UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                                YOB, KRAUSS and BURTON
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                        Private First Class KHOI J. POTTER
                           United States Army, Appellant

                                     ARMY 20110332

             101st Airborne Division (Air Assault) and Fort Campbell
                        Timothy Grammel, Military Judge
        Lieutenant Colonel Joseph B. Morse, Staff Judge Advocate (pretrial)
       Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate (post-trial)


For Appellant: Captain John L. Schriver, JA (argued); Colonel Patricia Ham, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain
Matthew T. Grady, JA (on brief); Captain John L. Schriver, JA (on reply brief).

For Appellee: Captain Daniel D. Maurer, JA (argued); Lieutenant Colonel Amber J.
Roach, JA; Major Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA (on brief).


                                     8 November 2012
                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

YOB, Senior Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of absenting himself from his unit, failing to go to his
appointed place of duty (two specifications), missing movement by design, failing to
obey a lawful order, and wrongful use of marijuana (two specifications), in violation
of Articles 86, 87, 92, and 112a, Uniform Code of Military Justice, 10 U.S.C. §§
886, 887, 892, and 912a (2008) [hereinafter UCMJ]. The military judge convicted
appellant, contrary to his plea, of a third specification of wrongful use of marijuana
in violation of Article 86, UCMJ. The military judge sentenced appellant to a
dishonorable discharge, confinement for twenty months, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The convening authority (CA)
approved only so much of the sentence as provided for a bad conduct discharge,
confinement for fifteen months, forfeiture of all pay and allowances, and reduction
POTTER – ARMY 20110332

to the grade of E-1. The CA deferred appellant’s automatic and adjudged forfeitures
and automatic and adjudged reduction in rank from 18 May 2011 until action. At
action, the CA waived the automatic forfeitures for six months, with direction that
these funds be paid to appellant’s dependant. Appellant was credited with two days
of confinement against his sentence of confinement.

      The case is before this court for review under Article 66, UCMJ. We have
considered the record of trial and the assignments of error raised by appellant,
presented in written briefs and in oral argument before this court. 1 We find these
assignments of error to be without merit, but we set aside the finding of guilty to
Specification 3 of Charge IV, wrongful use of marijuana, for other reasons as
explained below.

                                 FACTUAL BACKGROUND

       Appellant’s trial by court-martial was held on April 15 and May 2-3, 2011.
During the initial stages of the trial, the military judge accepted appellant’s guilty
pleas to charges of failing to go to his appointed place of duty, missing movement
by design, failing to obey a lawful order, and two specifications of wrongful use of
marijuana. Appellant contested other charges that included another specification of
wrongful use of marijuana, eleven specifications of assault upon his spouse,
communicating a threat, child endangerment, and wrongfully endeavoring to
influence the testimony of a potential witness in his case.

       At the outset of the government’s case on the contested charges, the trial
counsel offered into evidence as a prosecution exhibit the entire report from the Fort
Meade Forensic Toxicology Drug Testing Lab (FTDTL) pertaining to appellant’s
urinalysis sample that was the basis for the contested marijuana offense. This report
included the signature of the laboratory certifying official on the record of test
results. The military judge specifically asked defense counsel if they had any
objection to admission of the report as a prosecution exhibit, and defense counsel
replied, “no objection, your Honor.”

        Later in the trial, prior to calling their expert witness to discuss the lab report,
trial counsel announced, and defense counsel agreed, that the parties were
stipulating to the following facts: that appellant’s unit conducted a urinalysis test;
that appellant provided a sample as part of that urinalysis test; that appellant’s
sample went to the laboratory at Fort Meade; and, that the sample is the one

1
 Oral argument in this case was heard at Creighton University Law School, Omaha,
Nebraska, as part of the court’s “Project Outreach.” This practice was developed as
part of a public awareness program to demonstrate the operation of a federal court of
appeals and the military justice system.



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POTTER – ARMY 20110332

discussed in Prosecution Exhibit (PE) 6 (the test report and certification that had
already been admitted into evidence). The military judge conducted a colloquy with
appellant to ensure he understood what a stipulation was and its uses, knew he had
an absolute right to refuse to stipulate, and that he still wanted to enter into the
stipulation. Following this inquiry, appellant again expressed his consent to enter
into the stipulation.

       The only witness the trial counsel called pertaining to the contested wrongful
use of marijuana charge was an officer whose duty position was Chief of Research
and Development at the Fort Meade FTDTL. Based on the witness’s experience and
background, the military judge recognized him as an expert in the field of forensic
toxicology and drug testing, without any objection from defense counsel. While the
witness worked at the lab and was aware of the practice and procedures for drug
testing at that location, he neither conducted nor supervised the testing of
appellant’s sample that led to the contested marijuana charge.

       In his testimony, the expert testified about the procedures used to process and
test urine samples in general. He described the contents of the lab report that had
been admitted as PE 6. He stated that from his review of the report he could tell the
correct receiving and processing standards were used for appellant’s urine sample.
The witness also testified that the FTDTL tests urine for THC, the “psychoactive
ingredient in marijuana,” and that THC would be found in a sample if the donor of
the sample were prescribed Dronabinol for medical reasons or had otherwise
consumed THC, typically by smoking or ingesting it. The witness also indicated the
procedures used at the lab produce reliable screens, and that he is aware, through
personal observation, that employees at the lab conducting screening and rescreening
follow correct procedures. The witness stated that from reviewing the report he
could tell that the sample initially tested as non-negative (positive) and was subject
to a further test to confirm the presence of THC. The witness gave the opinion that
the further testing showed the presence of THC in appellant’s sample at the rate of
64.19 nanograms per milliliter, which is above the Department of Defense
established level of 15 nanograms per milliliter above which a sample is deemed to
test positive for THC. The trial counsel also elicited from the expert that THC is
typically detectable through lab testing 1-3 days following ingestion, but this time
can be longer in cases of chronic or heavy users.

       On cross-examination, the expert admitted there was no way to tell how the
drug got into appellant’s system or how much he consumed at any particular time.
He also admitted he could not determine whether appellant ever felt the effects of
the drug. Finally, the expert confirmed he never tested the sample or supervised
those who tested the sample. The government presented no additional evidence
pertinent to the wrongful use of marijuana charge.

       At the conclusion of the government’s case, appellant did not make a motion
for a finding of not guilty under Rule for Courts-Martial 917, for failure to establish

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proof beyond a reasonable doubt to all elements of the wrongful use of marijuana
offense. Appellant also presented no evidence pertaining to the wrongful use
charge during his case in chief and appellant’s trial defense counsel never mentioned
the alleged wrongful use charge in closing statements, instead focusing almost
exclusively on issues related to the assault charges. The military judge found
appellant not guilty of all the contested charges and specifications except for the
Specification of Charge IV concerning wrongful use of marijuana.

                              LAW AND DISCUSSION

                          Right to Confrontation and Waiver

       Appellant alleges the military judge committed plain error by allowing the
expert witness to testify about the certification and results of appellant’s urinalysis,
which the expert neither conducted nor supervised, as this violated appellant’s Sixth
Amendment Constitutional right to confrontation.

       Given the posture of this case, the threshold issue we must resolve is whether
appellant waived the opportunity to challenge the admissibility of this testimony on
appeal under Military Rule of Evidence [hereinafter Mil. R. Evid.] 103(a)(1), or
merely forfeited this issue, requiring a further plain error review under Mil. R. Evid.
103(d). See United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008). In
resolving this issue, we are mindful that there is “a presumption against the waiver
of constitutional rights, and for a waiver to be effective, it must be clearly
established that there was an intentional relinquishment of a known right or
privilege.” United States v. Sweeney, 70 M.J. 296, 303-304 (C.A.A.F. 2011) (citing
Harcrow, 66 M.J. at 157).

       We look to the following factors in determining whether a failure to make a
timely objection constitutes a waiver: whether the failure to object was part of the
defense tactics or strategy; whether the right not asserted was known or knowable at
the time of trial; whether defense was given an opportunity to object; and, whether
appellant alleges ineffective assistance of counsel in regard to the action that would
constitute the waiver. Sweeney, 70 M.J. at 304; United States v. Campos, 67 M.J.
330, 332-33 (C.A.A.F. 2009). All of these factors support our conclusion that
appellant waived any confrontation clause issue.

       First, it is clear that appellant employed a strategy of not challenging the
wrongful use of marijuana charge through objection or presentation of evidence.
Instead it appeared appellant put his efforts into the other contested charges that
were related to alleged assaults appellant had committed on his wife, rather than
pursue a defense for the wrongful use charge. While appellant vigorously fought
these other charges, he never objected to the introduction of the entire drug lab
report as a prosecution exhibit, even when the military judge specifically asked the
defense counsel whether there was an objection. Further, appellant made factual

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stipulations to significant issues related to the drug lab report necessary for the
government to meet its burden of proof, to include the fact that his sample was the
one referenced in the report. The military judge halted the proceedings to ensure
appellant was aware of the ramifications of stipulating to these facts, after which
appellant personally stated that he desired to enter into the stipulation. Appellant
also failed to assert any objection to the expert witness testifying during the
government’s case on issues related to the drug lab report. Finally, appellant’s
counsel never mentioned the wrongful use charge or any facts or argument related to
that charge in opening or closing statements or at any time during the defense case
in chief.

       The confrontation right at issue in this case was knowable at the time of
appellant’s trial. Our superior court had alerted practitioners as to the testimonial
nature of some portions of drug testing reports and called into question the
admissibility of expert testimony regarding such reports in United States v. Blazier,
69 M.J. 218 (C.A.A.F. 2010) (also referred to as “Blazier II” with a holding based
upon the decision of the United States Supreme Court in Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009)). As such, we conclude appellant’s counsel
could have made a “colorable objection” to the admission of the drug testing report
and/or to the testimony of the government expert, but chose not to do so for tactical
reasons. Sweeney, 70 M.J. at 304.

       Lastly, there is no indication appellant is alleging he received ineffective
assistance of counsel in regard to the waiver at issue. The record provides no
evidence that appellant dissented from the tactical decision to focus on the charges
related to appellant’s alleged assault on his wife and not present any defense to the
marijuana charge or object to evidence related to this charge. In light of our review
of these factors, we conclude the failure to object to the expert testimony on
confrontation grounds constituted waiver of the issue, and leaves no error for us to
review.

                                 Factual Sufficiency

       In conjunction with our appellate review of cases under Article 66, UCMJ, we
conduct a de novo review of the factual sufficiency of the evidence. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our standard for factual sufficiency
is, “whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, the members of the
[reviewing court] are themselves convinced of the accused’s guilt beyond a
reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

      To obtain a conviction under Article 112a, UCMJ, for wrongful use of
marijuana in this case, the prosecution must have proven: (a) that the accused used
marijuana; and, (b) that the use by the accused was wrongful. Manual for Courts-
Martial, United States (2008 ed.) [hereinafter MCM], pt. IV, ¶ 37b(2). Paragraph

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37b(10) of the MCM notes that knowledge by the accused of the presence of the
controlled substance is a required component of use, and knowledge of the presence
of the controlled substance may be inferred from the presence of the controlled
substance in the accused’s body or from other circumstantial evidence.

       Our superior court has held that when scientific methods of testing are relied
upon to prove marijuana use, the government cannot presume that the judge (when
operating as fact finder) is an expert capable of interpreting such evidence. United
States v. Murphy, 23 M.J. 310, 312 (C.M.A. 1987) (citing United States v. Conley, 4
M.J. 327, 330 (C.M.A. 1978)). In addition, “such evidence clearly needs in-court
expert testimony to assist the trier of fact in interpreting it if it is to rationally prove
that an accused used marijuana.” Murphy, 23 M.J. at 312 (citing Jackson v.
Virginia, 443 U.S. 307 (1979)). “Expert testimony interpreting the tests or some
other lawful substitute in the record is required to prove a rational basis upon which
the factfinder may draw an inference that marijuana was used.” Id. (citing United
States v. Ford, 4 U.S.C.M.A. 611, 16 C.M.R. 185 (1954)). Our superior court held
in United States v. Green, 55 M.J. 76, 81 (C.A.A.F. 2001), “[A] urinalysis properly
admitted under the standards applicable to scientific evidence, when accompanied by
expert testimony providing the interpretation required by Murphy, provides a legally
sufficient basis on which to draw the permissive inference of knowing, wrongful
use, without testimony on the merits concerning psychological effects.” See United
States v. Bond, 46 M.J. 86, 89 (C.A.A.F. 1997).

       In appellant’s case, the expert witness testimony included his opinion that the
testing of appellant’s sample was conducted properly and that the resulting
nanogram level of THC in appellant’s sample exceeded a cutoff level established by
the Department of Defense. He also noted that THC can be found in one’s system
through prescribed medication, smoking or other ingesting marijuana. The expert
provided no explanation of the meaning and implication of the cutoff level or its
application in this case.

       The expert witness admitted on cross-examination that after his review of the
test he could not determine whether appellant would have actually “felt the effects”
of the drug. Neither the government nor military judge followed the cross-
examination with any further questions of the expert that would address this
conclusion by the expert witness. The expert witness never discussed the relevance
of his conclusion in light of the tested nanogram level recorded for appellant’s
sample. We are left with a record containing no meaningful expert interpretation of
the test results and no explanation of how the test results can be relied upon given
that the expert cannot conclude what amount of marijuana consumed at any given
time and cannot state that the appellant ever experienced the effect of the drug. The
government presented no other evidence of appellant’s wrongful use of marijuana
apart from the positive test and expert interpretation. Under these circumstances, we
find the evidence failed to provide us with a sufficient basis to draw the permissive
inference of knowing, wrongful use of marijuana and we further find that the

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evidence, taken as a whole, did not support the finding of guilty for the wrongful use
of marijuana specification at issue.

                                       CONCLUSION

       We find the evidence factually insufficient to support appellant’s conviction
of Specification 3 of Charge IV, wrongful use of marijuana. See Turner, 25 M.J.
324 (C.M.A. 1987). The finding of guilty for this specification is set aside and the
specification is dismissed.

       The remaining findings of guilty are affirmed. Reassessing the sentence on
the basis of the error noted, the entire record, and in accordance with the principles
of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit,
63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his
concurring opinion, the court affirms only so much of the sentence as provides for a
bad conduct discharge, confinement for fifteen months, and reduction to the grade of
E-1 . 2 All rights, privileges, and property, of which appellant was deprived by
virtue of that portion of his sentence being set aside by this decision, are hereby
ordered restored. See UCMJ arts. 58(b) and 75(a).

      Judge KRAUSS and Judge BURTON concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES,
                                                       SQUIRES, JR.
                                                                 JR.
                                        Clerk of Court
                                        Clerk of Court




2
  The CA approved appellant’s request for deferment of automatic and adjudged
forfeitures until action, and waiver of forfeitures for a six-month period after action.
Subsequently, the waiver of forfeitures for the benefit of appellant’s dependent was
restated in the CA’s action. However, the action also approved the adjudged
sentence, which included the total forfeiture of pay and allowances, thus leaving no
pay and allowances to waive for the benefit of appellant’s spouse. In order to
effectuate the clear intent of the CA, we set aside that portion of the sentence that
included total forfeitures of pay and allowances.



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