United States v. Bostic

20 M.J. 562, 1985 CMR LEXIS 3761

Opinion

OPINION OF THE COURT

NAUGHTON, Judge:

Consistent with his pleas, appellant was convicted by a military judge sitting as a general court-martial of the distribution of cocaine,¹ the use of marijuana on 9 July 1984, and the use of cocaine on 9 July 1984, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982).

Appellant contends that the two specifications alleging the use of marijuana and cocaine on 9 July 1984 are multiplicious for findings purposes and should be consolidated into one specification. We disagree.

In a case such as this, it is necessary to go beyond the language of the specifications and analyze the evidence adduced at trial to determine whether the offenses are actually multiplicious for findings purposes. United States v. Fair, 17 M.J. 1036, 1038 (A.C.M.R.1984), pet. denied, 19 M.J. 33 (C.M.A.1984).

The facts show that on 9 July 1984, appellant, along with two acquaintances, entered a billets room and “snorted” some cocaine. Shortly thereafter, they smoked a marijuana cigarette. The use of each substance was a separate and discrete act. Thus, the two specifications alleging use are separate for findings purposes. Cf. id., at 1038.

Senior Judge WOLD and Judge FELDER concur.

Only so much of the finding of guilty of Specification 1 of the Charge, as relates to quantity, as finds appellant wrongfully distributed 2.583 grams of cocaine, is affirmed. The remaining findings of guilty and the sentence are affirmed.

1 . The evidence of record reflects that appellant wrongfully distributed 2.583 grams of cocaine and not the 3.2 grams he was found guilty of distributing.