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

                           UNITED STATES, Appellee
                                        v.
                         Private E2 ALVIN C. ENDSLEY
                          United States Army, Appellant

                                  ARMY 20130052

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
             Lieutenant Colonel John A. Hamner, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Aaron R. Inkenbrandt, JA (on brief);
Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain Aaron
R. Inkenbrandt, JA (on reply brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Kenneth W. Borgnino, JA; Captain Ryan D. Pyles, JA (on brief).

                                  17 October 2014

                              --------------------------------
                              OPINION OF THE COURT
                              --------------------------------

HAIGHT, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of wrongful use of marijuana and larceny, in violation of
Articles 112a and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 921
(2012) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for six months, and reduction to the grade of E-1. Pursuant
to a pretrial agreement, the convening authority approved only five months of
confinement but otherwise approved the adjudged sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, both of which merit discussion, and one of which
merits relief.
ENDSLEY—ARMY 20130052

                                                                  BACKGROUND

       Appellant secretly copied down the debit card number of a fellow squad
member and friend, Specialist (SPC) DT. While SPC DT was deployed to
Afghanistan and appellant remained at home station, appellant wrongfully used that
number to purchase food from the local restaurants of Domino’s and Chinese Chef in
addition to buying erotic and fantasy comic books from Amazon.com. Appellant
unlawfully used SPC DT’s debit card number on no less than 27 occasions, with the
greatest single purchase totaling $100.87.

      Appellant specifically stipulated that when he used SPC DT’s debit card
number, he was using, spending, and stealing “money” from SPC DT’s bank account.
Moreover, during the providence inquiry, appellant admitted multiple times that he
“t[ook] money from [SPC DT’s] bank account using his debit card number.”

       For his misconduct, appellant was originally charged with 23 specifications of
larceny of money from SPC DT. At trial, before pleas, the military judge granted an
unopposed government motion to amend the first larceny specification, making it a
“mega-spec with all the other [larceny] specifications,” by changing “it from a
single incident [on or about 22 May 2012] to ‘between on or about 22 May 2012 and
on or about 25 July 2012, steal money of a value of about $1,000.00, the property of
[SPC DT].’” Specifications 2 through 23 were then dismissed. Later, after pleas,
the military judge, without objection, added the words “on divers occasions” to the
sole remaining larceny specification.

                                                               LAW AND DISCUSSION

                                                                   Proper Victim

       In his first assignment of error, appellant claims the military judge abused his
discretion by accepting appellant’s guilty plea to larceny from SPC DT. Essentially,
appellant argues the true victim in this case is not SPC DT, but the merchants who
sold goods to appellant in exchange for SPC DT’s money. This claim is based upon
our superior court’s rulings in United States v. Lubasky, 68 M.J. 260 (C.A.A.F.
2010); United States v. Gaskill, 73 M.J. 207 (27 Jan. 2014) (summ. disp.); and
United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014). After comparative
analysis and application of these precedential and controlling cases, we find no
error.

         In Lubasky, instead of simply resting on the expansive notion that the victims
of a larceny are any persons or entities with a greater right to possession than the
thief, 1 the Court of Appeals for the Armed Forces (CAAF) determined the “proper
                                                            
1
 See United States v. Faircloth, 45 M.J. 172 (C.A.A.F. 1996); United States v.
Evans, 37 M.J. 468, 472 (C.M.A. 1993).

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ENDSLEY—ARMY 20130052

subject of the credit-card-transaction larcenies” was not the person to whom the
credit card pertained because nothing was obtained from that person. 68 M.J. at
263. Accordingly, CAAF found the language alleging an improper victim
constituted a variance with the proof at trial, determined that a finding by exception
and substitution was not within its purview, and set aside those particular findings of
guilty. Id. at 265.

       On the other hand, regarding unauthorized debit card transactions from the
same victim’s bank account, CAAF determined the person whose name appeared on
the debit card was a proper victim and consequently affirmed those findings of
guilty. Id. at 264. Acknowledging that the Manual for Courts-Martial urges that the
wrongful engaging in a debit transaction to obtain goods or money is “‘usually a
larceny of those goods from the merchant offering them,’” CAAF nevertheless
determined that the account holder was a proper victim because the thief in that case
exceeded his authority with respect to that account. Id. at 263 (quoting Manual for
Courts-Martial, United States (2002 ed.) [hereinafter MCM], pt. IV, ¶ 46.c(1)(h)(iv)
(emphasis added)).

       The twofold determination that the unauthorized use of another’s credit card
is theft from the merchant whereas the unauthorized use of another’s debit card can
be theft of money from the account holder is understandable. One who purchases
goods with a credit card obtains those goods in exchange for a promise to pay.
Specifically, in credit card transactions, an item is obtained via a loan or line of
credit offered by the card issuer to the cardholder, hence the label “credit card.” By
contrast, one who purchases goods with a debit card obtains those goods in exchange
for money which results in an immediate deduction from the cardholder’s account.
In debit card transactions, an item is obtained via an immediate expenditure from
and debit against the cardholder’s account, hence the label “debit card.”

       This same logic carries over to Cimball Sharpton. In that case, the thief was
charged with and convicted of stealing money from the United States Air Force by
the unauthorized use of a government general purchase card to obtain personal goods
from various merchants. Cimball Sharpton, 73 M.J. at 300. Our superior court
reasoned that because the Air Force was contractually obligated to pay for those
unauthorized transactions and was strictly foreclosed from disputing the transaction
with the bank, and because the merchants were paid for the goods they provided, the
proper victim was the Air Force. Id. at 301-02. The court focused on who suffered
the financial loss.

       In the case sub judice, we again point out that SPC DT is the one who
suffered financial loss in that his funds were used and his bank account was
depleted. By contrast, Domino’s, Chinese Chef, and Amazon suffered no apparent
financial loss in that they were paid for the food and products they provided.




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ENDSLEY—ARMY 20130052

       We now turn to CAAF’s summary disposition in Gaskill. In that case, similar
to this one, the thief wrongfully used fellow service members’ debit cards to obtain
pizzas and video games. United States v. Gaskill, ARMY 20110028, 2013 CCA
LEXIS 605 (Army Ct. Crim. App. 12 Aug. 2013) (summ. disp.), rev’d in part, 73
M.J. 207 (C.A.A.F. 2014). Gaskill pleaded guilty, admitted that he stole money
from the service members when he used their debit cards, and this court affirmed
those convictions. Id. On consideration of a petition for grant of review, CAAF
noted that the proper victim was the merchant, “not the debit cardholder/Soldier.”
Gaskill, 73 M.J. 207. Consequently, CAAF set aside the relevant findings of guilty.
Id.

      For purposes of our review in this case, we have difficulty reconciling Gaskill
with Lubasky or Cimball Sharpton.

       First, appellant argues the result in Gaskill was mandated by the holding in
Lubasky, because the reasoning in Lubasky is limited to only those cases where one
exceeds some authority but completely inapplicable to those cases where one has no
authority at all. This cannot be true. One who confers no authority whatsoever upon
another to use his money but is nevertheless cheated out of a certain amount is no
less a victim than one who confers limited authority on another to use his money but
is nevertheless cheated by excess usage. As illustration, Victim A does not consent
to Thief taking any money out of his wallet, but Thief steals $100. Victim B gives
Thief permission to take $10 out of his wallet, but Thief instead takes $110. In both
cases, the victims are out the same amount and suffer the same financial loss due to
a betrayal of trust. In the current case, regardless of whether appellant obtained SPC
DT’s money through taking, trick, or false pretenses, appellant stole funds from SPC
DT. See United States v. Antonelli, 35 M.J. 122 (C.M.A. 1992).

      A logical construction concluding that one who gives some permission is a
victim whereas one who gives no permission is not a victim is premised upon a
shaky foundation.

       Second, appellant argues SPC DT cannot be a proper victim because he
ultimately suffered no financial loss in that his bank reimbursed him “for the money
that was taken.” (emphasis added). We reject any notion that insurance coverage,
indemnity clauses, reimbursement from any source, or contractually provided fraud
protection somehow precludes one whose property is stolen from being properly and
legally considered a “victim” of larceny, an instantaneous offense. To rule
otherwise would allow a thief, once his crime is discovered, to simply reimburse any
and all alleged victims of his theft and thereby immunize himself from conviction
due to the fact that nobody has experienced an enduring financial loss. This is not
the law.

      Certainly, whether a victim is made whole, stolen property is returned, or
reimbursement is paid are matters in mitigation, but these factors are not wholly

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ENDSLEY—ARMY 20130052

determinative of whether or not a larceny occurred in the first place and who was the
initial victim of that larceny. 2 For example, if one is defrauded out of funds but then
made whole either through insurance or fraud protection, it does not follow that the
person was not victimized. The rejection of the idea that after-the-fact
reimbursement does not conclusively identify the victim in no way contradicts
Cimball Sharpton. In Cimball Sharpton, the Air Force was obligated to pay, did
pay, and its stolen funds were used to obtain goods. 73 M.J. at 300-01. Therefore,
the Air Force was a proper victim. Here, SPC DT’s money was stolen and those
stolen funds were used by appellant to obtain goods. Therefore, SPC DT is a proper
victim.

                                                          Larceny of a Value Over $500.00

       Appellant avers that the military judge abused his discretion by accepting
appellant’s guilty plea to larceny on divers occasions of money of a value of about
$1,000.00, because it was never established that appellant stole more than $101.00 at
any one time. The government concedes “the military judge erred in aggregating the
value of appellant’s thefts” and we accept the concession. See United States v.
Harding, 61 M.J. 526 (Army Ct. Crim. App. 2005); United States v. Christensen,
45 M.J. 617, 619 (Army Ct. Crim. App. 1997); MCM, 2012 ed., pt. IV,
¶ 46.c(1)(h)(ii).

       The maximum punishment for this specification should have been that for a
larceny of property of a value of $500.00 or less instead of the greater maximum
punishment for larceny of property of a value of more than $500.00. We adhere to
the principle that when multiple, separate larcenies (not involving bad checks) are
charged in a single, duplicitous specification, the maximum punishment for that
specification is determined by the single largest theft alleged within that
specification. United States v. Fulton, ARMY 20120432, 2013 CCA LEXIS 515
(Army Ct. Crim. App. 27 June 2013) (mem. op.), pet. denied, 73 M.J. 58 (2013);
United States v. Rupert, 25 M.J. 531 (A.C.M.R. 1987). We believe extending United
States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995), beyond bad check offenses is fraught
with concerns and unintended consequences. Contra United States v. Campbell, 72
M.J. 671 (N.M. Ct. Crim. App. 2013), pet. denied, 73 M.J. 139 (2013); United States
v. Oliver, 43 M.J. 668 (A.F. Ct. Crim. App. 1995), pet. denied, 43 M.J. 362 (1995).

      Appellant requests and the government agrees that this court should amend
and affirm the findings of guilty of larceny. We will do so in such a manner as to
appropriately reflect that appellant was only subject to the lesser maximum
                                                            
2
  We need not decide here how a financial institution’s rights of subrogation with
respect to its cardholders may qualify that institution as a proper victim. Suffice it
to say that an owner, and by logical extension a victim, is any entity with a greater
right to possession of the purloined property than the thief.


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ENDSLEY—ARMY 20130052

punishment applicable to larceny of property of some value while still accurately
reflecting appellant’s level of criminality and its recurring nature. See Harding, 61
M.J. 526.

                                   CONCLUSION

      The court amends and AFFIRMS only so much of the finding of guilty of The
Specification of The Charge as finds that:

             The Specification: In that Private (E2) Alvin C. Endsley,
             U.S. Army, did, at or near Fort Riley, Kansas, on divers
             occasions between on or about 22 May 2012 and on or
             about 25 July 2012, steal money, each theft of a value of
             less than $500.00 with the value of the multiple thefts
             totaling about $1,000.00, the property of Specialist D.V.T.

The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In evaluating the Winckelmann
factors, we first find no dramatic change in the penalty landscape or exposure which
might cause us pause in reassessing appellant’s sentence. Although the military
judge may have miscalculated the maximum sentence for the larceny specification,
appellant was subject to the jurisdictional limit of a special court-martial regardless
of the value of the stolen property due to his contemporaneous drug conviction. See
Rule for Courts-Martial 201(f)(2)(B)(i); MCM, 2012, pt. IV, ¶ 46.e(1)(b), (d), and ¶
38.e(1)(b). Second, appellant was sentenced by a military judge alone. Third, the
nature of the amended larceny offense still captures the gravamen of the
specification of which appellant was convicted. Finally, based on our experience,
we are familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       After reassessing the sentence and the entire record, we AFFIRM the
approved sentence. We find this purges the error in accordance with Sales and
Winckelmann and is also appropriate under Article 66(c), UCMJ. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision, are ordered restored.

      Senior Judge COOK and Judge TELLITOCCI concur.




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ENDSLEY—ARMY 20130052
                        FOR THE
                        FOR THE COURT:
                                COURT:




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




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