               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                                No. ACM S32540
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                            Mya R. MEDINA
               Airman Basic (E-1), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 14 February 2020
                           ________________________

Military Judge: Patricia A. Gruen.
Approved sentence: Bad-conduct discharge and confinement for 4
months. Sentence adjudged 27 April 2018 by SpCM convened at Joint
Base Elmendorf-Richardson, Alaska.
For Appellant: Mark C. Bruegger, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi-
chael T. Bunnell, USAF; Andrew J. Quillen (legal intern); 1 Mary Ellen
Payne, Esquire.
Before MINK, KIEFER, and LEWIS, Appellate Military Judges.
Judge KIEFER delivered the opinion of the court, in which Senior Judge
MINK and Judge LEWIS joined.
                            ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                             ________________________




1 Mr. Quillen was at all times supervised by an attorney admitted to practice before
this court.
                   United States v. Medina, No. ACM S32540


KIEFER, Judge:
    Appellant was convicted, pursuant to her pleas and a pretrial agreement
(PTA), of one specification of absence without leave on divers occasions, one
specification of wrongful possession of marijuana, one specification of wrongful
use of Percocet, one specification of wrongful use of Xanax, one specification of
willful disobedience of a superior commissioned officer, one specification of
willful dereliction of duty, and one specification of false official statement in
violation of Articles 86, 90, 92, 107, and 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 886, 890, 892, 907, 912a. 2 Pursuant to the PTA, Appel-
lant also pleaded guilty to two specifications of wrongful appropriation, but she
was ultimately convicted by the military judge of the greater offenses of larceny
under Article 121, UCMJ, 10 U.S.C. § 921. Appellant was sentenced to a bad-
conduct discharge and six months confinement. Pursuant to the terms of her
PTA, the approved sentence was a bad-conduct discharge and four months con-
finement.
    Appellant asserts three assignments of error: (1) whether the military
judge abused her discretion by failing to award Appellant credit for illegal pre-
trial punishment; (2) whether Appellant’s guilty plea to dereliction of duty was
provident; and (3) whether Appellant’s convictions for larceny were factually
sufficient. We find no prejudicial error and affirm.

                                 I. BACKGROUND
    In January 2018, Appellant lived with two civilian sisters and their mother
at an off-base residence. While Appellant was living at the home, one of the
sisters showed Appellant where they kept cash in the house. In late January
2018, Appellant wrongfully took approximately $2,100.00 that belonged to the
sisters from the location where the money was stored. When one of the sisters
confronted Appellant about the missing money, Appellant lied and created a
story that some stranger must have stolen the money. Appellant used the
money to pay her bills and place a down payment on a BMW.
    By early February 2018, Appellant had moved on base. On or about 3 Feb-
ruary 2018, Appellant brought two male civilian friends on base to visit her
new residence. The civilians had marijuana with them, and they left some of
the marijuana at Appellant’s on-base residence with her knowledge. Around
this same time, Appellant obtained one pill each of Percocet and Xanax from
civilian friends. She knowingly ingested both pills without any legal justifica-
tion or authorization.


2All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).


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                  United States v. Medina, No. ACM S32540


   Security forces investigators found out about the civilians’ visit to Appel-
lant’s on-base residence and about the presence of marijuana. A security forces
investigator informed Appellant that one of the civilian friends had a felony
conviction, and Appellant was not permitted to bring him on base.
    In February and March 2018, Appellant was assigned to the 673d Security
Forces Squadron at Joint Base Elmendorf-Richardson (JBER). During this
time, she was scheduled to work various shifts. On more than one occasion, she
failed to show at her duty location at the appointed times and did not have any
authorization for her absences.
    On March 9, 2018, Appellant submitted a response to a nonjudicial punish-
ment action under Article 15, UCMJ, 10 U.S.C. § 815, to her commander. In
the response, Appellant indicated that she was providing financial support to
her sister in the hopes that the commander would not adjudge forfeitures as
part of a punishment. At the time Appellant prepared and submitted the re-
sponse, she knew the statement regarding financial support for her sister was
false, and she intended to mislead the commander in making this statement.
    On 13 March 2018, Appellant’s commander restricted her to the limits of
JBER. On or about 3 April 2018, despite the order from her commander, Ap-
pellant drove off base, picked up the civilian friend who had a felony conviction,
and brought him back to base. She was stopped by security forces, who pre-
vented Appellant from taking the civilian to her residence. Appellant’s acts of
leaving base while restricted and bringing a known felon on base constituted
the offenses of disobeying a superior commissioned officer and willful derelic-
tion of duty. On 4 April 2018, Appellant was ordered into pretrial confinement
by her commander.

                                II. DISCUSSION
A. Illegal Pretrial Punishment
   1. Additional Background
    Appellant’s commander ordered her into pretrial confinement because she
continued to engage in misconduct and violate orders. On 5 April 2018, the
pretrial confinement review officer conducted a hearing pursuant to Rule for
Courts-Martial (R.C.M.) 305 and determined pretrial confinement was appro-
priate and should continue.
    Appellant was initially processed at the Anchorage Correctional Complex
(ACC). She was soon transferred to the Hiland Mountain Correctional Center
(HMCC) in Eagle River, Alaska, because the ACC could not accommodate fe-
male pretrial confinees. Appellant was placed in the segregation unit at HMCC
to satisfy Air Force requirements that she not be housed with post-conviction


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                  United States v. Medina, No. ACM S32540


inmates. She remained in pretrial confinement there until her trial on 27 April
2018.
    Appellant’s cell at HMCC had a bed, toilet, and sink as well as a window to
the outside on one wall and a window in the door. She was confined in this cell
for approximately 23 hours per day and was given one hour of recreation time
in an enclosed yard outside of the building as well as a 20-minute private
shower period outside of the cell each day. She ate her meals in the cell. Appel-
lant was transported within the facility with handcuffs and/or leg shackles, but
these were not worn in her cell. Appellant was permitted to make 93 telephone
calls, and she was allowed to receive visitors.
    Appellant’s initial cell had a camera that could be monitored by corrections
officers within the segregation unit but not all cells had cameras. Appellant
was initially placed in a cell with a camera because that was all that was avail-
able within the segregation unit when she arrived at HMCC. The military
judge found that there was no evidence to support that the camera would cap-
ture Appellant using the latrine. This conclusion is not clearly erroneous and
is supported by the weight of the evidence. See United States v. King, 61 M.J.
225, 227 (C.A.A.F. 2005).
    An Air Force corrections official visited Appellant while she was at HMCC.
Appellant told the official that HMCC staff had mistakenly given her paper-
work to a general population inmate with the same last name. Appellant was
concerned that the inmate now knew Appellant was a “cop.” Appellant asked
to remain in the segregation unit for safety reasons. Appellant was confined in
the HMCC segregation unit for 23 days up to the first day of trial. Evidence
was presented that she was moved to different cells during her stay at HMCC,
but it is unclear exactly how many days she was in a cell with a camera.
    At trial, Appellant argued that she was entitled to additional credit against
any adjudged confinement due to the alleged violation of her Article 13, UCMJ,
10 U.S.C. § 813, rights. She asserted that the conditions of her pretrial confine-
ment either constituted punishment or were so egregious that she was entitled
to three-for-one credit beyond the day-for-day credit she was to receive for her
time in pretrial confinement.
    In particular, Appellant argues that the presence of a camera in her cell
constituted egregious conditions that violated Air Force standards for con-
finees as outlined in Air Force Instruction (AFI) 31-105, Air Force Corrections
System, ¶ 4.2.5.1.1 (15 Jun. 2015, as amended by AFGM 2017-01, 28 Jun.
2017). Appellant asserts that cameras may not be present in Air Force confinee
cells. The AFI, however, states that Air Force officials should “[e]nsure CCTV
does not invade confinee privacy (i.e., do not place in cells, toilet, or shower
areas) unless suicidal or violent behavior dictates otherwise.” Id. Pursuant to


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                  United States v. Medina, No. ACM S32540


this same AFI, Air Force officials also have a responsibility to ensure “a secure,
humane, and productive environment for confinees and staff.” AFI 31-105, ¶
1.1. Additionally, Air Force officials are responsible for ensuring military pre-
trial detainees are separated from illegal aliens and other foreign nationals
and not comingled with post-trial civilian inmates. AFI 31-105, ¶ 5.2.4.1. Thus,
officials must balance various circumstances to ensure an overall secure and
humane environment.
   2. Law
   Article 13, UCMJ, 10 U.S.C. § 813, states:
       No person, while being held for trial, may be subjected to pun-
       ishment or penalty other than arrest or confinement upon the
       charges pending against him, nor shall the arrest or confinement
       imposed upon him be any more rigorous than the circumstances
       required to insure his presence, but he may be subjected to mi-
       nor punishment during that period for infractions of discipline.
    This article essentially prohibits: (1) the imposition of punishment prior to
trial and (2) conditions of arrest or pretrial confinement that are more rigorous
than necessary to ensure the accused’s presence for trial. See id. The com-
mander’s intent for ordering pretrial confinement is a “significant factor in
[the] judicial calculus” for determining whether there has been an Article 13,
UCMJ, violation. United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994)
(citing Bell v. Wolfish, 441 U.S. 520 (1979)), overruled on other grounds by
United States v. Inong, 58 M.J. 460, 464 (C.A.A.F. 2003).
    Appellant bears the burden of establishing an Article 13, UCMJ, violation.
See United States v. Harris, 66 M.J. 166, 168 (C.A.A.F. 2008) (citation omitted).
We will not overturn a military judge’s findings of fact unless they are clearly
erroneous, and we review de novo whether Appellant is entitled to credit for a
violation of Article 13, UCMJ. King, 61 M.J. at 227 (citations omitted).
   3. Analysis
    The military judge determined that none of the conditions of Appellant’s
pretrial confinement were for the purpose of punishment or were so egregious
that they constituted illegal pretrial punishment. Appellant was initially clas-
sified as administrative segregation, and she was not treated any differently
than other administrative segregation confinees at the HMCC in terms of the
time she spent in her cell or the type of cell in which she was housed. She was
kept separate from civilian post-conviction inmates pursuant to Air Force pol-
icy. Additionally, Appellant requested to remain in administrative segregation
due to safety concerns about inmates possibly knowing she was a law enforce-
ment officer. With respect to the camera in her cell, Appellant failed to show
how often the camera was actually monitored, how many days she spent in a

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                     United States v. Medina, No. ACM S32540


cell with a camera, or the extent to which the camera deprived her of privacy.
The weight of the evidence indicates she had privacy when using the toilet in
her cell and when showering, which occurred in a separate room without a
camera outside of her cell. The military judge also found Appellant was able to
make 93 phone calls during her time in pretrial confinement and was permit-
ted to receive visitors. Finally, the military judge found an appropriate balance
between the conditions of Appellant’s confinement and safety considerations.
    We find the military judge did not abuse her discretion in finding that Ap-
pellant’s conditions of pretrial confinement were not for the purpose of punish-
ment and were not so egregious to warrant any relief beyond the day-for-day
credit she received for her time in pretrial confinement.
B. Providence of Appellant’s Guilty Plea to Willful Dereliction of Duty
      1. Additional Background
    Appellant stated during her guilty plea inquiry that she brought her civil-
ian friend, who was a convicted felon, to the gate at JBER. She admitted that
she knew he was a convicted felon, and that she was not permitted to bring
him on base. She knew this as a security forces member and because she was
told by a security forces investigator that the civilian was a convicted felon and
was not permitted on base. Appellant’s only challenge to the providence of her
plea is whether bringing the civilian to the gate and getting caught by security
forces at that location constitutes bringing a convicted felon “on base.”
    Appellant acknowledged during the Care 3 inquiry that the gate was within
the base at JBER. She explained there was a fence line outside of the gate area,
and entrants had to cross the fence line to reach the gate. Additionally, during
the providence inquiry on the offense of disobeying a superior commissioned
officer, Appellant stated she was restricted “to base.” She further noted, “That
night I left out Muldoon Gate, which was part of the base . . . .” (Emphasis
added). She then admitted she came back on base and was stopped at the same
gate with the civilian felon.
    Later in the same inquiry regarding the Article 90, UCMJ, offense, Appel-
lant and the military judge discussed the commander’s order restricting Ap-
pellant to base.
              [Military Judge (MJ):] Okay. And what exactly was the order
              as you understood it to be when you read the document.
              [Appellant:] That I was not allowed to leave the base or any
              gate.



3   See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).


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                   United States v. Medina, No. ACM S32540


           [MJ:] Okay. So the fenced area was basically your perimeter,
           and you couldn’t go outside that.
           [Appellant:] Yes ma’am.
   2. Law
    “We review a military judge’s acceptance of a guilty plea for an abuse of
discretion.” United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015) (citation
omitted). “The test for an abuse of discretion in accepting a guilty plea is
whether the record shows a substantial basis in law or fact for questioning the
plea.” United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United
States v. Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)). “The military judge must
question the accused under oath about the offenses to ensure there is an ade-
quate factual basis for a guilty plea.” United States v. Mull, 76 M.J. 741, 744
(A.F. Ct. Crim. App. 2017) (citing R.C.M. 910(e); Article 45(a), UCMJ, 10 U.S.C.
§ 845(a)). “It is an abuse of discretion for a military judge to accept a guilty plea
without an adequate factual basis . . . .” United States v. Weeks, 71 M.J. 44, 46
(C.A.A.F. 2012) (citation omitted). However, we look to the entire record to de-
termine whether there is a substantial basis to question the guilty plea. See
United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F. 2002).
    “A plea is provident so long as Appellant was ‘convinced of, and [was] able
to describe, all of the facts necessary to establish [his] guilt.’” United States v.
Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (alterations in original) (quoting
United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)). “If an accused
sets up matter inconsistent with the plea at any time during the proceeding,
the military judge must either resolve the apparent inconsistency or reject the
plea.” United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (quoting United
States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)) (internal quotation
marks omitted). We “must find a substantial conflict between the plea and the
accused’s statements or other evidence in order to set aside a guilty plea. The
mere possibility of a conflict is not sufficient.” Id. (citation and internal quota-
tion marks omitted).
   3. Analysis
   The exchange between the military judge and Appellant confirms Appel-
lant’s understanding that there is a difference between the perimeter of the
base and the gate, and her act of crossing the fence line when she brought the
convicted felon to the gate constituted the offense of willful dereliction of duty.
We also note the inquiry on the Article 90, UCMJ, offense occurred prior to the
inquiry on the willful dereliction of duty offense. Thus, Appellant established
an understanding that the gate is on the base prior to being questioned about
the willful dereliction of duty offense.



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                  United States v. Medina, No. ACM S32540


    We consider the entire record in determining whether a plea is provident.
See Jordan, 57 M.J. at 239. Thus, even though some of Appellant’s most telling
statements about the boundaries of the base occurred during the inquiry on
the disobedience offense, we may consider them with regard to Appellant’s un-
derstanding of what constitutes “the base” for the purposes of her guilty plea
to willful dereliction of duty.
    In reviewing the entire record, we find the military judge did not abuse her
discretion in accepting Appellant’s guilty plea to willful dereliction of duty by
failing to refrain from bringing a convicted felon on base.
C. Factual Sufficiency of Convictions for Larceny
   1. Law
    We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)
(citation omitted). Our assessment of factual sufficiency is limited to the evi-
dence presented at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)
(citations omitted).
    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 [appellant’s] guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987); see also United
States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (citation omitted). In conducting
this unique appellate role, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence con-
stitutes proof of each required element beyond a reasonable doubt.” Washing-
ton, 57 M.J. at 399. Article 121, UCMJ, sets forth definitions related to the
offense of larceny and wrongful appropriation. An intent to steal may be proven
by circumstantial evidence. Manual for Courts-Martial, United States (MCM)
pt. IV, ¶ 46.c.(1)(f)(ii). Further, “[a]n intent to steal may be inferred from a
wrongful and intentional dealing with the property of another in a manner
likely to cause that person to suffer a permanent loss thereof.” Id. “An intent
to pay for or replace the stolen property is not a defense, even if that intent
existed at the time of the theft,” as long as the perpetrator had the intent to
permanently deprive the true owner at some point. MCM, pt. IV, ¶
46.c.(1)(f)(iii)(B).
   2. Analysis
   Appellant pleaded guilty to two specifications of wrongful appropriation
and admitted all elements of the greater larceny offenses, except the intent to




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                   United States v. Medina, No. ACM S32540


permanently deprive the true owners of their property. 4 Appellant instead as-
serted that she intended to repay the money once she received back pay from
the Air Force due to a prior finance mistake.
    The military judge found beyond a reasonable doubt that Appellant had the
intent to permanently deprive and convicted her of the greater larceny offense
for each Article 121, UCMJ, specification. After reviewing the evidence and
making allowances for having not personally observed the witnesses, we are
similarly convinced. While we acknowledge that Appellant indicated through-
out her providence inquiry that she intended to repay the money, her state-
ments were inconsistent with her actions at the time of and immediately fol-
lowing the thefts. The evidence presented in findings showed that, when first
confronted by one of the sisters about the missing money, Appellant lied and
fabricated a story whereby a stranger must have come into the home, figured
out where the money was, and stolen it. Later, Appellant admitted she told the
purported “stranger” where the money was, but she did not take the money or
intend for the stranger to take it. Appellant repeatedly recounted stories that
were inconsistent and untruthful before she finally admitted that she took the
money.
    While a person may lie about wrongfully taking an item and still have the
intent to return it, Appellant’s various versions of events were so far-fetched
that they demonstrate a more permanent intent. Additionally, Appellant spent
most of the money soon after stealing it. While she indicated at trial that she
intended to repay the money upon receipt of back pay from the Air Force, her
first inclination upon taking the cash was to use it for her own benefit, includ-
ing paying her bills and placing a down payment on a BMW. Finally, the fact
that Appellant made no effort to return the money before she was caught sup-
ports a finding of larceny.
    An intent to permanently deprive need only exist for a moment at the time
of or subsequent to the wrongful taking to consummate the offense of larceny.
We find that despite Appellant’s representations during the providence inquiry
on wrongful appropriation, there was at least a moment when she intended to
permanently keep the money she stole. Accordingly, we find the evidence re-
lated to the larceny specifications is factually sufficient.




4 The larceny offenses were set forth as two separate specifications because it was de-
termined, and Appellant admitted, that she stole money that belonged to each sister.




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                   United States v. Medina, No. ACM S32540


                                 III. CONCLUSION
    The findings and the sentence are correct in law and fact, and no error ma-
terially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and sentence are AFFIRMED. 5


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




5 Counsel for Appellant notes two errors in the promulgating order, specifically that
the ending date in the charged timeframe of both specifications of Charge III was 30
January 2018, not 15 January 2018. We concur and direct the publication of a corrected
court-martial order to remedy the errors.


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