United States v. McPherson

72 M.J. 862, 2013 WL 6571676, 2013 CCA LEXIS 1024
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 19, 2013
DocketACM S32068
StatusPublished
Cited by13 cases

This text of 72 M.J. 862 (United States v. McPherson) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McPherson, 72 M.J. 862, 2013 WL 6571676, 2013 CCA LEXIS 1024 (afcca 2013).

Opinion

OPINION OF THE COURT

MITCHELL, Judge:

A special court-martial comprised of a military judge siting alone convicted the appellant, pursuant to his pleas, of being absent without leave and divers distribution of anabolic steroids in violation of Articles 86 and 112a, UCMJ, 10 U.S.C. §§ 886, 912a. He was also convicted, contrary to his pleas, of fraudulent enlistment for the deliberate concealment of his prior possession of anabolic steroids; unauthorized absence; making a false official statement; possession of a controlled substance; and the use of anabolic steroids, in violation of Articles 83, 86, 107, and 112a, UCMJ, 10 U.S.C. §§ 883, 886, 907, 912a. The court-martial sentenced him to a bad-conduct discharge, confinement for 8 months, reduction to E-l, and a reprimand. The convening authority approved the adjudged sentence.

On appeal, the appellant avers three issues: (1) His conviction for fraudulent enlistment is factually insufficient; (2) His trial defense counsel were ineffective in that they did not advise him of his rights under Articles 12 and 138, UCMJ, 10 U.S.C. §§ 812, 938; and (3) He suffered cruel and unusual punishment when he was not provided prescribed medication during post-trial confinement.1 We disagree on all the issues and affirm the findings and approved sentence.

[867]*867 Background

The appellant was a Senior Airman (SrA) with over four years of service and two deployments to Iraq by the time of trial. The appellant was held past the expiration of his four-year term of service pending the court-martial proceedings.

In June 2010, the appellant was dating SrA SK. At trial, SrA SK testified that she noticed a blue box under the appellant’s bed. The appellant explained it contained steroids, which he distributed, but did not use. In February 2011, the appellant deployed and left SrA SK in charge of his storage unit, vehicle, and household possessions. In April 2011, while the appellant was deployed, he and SrA SK ended their relationship. Shortly thereafter, SrA SK told Special Agent (SA) DK of the Air Force Office of Special Investigations (AFOSI) that the appellant was distributing steroids and gave him permission to seize the blue box from the appellant’s storage unit. The contents were tested and disclosed the blue box contained foil packets of Glucotika, hypodermic needles, and vials of Proviron.2 Proviron is a commercial name for the anabolic steroid mester-olone, and testing confirmed the presence of the Schedule III substance.

During an AFOSI interview, the appellant admitted the blue box was part of his belongings that he brought with him from California when he entered the military. He admitted using steroids before entering the Air Force, but claimed he had not used them since he was on active duty. When asked specifically about the Proviron, the appellant stated he was unsure if they were steroids and instead described them as “something to enhance your body while taking steroids.” The appellant also described that when he lived in California, he stored steroids for a friend, and that the Proviron may have belonged to his friend.

The appellant also informed SA DK that he had steroids at his home. He and the agent went to his home where the appellant produced a cardboard box from his closet that contained steroids and syringes. The steroids were the remainder of a second distribution he had made to a fellow Airman. The appellant was ordered, pursuant to a search authorization, to provide a urine sample, which tested positive for the presence of the metabolites of Stanozolol, a Schedule III controlled substance.

After the investigation began, the appellant was brought back from his terminal leave. He became frustrated and decided to work on repairing his rental home in order to recover his deposit rather than going to work. The appellant was absent from duty for three days without leave before he returned. Additionally, on another occasion the appellant showed up for work when he was too intoxicated to perform his duty.

Additional facts relevant to each section are addressed below.

Factual and Legal Sufficiency

The appellant avers that although he confessed to possessing anabolic steroids prior to enlistment in the Air Force, the evidence used to corroborate his confession did not exist until 2011, after his enlistment. Therefore, his confession was a factual impossibility.

We review issues of factual and legal sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.2002).

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 [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 role, we take “a fresh, impartial look at the [868]*868evidence,” 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.

“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.’ ” Turner, 25 M.J. at 324. “[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. Barrier, 56 M.J. 131, 134 (C.A.A.F.2001) (citing United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F.2000)).

On 17 October 2007, the appellant completed the Air Force Alcohol and Drug Abuse Certificate, Air Force Form (AF Form) 2030. On that form, the appellant indicated that he had never “experimented with, used, or possessed any illegal drug or narcotic.” An illegal drug, as defined on the form, included anabolic steroids. The appellant enlisted in the Air Force on 19 October 2007 in Sacramento, California.

During an interview with AFOSI, the appellant completed an AF Form 1168 in which he described his involvement with steroids prior to joining the Air Force. The appellant admitted the “supplements” in the blue box from his storage unit were his and that he brought them with him when he came to Idaho from California in 2008. He also discussed his current possession of other steroids and explained, “I planned on taking them again when I could devote myself to the gym like I did when I took them in California.”

At trial, the Government’s forensic chemist testified that a marking on the bottles of steroids found in the blue box was likely indicative of a manufacturing date of February 2011, and therefore it was possible that the steroids did not exist prior to 2011.

Mil. R. Evid. 304(g) provides that an admission by the appellant may only be considered as evidence against him if independent evidence has been introduced that corroborates the essential facts.

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Cite This Page — Counsel Stack

Bluebook (online)
72 M.J. 862, 2013 WL 6571676, 2013 CCA LEXIS 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcpherson-afcca-2013.