UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             SIMS, COOK, and GALLAGHER
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                       Private First Class JACOB J. RACINE
                           United States Army, Appellant

                                   ARMY 20100021

              Headquarters, U.S. Army Joint National Training Command
                          Charles A. Kuhfahl, Military Judge
              Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Johnson, JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura A. Kesler, JA
(on brief).

For Appellee: Major Amber J. Williams, JA; Major Sara M. Root, JA; Captain
Kenneth W. Borgnino, JA (on brief).

                                  18 November 2011

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                               SUMMARY DISPOSITION
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Per Curiam:

       A military judge sitting as a general court-martial found appellant guilty,
contrary to his pleas, of one specification of aggravated assault in which grievous
bodily harm is intentionally inflicted, one specification of assault with a dangerous
weapon, and one specification of unlawful entry, in violation of Articles 128 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 [hereinafter
UCMJ]. The military judge sentenced appellant to be dishonorably discharged from
the service, to be confined for 102 months, and to be reduced to the grade of E1.
The convening authority approved only so much of the sentence as provides for a
bad-conduct discharge, confinement for 81 months, and reduction to E1. Appellant
was credited with 213 days of confinement against the sentence to confinement.
RACINE—ARMY 20100021

       Appellee proved at trial that appellant attacked Mrs. RG, a German national,
in her apartment, and stabbed her more than 30 times. Appellant also stabbed Mrs.
TJ, the daughter of Mrs. RG, as she came to the aid of her mother. The victims were
treated for serious wounds requiring many stitches. Mrs. RG has lost significant
movement in her arm because of the attack, and can no longer work as a cook. Mrs.
TJ has recurring headaches. In addition to recovering from their physical injuries,
both women have sought mental health counseling.

       The Specification of Charge III accused appellant of housebreaking in
violation of Article 130, UCMJ. After the presentation of evidence, however, the
military judge found appellant guilty of unlawful entry, pursuant to Article 134,
UCMJ. Appellant contends, and appellee concedes, that the military judge erred in
finding appellant guilty of unlawful entry, because unlawful entry, pursuant to the
elements test, is not necessarily a lesser included offense of housebreaking. See
United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010). The elements of
housebreaking are: "(1) That the accused unlawfully entered a certain building or
structure of a certain other person; and (2) That the unlawful entry was made with
the intent to commit a criminal offense therein." Manual for Courts-Martial (2008
ed.)[hereinafter MCM], Part IV, para. 56b.(l)-(2). Unlawful entry requires proof
that the entry was unlawful, but also that, under the circumstances, the conduct was
prejudicial to good order and discipline or service discrediting. See id. para.
111b.(1)-(3). Although Appellant did not object at trial, the parties agree that plain
error occurred. See Jones, 68 M.J. at 473 n. 11. Therefore, the findings as to the
Specification of Charge III and Charge III are set aside.

       We have also considered the matters personally raised by appellant pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be
without merit. However, we agree with appellee that entering into the apartment of
the victims was a minor part of the total misconduct for which the military judge
sentenced appellant. Reassessing the sentence on the basis of the error noted, the
entire record, and applying the principles of United States v. Sales, 22 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 in Moffeit, the court
affirms only so much of the sentence as provides for appellant to be reduced to the
grade of E1, to be confined for 79 months, and to be discharged from the service
with a bad-conduct discharge. 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).




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RACINE—ARMY 20100021

                           FOR THE COURT:




                           MALCOLM H. SQUIRES, JR.
                           Clerk of Court




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