United States v. Davis
56 M.J. 299
C.A.A.F.
2002
Check Treatment
Docket

*1 STATES, Appellee, UNITED Airman, DAVIS,

Todd M. Senior Force, Appellant. Air

U.S.

No. 01-0237.

Crim.App. No. 33265.

U.S. Court of

the Armed Forces.

Argued 2001. Oct.

Decided Feb.

BAKER, J., opinion delivered the Court, CRAWFORD, C.J., in which EFFRON, JJ., GIERKE and and SULLI- VAN, S.J., S.J., joined. SULLIVAN, filed a concurring opinion. Appellant: Captain B. For Jefferson Wise, (argued);

Brown Colonel James R. Timothy Murphy, Lieutenant Colonel W. (on brief); Kyle Captain R. Jacobson Beverly Lieutenant Colonel B. Knott. (ar- Major Appellee: For Linette Romer gued); Anthony Colonel P. Dattilo and Ma- brief). (on jor Sigmon B. Lance *2 300

Judge opinion equipment. In- BAKER delivered the hour access to their Mr. key Court. signed appellant. fante a out to the Appellant general was tried a court- management kept key its in an Force composed martial of officer and enlisted key Every unlocked box inside the office. pleas, members. Pursuant he mixed was member of the unit had free access to the guilty making found a false official state- Additionally, key office. an office was se- ment, wrongful military property, sale of lar- light creted a the office door above outside ceny, housebreaking, in and violation of Arti- forgot key. in case someone his or her 107, 108, 121, 130, cles and Uniform Code and, key took the warehouse (UCMJ), 907, Military §§ Justice 10 USC approximately September at 2130 on 6 908, 921, 930, respectively. and The sen- 1997, entered the warehouse and loaded discharge, tence to a bad-conduct confine- ovens, refrigerators, microwave eoffeemak- forfeitures, year, ment for one total and re- ers, pot pan pick-up and and sets into his pay grade approved by E-l duction to garage truck. He stored these items in his convening authority adjudged, as and the selling swap until them at a local meet. Court of Criminal affirmed. 54 MJ at 54 MJ 623-24. (2000) 622 granted following This on the Court review DISCUSSION

issue: WHETHER THE LE- EVIDENCE IS in- Appellant’s claim that the evidence is GALLY SUFFICIENT TO SUPPORT a matter of wheth- sufficient as law turns on FOR APPELLANT’S CONVICTION er into the was “unlaw- warehouse HOUSEBREAKING WHERE APPEL- require ful.” Such claims us to determine ENTER THE LANT’S AUTHORITY TO “whether, viewing the evidence in the IN THE WAREHOUSE SPECIFIED light prosecution, any most to the favorable BY CHARGE WAS DEMONSTRATED rational trier of fact could have found THE A KEY AP- ISSUANCE OF TO beyond crime essential elements of the PELLANT AND APPELLANT WHERE Virginia, reasonable doubt.” v. 443 Jackson THAT WAS NEVER INSTRUCTED 2781, U.S. 99 S.Ct. 61 L.Ed.2d 560 THE TIME AND MANNER OF HIS AC- Turner, (1979); United States 25 MJ CESS THAT KEY LIMIT- WITH WAS (CMA 1987). Furthermore, we will draw ED. every reasonable inference from the evidence forth, For the reasons set we conclude the prosecution. of record favor of the United sufficient and affirm. 244, (2000); Rogers, States v. 54 MJ Blocker, States v. 32 MJ United BACKGROUND (CMA 1991). following The court below found the facts housebreaking requires The offense of granted relevant to the issue: (1) unlawfully proof entered that the accused The'appellant man- worked the force structure; and entered with agement Squadron at unit of the Services the concurrent intent to commit a crime Base, Vandenberg Air Force California. 56b, building or structure. Para. within the mobility equip- management Force stored Courts-Marital, TV, for United Part Manual in a that was ment controlled (2000 ed.).1 United States by lodging, unit another within Ser- Williams, 15 CMR USCMA Manage- Squadron. vices Because Force (1954), analysis remains our benchmark equipment ment was unable to access semipri- into a of the lawfulness of the exercise, lodging during night-time structure, circumstance Infante, vate which is the give manager, Mr. was directed to appeal.2 key presented to enable 24 on them a to the warehouse argued the structure has not are identical to the ones 1. All Manual Appellant provisions in nature. entered was either at the time of court-martial. public in effect private inmates, and the structure or its This Court Williams classified with nature. its buildings groups: or structures into three private, public, semiprivate. Id. at any suggestion that the list Id. avoided case, 15 CMR at 246. Williams en- “no one of was exhaustive and indicated that during night, occupied tered an barracks control, necessarily factors] ... will [these larceny of the occu- *3 where he committed relevance, in all eases.” Id. even maintain belongings they slept. pants’ while Since to Both sides have invited our attention this determined the barracks was a Court of state court decisions that address the issue structure, semiprivate sought to deter- entry, usually of an in the the lawfulness entering mine whether or not the accused in burglary.3 Appellant specifically context of a such a structure was “authorized to act as he Feldt, urges our consideration of State v. particular by did the case those sometimes (1989). 398, There, Mont. 781 P.2d 255 power grant indistinct sources of the in- manager employees store allowed to enter 246-47, dulgence.” Id. at at 246-47. CMR manager the store after business hours. The We concluded that “the lawfulness of an en- gave keys “any proper Feldt to the store for try purposes ... depends [these] for on au- purposes.” subsequently Id. at 256. Feldt thorization, negative positive, express or or entered the store after hours and stole mon- implied” and must be determined based on ey Interpreting from the the safe. state 247, the in each circumstances case. Id. at statute, burglary Supreme the state Court at 247. We identified seven factors entry noted that the statute defined unlawful question: relevant to this licensed, invited, entry by an “not as one privileged otherwise to do so.” Id. Since (a) the nature and function of the granted keys Feldt had been the and allowed involved; hours, to enter after the court held his (b) character, status, the and duties of the entry trespassory. was not Id. at 257. entrant, identity; and even at times his recognize that state courts are free to (c) entry, including the of conditions the analyze specific state statutes based on statu- time, method, purpose, ostensible and tory language, interpretation their frequent numerous other factors of rel- intent, legislature’s state inter- and societal generally insusceptible evance but of However, drafting ests in the statute. here articulation; advance we are concerned with what kind of entry proscribed is under Article 130. (d) presence or absence of a directive of seeking whatever nature to limit or Paragraph 56d of Part of the Manual IV regulate ingress; free 134, entry lists unlawful under Article UCMJ, § (e) 10 USC as a lesser-included presence explicit or absence of an housebreaking.4 explanation offense of The visitor; invitation to the entry under the of unlawful offense states: (f) authority any pur- the invitational of entry “An if is ‘unlawful’ made without the host; ported and any person consent of authorized to consent (g) presence prior or absence of a entry authority.” or without other lawful 111c, IV, Manual, dealing, any,

course of if the entrant supra. Para. Part While State, (1) property 3. The Government has cited Jackson That the accused entered the real (1901)(where Tex.Crim. S.W. 864 a serv- personal property of another or certain of ant enters the master’s house with criminal another which amounts to a structure usu- intent, entry there is unlawful when he enters an ally storage; for used habitation duties). encompassed area not within his Con- unlawful; entry That such was circumstances, and Feldt, versely, appellant cites State 239 Mont. (3) That, under the the conduct (1989)(no entry 781 P.2d 255 unlawful prejudice good of the accused was to the of where defendant enters store with criminal in- discipline order and in the armed forces or keys given by manager). tent but uses store bring upon was of a nature to discredit armed forces. elements of unlawful under Article lb, IV, Manual, supra. 134 are: Para. 11 Part hours, officer-in-charge, gain his have such access the President could chosen words (2Lt) “invitation,” “license,” Borchers, “privilege,” he as Lieutenant testified Second “authority.” one the term The term is chose there was no official need for military upon very nature of a which question. He testi- at the time also organization is based. The term also carries never authorized fied that he implicit with it the notion that any purpose other enter understanding that it be is the will business, suggesting than official a usual proper purposes. exercised for dealing respect to access to course of with Further, he the warehouse. testified that granted Daily, military are au- members any por- did not have over section any thority equipment all kinds of use part warehouse other than that tion of the types weapons. Implicit in number of containing equipment. his section’s The rec- understanding such is the that such *4 express- ord is unclear whether 2Lt Borchers equipment may only proper for a be used ly conveyed appellant authority to to that requirement every grant A of purpose.5 that business.” enter was limited to “official authority expressly the lawful limits of detail case, However, under the facts of this au- authority the use of that would work an thority key to enter carried to access the consequently undue burden and could debili- obligation implicit with it an to enter the fighting tate the effectiveness of the force. proper purpose for an official or implication an accords with common Such sense, only segregated especially implied when the condition and to access the area under simply requires authority that the Management’s responsibility.6 is one Force proper purpose. granted be exercised for a decision, Although necessary not to our fully recognize granting one such that any of evi- note that the record is devoid expressly broaden or is free by appellant to the members dence offered Likewise, authority given. the restrict the understanding contrary, that his was to the authority may implicitly be limits of such any any there evidence that he offered nor is accepted affected a course of conduct purpose entry into the ostensible for his reasonably appropriate factors that other warehouse, the with or without reference to grant of author- lead one to conclude that the Virginia. standard of Jackson v. deferential ity has been broadened. Indeed, supports a this record conclusion purpose directly appellant

that entered for a ANALYSIS very purpose with the of the inconsistent itself, i.e., safekeeping prop- of the structure Considering principles, and consider- these erty contained therein. factors, ing question the in the the Williams is whether there was sufficient instant case Finally, that appellant reminds us to find evidence of record for the members proof he a criminal intent entered with beyond appellant’s doubt that reasonable satisfy proof not of the unlawful alone will entry unlawful. into the warehouse was Since, case, entry. in of the ness equipment in There was evidence the members could have considered evidence for which section the warehouse entry was his on the unlawfulness of the responsible segregated from the was was larceny, appellant to commit criminal intent appel- lodging equipment. While section’s insufficient on this argues, the evidence is key to the warehouse to lant indeed had example, gen- authority, sarily one evaluating questions official. For authorized of command 5. In after hours access who enters a warehouse eral purpose we look to whether the behind during personal property left behind retrieve proper. States v. of was See United might proper, not duty with a albeit hours enter Surtasky, 36 CMR 16 USCMA necessarily purpose. an official authority by Secretary (1966)(grant of the of Navy special was "de- to convene courts-martial Therefore, whether the we need not determine signed proper purpose"). We think to achieve a have been met the offense would elements of present analogy general context. A to the this a useful access were authorized scope. terms of time and might proper, warehouse in purpose well albeit not neces- be Williams, with intent to commit a criminal element. In we did indeed hold of another guilty housebreaking entry5 is therein is of that “an ‘unlawful not established offense through showing ingress punished of mere with con- as a court-martial and shall be temporaneous may criminal intent[.]” USCMA direct. However, at at 246. we have CMR added.) (Emphasis unlawfulness of the suggested never that the factors discussed entry of the offense to be is an element Williams purpose render intent or irrele- by the factfinders based on the determined contrary, purpose

vant. To the for the v. evidence in each case. See United States now, entry, otherwise, then as ostensible Williams, 241, 246-47, 15 4 USCMA determining remains a relevant factor in (1954); generally see United 246-47 ie., lawful, whether the whether New, 95, 114 (Sullivan, MJ applicable was consistent with au- result). J., concurring in the thority first element Military appellate courts have resolved le- housebreaking. gal sufficiency challenges in cases similar Yingst, See United States appellant’s. CONCLUSION (ACMR 1970) (evidence CMR 903 sufficient sum, appellant argues that since duty where it demonstrates no official he was authorized access to the warehouse at hangar duty enter hours dead time, any expressly and since he was never vacated); night United and after cf. instructed that this limited to *5 Cox, (AFBR 1954) otherwise, official business or no on his (evidence by insufficient where accused part could ever be unlawful. As we have by perform security authorized order earlier, military noted life demands that mili check). tary officials be allowed to view, my scope implicit understanding with the that such Here, ample enter is critical. there was proper pur will be exercised for a presented autho- Moreover, pose. appellant’s reasoning is in perform rized to enter the warehouse analysis consistent with the contextual military Manage- pertaining duties to Force Thus, Williams. reject his claim of insuf ample ment. There also was evidence that ficiency. night he did not enter the on the Air decision the United States question perform Relying those duties. Force Court of Criminal is affirmed. on the criteria delineated this Court unlawfulness, Williams to show I conclude SULLIVAN, Judge (concurring): Senior legally support this was sufficient evidence to Military Article Uniform Code of Jus- finding appellant’s entry unlawful tice, states: violating his conviction for Arti- sustain Housebreaking § 930. Art. 130. Virginia, Jackson v. UCMJ. See cle subject Any person chapter to this who 443 U.S. 99 S.Ct. 61 L.Ed.2d (1979). unlawfully enters the or structure