UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             LIND, KRAUSS and BORGERDING
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Private E1 COLBY R. ADAMS
                             United States Army, Appellant

                                      ARMY 20111009

                      Headquarters, I Corps (Rear) (Provisional)
                      Kwasi Hawks, Military Judge (arraignment)
                         Gary Saladino, Military Judge (trial)
                     Colonel Kurt A. Didier, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison , JA; Major Richard E.
Gorini, JA; Captain J. Fred Ingram, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Timothy C. Erickson, JA (on brief).


                                      5 February 2014

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LIND, Senior Judge:

       An officer panel sitting as a special court-martial convicted appellant,
contrary to his pleas, of one specification of conspiracy to commit larceny of
property of a value in excess of $500 and one specification of larceny of property of
a value in excess of $500 in violation of Articles 81 and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 881 and 921 (2006) [hereinafter UCMJ]. The panel
sentenced appellant to a bad-conduct discharge and confinement for one month. The
convening authority approved the adjudged sentence.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises six assignments of error, two of which merit discussion but no relief.
ADAMS—ARMY 20111009

                  FACTS AND PROCEDURAL BACKGROUND

      Appellant and another soldier conspired to steal and ultimately stole two band
saws from a containerized storage unit (CSU) located in their unit motor pool.
Appellant was charged with both larceny and conspiracy to commit larceny of
“government property of a value in excess of $500, the property of the United States
Army” during the period “between on or about 17 March 2009 and on or about
3 August 2010.”

      At trial, appellant’s co-conspirator, PV1 JO, testified on direct and cross-
examination that both the conspiracy and the larceny took place in September or
October 2010, outside the charged period. Appellant’s defense counsel refreshed
PVT JO’s recollection regarding these dates with a statement PVT JO made on
11 February 2011 to military police investigators stating that he and appellant
removed the two band saws from the CSU in October 2010.

       After the close of evidence, the military judge proposed to give a variance
instruction to the members regarding the timeframe for both offenses. Appellant
objected and moved for a finding of not guilty for both charges and their
specifications pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 917 on the
grounds that the government failed to present any evidence that either the conspiracy
to commit larceny or the larceny occurred during the charged time period. The
military judge denied the R.C.M. 917 motion, overruled the objection to the variance
instruction, and issued the timeframe variance instruction to the members. 1

       The military judge also instructed the members, and the trial counsel argued,
on the sentence escalator of “military property.” Appellant did not object to either
the military judge’s instruction or the trial counsel’s argument. The members found
appellant guilty of both offenses by exceptions and substitutions, excepting the
words and figures “17 March 2009 and on or about 3 August 2010” and substituting
the words “17 March 2009 and on or about October 2010.”




1
 The military judge issued a tailored instruction on variance by exceptions and
substitutions from Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook [hereinafter Benchbook], para. 7-15 n.2 (1 Jan. 2010), and the findings
worksheet was modified to provide the members a variance option.




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ADAMS—ARMY 20111009

                               LAW AND ANALYSIS

                                       Variance

        A variance between pleadings and proof exists when evidence at trial
establishes the commission of a criminal offense by appellant , but the proof does not
conform strictly with the offense alleged in the charge. United States v. Allen,
50 M.J. 84, 86 (C.A.A.F. 1999). To prove a fatal variance, appellant must show
both that the variance was material and that he was substantially prejudiced by the
variance. Id. A material variance is one that substantially changes the nature of the
offense; increases the seriousness of the offense; or increases the punishment for the
offense. United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009). A variance
is prejudicial when it either: puts appellant at risk of another prosecution for the
same conduct; misleads appellant to the extent he is unab le to prepare for trial; or
denies appellant the opportunity to defend against the charge. Id. As a general rule,
minor variances, such as the location or the date an offense was allegedly
committed, do not necessarily change the nature of the offense. United States v.
Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003). Further, the words “on or about” in
relation to the dates alleged in the offense generally connote any time within a few
weeks of the “on or about” date. United States v. Brown, 34 M.J. 105, 110 (C.M.A.
1992). On the other hand, in certain circumstances where the major focus of the
litigation centers on the time, place, and nature of the interactions between appellant
and others, a variance as to date can result in a material and prejudicial fatal
variance. See United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003).

       In this case, the offenses allege a broad date range of almost seventeen
months (17 March 2009 to 3 August 2010). Both offenses also include the “on or
about” language preceding the start and end dates alleged. Private JO provided the
evidence at trial that established the date both offenses occurred. His testimony that
the offenses occurred in September or October 2010 created a variance of up to
twelve weeks, and the members so found by exceptions and substitutions .

       Although the charged date range is broad, appellant has not demonstrated that
the variance found by the members was material or prejudicial. We agree with the
military judge that the variance was not material. The military judge properly
overruled appellant’s variance objection, stating “the accused was on notice as to the
appropriate . . . nature of the offense” and the variance did not “go to an essential
element of the offense regarding the severity of the offense.” The essence of the
offenses remains the same: conspiracy to commit larceny and larceny of government
property of a value in excess of $500 identified at trial as two band saws stolen from
the 14th Engineer Battalion Motor Pool. The date variance did not increase the
seriousness of or the punishment for either offense.




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ADAMS—ARMY 20111009

       We also find the date variance was not prejudicial. The variance did not put
appellant at risk of another prosecution for the same conduct. Further , the date
variance did not impede appellant’s ability to prepare for trial or defend against the
charges. The record establishes appellant was on notice in advance of trial that the
evidence against him tended to prove he committed the conspiracy and lar ceny
alleged in September or October 2010 rather than the charged time period, and the
charged dates were “on or about.” Also, a prong of appellant’s defense strategy was
predicated on demonstrating that, although there may be proof appellant committed
those crimes in September or October 2010, the government failed to prove he
committed any offense from March 2009 to August 2010. The date variance in this
case was not a fatal variance.

                           “Military Property” Instruction

       Appellant alleges, and the government concedes, that the trial counsel
improperly argued and the military judge improperly instructed the panel on
“military property” when the accused was charged with conspiracy to commit
larceny and larceny of “government property. . . the property of the United States
Army.” We agree with the parties in light of United States v. Smith, 49 M.J. 269
(C.A.A.F. 1998). 2

       Where the government charges larceny of property of a value in excess of
$500, the terms “government property . . . property of the United States Army” and
“military property” are not interchangeable. See id. An allegation of “military
property,” while not adding an element to the offense, adds a sentence escalator that
was not pled in the charge and specificat ion in this case. See id. at 270.

        Finding error, we test for prejudice and find none. UCMJ art. 59. We are
satisfied beyond a reasonable doubt that the judge’s instruction and the trial
counsel’s improper argument on “military property” did not contribute to the guilty
findings of the charged offenses of conspiracy to commit larceny and larceny of
government property of a value in excess of $500. See Neder v. United States,
527 U.S. 1 (1999). The military judge properly instructed the members on all of the
elements of the charged offenses, to include that the property “belonged to the
United States” and was “government property.” Absent evidence to the contrary,
this court may presume the members followed the military judge’s instructions and
found appellant guilty of all of the instructed -upon elements. See United States v.
Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000). The evidence is sufficient to support
conviction for conspiracy and larceny of “government property.”

2
  This principle also applies to appellant’s conviction for conspiracy to commit
larceny of property of a value in excess of $500.




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ADAMS—ARMY 20111009

       With regard to any possible allegation of prejudice during sentencing, we also
find appellant was not prejudiced by the error. See Smith, 49 M.J. at 271. There is
no dramatic change in the penalty landscape or significant decre ase in sentencing
exposure because appellant’s maximum punishment was capped at the jurisdictional
limit of a special court-martial: a bad-conduct discharge, confinement for one year,
forfeiture of two-thirds pay per month for twelve months, and reduction to the grade
of E-1. UCMJ art. 19; R.C.M. 201(f)(2)(B); R.C.M. 1003(b)(4). Appellant’s
conviction for both the larceny of property of a value greater than $500 and the
conspiracy to commit the larceny of property of a value greater than $500 would
have exposed appellant to a dishonorable discharge, maximum confinement of ten
years, and total forfeitures of all pay and allowances had the case been referred to a
general court-martial. See Manual for Courts-Martial (2008 ed.), pt. IV, ¶¶ 5.e,
46.e(1)(d). During sentencing, the government did not argue for the panel to return
an aggravated sentence because the property was “military property.” The gravamen
of the offenses remain the same, and evidence that the stolen band saws were used or
owned by the military was proper evidence in aggravation under R.C.M. 1001(b)(4).
The sentencing instructions by the military judge made no reference to penalty
escalation because the stolen property was “military property.” Finally, this court
reviews the records of a substantial number of courts-martial involving larcenies and
we have extensive experience with the level of sentences imposed for such offenses.

       After consideration of the entire record, including the errors noted, and in
accordance with the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are
confident the panel would have adjudged the same sentence absent the errors noted.
We also conclude, pursuant to Article 66, UCMJ, that such a sentence is appropriate
for the findings of guilt.

                                   CONCLUSION

      The findings of guilty 3 and the sentence are AFFIRMED.

      Judge KRAUSS and Judge BORGERDING concur.




3
  As reflected on Special Court-Martial Order Number 18, Headquarters, I Corps
(Rear) (Provisional), Joint Base Lewis -McChord, Washington, dated 12 July 2012:
larceny of government property of a value in excess of $500 and conspiracy to
commit larceny of government property of a value in excess of $500.




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ADAMS—ARMY 20111009

                       FORTHE
                      FOR  THECOURT:
                               COURT:




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




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