UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, ALDYKIEWICZ, and MARTIN
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                         Private E1 JACOB M. LAFATA
                         United States Army, Appellant

                                  ARMY 20110124

                       Headquarters, 2nd Infantry Division
                          T. Mark Kulish, Military Judge
                 Colonel Jeffery D. Pederson, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Richard E. Gorini, JA; Captain
A. Jason Nef, JA (on brief).

For Appellee: Major Katherine S. Gowel, JA; Lieutenant Colonel John Lynch, JA
(on brief).


                                 15 November 2012

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of conspiracy to commit robbery, disobeying a superior
commissioned officer (three specifications), violating a lawful general order (two
specifications), flight from apprehension, resisting apprehension, robbery, and drunk
and disorderly conduct, in violation of Articles 81, 90, 92, 95, 122 and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 881, 890, 892, 895, 922, 934 (2006). The
military judge sentenced appellant to confinement for seven months and a bad-
conduct discharge. The convening authority approved only so much of the sentence
as provides for confinement for five months and a bad-conduct discharge.

       On appeal, appellant raised a single assignment of error concerning the
military judge’s acceptance of his guilty plea to Charge I and its Specification
(conspiracy to commit robbery) without questioning appellant about the defense of
voluntary intoxication. This assignment of error warrants discussion but no relief.
LAFATA—ARMY 20110124

        Although there is evidence in the record that appellant was intoxicated at the
time he and his co-accused conspired to rob and then robbed another soldier,
evidence of mere intoxication alone is not enough to raise an issue of voluntary
intoxication. United States v. Peterson, 47 M.J. 231, 233–34 (C.A.A.F. 1997). The
issue of voluntary intoxication as a defense to specific intent crimes is not triggered
unless the evidence indicates that the level of intoxication was of such a severity
that it rendered appellant incapable of forming the necessary intent for those crimes.
Id at 234. In this case, the evidence in the record fails to establish that appellant
was so intoxicated that he was incapable of forming the specific intent associated
with robbery and conspiracy to commit robbery. *

       Both the stipulation of fact and appellant’s statements during the providence
inquiry indicate appellant, although drinking before the incident, clearly
remembered agreeing to a plan to rob an individual and taking part in the robbery by
striking the victim in the stomach before another co-conspirator took the victim’s
wallet. The following exchange with the military judge illustrates appellant’s
awareness of the conspiracy and robbery to which he was a party:

         ACC: . . . In Tokori we went to Joy Club and in that club we
         drank more and we brought up the idea of robbing an individual
         we see, the first individual we see, and we left the club, we seen
         someone, and we initiated.

         MJ: Okay, and when you say “we” you are referring to who?

         ACC: Private [ME], [JD], and me, and [Private RSR].

         MJ: Okay, and was it in the bar in Tokori, I guess it would be the
         Club Joy bar, that you reached this agreement or was it as you
         were leaving?

         ACC: In the club, sir.

         MJ: Okay. At the time, what did you understand that to mean,
         robbing the first individual you saw?

         ACC: If one of us were to attack or go up to an individual and use
         force then I would go up or join in.
         ....


*
 Although not raised in his assignment of error, our analysis applies equally to the
robbery charge of which appellant was convicted because it too is a specific intent
crime. United States v. Thomson, 3 M.J. 271, 273 (C.M.A. 1977).


                                           2
LAFATA—ARMY 20110124

         MJ: Okay, so at the time you understood it would not only be
         attacking somebody physically but taking money from them?

         ACC: Yes, sir.

         MJ: . . . Okay, so you all talked and had this agreement and then
         what happened after that?

         ACC: We left the club, seen—we see Sergeant [PK], the victim,
         walking down the side street, and Private [JD] approaches, asks
         him for his cell phone to use to call, and when he gets about three
         or four feet from him, Sergeant [PK] takes out his phone and
         Private [JD] strikes him in the face. And I proceeded with
         [Private RSR] and [Private ME] to assist him

         MJ: Okay, and when you say you “proceed[ed] to assist him”
         what do you mean by that?

         ACC: Rob—just rob and assault.

         MJ: Okay, well after [Private JD] struck Sergeant [PK] what
         exactly did you do?

         ACC: I ran up and I seen him getting taken to the ground. I strike
         him once in the stomach area and from there I step back and I see
         others kicking him and then after that we just left.

From this clear recollection it is obvious that the appellant “knew what he was
doing, and intended to do what he did.” United States v. Box, 28 M.J. 584, 585
(A.C.M.R. 1989). Moreover, appellant’s additional recollection of his subsequent
flight from military police officers (MPs) after the robbery bolsters the fact he was
aware of what he was doing:

         ACC: I—when I seen the MPs coming I ran into the woods. I fell
         into a small ditch and stayed there. I heard them calling out
         telling that they were MPs and I refused to get up. And I was
         finally found. And upon being found I still kept yelling, saying
         stuff, kept wal—I walked off without stopping, they told me to
         stop, stay were I was, but I kept going anyhow. . . .
         ....

         MJ: Did you have any reason to think that the [MP] patrol vehicle
         was there because of Sergeant [PK]? . . .



                                           3
LAFATA—ARMY 20110124

         ACC: Yes, sir.

         MJ: Why?

         ACC: Because we just left the area where the incident happened
         with Sergeant [PK].

Therefore, there is not a substantial basis in law or fact to question the providence of
appellant’s plea. See United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).

      On consideration of the entire record, to include the issue raised by appellant,
we are satisfied the findings are correct in law and fact and that the sentence is
appropriate. Accordingly, the findings of guilty and the sentence are AFFIRMED.


                                        FOR THE COURT:




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




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