United States v. Private (E-2) EVAN M. EVERETT ( 2016 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private (E-2) EVAN M. EVERETT
United States Army, Appellant
ARMY 20140865
U.S. Army Intelligence Center of Excellence and Fort Huachuca
Timothy P. Hayes, Jr., Military Judge
Colonel Joseph A. Keeler, Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D.
Coleman, JA; Captain J. David Hammond, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Robyn M. Chatwood, JA (on brief).
28 April 2016
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of wrongful appropriation and one
specification of larceny in violation of Article 121, Uniform Code of Military
Justice, 10 U.S.C. § 921 (2012) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge and confinement for ten months. Pursuant to a
pretrial agreement, the convening authority approved the findings and only so much
of the sentence as provides for a bad-conduct discharge and confinement for seven
months.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error to this court that merits discussion and relief.
The military judge found appellant guilty of Specification 2 of The Charge,
larceny of funds with a value of more than $500, the property of Bank of America,
N.A. [hereinafter Bank of America], between on or about 27 June 2014 and on or
EVERETT—ARMY 20140865
about 8 July 2014. Consistent with the error assigned by appellant, our examination
of the record finds evidence to support the allegation that appellant stole funds from
Bank of America, but the value of the funds stolen during the transaction at issue
was less than $500. The government concedes this point and agrees with appellant
that Specification 2 of The Charge should be amended to reflect a value of less than
$500. We provide relief in our decretal paragraph.
CONCLUSION
Upon consideration of the entire record, the court affirms only so much of the
finding of guilty of Specification 2 of The Charge as finds that:
[Appellant], U.S. Army, did, at or near Fort Huachuca,
Arizona, between on or about 27 June 2014 and on or
about 8 July 2014, steal funds, of a value of less than
$500, the property of Bank of America, N.A.
The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), the sentence as approved by the convening authority 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.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
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