                          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.


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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)



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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.




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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).




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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




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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.




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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


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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.




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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.


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United States v. Davis, No.01-0237/AF


     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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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).




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