UNITED STATES, Appellee
v.
Todd M. DAVIS, Senior Airman
U.S. Air Force, Appellant
No. 01-0237
Crim. App. No. 33265
________________________________________________________________
United States Court of Appeals for the Armed Forces
Argued October 3, 2001
Decided February 14, 2002
BAKER, J., delivered the opinion of the Court, in which CRAWFORD,
C.J., GIERKE and EFFRON, JJ., and SULLIVAN, S.J., joined. SULLIVAN,
S.J., filed a concurring opinion.
Counsel
For Appellant: Captain Jefferson B. Brown (argued); Colonel
James R. Wise, Lieutenant Colonel Timothy W. Murphy, and
Captain Kyle R. Jacobson (on brief); Lieutenant Colonel
Beverly B. Knott.
For Appellee: Major Linette Romer (argued); Colonel Anthony P.
Dattilo and Major Lance B. Sigmon (on brief).
Military Judge: Michael J. Rollinger
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Davis, No.01-0237/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed of
officer and enlisted members. Pursuant to mixed pleas, he was
found guilty of making a false official statement, wrongful sale
of military property, larceny, and housebreaking, in violation
of Articles 107, 108, 121, and 130, Uniform Code of Military
Justice (UCMJ), 10 USC §§ 907, 908, 921, and 930, respectively.
The sentence to a bad-conduct discharge, confinement for one
year, total forfeitures, and reduction to pay grade E-1 was
approved by the convening authority as adjudged, and the Court
of Criminal Appeals affirmed. 54 MJ 622 (2000)
This Court granted review on the following issue:
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT
APPELLANT’S CONVICTION FOR HOUSEBREAKING WHERE
APPELLANT’S AUTHORITY TO ENTER THE WAREHOUSE SPECIFIED
IN THE CHARGE WAS DEMONSTRATED BY THE ISSUANCE OF A
KEY TO APPELLANT AND WHERE APPELLANT WAS NEVER
INSTRUCTED THAT THE TIME AND MANNER OF HIS ACCESS WITH
THAT KEY WAS LIMITED.
For the reasons set forth, we conclude the evidence was
sufficient and affirm.
BACKGROUND
The court below found the following facts relevant to the
granted issue:
The appellant worked in the force management unit
of the Services Squadron at Vandenberg Air Force Base,
California. Force management stored mobility
equipment in a warehouse that was controlled by
lodging, another unit within the Services Squadron.
2
United States v. Davis, No.01-0237/AF
Because Force Management was unable to access the
equipment during a night-time exercise, the lodging
manager, Mr. Infante, was directed to give them a key
to the warehouse to enable 24 hour access to their
equipment. Mr. Infante signed a key out to the
appellant.
Force management kept its key in an unlocked key
box inside the office. Every member of the unit had
free access to the office. Additionally, an office
key was secreted above a light outside the office door
in case someone forgot his or her key. The appellant
took the warehouse key and, at approximately 2130 on 6
September 1997, entered the warehouse and loaded
refrigerators, microwave ovens, coffeemakers, and pot
and pan sets into his pick-up truck. He stored these
items in his garage until selling them at a local swap
meet.
54 MJ at 623-24.
DISCUSSION
Appellant’s claim that the evidence is insufficient as a
matter of law turns on whether his entry into the warehouse was
“unlawful.” Such claims require us to determine “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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Turner, 25 MJ 324 (CMA 1987). Furthermore, we will draw every
reasonable inference from the evidence of record in favor of the
prosecution. United States v. Rogers, 54 MJ 244, 246 (2000);
United States v. Blocker, 32 MJ 281, 284 (CMA 1991).
The offense of housebreaking requires proof that the
accused (1) unlawfully entered a building or structure; and (2)
3
United States v. Davis, No.01-0237/AF
entered with the concurrent intent to commit a crime within the
building or structure. Para. 56b, Part IV, Manual for Courts-
Marital, United States (2000 ed.).1 United States v. Williams, 4
USCMA 241, 15 CMR 241 (1954), remains our benchmark for analysis
of the lawfulness of the entry into a semiprivate structure,
which is the circumstance presented on appeal.2
This Court in Williams classified buildings or structures
into three groups: private, public, and semiprivate. Id. at
246, 15 CMR at 246. In that case, Williams entered an occupied
barracks during the night, where he committed larceny of the
occupants’ belongings while they slept. Since this Court
determined the barracks was a semiprivate structure, we sought
to determine whether or not the accused in entering such a
structure was “authorized to act as he did in the particular
case by those sometimes indistinct sources of power to grant the
indulgence.” Id. at 246-47, 15 CMR at 246-47. We concluded
that “the lawfulness of an entry for. . . [these] purposes
depends on authorization, negative or positive, express or
implied” and must be determined based on the circumstances in
1
All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
2
Appellant has not argued that the structure entered was either private or
public in nature.
4
United States v. Davis, No.01-0237/AF
each case. Id. at 247, 15 CMR at 247. We identified seven
factors relevant to this question:
(a) the nature and function of the building involved;
(b) the character, status, and duties of the entrant, and
even at times his identity;
(c) the conditions of the entry, including time, method,
ostensible purpose, and numerous other factors of
frequent relevance but generally insusceptible of
advance articulation;
(d) the presence or absence of a directive of whatever
nature seeking to limit or regulate free ingress;
(e) the presence or absence of an explicit invitation to
the visitor;
(f) the invitational authority of any purported host; and
(g) the presence or absence of a prior course of dealing,
if any, by the entrant with the structure or its
inmates, and its nature.
Id. We avoided any suggestion that the list was exhaustive and
indicated that “no one of. . .[these factors] will necessarily
control, or even maintain relevance, in all cases.” Id.
Both sides have invited our attention to state court
decisions that address the issue of the lawfulness of an entry,
usually in the context of a burglary.3 Appellant specifically
urges our consideration of State v. Feldt, 781 P.2d 255 (Mont.
3
The Government has cited Jackson v. State, 64 S.W. 864 (Tex. Crim. App.
1901)(where a servant enters the master’s house with a criminal intent, there
is unlawful entry when he enters an area not encompassed within his duties).
Conversely, appellant cites State v. Feldt, 781 P.2d 255 (Mont. 1989)(no
unlawful entry where defendant enters store with criminal intent but uses
keys given by store manager).
5
United States v. Davis, No.01-0237/AF
1989). There, a store manager allowed employees to enter the
store after business hours. The manager gave Feldt keys to the
store for “any proper purposes.” Id. at 256. Feldt
subsequently entered the store after hours and stole money from
the safe. Interpreting the state burglary statute, the state
Supreme Court noted that the statute defined unlawful entry as
an entry by one “not licensed, invited, or otherwise privileged
to do so.” Id. Since Feldt had been granted the keys and
allowed to enter after hours, the court held that his entry was
not trespassory. Id. at 257.
We recognize that state courts are free to analyze state
statutes based on specific statutory language, their
interpretation of the state legislature’s intent, and societal
interests in drafting the statute. However, here we are
concerned only with what kind of entry is proscribed under
Article 130.
Paragraph 56d of Part IV of the Manual lists unlawful entry
under Article 134, UCMJ, 10 USC § 934, as a lesser-included
offense of housebreaking.4 The explanation under the offense of
4
The elements of unlawful entry under Article 134 are:
(1) That the accused entered the real property of another or certain
personal property of another which amounts to a structure usually
used for habitation or storage;
(2) That such entry was unlawful; and
6
United States v. Davis, No.01-0237/AF
unlawful entry states: “An entry is ‘unlawful’ if made without
the consent of any person authorized to consent to entry or
without other lawful authority.” Para. 111c, Part IV, Manual,
supra. While the President could have chosen words such as
“invitation,” “license,” or “privilege,” he chose the term
“authority.” The term is one upon which the very nature of a
military organization is based. The term also carries with it
the notion that implicit in a grant of authority is the
understanding that it will be exercised for proper purposes.
Daily, military members are granted authority to use all
kinds of equipment and any number of types of weapons. Implicit
in such authority is the understanding that such equipment may
only be used for a proper purpose.5 A requirement that every
grant of authority expressly detail the lawful limits of the use
of that authority would work an undue burden and could
consequently debilitate the effectiveness of the fighting force.
(3) That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
Para. 111b, Part IV, Manual, supra.
5
In evaluating questions of command authority, we look to whether the purpose
behind the grant of authority was proper. See United States v. Surtasky, 16
USCMA 241, 243, 36 CMR 397, 399 (1966)(grant of authority by Secretary of the
Navy to convene special courts-martial was “designed to achieve a proper
purpose”). We think this a useful analogy in the present context. A purpose
might well be proper, albeit not necessarily official. For example, one
authorized general access who enters a warehouse after hours to retrieve
personal property left behind during duty hours might enter with a proper,
albeit not necessarily an official purpose.
7
United States v. Davis, No.01-0237/AF
Such an implication accords with common sense, especially when
the implied condition is simply one that requires the authority
granted be exercised for a proper purpose. We fully recognize
that one granting such authority is free to expressly broaden or
restrict the authority given. Likewise, the limits of such
authority may be implicitly affected by a course of accepted
conduct or other appropriate factors that reasonably lead one to
conclude that the grant of authority has been broadened.
ANALYSIS
Considering these principles, and considering the Williams
factors, the question in the instant case is whether there was
sufficient evidence of record for the members to find beyond a
reasonable doubt that appellant’s entry into the warehouse was
unlawful. There was evidence that the equipment in the
warehouse for which appellant’s section was responsible was
segregated from the lodging section’s equipment. While
appellant indeed had a key to the warehouse to gain access after
hours, his officer-in-charge, Second Lieutenant (2Lt) Borchers,
testified that there was no official need for appellant’s entry
at the time in question. He also testified that he never
authorized appellant to enter the warehouse for any purpose
other than official business, suggesting a usual course of
dealing with respect to access to the warehouse. Further, he
testified that his section did not have authority over any
8
United States v. Davis, No.01-0237/AF
portion of the warehouse other than that part containing his
section’s equipment. The record is unclear whether 2Lt Borchers
expressly conveyed to appellant that authority to enter was
limited to “official business.” However, under the facts of
this case, authority to access the key to enter carried with it
an implicit obligation to enter the warehouse for an official or
proper purpose and only to access the segregated area under
Force Management’s responsibility.6
Although not necessary to our decision, we note that the
record is devoid of any evidence offered by appellant to the
members that his understanding was to the contrary, nor is there
any evidence that he offered any ostensible purpose for his
entry into the warehouse, with or without reference to the
deferential standard of Jackson v. Virginia. Indeed, this
record supports a conclusion that appellant entered for a
purpose directly inconsistent with the very purpose of the
structure itself, i.e., safekeeping of the property contained
therein.
Finally, appellant reminds us that proof that he entered
with a criminal intent alone will not satisfy proof of the
unlawfulness of the entry. Since, in his case, the only
6
Therefore, we need not determine whether the elements of the offense would
have been met were appellant authorized general access to the warehouse in
terms of time and scope.
9
United States v. Davis, No.01-0237/AF
evidence the members could have considered on the unlawfulness
of the entry was his criminal intent to commit larceny,
appellant argues, the evidence is insufficient on this element.
In Williams, we did indeed hold that “an ‘unlawful entry’ is not
established through a showing of mere ingress with
contemporaneous criminal intent[.]” 4 USCMA at 246, 15 CMR at
246. However, we have never suggested that the factors
discussed in Williams render intent or purpose irrelevant. To
the contrary, the purpose for the entry, then as now, ostensible
or otherwise, remains a relevant factor in determining whether
the entry was lawful, i.e., whether the entry was consistent
with applicable authority or evidence of the first element of
housebreaking.
CONCLUSION
In sum, appellant argues that since he was authorized
access to the warehouse at any time, and since he was never
expressly instructed that this authority was limited to official
business or otherwise, no entry on his part could ever be
unlawful. As we have noted earlier, military life demands that
military officials be allowed to grant authority with the
implicit understanding that such authority will be exercised for
a proper purpose. Moreover, appellant’s reasoning is
inconsistent with the contextual analysis of Williams. Thus, we
reject his claim of insufficiency.
10
United States v. Davis, No.01-0237/AF
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
11
United States v Davis, No. 01-0237/AF
SULLIVAN, Senior Judge (concurring):
Article 130, Uniform Code of Military Justice, states:
§ 930. Art. 130. Housebreaking
Any 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-martial may direct.
(Emphasis added.) The unlawfulness of the entry is an element of
the offense to be determined by the factfinders based on the
evidence in each case. See United States v. Williams, 4 USCMA
241, 246-47, 15 CMR 241, 246-47 (1954); see generally United
States v. New, 55 MJ 95, 114 (2001) (Sullivan, J., concurring in
the result).
Military appellate courts have resolved legal sufficiency
challenges in cases similar to appellant’s. See United States v.
Yingst, 42 CMR 903 (ACMR 1970) (evidence sufficient where it
demonstrates no official duty to enter hangar after duty hours in
dead of night and after building vacated); cf. United States v.
Cox, 14 CMR 706 (AFBR 1954) (evidence insufficient where entry by
accused authorized by order to perform security check).
In my view, the scope of the authority to enter is critical.
Here, there was ample evidence presented that appellant was
authorized to enter the warehouse only to perform military duties
pertaining to Force Management. There also was ample evidence
that he did not enter the warehouse on the night in question to
perform those duties. Relying on the criteria delineated by this
United States v. Davis, 01-0237/AF
Court in Williams to show unlawfulness, I conclude this was
legally sufficient evidence to support a finding that appellant’s
entry was unlawful and sustain his conviction for violating
Article 130, UCMJ. See Jackson v. Virginia, 443 U.S. 307, 319
(1979).
2