UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist TYWAN J. MITCHELL
United States Army, Appellant
ARMY 20130033
Headquarters, 8th Theater Sustainment Command
David L. Conn, Military Judge
Colonel Paul T. Salussolia, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Robert
H. Meek, III, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Steven J. Collins, JA; Captain Benjamin W. Hogan, JA (on brief).
31 October 2014
---------------------------------
SUMMARY DISPOSITION
---------------------------------
PENLAND, Judge:
An officer panel sitting as a general court-martial convicted appellant, contrary
to his pleas, of conspiracy to commit burglary; conspiracy to commit housebreaking;
false official statement; aggravated sexual assault of a child; four specifications of
indecent acts; adultery; and wrongful receipt of stolen property of a value of over
$500, in violation of Articles 81, 107, 120, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 891, 907, 920, 934 (2006 & Supp. IV 2011). The
panel sentenced appellant to a dishonorable discharge, confinement for five years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening
authority credited appellant with five days against the sentence to confinement and
approved the adjudged sentence.
This case is before us for review under Article 66, UCMJ. Appellant raises three
assignments of error, two of which merit discussion and one of which merits relief.
Appellant’s matters submitted personally pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), are without merit.
MITCHELL — ARMY 20130033
FACTUAL AND LEGAL INSUFFICIENCY
Appellant was convicted of Specification 1 of Charge II, which alleged:
In that [appellant] did, on the island of Oahu, between on or
about 21 April 2012 and on or about 7 May 2012, wrongfully
receive the following property, of a value of about the
following amount, the property of the following people, which
property, the accused then knew had been stolen, and that said
conduct was to the prejudice of good order and discipline in
the armed forces and was of a nature to bring discredit upon
the armed forces.
Name: SPC [SS]
Property: Apple MacBook Laptop and one watch
Value: over $500
Name: 2LT [JB]
Property: Xbox 360, eleven Xbox 360 video games, two
laptop computers, and nine Blu-Ray movies
Value: over $500
Name: Mrs. [ET]
Property: Nintendo 3DS, Kindle Fire, nine rings, two
necklaces, four bracelets, three pairs of earrings, two earrings,
two necklaces, a watch, and a jewelry box
Value: over $500
Name: Mrs. [KR]
Property: Playstation 3, two necklaces, and two Mississippi
University class rings
Value: over $500
Name: LTC [RG]
Property: 46 inch Sony television, television remote control,
Apple iPad, one ring, one bracelet, and one pair of earrings
Value: over $500
Name: LTC [PF]
Property: Xbox 360, iPod Touch, Nintendo DS, twelve
Nintendo DS video games, six Xbox 360 video games, two
Airsoft guns, five pairs of earrings, two earrings, one Pendant,
and one ring
Value: over $500
2
MITCHELL — ARMY 20130033
Name: Mrs. [JL]
Property: iPod Touch, 48 pairs of earrings, 8 earrings, 32
necklaces, 43 bracelets, 13 rings, 19 pendants, 3 watches, and
a silver crown design with diamonds decorative piece
Value: over $500
Name: SGT [JC]
Property: BOSE speakers, 52 inch Samsung television,
television remote control, and three Xbox controllers
Value: over $500
Our examination reveals obvious evidentiary shortfalls with respect to
Specification 1 of Charge II. 1 The test for legal sufficiency is whether, considering all
of the evidence in the light most favorable to the government, a reasonable fact-finder
could have found all of the essential elements of the offense beyond a reasonable
doubt. United States v.Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). The test for factual sufficiency is whether,
after weighing the evidence and making allowances for not having personally observed
the witnesses, this court is convinced of appellant’s guilt beyond a reasonable doubt.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The officer panel in this case returned a verdict of guilty to this specification,
without exception. However, there was no direct or circumstantial evidence of the
following at trial: that appellant received any stolen property belonging to SPC SS,
Mrs. KR, or Mrs. JL; 2 that appellant received a stolen Nintendo 3DS and more than two
stolen necklaces belonging to Mrs. ET; or that appellant received a Nintendo DS and
more than three stolen Nintendo DS video games belonging to LTC PF. The findings
of guilty to these portions of Specification 1 of Charge II are wholly unsupported by
the evidence and thus legally insufficient. We are left to wonder how the guilty verdict
of this specification in its entirety withstood the scrutiny of the military judge, staff
judge advocate, and convening authority during post-trial processing.
The government alleged that appellant wrongfully received stolen property of a
value exceeding $500. We find the evidence of this element factually insufficient. The
property’s value at the time of its alleged wrongful receipt is a fundamental element of
1
As an example, in an Article 39(a) session, upon motion of the trial counsel and
without defense objection, the military judge allowed trial counsel to preadmit
photographs of various stolen property alleged to be found in appellant’s quarters. No
evidence was elicited before the members regarding when and where these photographs
were taken.
2
SPC SS, Mrs. KR, and Mrs. JL did not testify at trial.
3
MITCHELL — ARMY 20130033
this offense, but the government’s evidence of value consisted almost entirely of
Amazon.com “shopping cart” printouts and related testimony indicating the
replacement costs of certain electronic items. The evidence at trial included virtually
no evidence, direct or otherwise, of the stolen property’s condition at the time of theft.
With scant evidence of this element, we are not convinced beyond a reasonable doubt
that the stolen property appellant received was of a value in excess of $500.00.
Therefore, we will only affirm as much of the conviction as provides that appellant
received certain stolen property of some value. See United States v. Rupert, 25 M.J.
531, 532-33 (A.C.M.R. 1987); United States v. Tamas, 6 U.S.C.M.A. 502, 510-11, 20
C.M.R. 218, 226-27 (1955).
UNREASONABLE MULTIPLICATION OF CHARGES
Appellant engaged in sexual and sodomitic acts with SB, DW, and JV, while in
each other’s presence. SB was under the age of 16. This conduct formed the bases of
appellant’s conviction of Charge III and its specifications (violations of Article 120,
UCMJ) which alleged: aggravated sexual assault of a child, SB; indecent act for the
same sexual act with SB; indecent act for a sexual act with DW; indecent act for a
sexual act with JV; and indecent act for a sodomitic act with JV.
Appellant alleges unreasonable multiplication of charges with regard to these
five specifications. We agree in part and, applying the factors in United States v.
Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) and considering Rule for Courts-Martial
307(c)(4), we conclude that Specification 2 of Charge III constitutes an unreasonable
multiplication of charges for findings with Specification 1 of Charge III.
Specifications 3, 4, and 5, however, address fundamentally independent acts of
indecency; a conviction for each is not inconsistent with Quiroz.
CONCLUSION
The Court affirms only so much of the finding of guilty of Specification 1 of
Charge II as provides that:
In that Specialist Tywan J. Mitchell, U.S. Army, did, on the
island of Oahu, between on or about 21 April 2012 and on or
about 7 May 2012, wrongfully receive the following property,
of a value of about the following amount, the property of the
following people, which property, the accused then knew had
been stolen, and that said conduct was to the prejudice of good
order and discipline in the armed forces and was of a nature to
bring discredit upon the armed forces.
4
MITCHELL — ARMY 20130033
Name: 2LT JB
Property: Xbox 360, eleven Xbox 360 video games, two
laptop computers, and nine Blu-Ray movies
Value: some value
Name: Mrs. ET
Property: Kindle Fire, nine rings, two necklaces, four
bracelets, three pairs of earrings, two earrings, a watch, and a
jewelry box
Value: some value
Name: LTC RG
Property: 46 inch Sony television, television remote control,
Apple iPad, one ring, one bracelet, and one pair of earrings
Value: some value
Name: LTC PF
Property: Xbox 360, iPod Touch, three Nintendo DS video
games, six Xbox 360 video games, two Airsoft guns, five pairs
of earrings, two earrings, one Pendant, and one ring
Value: some value
Name: SGT JC
Property: BOSE speakers, 52 inch Samsung television,
television remote control, and three Xbox controllers
Value: some value
The finding of guilty of Specification 2 of Charge III is set aside and dismissed. The
remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the errors noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 16-17
(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), the
sentence is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.
Senior Judge LIND and Judge KRAUSS concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk
Clerkofof
Court
Court
5