                                   IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                   Bertram T. DANIELS, Staff Sergeant
                       U. S. Air Force, Appellant


                                   No.     01-0607


                             Crim. App. No. 33761

       United States Court of Appeals for the Armed Forces

                          Argued December 11, 2001

                            Decided March 15, 2002

    SULLIVAN, S.J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.

                                       Counsel

For Appellant:   Lieutenant Colonel Brandon A. Burnett (argued);
    Lieutenant Colonel Beverly B. Knott, Lieutenant Colonel
    Timothy W. Murphy, and Major Maria A. Fried (on brief); Major
    Jeffrey A. Vires.



For Appellee:   Major John D. Douglas (argued); Colonel Anthony
    P. Dattilo and Major Lance B. Sigmon (on brief).




Military Judge: W. Thomas Cumbie

        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Daniels, 01-0607/AF




    Senior Judge SULLIVAN delivered the opinion of the Court.



    On April 26 through 29, 1999, appellant was tried by a

general court-martial with officer and enlisted members at

McChord AFB (AFB), Washington.   Contrary to his pleas, he was

found guilty of one specification of willful damage to military

property, a C-141B aircraft, and one specification of making a

false official statement, in violation of Articles 108 and 107,

Uniform Code of Military Justice, 10 USC §§ 908 and 907.   The

members sentenced him to a bad-conduct discharge, reduction to

pay grade E-1, and forfeiture of all pay and allowances.   On July

29, 1999, the convening authority approved the sentence as

adjudged.



    The Air Force Court of Criminal Appeals affirmed the findings

of guilty on March 28, 2001.   However, it reduced the sentence by

affirming only so much of the sentence as provided for a

bad-conduct discharge, reduction to E-1, and forfeiture of

$632.00 pay per month until the bad-conduct discharge is

executed.   United States v. Daniels, No. 33761 (A.F. Ct. Crim.

App. March 28, 2001).



    On September 12, 2001, this Court granted review of the

following issue:



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United States v. Daniels, 01-0607/AF




            WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
            TO CONVICT APPELLANT OF WILLFULLY DAMAGING
            MILITARY PROPERTY.


We hold that, based on the evidence in this case, a rational

trier of fact could have found beyond a reasonable doubt all of

the elements of the offense of willfully damaging military

property, i.e., the nose landing gear inspection window of a

C-141B aircraft.    Therefore, we affirm the decision below.      See

United States v. Davis, 44 MJ 13, 18-19 (1996); see generally

Jackson v. Virginia, 433 U.S. 307, 319 (1979).




      Evidence was admitted in this case that on February 11, 1998,

appellant was a Reservist serving on active duty as a loadmaster

for a flight between Hickam AFB, Hawaii, and Yokota AFB, Japan.1

During that flight, the aircraft failed to pressurize.       After an

in-flight inspection of the aircraft, appellant advised the crew

that the number two hatch, an emergency crew escape hatch, was

unsecured.    The aircraft returned to Hickam, and the mission was

delayed one day.    The next day, the aircraft flew to Yokota.



      The second leg of the mission was a return flight from Yokota

to Hickam on February 14, 1998.       Again, shortly after takeoff,

the aircraft failed to pressurize, and the pilot, Major Bomar,




1   The flight actually initiated at McChord AFB, Washington.

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United States v. Daniels, 01-0607/AF




made the decision to return to Yokota.    Master Sergeant Jones,

the flight engineer, testified that after the aircraft landed,

appellant showed him some screws and asked him if he (Jones) knew

where the screws came from.    Jones testified that he thought he

recognized the screws as being from the main landing gear

inspection window.    However, they proved to be too long.    He then

realized that because of their length, the screws came from the

nose landing gear inspection window.



    The nose landing gear inspection window is located behind the

crew's latrine.    Master Sergeant Jones and appellant checked the

nose landing gear inspection window and found that only one screw

(of six) was in place.    Jones testified that appellant told him

the trashcan in the latrine had been turned over and the screws

were on the floor.    A further search of the trashcan turned up an

additional screw, to account for all six required to secure the

window.    Major Bomar testified that he determined the cause of

the depressurization problem was the unsecured inspection window.

(R. 107-08, 117)



     Staff Sergeant Ray Wallace testified that on February 11

through 14, 1998, he was a loadmaster on the mission from McChord

AFB, Washington, through Hickam AFB, Hawaii, to Yokota AFB,

Japan, and back.    Appellant was also a loadmaster on that

mission.




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United States v. Daniels, 01-0607/AF



     Sergeant Wallace testified that on the return leg of the

mission (from Yokota to Hickam), he conducted the preflight

inspection of the aircraft, which included checking the crew

latrine for cleanliness and serviceability.       He did not see any

screws in the sink or on the floor of the latrine, and there was

no trash in the trashcan.   The nose landing gear inspection

window appeared to be in place.       He and Staff Sergeant Chris

Wallis, a second member of the crew, then left the aircraft to

get breakfast.   Appellant remained with the aircraft.



     Sergeant Wallace testified that, after having some breakfast

in the air station terminal, he returned to the aircraft to

conduct a stowaway check.   However, he did not personally conduct

a stowaway check in the crew's latrine.        At the time he

conducted the inspection, appellant was working in the area

between the crew's latrine and the comfort pallet.2      Because of

the lack of space between the latrine and the comfort pallet, he

pointed to the latrine.   Appellant gave him a "thumbs up" and

reached for the door handle.   Sergeant Wallace testified that

these gestures made him believe that appellant would check the

latrine.



     Sergeant Wallis testified that on the morning of February

14, 1998, he was assigned as the "scanner" for the mission as it


2 The "comfort pallet" is a modular compartment that has
latrines, a refrigerator, and other items for the comfort of
passengers in what is essentially an aircraft configured to haul
cargo.

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United States v. Daniels, 01-0607/AF



left Yokota AFB. (R. 219)    As the scanner, he walked around the

aircraft "looking for obvious things" and then began his

preflight inspection of the aircraft.       As part of this

inspection, he checked the nose landing gear inspection window

from the outside by physically tapping it.       The window was in

place and secure. (R. 220-21)



    After these checks, he went back to the terminal to get some

food.   When he returned to the aircraft, he made a second

exterior check of the aircraft, put on his communications

headset, and started the engines.       After the preflight checks

were complete, he boarded the aircraft and went to the flight

deck.



     Sergeant Wallis also testified that after the aircraft took

off, he made an additional interior check to insure that the

aircraft was operating properly.       About midway through this

check, appellant informed him that the aircraft, was not

pressurizing. (R. 223)    Wallis testified that he immediately

checked the rear doors of the aircraft, as well as other areas.

However, he could not find any opening that might have precluded

proper pressurization.    Because the crew was unable to find any

breaks in the integrity of the aircraft, the aircraft commander

returned to Yokota AFB.



     As the aircraft crew was waiting on the ground at Yokota, a

maintenance crew inspected the aircraft but could not find the


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United States v. Daniels, 01-0607/AF



problem.    Major Bomar called off the flight.    Ninety minutes

after the flight had landed again, appellant approached Wallis

and said, "Look what I found," displaying several screws. (R.

224)    Appellant did not tell Wallis where he found the screws.

However, Wallis recognized the screws and asked appellant if they

came from the inspection window.       Appellant stated: “Nose landing

gear inspection window.” (R. 225)



       Appellant initially told Sergeant Wallis that he had gone

into the latrine and found the trashcan tipped over, and that

three screws were on the floor of the latrine and others were in

the trashcan itself.    Later (about one-and-a-half hours), he told

Wallis that he had found the screws when he went to use the

latrine and saw them on the floor.      However, when Wallis asked

him about the trashcan, appellant appeared not to know what he

was talking about. (R. 225)



    Special Agent (SA) Mark Walker of the Office of Special

Investigations (OSI) testified that he was initially directed to

conduct an investigation into the possible tampering with an

aircraft. (R. 253)    He inspected the aircraft and found that

screws had been removed from the nose landing gear inspection

window. (R. 255)    He interviewed a number of people on the scene,

including appellant.    He testified appellant informed him that

after the aircraft returned to Yokota AFB, the crew had inspected

the aircraft.    Appellant further told SA Walker that he had

entered the crew latrine to find that the trashcan had been


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United States v. Daniels, 01-0607/AF



turned over, and that three screws were laying on the floor.

After taking a number of photographs of the area, SA Walker

decided to continue the investigation the following day.



     The following day, appellant came to the OSI offices.      He

was warned of his rights under Article 31(b), UCMJ, 10 USC

§ 831(b), and acknowledged those rights.    He agreed to speak with

SA Walker and gave him a statement.    During this statement,

appellant reiterated his earlier assertions that he had found the

screws on the floor in the crew's latrine.



     SA Tracy Tomlins, also of the OSI, testified that during his

subsequent interview with appellant, he related the same story as

he had given SA Walker.   However, about two hours later,

appellant told him that when he learned the aircraft would not

pressurize, he helped conduct an inspection to determine the

cause.   Appellant told SA Tomlins that he had entered the crew's

latrine to find the nose landing gear inspection window unsecured

and hanging from one screw.   The remaining screws were in the

sink in the latrine.   Tomlins further testified that appellant

said he took the screws and simply closed the door with the idea

of handling the matter "in-house." (R. 271)



     SA Tomlins then testified appellant said that when the

aircraft landed, he went to the latrine and replaced the screws

in the window.   Appellant also told him that when the aircraft

inspection team could not find a cause for the inability to


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United States v. Daniels, 01-0607/AF



pressurize the aircraft, he removed the screws and placed them in

the trashcan.   At some later point, he walked into the latrine,

took the screws out of the trashcan, and “show[ed] them to the

maintenance . . . folks.” (R. 272, 276)



                              — — — —



    Appellant was found guilty of willfully damaging military

property of the United States, i.e., a United States Air Force

C-141B aircraft, by “causing the nose landing gear inspection

window to be insecurely housed,” in violation of Article 108,

UCMJ.   (Charge Sheet at R. 7.1)       The President, in the Manual for

Courts-Martial, has explained the elements of this offense as

follows:



           1. That the accused, without proper
           authority, damaged. . .certain property in
           a certain way. . .;

           2. That the property was military
           property of the United States;

           3. That the damage. . .was willfully
           caused by the accused. . .; and

           4. That . . .the damage was of a certain
           amount.

Para. 32b(2), Part IV, Manual for Courts-Martial, United States

(1995 ed.).3




3 The current version of this Manual provision is identical to
the one in effect at the time of appellant’s court-martial.

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United States v. Daniels, 01-0607/AF



    The initial question raised by appellant is whether there was

sufficient evidence in this case that military property was

actually damaged, as required by Article 108, UCMJ.    In most

cases, there is proof of visible damage to military property,

such as a broken window in a military vehicle or building.

However, a   physical breaking of the property need not always be

shown.   See United States v. Ortiz, 24 MJ 164, 170-71 (CMA 1987)

(holding that disengagement of an electrical relay in an anti-

skid system on an F-15 airplane was damage within meaning of

Article 108, UCMJ).



    In United States v. Peacock, 24 MJ 410, 411 (CMA 1987), this

Court commented on the requirement for damage under Article 108,

UCMJ, as follows:



              Criminal prohibitions against damage,
          loss, or spoliation of military property
          and stores have a long history in military
          law. See generally G. Davis, A Treatise
          on the Military Law of the United States
          364 (3d ed. 1913); W. Winthrop, Military
          Law and Precedents 557-59 (2d ed. 1920
          Reprint). In enacting Article 108,
          Congress intended to consolidate the
          various articles of war protecting
          military property and to eliminate certain
          technical distinctions between them.
          Uniform Code of Military Justice:
          Hearings on H.R. 2498 Before a Subcomm. of
          the House Comm. on Armed Services, 81st
          Cong., lst Sess. 1230 (1949). In doing
          so, it intended to continue to offer
          special protection to military property
          because of its function or role in the
          national defense. See United States v.
          Schelin, [15 MJ 218, 220 (CMA 1983)]. In
          light of the purpose of this statute, the
          word “damage” must be reasonably construed


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United States v. Daniels, 01-0607/AF



           to mean any change in the condition of the
           property which impairs its operational
           readiness. See United States v. Ortiz,
           supra. Appellant’s act of placing foreign
           objects in the fuel tanks impaired their
           utility to accomplish the mission of the
           Air Force just as much as if he had
           punctured these tanks or the tires of the
           aircraft which carried them.


(Emphasis added.)



    In the present case, there was no evidence of permanent

damage to the aircraft resulting from the removal of the screws

from the nose landing gear inspection window.   However, there was

ample evidence that the removal of these screws before or during

the flight of the plane led to its failure to pressurize and

required the commander to terminate the military mission of the

plane.   This evidence was provided by the testimony of Major

Bomar (R. 106-08), Sergeant Wallis (R. 208), and appellant’s own

admissions.   Under Ortiz and Peacock, both supra, this was

legally sufficient evidence to support his conviction under

Article 108, UCMJ.



    The second question raised by appellant is whether there was

sufficient evidence showing that he was the perpetrator of the

charged offense.    There was no direct evidence establishing him

as the perpetrator of this offense.    No one actually saw him in

the crew latrine removing the screws, and appellant made no

statement admitting that he touched those screws, except as part

of his discovery of the initial damage.



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United States v. Daniels, 01-0607/AF




    Nevertheless, there was evidence introduced in this case that

the inspection window was secure when both the loadmaster and

“scanner” checked it some forty-five minutes prior to the flight.

It was also shown that appellant was on the aircraft, ostensibly

preparing for the mission, during the period directly prior to

takeoff, and he indicated to Sergeant Wallace that he would check

the latrine for stowaways.    Finally, appellant admitted that he

“found” the screws that should have secured the windows, and he

made inconsistent statements to the flight crew and the OSI as to

what he then did with them.   The variations in those statements

could be viewed by the members as evidence of his consciousness

of guilt.   See United States v. Elmore, 33 MJ 387, 398 (CMA

1991).   On this evidence and the inferences derived therefrom, a

rational trier of fact could have concluded beyond a reasonable

doubt that it was appellant who damaged the aircraft by removing

the screws from the airplane window.   United States v. Davis, 44

MJ at 18-19.



    The third question raised by appellant is whether the

evidence is legally insufficient because it fails to establish a

motive for appellant to damage the airplane.   Final Brief at 8.

Appellant argues that the evidence in this case shows that only

Sergeant Wallace, his fellow crewmember, had a motive to disable

the plane, i.e., his desire to spend more time with a female

passenger at the Yokota Air Base terminal.   Id at 9.   We disagree




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United States v. Daniels, 01-0607/AF



that such an evidentiary argument rendered appellant’s conviction

legally insufficient.



    Proof of motive may be relevant to the question of the

identity of the person who does an act consistent with that

motive.   See United States v. Whitner, 51 MJ 457, 460-61 (1999).

However, there is no legal requirement that the Government prove

beyond a reasonable doubt that appellant had a motive to

wrongfully damage military property in order to secure a

conviction of this offense.   See Article 108, UCMJ; para. 32b(2),

Part IV, Manual, supra.   Accordingly, the existence of evidence

that another airman may have had such a motive to damage the

military airplane did not establish the legal insufficiency of

the case against appellant.   See generally Charles E. Torcia,

1 Wharton’s Criminal Law § 89 at 610 (1993).



    The decision of the United States Air Force Court of Criminal

Appeals is affirmed.




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