United States v. Laing ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
M.D. MODZELEWSKI, R.Q. WARD, J.R. MCFARLANE
Appellate Military Judges
UNITED STATES OF AMERICA
v.
FOSTER S. LAING
LANCE CORPORAL (E-3), U.S. MARINE CORPS
NMCCA 201300395
GENERAL COURT-MARTIAL
Sentence Adjudged: 24 June 2013.
Military Judge: LtCol Elizabeth Harvey, USMC.
Convening Authority: Commander, 1st Marine Logistics Group,
MarForPac, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: Mr. Brian Keller, Esq.
16 January 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of attempted larceny, three specifications of
wrongful sale of military property, five specifications of
larceny, and one specification of receipt of stolen property, in
violation of Articles 80, 108, 121, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 880, 908, 921, and 934. The
military judge sentenced the appellant to confinement for six
years, reduction to pay grade E-1, a fine of $4,750.00, and a
dishonorable discharge. The convening authority approved the
sentence as adjudged, but suspended all confinement in excess of
twenty-two months pursuant to a pretrial agreement.
This record was submitted to this court without assignment
of error. Upon review, we find that corrective action is
necessary, which we will take in our decretal paragraph.
Following our corrective action, we conclude that the findings
and sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant remains. Arts. 59(a) and 66(c), UCMJ.
Larceny of Multiple Items
We find that the facts underlying Specifications 4 and 5 of
Charge III support only a single specification of larceny.
Specification 4 alleged a theft of climbing equipment, and
Specification 5 alleged a theft of a computer and four global
positioning system devices. The stipulation of fact and the
providence inquiry reveal that the appellant stole all of those
items from the same facility and on the same occasion.
It is well-established that, where a single act results in
the theft of several items of property, only one larceny is to
be charged. United States v. Harris, 53 M.J. 514, 522
(N.M.Ct.Crim.App. 2000), aff’d, 54 M.J. 433 (C.A.A.F. 2001).
See also, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV,
¶ 46c(1)(i)(ii) (“[w]hen a larceny of several articles is
committed at substantially the same time and place, it is a
single larceny . . . .”). Accordingly, we will merge
Specifications 4 and 5 of Charge III.
Sentence Reassessment
Having consolidated these two specifications under Charge
III, we conclude that this is a case in which it is appropriate
for us to reassess the sentence rather than remand for a new
sentencing hearing. United States v. Winckelmann, 73 M.J. 11,
2013 CAAF LEXIS 1435 at *3 (C.A.A.F. 2013). First, the penalty
landscape is not dramatically changed: following consolidation
of the two specifications, the maximum confinement drops from 78
years to 73. Second, the remaining offenses capture the
gravamen of the criminal conduct, and all aggravating evidence
remains admissible and properly considered. Further, the
appellant elected sentencing by a military judge and these
offenses are of a type well-within our experience as judges on
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this court, bolstering our confidence that we may reliably
determine what sentence would have been imposed at trial. Id.
at *13. Applying the analysis set forth in Winckelmann, 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), and carefully considering
the entire record, we are satisfied beyond a reasonable doubt
that the military judge would have adjudged a sentence no less
than that approved by the convening authority in this case.
Accordingly, no further action is deemed necessary.
Conclusion
Specification 4 of Charge III is amended by inserting the
following after the word “steal”: “a computer, four Garmin
Global Positioning System devices, and.” Specification 5 of
Charge III is dismissed. The findings of guilty as to
Specification 4 of Charge III as amended, the remaining guilty
findings, and the sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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