Relevance of the Drug Screen Report

      Appellant also asserts that aside from establishing the

report as a business record, the Government was required to put

on expert testimony to interpret the results from the Armstrong

lab, and he relies on United States v. Murphy, 23 MJ 310 (CMA

1987), for this proposition.        In Murphy, this Court held that

“[e]xpert testimony interpreting [scientific] tests . . . is

required to provide a rational basis upon which the factfinder

may draw an inference that marihuana was used.”           Id. at 312.


5
  Appellant contends on appeal that Prosecution Exhibit 1, the drug screen
report, is different than the version of that report attached to trial
defense counsel’s motion to suppress (Appellate Exhibit II). He now argues
this is evidence that the report was altered and, thus, cannot be considered
reliable. We must assume that trial defense counsel, who submitted the
document with his trial motion, was aware of this alleged discrepancy.
However, neither his written motion to suppress the report nor his motion to
suppress the confession (AE III) raises this issue or even suggests that it
was a concern. Moreover, neither his cross examination of SrA Lynch nor his
argument to the military judge on the record suggests this was his concern.
Furthermore, as noted earlier, PE 1 was admitted with an authenticating
certificate. On the other hand, the document attached to AE II was not
offered for admission. Nor is there any indication on the record as to the
origin of this document. The trial record is silent as to why trial defense
counsel did not raise this issue, and we will neither speculate nor suggest
the military judge had a sua sponte duty to do so.



                                     13
United States v. Grant, No. 01-0363/AF


However, appellant’s reliance on Murphy ignores the fact that

evidence inadmissible for one purpose may be admissible for

another purpose.    1 McCormick, supra, § 59 at 259.

     Admissibility determinations depend on the relevance of the

evidence offered.     Relevance is said to have two components,

materiality and probative value.      Id., § 185 at 637.   The former

“looks to the relation between the propositions that the

evidence is offered to prove and the issues in the case.”      Id.

The latter describes “the tendency of evidence to establish the

proposition that it is offered to prove.”      Id. at 638.

     In this light, the purpose behind the evidence provides the

critical distinction.    In Murphy, the urinalysis was offered as

proof of the substantive issue, whether the accused wrongfully

used marijuana.    In this case, the drug screen report was

offered on the issue of whether or not appellant’s confession

was worthy of belief.    The implicit proposition sought to be

proved was that appellant had not mistakenly or otherwise

admitted to an offense which either had not occurred or that he

had not committed.    See id., § 145 at 523.    Indeed, the military

judge expressly stated that he was admitting the report for the

limited purpose of corroborating the confession and instructed

the members accordingly.

     Thus, appellant’s argument that the military judge used a

lower standard of admissibility than that which is required for


                                 14
United States v. Grant, No. 01-0363/AF


the “standard urinalysis case” misses the point.            The purpose

for which evidence is offered governs its admissibility.             The

fact that this Court has mandated additional foundational

requirements for admitting a urinalysis offered on the

substantive issue of wrongful use does not change the law of

evidence pertaining to the admissibility of a business record

offered to corroborate a confession.6         Therefore, the military

judge did not abuse his discretion by not requiring the

Government to support its offer of the report with expert

testimony.

      Somewhat related to his claim pertaining to expert

testimony is appellant’s assertion that unlike a “standard”

urinalysis case, no chain of custody evidence was presented

relating to the handling of the urine sample tested by the

Armstrong lab.     Generally, a chain of custody is a foundational

prerequisite for admitting real or tangible evidence on a

substantive issue in the case.        McCormick, supra, § 212 at 8.

For example, in a typical Article 112a prosecution, a urinalysis

may be offered to show wrongful use at the particular time

charged in the specification.        Thus, the actual state of the


6
  This opinion is about corroborating a confession with a business record.
Therefore, this case does not limit or otherwise affect the holding in United
States v. Graham, 50 MJ 56 (1999), which addressed, inter alia, the relevance
of a four-year-old positive urinalysis test, for which appellant was tried
and acquitted, to rebut the appellant's claim of innocent ingestion involving
a positive urinalysis four years later.



                                     15
United States v. Grant, No. 01-0363/AF


urine sample introduced is at issue in that situation.     That

simply was not the purpose for which the drug screen report was

introduced against appellant.    Indeed, his confession was the

evidence offered on his wrongful use during the period charged.

Therefore, the scope of the issue presented obviates the need to

address any issue of chain of custody.    Moreover, Capt

Poindexter testified that he saw appellant being catheterized

and observed the sample being taken to the Incirlick hospital

lab from where it was ultimately sent to the Armstrong lab.       He

also testified that that was the last he saw of the sample.       The

members were free to either accept or reject this evidence in

determining the weight to be given the confession.    See United

States v. Duvall, 47 MJ 189 (1997).

                                 II

       Appellant assails the military judge’s ruling regarding

corroboration of his confession by arguing that the drug screen

report did not corroborate his confession.    Alternatively, even

if it was indicative of recent marijuana use, he argues it was

insufficient to corroborate his confession to past instances of

use.

       Mil.R.Evid. 304, Manual, supra, contains the requirement

that a confession be corroborated by independent evidence

justifying sufficiently an inference of truth of the essential




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United States v. Grant, No. 01-0363/AF

                  7
facts admitted.       The rationale for such a rule is to “ensure

that the confession is not false.”         Duvall, 47 MJ at 192.      Also,

it is settled military law that the quantum of evidence needed

to corroborate “may be very slight.”         United States v. Melvin,

26 MJ 145, 146 (CMA 1988).

       Appellant attempts to draw comparisons between his case and

United States v. Rounds, 30 MJ 76 (CMA 1990).           There, the

accused was charged with divers uses of cocaine and divers uses

of marijuana.     He had confessed to using cocaine on Thanksgiving

and New Year’s Day.      The Government introduced testimony from a

witness who had accompanied the accused on both occasions.              This

witness testified that on Thanksgiving Day, he left the accused

with some of his former high school friends who he knew had been

previously involved with drugs.        However, the witness observed

no drugs at this gathering.       As for New Year’s Day, the witness

testified to seeing the accused at a party where cocaine was

abundantly and prominently displayed.         We concluded the

appellant’s confession to the New Year’s Day use was

corroborated while the confession to the use on Thanksgiving was

not.    Id. at 80.




7
  “(g) Corroboration. An admission or a confession of the accused may be
considered as evidence against the accused on the question of guilt or
innocence only if independent evidence, either direct or circumstantial, has
been introduced that corroborates the essential facts admitted to justify
sufficiently an inference of their truth.”


                                     17
United States v. Grant, No. 01-0363/AF


     Whatever similarities might be gleaned between appellant’s

case and Rounds, we are not persuaded that the rationale of that

case is applicable to his.   In Rounds, the evidence that Rounds

had been seen in the company of individuals who a witness

claimed to have at some previous time been associated with drugs

corroborated nothing, let alone Rounds’s confession.

Appellant’s case is dramatically different in that the

corroboration evidence indicated the actual presence of the

substance he admitted using.

     Appellant’s case is actually more akin to United States v.

Melvin.   The appellant there was arrested on June 13, 1985, in

possession of heroin cigarettes and drug paraphernalia.     In his

subsequent confession, he stated he had just left his friend’s

house, where he had smoked heroin cigarettes.     He admitted the

friend was his drug source, and he admitted smoking heroin about

twenty times over the previous four months.     He was ultimately

charged with and convicted of numerous uses of heroin between

February 1 and June 5, 1985.   The testimony of the police

officers who arrested Melvin on June 13 as to what they found in

his possession at the time of the arrest was offered to

corroborate Melvin’s confession.     This Court found that this

evidence “created a strong inference of truth with regard to

appellant’s confession.”   26 MJ at 147.




                                18
United States v. Grant, No. 01-0363/AF


     Similarly, in appellant’s case, the drug screen report

showed evidence of the presence of marijuana in appellant’s

system in late November.   This certainly raised an inference

that appellant had recently used the very substance he had

confessed to using over the previous five or six weeks with the

same people at the same residence.     Furthermore, it strains

credulity to believe that appellant would accurately confess to

use of marijuana in the second or third week in November and

then fabricate two other instances of use occurring in the

preceding three or four weeks with the same individuals.     In

fact, appellant’s initial denials to investigators suggest just

the contrary – a desire to limit his criminal liability rather

than increase it with false admissions.

                              CONCLUSION

     We hold that the independent evidence of recent marijuana

ingestion contained in the Armstrong lab report raised a

sufficient inference of truth so as to corroborate appellant’s

confessed use of marijuana.    Therefore, the military judge did

not err in finding that appellant’s confession was corroborated.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                  19
United States v. Grant, No. 01-0363/AF


        SULLIVAN, Senior Judge (concurring):


        I agree with the majority opinion in this case but

have some difficulty squaring it with the majority opinion

in United States v. Graham, 50 MJ 56 (1999).                                 In both

cases, evidence of a positive urinalysis test result was

offered and admitted for a purpose other than to directly

show the charged offense.                   In Graham, however, this Court

held that evidence offered for such a purpose must still

conform to the rules pertaining to urinalysis evidence

delineated in Harper, Murphy, and Ford.1                            Id. at 59-60.            The

majority reaches a different conclusion today.

        More particularly, in Graham, evidence of a prior

positive test result for marijuana (in the form of cross-

examination testimony by the accused) was offered for a

purpose other than to show the charged offense.                                 Evidence

of a positive test result four years earlier was offered to

impeach (or rebut) an accused who testified “there is no

way I would knowingly use marijuana” and that he was

“shocked, upset, and flabbergasted” by such a positive test

result.       See United States v. Graham, supra at 62-63

(Sullivan, J., joined by Crawford, J., dissenting).                                    The

1
 United States v. Harper, 22 MJ 157 (CMA 1986); United States v. Murphy, 23 MJ 310 (CMA 1987);
United States v. Ford, 23 MJ 331 (CMA 1987).
United States v. Grant, No. 01-0363/AF


majority there reasoned, inter alia, that this evidence was

inadmissible because “none of the rules established by

Harper, Murphy, and Ford, about the use of positive

urinalysis results to prove knowing and wrongful use of

marijuana, were followed as to the 4-year-old test result.”

Id. at 59.

        In appellant’s case, evidence of a prior positive test

result (in the form of a business record entry) was

admitted for a purpose other than to directly show the

charged offense.                It was admitted to corroborate

appellant’s confession to all the charged misconduct by

proving some of the more recently charged drug misconduct

included in that confession.2                            See United States v. Melvin,

26 MJ 145 (CMA 1988).                    As such, this evidence was before

the members for their consideration, but not to directly

prove the charged offense as in Harper and its progeny.

See United States v. Duvall, 47 MJ 189, 192 (1997)

(corroborating evidence to be considered by members on

questions of weight to afford confession).                                     The majority,

however, holds that the rules of admissibility delineated




2
 Appellant was charged with wrongfully using marijuana “on divers occasions, between on or about 15
October 1997 and on or about 23 November 1997.” The urinalysis evidenced in this case occurred on
November 22, 1997, but the trial judge instructed the members that it could only be used to corroborate the
confession. (R. 58-59, 156-57)


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United States v. Grant, No. 01-0363/AF


in Harper, Murphy, and Ford need not be complied with in

these non-substantive circumstances.

     In my view, today’s decision, at least implicitly,

erodes the holding of this Court in Graham, and I join it.

See United States v. Graham, supra at 60-63 (Sullivan, J.,

joined by Crawford, J., dissenting).




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