United States v. Nourse , 2001 CAAF LEXIS 834 ( 2001 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Thomas L. NOURSE, Staff Sergeant
U.S. Marine Corps, Appellant
No. 01-0020
Crim. App. No. 99-0663
United States Court of Appeals for the Armed Forces
Argued April 25, 2001
Decided July 17, 2001
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and BAKER, JJ., joined.
Counsel
For Appellant: Lieutenant Amanda St. Claire, JAGC, USNR (argued); Lieutenant
Commander Steven B. Fillman, JAGC, USNR, and Lieutenant Glenn Gerding, JAGC,
USNR (on brief).
For Appellee: Lieutenant James E. Grimes, JAGC, USNR (argued); Colonel Marc
W. Fisher, Jr., USMC, and Lieutenant Commander Philip L. Sundel, JAGC, USNR
(on brief); Lieutenant Danette L. Walker, JAGC, USNR.
Military Judge: G.E. Champagne
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. NOURSE, No. 01-0020/MC
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge
sitting alone convicted appellant, pursuant to his pleas, of
conspiracy to commit larceny, reckless driving, two
specifications of larceny, wrongful appropriation, and unlawful
entry, in violation of Articles 81, 111, 121, and 134, Uniform
Code of Military Justice, 10 USC §§ 881, 911, 921, and 934,
respectively. He was sentenced to a dishonorable discharge,
confinement for 30 months, total forfeitures, and reduction to
the lowest enlisted grade. The convening authority approved the
sentence as adjudged and waived automatic forfeitures for a
period of 6 months to provide support for appellant’s
dependents. On August 8, 2000, the Court of Criminal Appeals
affirmed in an unpublished opinion.
On appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER COURT ERRED IN HOLDING THAT
UNCHARGED MISCONDUCT WAS ADMISSIBLE IN
SENTENCING WHERE THE UNCHARGED MISCONDUCT DID
NOT DIRECTLY RELATE TO THE CHARGED OFFENSES AS
REQUIRED BY RCM 1001(b). COMPARE UNITED STATES
V. WINGART, 27 M.J. 128 (CMA 1988), WITH UNITED
STATES V. SHUPE, 36 M.J. 431 (CMA 1993).
For the reasons set forth below, we affirm.
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I. BACKGROUND
Appellant and Sergeant (Sgt) Dilembo worked part-time for
the Orleans Parish Criminal Sheriff’s Office in New Orleans,
Louisiana. One day in September 1997, appellant and Sgt Dilembo
were mowing grass around a warehouse used by the Sheriff’s
Office when they decided to steal some rain ponchos. The two
began loading cases of ponchos from the warehouse into a truck
owned by the Sheriff’s Office. They were noticed by an
individual who called in an anonymous tip, causing Assistant
Chief Deputy Hall of the Sheriff’s Office to arrive and witness
the two engaged in the theft.
A short time later, appellant and Sgt Dilembo left the
scene in the Sheriff’s Office truck, with Chief Hall in pursuit.
During the chase, appellant drove recklessly through residential
neighborhoods, forcing Chief Hall to abandon pursuit. Appellant
was apprehended when he returned to the Sheriff’s Office to
retrieve his own car. Appellant pleaded guilty to the charges
stemming from these events, including larceny of ponchos valued
at $2,256.
During the presentencing portion of the court-martial, the
Government sought to introduce testimony from Sgt Dilembo about
other larcenies of property from the Sheriff’s Office that he
and appellant committed as evidence in aggravation under RCM
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United States v. NOURSE, No. 01-0020/MC
1001(b)(4), Manual for Courts-Martial, United States (1995 ed.).1
The defense objected on the basis of “uncharged misconduct and
relevance,” referring to the higher standard for admissibility
under RCM 1001 for evidence of aggravating circumstances. The
Government responded that the evidence was admissible to show
that the charged larceny “was not an isolated incident but a
course of conduct and puts the offenses themselves in proper
perspective," citing United States v. Ross, 34 M.J. 183 (CMA
1992). The Government further explained that appellant had not
been charged with the other larcenies because the offenses were
discovered after preferral of charges and arraignment.
The military judge made a preliminary ruling that the
proffered evidence was admissible under RCM 1001(b)(4) to show
that the charged larceny was part of a course of conduct
involving similar crimes perpetrated upon the same victim,
citing United States v. Shupe, 36 M.J. 431 (CMA 1993), and United
States v. Mullens, 29 M.J. 398 (CMA 1990). In the course of
evaluating the evidence under Mil.R.Evid. 403, Manual, supra,
the military judge observed that the prejudicial impact of the
evidence could be high, but noted that he would only consider
1
All Manual provisions are cited to the version in effect at the time of
trial. The current version is unchanged, unless otherwise indicated. RCM
1001(b)(4) was amended on October 6, 1999. The changes involved moving
material previously featured in the Discussion into the text of the rule and
adding intentional selection of the victim because of certain characteristics
as a form of aggravating evidence.
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United States v. NOURSE, No. 01-0020/MC
the testimony for purposes of putting appellant’s crime in
context. The Government then elicited testimony from Sgt
Dilembo about other thefts of Sheriff’s Office property prior to
the charged larceny. The approximate value of this stolen
property was $30,000. The Government also introduced
corroborating testimony from Chief Hall, as well as evidence
that appellant sold field gear to a military surplus store
during the same period of time.
After the conclusion of the Government’s sentencing case,
the military judge reiterated his earlier ruling concerning the
uncharged thefts and noted that he would consider the evidence
only for a limited purpose:
to show the continuous nature of the charged
conduct and its impact on the Orleans Parish
Criminal Sheriff’s Office. More
specifically, it’s evidence of the accused’s
motive; his modus operandi; his intent and
his plan with respect to the charged
offenses. And it shows evidence of a
continuous course of conduct involving the
same or similar crimes, the same victim, the
same general place.
The judge warned trial counsel not to argue that appellant
should be subject to more severe punishment on account of the
uncharged larcenies, that appellant had a criminal propensity,
or that the value of the other stolen property should affect
appellant’s sentence.
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II. DISCUSSION
RCM 1001(b)(4) governs what the prosecution may present as
evidence in aggravation during the presentencing phase of
courts-martial. The rule provides that “trial counsel may
present evidence as to any aggravating circumstances directly
relating to or resulting from the offenses of which the accused
has been found guilty.” (Emphasis added.) The Drafters’
Analysis notes that “[t]his subsection does not authorize
introduction in general of evidence of bad character or
uncharged misconduct. The evidence must be of circumstances
directly relating to or resulting from an offense of which the
accused has been found guilty.” Manual, supra at A21-67.
In United States v. Wingart, 27 M.J. 128 (CMA 1988), our
Court considered the significance of the phrase “directly
relating to or resulting from.” Wingart, which involved a
conviction for indecent acts, held that it was error to admit
evidence of previous uncharged sexual misconduct with another
victim as an aggravating circumstance under RCM 1001(b)(4).
Wingart stated that relevance and admissibility should be
assessed “in relation to the language of RCM 1001(b)(4)” and
rejected the notion that standards of relevance and
admissibility under Mil.R.Evid. 401 and 404(b) should apply to
other misconduct evidence offered under the rule. Id. at 136.
With respect to the scope of matters covered by the phrase
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United States v. NOURSE, No. 01-0020/MC
“directly relating to or resulting from the offenses of which
the accused has been found guilty,” the opinion explained:
The uncharged misconduct may be admitted
because it is preparatory to the crime of
which the accused has been convicted – e.g.,
an uncharged housebreaking that occurred
prior to a larceny or rape. It may
accompany the offense of which the accused
has been convicted – e.g., an uncharged
aggravated assault, robbery, or sodomy
incident to a rape. It may follow the
offense of which the accused has been
convicted – e.g., a false official statement
concealing an earlier theft of government
property.
Id. at 135.
Two years later, our Court interpreted the “directly
relating to or resulting from” language in the rule as
encompassing evidence of other crimes which are part of a
“continuous course of conduct involving the same or similar
crimes, the same victims, and a similar situs within the
military community.” Mullens, 29 M.J. at 400 (holding that
evidence of uncharged indecent liberties the accused took with
his children was admissible under RCM 1001(b)(4) at sentencing
for convictions of sodomy and indecent acts with his children).
We stated that evidence of this nature appropriately may be
considered as an aggravating circumstance because it reflects
the true impact of crimes upon the victims. Id.; RCM
1001(b)(4)(“Evidence in aggravation includes, but is not limited
to, evidence of financial, social, psychological, and medical
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United States v. NOURSE, No. 01-0020/MC
impact on or cost to any person or entity who was the victim of
an offense committed by the accused . . . .”).2 This
interpretation of the rule –- allowing evidence of uncharged
misconduct involving a continuous course of conduct -– has been
followed in subsequent cases. See Ross, 34 M.J. at 187 (evidence
that the accused had altered test scores on occasions other than
those for which he was convicted was admissible to show the
“continuous nature of the charged conduct and its full impact on
the military community”); Shupe, 36 M.J. at 436 (evidence of drug
transactions not embraced by the guilty plea were admissible as
aggravating circumstances to show the “continuous nature of the
charged conduct and its full impact on the military community,”
quoting Ross).
We note that the granted issue invites a comparison between
Wingart and Shupe. The cases are not inconsistent. Mullens,
Ross, and Shupe explain that when uncharged misconduct is part
of a continuous course of conduct involving similar crimes and
the same victims, it is encompassed within the language
“directly relating to or resulting from the offenses of which
the accused has been found guilty” under RCM 1001(b)(4).
Appellant relied upon Wingart at trial and on appeal to
urge that the uncharged larcenies should have been excluded from
2
As noted earlier, at the time of appellant's trial, this language was
featured in the Discussion to RCM 1001(b)(4). It was moved to the text in an
October 1999 amendment.
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United States v. NOURSE, No. 01-0020/MC
consideration when fashioning an appropriate sentence in his
case. He argues that the larcenies were not directly related to
the charged offenses and that the admission of more severe
offenses at sentencing under a lower standard of proof is unfair
and does “little more than [] inflict a gratuitous injury on the
accused.” Wingart, 27 M.J. at 136. Appellant further argues that
there was not a “continuous course of conduct” in this case.
We do not agree. The evidence regarding the uncharged
larcenies was admissible as an aggravating circumstance under
RCM 1001(b)(4) because it directly related to the charged
offenses as part of a continuing scheme to steal from the
Orleans Parish Criminal Sheriff’s Office. Appellant was found
guilty of larceny and conspiracy to commit larceny of goods from
the Sheriff’s Office on one occasion. Evidence was admitted
showing that appellant had committed the same crime upon the
same victim in the same place several times prior to the charged
offenses. This evidence of a continuous course of conduct was
admissible to show the full impact of appellant’s crimes upon
the Sheriff’s Office. Mullens, Ross, and Shupe, all supra. The
military judge weighed the evidence under Mil.R.Evid. 403, found
it more probative than prejudicial, and limited his
consideration of it to an appropriate purpose -- putting
appellant’s offenses into context. Under these circumstances,
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United States v. NOURSE, No. 01-0020/MC
we hold that the military judge did not abuse his discretion
when he admitted the contested evidence in this case.
III. CONCLUSION
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
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