UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

LIND, KRAUSS, and BORGERDING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant DEREK R. TOPE 

United States Army, Appellant 

ARMY 20130103 

Headquarters, 25th Infantry Division 

David Conn, Military Judge (arraignment) 

Stefan Wolfe, Military Judge (trial) 

Colonel Mark A. Bridges, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., 

JA; Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief). 

16 June 2014 

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SUMMARY DISPOSITION 

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BORGERDING, Judge: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of two specifications of false official statement; one 

specification of wrongful disposition of military property; one specification of 

wrongful introduction of heroin into an installation; one specification of wrongful 

possession of heroin; one specification of wrongful use of heroin; and one 

specification of larceny of military property in violation of Articles 107, 108, 112a, 

and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 908, 912a, 921 (2012) 

[hereinafter UCMJ]. The military judge sentenced appellant to confinement for 

thirty-three months. Pursuant to a pretrial agreement, the convening authority 

approved only so much of the adjudged sentence as provided for confinement for 

twenty-four months. 

 
TOPE — ARMY 20130103 

2

This case is before the court for review under Article 66, UCMJ. Appellant 

assigns two errors, both relating to his convictions for wrongful use, possession, and 

introduction of heroin. He also raises matters pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982), which we find are without merit. 

 

Appellant first asserts that his convictions for introduction, possession, and 

use of a controlled substance are an unreasonable multiplication of charges for 

findings. See United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001).1 The 

government disagrees that the specifications constitute an unreasonable 

multiplication of charges, but concedes the specification alleging wrongful 

possession of heroin (Specification 2 of Charge II) is a lesser-included offense of, 

and therefore impermissibly multiplicious with, the specification alleging wrongful 

introduction of heroin (Specification 1 of Charge II). The government asks us to set 

aside and dismiss Specification 2 of Charge II. 

“[A]ppellate consideration of multiplicity claims is effectively waived by 

unconditional guilty pleas, except where the record shows that the challenged 

offenses are ‘facially duplicative.’” United States v. St. John, 72 M.J. 685, 687 

(Army Ct. Crim. App. 2013) (quoting United States v. Lloyd, 46 M.J. 19, 23 

(C.A.A.F. 1997));2

 see also United States v. Heryford, 52 M.J. 265, 266 (C.A.A.F. 

2000). “Facially duplicative means the factual components of the charged offenses 

are the same.” St. John, 72 M.J. at 687 (citing Lloyd, 46 M.J. at 23). “Whether 

specifications are facially duplicative is determined by reviewing the language of the 

specifications and ‘facts apparent on the face of the record.’” Heryford, 52 M.J.at 

266 (quoting Lloyd, 46 M.J. at 24). 

In all three specifications alleged as violations of Article 112(a), UCMJ, 

appellant is charged with the use, possession, or introduction of heroin “on divers 

occasions between on or about 12 April 2012 and 30 May 2012.” The specifications 

alleging possession and introduction both charge appellant with possessing or 

introducing “some amount” of heroin. We find the record reflects the amount of 

heroin appellant used and introduced is precisely the same amount he possessed. 

The stipulation of fact states appellant “would purchase heroin off the installation, 

Schofield Barracks, Hawaii . . . and then bring the drugs backs on post to wrongfully 

use. Specifically, he would transport the drugs onto the installation in his personally 

 

1

 The military judge considered the three specifications “as one offense for 

sentencing purposes.” 

2

 “We interpret this to mean that an unconditional guilty plea, without an affirmative 

waiver, results in a forfeiture of multiplicity issues absent plain error. An appellant 

may show plain error and overcome forfeiture by proving the specifications are 

facially duplicative.” St. John, 72 M.J. at 687 n.1 (citing United States v. Harcrow, 

66 M.J. 154, 156 n.1 (C.A.A.F. 2008)). 
TOPE — ARMY 20130103 

3

owned vehicle and use them in Mr. [D’s] barracks room.” Neither the stipulation of 

fact nor appellant’s admissions during the providence inquiry establish any facts that 

appellant possessed a different amount of heroin than what he used or introduced 

into Schofield Barracks. Accordingly, under the facts of this case, we agree with the 

government and further find that Specification 2 of Charge II (wrongful possession) 

is “facially duplicative” with both Specification 1 of Charge II (wrongful 

introduction) and with the Specification of the Additional Charge (wrongful use). 

See United States v. Bullington, 18 M.J. 164 (C.M.A. 1984) (per curiam) (holding 

use and possession of a controlled substance was multiplicious where appellant used 

the same amount at the same place and on the same date); United States v. 

Hendrickson, 16 M.J. 62 (C.M.A. 1983) (per curiam) (holding possession and 

introduction of a controlled substance was multiplicious where appellant possessed 

and introduced the same amount at the same place and on the same date); United 

States v. Thomas, 65 M.J. 132, 135 (C.A.A.F. 2007) (“[W]rongful possession of 

drugs is itself a lesser included offense of wrongful introduction under Article 112a, 

UCMJ.”)). We will grant relief in our decretal paragraph. 

In his second assignment of error, appellant asserts, inter alia,

3

 that the 

military judge failed to define “divers occasions” when reading the elements for 

wrongful introduction of heroin and then failed to discuss with appellant the factual 

basis for the “on divers occasions” language with respect to this specification. 

Appellant is correct on both counts. 

We review a military judge’s decision to accept a guilty plea for an abuse of 

discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty 

plea will only be set aside if we find a substantial basis in law or fact to question the 

plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The 

court applies this “substantial basis” test by determining whether the record raises a 

substantial question about the factual basis of appellant’s guilty plea or the law 

underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial 

[hereinafter R.C.M.] 910(e). “For this [c]ourt to find a plea of guilty to be knowing 

and voluntary, the record of trial must reflect that the elements of each offense 

charged have been explained to the accused by the military judge.” United States v. 

Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (quoting United States v. Redlinski, 

58 M.J. 117, 119 (C.A.A.F. 2003) (internal quotations omitted); see also United 

States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969); UCMJ art. 

45(a); R.C.M. 910(c)(1). “‘Rather than focusing on a technical listing of the 

 

3

 Appellant’s claim that the military judge did not discuss with appellant whether or 

not he knew the substance he possessed was, in fact, heroin is rendered moot by our 

ruling on his first assignment of error. We nonetheless note that appellant admitted 

that he knew the substance he used and introduced into post was heroin because he 

“recognized it to be heroin” and because he felt the effects of the drug after using it, 

indicating to him that it was heroin. 
TOPE — ARMY 20130103 

4

elements of an offense, this [c]ourt looks at the context of the entire record to 

determine whether an accused is aware of the elements, either explicitly or 

inferentially.’” Schell, 72 M.J. at 345 (quoting Redlinski, 58 M.J. at 119). “If the 

military judge fails to explain the elements to an accused, it is reversible error 

unless ‘it is clear from the entire record that the accused knew the elements, 

admitted them freely, and pleaded guilty because he was guilty.’” Schell, 72 M.J. at 

345 (quoting United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992)).

In this case, the military judge read the definition of “divers occasions” with 

respect to the specification alleging wrongful possession of heroin. The language in 

the stipulation of fact supports multiple instances of use, possession, and 

introduction. Moreover, during the colloquy as to the wrongful possession 

specification, appellant stated, “I had a controlled substance at least twice, sir.” 

Appellant confirmed that these were “two different instances separated in time.” 

Appellant also admitted that he “used heroin twice.” In accordance with our finding 

that the amount of heroin appellant possessed is the exact same amount of heroin 

that appellant introduced on to Schofield Barracks and then used, we find that 

appellant understood the meaning and effect of pleading guilty to using heroin and 

introducing it onto Schofield Barracks on “divers occasions” and find no substantial 

basis in fact or law to question his plea to Specification 1 of Charge II (wrongful 

introduction on divers occasions). 

Therefore, after considering the entire record and the parties’ briefs, we set 

aside and dismiss the finding of guilty of Specification 2 of Charge II (wrongful 

possession). The remaining findings of guilty are AFFIRMED. Reassessing the 

sentence on the basis of the error noted, the entire record, and applying the 

principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and the factors set 

forth in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), the 

sentence is AFFIRMED. All rights, privileges, and property, of which appellant has 

been deprived by virtue of that portion of the findings set aside by this decision, are 

ordered restored. 

 Senior Judge LIND and Judge KRAUSS concur. 

 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: