United States v. Rhine

67 M.J. 646, 2009 CCA LEXIS 98, 2009 WL 689807
CourtUnited States Air Force Court of Criminal Appeals
DecidedMarch 12, 2009
DocketACM 37004
StatusPublished
Cited by4 cases

This text of 67 M.J. 646 (United States v. Rhine) is published on Counsel Stack Legal Research, covering United States Air Force 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. Rhine, 67 M.J. 646, 2009 CCA LEXIS 98, 2009 WL 689807 (afcca 2009).

Opinion

OPINION OF THE COURT

THOMPSON, Judge:

Consistent with the appellant’s pleas, a military judge sitting as a general court-martial convicted him of one charge and one specification of failure to obey lawful orders, one charge and two specifications of willful damage to the non-military property of another, and one charge and one specification of stalking, in violation of Articles 92, 109, and 120a, UCMJ, 10 U.S.C. §§ 892, 909, 920a. The convening authority approved a sentence consisting of a bad-conduct discharge, confinement for 14 months, and reduction to E-l.1 The appellant asserts three errors: (1) the military judge erred when he allowed, during sentencing, evidence of uncharged misconduct as facts and circumstances of the stalking charge and permitted trial counsel to argue those facts and circumstances as aggravating evidence; (2) the two specifications of wrongful damage to Airman (Amn) KRS’s property are multiplicious with stalking; and (3) the appellant’s sentence is inappropriately severe.2 Though not raised by the appellant, the Court also examined whether he is entitled to relief because of appellate processing delays. Finding no error, we affirm.

Background

The appellant was a voice management systems airman assigned to the communications squadron at Royal Air Force Milden-hall, United Kingdom. The appellant and Amn KRS developed a friendship and then a sexual relationship that lasted from the end of May 2006 until the middle of June 2006. Amn KRS was married at the time, and her husband did not arrive in country until the middle of June 2006, at which time Amn KRS told the appellant that they needed to end their relationship.3 Initially, Amn KRS thereafter attempted to maintain a platonic friendship with the appellant, but by August 2006 Amn KRS told the appellant they must end their friendship completely. Following an incident at a movie theater on 25 August 2006, the appellant was issued the first of two no-contact orders. Despite this no-contact order, on 2 September 2006, at approximately 0300 hours, the appellant drove to Amn KRS’ on-base house, scratched the word “slut” into the hood of one of her cars, and slashed one of the car’s tires. Amn KRS reported the damage. Although unable to prove who committed the damage, the appellant’s first sergeant suspected the appellant. Therefore, on 7 September 2006, he issued a second no-contact order, which included an order to have no contact with the base housing area where Amn KRS lived and no contact with Amn KRS’ husband. On 1 October 2006, at about 0430 hours, the appellant drove to Amn KRS’ housing area, climbed the fence, and proceeded to Amn KRS’ home. Once there, he scratched the hood of her second car with the words “Chad ‘heart’ U”4 and slashed one of its tires. The next morning, Amn KRS discovered the damage and filed a report. In the early morning hours of 2 October 2006, the appellant once again traveled to Amn KRS’ housing area, climbed the fence, and walked to her home. This time, he used his Leatherman Multitool to bang on her window twice, then departed the area. Amn KRS heard the banging but did not see anyone outside her home so she went back to sleep. That morning, as Amn KRS was reporting the damage to her second car to her first sergeant, she received a text message from the appellant which read: “Im sorry 4 slashing ur tires, im sorry 4 keying [648]*648ur cars, im sorry 4 deleting ur yahoo, im sorry 4 telling ur husband our secret, im sorry 4 stealing ur cd, I know theres no way u would 4give me, so this is my goodbye, [sic]” Shortly thereafter, Amn KRS received a second text message which read: “Im just a failure I could’nt break your window this morning and now i cant kill myself either, [sic]” Amn KRS showed both messages to the first sergeant,, who immediately located the appellant. The appellant was admitted to a local treatment facility. After his release, he was placed in pretrial confinement, which continued until his court-martial.

Sentencing Evidence

At trial and again on appeal, the appellant asserts that the military judge erred in allowing trial counsel to elicit evidence of uncharged misconduct during sentencing. The appellant requests that this Court set aside the sentence and order a new sentencing hearing. Finding no error, we grant no relief.

The trial counsel called Amn KRS to testify during sentencing. Amn KRS testified about numerous encounters with the appellant which were either outside the charged timeframe or were not charged. We will examine each encounter. First, Amn KRS testified that after her husband, RH, arrived in England, and after she told the appellant that they would just be friends, the appellant continued to touch her in a sexual way and do sexual things in front of her husband. Her testimony proceeded as follows:

AMN KRS: I told [the appellant] that I strictly wanted to be friends, that our sexual relationship was hindering my relationship with my husband.
TC: What happened after you told him you just wanted to be friends?
AMN KRS: He said that was no problem, but he was still continuing to touch me in front of my husband and do sexual things in front of my husband.
TC: When you say “sexual things” what are you referring to?
AMN KRS: Like an example would be when we were in the car, [RH] would be driving and I would be in the passenger seat, [the appellant] would be in the back and he would show me his penis. Sexual things like that and touching me in front of my husband.
CDC: Your Honor, I’m going to object to all of this. This is uncharged misconduct inappropriate under [Rule for Courts-Martial] R.C.M. 1001.
MJ: Let me ask a question in weighing your objection. Your husband is [RH]? AMN KRS: Yes, sir.
MJ: He’s not in the Air Force?
AMN KRS: No, sir,
MJ: Just to be clear, he arrived here at some point in July or June?
AMN KRS: At the end of June.
MJ: And there were occasions on which you, your husband and [the appellant] would all go out together?
AMN KRS: Yes.
MJ: And your husband, I take it was unaware that there was a relationship between the two of you?
AMN KRS: Yes, Your Honor.
MJ: Your purpose in eliciting these things is for what?
TC: Facts and circumstances and the effect it had on the victim. We’re not alleging that this misconduct per se is at issue; it’s not. It goes to the state of mind of the victim, her fear based on the events that we did allege.
MJ: Okay, it’s admitted only for that purpose, that is, to touch upon or build a case for the later stalking that this is how it progressed prior to the charged time period. It’s not to be considered by the court for any other purpose. Do you object to that?
CDC: Well, I mean they can just ask the question about fear. I don’t understand why we need to talk about stuff that is uncharged.

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Cite This Page — Counsel Stack

Bluebook (online)
67 M.J. 646, 2009 CCA LEXIS 98, 2009 WL 689807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rhine-afcca-2009.