United States v. Irvin

Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges

_________________________

UNITED STATES
Appellee

v.

Timothy A. IRVIN
Private First Class (E-2), U.S. Marine Corps
Appellant

No. 201900174

Decided: 17 December 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge:
Emily A. Jackson-Hall

Sentence adjudged 1 February 2019 by a special court-martial con-
vened at Marine Corps Base Camp Lejeune, North Carolina, consist-
ing of officer and enlisted members. Sentence approved by the conven-
ing authority: reduction to E-1, confinement for twelve months, and a
bad-conduct discharge.

For Appellant:
Lieutenant Michael W. Wester, JAGC, USN

For Appellee:
Major Clayton L. Wiggins, USMC
Lieutenant Kimberly Rios, JAGC, USN
Captain McKenzie B. Ehrhardt, USMC

Senior Judge GASTON delivered the opinion of the Court, in which
Judges STEWART and HOUTZ joined.
 United States v. Irvin, NMCCA No. 201900174
Opinion of the Court

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

GASTON, Senior Judge:
Appellant was convicted, contrary to his pleas, of unauthorized absence,
willfully disobeying a superior commissioned officer, two specifications of
failure to obey a lawful order, two specifications of wrongful use of cocaine,
breaking restriction, and willfully discharging a firearm under such
circumstances as to endanger human life, in violation of Articles 86, 90, 92,
112a, and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 886,
890, 892, 912a, 934.
He asserts five assignments of error [AOE], which we renumber as fol-
lows: (1) the military judge abused her discretion by admitting evidence
obtained from a search of Appellant’s cellular phone in violation of the Fourth
Amendment; (2) the military judge abused her discretion by admitting
urinalysis evidence without proof of a continuous chain of custody that
preserved the evidence in an unaltered state; and the evidence is factually
insufficient to support Appellant’s convictions of: (3) Specification 1 of Charge
I (failure to obey lawful order), (4) Specification 4 of Charge II (willful
discharge of a firearm under such circumstances as to endanger human life),
and (5) Specification 2 of Charge VI (wrongful use of cocaine). We find merit
in Appellant’s second and fourth AOEs. We set aside his conviction of
Specification 2 of Charge VI—mooting his fifth AOE, set aside his conviction
of Specification 4 of Charge II, and affirm its lesser-included offense. We
affirm the remaining findings and, upon reassessment, affirm the sentence.

I. BACKGROUND

In the early morning hours of 31 August 2015, Appellant notified emer-
gency medical services that he had found his wife unresponsive and cold to
the touch in their on-base apartment in Okinawa, Japan. Mrs. Irvin was later
pronounced dead at a U.S. Naval Hospital. The Naval Criminal Investigative
Service [NCIS] conducted a death scene investigation and found no signs of
struggle. Appellant denied striking his wife or that there were any marital
problems or substance abuse issues. A toxicology report noted the presence of
alcohol in Mrs. Irvin’s system consistent with normal consumption and no
other drugs. An autopsy left the cause and manner of her death undeter-
mined.

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Suspecting foul play, NCIS opened an investigation. Background inter-
views revealed Appellant was involved in a years-long, extramarital sexual
relationship (2014-2016) at the time of his wife’s death; that he sent his
paramour a Facebook message telling her, “love you too,” the night after his
wife’s death; that he laughed and joked with another prior girlfriend the
following day and exchanged flirtatious messages with other females soon
thereafter; that he attempted to choke a prior girlfriend during their 2011-
2013 relationship; that he strangled a different girlfriend while she was
pregnant in October 2016, resulting in her hospitalization; that he was
physically violent toward a third girlfriend, Ms. “Foster,” 1 whom he dated
from October 2016 to April 2017; and that he received $100,000 in life
insurance proceeds from his wife’s death. Forensic analysis of a phone found
next to Mrs. Irvin’s body revealed that in the weeks leading up to her death
the phone had been used to visit a website containing the phrase,
“my_husband_hit_me_for_the_first_time.” The analysis also revealed that on
the morning of her death it was used to search for “if somebody’s body locks
up and they ain’t moving what does that mean not breathing,” and moments
later to search for symptoms of death. 2 During a follow-up interview on 11
April 2017, Appellant told NCIS that on the night Mrs. Irvin died, he became
frustrated with her actions and placed his hands over her mouth until she
went limp and passed out, and then the following morning found her
unresponsive and was unable to revive her.

II. DISCUSSION

A. Search of Appellant’s Cell Phone
After implicating himself in his wife’s death, Appellant was placed in
pretrial confinement, and his Apple Watch and iPhone were secured by his
command, Marine Aviation Training Support Squadron One [MATSS-1],
located onboard Naval Air Station [NAS] Meridian, Mississippi. On 5 June
2017, NCIS Special Agent [SA] Sierra requested a Command Authorization
for Search and Seizure [CASS] for Appellant’s Apple Watch and iPhone from
the superior commander with authority over MATSS-1, the Commanding
General of Marine Corps Training Command [TRNGCMD Commander]. The

1 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
2 App. Ex. IX at 17.

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Opinion of the Court

agent requested authorization to search for “[i]mages and text, including
email messages, and Internet history, contained within [them]” and “digital
data files, whether stored on [the devices], or stored remotely and accessible
by the [devices]” that were “evidence of Article 107 (False Statements), 118
(Murder) and 128 (Aggravated Assault/Assault Consummated by a Battery)
of the [UCMJ],” along with “writings that tend to show dominion and control
over the stored data files.” 3 In his supporting affidavit, SA Sierra discussed
the results of the NCIS investigation outlined above and stated that there
was probable cause to believe the search would reveal evidence of Appellant
and Mrs. Irvin’s marital issues, the identity of additional witnesses, and
other evidence to support that Appellant had engaged in the above listed
crimes. The TRNGCMD Commander found probable cause based on the
affidavit and granted the CASS.
Appellant’s phone was thereafter subjected to a “logical extraction” of its
digital contents. The ensuing search of those contents did not yield any
evidence of the suspected offenses of false statements, murder, or assault.
However, a video was found in the phone’s text messages showing Appellant
firing a handgun into the air from a car window while driving at night on a
backroad near Hattiesburg, Mississippi, in October 2016. Appellant’s then-
girlfriend, Ms. Foster, had recorded the video from the passenger’s seat and
then sent it to him via text message at his request a few days later.

1. The military judge’s suppression ruling
Prior to trial, Appellant moved to suppress the video obtained during the
search of his phone. He argued that the TRNGCMD Commander lacked the
authority to grant the CASS because the place where the phone was located
on NAS Meridian was not subject to his authority; that the CASS was
overbroad and not supported by probable cause; and that in executing the
CASS, the investigators did not limit their search of the phone in any
reasonable way.
After a hearing, the military judge denied the suppression motion in a
written ruling. While she did not address whether the TRNGCMD Com-
mander lacked authority to grant the CASS, the military judge concluded the
phone was properly held by MATSS-1 after Appellant was placed in pretrial
confinement. She further concluded that based on the information contained
in the agent’s affidavit, the TRNGCMD Commander had probable cause to

3 App. Ex. IX at 20.

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issue the CASS and the search was conducted lawfully in discovering the
video, which was connected to both one of the alleged victims and the
timeframe discussed in the affidavit.

2. Standard of review and the Fourth Amendment
Appellant asserts the military judge erred in failing to suppress the cell
phone evidence and the derivative testimony of Ms. Foster. We review
suppression rulings for an abuse of discretion, viewing the evidence in the
light most favorable to the party that prevailed at trial. United States v.
Blackburn, 80 M.J. 205, 211 (C.A.A.F. 2020) (citations omitted). “The abuse of
discretion standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be arbitrary, fanciful, clearly unreason-
able, or clearly erroneous.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010) (citation and internal quotation marks omitted).
Evidence obtained as a result of an unlawful search or seizure by a gov-
ernmental agent is generally inadmissible against an accused if:
(1) the accused makes a timely motion to suppress or an objec-
tion to the evidence . . . (2) the accused had a reasonable expec-
tation of privacy in the person, place, or property searched; the
accused had a legitimate interest in the property or evidence
seized when challenging a seizure; or the accused would other-
wise have grounds to object to the search or seizure under the
Constitution of the United States as applied to members of the
Armed Forces; and (3) exclusion of the evidence results in ap-
preciable deterrence of future unlawful searches or seizures
and the benefits of such deterrence outweigh the costs to the
justice system.
Mil. R. Evid. 311(a). Once the defense makes an appropriate motion or
objection, the prosecution bears the burden of proving the evidence was
lawfully obtained. Mil. R. Evid. 311(d)(5)(A). In the military context, searches
and seizures may be authorized by “[a] commander . . . who has control over
the place where the property or person to be searched is situated or found.”
Mil. R. Evid. 315(d)(1).
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the per-
sons or things to be seized.

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U.S. Const. amend. IV (emphasis added). Probable cause exists where the
totality of the circumstances establish a “fair probability that evidence of a
crime will be found at the identified location.” United States v. Nieto 76 M.J.
101, 105 (C.A.A.F. 2017) (citations and internal quotation marks omitted).
We give “great deference” to such probable cause determinations in light of
the Fourth Amendment’s strong preference for authorized searches, such that
if the authorizing official has “a substantial basis to find probable cause, a
military judge [does] not abuse his discretion in denying a motion to
suppress.” Id. (citations and internal quotation marks omitted).
With respect the Fourth Amendment’s requirement of particularity, the
Supreme Court has explained:
By limiting the authorization to search to the specific areas and
things for which there is probable cause to search, the re-
quirement ensures that the search will be carefully tailored to
its justifications, and will not take on the character of the wide-
ranging exploratory searches the Framers intended to prohibit.
Maryland v. Garrison, 480 U.S. 79, 84 (1987). Thus, search authorizations
must “describe the things to be seized with sufficient particularity to prevent
a general exploratory rummaging in a person’s belongings.” United States v.
Richards, 76 M.J. 365, 369 (C.A.A.F. 2017) (quoting United States v. Carey,
172 F.3d 1268, 1272 (10th Cir. 1999)).
Searches of electronic devices like cellular phones are not exempt from
the Fourth Amendment’s requirements. Riley v. California, 573 U.S. 373, 386
(2014). However, the Court of Appeals for the Armed Forces [CAAF] has
recognized that such devices present “distinct issues,” and “[t]he prohibition
of general searches is not to be confused with a demand for precise ex ante
knowledge of the location and content of evidence.” Richards, 76 M.J. at 369-
70 (citation omitted). Given “the dangers of too narrowly limiting where
investigators can go,” such searches may be properly limited “to evidence of
specific federal crimes or specific types of material” without necessarily
“requir[ing] particular search methods and protocols.” Id. at 370 (citation
omitted). Nevertheless, such searches remain subject to an “ex post reasona-
bleness analysis” to assess whether they have struck the appropriate balance
between being “expansive enough to allow investigators access to places
where incriminating materials may be hidden, yet not so broad that they
become the sort of free-for-all general searches the Fourth Amendment was
designed to prevent.” Id. (citations omitted).

3. Analysis
As an initial matter, Appellant argues the TRNGCMD Commander
lacked authority to issue the CASS for his cellular phone. We disagree. Based

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on the evidence before us, we find that concomitant with Appellant’s
apprehension and placement in pretrial confinement, his cell phone was kept
in the possession of his command, MATSS-1, onboard NAS Meridian. While
we agree that the TRNGCMD Commander did not have control over the
entirety of NAS Meridian, we find he did have control over the personnel and
property of his subordinate unit, MATSS-1, where the phone was located.
Hence, we conclude the evidence is sufficient to establish that the CASS was
properly issued by a commander “who ha[d] control over the place where the
property . . . to be searched [wa]s situated.” Mil. R. Evid. 315(d)(1).
We find no abuse of discretion with the remainder of the military judge’s
ruling. First, we find reasonable her conclusion that the TRNGCMD
Commander had probable cause to issue the CASS based on the information
contained in the agent’s affidavit. While the CASS was broadly worded in
terms of the “digital data files” that could be searched and seized, it was
affirmatively limited to searching and seizing specific types of data (i.e.,
images and text, email messages, and internet history) for evidence of specific
crimes. As the military judge found, the evidence presented to the
TRNGCMD Commander was that Appellant had engaged in abusive
extramarital relationships before, during, and after the death of Mrs. Irvin,
and had engaged in both telephonic and text-based conversations during the
course of those relationships. SA Sierra’s affidavit also revealed evidence that
Appellant had used at least one cell phone to conduct internet searches in
connection with his wife’s death (e.g., “if somebody’s body locks up and they
ain’t moving what does that mean not breathing”). 4 These circumstances
established a fair probability that a search of Appellant’s phone would yield
evidence of not only his motive and role in the suspected murder of Mrs.
Irvin, but also the assaults alleged by the other women. We find the affidavit
provided sufficient probable cause to search Appellant’s cellular phone for the
specific items listed for seizure.
Second, as the military judge’s ruling points out, the video at issue was
found embedded in a message to Appellant from one of the alleged victims,
Ms. Foster, in October 2018, during the timeframe discussed in the agent’s
affidavit. Specifically, it was sent by Ms. Foster in response to Appellant’s
request to “send my video of shooting my gun.” 5 Given the facts and
circumstances of this murder and assault investigation, we do not find the

4 App. Ex. IX at 17.
5 App. Ex. XCIII at 5.

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lack of evidence regarding the particular search methods and protocols
employed, which in any event are not required, fatal to our ex post reasona-
bleness analysis. In light of the surrounding context, we conclude that the
video evidence at issue was properly seized under the doctrine of plain view,
as it was observed during the course of a lawful search executed in a
reasonable fashion. Mil. R. Evid. 316(c)(5)(C). As the military judge properly
found, the evidence on its face—a video of Appellant firing a handgun out of a
car window while driving—reasonably supported the belief that it was
evidence of a criminal offense.
Even assuming arguendo the TRNGCMD Commander lacked either
control over the place where the phone was situated or probable cause to
issue the CASS, we conclude the search and seizure of this evidence fall
within the good faith exception to the exclusionary rule. Under this exception,
evidence obtained as a result of an otherwise unlawful search or seizure may
be used if:
(A) the search or seizure resulted from an authorization to
search, seize or apprehend issued by an individual competent
to issue the authorization under Mil. R. Evid. 315(d) . . . ;
(B) the individual issuing the authorization or warrant had
a substantial basis for determining the existence of probable
cause; and
(C) the officials seeking and executing the authorization or
warrant reasonably and with good faith relied on the issuance
of the authorization or warrant. Good faith is to be determined
using an objective standard.
Mil. R. Evid. 311(c)(3). All three of these conditions are satisfied here.
First, with respect to subsection (A), CAAF has held this condition is
satisfied “if the officers executing the warrant reasonably believe that the
magistrate has authority over the place searched.” United States v. Chapple,
36 M.J. 410, 414 (C.M.A. 1993) (emphasis added). In Chapple, an overseas
installation commander issued a CASS for an off-base apartment leased in
Italy by a Sailor whose unit was not under the installation commander’s
command. The court found that because neither the off-base apartment nor
the Sailor was under his control, the installation commander lacked
authority to issue the CASS. However, because the installation commander
was generally empowered to authorize searches, and because he, his staff

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judge advocate, the investigating agents, and the military judge all errone-
ously believed the commander had authority to authorize the search in
question, the court found that condition (A) was met and applied the good
faith exception. 6
In this case, the TRNGCMD Commander was a general officer with broad
authority to authorize searches over the property and personnel under his
control. SA Sierra’s CASS application, executed before a deputy staff judge
advocate, leaves us little doubt that the agent chose to pursue the CASS from
the TRNGCMD Commander precisely because he believed the TRNGCMD
Commander had authority over the personnel and property of MATSS-1,
where the phone was located when the CASS was issued. 7 As we ourselves
have concluded that the TRNGCMD Commander did indeed have this
authority, we conclude the agent’s belief in this regard was reasonable.
Similarly, with respect to subsection (B) of the exception dealing with the
issue of probable cause, CAAF has held this condition is satisfied “if the law
enforcement official had an objectively reasonable belief that the magistrate
[or commander] had a ‘substantial basis’ for determining the existence of
probable cause.” United States v. Perkins, 78 M.J. 381, 387 (C.A.A.F. 2019)
(quoting United States v. Carter, 54 M.J. 414, 422 (C.A.A.F. 2001) (emphasis
added)). 8 Conversely, the condition is not satisfied “if the materials presented

6 One Circuit Court commenting on Mil. R. Evid. 315(d)—the basis for subsection
(A) of Mil. R. Evid. 311(c)(3)—in the context of good faith has found that the rule is
“no bastion of clarity . . . . One could reasonably conclude that a military service
member’s commanding officer is the officer who has control over the place where he
or she is ‘situated.’ ” United States v. Seerden, 916 F.3d 360, 367 (4th Cir. 2019).
7 Notwithstanding Appellant’s argument to contrary, we believe the agent’s
affidavit provides sufficient basis to find that the phone was indeed located at
MATSS-1, or in the possession of MATSS-1 personnel, at the time the CASS was
issued, as opposed to some other location onboard NAS Meridian.
8 In United States v. Carter, CAAF explained that a strict reading of the words
“substantial basis” in Mil. R. Evid. 311(c)(3)(B) might render the good faith exception
a nullity in light of Illinois v. Gates, 462 U.S. 213, 238 (1983), which uses the same
words to describe a reviewing court’s standard of review for a magistrate’s probable
cause determination. 54 M.J. 414, 421 (C.A.A.F. 2001). In an effort to bring the rule
into line with the good faith exception set forth in United States v. Leon, 468 U.S. 897
(1984)—i.e., the Supreme Court case that gave rise to the good faith exception in the
first place—CAAF held that this language in the exception ultimately places the
focus on the objective reasonableness of law enforcement agent’s belief, as opposed
the authorizing official’s, as to the existence of probable cause. Carter, 54 M.J. at 422.

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to the commander or magistrate issuing the search and seizure authorization
are ‘so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.’ ” United States v. White, 2020 CAAF LEXIS
618, at *15 (C.A.A.F. 2020) (quoting Carter, 54 M.J. at 419). Here, based on
our above discussion, we find that SA Sierra had an objectively reasonable
belief that the information he provided in his affidavit gave the TRNGCMD
Commander a substantial basis to find probable cause to issue the CASS. 9
Third, the evidence supports that subsection (C) of Mil. R. Evid. 311(c)(3)
is also met here. Interpreting this subsection, CAAF has found that the rule
encapsulates the requirements of United States v. Leon, 468 U.S. 897 (1984)
that “objective good faith cannot exist when the police know that the
magistrate merely rubber stamped their request, or when the warrant is
facially defective.” Carter, 54 M.J. at 421. Here we find little evidence to
suggest the CASS was merely rubber-stamped, sought or executed in bad
faith, or that it was facially defective. 10 Given that the CASS was issued by a
general officer and that a staff judge advocate was involved with the
execution of the CASS application, which had its foundation in the agent’s
thorough affidavit, we find it to be objectively reasonable for law enforcement
officers to have relied on this CASS in good faith.
Finally, even assuming arguendo the search was unlawful and the condi-
tions of the good faith exception were not met, we conclude that exclusion of
the evidence at issue here would not result in appreciable deterrence of
future unlawful searches or seizures, nor would the benefits of such
deterrence outweigh the costs to the justice system. Mil. R. Evid. 311(a)(3). In

9 Nor do we find that SA Sierra’s affidavit offered the TRNGCMD Commander
the type of reckless falsity or “bare bones recital of conclusions” that no reasonable
law enforcement official could execute in good faith and that CAAF has suggested
would fail subsection (B) of the exception. See Carter, 54 M.J. at 421 (explaining that
Mil. R. Evid. 315(c)(3)(B) captures the first and third prongs of the good faith
exception outlined in Leon, mandating that search warrant affidavits “must not be
intentionally or recklessly false,” and must be more than ‘bare bones’ recitals of
conclusions.” 468 U.S. at 914-15).
10 Appellant notes a scrivener’s error in the CASS, that it was based solely on an
affidavit, the fact that it was signed on the same day it was applied for, and alleges
that it contained “no facts” demonstrating that evidence of crime would be found on
the phone. In light of our foregoing discussion, we do not find these points—many of
which are not uncommon in the pursuit of search authorizations by law enforce-
ment—persuasive evidence that the TRNGCMD Commander merely “rubber-
stamped” the CASS.

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pursuing the CASS, the agent provided a detailed, seven-page affidavit
describing a years-long murder investigation, from a death scene and autopsy
yielding little basis to suspect foul play, through background interviews and
digital forensic analysis, and eventually the re-interview of Appellant, who
incriminated himself in his wife’s death. The CASS, while broadly worded in
its technical approach, was nevertheless tailored to the specific crimes the
investigation had brought light, based on the involvement of cell-phone
communications and cell-phone-based internet searches in connection with
those crimes. Even though the evidence obtained during the search here
ultimately did not bear on the offenses to which the CASS was directed, we
find under these circumstances little deterrent value in excluding the
evidence. Nor would the benefits of such deterrence outweigh the costs to the
justice system, which both envisions and encourages law enforcement to
pursue evidence in such a detailed, methodical fashion.

B. Chain of Custody
In April 2018, while on pretrial restriction in connection with the investi-
gation and subsequent charges against him, Appellant failed to attend a
required muster. He was tracked down to the home of his girlfriend, where
law enforcement found him lying on the floor with bloodshot eyes, a bloody
nose, and a suicide note nearby. Appellant’s girlfriend reported he had taken
a bunch of pills earlier in the day and had been stopped from attempting to
hang himself with a belt. 11 Appellant was taken to a U.S. Naval Hospital,
where the treating physician ordered a medical urinalysis to evaluate him for
drug overdose. The hospital’s process for medical urinalyses was for a
hospital corpsman or nurse to obtain a urine sample from the patient, have
the container containing the sample labelled with the patient’s identifying
information, and then deliver it to the hospital’s laboratory for testing. The
hospital lab would test the sample, and the results would be made available
to the treating physician. Any sample testing presumptively positive for a
controlled substance by the hospital lab would be poured into a new bottle,
re-labelled and sent to a civilian laboratory, LabCorp, for confirmatory
testing. The hospital did not generate chain of custody documents or employ
sealed, tamper-proof bottles in the course of this process.

11 She later testified there was cocaine in the house during a previous timeframe,
but she did not witness Appellant using it.

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Prior to trial, the Defense moved to exclude the urinalysis evidence—i.e.,
the urine specimen bottle, the testimony of the LabCorp lab manager, and
the LabCorp litigation report reflecting a positive result for cocaine—on
grounds of a faulty chain of custody. Specifically, the Defense argued the
Government could not demonstrate the urine sample tested by LabCorp was
actually obtained from Appellant. After a hearing, the military judge
reserved ruling on the motion, stating that the Government would be given
an opportunity to lay adequate foundation for the evidence at trial.
At trial, the treating physician testified that she ordered Appellant’s
urinalysis, but had no involvement in the collection or testing of any urine
sample identified to be Appellant’s. She was then allowed to testify that the
hospital lab results were presumptively positive for cocaine. She was further
allowed, over Defense objection, to testify that she trusted the hospital lab’s
urinalysis results and found them reliable. The LabCorp lab manager
testified about his lab’s procedures for receiving and testing a urine sample,
which included pouring the sample into a LabCorp bottle labelled for its
internal use. He testified that based on his review of the LabCorp report, a
sample identified to be Appellant’s arrived in an unsealed, non-tamper-proof
bottle with no chain of custody documentation, which did not meet the
company’s own guidelines for forensic testing. He was then allowed to testify
that the results of the clinical tests conducted by LabCorp on the sample were
positive for a metabolite of cocaine.
When the Defense renewed its foundational objection to the urine sample
bottle and the LabCorp report, the military judge acknowledged the
“complete and utter lack of chain of custody between the time [the treating
physician] pressed the button on the computer in which she ordered the test
and . . . the time that it got to LabCorp.”12 She nevertheless overruled the
Defense objection, admitted both the LabCorp report (as a business record)
and the urine sample bottle, and told the Defense it was “free to argue as to
the gaps in the chain of custody.” 13
Appellant now asserts the military judge abused her discretion by admit-
ting the urinalysis evidence without sufficient foundation linking it to
Appellant. We review rulings to admit or exclude evidence for an abuse of
discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). “The

12 R. at 593-94.
13 Id. at 591.

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abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” Lloyd, 69 M.J. at 99 (citation and
internal quotation marks omitted).

1. The requirement of authenticity
In order for real evidence to be admitted at trial, it must first be authenti-
cated, which requires that “the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Mil. R.
Evid. 901(a). “Generally fungible evidence [such as bodily fluids 14] becomes
admissible through a showing of continuous custody which preserves the
evidence in an unaltered state.” United States v. Nault, 4 M.J. 318, 319
(C.M.A. 1978). “Likewise, the results of tests performed on a fungible
substance require a ‘chain of custody on which to predicate admission of the
laboratory analysis into evidence.’ ” United States v. Maxwell, 38 M.J. 148,
150 (C.M.A. 1993) (quoting United States v. Courts, 9 M.J. 285, 290 (C.M.A.
1980)). Such authentication typically requires a “stringent tracing” of the
evidence. Nault, 4 M.J. at 320.
That said, “[t]he fact of a missing link does not prevent the admission of
real evidence, so long as there is sufficient proof that the evidence is what it
purports to be.” Maxwell, 38 M.J. at 150 (quoting United States v. Howard-
Arias, 679 F.2d 363, 366 (4th Cir.), cert. denied, 459 U.S. 874 (1982)). “Where
the chain of custody is incomplete, other evidence may be sufficient to bridge
the gap.” Id. (citation and internal quotation marks omitted). Nevertheless,
while such evidence may be direct or circumstantial, in one way or the other
“[t]he Government must show that there is a reasonable probability the
sample which was tested was in fact from the purported source and that it
was not altered.” Id. (emphasis in original).
Here, the military judge initially deferred ruling on the Defense’s pretrial
motion to exclude the urinalysis evidence subject to other evidence “connect-
ing it up” to Appellant at trial. The evidentiary rules allow for such condi-
tional admission of evidence and make the determination of whether the
condition has been fulfilled the “sole responsibility” of the trial judge. Mil. R.
Evid. 104(b). In this case, however, when the Defense renewed its objection
based on the evidence adduced at trial, the military judge overruled the

14 See United States v. Maxwell, 38 M.J. 148, 150 n.2 (C.M.A. 1993) (samples of
bodily fluids are fungible evidence) (citation omitted).

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objection without articulating how she believed the urinalysis evidence had
been sufficiently connected to Appellant. Instead, she acknowledged the
“complete and utter lack of chain of custody between the time [the treating
physician] pressed the button on the computer in which she ordered the test
and . . . the time that it got to LabCorp.” 15
We have previously discussed the dividing line between a mere gap in the
chain of custody and the utter failure to provide sufficient proof that the
evidence is what it purports to be. See United States v. Hinojos, No.
201300305, 2015 CCA LEXIS 20 (N-M. Ct. Crim. App. Jan. 27, 2015)
(unpublished). In Hinojos, the government’s expert testified that DNA found
on the victim's underwear was a match for the DNA on a buccal swab
purportedly collected from the appellant. The expert was allowed to do so
over defense objection even though the government laid no foundation before,
during, or after the expert’s testimony to establish that the DNA on the
buccal swab had actually been collected from the appellant. We found that
the government failed to provide sufficient foundation for the swab—and thus
the expert testimony conditioned on the authenticity of the swab—and
consequently held the admission of the testimony was an abuse of discretion.
Id. at *9-10.
We reach a similar conclusion here, and find this case distinguishable
from United States v. Maxwell, cited by the Government, wherein our
superior court upheld the trial judge’s admission of a blood alcohol content
[BAC] test despite no direct testimony that the sample tested was collected
from the appellant. In Maxwell, as here, the medical personnel involved in
the appellant’s treatment could testify only about the hospital’s standard
operating procedures for BAC testing, not the actual collection of the sample.
However, the procedures in Maxwell involved placing the sample in a
labelled, vacuum-sealed test tube such that nothing could be “added without
blowing the top off the tube.” Maxwell, 38 M.J. at 151. Furthermore, the
hospital lab technician testified about the tests he himself conducted and the
results he obtained from the actual sample, which was initially labelled “John
Doe” upon the appellant’s unidentified arrival after a car accident but was
later confirmed to be the appellant’s. Thus, unlike in this case, the evidence
in Maxwell demonstrated “a reasonable probability the sample which was
tested was in fact from the purported source and that it was not altered.” Id.
at 150 (emphasis in original).

15 R. at 593-94.

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Here, by contrast, a urine sample arrived at a civilian lab in an unsealed
bottle without sufficient chain-of-custody documentation to meet even the
lab’s own internal guidelines for forensic testing. The eventual trial
testimony provided little more foundation than, in the military judge’s words,
it was “a red bottle with some stickers on it that [the LabCorp lab manager]
recognize[d] as one that was tested in LabCorp.” 16 And unlike in Maxwell, the
foundational testimony came from witnesses uninvolved with either the
collection of the sample or its chain of custody, or its testing. Absent a more
developed record from which to assess the military judge’s rationale for
finding a sufficient connection between the urine sample analyzed by
LabCorp and Appellant, we find the admission of both the bottle and the lab
results was clearly unreasonable under the circumstances, and therefore an
abuse of discretion. 17

2. Prejudice
Having found error, we test for prejudice. “Whether an error, constitu-
tional or otherwise, was harmless is a question of law that we review de
novo.” United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003) (citation
omitted). For a non-constitutional error to be harmless, we must find “the
error did not have a substantial influence on the findings.” Id. We make this
assessment by comparatively weighing “(1) the strength of the Government’s

16 R. at 594.
17 We cannot overemphasize that in order to obtain maximum deference at the
appellate level, trial judges must ensure that the rationale for their decisions,
whether written or oral, is adequately memorialized on the record. As one commenta-
tor has aptly explained:
The abuse of discretion standard can significantly protect a mili-
tary judge’s rulings from reversal. To receive the full benefit of this
standard, though, a military judge must convince the appellate court
that he or she thoroughly, logically, and fairly considered the matter
at issue. When the military judge does so by developing the record,
issuing supported findings of fact, correctly citing the relevant legal
authorities, and reaching a conclusion that falls within a range of
reasonable decisions, the abuse of discretion standard will generally
favor upholding the military judge’s ruling. Where the military judge
fails to take these steps, the appellate court will view the military
judge’s ruling with more scrutiny.
Colonel Jeremy S. Weber, The Abuse of Discretion Standard in Military Justice
Appeals, 223 Mil. L. Rev. 41, 93-94 (2015).

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case; (2) the strength of the defense case; (3) the materiality of the evidence
in question; and (4) the quality of the evidence in question.” United States v.
Berry, 61 M.J. 91, 98 (C.A.A.F. 2005).
Here, the urinalysis evidence at issue was the principal basis underlying
Appellant’s conviction of cocaine use under Specification 2 of Charge VI. The
Government’s case absent this clearly material and highly persuasive
evidence was weak by comparison. We find that the erroneous admission of
the evidence had a substantial influence on the findings and was therefore
not harmless. Accordingly, we conclude we must set aside the finding of
guilty for Specification 2 of Charge VI, which we accomplish in our decretal
paragraph below. 18

C. Factual Sufficiency
Appellant asserts the evidence is factually insufficient to support his
convictions for failure to obey a lawful order and willful discharge of a
firearm under such circumstances as to endanger human life. We review
issues of factual sufficiency de novo. UCMJ, art. 66(c); United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). In evaluating factual
sufficiency, we determine whether, after weighing the evidence in the record
of trial and making allowances for not having observed the witnesses, we are
convinced of the appellant’s guilt beyond a reasonable doubt. United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting this unique appellate
function, 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. Proof beyond a “[r]easonable doubt, however, does not mean the evidence
must be free from conflict.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006).

1. Failure to obey lawful order
In Specification 1 of Charge I, Appellant was convicted of failure to obey a
lawful order by mustering in civilian clothes while on pretrial restriction in
violation of his restriction orders requiring him to be in uniform. In order to
prove this offense, the Government was required to prove beyond a reasona-

18 This conclusion moots Appellant’s fifth AOE, asserting the evidence is factually
insufficient to support his conviction of this specification.

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ble doubt that (1) a member of the armed forces issued a certain lawful order;
(2) Appellant had knowledge of the order; (3) Appellant had a duty to obey
the order; and (4) Appellant failed to obey the order. Manual for Courts-
Martial, United States (2016 ed.) [MCM] , pt. IV, ¶ 16.b.(2).
Appellant asserts the proof was lacking for the second element, that he
had actual knowledge of the order requiring him to be in uniform while
mustering. “While knowledge of the order may be proved by circumstantial
evidence, the knowledge required must be actual and not constructive.”
United States v. Pettigrew, 41 C.M.R. 191, 195 (C.M.A. 1970); MCM, pt. IV,
¶ 16.c.(2).(b). “Knowledge is ‘actual’ when it is conveyed directly to the
accused.” United States v. Keith, 13 C.M.R. 135, 138 (C.M.A. 1953).
On 27 December 2017, Appellant was issued a two-page set of restriction
orders by his commanding officer that required him to muster at certain
times during the week and on weekends, placed other restrictions on his
liberty, and mandated that the “[u]niform of the day will be worn at all times
except for sleeping or when directed otherwise.” 19 Appellant’s first sergeant
briefed him about his being placed on pretrial restriction, but did not
specifically go over with Appellant the terms of the orders he received.
However, Appellant signed a receiving endorsement on page two of the orders
acknowledging that he understood and would comply with them.
Appellant began mustering for restriction on 17 January 2018 after the
holiday period. His musters were recorded on a two-page check-in sheet that
reflects his musters from that day forward, including his Saturday/Sunday
musters over two successive weekends. Beginning on page two of the check-in
sheet, the muster times listed are inconsistent with the restriction orders.
This discrepancy was apparently not noticed until the third Saturday of
Appellant’s restriction period, 3 February 2018, when Appellant mustered
wearing civilian clothes and the command duty officer [CDO] asked
Appellant why he was not on time and in uniform. When Appellant expressed
confusion, a discussion ensued with Appellant’s first sergeant about the
inconsistencies between the muster times on the check-in sheet versus the
restriction orders. Thereafter, the muster times on the check-in sheet were
modified to be consistent with the restriction orders. The CDO clarified these
times with Appellant and reiterated the requirement that he be in uniform.

19 Pros. Ex. 6 at 1.

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Appellant argues that because he appeared (justifiably) confused about
the check-in time, there is reasonable doubt as to whether he was also
confused about the uniform requirement. That claim is not supported by the
evidence before us. The reason for the confusion regarding the check-in time
was due to a specific inconsistency in the paperwork he was given. There was
no lack of clarity in the restriction orders as to the uniform requirement, nor
evidence Appellant himself was unclear about that requirement. While the
evidence does not reflect that anyone went over each term of the restriction
orders with Appellant, his signature appears on page two of the orders
indicating that he understood and would comply with them. We find this
evidence proof beyond a reasonable doubt that the orders were directly
conveyed to Appellant, such that he had actual knowledge of them. We
therefore find the evidence factually sufficient to support his conviction.

2. Wrongful discharge of a firearm
For Specification 4 of Charge II, Appellant was convicted of willfully
discharging a firearm under such circumstances as to endanger human life,
in violation of Article 134, UCMJ. In order to prove this offense, the
Government was required to prove beyond a reasonable doubt that (1) the
accused discharged a firearm; (2) the discharge was willful and wrongful;
(3) the discharge was under such circumstances as to endanger human life;
and (4) under the circumstances, the conduct of the accused was to the
prejudice of good order and discipline in the armed forces or was of a nature
to bring discredit upon the armed forces. MCM, pt. IV, ¶ 81.b.
Appellant asserts the proof is lacking on the third element, that Appel-
lant’s actions were “under such circumstances as to endanger human life.”
We agree. As the military judge correctly instructed, this element requires “a
reasonable possibility of harm to human beings. Proof that human life was
actually endangered is not required.” 20 However, the evidence must
demonstrate at least “a reasonable potentiality for harm to human beings in
general.” United States v. Potter, 35 C.M.R. 243, 245 (C.M.A. 1965); MCM, pt.
IV, ¶ 81.c.
Appellant fired a pistol three times toward the sky out of the driver’s side
window while he was driving at night on a backroad on the outskirts of a
town in rural Mississippi. The backroad he was traveling on ran parallel to a
highway approximately 500 yards away on the other side of some woods.

20 R. at 956-57.

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There were some houses off the road to the passenger’s side, but no apart-
ment complexes, bicyclists, or pedestrians nearby. Based on the headlights
reflected in the rearview mirror in the video, another car appears to have
been traveling in the same direction as Appellant at some distance behind
him. At the time, Appellant’s girlfriend, Ms. Foster, was sitting next to him in
the passenger seat videotaping as he fired the pistol into the air. Ms. Foster
did not post the video on social media or disseminate it broadly, but sent
Appellant a copy of it at his request. She testified she did not feel endangered
by his actions, nor, based on their surroundings, did she feel they put anyone
else in danger.
We do not find this evidence sufficient to prove beyond a reasonable doubt
that Appellant’s conduct caused a reasonable potentiality for harm to human
beings. As our sister court found in another case of an appellant firing a
handgun toward the sky (in that case, in a residential area), “the idea that a
bullet shot into the air presents a safety threat to human life is not so self-
evident that the Government did not need to introduce any evidence on this
point.” United States v. Burns, No. ACM S32084, 2013 CCA LEXIS 1050, *9
(A. F. Ct. Crim. App. Dec. 18, 2013) (unpublished), aff’d, 73 M.J. 407
(C.A.A.F. 2014). Absent further evidence in this regard, we find persuasive
the discussion and holding in Burns 21 that the evidence presented in this case
supports only a conviction for the lesser-included offense of negligent
discharge of a firearm, in violation of Article 134, UCMJ, which requires the
Government to prove that (1) the accused discharged a firearm; (2) the
discharge was caused by the negligence of the accused; and (3) under the
circumstances, the conduct of the accused was of a nature to bring discredit
upon the armed forces. MCM, ¶ 80.b. Specifically, with respect to the second
element, although Appellant intentionally fired the weapon, we find that his
actions were nevertheless negligent in that they “exhibit[ed] a lack of that
degree of care of the safety of others which a reasonably careful person would
have exercised under the same or similar circumstances.” MCM, pt. IV,
¶ 85.c.(2). Given the surrounding circumstances in this case, including the
fact that a car was following Appellant’s when he discharged the firearm, we

21 The court in Burns found that after reviewing over 60 cases involving convic-
tions for similar offenses under the UCMJ, “[n]early every case contained facts far
more egregious than the appellant’s behavior, involving either horizontal shooting
toward occupied areas or indiscriminate shooting indoors.” United States v. Burns,
No. ACM S32084, 2013 CCA LEXIS 1050, *9, *13 (A.F. Ct. Crim. App. Dec. 18, 2013)
(unpublished), aff’d, 73 M.J. 407 (C.A.A.F. 2014).

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find the evidence supports beyond a reasonable doubt that his conduct was
both negligent and service-discrediting. We therefore set aside his conviction
for the greater offense and affirm a conviction for this lesser-included offense.

D. Sentence Reassessment
Having set aside some of Appellant’s convictions, we must determine
whether we can reassess the sentence at the appellate level or whether we
must remand for the trial court to do so. We do so by determining:
(1) whether there have been dramatic changes in the penalty landscape or
exposure; (2) whether sentencing was by members or a military judge alone;
(3) whether the nature of the remaining offenses captures the gravamen of
the criminal conduct included within the original offenses and whether
significant or aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses; and (4) whether
the remaining offenses are of the type with which appellate judges should
have the experience and familiarity to reliably determine what sentence
would have been imposed at trial. United States v. Winckelmann, 73 M.J. 11,
15-16 (C.A.A.F. 2013).
Here, we determine that we can reassess the sentence. As the maximum
sentence remains capped by the jurisdictional maximum of a special court-
martial, there has been no dramatic change in the penalty landscape or
exposure. While Appellant was sentenced by members, the nature of the
remaining offenses captures the gravamen of his criminal conduct and does
not significantly alter the circumstances of the offenses relevant to sentenc-
ing. Finally, the remaining offenses are of the type with which appellate
judges have experience to reliably determine what sentence would have been
imposed at trial. Under these circumstances, we are confident that the
sentence the members would have imposed for the remaining offenses would
be the same as the one they originally adjudicated.

III. CONCLUSION

Accordingly, Appellant’s convictions for Specification 2 of Charge VI and
the greater offense of willful discharge of a firearm under such circumstances
as to endanger human life under Specification 4 of Charge II are SET
ASIDE. His conviction of the lesser-included offense of negligent discharge of
a firearm under Specification 4 of Charge II, along with the remaining
findings and the sentence, are AFFIRMED.
Judges STEWART and HOUTZ concur.

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Opinion of the Court

FOR THE COURT:

RODGER A. DREW, JR.
Clerk of Court

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