United States v. Hains

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.R. MCFARLANE, D.A. NORKIN
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DEANNA M. HAINS
INFORMATION SYSTEMS TECHNICIAN THIRD CLASS (E-4), U.S. NAVY
NMCCA 201300477
SPECIAL COURT-MARTIAL
Sentence Adjudged: 17 September 2013.
Military Judge: CDR Lewis T. Booker, Jr., JAGC, USN.
Convening Authority: Commanding Officer, Naval Base Kitsap,
Bremerton, WA.
Staff Judge Advocate's Recommendation: LT Ryan Aiken, JAGC,
USN.
For Appellant: CDR Sabatino F. Leo, JAGC, USN.
For Appellee: Mr. Brian K. Keller, Esq.
31 July 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 special court-martial
convicted the appellant, pursuant to her pleas, of one
specification of conspiracy, one specification of making a false
official statement, and four specifications of wrongful
appropriation, in violation of Articles 81, 107, and 121,
Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, and
921. The appellant was sentenced to confinement for three
months, a fine of $400.00, and a bad-conduct discharge. The
convening authority (CA) approved the adjudged confinement and
bad-conduct discharge, but suspended all confinement in excess
of 60 days. 1
The appellant’s case 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 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.
Wrongful Appropriation of Multiple Items
Although not raised as error by the appellant, we find that
the facts underlying Specifications 3, 4, 5, and 6 of Charge III
support only a single specification of wrongful appropriation.
While these specifications allege that the appellant wrongfully
appropriated P.R.’s property on various dates, the providence
inquiry and stipulation of fact make it clear that the appellant
wrongfully took each charged item of P.R.’s property from his
residence during a single visit on or about 3 July 2013. 2
The Manual for Courts-Martial specifically provides that
“[w]hen a larceny of several articles is committed at
substantially the same time and place, it is a single larceny .
. . .” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶
46c(1)(h)(ii); see also United States v. Harris, 53 M.J. 514,
1
The parties entered a pretrial agreement that would have also required the
CA to suspend the bad-conduct discharge. However, the appellant breached
this agreement and the CA subsequently withdrew. Thereafter, the parties
reached a post-trial agreement in which the appellant waived her right to a
RULE FOR COURTS-MARTIAL 1109, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.)
hearing in exchange for the CA’s agreement to disapprove the fine, suspend
all confinement in excess of 60 days, and refrain from referring additional
charges to trial.
2
The dates in these specifications appear tied to occasions when the
appellant later placed in item in “hock” at a local pawnshop. While the
dates might accurately reflect those transactions, we find that the taking
for purposes of Article 121, UCMJ, occurred when the appellant deprived the
owner, P.R., of his property on or about 3 July 2013.
2
522 (N.M.Ct.Crim.App. 2000), aff'd, 55 M.J. 433 (C.A.A.F. 2001);
United States v. Lepresti, 52 M.J. 644, 653, (N.M.Ct.Crim.App
1999). Additionally, this court has held that multiple,
contemporaneous wrongful appropriations are to be treated in the
same manner, notwithstanding the absence of any similar policy
guidance pertaining to wrongful appropriation in the Manual for
Courts-Martial. United States v. Benavides, No. 9901675, 2000
CCA LEXIS 252, unpublished op. (N.M.Ct.Crim.App. 12 Oct 2000).
Accordingly, we will provide relief, in the form of
consolidation, in our decretal paragraph.
Conclusion
Specifications 3, 4, 5, and 6 of Charge III are hereby
consolidated into a single Specification to read as follows:
Specification 3: In that Information Systems
Technician Third Class Deanna M. Hains, U.S. Navy,
Naval Base Kitsap, on active duty, did at or near
Silverdale, Washington, on or about 3 July 2013,
wrongfully appropriate a Samsung television, two Vizio
DVD players, a Vizio television, and a Hewlett Packard
printer, of a value of more than $500.00, the property
of Aviation Ordnanceman First Class [PR], U.S. Navy.
With this modification, we affirm the findings. 3 Based upon
our action on the findings, we have reassessed the sentence
under the principles contained in United States v. Moffeit, 63
M.J. 40 (C.A.A.F. 2006). We conclude that the adjudged sentence
for the remaining offenses would have been at least the same as
that adjudged by the military judge and approved by the CA.
Accordingly, we affirm the sentence as approved by the CA.
For the Court
R.H. TROIDL
Clerk of Court
3
We need not dismiss those specifications which are incorporated into
another specification. United States v. Sorrell, 23 M.J. 122, 122 n.1
(C.M.A. 1986).
3