UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman S IERRA L. BLAIR

United States Air Force

ACM S 3 2328

25 October 201 6

Sentence adjudged 21 May 2015 by SP CM convened at Tinker Air
Force Base, Oklahoma . Military Judge: Mark W. Milam

.

Approved Sentence: Bad

- conduct discharge, c onfinement for 30 days

, and reduction to E

- 1

.

Appellate Counsel for Appellant: Major Isaac C. Kennen

.

Appellate Counsel for the United States: Lieutenant Colonel Roberto

Ramirez and Gerald R. Bruce, Esquire.

Before

DUBRISKE

, C. BROWN

, and BENNETT Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4

.

BENNETT

, Judge:

At a special court

- martial c omposed of a military judge sitting alone

, Appellant was found guilty

, consistent with her pleas, of one specification of wrongful use of marijuana ; f our specifications of wrongful possession and one specification of wrongful use of a Schedule II controlled substance (hydrocodone) ; one specification of failure to go at the prescribed time to her appointed place of duty ; one specification of dereliction of duty ; and2 ACM S32328

one s pecification of making a false official statement

. 1 The military judge sentenced her

to a bad conduct discharge

, confinement for 30 days , and reduction to A irman Basic (E

- 1)

. The convening authority approved the sentence as adjudged

.

A ppellant now question s the providency of h er plea to wrongful possession and use of hydrocodone

, and argues that her sentence was inappropriately severe. Finding no error that materially prejudices a substantial right of Appellant, we affirm the findings and

sentence.

Background

Appellant was initially assigned to Travis Air Force Base ( AFB ) , C alifornia , but received an expedited transfer to Tinker AFB, O klahoma

, to be closer to her family

.

While at Tinker AFB, Appellant, a Medical Technician, willfully failed to re

- stock

examinat ion rooms as it was her duty to do. She then made a false official statement , telling her supervisor that she had re

- stocked the exa mination rooms. On one occasion, she overslept and failed to get to her prescribed place of duty on time. Appellant wrongfully used marijuana on five separate occasions over a span of nine months. Four of these uses involved smoking marijuana with her b oyfriend; the fifth use involved ingesting a marijuana laced gummy bear given to her by her father. Appellant also wrongfully used and possessed appro ximately 95 hydrocodone pills.

Additional facts necessary to resolve the assigned errors are included below.

Providence of Appellant’s Plea

Appellant makes two arguments to support her proposition that her guilty pleas to wrongful possession and use of hydrocodone were improvident. First, she argues that she should be relieved of criminal responsibility for her possession and use of hydrocodone because she had prescriptions for the medication. She makes this argument notwithstanding the fact that she obtained these prescriptions through subterfuge and used the medication for something other than its pre scribed purpose.

We review a military judge ’ s acceptance of a guilty plea for an abuse of discretion and questions of law arising from the plea de novo. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008). We afford significant deference to the military judge ’ s determination that a factual basis exists to support the plea. Id . (citing United States v.

Jordan , 57 M.J. 236, 238 (C.A.A.F. 2002)); see also United States v. Barton , 60 M.J. 62 (C.A.A.F. 2004).

1 Article s 112a, 92, and 107, UCMJ ; 10 U.S.C. § § 912a

, 892

, and 907

.3 ACM S32328

The elements of wrongful possession of a controlled substance are: (1) “[t]hat the accused possessed a certain amount of a controlled substance ”; and (2) “[t]hat the possession by the accused was wrongful.” Manual for Courts

- Martial, United States ( MCM ) , Part IV, ¶ 37 .b.(1) (201 2 ed.). The elements of wrongful use of a controlled substance are the same except that the operative verb and noun

— “possessed” and “possession”

— are instead “used” and “use.” Id . at b.(2). “‘Possess’ means to exercise control of something.” Id . at c.(2). “‘U se’ means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance.” Id . at b.(10). To be convicted of either possession or use, the accused must be found to have knowingly possessed or used

the controlled substance

. Id . at c.(2) and (10) . Also, the posse ssion or use must have been “wrongful, ” meaning “without legal justification or authorization.” Id . at c.(5).

It is clear Appellant knowingly possessed and used approximately 95 hydrocodone pills during the charged t imeframe , doing so after receiving prescriptions for the

medication. The question is whether there was a sufficient legal and factual basis to

conclude that Appellant’s possession and use w ere wrongful. For the following reasons,

we f ind that there was a sufficient basis for accepting her guilty pleas to these offenses

.

Dr. LC, Appellant’s primary care manager at Tinker A F B, initially prescribed hydrocodone for Appellant’s legitimate medical problems. The validity of this prescription for hyd rocodone was never in dispute

. In order to receive her initial prescription from Dr. LC, Appellant had to enter into a pain management agreement. Under the terms of th e agreement, she was only to receive hydrocodone from Dr. LC and she was to inform Dr.

LC if she receive d hydrocodone from any other care provider , including those off

- base.

After entering into the pain management agreement and getting her initial valid prescription filled, Appellant began to seek medical care and hydrocodone prescriptions at
different health

- care facilities . Wh en obtaining the se additional prescriptions, Appellant intentionally fail ed to inf orm each attending physician that she already possessed multiple prescriptions for hydrocodone . Appella nt then had these prescriptions filled at different pharmacies.

During her providence inquiry, Appellant admitted that she had become addicted to hydrocodone and started to abuse it. 2 She developed a tolerance to the drug and used it more frequently than she was supposed to. This overuse caused her to run out of the medication more quickly, which is why she sought so many additional prescriptions from multiple physicians.

Appellan t received a total of four prescriptions and approximately 95 hydrocodone pills by intentionally misleading her physicians into thinking that she did not already have

2 At trial, the parties stipulated that h ydrocodone induces feelings of euphoria, sedation and alters the perception of painful stimuli. It can cause drowsiness, dizziness, nausea, and depressed respiration among other side effects.4 ACM S32328

an active prescription for the drug. Appellant admitted she did not tell the prescribing physicians that she had existing active prescriptions because she knew they would not have given her a new prescription for hydrocodone knowing that she already had an active one. Appellant admitted she did not have authorization to possess or use these hydrocodone pills , and s he pleaded guilty, not only because she hoped to get a lighter sentence, but because she was convinced that she was, in fact, guilty.

Appellant seems to aver th e existence of a “prescription defense”

— that is

, a complete defense to possession and use of hydrocodone because her prescriptions were facially valid, irrespective of her scienter in obtaining the prescriptions . In fact, Appellant

claim s that our superior court, in United States v. West , 34 C.M.R. 449 (C.M.A. 1964)

, “flatly rejected the idea that there is a scienter exception to the prescription defense.” We disagree. With regard to scienter, our superior court opined :

One who possesses a drug pursuant to a valid prescription, or who obtains a narcotic in the performance of duty, is of course relieved of criminal responsibility, regardless of the existence of knowledge of any sort. But if possession is to be deemed

innocent when the result of accident or mistake

— as the Manual undeniably says it is

— then an issue of knowledge most certainly enters the picture. . . . [T]he foregoing reasoning leads inevitably to the conclusion that the element of scienter

is not eliminated from the crime of wrongful possession of a

n arcotic drug

. . . .

West , 34 C.M.R. at 452 (quoting United States v. Greenwood , 6 C.M.A. 209 (C.M.A. 1955) (emphasis added). I t is clear that our superi or court did not reject

s cienter as an element o f wrongful possession of a controlled substance , and the same reasoning equally applies to wrongful use of a controlled substance

. W hen one knowingly misleads a physician into prescribing a contr olled substance, that

person is aware that the ir prescription is null and void. A person is not relieved of

crim inal responsibility if they possess or use a controlled substance pursuant to a prescription when they know that prescription is invalid

.

In Appellant’s case, her guilty plea is supported not only by the fact that she intentionally misled her physicians to get prescription s for hydrocodone, but also

because she admitted that she did not use the hydrocodone for its prescribe d

purpose.

It is well settled law that a valid doctor's prescription provides

the authorization or legal justification to possess or use a

controlled substance. See United States v. West , 15 C.M.A. 3, 34 C.M.R. 449, 452 (C.M.A. 1964); United States v.5 ACM S32328 Greenwood , 6 C.M.A. 209, 19 C.M.R. 335 (C.M.A. 1955);

United States v. Bell , ACM 30813 (A.F. Ct. Cr im. App. 14

Dec ember 1994). However, a doctor can only prescribe such medication as is required to treat valid medical conditions. In fact, militar y law has long held controlled substances prescribed by a doctor for invalid purposes will not provide the user or possessor with legal authorization, and those service members are subject to criminal liability . See United States v.

Moore , 24 C.M.R. 647, 650 (A.F.B.R. 1957); United States v.

Commander , 39 M.J. 972, 978

- 79 (A.F.C.M.R. 1994).

. . . .

Once an individual uses the controlled substance for some purpose other than medical treatment, the use is no longer legally justified or authorized and is wrongful

.

United States v. Pariso , 65 M.J. 722, 724 (A.F. C t

. C rim

. A pp . 2007) (emphasis

added ).

Contrary to Appellant’s a ssertions

, Pariso

, Moore

, and Commander remain good

law

. N either this court nor our superior court ha ve i ssued any decision which can properly

be construed to mean that one may obtain a prescription for a controlled substance through subterfuge and then

, with “legal justification or authoriza t ion,” possess and use that

controlled substance pursuant to that same prescription

. Thus, because Appellan t intentionally misled her physicians to procure hydrocodone so she could misuse it, the military judge properly found her guilty of wrongful possession and use of hydrocodone.

Next, Appellant argues that even if her fraud invalidated a prescription, such fraud may not be presumed. But here, the invalidity of the prescriptions w as not presumed.

“ Fraud ” was the term used at trial to describe App ellant’s means for obtaining her invalid prescriptions for hydrocodone. Appellant, both in her stipulation of fact and through her sworn testimony , unequivocally admitted to knowingly misleading multiple physicians by not informing them that she had an active prescription for hydrocodone . She did this

because she believed the se physicians would not prescribe her the drug if they knew that

she already had an active prescription. Calling this scheme a fraud is permissible , bu t unnecessary. The record contains an ample predicate for concluding that Appellant intentionally misled her attending physicians to obtain hydrocodone , making her use and possession wrongful

.

W e find that the four prescriptions for hydrocodone that Appellant obtained by intentionally misleading her physicians were inva lid. We also find that A ppellant’s possession and use of the hydrocodone

, pursuant to these same prescriptions

, were for a6 ACM S32328

purpose other than legitimate medical treatment. For these reasons, we find that Appellant’s possession and use of hydrocodone w ere wrongful. T here is no substantial

basis in the law or fact to question her pleas , and the Care inquiry and stipulation of fact clearly support the military judge’s acceptance of Appellant’s guilty pleas. See United

States v. Care , 40 C.M.R. 247 (C.M.A. 1983)

.

Appropriateness of Appellant’s Sentence

Appellant asserts that her sentence i s inappropriate . We “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as [we] find[] correct in law and fact and determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c) . “We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the offenses, the appellant’s record of service, and all matters contained in the record of trial.” United States

v. Bare , 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006); see also United States v. Snelling

, 14 M.J. 267, 268 (C.M.A. 1982). The purpose of Article 66(c) is to ensure “ that justice is done and that the accused gets the punishment he deserves, ” United States v. Healy , 26 M.J. 394, 395 (C.M .A. 1988), based on an individualized consideration of the nature and

seriousness of the offense and the character of the offender. United States v. Snelling , 14 M.J. 267 (C.M.A. 1982).

Appellant argues that the circumstances surrounding her misconduct demonstrate

that she does not deserve a bad

- conduct discharge , pointing i n particular to significant personal trouble she was experiencing at the time she committed her offenses

. Shortly after arriving at Travis AFB, her first duty location, Appellant re ported that she had been sexually assaulted, off

- base, by a civilian. Following the sexual assault

, Appellant was evaluated by the Department of Veterans Affairs for post

- traumatic stress disorder ( PTSD )

. She was diagnosed with existing PTSD with major depressive disorder that was permanently worsened as a result of the service

- connected sexual assaul t

. Ultimately, t he Department of Veterans Affairs assigned her a fifty percent disability evaluation for this

condition

. Appellant was also evaluated by a n Air Force Physical Evaluation Board ( PEB ) and found to be unfit for duty. During the presentencing hearing, m any of the findings of the Department of Veterans Affairs and the PEB were corroborated by the testimony of government witnesses and by Appellan t’s mother.

While we have a tremendous discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemency. United States v. Lacy , 50 M.J. 286, 288 (C.A.A.F. 1999); Healy , 26 M.J. at 395

- 96. Clemency is an act of mercy that is l e ft to t he convening authority and the Secretary of the Air Force

— not this

Court. See United States v. Poston

, ACM S29062 , unpub. op. at 3

- 4 (A.F. Ct. Crim. App. 1996) (citing United States v. Joyner , 39 M.J. 965 (A.F.C.M.R. 1994)

.7 ACM S32328

T he maximum authorized sentence for Appellant’s crimes was the jurisdictional

limit of her special court

- martial: reduction to E

- 1, forfeiture of two

- thirds ’ pay per month

for 12 months , confinement for 12 months, and a bad

- conduct discharge. Appellant negotiated a pretrial agreement limiting confinement to three months if a bad

- conduct discharge was adjudged

, and six months if one was not adjudged. The approved sentence

of a reduction to E

- 1, confinement for 30 days and a bad

- cond uct discharge was well within the discretion of the convening authority. Moreover, w e have considered this particular

A ppellant, the nature and seriou sness of her offenses, her record of service, all matters

contained in the record of trial, and her arguments on appeal. While sympathetic to Appellant’s personal struggles , w e conclude that the approved sentence is appropriate

.

Promulgating Order

Although not alleged as an assignment of error, the initial court

- martial order incorrectly states Appellant pleaded not guilty to Additional Charge II. We direct the publication of a new court

- martial order to remedy th is oversight.

Conclusion

The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ , 10 U.S.C. §§ 859(a), 866(c) . Accordingly, the approved findings and

sente nce are AFFIRMED

.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court