United States v. Troy

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant DANIEL P. TROY
United States Air Force

ACM S32174

3 April 2015

Sentence adjudged 24 May 2013 by SPCM convened at Misawa Air Base,
Japan. Military Judge: Natalie D. Richardson.

Approved Sentence: Confinement for 12 months, forfeiture of $1,010.00
pay per month for 12 months, and reduction to E-1.

Appellate Counsel for the Appellant: Major Anthony D. Ortiz and
Major Thomas A. Smith.

Appellate Counsel for the United States: Major Daniel J. Breen;
Major Mary Ellen Payne; and Gerald R. Bruce, Esquire.

Before

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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

HECKER, Senior Judge:

A special court-martial composed of officer members convicted the appellant,
contrary to his pleas, of dereliction of duty; operating a vehicle while impaired;
wrongfully using, distributing, and introducing a controlled substance; and soliciting
another to use a controlled substance, in violation of Articles 92, 111, 112a, and 134,
UCMJ, 10 U.S.C. §§ 892, 911, 912a, 934. The court sentenced him to confinement for
12 months, forfeiture of $1,010.00 pay per month for 12 months, and reduction to E-1.
The convening authority approved the sentence as adjudged.
 On appeal, the appellant contends the military judge erred when she (1) found a
presumptive drug test met the requirements for admissibility; (2) admitted a bank
statement into evidence; (3) prevented the defense from questioning witnesses about the
potential collusion of the appellant’s co-actors; and (4) admitted statements made by the
appellant without rights advisement. He also contends (5) the cumulative error of the
improperly admitted evidence requires the findings to be set aside and (6) the evidence is
factually and legally insufficient to sustain his conviction for operating a vehicle while
impaired. Finding no error that materially prejudices a substantial right of the appellant,
we affirm the findings and sentence.

Background

The offenses in this case stemmed from the appellant’s alleged involvement with
multiple controlled substances, namely dihydrocodeine (found in Bron), oxycodone
(found in Percocet), clonazepam (found in Klonopin), lorazepam (found in Ativan), and
dextroamphetamine (found in Adderall). Another military member used drugs with the
appellant while two others were present when he did so, and all three testified at the
appellant’s trial under a grant of immunity.

The appellant’s involvement with controlled substances came to the attention of
law enforcement in January 2013 after Senior Airman (SrA) BT self-identified his own
abuse of Bron while seeking help for problems he was experiencing. As part of that
process, SrA BT stated he had used Bron with the appellant. Bron is an over-the-counter
cough medicine sold in Japan that contains dihydrocodeine, an opiate. This led the
appellant’s first sergeant to issue a no contact order, prohibiting the appellant from
having contact with SrA BT and two other Airmen who were implicated in his
involvement with drugs.

SrA BT testified at the appellant’s court-martial that he and the appellant first used
drugs together in March 2012, when they crushed and snorted Adderall and Ativan. In
June 2012, the two crushed and snorted SrA BT’s prescribed Percocet over a 10-day
period.

The two began using Bron in June 2012 after seeing a commercial on the Armed
Forces Network warning servicemembers that this cough medicine contains a narcotic
and therefore is illegal for them to use, despite being available for purchase in Japanese
stores. After doing some research about its effects and detectability through urinalysis
testing, the two purchased Bron at a Japanese drugstore and used it for the first time.

Over the next six months, SrA BT saw the appellant use Bron 100 to 150 times.
The two took increasing amounts of the drug over time as they developed a tolerance for
its effects, and they also switched to a powdered form which had fewer adverse side
effects. Eventually they were using it on a daily basis, including at work. To maintain
this level of use, the two traveled to local drugstores multiple times per week and brought

2 ACM S32174
the substance onto base in their vehicles. Two other Airmen, Airman First Class
(A1C) SR and Airman (Amn) GB testified about their observations of the Bron use and
purchases by the appellant and SrA BT. Amn GB also testified that the appellant offered
him Bron, which he refused to take.

SrA BT also witnessed the appellant misusing Klonopin he had received through a
prescription. Instead of swallowing the prescribed amount, the appellant would chew
multiple pills so he would feel the effect faster. The appellant also gave SrA BT two of
the pills. The two of the them mixed Klonopin with Bron in order to increase the
sensation.

Following a litigated trial, the appellant was convicted of wrongfully using all five
controlled substances, distributing clonazepam (Klonopin), introducing dihydrocodeine
(Bron) onto Misawa Air Base, and soliciting an Airman to use dihydrocodeine (Bron) by
offering it to him.1 The appellant was also convicted of driving a car while impaired by
dihydrocodeine (Bron) and clonazepam (Klonopin) and of violating a lawful general
order by having contact with the three Airmen after being directed not to do so.

Admissibility of Presumptive Drug Test

At trial, SrA BT testified about one of the times he and the appellant used Bron
and Klonopin in combination with the intention of getting “high.” The following
morning, the appellant had a seizure while at the Base Exchange and was taken to the
base emergency room. While there, he was given a urine drug screening test using a
device called the “Alere iCassette.” This test revealed a presumptive positive result for
opiates and oxycodone. Prior to trial, the appellant moved to exclude evidence of the
results from this testing as too unreliable to meet the evidentiary standard required for
scientific evidence to be admissible.

Recognizing the arguments of appellate counsel with regards to Mil. R. Evid. 702
and its interplay with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993), and United States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993), we need not
resolve the admissibility of the drug test if any error in its admission was harmless.

Improper admission of expert testimony is harmless if the error did not have a
substantial influence on the findings. United States v. Flesher, 73 M.J. 303, 318
(C.A.A.F. 2014). We determine if an error had a substantial influence by assessing four
factors: “(1) the strength of the Government’s case; (2) the strength of the defense’s
case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in
question.” Id.

1
The appellant was acquitted of distributing lorazepam and dextroamphetamine, obstructing justice by attempting to
influence the testimony of the three Airmen, and soliciting Airman First Class SR to use dihydrocodeine.

3 ACM S32174
 Although argued substantively by trial counsel, the test results carried limited
evidentiary value for a charged timeframe of over eight months, from May 2012 to
January 2013. The test was overshadowed by the remaining testimony of multiple
witnesses establishing the appellant’s use of controlled substances over 100 times. The
test results were material only to alleged uses of Bron and/or oxycodone in the days
leading up to the seizure. The quality of the evidence was also subject to challenge.
Trial defense counsel highlighted the limitations of the test through cross-examination
specifically pointing out that the manufacturer of the test recommended confirmation
testing with gas chromatography–mass spectrometry, which was not accomplished in this
case. Based on these facts, we find that any error in admitting the test results did not
have a substantial influence on the findings. Therefore, assuming error arguendo, based
on the overwhelming evidence, we find no possibility of material prejudice to the
appellant.

Admission of Bank Statement

As noted above, the appellant was charged with using Bron, an over-the-counter
cough medicine containing dihydrocodeine, a Schedule III controlled substance. At trial,
SrA BT, a friend and co-worker of the appellant, testified that he saw the appellant use
this substance on 100 to 150 occasions during a six month period. The two would
generally drive to an off-base store to purchase Bron three to five times a week, paying in
cash most of the time.

On 4 January 2013, SrA BT self-identified as a drug user based on his daily use of
Bron and was admitted to the on-base hospital while awaiting admission to an inpatient
facility. He testified that the appellant visited him there several days later and announced
he was making a “Bron run.” SrA BT asked the appellant to bring some back for him
and gave the appellant his debit card and personal identification number (PIN) so he
could withdraw 5,000 yen from an automated teller machine (ATM) for the purchase.
The appellant later returned and gave SrA BT a water bottle he said contained Bron.

A panel member asked SrA BT whether he had access to bank records that would
show whether the appellant used the debit card during the time frame of his
hospitalization. SrA BT responded that he believed his bank records were mailed to his
home in Ohio and that he had never checked to see if the card had been used.

At the request of the Government, SrA BT logged into his bank account and
printed out the statement for the relevant time period. Later in the trial, the Government
recalled SrA BT to more fully answer the panel member’s question.

The defense objected to the admission of the bank records on foundation,
authentication, and hearsay grounds. SrA BT told the military judge how he had
accessed his bank account and printed the relevant statement. He described many of the
transactions on the statement and remembered authorizing most of them. He pointed to a

4 ACM S32174
$59.52 debit withdrawal as matching the amount of money he had authorized the
appellant to withdraw. SrA BT acknowledged that he had no knowledge of the bank’s
record keeping procedures and was not absolutely sure that the debit withdrawal was
made by the appellant. The military judge admitted the bank statement into evidence,
finding it was properly authenticated by SrA BT. The exhibit was then given to the
panel, without testimony from SrA BT.

On appeal, we review a military judge’s decision to admit evidence for an abuse of
discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008). “An abuse of
discretion occurs when the trial court’s findings of fact are clearly erroneous or if the
court’s decision is influenced by an erroneous view of the law.” Id. This standard takes
into account that the judge has a wide range of choices, and we will not reverse while the
decision remains within that range. Id.

At trial, the proponent has the burden of establishing an adequate evidentiary
foundation. United States v. Maxwell, 38 M.J. 148, 150 (C.M.A. 1993). This burden can
be met with direct or circumstantial evidence. Id. at 150–51.

“The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Mil. E. Evid. 901(a). Evidence may be
authenticated through the testimony of a witness with knowledge “that a matter is what it
is claimed to be.” Mil. R. Evid. 901(b)(1). We find the military judge did not abuse her
discretion in finding this bank statement was properly authenticated by the testimony of
SrA BT.

The military judge did not expressly rule on the defense’s hearsay objection. The
Government contends this bank statement is not hearsay because it is computer generated
data created by the electronic and mechanical operations of a computer system. While
SrA BT testified that he obtained the statement electronically, there was no evidence
offered at trial to support the proposition that the transactions reflected in the statement
were machine generated. Accordingly, we review the assertions in the statement as
potential hearsay. The bank statement was offered by the Government to prove the truth
of the matter asserted in it—that a withdrawal was made from the account by the
appellant. “Hearsay evidence contained in a properly authenticated or self-authenticating
document must qualify as an exception to the hearsay rule to be admissible.”
United States v. Brindell, 35 M.J. 369, 372 (C.M.A. 1992).

A bank statement, if otherwise admissible, must qualify as a record of a “regularly
conducted activity” under Mil. R. Evid. 803(6) in order to avoid exclusion as hearsay. Id.
The document must qualify as:

A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,

5 ACM S32174
 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.

In this case the foundation for admitting the photocopies of bank records lacked
“the testimony of the custodian or other qualified witness.” Id. Such a witness needed to
be “generally familiar” with the process of the business activity that created the
document. United States v. Harris, 55 M.J. 433, 437 (C.A.A.F. 2001). Here, SrA BT
was not familiar with how his bank gathered information and documented it on his bank
statement. Under these facts, it was error for the military judge to admit the document.
However, we find no material prejudice to the appellant from its admission. Although
the Government argued that this document corroborated SrA BT’s testimony about this
particular drug transaction, the appellant’s plan to bring Bron to SrA BT at the hospital
was also witnessed by Amn GB. Furthermore, the evidence of the appellant’s repeated
use of Bron was overwhelming.

Limitation on Cross-Examination

Prior to pleas, trial defense counsel moved to exclude the testimony of the three
Airmen (SrA BT, A1C SR, and Amn GB) on the grounds that the three witnesses had
colluded in their testimony. During an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session,
A1C SR and Amn GB testified that they had been instructed not to discuss the case with
each other and had complied with that instruction. SrA BT did not recall being instructed
about this matter.

A fourth Airman, A1C JB, testified that in February 2013, he drove the three
Airmen to and from work and that he heard the three Airmen talking in the car about the
route that had been taken to buy Bron, where the store was, how it was mixed in a water
bottle, and that the appellant had used Bron with SrA BT. A1C JB testified that the three
Airmen did not specifically talk about what their testimony was going to be and never
talked about coming up with a matching version of events.

The military judge denied the defense motion to exclude the testimony of the three
Airmen. She noted the defense had the opportunity through cross-examination to point
out inconsistent or changing statements.

During the testimony of A1C SR, trial defense counsel elicited that A1C SR
understood that drug use could lead to the loss of his GI Bill and hamper his efforts to go
to law school. Trial defense counsel then tried to ask the witness if he had discussed the
appellant’s court-martial during car rides. The military judge sustained a Government
objection, finding this line of questioning did not relate to bias or Mil. R. Evid. 608(c).

6 ACM S32174
She told defense counsel that he could question A1C JB about the conversations he
overheard in the car.

During his testimony, A1C JB testified consistently with his testimony at the
Article 39(a), UCMJ, session. He also added that SrA BT pointed out a specific route he
took whenever he went to buy Bron. He also stated that one of the three Airmen said
they wanted immunity.

The appellant contends the military judge erred when she refused to allow the
defense to cross examine A1C SR (and the other two Airmen) about their collusion. He
argues such evidence was admissible under Mil. R. Evid. 608(c). He also contends the
value of A1C JB’s testimony was destroyed by trial counsel’s findings argument that
included the following:

Defense wants you to believe that there’s this
colluding going on in the car. [A1C JB] doesn’t remember
anything about talking about Percocet. What he does
remember at least is that these witnesses are happy to get
immunity because they can tell the truth about everything that
happened.

We review a military judge’s decision to exclude or admit evidence under Mil. R.
Evid. 608 for abuse-of-discretion. United States v. Bins, 43 M.J. 79, 83 (C.A.A.F. 1995).
Mil. R. Evid 608(c) “allows for evidence to show bias, prejudice, or any motive to
misrepresent through the examination of witnesses or extrinsic evidence.” United States
v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006) (citing United States v. Bahr,
33 M.J. 228, 232 (C.M.A. 1991)). “The partiality of a witness . . . is always relevant as
discrediting the witness and affecting the weight of his testimony.” Id. (quoting Davis v.
Alaska, 415 U.S. 308 (1974)) (alteration in original) (internal quotation marks omitted).

Even if the decision by the military judge to restrict the defense from
cross-examining the three Airmen about their alleged collusion was an abuse of
discretion, we find it did not materially prejudice the appellant. The appellant was able to
elicit sufficient facts from the driver to argue that the witnesses colluded, and the
likelihood of better testimony coming out on cross-examination of the Airmen
themselves was quite low. Through the testimony of A1C JB, the defense elicited proof
that the three witnesses were discussing facts that were relevant to the appellant’s trial,
and then argued to the panel that this indicated the witnesses were getting their testimony
aligned with each other. The three Airmen, even testifying under immunity, were not
likely to admit they had conspired to shape their testimony. The defense effectively
pointed out that each of the three Airmen had something to gain by testifying on behalf of
the Government and used the testimony of A1C JB to demonstrate to the panel that they
had regularly discussed the events in advance of trial. Under these circumstances, we
find no material prejudice to the appellant.

7 ACM S32174
 Statement by the Appellant

The appellant alleges the military judge erred in not suppressing statements the
appellant made to a noncommissioned officer because he was not advised of his rights as
required by Article 31, UCMJ, 10 U.S.C. § 831. “When there is a motion to suppress a
statement on the ground that rights’ [sic] warnings were not given, we review the military
judge’s findings of fact on a clearly erroneous standard and his conclusions of law
de novo.” United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (internal quotation
marks omitted). When an issue presents itself as a mixed question of law and fact, we
will find an abuse of discretion when the military judge’s findings of fact are clearly
erroneous or the conclusions of law are incorrect. Id.

In this case, the military judge made extensive findings of fact which are amply
supported by the record, not meaningfully contested upon appeal, and which we adopt
and summarize here.

Staff Sergeant (SSgt) DH was a co-worker and close friend of the appellant. He
described their relationship as being like brothers. On 9 January 2013, the appellant
arrived at work visibly upset. SSgt DH asked if he was okay and the appellant said he
had been read his rights for using controlled substances. After SSgt DH asked if the
appellant wanted to talk about it, the two went to SSgt DH’s car. The appellant said he
had seen another Airman’s car at security forces and that this Airman had “ratted him
out.” Knowing of his obligation as a noncommissioned officer, SSgt DH warned the
appellant not to say he had committed a crime because SSgt DH would have to report it.
Believing the appellant to be innocent of the allegations, SSgt DH urged him to take a
urinalysis to prove his innocence. When the appellant balked, SSgt DH became very
upset with him, telling him this refusal would look suspicious. Eventually the appellant
said he could not take the test because he had taken another Airman’s prescription
Percocet. He told SSgt DH that he would take the test several days later as the drug
would be out of his system by then. The appellant also admitted to using Bron.

After thinking about the issue overnight, SSgt DH discussed the situation with his
flight chief and others in his unit, without giving the appellant’s name. After SSgt DH’s
first sergeant notified the Air Force Office of Special Investigations, SSgt DH provided a
sworn statement on 11 January 2013, relaying his conversation with the appellant.

The defense moved to suppress the statements made by the appellant, arguing that
they were elicited in violation of his right against self-incrimination due to the lack of
rights advisement. The military judge denied that motion, applying our superior court’s
decision in United States v. Duga, 10 M.J. 206 (C.M.A. 1981), to find SSgt DH was not
acting in an official capacity as the statements occurred during a conversation between
friends. The appellant contends this was error.

8 ACM S32174
 As Article 31(b), UCMJ, is a proscription that applies to the questioner, the
appropriate analysis addresses whether the facts and circumstances require the questioner
to comply with it, not whether the suspect is entitled to those rights. United States v.
Gilbreath, No. 201200427/NMCCA (C.A.A.F. 18 December 2014). In Duga, our
superior court created a two-part test to determine when Article 31, UCMJ, warnings are
required—where (1) the questioner was acting in an official capacity and (2) the person
questioned perceived that the inquiry involved more than a casual conversation.
10 M.J. at 210. However, since the appellant’s trial, the subjective test articulated in the
second prong has been rejected. Jones, 73 M.J. at 362.

Under the current case law, whether SSgt DH was required to provide a rights
advisement under Article 31(b), UCMJ, is evaluated by assessing all the facts and
circumstances at the time of the interview to determine whether the military questioner
was acting or could reasonably be considered to be acting in an official law-enforcement
or disciplinary capacity. Id. The latter determination is evaluated by reference to “a
reasonable man in the suspect’s position.” Id. (quoting United States v. Good,
32 M.J. 105, 108 n.2 (C.M.A. 1991)) (internal quotation marks omitted).

In her ruling, the military judge concluded that this was a “friend-to-friend
conversation” and SSgt DH “should not reasonably have suspected the [appellant] of
committing an offense [as f]riends normally do not jump to the conclusion that all
allegations and innuendo against friends are true.” She also concluded that the appellant
“should have perceived SSgt [DH]’s comments at face value—that it was casual
conversation and not as some form of official interrogation.” Applying the Duga test, the
military judge found the appellant’s statement to SSgt DH was voluntary and admissible.

In applying the Duga test, the military judge concluded that SSgt DH was acting
as a friend and was not acting—and could not reasonably be considered by the appellant
to be acting—in an official law enforcement or disciplinary capacity. We agree with
these conclusions. Like the questioner in Jones, SSgt DH had a personal motivation to
question the appellant that was outside his role as a noncommissioned officer, and he did
not possess or exercise a disciplinary role with respect to the appellant. See Jones,
73 M.J. at 362; Gilbreath, slip op. at 10. Additionally, SSgt DH did not have any law
enforcement responsibilities and was not acting at the behest of law enforcement or any
supervisory authorities. Although SSgt DH may have had a responsibility as a
noncommissioned officer2 to take action upon learning of the appellant’s involvement
with controlled substances, this does not compel a conclusion that he was acting in an
official or disciplinary capacity when speaking to the appellant. Furthermore, a
2
See Air Force Instruction 36-2618, Enlisted Force Structure, ¶ 4.1.4.3.1 (27 February 2009) (certified current
23 March 2012) (stating general noncommissioned officer responsibilities: “Be alert for signs of substance abuse in
yourself and others. Substance abuse not only involves the use of illegal drugs, but more commonly, involves
excessive or irresponsible consumption of alcohol or over-the-counter medications. All must be aware of the
warning signs of substance abuse and seek the appropriate assistance through the chain of command, chaplain, or
other appropriate referral.”).

9 ACM S32174
reasonable person in the appellant’s position could not consider SSgt DH to be acting in
an official law enforcement or disciplinary capacity during this conversation. In light of
these facts and circumstances, the military judge did not err in concluding that SSgt DH
was not acting in an official capacity when he questioned the appellant and did not abuse
her discretion in admitting evidence of the appellant’s statement to SSgt DH.

Driving While Impaired

The appellant was convicted of operating a passenger car on divers occasions
between May 2012 and January 2013 while impaired by Bron (dihydrocodeine) and on
one occasion in December 2012 while impaired by a combination of Bron and Klonopin
(clonazepam). The appellant contends the evidence is factually and legally insufficient to
sustain these convictions. The appellant argues that no witness adequately testified that
his faculties were impaired while he was driving.

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).
“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)). “[I]n resolving questions of legal sufficiency, 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).

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 accused’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. Review of the evidence is limited to the record, which includes only the
evidence admitted at trial and exposed to the crucible of cross-examination.
Article 66(c), UCMJ; United States v. Bethea, 46 C.M.R. 223, 224–25 (C.M.A. 1973).

Article 111, UCMJ, 10 U.S.C. § 911, prohibits military members from operating
any vehicle while impaired by a substance prohibited by Article 112a, UCMJ. The
elements of this offense are that (1) the appellant operated a vehicle and (2) did so while
impaired. Manual for Courts-Martial, United States (MCM), Part IV, ¶ 35.b. (2012 ed.).
Impaired means “any intoxication which is sufficient to impair the rational and full
exercise of the mental or physical faculties.” MCM, Part IV, ¶ 35.c.(6).

10 ACM S32174
 At trial, SrA BT testified that the appellant was the driver for some of their
journeys to purchase Bron. He described how the two of them would consume Bron in
the parking lot of the store and then drive the 35–40 minutes back to base. Within
15 to 20 minutes of ingesting the Bron, SrA BT would feel “euphoric, relaxed” and
agreed he was “impaired.” The appellant told SrA BT he was feeling the same way.
A1C SR and Amn GB also saw the appellant driving about 15 to 20 minutes after
ingesting Bron.

The specification alleging the appellant drove a vehicle while impaired by a
combination of Bron and Klonopin stemmed from an incident at the squadron holiday
party in December 2012. Both SrA BT and A1C SR saw the appellant ingest the two
substances in advance of the party and rode in the car while the appellant drove them to
the party. Shortly after the appellant arrived, the appellant’s commander observed him
slurring his speech and speaking as if he had a “heavy tongue.” Believing him to be
impaired, the commander allowed him to remain at the party, believing it was safer for
the appellant.

In addition to the testimony of these individuals who witnessed the appellant
driving after ingesting Bron and/or Klonopin, the forensic toxicologist testified that, in
his expert opinion, someone consuming Bron at the levels attributed to the appellant
would experience psychomotor and cognitive impairment. This would include delayed
response times, attention distractions, mental dullness, feelings of sedation, and/or
decreased ability to process information.

Having paid particular attention to the matters raised by the appellant and making
allowances for not having personally observed the witnesses, we find the evidence
factually sufficient to support his convictions for operating a vehicle while impaired. We
are convinced beyond a reasonable doubt that the appellant drove a vehicle while under
sufficient influence from these controlled substances to impair the rational and full
exercise of his mental or physical facilities. Additionally, considering the evidence in the
light most favorable to the prosecution, we find that a reasonable factfinder could have
found this beyond a reasonable doubt.

Cumulative Error

We review de novo the cumulative effect of all plain and preserved errors.
United States v. Pope, 69 M.J. 328, 335 (C.A.A.F. 2011). “Under the cumulative-error
doctrine, ‘a number of errors, no one perhaps sufficient to merit reversal, in combination
necessitate the disapproval of a finding.’” Id. (quoting United States v. Banks, 36 M.J.
150, 170–71 (C.M.A.1992)). We are to reverse only if we find any cumulative errors to
have denied the appellant a fair trial. Id. Since we find no material error in this case,
there is no cumulative error.

11 ACM S32174
 Conclusion

The approved findings and 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
sentence are

AFFIRMED.

FOR THE COURT

STEVEN LUCAS
Clerk of the Court

12 ACM S32174