UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              COOK, HAIGHT and MAGGS
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                        Staff Sergeant BRANDON E. GOFF
                          United States Army, Appellant

                                    ARMY 20140327

                        Headquarters, 7th Infantry Division
                       Timothy P. Hayes, Jr., Military Judge
            Lieutenant Colonel Michael S. Devine, Staff Judge Advocate

For Appellant: Major Yolanda McCray Jones, JA; Major Candace N. White
Halverson, JA.

For Appellee: Pursuant to A.C.C.A Rule 15.2 no response filed.

                                       15 June 2015

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                                MEMORANDUM OPINION
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COOK, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of selling military property of a value of
more than $500.00 without proper authority on divers occasions, wrongfully using a
schedule IV controlled substance, stealing non-military property of a value of more
than $500.00 on a single occasion, stealing military property of a value of more than
$500.00 on divers occasions, housebreaking on divers occasions, one specification
of false swearing involving one financial entity on divers occasions and an
additional specification of false swearing to a different financial entity on a single
occasion, in violation of Articles 108, 112a, 121, 130 and 134 Uniform Code of
Military Justice, 10 U.S.C. §§ 908, 912a, 921, 930 and 934 [hereinafter UCMJ].

       The military judge sentenced appellant to a bad -conduct discharge, nine
months of confinement, and reduction to the grade of E-1. The convening authority
approved only eight months and fifteen days of confinement, but otherwise approved
the adjudged sentence.
GOFF – ARMY 20140327

      This case is before us for review under Article 66, UCMJ. Appellant
submitted the case upon its merits. However, based on our own review of the
record, we find multiple issues that merit discussion and relief.

                                   BACKGROUND

       Most of the charges in this case arose from appellant breaking into the
bedroom of his suitemate, Sergeant (SGT) DS; stealing SGT DS’s personal and
military property; selling the stolen military property to two local businesses, The
Foxhole and GI Surplus; 1 and falsely swearing in contracts he entered into with the
two local pawnshops that he possessed good title to the stolen personal property
which he was selling to them. Although a providence inquiry covering the guilty
plea in this case would appear to be a routine matter, the inquiry initially failed to
establish what the values of the items sold or stolen were on any one single
occasion.

       The military judge properly explained the elements of the offenses to which
appellant pleaded guilty and defined the relevant terms. In discussing the two
specifications of the Article 108, UCMJ, offense, appellant stated he had sold stolen
military property to pawnshops called The Foxhole and GI Surplus and had done so
on more than one occasion each. Although the inquiry established the value of the
military property sold in toto to each establishment exceeded $500.00, it failed to
establish that the value of any one item or the aggregate value of the property sold
during a single transaction exceeded $500.00.

       Likewise, when reviewing appellant’s actions in reference to the Article 121,
UCMJ, offense, in discussing Specification 2, Charge II, 2 the military judge
established appellant had stolen military property on more than one occasion and
that the total value of the property exceeded $500.00. However, once again the
providence inquiry failed to establish the value of any individual stolen item or the
aggregate value of items stolen during a single occurrence totaled more than $500.00
in value.

       The other Article 121, UCMJ, specification alleged appellant stole non-
military property of a value of more than $500 .00 on a single occasion. However,
the stipulation of fact in appellant’s case stated that he stole the listed items “[o]ver
the course of nearly a month.” In addition, appellant began the colloquy concerning
this specification by stating, “I’m guilty because on different o ccasions between 10

1
 Appellant also stole military property from two other soldiers and sold this
property along with the military property he stole from SGT DS.
2
 The gist of the specification was that appellant stole military property of a value of
more than $500.00 on divers occasions.


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GOFF – ARMY 20140327

December 2013 and 9 January 2014 I took without permission items that belonged to
SGT DS and the items [were] valued [at] more than $500.” The providence inquiry,
while again establishing the total value of the stolen property exceeded $500.00,
failed to identify a single stolen item that exceeded $500.00 in value or any
individual theft that involved stealing more than $500.00 worth of property.

       It is clear from the record that after adjourning appellant’s court -martial, the
military judge, while reviewing the record of trial, recognized he had failed to
properly address the property value issue. During the subsequent post -trial hearing
he called pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1102, the military
judge stated the purpose of the hearing was to “correct an unintended omission ,”
namely, that he:

             did not include in [the] providence inquiry with the
             [appellant] questions to establish that the value of at least
             one item or transaction in both of the specifications of
             Article 108 and the second specification of Article 121,
             were in excess of $500, where the accused was alleged to
             have committed the offenses on divers occasions.

       The military judge, during his subsequent colloquy with appellant, proceeded
to establish the value of the military property appellant had sold to The Foxhole
exceeded $500.00 on at least one occasion. However, the military judge did so
without addressing whether appellant committed the charged offense on divers
occasions. Specifically, the military judge engaged in the following dialogue with
appellant:

             MJ: Do you have any doubt in your mind that there was at
             least one occasion that you sold over $500 .00 worth of
             military property to [T]he Foxhole?

             ACC: There is no doubt, Your Honor.

             ....

             MJ: And you did sell to [T]he Foxhole, military property,
             on more than one occasion, is that correct?

             ACC: Correct, Your Honor.

             MJ: But as far as you are concerned, there was at least
             one of those occasions the military property in question
             was worth more than $500.00?




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GOFF – ARMY 20140327

             ACC: Yes, Your Honor.

       The military judge then engaged in an identical colloquy with the appellant in
establishing that the value of the military property appellant had sold to GI Surplus
exceeded $500.00 on at least one occasion. Again, however, the military judge did
so to the exclusion of establishing appellant had sold more than $500 .00 worth of
military property on divers occasions.

       The military judge then covered the Article 121, UCMJ , specification
charging appellant with stealing more than $500.00 worth of military property on
divers occasions. Here, the inquiry established that on three separate occasions the
value of the military property stolen on each of those occasions exceeded $500.00.

       The military judge did not revisit the other Article 121, UCMJ, specification
involving the theft of more than $500.00 worth of SGT DS’s property during the
hearing in revision. The military judge concluded by reaffirming appellant’s
original findings of guilty. He stated that he did not need to reassess his original
sentence because “the sentence that was contemplated and adjudged was for the
specifications as drafted.”

                              LAW AND DISCUSSION

      For the reasons set forth below, we find a substantial basis in law and fact to
only partially affirm the military judge’s acceptance of appellant’s guilty plea to
Specifications 1 and 2 of Charge I and Specification 1 of Charge II.

       We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “In doing so, we apply
the substantial basis test, looking at whether there is something in the record of trial,
with regard to the factual basis or the law, that would raise a substantial q uestion
regarding the appellant’s guilty plea.” Inabinette, 66 M.J. at 322. “The military
judge shall not accept a plea of guilty without making such inquiry of the accused as
shall satisfy the military judge that there is a factual basis for the plea.” R.C.M.
910(e). In order to establish an adequate factual predicate for a guilty plea, the
military judge must elicit “factual circumstances as revealed by the accused himself
[that] objectively support that plea . . . .” United States v. Davenport, 9 M.J. 364,
367 (C.M.A. 1980). If an accused sets up a matter inconsistent with the plea at any
time during a guilty plea proceeding, the military judge must resolve the conflict or
reject the plea. UCMJ art. 45(a); see also R.C.M. 910(h)(2).

      In cases of larceny, the value of the property controls the maximum
punishment which may be adjudged. Manual for Courts-Martial, United States
(2012 ed.), pt. IV, ¶47.e. For an accused to be convicted of larceny of property of a



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GOFF – ARMY 20140327

value greater than $500.00 “the record must show either that one item of the
property stolen has such a value or that several items taken at substantially the same
time and place have such an aggregate value.” United States v. Christensen, 45 M.J.
617, 619 (Army Ct. Crim. App. 1997) (internal quotation marks and citation
omitted); see also United States v. Harding, 61 M.J. 526, 528 (Army Ct. Crim. App.
2005). In addition, “the value aggregation principle applicable to larceny cases is
also applicable to the unauthorized sale of military property under Article 108,
UCMJ.” United States v. Fiame, 74 M.J. 585, 587 (Army Ct. Crim. App. 2015) .

       It was therefore appropriate for the militar y judge to hold a post-trial Article
39(a), UCMJ, session to establish the value of the property charged in the Article
108 and 121, UCMJ, offenses. However, in establishing that each of the Article 108
offenses involved property worth more than $500 .00 on “at least one occasion,” the
inquiry did not establish that the misconduct involved property worth more than
$500.00 on two or more occasions: a finding necessary to convict someone of
committing this offense on “divers occasions .” See id. at 587-88. The military
judge therefore abused his discretion in finding appel lant guilty of the language “on
divers occasions” in regards to the Article 108, UCMJ specifications. We will take
appropriate action in our decretal paragraph to remedy this error.

       In addition, regarding the Article 121 specification involving non -military
property, as captured above, “the record must show either that one item of the
property stolen has such a value or that several items taken at substantially the same
time and place have such an aggregate value.” Christensen, 45 M.J. at 619 (internal
quotation marks and citation omitted). The record, pursuant to the stipulation of fact
and appellant’s statements during the providence inquiry, reflect s appellant stole
items from SGT DS’s room multiple times over a month-long period. The inquiry
did not establish the requisite factual predicate to support finding the value of one
item or the aggregate value of items stolen at substantially the same time from one
location exceeded $500.00. Multiple thefts over the course of a month do not
necessarily occur at “substantially the same time.” See United States v. Schwin, 73
M.J. 711, 714 (Army Ct. Crim. App. 2014). We therefore find the military judge
abused his discretion in finding appellant guilty of the language “of a value of more
than $500.00” and we will take appropriate action in our decretal paragraph.

                                    CONCLUSION

      Upon consideration of the entire record, we approve and affirm only so much
of Specifications 1 and 2, Charge I and Specification 1, Charge II that provides:

             Specification 1, Charge I: In that [appellant], U.S. Army,
             did, at near Lakewood, Washington, between on or about
             19 August 2013 and on or about 24 August 2013, without
             proper authority, sell to The Foxhole, military property of



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GOFF – ARMY 20140327

             a value of more than $500.00, military property of the
             United States.

             Specification 2, Charge I: In that [appellant], U.S. Army,
             did, at near Lakewood, Washington, between on or about 8
             August 2013 and on or about 7 January 2014, without
             proper authority, sell to GI Surplus, military property of a
             value of more than $500.00, military property of the
             United States.

             Specification 1, Charge II: In that [appellant], U.S. Army,
             did, at near Joint Base Lewis-McChord, Washington,
             between on or about 10 December 2013 and on or about 9
             January 2014, steal one (1) Xbox 360, one (1) Play Station
             3, five (5) pair of Oakley sunglasses, one (1) Toshiba
             Laptop, one (1) Kuerig coffee maker, one (1) Hovttech
             camera, one (1) Black & Decker drill, and one (1) Sony
             PSP, of some value, the property of Sergeant (E-5) D.H.S.

      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape that might cause us pause in reassessing appellant’s sentence.
Second, appellant was tried and sentenced by a military judge alone. Third, the
nature of the remaining offenses still captures the gravamen of the original offenses.
Finally, based on our experience, we are familiar with the remaining offenses so that
we may reliably determine what sentence would have been imposed at trial.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with Winckelmann, 73 M.J. 11, and Sales, 22 M.J. 305, we
AFFIRM only so much of the sentence as provides for a bad-conduct discharge,
confinement for seven months, and reduction to the grade of E -1. We find this
sentence purges the errors in appellant’s case and is also app ropriate. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings and sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58b(c) and 75(a).




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GOFF – ARMY 20140327

     Judge HAIGHT and Judge MAGGS concur.

                                FOR
                                 FOR THE
                                     THE COURT:
                                         COURT:




                                MALCOLM H.
                                MALCOLM      H. SQUIRES,
                                                 SQUIRES, JR.
                                                           JR.
                                Clerk  of Court
                                Clerk of Court




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