Steven B. THOMPSON, Staff Sergeant
U. S. Army, Appellant
Crim. App. No. 9402089
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
Argued November 5, 1998
Decided May 6, 1999
COX, C.J., delivered the opinion of the
Court, in which SULLIVAN, CRAWFORD, GIERKE, and EFFRON, JJ., joined.
For Appellant: Captain Marc D. A. Cipriano (argued); Lieutenant Colonel Michael L. Walters, Major Leslie A. Nepper, and Captain Mary J. Bradley (on brief); Lieutenant Colonel Adele H. Odegard.
For Appellee: Captain Kelly R. Bailey (argued); Colonel Joseph E. Ross, Lieutenant Colonel Frederic L. Borch, III, and Captain Elizabeth N. Porras (on brief); Lieutenant Colonel Eugene R. Milhizer.
Military Judge: Keith H. Hodges.
Appellant was convicted, by a general court-martial composed of officer and enlisted members, of rape, making false official statements (5 specifications), dereliction of duty, and violation of a lawful general regulation.1/
Appellant first claims that the evidence in this case was not legally sufficient to convict him, as an aider and abettor, of rape. See Arts. 77 and 120, Uniform Code of Military Justice, 10 USC §§ 877 and 920, respectively. Secondly, he asks us to reverse his conviction because the military judge denied a challenge for cause against a court member who expressed views that senior servicemembers should be held accountable for their subordinatesí illegal actions.2/See 49 MJ 49 (1998).
I - THE RAPE CHARGE
Legal sufficiency is determined by asking "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Turner, 25 MJ 324 (CMA 1987).
Viewing the record in the light most favorable to the prosecution, the following facts are revealed: On the afternoon of February 14, 1994, appellant and one of his friends, Sergeant (SGT) Holland, and the victim, Private First Class (PFC) K, who was then 20 years of age, were playing a drinking game in appellantís barracks room. Appellant was the barracks supervisor that day. They all became intoxicated, but PFC K became especially intoxicated and passed out.
SGT Timmons, who was also a friend of appellant, arrived at appellantís room during the drinking game. SGT Timmons testified that, while appellant was in the room, SGT Holland suggested to him that he have sex with PFC K. At that point, SGT Timmons looked at appellant, since he knew appellant and PFC K had previously engaged in "recreational" sex. According to SGT Timmons, appellant said and did nothing.
SGT Timmons then asked appellant if he could borrow a condom. According to SGT Timmons, appellant told him that he did not have any, so SGT Timmons had to get one from his own room. Appellant, in contrast, testified that he believed SGT Timmons was on his way to visit his own girlfriend, so he told Timmons to take one from his "shrunk" or "shrank."3/ Appellant then left the room to take a phone call, during which time SGT Timmons engaged in intercourse with the then-passed-out PFC K.
When appellant returned to his room, all had left. PFC K had become ill, and SGT Timmons had taken her to her room. An ambulance was called, and PFC K was taken to the hospital, where it was determined that her blood alcohol level was 0.383 grams of alcohol per 100 milliliters of blood. A government expert, Doctor Ryan, testified that blood alcohol levels of 0.4 "or higher [are] the most common area of lethality."
Later that evening, when SGT Timmons found out that he was being sought by authorities, he hid in his room. He also asked appellant to bring PFC Lewis to his room, since Lewis had seen Timmons with PFC K. In appellantís presence, SGT Timmons asked Lewis not to mention his name or to state that he had seen them together.
Appellant then escorted Timmons to the Staff Duty Noncommissioned Officer (SDNCO). In appellantís presence, SGT Timmons told the SDNCO that he did not know with whom PFC K had been partying, and that he had found her unconscious in the dayroom and taken her back to her room. During the questioning, appellant denied knowing PFC K, her age, or what had happened. At trial, he explained that he was afraid of potential disciplinary actions resulting from the events and his status as barracks supervisor.
In accordance with his pleas, appellant was convicted of making the false official statements and of violating a regulation by providing alcohol to someone under the legal drinking age. Contrary to his pleas, he was convicted of the rape by aiding and abetting, and of dereliction of duty for failing to ensure PFC Kís safety.
Before us, appellant first argues that, without some evidence of an affirmative act and criminal purpose or design, his conviction based on aiding and abetting cannot stand. Appellant reasons that mere knowledge of the victimís intoxication and the loan of a condom to the perpetrator do not constitute legally sufficient evidence of an affirmative act or a criminal purpose.
The Government, on the other hand, relies upon two alternative aiding and abetting theories: either appellant invited and encouraged the perpetrator, SGT Timmons, to engage the victim in sex; or appellant witnessed the event, or knew it was about to happen, and breached his duty to interfere. Indeed, the Court of Criminal Appeals found that appellantís failure to act to prevent the rape, in light of his duty as barracks supervisor, was a significant factor contributing to his aiding and abetting the rape. See unpub. op. at 2.
For an accused to be a principal under Article 77, and thus to be guilty of the offense committed by the perpetrator, he must (1) "assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist, encourage, advise, counsel, or command another in the commission of the offense"; and (2) "share in the criminal purpose of design." Para. 1b(2)(b), Part IV, Manual for Courts-Martial, United States, 1984.
Our case law has generally interpreted Article 77 to require an affirmative step on the part of the accused. See,e.g., United States v. Bivins, 49 MJ 328 (1998); United States v. Shearer, 44 MJ 330, 335 (1996); United States v. Pritchett, 31 MJ 213, 219 (CMA 1990).
The evidence developed at trial clearly supports appellantís conviction. First, appellant participated in getting PFC K intoxicated to such an extent that she passed out and was helpless to resist the intercourse. Second, there was evidence that appellant knew SGT Timmons was going to have intercourse with PFC K, and that he encouraged the rape by not dissuading Timmons when he looked to appellant for approval. Third, by his own admission, appellant provided SGT Timmons with a condom. Collectively, this evidence leads to the inescapable conclusion that appellant encouraged and assisted in the event. The Court of Criminal Appeals did not err when it concluded that the evidence was both factually and legally sufficient.
II Ė THE CHALLENGE FOR CAUSE OF THE COURT MEMBER
Turning to the question of whether the military
judge erred by denying the defense challenge for cause, we review for abuse
of discretion. See United States v. McLaren, 38 MJ 112, 118 (CMA 1993), cert. denied, 510 U.S. 1112 (1994). A military judge receives "great deference" regarding questions of actual bias and less deference for questions of implied bias. See United States v. Rome, 47 MJ 467, 469 (1998).
The challenge for cause against the court member, Colonel Pierce, was based on his affirmative response to a question addressed to the panel as a whole. Counsel had inquired whether any of the members would be predisposed to think less of appellant because he was drinking with a private in the barracks. During individual voir dire, Colonel Pierce reiterated that he did not approve of a noncommissioned officer (NCO) drinking with a private. Colonel Pierce also expressed his concern that an NCO would have a personal relationship with a private.
When asked whether an NCO must accept total responsibility for what happens within his or her area of control or presence, the Colonel responded:
Appellant argues that Colonel Pierceís responses show that he had a predisposition that might prejudice him and that the military judge should have excused the Colonel under the liberal grant standard that this Court has repeatedly applied to challenges for cause. E.g., United States v. Youngblood, 47 MJ 338, 341 (1997).
The military judge declined and, in a colorful but disjointed ruling, said:
The decision of the United States Army Court of Criminal Appeals is affirmed.
1/ In violation of Articles 120, 107, and 92, Uniform Code of Military Justice, 10 USC §§ 920, 907, and 892, respectively. Appellant was sentenced to forfeitures of $550 pay per month for 24 months, reduction from E-6 to E-1, 24 monthsí confinement, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, except that he suspended the last 6 months of confinement for a period of 18 months. The Court of Criminal Appeals affirmed both the findings and sentence in an unpublished opinion.
2/ This case was argued at The Citadel, Charleston, South Carolina, as part of the Courtís Project Outreach. See 38 MJ 136, 137 n.1 (CMA 1993).
3/ The court reporter variously transcribed the references to this piece of furniture as a "shrunk" or "shrank." Presumably, the references are to a "Schrank," the German word for "cupboard, locker, cabinet, bookcase, press, wardrobe." See THE NEW CASSELL'S GERMAN DICTIONARY 412 (1958).
4/ Presumably, Colonel Pierce had been an enlisted man at some point in his career, as only enlisted members are eligible for the Army Good Conduct Medal. Para. 4-2, Army Regulation 600-8-22 (25 February 1995).
5/ The military judge could have avoided the issue by following his own advice:
[Trial counsel has no response.]
Let me ask you a harder question.
Why donít you change places with Sergeant Thompson and ask you how much
confidence you would have in this court-martial if Major [M] were sitting
here. Challenge for cause against Major [M] is granted.