United States v. Wilson , 2017 CAAF LEXIS 12 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Nathan C. WILSON, Specialist
United States Army, Appellant
No. 16-0267
Crim. App. No. 20140135
Argued October 26, 2016—Decided January 13, 2017
Military Judge: Charles A. Kuhfahl Jr.
For Appellant: Captain Matthew L. Jalandoni (argued);
Lieutenant Colonel Charles D. Lozano and Captain
Heather L. Tregle (on brief); Major Christopher D. Coleman
and Captain Amanda R. McNeill Williams.
For Appellee: Captain John Gardella (argued); Colonel Mark
H. Sydenham, Lieutenant Colonel A. G. Courie III, and Major
John K. Choike (on brief); Major Cormac M. Smith.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
OHLSON, and SPARKS, joined.
_______________
Judge RYAN delivered the opinion of the Court.
Consistent with Appellant’s pleas, Appellant was
convicted by a military judge sitting as a general court-
martial of two specifications of possessing a controlled
substance and one specification of larceny of military
property in violation of Articles 112a and 121, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 921
(2012). Appellant was also convicted, contrary to his
pleas, of one specification of housebreaking in violation of
Article 130, UCMJ, 10 U.S.C. § 930 (2012). He was sen-
tenced to a bad-conduct discharge, confinement for twen-
ty-one months, and reduction to the grade of E-1. The
convening authority approved the sentence as adjudged.
On appeal under Article 66, UCMJ, 10 U.S.C. § 866(2012), the United States Army Court of Criminal Ap-
United States v. Wilson No. 16-0267/AR
Opinion of the Court
peals (ACCA) modified the Specification of the Additional
Charge, affirmed the modified Additional Charge and its
Specification, and affirmed the remaining findings of
guilty and approved sentence. United States v. Wilson,
No. ARMY 2040135, 2015 CCA LEXIS 544, 2015 WL
7568203 (A. Ct. Crim. App. Nov. 18, 2015). We granted
Appellant’s petition to review the following issue person-
ally asserted by Appellant:
Whether the military judge erred in denying the de-
fense motion for appropriate relief under Rule for
Court[s]-Martial 917 where the military judge improp-
erly applied Article 130, UCMJ, housebreaking, to a
motor pool.
Housebreaking requires, inter alia, unlawful entry into a
building or structure. A motor pool without walls or a roof,
whether fenced or not, is obviously not a building. The deci-
sional issue, therefore, turns on whether a fenced motor pool
is a “structure” for the purposes of Article 130, UCMJ. We
hold that it is not.
I. FACTS
On October 6, 2013 at Fort Benning, Georgia, Appellant
and his friend, Private First Class (PFC) Rashid Bradley,
entered the 3rd Brigade Special Troops Battalion (3rd
BSTB), 3rd Armored Brigade Combat Team motor pool. Ap-
pellant and PFC Bradley climbed over the fence surrounding
the motor pool because the front gate was locked with a
chain. They entered with the intent to steal batteries from
the motor pool and sell them for money at a scrap yard.
The 3rd BSTB motor pool on Fort Benning is a concrete
lot completely surrounded by a fence. The motor pool is used
for the storage and maintenance of military property, includ-
ing vehicles. It contains several bays, which are covered
buildings with walls and roofs, and is used for the storage of
military property. The batteries that Appellant and PFC
Bradley stole were not in a bay, but rather were located on a
pallet outside a bay. Appellant did not enter the bay itself,
nor did he cut any locks, open any doors, or climb through
the windows of any building.
II. PROCEDURAL POSTURE
Article 130, UCMJ, provides that “[a]ny person subject to
this chapter who unlawfully enters the building or structure
of another with intent to commit a criminal offense therein
is guilty of housebreaking and shall be punished as a court-
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Opinion of the Court
martial may direct.” Article 130, UCMJ, 10 U.S.C. § 930(2012). According to the President’s explanation in the Man-
ual for Courts-Martial, “structure” refers only to those struc-
tures in the nature of a building or dwelling. Manual for
Courts-Martial, United States pt. IV, para. 56.c.(4) (2012 ed.)
(MCM).
At trial, Appellant made a motion for a finding of not
guilty under Rules for Courts-Martial (R.C.M.) 917. Appel-
lant argued that the 3rd BSTB motor pool did not qualify as
a structure under Article 130, UCMJ. Appellant maintained
that because the motor pool was not a structure, climbing
the fence into a motor pool was at most unlawful entry, but
could not be housebreaking. The military judge concluded
that a fenced motor pool was a structure for the purposes of
Article 130, UCMJ, and denied Appellant’s R.C.M. 917 mo-
tion. Appellant was subsequently found guilty of house-
breaking.
On appeal, Appellant again argued that housebreaking,
under Article 130, UCMJ, is not applicable to a fenced motor
pool, because it is not a structure. The CCA issued a sum-
mary disposition rejecting Appellant’s argument and affirm-
ing his conviction. Wilson, 2015 CCA LEXIS 544, at *1, *4–
5, 2015 WL 7568203, at *1,*2.
III. DISCUSSION
R.C.M. 917(a) provides that:
The military judge, on motion by the accused
or sua sponte, shall enter a finding of not guilty
of one or more offenses charged after the evi-
dence on either side is closed and before the
findings on the general issue of guilt are an-
nounced if the evidence is insufficient to sus-
tain a conviction of the offense affected.
We review questions of legal sufficiency de novo. United
States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011). When review-
ing for legal sufficiency, we consider “ ‘whether, after view-
ing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” Id. (quot-
ing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In this case legal sufficiency turns on the question
whether the motor pool at issue falls within the definition of
“structure” for purposes of Article 130, UCMJ. We review
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Opinion of the Court
questions of statutory construction de novo. United States v.
Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016). “[I]t is axiomatic
that in determining the scope of a statute, we look first to its
language.” United States v. Murphy, 74 M.J. 302, 305
(C.A.A.F. 2015) (alterations in original) (internal quotation
marks omitted) (quoting United States v. Kearns, 73 M.J.
177, 181 (C.A.A.F. 2014)). The President has the power to
prescribe regulations for trial procedures, including modes of
proof, for cases arising under the UCMJ. Article 36, UCMJ,
10 U.S.C. § 836 (2012). This power does not extend to Part
IV of the MCM, and we are not bound by the President’s in-
terpretation of the elements of substantive offenses. United
States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998) (citing
United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988)).
However, when the President’s narrowing construction of a
statute does not contradict the express language of a statute,
it is entitled to some deference, and we will not normally
disturb that construction. See Murphy, 74 M.J. at 310 (citing
Davis, 47 M.J. at 486–87); see also United States v. Mance,
26 M.J. 244, 252 (C.M.A.1988) (overruled on other grounds
by United States v. Payne, 73 M.J. 19, 25 (C.A.A.F. 2014))
(concluding that while the President’s explanations are “im-
portant, they are not binding on this Court in fulfilling our
responsibility to interpret the elements of substantive of-
fenses”).
Appellant contends that the military judge erred by con-
cluding the motor pool was a structure subject to house-
breaking. We agree. Both the commonsense meaning of
“structure” within a housebreaking offense and the limiting
language of the MCM leave us with no doubt that an open-
air fenced area like the 3rd BTSB motor pool does not fall
within the scope of Article 130, UCMJ, because it is not a
structure in the nature of a building or dwelling. See MCM
pt. IV, para. 56.c.(4).
The unabridged Webster’s Dictionary’s definition of
“structure” is not particularly helpful standing alone: “some-
thing constructed or built.” Webster’s Third New Interna-
tional Dictionary of the English Language, Unabridged 2267
(2002). This could include any number of “built” things, in-
cluding everything from a house to a LEGO Star Wars TIE
fighter ship.1 Black’s Law Dictionary’s definition might also
1LEGO is a line of plastic construction toys manufactured by
The Lego Group, a privately held company based in Denmark.
LEGO sells sets of interlocking plastic bricks that are combined to
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include such LEGO projects, but is rather more helpful. It
defines a “structure” as “[a]ny construction, production, or
piece of work artificially built up or composed of parts pur-
posefully joined together.” Black’s Law Dictionary 1650
(10th ed. 2014); see also United States v. Taylor, 30 C.M.R.
44, 45 (C.M.A. 1960) (considering a similar definition).
But additional context is needed to determine what kind
of “structure” Article 130, UCMJ, applies to. The President’s
explanation makes clear that Article 130, UCMJ, does not
concern anything and everything that is composed of parts
“purposefully joined together.” Black’s Law Dictionary, su-
pra at 1650. For if that were true it might well apply, de-
spite commonsense and the inclusion of the word “House” in
the statutory heading, to the LEGO project mentioned earli-
er. See Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R., 331
U.S. 519, 528–29 (1947) (concluding that the heading of a
statute cannot undo the plain meaning of a text, but can
shed light on ambiguity). After all, the LEGO bricks would
be “purposefully joined together.” The MCM is instructive in
this regard, as it provides the following clarification of the
terms “building” and “structure”:
“Building” includes a room, shop, store, office,
or apartment in a building. “Structure” refers
only to those structures which are in the na-
ture of a building or dwelling. Examples of the-
se structures are a stateroom, hold, or other
compartment of a vessel, an inhabitable trail-
er, an in-closed truck or freight car, a tent, and
a houseboat. It is not necessary that the build-
ing or structure be in use at the time of the en-
try.
MCM pt. IV, para. 56.c.(4) (emphasis added).
The President’s explanation provides a nonexclusive list
of examples of buildings and “structures which are in the
nature of a building or dwelling.” MCM pt. IV, para. 56.c.(4).
Under the canon of expressio unius est exclusio alterius, the
create a range of miniature constructions. LEGO frequently re-
leases such sets with licensed themes from the science-fantasy
franchise Star Wars. One example of such a product is a recrea-
tion of the TIE Fighter, a small Imperial fighter powered by twin
ion engines without life support or hyperdrive capabilities. See
LEGO Shop, TIE Fighter, https://shop.lego.com/en-US/TIE-
Fighter-75095 (last visited Jan. 10, 2017).
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enumerated list suggests that any structure “in the nature
of a building or dwelling” must fit within the sort of exam-
ples listed in the President’s explanation. See, e.g., United
States v. Cline, 29 M.J. 83, 86 (C.M.A. 1989); United States
v. Kick, 7 M.J. 82, 88–89 (C.M.A. 1979) (Perry, J., dissent-
ing). The enumerated areas are all enclosed spaces that
serve the same purpose as a building or dwelling, even if
some are moveable or temporary rather than fixed and per-
manent. Moreover, the unabridged Webster’s Dictionary de-
fines a building as:
a constructed edifice designed to stand more or
less permanently, covering a space of land,
usually covered by a roof and more or less
completely enclosed by walls, and serving as a
dwelling, storehouse, factory, shelter for ani-
mals, or other useful structure—distinguished
from structures not designed for occupancy (as
fences or monuments) and from structures not
intended for use in one place (as boats or trail-
ers) even though subject to occupancy.
Webster’s Third Unabridged Dictionary, supra at 292. A
dwelling is “a building or construction used for residence.”
Id. at 706.
Given the above, we are satisfied that the meaning of a
“structure” for the purposes of Article 130, UCMJ, is a more
or less permanent constructed edifice, built up of parts pur-
posefully joined together, more or less completely enclosed
by walls and covering a space of land, or a building or con-
struction intended to be or used for residence. The 3rd BSTB
motor pool at issue here does not fit within this description,
even if the bays within it would. It is a concrete pad sur-
rounded by a fence. The fences are not joined together such
that they resemble the “enclosure” of a building, nor are
they joined by a roof. Cf. United States v. Wickersham, 14
M.J. 404, 408 (C.M.A. 1983) (Everett, C.J., dissenting) (“My
concern is that, once we go beyond a ‘building or structure’
as the object of the unlawful entry . . . there is no logical
stopping point. . . . [P]resumably the presence of a fence is
not the litmus test.”). Neither are they a “permanent struc-
ture,” as the fences can be easily moved or removed, unlike a
motor pool bay. Nor is there any evidence in the record that
the motor pool was either intended or suited to be a locale or
venue where persons would take up residence. United States
v. Hall, 12 C.M.A. 374, 375, 30 C.M.R. 374, 375 (1961) (Fer-
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guson, J., concurring in the result) (“In order to [be a struc-
ture in the nature of a building or dwelling], it is obvious
that a railroad car must be performing the function of stor-
age or be utilized as a living space when the breaking and
entering occurs.”). The mere presence of a fence cannot
transform an outdoor area into a structure in the nature of
either a building or a dwelling.
IV. JUDGMENT
We hold that the 3rd BSTB motor pool is not a “struc-
ture” or a “dwelling” as contemplated by Article 130, UCMJ,
because it is not an enclosed space in the same way that a
building is and is not a place where persons would take up
residence. Wickersham is inapposite because it dealt with
unlawful entry under Article 134, UCMJ, 10 U.S.C. § 934(2012), rather than housebreaking under Article 130, UCMJ.
14 M.J. at 404. To the extent that Wickersham is incon-
sistent with this holding, it is overruled.
The military judge erred in failing to grant Appellant’s
R.C.M. 917 motion, as Appellant’s conviction is legally insuf-
ficient. No rational trier of fact could have found, beyond a
reasonable doubt, that Appellant was guilty of housebreak-
ing for entering the motor pool because the motor pool is not
a “building or structure” as contemplated by Article 130,
UCMJ. Accordingly, the decision of the United States Army
Court of Criminal Appeals is reversed. Charge I and its
Specification are dismissed. The record of trial is returned to
the Judge Advocate General of the Army for remand to that
court to determine whether a reassessment of the sentence
or a sentence rehearing is appropriate.2
2 In this context, we note that the housebreaking charge car-
ried a maximum punishment of a dishonorable discharge, forfei-
ture of all pay and allowances, and five years’ confinement. MCM
pt. IV, para. 56.e.
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