United States v. Endsley , 2015 CAAF LEXIS 52 ( 2015 )

CCA 20130052. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F.2010), we note that the proper victims in the Specification of the Charge were the merchants who provided the goods upon false pretenses, not the debit cardholder/Soldier. However, the charge sheet, stipulation of fact, and the providence inquiry focused on the Soldier as the victim, and there was no discussion on the record’ of whether the merchants were victimized. See Lubasky, 68 M.J. at 263. Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO LARCENY OF THE PROPERTY OF SPECIALIST DT WHEN THE ALLEGED LARCENIES INVOLVED THE UNAUTHORIZED USE OF SPECIALIST DT’S DEBIT CARD NUMBER TO OBTAIN THE RETAIL GOODS OF A MERCHANT BY FALSE PRETENSE.

The decision of the United States Army Court of Criminal Appeals is reversed as to the Charge and its Specification and the sentence. The findings of guilty as to the Charge and its Specification are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss the Charge and its specification and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and specification and the sentence.