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United States v. Private E1 JACOB M. LAFATA ( 2012 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    KERN, ALDYKIEWICZ, and MARTIN
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private E1 JACOB M. LAFATA
    United States Army, Appellant
    ARMY 20110124
    Headquarters, 2nd Infantry Division
    T. Mark Kulish, Military Judge
    Colonel Jeffery D. Pederson, Staff Judge Advocate
    For Appellant: Colonel Patricia A. Ham, JA; Major Richard E. Gorini, JA; Captain
    A. Jason Nef, JA (on brief).
    For Appellee: Major Katherine S. Gowel, JA; Lieutenant Colonel John Lynch, JA
    (on brief).
    15 November 2012
    ---------------------------------
    SUMMARY DISPOSITION
    ---------------------------------
    Per Curiam:
    A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of conspiracy to commit robbery, disobeying a superior
    commissioned officer (three specifications), violating a lawful general order (two
    specifications), flight from apprehension, resisting apprehension, robbery, and drunk
    and disorderly conduct, in violation of Articles 81, 90, 92, 95, 122 and 134, Uniform
    Code of Military Justice, 
    10 U.S.C. §§ 881
    , 890, 892, 895, 922, 934 (2006). The
    military judge sentenced appellant to confinement for seven months and a bad-
    conduct discharge. The convening authority approved only so much of the sentence
    as provides for confinement for five months and a bad-conduct discharge.
    On appeal, appellant raised a single assignment of error concerning the
    military judge’s acceptance of his guilty plea to Charge I and its Specification
    (conspiracy to commit robbery) without questioning appellant about the defense of
    voluntary intoxication. This assignment of error warrants discussion but no relief.
    LAFATA—ARMY 20110124
    Although there is evidence in the record that appellant was intoxicated at the
    time he and his co-accused conspired to rob and then robbed another soldier,
    evidence of mere intoxication alone is not enough to raise an issue of voluntary
    intoxication. United States v. Peterson, 
    47 M.J. 231
    , 233–34 (C.A.A.F. 1997). The
    issue of voluntary intoxication as a defense to specific intent crimes is not triggered
    unless the evidence indicates that the level of intoxication was of such a severity
    that it rendered appellant incapable of forming the necessary intent for those crimes.
    Id at 234. In this case, the evidence in the record fails to establish that appellant
    was so intoxicated that he was incapable of forming the specific intent associated
    with robbery and conspiracy to commit robbery. *
    Both the stipulation of fact and appellant’s statements during the providence
    inquiry indicate appellant, although drinking before the incident, clearly
    remembered agreeing to a plan to rob an individual and taking part in the robbery by
    striking the victim in the stomach before another co-conspirator took the victim’s
    wallet. The following exchange with the military judge illustrates appellant’s
    awareness of the conspiracy and robbery to which he was a party:
    ACC: . . . In Tokori we went to Joy Club and in that club we
    drank more and we brought up the idea of robbing an individual
    we see, the first individual we see, and we left the club, we seen
    someone, and we initiated.
    MJ: Okay, and when you say “we” you are referring to who?
    ACC: Private [ME], [JD], and me, and [Private RSR].
    MJ: Okay, and was it in the bar in Tokori, I guess it would be the
    Club Joy bar, that you reached this agreement or was it as you
    were leaving?
    ACC: In the club, sir.
    MJ: Okay. At the time, what did you understand that to mean,
    robbing the first individual you saw?
    ACC: If one of us were to attack or go up to an individual and use
    force then I would go up or join in.
    ....
    *
    Although not raised in his assignment of error, our analysis applies equally to the
    robbery charge of which appellant was convicted because it too is a specific intent
    crime. United States v. Thomson, 
    3 M.J. 271
    , 273 (C.M.A. 1977).
    2
    LAFATA—ARMY 20110124
    MJ: Okay, so at the time you understood it would not only be
    attacking somebody physically but taking money from them?
    ACC: Yes, sir.
    MJ: . . . Okay, so you all talked and had this agreement and then
    what happened after that?
    ACC: We left the club, seen—we see Sergeant [PK], the victim,
    walking down the side street, and Private [JD] approaches, asks
    him for his cell phone to use to call, and when he gets about three
    or four feet from him, Sergeant [PK] takes out his phone and
    Private [JD] strikes him in the face. And I proceeded with
    [Private RSR] and [Private ME] to assist him
    MJ: Okay, and when you say you “proceed[ed] to assist him”
    what do you mean by that?
    ACC: Rob—just rob and assault.
    MJ: Okay, well after [Private JD] struck Sergeant [PK] what
    exactly did you do?
    ACC: I ran up and I seen him getting taken to the ground. I strike
    him once in the stomach area and from there I step back and I see
    others kicking him and then after that we just left.
    From this clear recollection it is obvious that the appellant “knew what he was
    doing, and intended to do what he did.” United States v. Box, 
    28 M.J. 584
    , 585
    (A.C.M.R. 1989). Moreover, appellant’s additional recollection of his subsequent
    flight from military police officers (MPs) after the robbery bolsters the fact he was
    aware of what he was doing:
    ACC: I—when I seen the MPs coming I ran into the woods. I fell
    into a small ditch and stayed there. I heard them calling out
    telling that they were MPs and I refused to get up. And I was
    finally found. And upon being found I still kept yelling, saying
    stuff, kept wal—I walked off without stopping, they told me to
    stop, stay were I was, but I kept going anyhow. . . .
    ....
    MJ: Did you have any reason to think that the [MP] patrol vehicle
    was there because of Sergeant [PK]? . . .
    3
    LAFATA—ARMY 20110124
    ACC: Yes, sir.
    MJ: Why?
    ACC: Because we just left the area where the incident happened
    with Sergeant [PK].
    Therefore, there is not a substantial basis in law or fact to question the providence of
    appellant’s plea. See United States v. Inabinette, 
    66 M.J. 320
     (C.A.A.F. 2008).
    On consideration of the entire record, to include the issue raised by appellant,
    we are satisfied the findings are correct in law and fact and that the sentence is
    appropriate. Accordingly, the findings of guilty and the sentence are AFFIRMED.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    Clerk of Court
    4
    

Document Info

Docket Number: ARMY 20110124

Filed Date: 11/15/2012

Precedential Status: Non-Precedential

Modified Date: 1/9/2015