United States v. Driver

57 M.J. 760, 2002 CCA LEXIS 280, 2002 WL 31651993
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedNovember 22, 2002
DocketNMCM 200100320
StatusPublished

This text of 57 M.J. 760 (United States v. Driver) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Driver, 57 M.J. 760, 2002 CCA LEXIS 280, 2002 WL 31651993 (N.M. 2002).

Opinion

RITTER, Judge:

A military judge sitting as a general court-martial convicted the appellant, in accordance with his pleas, of conspiracy to commit arson and arson, in violations of Articles 81 and 126, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 926. The adjudged sentence consisted of a bad-conduct discharge, confinement for 5 months, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged.

[761]*761After carefully considering the record of trial, the appellant’s two assignments of error, and the Government’s response, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. See Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Facts

In early January 2000, the appellant walked in on a conversation between Aviation Ordnanceman Airman Apprentice (AOAA) Mims and Aviation Ordnanceman Third Class (A03) Hester, two fellow members of the USS THEODORE ROOSEVELT (CVN 71) Weapons Department, as they were discussing what to do with an automobile. The appellant quickly surmised from their discussion that they were referring to a stolen car. In fact, they were referring to A03 Hester’s cai’, which Hester wanted to report stolen and then use the insurance proceeds to buy a more reliable vehicle. A few days later, on or about 17 January 2000, AOAA Mims gave the keys to the car to the appellant and asked him and Gunner’s Mate Third Class (GM3) Poree to get rid of the car, which they agreed to do. That evening, they drove the car from the Norfolk Naval Station parking area to a parking lot off base and poured gasoline inside the car. The appellant ignited the car with a cigarette, thereby destroying the car and receiving burns to his face and hands in the process.

In the course of an investigation conducted by the Naval Criminal Investigative Service (NCIS) into this and a similar incident, Special Agent (SA) Budd questioned the appellant about his role in the arson of A03 Hester’s vehicle. Upon advisement of his rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b), the appellant waived his rights and denied any knowledge of or involvement in the car’s destruction, and provided a false explanation for the burns on his face.

At trial, the appellant pled guilty to conspiracy with GM3 Poree to set fire to the car, and to the arson itself. In accordance with his pretrial agreement, the appellant pled not guilty to the specification of making a false official statement, under Article 107, UCMJ, 10 U.S.C. § 907, concerning his statement to SA Budd. Consistent with the pretrial agreement, the Government elected not to go forward on this charge and the military judge entered a finding of not guilty.

In its case in aggravation, the Government offered testimony from AOAA Mims, concerning four or five discussions he had with the appellant and others concerning A03 Hester’s automobile. Over the trial defense counsel’s objection, and after the military judge conducted a balancing test on the record under Military Rule of Evidence 403, Manual for Courts-Martial, United States (2000 ed.), AOAA Mims explained that in one of those conversations, he, the appellant, and GM3 Poree briefly discussed the possibility of burning other automobiles for crewmembers who desired to obtain their insurance proceeds. AOAA Mims testified that GM3 Poree specifically suggested that their next job could be to burn a car belonging to another Weapons Department member named Morgan.

The Government then called SA Budd, who testified to the appellant’s false statements in the course of the NCIS investigation. The military judge overruled defense counsel’s objection, after conducting a Mil. R. Evid. 403 balancing test, finding that the testimony directly related to or resulted from the offenses to which appellant had pled guilty. While explaining how the appellant’s false statement complicated the investigation, SA Budd provided background information on the scope of the investigation, including the fact that another car found destroyed by fire belonged to a man named Morgan. In response to the military judge’s question, SA Budd clearly indicated that, although the appellant was closely associated with the persons who burned Morgan’s ear, NCIS had no information that linked the appellant with the actual destruction of the vehicle.

On appeal, the appellant argues that the military judge erred in admitting improper aggravation evidence when, over the objection of defense counsel, he admitted: (1) evidence concerning the destruction of multiple vehicles, where appellant had been charged with conspiracy and arson involving only one; and (2) evidence of appellant’s false [762]*762statement to NCIS relating to the charged offenses, after he had been charged and found not guilty of making the same false statement. We disagree, and find that the military judge properly admitted the challenged evidence.

Standard of Review

The standard of review on appeal for the admission or exclusion of evidence on sentencing is whether the “ ‘judge clearly abused his discretion.’” United States v. Clemente, 50 M.J. 36, 37 (1999)(quoting United States v. Rust, 41 M.J. 472, 478 (1995) and United States v. Zakaria, 38 M.J. 280, 283 (C.M.A.1993)). Rule for Courts-Martial 1001(b)(4), Manual for Courts-Martial, United States (2000 ed.), sets forth the rule as to what evidence the prosecution can present in aggravation during the presentencing phase of courts-martial, and provides that “[t]he 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.” Whether evidence is “directly relat[ed] to or results from the offenses,” and is thus admissible in aggravation, calls for considered judgment by the military judge, and such judgment will not lightly be overturned. United States v. Wilson, 47 M.J. 152, 155 (1997). Evidence qualifying for admission under R.C.M. 1001(b)(4) must also pass the test of Mil. R. Evid. 403. Rust, 41 M.J. at 478. “The appellant has the burden of going forward with conclusive argument that the judge abused his discretion” in applying the Mil. R. Evid. 403 balancing test. United States v. Mukes, 18 M.J. 358, 359 (C.M.A.1984).

Evidence of a Broader Conspiracy

The appellant argues that AOAA Mims’ testimony concerning a conversation involving the destruction of both A03 Hester’s vehicle and that of another crewmember named Morgan improperly revealed misconduct that did not directly relate to the charges for which the appellant was sentenced. He points out that misconduct may “directly relate to or result from” charged offenses if it is part of “a continuous course of conduct involving the same or similar crimes, the same victims, and a similar situs within the military community.” United States v. Mullens, 29 M.J. 398, 400 (C.M.A.1990);

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Bluebook (online)
57 M.J. 760, 2002 CCA LEXIS 280, 2002 WL 31651993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-driver-nmcca-2002.