                     U NITED S TATES AIR F ORCE
                    C OURT OF C RIMINAL APPEALS
                                 ________________________

                                     No. ACM 38846
                                 ________________________

                                   UNITED STATES
                                         Appellee
                                            v.
                                 Matthew C. HUDSON
                            Captain, U.S. Air Force, Appellant
                                 ________________________

                 Appeal from the United States Air Force Trial Judiciary
                                 Decided 9 January 2017
                                 ________________________

Military Judge: Jill M. Thomas (arraignment) and Brendon K. Tukey.
Approved sentence: Dismissal. Sentence adjudged 26 March 2015 by GCM convened at
Travis Air Force Base, California.
For Appellant: Major Michael A. Schrama, USAF.
For Appellee: Major Jeremy D. Gehman, USAF; and Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges
Chief Judge DREW delivered the opinion of the court, in which Senior Judge BROWN and
Judge MINK joined.
                                 ________________________

 This is an unpublished opinion and, as such, does not serve as precedent
             under AFCCA Rule of Practice and Procedure 18.4.
                                 ________________________
DREW, Chief Judge:
    A general court-martial composed of officer members convicted Appellant, contrary to
his plea, of divers wrongful use of marijuana, in violation of Article 112a, UCMJ, 10 U.S.C.
§ 912a. The adjudged and approved sentence was a dismissal.
                            United States v. Hudson, No. ACM 38846


    On appeal, Appellant raises two issues: (1) whether the evidence is legally and factually
sufficient; * and (2) whether Appellant’s right to confrontation was violated when laboratory
personnel who tested his urine sample did not testify.

                                          I. BACKGROUND
   On 15 August 2014, Appellant provided a urine sample after he was randomly selected
by the Drug Demand Reduction Office on Travis Air Force Base, California. The sample
was tested at the Air Force Drug Testing Laboratory (AFDTL) on Lackland Air Force Base,
Texas. The results of that testing showed the presence of marijuana’s tetrahydrocannabinol
(THC) metabolite in Appellant’s urine at a level of 67 nanograms per milliliter (ng/mL). The
Department of Defense (DoD) cutoff for THC is 15 ng/mL. On 3 September 2014, after the
results of his first test were reported back to Travis Air Force Base, Appellant provided a
second urine sample for follow-up inspection. See United States v. Bickel, 30 M.J. 277
(C.M.A. 1990). The results of the second testing showed the presence of THC in Appellant’s
urine at a level of 39 ng/mL.
    At Appellant’s trial, the trial counsel offered redacted excerpts of AFDTL’s drug testing
reports for both of his samples. In both cases, the excerpts consisted of chain of custody
documents and machine-generated data, graphs, and printouts of the testing of Appellant’s
and associated other samples, including blind and open quality controls. Neither report
included a cover memorandum or any other formal, affidavit-like certification of the results.
Trial defense counsel did not object to either Prosecution Exhibit 9 (the redacted report for
the 15 August sample) or Prosecution Exhibit 10 (the redacted report for the 3 September
sample) and the military judge admitted them.
    Trial counsel presented the testimony of Dr. Naresh Jain, a forensic toxicologist and ex-
pert in the fields of forensic toxicology, forensic chemistry, pharmacology, and drug testing.
Trial defense counsel did not object to the court recognizing Dr. Jain as an expert in those
fields, nor did defense counsel object, on any grounds, to any of Dr. Jain’s testimony.
   Dr. Jain testified during direct and cross-examination about the Department of De-
fense’s drug testing program and his consulting role in helping establish the AFDTL, and
he walked the members through Prosecution Exhibits 9 and 10. Dr. Jain explained the
meaning of the machine-generated data in the reports and described the testing equipment
and procedures used by AFDTL. He gave his independent expert opinion that the tests
were conducted in a forensically sound and acceptable manner by trained and competent
personnel, in a forensically secure laboratory, with good quality assurance by using their
own internal open and blind quality control samples. Dr. Jain testified that, in his opinion,
the results of the two tests indicated that the THC metabolite was present in both of


*Appellant’s error is characterized as “whether there is ample evidence in the record other than the
permissive inference to support a conviction in this case.” We analyzed the error as raising both legal
and factual sufficiency.




                                                  2
                         United States v. Hudson, No. ACM 38846


Appellant’s samples, that Appellant must have used marijuana before he provided each
sample, and that Appellant must have used marijuana at least once after he provided his
first sample and before he provided his second one. Dr. Jain also testified that he could not
say whether Appellant smoked, ate, or drank, products containing THC, nor could he say
exactly how much THC was in the products he consumed.
    Appellant testified in his defense that he did not knowingly use marijuana and did not
knowingly ingest anything that contained marijuana. On cross-examination, when asked
about the urinalysis test results, Appellant responded to the trial counsel’s questions as
follows:
       Q.     Now, we talked about that you provided that first specimen on 15 Au-
              gust 2014, right?
       A.     Yes.
       Q.     Now, you have been able to look at all the results, like we have seen
              here today, and that the members have been able to look at the last
              few days, correct?
       A.     Correct.
       Q.     And you have heard all the testimony, correct?
       A.     Correct.
       Q.     All right, any reason to doubt that THC was actually in your system
              on 15 August 2014, hearing all the testimony?
       A.     No, there is no reason to doubt that.
       Q.     And then you were brought in on 3 September, after your leave, and
              you were informed that you tested positive—that was the first time
              you were informed that you tested positive?
       A.     Correct.
       Q.     And same thing, you looked at the documents. You have seen the evi-
              dence that has been presented here at trial; is there any reason to
              doubt that THC was in your system, same thing, on 3 September
              2014?
       A.     No reason to doubt it.
    After the close of evidence on findings, the military judge held an Article 39(a), UCMJ,
10 U.S.C. § 839(a), session with the parties outside the members’ presence to discuss his
proposed findings instructions. The military judge asked Appellant’s counsel if he had any
objections to the draft instructions and defense counsel responded, “No objections, sir.” The
military judge asked defense counsel if he requested any additional instructions and he
responded, “No, sir.” Finally, the military judge had the following colloquy with counsel:



                                              3
                      United States v. Hudson, No. ACM 38846


   MJ:    Very well. Now, normally in the script it has me ask you if you guys
          object to the instructions after I give them to the members. It doesn’t
          make a lot of sense to me since I’ve already given the instructions to
          the members, so I do not intend to ask that question again, so now re-
          ally is the speak now or forever hold your peace portion of the trial in
          that regard. . . .
          ....
   MJ:    Defense counsel, do you have anything else to take up before we call
          the members for instructions?
   DC:    No, sir.
The military judge’s findings instructions included the following:
       Knowledge by the accused of the presence of the substance and knowledge
   of its contraband nature may be inferred from the surrounding circumstanc-
   es. You may infer from the presence of THC in the accused’s urine that the
   accused knew he used marijuana. However, the drawing of any inference is
   not required.
       The accused may not be convicted of the use of a controlled substance if
   the accused did not know he was actually using the substance. The accused’s
   use of the controlled substance must be knowing and conscious. For example,
   if a person places a controlled substance into the accused’s drink, food, or cig-
   arette without the accused’s becoming aware of the substance’s presence,
   then the accused’s use was not knowing and conscious.
      It is not necessary that the accused be aware of the exact identity of the
   contraband substance. The knowledge requirement is satisfied if the accused
   knew the substance was prohibited. Similarly, if the accused believes the
   substance to be a contraband substance, such as cocaine, when in fact it is
   heroin, the accused had sufficient knowledge to satisfy that element of the of-
   fense.
      A contraband substance is one that is illegal to use. However, a person
   who uses cocaine, but actually believes it to be sugar, would not be guilty of
   wrongful use.
       I have instructed you that the accused must have known that the sub-
   stance he used was marijuana or of a contraband nature. You may not find
   the accused guilty of this offense unless you believe beyond a reasonable
   doubt that the accused actually knew that he used marijuana or a substance
   of a contraband nature.
       ....




                                          4
                          United States v. Hudson, No. ACM 38846


           Proof of knowledge, willfulness and intent by circumstantial evidence –
       you have been instructed that, with regard to certain of the elements of the
       offenses listed for you above, the government must prove the accused’s
       knowledge, willfulness and intent beyond a reasonable doubt.
           Direct evidence of knowledge, willfulness and intent is often unavailable.
       The accused’s knowledge, willfulness and intent, however, may be proved by
       circumstantial evidence. In deciding this issue, you must consider all relevant
       facts and circumstances.
    Immediately after trial counsel gave his findings argument, the military judge gave the
following supplemental instruction: “I think the trial counsel just misspoke and he correct-
ed himself immediately, but he used the word ‘presumed’ and again, just to remind you, you
may infer from the presence of THC in the accused’s urine that the accused knew he used
marijuana, but whether or not you draw that inference is entirely up to you.”

                                       II. DISCUSSION

   A. Legal and Factual Sufficiency—Permissive Inference.
    We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C.
§ 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002); see United States v.
Cole, 31 M.J. 270, 272 (C.M.A. 1990). Our assessment of legal and factual sufficiency is
limited to the evidence presented at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993).
    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, [this court
is] convinced of the [Appellant]’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987); see United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000).
    The test for legal sufficiency requires courts to review the evidence in the light most fa-
vorable to the government. If any rational trier of fact could have found essential elements
of the crime beyond a reasonable doubt, the evidence is legally sufficient. Reed, 51 M.J. at
41 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) and Turner, 25 M.J. 324 (C.M.A.
1987)); see also United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term
“reasonable doubt” does not mean that the evidence must be free from conflict. United
States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal suffi-
ciency, we are bound to draw every reasonable inference from the evidence of record in
favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).
    On appeal, Appellant argues that use of the permissive inference is not alone sufficient
to prove the knowledge element in this case. He relies on Cnty. Court v. Allen, 442 U.S. 140,
160 (1979), for the proposition that there must be “ample evidence” other than the permis-
sive inference to sustain a conviction. However, Appellant does not contend that the mili-
tary judge’s instruction on the permissive inference was error and, in any event, his failure
to object to the instruction at trial constitutes forfeiture, in the absence of plain error. See

                                               5
                          United States v. Hudson, No. ACM 38846


R.C.M. 920(f). Appellant looks to United States v. Ford, 23 M.J. 331 (C.M.A. 1987), for the
proposition that this court must conduct a case-specific analysis of the facts to determine
whether the permissive inference was properly applied.
   In Ford, decided nearly 30 years ago, the Court of Appeals for the Armed Forces (CAAF)
noted that:
       This Court has previously held that evidence of urinalysis tests, their results,
       and expert testimony explaining them is sufficient to show beyond a reasona-
       ble doubt that an accused used marihuana. We also have recognized that mil-
       itary law for over 35 years has provided that a permissive inference of wrong-
       fulness may be drawn from such a circumstantial showing of marihuana use.
23 M.J. at 332. Accordingly, admission of such evidence in this case was sufficient as a
matter of law to permit Appellant’s conviction for wrongful use of marijuana. United States
v. Bond, 46 M.J. 86, 89 (C.A.A.F. 1997).
    As far as factual sufficiency, Appellant’s case has some limited similarity with Ford, in
that the appellant there also took the stand and denied knowingly using marijuana during
the charged time frame. However, unlike the instant case, in Ford the appellant was
charged with only a single wrongful use of marijuana and he suggested the forensic labora-
tory had made a mistake. Here, Appellant conceded that the lab correctly identified that
THC was present in both of his samples. In addition, in Ford the appellant posited that his
estranged wife had motive, opportunity, and access to marijuana, in order to place marijua-
na in his food without his knowledge.
   In the face of the conflicting evidence in Ford, the CAAF stated:
       [W]hether to draw an inference of wrongfulness is a question to be decided by
       the factfinder using the standard of reasonable doubt. It may be drawn where
       no contrary evidence is admitted. However, if the prosecution fails to per-
       suade the factfinder beyond a reasonable doubt that this inference should be
       drawn, a finding of not guilty is required. Similarly, the inference of wrong-
       fulness may be drawn where contrary evidence is admitted. However, if the
       prosecution fails to persuade the factfinder beyond a reasonable doubt that
       this contrary evidence should be disbelieved or that the inference should be
       drawn, a finding of not guilty is required.
Ford, 23 M.J. at 335 (emphasis in original).
    We find that there is sufficient evidence to convince a rational trier of fact beyond a rea-
sonable doubt that the Appellant is guilty of wrongful use of marijuana, and that the
evidence is, therefore, legally sufficient. Furthermore, weighing all the evidence admitted at
trial and mindful of the fact that we did not see or hear the witnesses, this court is con-
vinced beyond a reasonable doubt that the Appellant is guilty of the divers wrongful use of
marijuana.




                                               6
                         United States v. Hudson, No. ACM 38846


   B. Confrontation of Laboratory Personnel.
    Appellant relies upon United States v. Katso, 74 M.J. 273, 278–79 (C.A.A.F. 2015) for
the proposition that the testimony of Dr. Jain violated his Sixth Amendment right to
confrontation. Appellant suggests that Dr. Jain was a mere conduit for testimonial hearsay
because he did not personally conduct any of the tests in question. Whether evidence is
testimonial hearsay is a question of law reviewed de novo. Id. at 278.
    At trial, Appellant conceded Dr. Jain’s relevant expertise, did not object to any of his
testimony, and did not object to the admission of either drug testing report on any basis.
The reports had been modified in accordance with case law allowing for the admission of a
drug testing report. See Bullcoming v. New Mexico, 564 U.S. 647 (2011); Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009); Crawford v. Washington, 541 U.S. 36 (2004); Katso, 74
M.J. at 273; United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013); United States v.
Sweeney, 70 M.J. 296 (C.A.A.F. 2011); United States v. Blazier (Blazier II), 69 M.J. 218
(C.A.A.F. 2010); United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F. 2010); United
States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). Neither of the reports contained any testi-
monial hearsay.
    While Dr. Jain was not employed by the AFDTL and did not conduct any of the tests in
this case, he was very well informed about the lab’s testing procedures generally and was
highly qualified to review, interpret, and explain to the members the drug testing reports.
Indeed, his independence from the AFDTL enhanced his objectivity as a Government expert
witness. In addition to offering no objection to Dr. Jain’s testimony, Appellant never re-
quested the testimony of any laboratory personnel or raised any issues with the military
judge regarding the Defense’s access to them. Dr. Jain limited his testimony to explaining
the meaning of the drug testing reports and the science behind them, describing the inter-
nal and external means to control the quality of the AFDTL’s testing and reporting proce-
dures, and giving his opinion, based on his decades of experience, that THC above the DoD
cutoff existed in both of Appellant’s samples and that their presence at their respective
levels indicated at least two separate uses.
    The Government points this court to United States v. Harcrow, 66 M.J. 154 (C.A.A.F.
2008), and urges us to declare that Appellant waived his right to confrontation. Unlike the
situation facing the appellant in Harcrow, the Supreme Court’s Crawford opinion and those
of the other cases cited above were well known to trial practitioners. Accordingly, the
Government contends that trial defense counsel’s affirmative lack of objection when asked
by the military judge if they had an objection to the admission of the drug testing reports
would act as an intentional relinquishment of a known right or privilege, hence waiver on
appeal. We need not address waiver in this case as, unlike Harcrow, there was no testimo-
nial hearsay in either of the reports or in Dr. Jain’s testimony. Even if there had been, and
its admission amounted to constitutional error, Appellant’s concession under oath that THC
was found at the indicated level in his urine samples conclusively establishes that any such
error was harmless beyond a reasonable doubt and did not violate a substantial right of
Appellant.


                                             7
                         United States v. Hudson, No. ACM 38846


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



                KURT J. BRUBAKER
                Clerk of Court




                                             8
