UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                            MULLIGAN, FEBBO, and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Private E2 ERIC MINSHALL
                          United States Army, Appellant

                                   ARMY 20140981

                          Headquarters, 1st Cavalry Division
                          Wade N. Faulkner, Military Judge
              Lieutenant Colonel Alison C. Martin, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Anne C. Hsieh, JA (on brief).


                                     25 April 2017

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                               SUMMARY DISPOSITION
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Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
consistent with his pleas, of one specification each of attempted larceny, going from
his place of duty, absence without leave, and false official statement; seven
specifications of larceny; and one specification of housebreaking, in violation of
Articles 80, 86, 107, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§
880, 886, 907, 921, 930 (2012) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for 181 days, and reduction to the
grade of E-1. He credited appellant with fifty-three days against the sentence to
confinement. The convening authority approved the sentence as adjudged.

      This case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error. We discuss each argument and determine
they do not merit relief.
MINSHALL—ARMY 20140981


                                   BACKGROUND

      Appellant was convicted pursuant to his pleas of seven specifications of
larceny, along with other offenses, all related to stealing items from his barracks
cohabitants. On appeal he contests two of the larceny convictions alleging
substantial bases in law and fact to question the providence of his pleas.

       The facts of appellant’s crimes are uncontested. In the evening hours of 8
September 2014 and while a guest in another soldier’s barracks room on Fort Hood,
appellant stole Private First Class (PFC) KH’s wallet containing a debit and credit
card. Immediately after stealing the cards, appellant drove to an off-post Exxon
Mobil gas station and used the stolen credit card to buy a prepaid Visa card for
$101. Appellant then drove to the M&R Convenience Store and again used the
stolen credit card to purchase a prepaid phone card for $48.07. Appellant attempted
to buy more prepaid Visa cards and prepaid phone cards from Wal-Mart, but the
stolen credit card was declined for suspected fraudulent activity. After having the
credit card declined, appellant threw away the stolen credit and debit cards.

       On 30 October 2014, appellant stole Private (PVT) JA’s debit card. Appellant
saw the soldier leave his barracks room unlocked and unattended, waited until the
soldier was out of sight, and entered the room. He searched through PVT JA’s
personal items until he found the soldier’s Fort Hood National Bank debit card,
which he stole. Appellant stipulated that on 1 November 2014, he used this stolen
debit card to make multiple purchases of prepaid Visa cards and Verizon prepaid
phone cards from both the Fort Hood Post Exchange and the on-post III Corps
Shoppette. The total of his multiple thefts was $575.88.

       Appellant alleges the larceny specification encompassing his criminality on 8
September 2014, (Specification 4 of Charge I), should be questioned for three
reasons. First, appellant did not steal the prepaid Visa card and prepaid phone card
“on divers occasions” from each location but rather he went to each location once on
the same day. Second, the military judge erroneously assigned a value of $101 to
the prepaid VISA card and a value of $48.07 to a prepaid phone card. And third,
theft of a prepaid phone card is actually the theft of services and not a larceny of the
assigned value of the card.

      Appellant makes similar allegations regarding a second larceny specification,
(Specification 7 of Charge I), in which the Fort Hood Exchange and the III Corps
Shoppette are the named victims of his criminality on 1 November 2014.




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MINSHALL—ARMY 20140981

                             LAW AND DISCUSSION

       We will not disturb a guilty plea unless appellant demonstrates “a substantial
basis” in “law or fact” to question the plea. United States v. Inabinette, 66 M.J. 320,
322 (C.A.A.F. 2008). “We review a military judge’s decision to accept a guilty plea
for an abuse of discretion and questions of law arising from the plea de novo.” Id.

       Appellant’s first allegation of error involves the use of the term “on divers
occasions.” He alleges it does not adequately reflect the facts of this case. We
disagree. Here the military judge correctly defined “on divers occasions” as
meaning two or more occasions. 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. United States v.
Harding, 61 M.J. 526, 530 (Army Ct. Crim App. 2005). The record clearly reflects
appellant committed two separate larcenies against two different victims at two
different locations on the same day: 8 September 2014. The same analysis applies
again to the 1 November 2014 misconduct. The use of term “on divers occasions”
signifies two acts of larceny within a single specification.

       Specification 4 of Charge I alleges appellant stole “goods” on divers
occasions, which is exactly what he did. The specification, which combined two
larcenies from two different locations and two different victims into a single
specification “on divers occasions,” could have been properly charged as two
separate specifications. Here the government elected to combine the two larcenies
into a single specification and use the term “on divers occasions” to signify the two
distinct larcenies: one from the Exxon Mobile gas station and the other, separate
larceny from the M&R Convenience Store.

       Similarly, the larceny specification for appellant’s use of PVT JA’s stolen
debit card on 1 November 2014 which alleged “on divers occasions” involved two
different victims, the Fort Hood Post Exchange and the III Corps Shoppette
respectively, at two different locations and at different times. In contrast to his
conduct on 8 September 2014, where he purchased one prepaid Visa card and one
prepaid phone card, appellant admitted in his stipulation of fact that on 1 November
2014 “[a]t the two locations, he buys multiple Visa prepaid credit cards and Verizon
prepaid phone-cards totaling $575.88.” The use of the word “on divers occasions” in
the context of appellant’s larcenies on 1 November 2014 was clearly appropriate.

       Appellant’s second argument asserts the military judge erroneously assigned
values to the prepaid Visa cards and the prepaid phone cards beyond the nominal
value of the cards themselves. Value is a question of fact to be determined on the
basis of all the evidence admitted. United States v. Manriquez, ARMY 20140893,
2016 CCA LEXIS 347 (Army Ct. Crim. App. 20 May 2016) (mem. op.). Here,
appellant directly contradicts on appeal what he agreed to regarding the value of the

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MINSHALL—ARMY 20140981

prepaid Visa card and prepaid phone card in the stipulation of fact and his sworn
testimony during the providence inquiry. It is appropriate to reject facts asserted on
appeal that contradict an appellant’s admissions during his guilty plea. United
States v. Ferguson, 68 M.J. 431, 434 (C.A.A.F. 2010). It is clear the value of the
prepaid Visa cards and the prepaid phone cards went beyond the mere cost of the
plastic itself.

       Lastly, appellant alleges the theft of a prepaid phone card is actually a theft of
services, not a larceny of the prepaid card. We disagree. Appellant misconstrues,
under the facts of this case, at what point a larceny took place. The larcenies were
complete when the named victim businesses parted with their property under false
pretenses. The fact that a prepaid phone card can later be redeemed for phone
services does not transform the theft of a card into the theft of services. United
States v. Oki, ARMY 20050114, 2006 CCA LEXIS 431, at *4 (Army Ct. Crim. App.
28 June 2006) (mem. op.)

       Unlike here, in Oki, appellant in that case used a stolen credit card to deal
directly with the phone company to steal services. Id. There was not a larceny of a
good (a prepaid phone card) but rather a theft of services (credit of minutes) directly
from the phone company to Specialist Oki’s phone.

                                    CONCLUSION

       Having resolved there is no substantial basis in law upon which to question
appellant’s plea, and finding appellant described in the providence inquiry all the
facts necessary to establish his guilt, the findings of guilty and the sentence are
AFFIRMED.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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