United States v. Nicholson , 1998 CAAF LEXIS 1782 ( 1998 )

Opinion of the Court

COX, Chief Judge:

Appellant was tried by a military judge sitting alone as a special court-martial convened at Pensacola, Florida, on November 6 and 12-13, 1992.¹ Among other charges,² appellant was convicted, contrary to his pleas, of wrongful possession of a controlled substance (marijuana), in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. For all charges of which he was convicted, appellant was sentenced to a bad-conduct discharge, confinement and forfeiture of $523.00 pay per month for 4 months, and reduction to pay grade E-l.

We granted review of the following issue:

WHETHER THE EVIDENCE AT TRIAL WAS LEGALLY SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WRONGFULLY POSSESSED MARIJUANA AS ALLEGED IN CHARGE VII.

Facts

Appellant and Seaman Apprentice Tompkins were stationed aboard the USS GALLERY (FFG 26). On the day in question, Tompkins overheard appellant talking with another sailor about some “partying.” Diming that discussion, Tompkins also saw appellant return a plastic bag containing a “brown ... [l]eafy substance” to his pocket.

The evidence supporting the charge of wrongful possession consisted solely of Tompkins’s testimony elicited during trial counsel’s direct examination. A portion of this exchange follows:

Q: Do you have any knowledge of the accused possessing marijuana?

A: I’m not for sure if that’s what it was.

Q: Could you tell the court what you did see?

A: I saw, I walked up behind him [appellant] and I’m not sure if he actually seen [sic] me, but it was a bag with, I’m not for sure what it was in it.

Q: Please tell the court exactly what you saw?

A: I seen [sic] a bag with something in it, brown, brownish color maybe.

Q: How did you see it, where was it; was it in his hand?

A: In his hand, I walked up and he put it back in his pocket. I really didn’t get a good look at it.

Q: Was it a solid substance, a liquid substance, was it a leafy substance?

A: Leafy substance.

Q: What did you think that substance was?

A: I believe it might have been marijuana.

Tompkins then testified that, during the same conversation, he also overheard appellant mention a female civilian who used marijuana in Pascagoula, At that point during the direct examination, the following exchange occurred between the military judge and Tompkins:

MJ: And so that’s what you’ve been saying. Put two and two in your mind you speculated that what you saw in the bag since you heard a conversation about partying and marijuana was marijuana, is that what you are trying to say?

WITNESS: Yes, sir.

Analysis

The standard of review for legal sufficiency of the evidence is, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Byers, 40 MJ 321, 323 (CMA 1994), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We hold that insufficient evidence supported appellant’s supposed possession of marijuana. The substance allegedly in appellant’s possession was never recovered and thus never tested. Tompkins did not testify that he smelled the substance. His testimony was mere speculation, as indicated by the military judge’s characterization and Tompkins’s own confirmation; Tompkins testified that he saw appellant in possession of a plastic bag containing a brown leafy substance that he thought “might have been marijuana.”³

Other United States Courts of Appeals have considered what evidence is necessary to establish the identity of a controlled substance by a non-expert witness. The consensus of several circuits is not only that the identity of an illicit substance can be established by circumstantial evidence, but also that the burden is on the Government to prove that identity beyond a reasonable doubt. None of the circuits have held that merely a brief viewing of the substance constituted this level of proof.

The defendant in United States v. Wright, 16 F.3d 1429 (6th Cir.1994), had been convicted of conspiracy to distribute cocaine base and possession of cocaine base with intent to distribute. He attacked the conviction based on an argument that the evidence was legally insufficient. The Government had not recovered the substance in question, and thus it was never chemically tested. Circumstantial evidence, however, was presented, and the court concluded that this evidence, combined with the viewing, was legally sufficient to convict. Quoting United States v. Scott, 725 F.2d 43, 45-46 (4th Cir. 1984), the court in Wright observed that circumstantial evidence which could support identification beyond a reasonable doubt included “the physical appearance of the substance”; evidence that the substance had the expected drug effect; “evidence that the substance was used in the same manner as the illicit drug” in question; evidence that transactions involving the substance were for high prices, paid in cash, and covert; “and evidence that the substance was called by the name of the illegal narcotic” by those in its presence. 16 F.3d at 1439. The court in Wright noted that many of these factors were present or satisfied, so the conviction was upheld despite the lack of direct physical evidence. In the instant case, however, there was only one witness’s speculation as to the identification of the substance, and his testimony was based solely on a brief glimpse of the matter in question. We choose to apply the principles of Wright; thus a mere viewing simply isn’t enough.

In United States v. Dominguez, 992 F.2d 678, 681 (7th Cir.1993), the court considered similar elements of circumstantial evidence discussed in United States v. Manganellis, 864 F.2d 528 (7th Cir.1988), which could establish the identity of a substance. These elements included high sales prices; “covert” behavior; remarks by participants which named the substance during a sale; and “lay-experience” of witnesses gained “through prior use, trading, or law enforcement.” See 864 F.2d at 541. While upholding the conspiracy conviction for other reasons, the court in Dominguez concluded that the substance in question was not sufficiently identified because the only direct evidence supporting the identification was “inadmissible hearsay,” and the only circumstantial evidence was details of a purchase which could have just as easily supported “a sham” as an authentic drug sale. 992 F.2d at 682, 683 n. 1. Applying Dominguez to the instant case, we conclude that none of its criteria were fulfilled; thus the evidence was legally insufficient.

In sum, we hold that mere speculation as to the identity of a substance by one non-expert witness — and nothing more — does not rise to the level of legally sufficient evidence for conviction. No reasonable trier of fact viewing this evidence, even in the light most favorable to the prosecution, could have found the essential elements of wrongful possession beyond a reasonable doubt.

We conclude, however, that due to the numerous other offenses of which appellant was convicted, there was no prejudice as to sentence from his erroneous conviction of this offense.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge VII and its specification. The finding of guilty thereon are set aside, and that charge is dismissed. In all other respects, the decision below is affirmed.

Judges GIERKE and EFFRON concur.

1 . Although appellant was tried in 1992, the Court of Criminal Appeals acted on appellant’s case on July 24, 1997. Appellant subsequently petitioned this Court for review, which we granted on January 22, 1998.

2 . Appellant was convicted, following mixed pleas, on each of the following charges: conspiracy to break restriction, unauthorized absence (2 specifications), disrespect toward a superior commissioned officer (2 specifications), failure to obey a lawful order, wrongful appropriation, assault (2 specifications), disorderly conduct, communicating a threat, breaking restriction, and attempting to break restriction, in violation of Articles 80, 86, 89, 92, 121, 134, and 81, UCMJ, 10 USC §§ 880, 886, 889, 892, 921, 928, 934, and 881, respectively.

3 . Not all products that are derived from the plant "Cannabis sativa L.” are classified as prohibited controlled substances. "The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination." 21 USC § 802(16) (1984) [emphasis added].