UNITED STATES, Appellee
v.
Candice N. CIMBALL SHARPTON, Senior Airman
U.S. Air Force, Appellant
No. 14-0158
Crim. App. No. 38027
United States Court of Appeals for the Armed Forces
Argued April 29, 2014
Decided June 13, 2014
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Captain Nicholas D. Carter (argued); Captain
Isaac C. Kennen.
For Appellee: Lieutenant Colonel C. Taylor Smith (argued);
Colonel Don M. Christensen (on brief); Gerald R. Bruce, Esq.
Military Judge: W. Thomas Cumbie
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cimball Sharpton, No. 14-0158/AF
Chief Judge BAKER delivered the opinion of the Court.
Appellant asserts that the United States Air Force Court of
Criminal Appeals (CCA) abused its discretion in finding legally
sufficient evidence to support her conviction for larceny from
the Air Force. Appellant argues that the victim in the case of
credit card larceny is necessarily the bank issuing the card or
the merchants selling the goods purchased. We disagree. In
this case, as in United States v. Lubasky, the victim of the
larceny is the person or entity suffering the financial loss or
deprived of the use or benefit of the property at issue. 68
M.J. 260, 263-64 (C.A.A.F. 2010).
FACTS
In April 2010, the Air Force issued a General Purchase Card
(GPC) to Senior Airman Candace N. Cimball Sharpton, enabling her
to purchase medical supplies for the Air Force hospital at
Keesler Air Force Base in Mississippi. The CCA found that the
GPC was established through a government contract with U.S.
Bank, which issued the cards to authorized cardholders who were
only allowed to use them for government purchases. United
States v. Cimball Sharpton, 72 M.J. 777, 781 (A.F. Ct. Crim.
App. 2013). After GPC charges were reviewed by an Air Force
approving official, the Air Force would pay them off using
Department of Defense funds appropriated for Air Force spending.
The actual payments were made by the Defense Finance Accounting
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Service (DFAS) with money from an account allotted to the U.S.
Air Force.
In July 2010, an approving official noticed some suspicious
charges on Appellant’s account from stores including the Army
and Air Force Exchange Service (AAFES), Walgreens, and Walmart.
After spotting such charges for several consecutive months, in
September 2010 the official reported them to her superior. A
subsequent investigation revealed Appellant had purchased
approximately $20,000 worth of personal goods using her GPC at
AAFES, Walgreens, and Walmart stores. Cimball Sharpton, 72 M.J.
at 779. Air Force investigators collected surveillance videos
and store receipts confirming Appellant’s unauthorized
purchases. DFAS subsequently paid U.S. Bank for all the
unauthorized charges made by Appellant.
Appellant was charged with, among other things, one
specification of larceny in violation of Article 121, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 921 (2012). The
larceny specification stated:
In that SENIOR AIRMAN CANDICE N. CIMBALL SHARPTON, 81st
Medical Support Squadron, United States Air Force,
Keesler Air Force Base, Mississippi, did, at or near the
state of Mississippi, on divers occasions, between on or
about 1 June 2010 and on or about 30 September 2010,
steal money, military property, of a value greater than
$500.00, the property of the United States Air Force.
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Appellant was tried by a military judge alone. Though she
pled not guilty, Appellant did not dispute any elements of the
larceny charge. Appellant stipulated to the existence of video
surveillance of Appellant making the alleged transactions. She
also stipulated to the fact that DFAS paid U.S. Bank for the
unauthorized charges:
MJ: [D]efense counsel, you’re willing to stipulate that
the charges that the accused made on her government
purchase card to Walgreens in the amount of approximately
2,400 dollars, and to AAFES in the amount of 18,333
dollars and 78 cents, that those charges were actually
paid for by the Defense Accounting and Finance Service
[sic]?
[DC]: Yes, your honor.
Appellant was convicted of one specification of larceny in
violation of Article 121, UCMJ; one specification of using
oxycodone in violation of Article 112a, UCMJ; one specification
of using cocaine in violation of Article 112a, UCMJ; and one
specification of fraudulent enlistment in violation of Article
83, UCMJ.1 She was sentenced to a bad-conduct discharge, twelve
months of confinement, reduction to E-1, and a $20,000 fine,
with six months of additional confinement if the fine was not
paid. The convening authority approved the sentence except for
the six months contingent confinement. Cimball Sharpton, 72
M.J. at 779.
1
Appellant was found not guilty on a second oxycodone charge.
The military judge removed the “military property” provision
from the larceny specification.
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Before the CCA, Appellant argued that the guilty finding on
the larceny specification was legally and factually insufficient
because the wrong victim was named in the charge. Id. The CCA
rejected this argument, stating that larceny was properly
charged with the Air Force as victim because:
The appellant’s misconduct could not have been charged
as a larceny from the merchants offering the goods,
because those merchants made a sale for which they
were compensated, and therefore they did not lose
anything of value. Similarly, the appellant’s
misconduct could not have been charged as a larceny
against US Bank, because US Bank was wholly repaid for
the appellant’s purchases, just as it would be for
authorized purchases. The only victim in this case
was the United States Air Force, whose funds were
obligated by the appellant’s unauthorized, repeated
purchases for her personal use.
Id. at 781. The CCA affirmed the findings and sentence. Id. at
786.
Appellant then appealed to this Court, which granted
hearing on the following issue:
WHETHER THE AIR FORCE COURT ABUSED ITS DISCRETION IN
FINDING THE EVIDENCE LEGALLY SUFFICIENT TO SUPPORT A
CONVICTION FOR LARCENY FROM THE AIR FORCE.
DISCUSSION
Questions of law, including questions of legal sufficiency,
are reviewed by this Court de novo. United States v. Kearns, 73
M.J. 177, 180 (C.A.A.F. 2014). This Court has adopted the
Supreme Court’s standard for legal sufficiency, namely, that
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“‘the relevant question’” an appellate court must answer is
“‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Oliver, 70 M.J. 64, 68
(C.A.A.F. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
The elements of the crime of larceny are:
(a) That the accused wrongfully took, obtained, or
withheld certain property from the possession of
the owner or of any other person;
(b) That the property belonged to a certain person;
(c) That the property was of a certain value or of
some value; and
(d) That the taking, obtaining, or withholding by the
accused was with the intent permanently to
deprive or defraud another person of the use and
benefit of the property or permanently to
appropriate the property for the use of the
accused or for any person other than the owner.
Manual for Courts-Martial, United States pt. IV, para. 46.b.
(2012 ed.) (MCM). The term larceny “encompasses and
consolidates what in the past were separate crimes, i.e.,
larceny, larceny by trick, embezzlement, and obtaining property
by false pretenses.” Lubasky, 68 M.J. at 263. “Any of the
various types of larceny under Article 121 may be charged and
proved under a specification alleging that the accused ‘did
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steal’ the property in question.” MCM pt. IV, para.
46.c.(1)(a).
A 2002 amendment to the MCM specifically addresses
identifying the victim in a larceny charged under Article 121,
UCMJ, and committed through credit, debit, and electronic
transactions: “Wrongfully engaging in a credit, debit, or
electronic transaction to obtain goods or money is an obtaining-
type larceny by false pretense. Such use to obtain goods is
usually a larceny of those goods from the merchant offering
them.” MCM pt. IV, para. 46.c.(1)(h)(vi) (emphasis added). The
Drafters’ Analysis states that the amendment was included to
“provide guidance on how unauthorized credit, debit, or
electronic transactions should usually be charged.” MCM
Analysis of the Punitive Articles app. 23 at A23-17 (emphasis
added). However, the analysis leaves open the possibility that
“[a]lternative charging theories are also available.” Id.
We view this as a case where such an alternative charging
theory should apply, given that it was neither the merchants nor
U.S. Bank but the Air Force who suffered the financial loss
resulting from Appellant’s larceny. Based on the facts
presented, the Air Force agreed to pay U.S. Bank for all GPC
purchases.2 Cimball Sharpton, 72 M.J. at 781. It is clear -- in
2
See also Air Force Instruction 64-117, which states that:
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fact stipulated to by Appellant -- that DFAS paid U.S. Bank the
full amount owed for the unauthorized charges. In view of the
elements of Article 121, UCMJ, Appellant (a) wrongfully obtained
property (namely the Air Force’s appropriated money) that (b)
belonged to a certain person (the Air Force) and (c) was of a
certain value. By the time we reach element (d) the accused has
taken, obtained, or withheld that money with the intent of
wrongfully and permanently depriving the Air Force of its use.
No other party suffered financially as a result of Appellant’s
actions.
Both the Government and the CCA attempt to distinguish this
case from our decision in Lubasky. We find no need to do so.
In Lubasky, as in this case, the victim of the credit card
larceny and the victim of the fraudulent ATM and debit
transactions were those who suffered the financial loss. 68
Charges on the cardholder statement that involve
misuse or abuse by the cardholder are not disputable
with the Bank. If the transaction was processed in
accordance with the controls established (i.e., within
the purchase limits, not from a vendor with a blocked
Merchant Category Code) then the Bank has fulfilled
its responsibilities under the contract and the
government is obligated to make payment for the
transaction. The government must seek restitution
from the employee for any losses as a result of their
improper transaction.
Dep’t of the Air Force, Instr. 64-117, Air Force Government-Wide
Purchase Card (GPC) Program para. 3.8.5.2 (Sept. 20, 2011).
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M.J. at 263-64. Lubasky is fully consistent with our decision
today.
The Air Force suffered the financial loss in this case.
Therefore, the Government was correct in charging larceny from
the Air Force. Since the Air Force was a proper victim, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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