                                    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affirmed in an unpublished opinion.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 MJ 128 (CMA 1988), WITH UNITED
          STATES V. SHUPE, 36 MJ 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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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 MJ 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 MJ 431 (CMA 1993), and United

States v. Mullens, 29 MJ 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 MJ 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 MJ 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 MJ 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 MJ 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 MJ 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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