United States v. Private E1 JOSHUA J. FULTON ( 2013 )


Menu:
  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    YOB, KRAUSS, and BURTON
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private E1 JOSHUA J. FULTON
    United States Army, Appellant
    ARMY 20120432
    Headquarters, Fort Riley
    Jeffery R. Nance, Military Judge
    Lieutenant Colonel John A. Hamner, Staff Judge Advocate
    For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
    Jamison, JA; Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on brief).
    For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
    JA; Major Daniel D. Maurer, JA (on brief).
    27 June 2013
    ------------------------------
    MEMORANDUM OPINION
    ------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    Per Curiam:
    A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of desertion terminated by apprehension, four specifications of
    failing to report, wrongful use of marijuana, larceny of military property of a value
    more than $500.00, larceny of other property of a value more than $500.00, and
    housebreaking, in violation of Articles 85, 86, 112a, 121, and 130, Uniform Code of
    Military Justice [hereinafter UCMJ], 
    10 U.S.C. §§ 885
    , 886, 912a, 921, 930 (2012).
    The military judge sentenced appellant to a bad-conduct discharge, confinement for
    twenty-five months, and forfeiture of all pay and allowances. Pursuant to a pretrial
    agreement, the convening authority approved only so much of the sentence as
    provided for a bad-conduct discharge, confinement for twenty months, and forfeiture
    of all pay and allowances. The convening authority also credited appellant with
    eighty days of confinement against the sentence to confinement.
    FULTON – ARMY 20120432
    This case is before us for review under Article 66, UCMJ. Appellant has
    raised one assignment of error alleging the military judge improperly found
    appellant guilty of Specification 2 of Charge I, which alleged larceny of property
    with a value of more than $500.00, without exceptions and substitutions to the
    specification. After reviewing the entire record, the submissions by the parties, and
    considering this sole assignment of error, we agree with appellant that the military
    judge committed error by finding appellant guilty of Specification 2 of Charge I,
    without modification, and we will take appropriate corrective action in our decretal
    paragraph.
    During the providence inquiry concerning Specification 2 of Charge I,
    appellant admitted stealing various personal items belonging to his fellow soldiers
    from their barracks rooms at Fort Riley. Appellant admitted the total value of all the
    items he stole, and which were identified in the specification, exceeded $500.00.
    The maximum punishment for larceny of personal property of another includes six
    months of confinement if the property is valued at less than $500.00, but includes
    five years of confinement if the property is valued at more than $500.00. Manual
    for Courts-Martial, United States (2012 ed.) [hereinafter MCM], Pt. IV, ¶
    46.e.(1)(b), 46.e.(1)(d)
    A single larceny occurs when items are taken at substantially the same time
    and place. United States v. Rupert, 
    25 M.J. 531
    , 532 (A.C.M.R. 1987); MCM, pt.
    IV, ¶ 46.c.(1)(h)(ii). The evidence was clear, as the government conceded at trial,
    the larcenies of the various items, charged together in this one specification, took
    place in different barracks rooms. As such, the larcenies occurred in different
    locations and the military judge correctly found that appellant’s larceny of property
    from each individual barracks room must be considered as a separate larceny
    offense.
    The military judge recognized there was nothing in the record to indicate the
    value of the property taken in any one of the separate larcenies, charged in
    Specification 2 of Charge I, exceeded $500.00. Based on this, he properly held the
    government had the discretion to charge these separate larcenies within one
    specification, but the value of the property stolen in these separate offenses could
    not be aggregated to exceed the $500.00 threshold necessary for a higher possible
    maximum punishment.
    The judge’s ruling prohibiting aggregation is supported by long established
    precedent from this court holding that "the larcenies of property from different
    locations on different dates are separate crimes and cannot be combined into one
    specification as a single larceny in order to aggregate the value of the property
    stolen to a larger sum and thereby raise the maximum imposable punishment."
    Rupert, 25 M.J. at 532. In addition, “for an accused to be convicted of larceny of
    property having a value of over [$500.00], the record must show either that one item
    2
    FULTON – ARMY 20120432
    of the property stolen has such a value or that several items taken at substantially the
    same time and place have such an aggregate value.” United States v. Christensen,
    
    45 M.J. 617
    , 619 (Army Ct. Crim. App. 1997) (quoting Rupert, 25 M.J. at 532); see
    also United States v. Harding, 61 M.J 526, 528 (Army Ct. Crim. App. 2005). 1
    After the military judge prohibited aggregation of the values of the separate
    larcenies, he then announced he would treat the separate larcenies alleged in the one
    specification as separate offenses for purposes of calculating a maximum
    punishment. He found Specification 2 of Charge I alleged seven separate larcenies
    of property with a value of less than $500.00. Based on this, he determined the
    maximum sentence to confinement for each separate larceny offense was six months.
    The military judge then calculated the maximum punishment for this one
    specification to include three years and six months of confinement. We find the
    military judge’s reasoning and calculation to be in error.
    When multiple separate larceny offenses are alleged in one specification, the
    maximum punishment is determined by treating this as a violation of the single,
    largest, larceny offense to which the accused has been found guilty within that
    specification. Rupert, 25 M.J. at 532. 2 In this case, the maximum punishment to
    which appellant was exposed, for the finding of guilty to Specification 2 of Charge
    I, was based on a single offense of larceny of some value less than $500.00. Thus,
    the maximum punishment under this specification should have included a maximum
    of six months of confinement, rather than three and one-half years.
    As a result of this error, the calculation by the military judge and the parties
    that appellant’s maximum punishment for all charges and specifications was twenty-
    1
    There is currently a split amongst the service courts of criminal appeals,
    acknowledged by the Navy and Marine Court of Criminal Appeals recently in United
    States v. Campbell, __ M.J. ___ (N.M. Ct. Crim. App. 30 May 2013), as to whether
    the value of property stolen in separate larcenies, alleged in the same specification,
    may be aggregated to achieve a higher possible maximum punishment. The Navy
    and Marine Court of Criminal Appeal’s opinion makes it clear that precedent of the
    Army Court of Criminal Appeals supports the rationale for our holding in this case.
    We also recognize this divergence between our precedent and that of our sister
    courts. No opinion of our higher courts contradicts precedent upon which we rely in
    this opinion.
    2
    This same reasoning does not apply to a single specification alleging multiple,
    separate offenses of making, drawing or uttering a check, draft, or order without
    sufficient funds under Article 123a, UCMJ. Our superior court has held that when
    the government includes several bad check offenses in one specification, each check
    offense for which there is a finding of guilty is used to calculate the maximum
    punishment under the specification. United States v. Mincey, 
    42 M.J. 376
     (C.A.A.F.
    1995). Our superior court has not held this principal to apply in larceny cases.
    3
    FULTON – ARMY 20120432
    three years and ten months of confinement was incorrect. The correct maximum
    punishment should have been twenty years and ten months of confinement.
    In determining the effect of the noted errors in both the findings and on the
    maximum punishment, we note that the scope of the larcenies appellant stands
    convicted of has not changed and was still properly before the military judge.
    CONCLUSION
    On consideration of the entire record, and appellant’s assignment of error, we
    amend and affirm only so much of the finding of guilty of Specification 2 of Charge
    I as finds that the appellant “on or about 11 February 2012, at or near Fort Riley,
    Kansas, steal bottles of alcohol, knives, an Xbox video game console, Xbox games,
    battery packs for an Xbox video game console, two iPod digital music players, a
    wireless mouse, an external hard drive, and a BB gun, of a value of less than
    $500.00, the property of unknown persons.” The remaining findings of guilty are
    AFFIRMED.
    Reassessing the sentence on the basis of the matters noted, the entire record,
    and in accordance with the principles of United States v. Sales, 
    22 M.J. 305
     (C.M.A.
    1986) and United States v. Moffeit, 
    63 M.J. 40
     (C.A.A.F. 2006), to include the
    factors identified by Judge Baker in his concurring opinion in Moffeit, the sentence
    as approved by the convening authority is AFFIRMED.
    FOR
    FORTHE
    THECOURT:
    COURT:
    MALCOLMH.
    MALCOLM      H.SQUIRES,
    SQUIRES,JR.
    JR.
    Clerkof
    Clerk  ofCourt
    Court
    4
    

Document Info

Docket Number: ARMY 20120432

Filed Date: 6/27/2013

Precedential Status: Non-Precedential

Modified Date: 4/17/2021