United States v. Private E2 DEREK L. THOMAS ( 2008 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and SULLIVAN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 DEREK L. THOMAS
United States Army, Appellant
ARMY 20070409
Headquarters, Fort Hood
Alan L. Cook, Military Judge
Major William J. Erle, Acting Staff Judge Advocate
For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel
Steven C. Henricks, JA; Major Teresa L. Raymond, JA; Major Leonard W.
Jones, JA (on brief).
For Appellee: Major Elizabeth G. Marotta, JA; Major Tami L. Dillahunt, JA;
Captain Philip M. Staten, JA (on brief).
30 April 2008
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SUMMARY DISPOSITION
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Per Curiam:
Upon review of the case before us under Article 66, Uniform Code of
Military Justice, we find Specifications 1 and 2 of Charge III, which
allege larceny of a laptop computer and a cell phone, respectively, from
the same victim at the same location and time, constitute an unreasonable
multiplication of charges. United States v. Gilchrist, 61 M.J. 785, 789
(Army Ct. Crim. App. 2005). Consistent with appellant’s pleas, the
military judge found appellant guilty of both specifications of the lesser
included offense of wrongful appropriation. We will merge the affected
specifications into a single specification of wrongful appropriation.
Specifications 1 and 2 of Charge III are merged into the Specification
of Charge III to read as follows:
In that Private (E-2) Derek L. Thomas, U.S. Army, did, at
or near Fort Hood, TX, on or about 2 February 2007,
wrongfully appropriate a Hewlett Packard laptop
THOMAS – ARMY 20070409
computer and a Motorola Razr cell phone, of a combined
value of over $500.00, the property of PV2 J.F.
Specification 2 of Charge III is dismissed. The finding of guilty of
the merged Specification of Charge III, as amended, is affirmed.
The remaining findings are affirmed. Reassessing the sentence on the
basis of the error noted, the entire record, and applying the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Moffeit, including Judge Baker’s concurring opinion, 63 M.J. 40, 43
(C.A.A.F. 2006), the court affirms the sentence.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court