               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         DUSTIN J. CLARK
                  CORPORAL (E-4), U.S. MARINE CORPS

                            NMCCA 201300411
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 30 July 2013.
Military Judge: LtCol Elizabeth Harvey, USMC.
Convening Authority: Commanding Officer, Headquarters and
Headquarters Squadron, Marine Corps Air Station, Yuma, AZ.
Staff Judge Advocate's Recommendation: Maj G.T. Funk, USMC.
For Appellant: Maj Michael Berry, USMC.
For Appellee: Maj David Roberts, USMC; LCDR Keith Lofland,
JAGC, USN.

                             24 April 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a special court-martial,
convicted the appellant, contrary to his pleas, of one
specification of larceny, in violation of Article 121, Uniform
Code of Military Justice, 10 U.S.C. § 921. The appellant was
sentenced to 60 days’ confinement, forfeiture of $500.00 pay per
month for four months, reduction to pay grade E-1, and a bad-
conduct discharge. The convening authority disapproved
confinement in excess of twenty-nine days, approved the
remainder of the sentence as adjudged, and, except for the bad-
conduct discharge, ordered the sentence executed.

     The appellant’s sole assignment of error asserts that his
larceny conviction was both legally and factually insufficient
due to his mistaken belief that the property he took was
abandoned. We disagree. After carefully considering the record
of trial and the submissions of the parties, we are convinced
that the findings and the sentence are correct in law and fact,
and that no error materially prejudicial to the substantial
rights of the appellant was committed. Arts. 59(a) and 66(c),
UCMJ.

                           Background

     Prior to being deployed, Sergeant R (Sgt R) arranged with
Staff Sergeant H (SSgt H) to store his motorcycle in the staff
sergeant’s carport of his base residence. Sgt R purchased the
motorcycle several months earlier for approximately $5,500.00
with a loan from a local credit union. While Sgt R was
deployed, SSgt H received transfer orders, so he arranged for
Sgt L to pick up the motorcycle from his carport and store it
until Sgt R returned from his deployment. A week or two prior
to his departure, SSgt H moved Sgt R’s motorcycle from his
carport to the street in front of his residence, leaving the
keys to the motorcycle in the ignition. However, Sgt L never
picked up the motorcycle and it remained in the front of SSgt
H’s vacated residence after he transferred.

     The appellant, a military police officer, first noticed the
motorcycle in front of SSgt H’s residence while patrolling on
base after a neighboring resident pointed it out and commented
that it was taking up a parking space. This resident, who was
also a friend of the appellant’s, suggested that the appellant
have the motorcycle towed away. At trial the appellant claimed
that he took her suggestion as a joke, because, at the time, he
thought that SSgt H’s residence was still occupied. A self-
proclaimed “motorcycle enthusiast,” the appellant owned a
motorcycle that was “nearly identical” to the one parked in the
street. The appellant thought this motorcycle, a 2007 Suzuki
GSXR 600, could be used as a “parts bike” for his own
motorcycle. A few days later, around midnight, the appellant
loaded the motorcycle onto a trailer and drove it to a rented
storage area on base. Once there, he covered it with a
motorcycle cover. He told no one that he had this motorcycle in
his storage area.


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     Approximately two to three days after SSgt H transferred,
Sgt L attempted to retrieve the motorcycle, but it was gone.
Sgt L reported this to his supervisor who advised him “that
somebody else probably had already picked it up and moved it for
[Sgt R].” Record at 62. Sgt L took no further action. Once
Sgt R returned from deployment, however, he immediately began
inquiring about his missing motorcycle and reported it stolen to
the Criminal Investigation Division (CID) at the Provost
Marshall’s Office. CID conducted an investigation into the
missing motorcycle and eventually located it in the appellant’s
rented storage lot aboard base.

     When CID interviewed the appellant, he at first denied any
knowledge of the motorcycle and he could not explain its
presence in his storage lot.1 The appellant later admitted in a
sworn statement to CID that after examining the motorcycle while
it was parked on the street he “got the idea that it was
abandoned and [he] got the idea that [he] could benefit from
it.”2 In the same statement, he further admitted that he stole
the motorcycle, because, “[I]t was an open opportunity.”3 During
a permissive search of the appellant’s barracks room, he gave
investigators the keys to Sgt R’s motorcycle.

                      Summary of Evidence at Trial

     At trial, the appellant testified in his own defense. He
claimed that when he first examined the motorcycle, he saw that
it was dirty, with spider webs and bird droppings on it. He
also testified that the motorcycle lacked any visible signs of
being registered or licensed, and the key was left in the
ignition.

     He later admitted that after cleaning the motorcycle, he
noticed a VIN number, but did not attempt to check the number
with base or local law enforcement to locate the owner. He
further testified that he planned on applying for an “abandoned
title”4 soon after he took the motorcycle into his possession,
but later conceded that he failed to do so in the three months

1
  Prosecution Exhibit 7 (DVD of the appellant’s videotaped interview with
CID).
2
    PE 8 at 1.
3
    Id. at 3.
4
  Record at 152. The appellant described in detail the necessary steps to
obtain an abandoned title in Arizona.


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that he kept the vehicle in storage. He also conceded that he
told no one else about having taken the motorcycle, made no
effort to utilize certain law enforcement databases he knew were
available to locate the owner, and he never tried to call the
number on the key in an attempt to identify the owner.

                     Legal and Factual Sufficiency

     The appellant claims that his conviction for larceny is
legally and factually insufficient because he mistakenly
believed that the property he took was abandoned,5 thus negating
the specific intent required for the offense. After review of
the record, we find the evidence both legally and factually
sufficient to sustain a conviction for larceny.

     In accordance with Article 66(c), UCMJ, this court reviews
questions of legal and factual sufficiency de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test is “whether, considering the evidence in the light most
favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). When
testing for legal sufficiency, this court must draw every
reasonable inference from the record in favor of the
prosecution. United States v. McGinty, 38 M.J. 131, 132 (C.M.A.
1993); United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991).
The test for factual sufficiency “is whether, after weighing the
evidence in the record of trial and making allowances for not
having personally observed the witnesses, [we are]convinced of
the accused’s guilt beyond a reasonable doubt.” United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). However, reasonable
doubt does not mean that the evidence must be free from
conflict. United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F. 2007).
Specific intent may be established by circumstantial evidence.
United States v. Davis, 49 M.J. 79, 83 (C.A.A.F. 1998).

      Where mistake-of-fact is at issue in a larceny offense, the
prosecution has the burden of proving beyond a reasonable doubt
that the defense does not exist. RULE FOR COURTS-MARTIAL 916(b)(1),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Here, the
appellant claims that the Government’s circumstantial evidence
failed to sufficiently counter the appellant’s evidence showing
5
  Abandoned property cannot be the subject of a larceny, since larceny is a
specific intent offense. United States v. Malone, 14 M.J. 563, 564
(N.M.C.M.R. 1982).

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that he held an honest belief that the motorcycle had been
abandoned.

     Notwithstanding the motorcycle’s appearance and lack of
registration, other facts developed at trial contradict the
appellant’s claim. First, the motorcycle was found in base
housing. Second, the appellant took the motorcycle at night and
told no one about his fortuitous discovery. Third, when CID
discovered the motorcycle, the appellant could not explain how
the motorcycle ended up in his storage lot.6 Last, despite ample
information to locate the owner, such as the VIN to the
motorcycle and a phone number on the key left in the ignition,
he took no action to locate the owner of the motorcycle. Thus,
we conclude that the appellant did not look for an owner,
because he did not want to find an owner. Any ignorance this
appellant may have had as to whether the motorcycle was
abandoned was through deliberate avoidance rather than by an
honest mistake. United States v. McDonald, 57 M.J. 18, 22
(C.A.A.F. 2002). Cf. United States v. Adams, 63 M.J. 223, 223
(C.A.A.F. 2006).

     Considering the evidence in a light most favorable to the
prosecution, we are convinced that a reasonable fact finder
could have found all the elements of larceny, to include the
requisite specific intent, beyond a reasonable doubt. United
States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008).
Furthermore, after weighing all the evidence in the record of
trial and having made allowances for not having personally
observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt.




6
    PE 7 (CD of Interrogation) at 0545000.


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                           Conclusion

     The findings and sentence as approved by the convening
authority are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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