

   
   
   
   U.S. v. Thomasson



UNITED STATES, Appellee
v.
Sarah F. THOMASSON, Storekeeper Third Class
U.S Navy, Appellant
 
 
No. 98-0758
Crim. App. No. 96-0938
 
 
United States Court of Appeals
for the Armed Forces
Argued March 4, 1999
Decided April 22,
1999
 
 
Counsel
For Appellant: Lieutenant
Commander Rebecca L. Gilchrist, JAGC, USN (argued); Lieutenant Dale
O. Harris, JAGC, USNR.
For Appellee: Lieutenant
Commander John A. Maksym, JAGC, USNR (argued); Colonel Kevin M.
Sandkuhler, USMC, Commander Eugene E. Irvin, JAGC, USN, and
Lieutenant
James Grimes, JAGC, USNR (on brief); Commander D. H. Myers,
JAGC, USN, and Lieutenant Russell J. E. Verby, JAGC, USNR.
Military Judge: Charles R.
Hunt
 
 


This opinion is subject
to editorial correction before publication.


PER CURIAM:
A special court-martial composed of a military
judge sitting alone convicted appellant, pursuant to her pleas, of resisting
apprehension, assault, and presenting fraudulent claims (29 specifications),
in violation of Articles 95, 128, and 132, Uniform Code of Military Justice,
10 USC §§ 895, 928, and 932, respectively. She was sentenced
to a bad-conduct discharge, confinement for 4 months, forfeiture of $569.00
pay per month for 6 months, and reduction to the lowest enlisted grade.
The convening authority approved these results. Pursuant to a pretrial
agreement, the convening authority suspended all confinement in excess
of 75 days for a period of 12 months from the date of trial. The Court
of Criminal Appeals affirmed in an unpublished opinion.
On appellants petition, we granted review
of the following issue:



WHETHER APPELLANT'S PLEA OF GUILTY TO RESISTING
APPRHENSION WAS NOT PROVIDENT.



Appellant was engaged in a scheme to obtain fraudulent
refunds from a military exchange for clothes stolen from the exchange.
When a civilian store detective became suspicious, appellant ran to her
car and drove off, nearly hitting the store detective in the process. Appellant
providently pleaded guilty to false claim charges concerning the fraudulent
refund scheme. She also providently pleaded guilty to assaulting the civilian
store detective in her escape. Those offenses are not at issue in the present
appeal.
After appellant left the post exchange, a military
police car appeared behind her car with the siren sounding. Although appellant
realized what was happening, she continued to drive for about 2 minutes
before pulling over. A military police officer, Sergeant Moon, approached
appellant, identified herself, and placed appellant under apprehension
without further occurrence. The incident involving the military police
officer resulted in a charge alleging that appellant had "resist[ed] being
apprehended by Sergeant Lurna D. Moon, . . . an armed forces police officer."
The military judge advised appellant during
the plea inquiry as to the various forms of resisting apprehension, including
resistance "by flight." The colloquy between the military judge and appellant
with respect to the offense of resisting apprehension focused exclusively
on her flight from Sergeant Moon.
Under Article 95 as it existed at the time
of the conduct in question, flight from a law enforcement officer, unaccompanied
by any other act of resistance, did not constitute the offense of resisting
apprehension. See United States v. Harris, 29 MJ 169 (CMA 1989);
United
States v. Burgess, 32 MJ 446, 447-48 (CMA 1991).1
With respect to the offense of resisting apprehension, the military judge
did not inquire as to any act of resistance other than flight. Accordingly,
appellant's plea was improvident. See United States v. Prater, 32
MJ 433, 436 (CMA 1991). However, in light of the numerous remaining offenses
and the nature of the conduct for which she providently pleaded guilty,
we conclude that the error was harmless as to sentence.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed except for Charge I and its
specification. The findings of guilty of Charge I and its specification
are set aside, and Charge I is dismissed.
FOOTNOTE:
1 Congress subsequently
amended Article 95 to add the offense of "flee[ing] from apprehension"
to the already existing offenses of resisting apprehension, breaking arrest,
and escaping from custody or confinement. National Defense Authorization
Act for Fiscal Year 1996, Pub. L. No. 104-106, §1112, 110 Stat. 461.
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