BURKS – ARMY 20070393

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

HOLDEN, HOFFMAN, and SULLIVAN

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 JOSEPH W. BURKS**

**United States Army, Appellant**

ARMY 20070393

Headquarters, Fort Hood

Charles Walters, Military Judge

Lieutenant Colonel Richard W. Rousseau, Staff Judge Advocate 

For Appellant:  Major Sean F. Mangan, JA; Captain Christopher W. Dempsey, JA.

For Appellee:  Pursuant to A.C.C.A. Rule 15.2, no response filed. 

8 February 2008

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SUMMARY DISPOSITION

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Per Curiam:

     This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ].  Although appellant’s case was submitted to us on the merits**,** we found error in the findings of the court-martial as described below.

     Appellant was charged, *inter alia*, with eleven specifications of wrongful damage to private property, in violation of Article 109, UCMJ (Charge I), and eleven specifications of housebreaking, in violation of Article 130, UCMJ (Charge III).  Regarding Specification 6 of Charge I, the military judge properly advised appellant that the dollar amount of the damage he caused was an element of the offense, but then failed to inquire or ascertain that figure from appellant.  In the absence of this information, we referred to the stipulation of fact for resolution.  The stipulation conflicts with the charged amount of $2400.00; it lists $1278.00 as the amount of damage caused in that offense.  We amend the finding of guilty of the figure “$2400.00” in the specification to reflect the lesser figure “$1278.00” and affirm the finding of guilty to the specification as amended.  *See United States v. Barton*, 60 M.J. 62 (C.A.A.F. 2003) (Although “at no point . . . did Appellant admit in declaratory fashion that he intended to steal more than $100 in merchandise . . . the record says enough to objectively support an admission to each element of the offense.”).

     Similarly, regarding Specification 11 of Charge III, the military judge found appellant guilty of breaking into a motor pool, contrary to information provided in the providence inquiry.  Appellant agreed the building number alleged in the specification was accurate, but specifically told the military judge, “That was a rail head operation center building; it wasn’t a motor pool.  I remember this because it was the night I was arrested.”  The military judge replied, “Okay.  So you’re saying it wasn’t in fact a motor pool.  It was some type of other building?”  Appellant responded, “Yes, Your Honor.”  We amend the finding of guilty of the words “motor pool” in the specification to reflect the words “railhead operation center” and affirm the finding of guilty to the specification as amended. 

     The remaining findings of guilty are affirmed.  Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of *United States v. Sales*, 22 M.J. 305 (C.M.A. 1986) and *United States v. Moffeit,*including Judge Baker’s concurring opinion, 63 M.J. 40, 43**(C.A.A.F. 2006), the court affirms the sentence.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

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