                        UNITED STATES, Appellee

                                    v.

            Candice N. CIMBALL SHARPTON, Senior Airman
                     U.S. Air Force, Appellant

                              No. 14-0158

                         Crim. App. No. 38027

       United States Court of Appeals for the Armed Forces

                        Argued April 29, 2014

                        Decided June 13, 2014

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.

                                 Counsel

For Appellant: Captain Nicholas D. Carter (argued); Captain
Isaac C. Kennen.

For Appellee: Lieutenant Colonel C. Taylor Smith (argued);
Colonel Don M. Christensen (on brief); Gerald R. Bruce, Esq.



Military Judge:   W. Thomas Cumbie



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cimball Sharpton, No. 14-0158/AF


     Chief Judge BAKER delivered the opinion of the Court.

     Appellant asserts that the United States Air Force Court of

Criminal Appeals (CCA) abused its discretion in finding legally

sufficient evidence to support her conviction for larceny from

the Air Force.   Appellant argues that the victim in the case of

credit card larceny is necessarily the bank issuing the card or

the merchants selling the goods purchased.   We disagree.   In

this case, as in United States v. Lubasky, the victim of the

larceny is the person or entity suffering the financial loss or

deprived of the use or benefit of the property at issue.    68

M.J. 260, 263-64 (C.A.A.F. 2010).

                               FACTS

     In April 2010, the Air Force issued a General Purchase Card

(GPC) to Senior Airman Candice N. Cimball Sharpton, enabling her

to purchase medical supplies for the Air Force hospital at

Keesler Air Force Base in Mississippi.   The CCA found that the

GPC was established through a government contract with U.S.

Bank, which issued the cards to authorized cardholders who were

only allowed to use them for government purchases.   United

States v. Cimball Sharpton, 72 M.J. 777, 781 (A.F. Ct. Crim.

App. 2013).   After GPC charges were reviewed by an Air Force

approving official, the Air Force would pay them off using

Department of Defense funds appropriated for Air Force spending.

The actual payments were made by the Defense Finance Accounting

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Service (DFAS) with money from an account allotted to the U.S.

Air Force.

     In July 2010, an approving official noticed some suspicious

charges on Appellant’s account from stores including the Army

and Air Force Exchange Service (AAFES), Walgreens, and Walmart.

After spotting such charges for several consecutive months, in

September 2010 the official reported them to her superior.   A

subsequent investigation revealed Appellant had purchased

approximately $20,000 worth of personal goods using her GPC at

AAFES, Walgreens, and Walmart stores.   Cimball Sharpton, 72 M.J.

at 779.   Air Force investigators collected surveillance videos

and store receipts confirming Appellant’s unauthorized

purchases.   DFAS subsequently paid U.S. Bank for all the

unauthorized charges made by Appellant.

     Appellant was charged with, among other things, one

specification of larceny in violation of Article 121, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 921 (2012).    The

larceny specification stated:

  In that SENIOR AIRMAN CANDICE N. CIMBALL SHARPTON, 81st
  Medical Support Squadron, United States Air Force,
  Keesler Air Force Base, Mississippi, did, at or near the
  state of Mississippi, on divers occasions, between on or
  about 1 June 2010 and on or about 30 September 2010,
  steal money, military property, of a value greater than
  $500.00, the property of the United States Air Force.




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United States v. Cimball Sharpton, No. 14-0158/AF


        Appellant was tried by a military judge alone.   Though she

pled not guilty, Appellant did not dispute any elements of the

larceny charge.    Appellant stipulated to the existence of video

surveillance of Appellant making the alleged transactions.      She

also stipulated to the fact that DFAS paid U.S. Bank for the

unauthorized charges:

    MJ: [D]efense counsel, you’re willing to stipulate that
    the charges that the accused made on her government
    purchase card to Walgreens in the amount of approximately
    2,400 dollars, and to AAFES in the amount of 18,333
    dollars and 78 cents, that those charges were actually
    paid for by the Defense Accounting and Finance Service
    [sic]?

    [DC]:   Yes, your honor.

        Appellant was convicted of one specification of larceny in

violation of Article 121, UCMJ; one specification of using

oxycodone in violation of Article 112a, UCMJ; one specification

of using cocaine in violation of Article 112a, UCMJ; and one

specification of fraudulent enlistment in violation of Article

83, UCMJ.1    She was sentenced to a bad-conduct discharge, twelve

months of confinement, reduction to E-1, and a $20,000 fine,

with six months of additional confinement if the fine was not

paid.    The convening authority approved the sentence except for

the six months contingent confinement.    Cimball Sharpton, 72

M.J. at 779.

1
  Appellant was found not guilty on a second oxycodone charge.
The military judge removed the “military property” provision
from the larceny specification.
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United States v. Cimball Sharpton, No. 14-0158/AF


       Before the CCA, Appellant argued that the guilty finding on

the larceny specification was legally and factually insufficient

because the wrong victim was named in the charge.   Id.     The CCA

rejected this argument, stating that larceny was properly

charged with the Air Force as victim because:

       The appellant’s misconduct could not have been charged
       as a larceny from the merchants offering the goods,
       because those merchants made a sale for which they
       were compensated, and therefore they did not lose
       anything of value. Similarly, the appellant’s
       misconduct could not have been charged as a larceny
       against US Bank, because US Bank was wholly repaid for
       the appellant’s purchases, just as it would be for
       authorized purchases. The only victim in this case
       was the United States Air Force, whose funds were
       obligated by the appellant’s unauthorized, repeated
       purchases for her personal use.

Id. at 781.   The CCA affirmed the findings and sentence.      Id. at

786.

       Appellant then appealed to this Court, which granted

hearing on the following issue:

       WHETHER THE AIR FORCE COURT ABUSED ITS DISCRETION IN
       FINDING THE EVIDENCE LEGALLY SUFFICIENT TO SUPPORT A
       CONVICTION FOR LARCENY FROM THE AIR FORCE.

                             DISCUSSION

       Questions of law, including questions of legal sufficiency,

are reviewed by this Court de novo.   United States v. Kearns, 73

M.J. 177, 180 (C.A.A.F. 2014).    This Court has adopted the

Supreme Court’s standard for legal sufficiency, namely, that




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United States v. Cimball Sharpton, No. 14-0158/AF


“‘the relevant question’” an appellate court must answer is

“‘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.’”    United States v. Oliver, 70 M.J. 64, 68

(C.A.A.F. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

     The elements of the crime of larceny are:

     (a)   That the accused wrongfully took, obtained, or
           withheld certain property from the possession of
           the owner or of any other person;

     (b)   That the property belonged to a certain person;

     (c)   That the property was of a certain value or of
           some value; and

     (d)   That the taking, obtaining, or withholding by the
           accused was with the intent permanently to
           deprive or defraud another person of the use and
           benefit of the property or permanently to
           appropriate the property for the use of the
           accused or for any person other than the owner.

Manual for Courts-Martial, United States pt. IV, para. 46.b.

(2012 ed.) (MCM).     The term larceny “encompasses and

consolidates what in the past were separate crimes, i.e.,

larceny, larceny by trick, embezzlement, and obtaining property

by false pretenses.”    Lubasky, 68 M.J. at 263.   “Any of the

various types of larceny under Article 121 may be charged and

proved under a specification alleging that the accused ‘did



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United States v. Cimball Sharpton, No. 14-0158/AF


steal’ the property in question.”     MCM pt. IV, para.

46.c.(1)(a).

       A 2002 amendment to the MCM specifically addresses

identifying the victim in a larceny charged under Article 121,

UCMJ, and committed through credit, debit, and electronic

transactions:    “Wrongfully engaging in a credit, debit, or

electronic transaction to obtain goods or money is an obtaining-

type larceny by false pretense.    Such use to obtain goods is

usually a larceny of those goods from the merchant offering

them.”    MCM pt. IV, para. 46.c.(1)(h)(vi) (emphasis added).    The

Drafters’ Analysis states that the amendment was included to

“provide guidance on how unauthorized credit, debit, or

electronic transactions should usually be charged.”       MCM

Analysis of the Punitive Articles app. 23 at A23-17 (emphasis

added).    However, the analysis leaves open the possibility that

“[a]lternative charging theories are also available.”      Id.

       We view this as a case where such an alternative charging

theory should apply, given that it was neither the merchants nor

U.S. Bank but the Air Force who suffered the financial loss

resulting from Appellant’s larceny.    Based on the facts

presented, the Air Force agreed to pay U.S. Bank for all GPC

purchases.2    Cimball Sharpton, 72 M.J. at 781.   It is clear -- in


2
    See also Air Force Instruction 64-117, which states that:

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United States v. Cimball Sharpton, No. 14-0158/AF


fact stipulated to by Appellant -- that DFAS paid U.S. Bank the

full amount owed for the unauthorized charges.   In view of the

elements of Article 121, UCMJ, Appellant (a) wrongfully obtained

property (namely the Air Force’s appropriated money) that (b)

belonged to a certain person (the Air Force) and (c) was of a

certain value.   By the time we reach element (d) the accused has

taken, obtained, or withheld that money with the intent of

wrongfully and permanently depriving the Air Force of its use.

No other party suffered financially as a result of Appellant’s

actions.

     Both the Government and the CCA attempt to distinguish this

case from our decision in Lubasky.   We find no need to do so.

In Lubasky, as in this case, the victim of the credit card

larceny and the victim of the fraudulent ATM and debit

transactions were those who suffered the financial loss.   68




     Charges on the cardholder statement that involve
     misuse or abuse by the cardholder are not disputable
     with the Bank. If the transaction was processed in
     accordance with the controls established (i.e., within
     the purchase limits, not from a vendor with a blocked
     Merchant Category Code) then the Bank has fulfilled
     its responsibilities under the contract and the
     government is obligated to make payment for the
     transaction. The government must seek restitution
     from the employee for any losses as a result of their
     improper transaction.

Dep’t of the Air Force, Instr. 64-117, Air Force Government-Wide
Purchase Card (GPC) Program para. 3.8.5.2 (Sept. 20, 2011).
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United States v. Cimball Sharpton, No. 14-0158/AF


M.J. at 263-64.   Lubasky is fully consistent with our decision

today.

     The Air Force suffered the financial loss in this case.

Therefore, the Government was correct in charging larceny from

the Air Force.    Since the Air Force was a proper victim, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.

                              DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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