United States v. Private First Class MARK A. FRIPP, JR.

• Court: Army Court of Criminal Appeals
• Decided: October 27, 2009
• Docket: ARMY 20080400
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges

UNITED STATES, Appellee v.

Private First Class MARK A. FRIPP, JR. United States Army , Appellant

ARMY 20080400

Combined/Joint Task Force 101 Edward J. O’Brien, Military Judge Lieutenant Colonel Paul S. Wilson, Staff Judge Advocate

For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Major Grace M. Gallagher, JA; Lieutenant Colonel William E. Cassara, JA (on brief).

For Appellee: Lieutenant Colonel Francis C. Kiley, JA; Major Karen J. Borgerding, JA (on brief).

27 October 2009

--------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam:

An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit larceny, larceny, wrongful appropriation, assault consummated by a battery (two specifications), and housebreaking, in violation of Articles 81, 121, 128, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, 928 and 930 [hereinafter UCMJ]. Appellant was sentenced to a dishonorable discharge, confinement for forty-eight months, forfeiture of all pay and allowances, and reduction to the rank of Private (E1). The convening authority reduced the sentence to confinement to forty-four months and otherwise approved the adjudged sentence.

Appellant alleges the military judge abused his discretion when he allowed testimony regarding the “administrative effects” of appellant’s court-martial. We agree the military judge erred, however, we do not find the error prejudiced appellant. See Article 59, UCMJ.

During presentencing, the military judge permitted the trial counsel ask appellant’s platoon sergeant, over defense objection, “What was the administrative affect [sic] on your unit as a result of this action?” Because of the potential of this question, as phrased, to elicit impermissible aggravation evidence, we agree it was improper. “[E]vidence of the administrative burden of the court-martial process is ordinarily not ‘evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused's offense.’” United States v. Stapp, 60 M.J. 795, 801 (Army Ct. Crim. App. 2004) (citing Rule for Courts-Martial [hereinafter R.C.M.] 1001(b)(4)).

Although we find error in the phrasing of the trial counsel’s question, the response to that question did not violate the limitations set forth in R.C.M. 1001(b)(4). The witness responded that, to protect the interests of the appellant and his co-conspirators, he could not assign them to work together in performing their mission. This forced other members of appellant’s platoon to perform their arduous and dangerous resupply mission in Afghanistan more frequently, increasing unit stress and hampering the mission. Thus, the objectionable question drew a permissible response. See, e.g., United States v. Key, 55 M.J. 537, 539 (A.F. Ct. Crim. App. 2001) (holding removal of appellant and accomplices from duty positions after misuse of authority was admissible as direct result of misconduct).

While the question itself was improper, the response it elicited was not, and appellant suffered no prejudice. See Stapp, 60 M.J. at 801 (citing United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001). The findings of guilty and the sentence are affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court