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

                              UNITED STATES, Appellee
                                           v.
                            Specialist DAVID A. CORNELL
                             United States Army, Appellant

                                     ARMY 20120256

                 Headquarters, National Training Center and Fort Irwin
                            Karen W. Riddle, Military Judge
                Lieutenant Colonel Gail A. Curley, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Aaron R. Inkenbrandt, JA (on
brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain T. Campbell Warner, JA (on brief).

                                       20 March 2013

                               -------------------------------------
                                 SUMMARY DISPOSITION
                               -------------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of larceny of military property of a value more than $500.00 in
violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (2006)
[hereinafter UCMJ]. 1 The convening authority approved the adjudged sentence of a
1
    The specification alleged appellant:

               [d]id, at or near Fort Irwin, California, on divers
               occasions, between on or about 1 June 2010 and on or
               about 10 October 2011, steal military property of the
               United States Government, of a value greater than
               $500.00, to wit: two M2 .50 Machine Gun Barrel
               Extension Assemblies, two M2 .50 Machine Gun Bolt Sub-
               Assemblies, one M24 Sniper Rifle Scope Assembly, other
               small arms repair parts, small arms ammunition, and other
               weapons-related equipment.
CORNELL—ARMY 20120256

bad-conduct discharge, confinement for twelve months, and reduction to the grade of
E-1.

       This case is before us for review under Article 66, UCMJ. Pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant personally alleges he was
only provident to a single larceny of military property with a value of more than
$500.00 and the military judge erred by finding him guilty of this offense on “divers
occasions.” Appellant argues the military judge improperly aggregated the value of
the numerous stolen items in determining the value of the property exceeded
$500.00. Appellant therefore requests this court disapprove the “divers” portion of
the findings and provide him meaningful relief.

       Although we ultimately agree with appellant’s request to delete “divers” from
the specification, we do so for a different reason discussed below.

                              LAW AND DISCUSSION

       It has long been established that “larcencies of property from different
locations on different dates are separate crimes and cannot be combined into one
specification . . . in order to aggregate the value of the property stolen to a larger
sum[.]” United States v. Rupert, 25 M.J. 531, 532 (A.C.M.R. 1987).

        To find appellant guilty of a larceny of military property of a value over
$500.00, and thereby increase the possible maximum punishment of confinement
from one to ten years, “the record must show either that one item of the property
stolen has [a value of more than $500.00] or that several items taken at substantially
the same time and place have such an aggregate value.” United States v. Harding,
61 M.J. 526, 528 (Army Ct. Crim. App. 2005) (citing United States v. Christensen,
45 M.J. 617, 619 (Army Ct. Crim. App. 1997).

       This court looks to appellant’s testimony during the providence inquiry and
the written stipulation of fact to determine if an adequate factual predicate was
established to support appellant’s guilty plea. Harding, 61 M.J. at 530. Appellant
stated during the providence inquiry, “[a]s a former armorer, I am aware of the value
of this property, both added together and in most cases, separately, would amount to
more than $500.00.” The military judge followed up on this statement by later
establishing with appellant that “some of the property by themselves [sic], certain
property was more than $500.00 by itself.”

      It is clear from the stipulation of fact that the two M2 .50 machine gun barrel
extension assemblies, the two M2 .50 caliber machine gun bolt sub-assemblies, and




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CORNELL—ARMY 20120256

the M24 sniper rifle scope assembly had individual values of more than $500.00. 2
During his providence inquiry, appellant admitted he stole both of the machine gun
barrel extension assemblies and the two machine gun bolt sub-assemblies at the same
time and, on a separate occasion, stole the M24 sniper rifle scope assembly.
Therefore, the record establishes appellant was, in fact, guilty of stealing military
property of a value greater than $500.00 on two occasions.

      In most cases, this would be enough to find appellant guilty of the charged
larceny on “divers occasions,” because the common definition of “divers” is two or
more. However, during the providence inquiry, the military judge defined “divers
occasions” as “more than two occasions.”

       Therefore, because the record establishes the appellant was guilty of stealing
military property of a value of more than $500.00 on only two occasions and “divers
occasions,” as defined by the military judge, required at least three occasions, we
are required to delete “divers” from the specification and will take appropriate
action in our decretal paragraph. In determining the effect of the noted error on the
sentence, we note the maximum punishment for this offense remains unchanged and
the scope of the larcenies appellant stands convicted of also have not changed.

                                  CONCLUSION

       The court amends and affirms only so much of the finding of guilty of The
Charge and its specification as finds that the appellant “did, at or near Fort Irwin,
California, between on or about 1 June 2010 and on or about 10 October 2011, steal
military property of the United States Government, of a value greater than $500.00,
to wit: two M2 .50 Machine Gun Barrel Extension Assemblies, two M2 .50 Machine
Gun Bolt Sub-Assemblies, one M24 Sniper Rifle Scope Assembly, other small arms
repair part, small arms ammunition, and other weapons-related equipment.” 3
Reassessing the sentence on the basis of the modified findings, the entire record, and
in accordance with 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, the sentence as
approved by the convening authority is AFFIRMED.




2
 The remaining items listed on the charge sheet did not have individual values in
excess of $500.00 and it was established that these items were not taken at
substantially the same time and place to permit the aggregating of their values.
3
 Contrary to the government’s concession, we are not required to strike those items
of a value less than $500.00 from the specification and choose not to do so.


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CORNELL—ARMY 20120256

                        FOR
                         FOR THE
                             THE COURT:
                                 COURT:




                        MALCOLM H.
                        MALCOLM       H. SQUIRES,
                                          SQUIRES, JR.
                                                    JR.
                        Clerk of
                        Clerk  of Court
                                  Court




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