UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist DANIELLE R. JOHNSON
United States Army, Appellant
ARMY 20111159
Headquarters, U.S. Army Garrison, Fort Belvoir
Denise R. Lind, Military Judge
Colonel Edward K. Lawson IV, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Daniel H. Karna, JA (on brief).
27 February 2013
-------------------------------------
SUMMARY DISPOSITION
-------------------------------------
Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to her plea, of larceny in violation of Article 121 of the Uniform Code of
Military Justice, 10 U.S.C. § 921 (2006) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a bad-conduct discharge, confinement
for five months, and reduction to the grade of E-1.
LAW AND DISCUSSION
This case is before us for review under Article 66, UCMJ. In her sole
assignment of error, * appellant alleges the military judge erred by accepting
appellant’s plea of guilty to larceny of a value of more than $500.00 because the
providence inquiry failed to establish appellant stole over $500.00 in currency at
*
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally raises one assignment of error which does not merit discussion or relief.
JOHNSON— ARMY 20111159
substantially the same time and place. Upon our review of the record, we agree with
appellant.
This court has long held that “the record must show either that one item of the
property stolen has [a value of $500.00] or that several items taken at substantially
the same time and place have such an aggregate value” for an accused to be
convicted of the greater offense and subjected to a maximum punishment that
includes five years of confinement. United States v. Harding, 61 M.J. 526, 528
(Army Ct. Crim. App. 2005)(citing United States v. Christensen, 45 M.J. 617, 619
(Army Ct. Crim. App. 1997)(quoting United States v. Rupert, 25 M.J. 531, 532
(A.C.M.R. 1987)).
In this case, neither the providence inquiry nor the stipulation of fact
established appellant stole more than $500.00 at substantially the same time and
place. Rather, the military judge elicited testimony establishing appellant stole
money, over a twenty-one month period, for a combined total of over $20,000.00.
Because appellant did not admit to stealing over $500.00 on any one occasion or at
substantially the same time and place, the military judge failed to elicit the factual
predicate necessary to find appellant guilty of the offense of larceny of a value
greater than $500.00. Accordingly, we will affirm only so much of the finding of
guilty as provides for a larceny of a value less than $500.00.
In determining the effect on appellant’s sentence, we are confident that
“absent any error, the sentence adjudged would have been of at least a certain
severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). In this case, the
maximum punishment has been reduced from a dishonorable discharge and five
years of confinement to a bad-conduct discharge and six months of confinement.
However, all of the relevant evidence, to include the total value of the money stolen
over time, was still properly before the military judge. Furthermore, this court is
experienced and familiar with cases involving the offense of which appellant has
been convicted. We are therefore confident, in light of the aggravating nature of the
larceny, a sentence of at least a bad-conduct discharge, confinement for four months,
and reduction to the grade of E-1 would have been adjudged.
CONCLUSION
The court amends and affirms only so much of the finding of guilty of Charge
II and its Specification as finds that the appellant did, at or near Fort Belvoir,
Virginia, on divers occasions between on or about 1 October 2009 and on or about
30 June 2011, steal currency of a value less than $500.00, with a total value over
$20,000.00, the property of the United States Government. Those matters submitted
by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are
without merit. Reassessing the sentence on the basis of the modified findings, the
entire record, and in accordance with the principles of United States v. Sales, 22
2
JOHNSON— ARMY 20111159
M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006),
to include the factors identified by Judge Baker in his concurring opinion, only so
much of the sentence as provides for a bad-conduct discharge, confinement for four
months, and reduction to the grade of E-1 is AFFIRMED. All rights, privileges, and
property, of which appellant was deprived by virtue of that portion of his sentence
being set aside by this decision, are hereby ordered restored. See UCMJ arts. 58(b)
and 75(a).
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
3