UNITED STATES, Appellee 

v. 

Franklin M. BARTON, Hospitalman 

U.S. Navy, Appellant 

No. 03-0272 

Crim. App. No. 200100732 

 

United States Court of Appeals for the Armed Forces 

Argued November 18, 2003 

Decided June 28, 2004 

BAKER, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., GIERKE, and EFFRON, JJ., joined. ERDMANN, J., 

filed a dissenting opinion. 

Counsel

For Appellant: Lieutenant Rebecca S. Snyder, JAGC, 

USNR (argued). 

For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR 

(argued); Commander Robert P. Taishoff, JAGC, USN, and 

Lieutenant Lori McCurdy, JAGC, USNR (on brief); Colonel Rose M. 

Favors, USMC. 

Military Judge: E. B. Stone 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Barton, No. 03-0272/NA 

2

Judge BAKER delivered the opinion of the Court. 

On August 4, 2000, at Okinawa, Japan, Appellant was tried by 

a general court-martial composed of a military judge alone. 

Consistent with his pleas, Appellant was convicted of three 

specifications of conspiracy to commit larceny, two 

specifications of failure to obey a lawful general order, three 

specifications of larceny, and four specifications of 

housebreaking, in violation of Articles 81, 92, 121, and 130, 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. 

§§ 881, 892, 921, and 930 (2000), respectively. He was 

sentenced to a bad-conduct discharge, confinement for two years, 

total forfeiture of all pay and allowances, and reduction to the 

lowest enlisted grade. On April 5, 2001, in accordance with a 

pretrial agreement, the convening authority approved the 

sentence but suspended all confinement in excess of twelve 

months. On October 31, 2002, the Navy-Marine Corps Court of 

Criminal Appeals affirmed the findings of guilty and the 

sentence in an unpublished opinion. United States v. Barton, 

NMCM 200100732 (N-M. Ct. Crim. App. 2002). 

 This Court granted review of the following issue: 

WHETHER THE LOWER COURT ERRED IN FINDING 

APPELLANT’S PLEA OF GUILTY TO SPECIFICATION 

2 OF CHARGE I PROVIDENT WHERE THE MILITARY 

JUDGE FAILED TO ELICIT A FACTUAL BASIS FROM 

THE ACCUSED THAT THE OBJECT OF THE 

CONSPIRACY WAS LARCENY OF MERCHANDISE OF A 
United States v. Barton, No. 03-0272/NA 

3

VALUE OF MORE THAN $100 (AS OPPOSED TO 

LARCENY OF MERCHANDISE OF SOME VALUE). 

Facts 

The stipulated facts pertinent to the granted issue reveal 

that Appellant and several other enlisted men engaged in a 

series of break-ins at Kadena Air Force Base and Camp Hansen on 

the island of Okinawa. Two of these break-ins included the 

Powerzone, an electronics store on Camp Hansen. On June 21, 

2000, Appellant along with two other enlisted men broke into the 

Powerzone with the intent to steal merchandise. The theft was 

unsuccessful, however, since one of the internal building doors 

was locked. Appellant and his co-conspirators returned to the 

Powerzone on June 22, 2000, broke in, and stole approximately 

$10,000 worth of electronic equipment including watches, 

camcorders, compact discs, video games, and DVDs. 

These events gave rise to Charge I, which contained three 

specifications of conspiracy. Each of the three specifications 

alleged that the object of the conspiracy was larceny of goods 

with a value in excess $100. Prior to explaining each of the 

offenses, the judge requested that Appellant keep the charge 

sheet in front of him so Appellant could “follow along on your 

copy of the charge sheet as I list the elements of the offenses 

for you.” During the Care inquiry of Charge I, Specification 1, 

the judge defined and explained the four elements of larceny as 
United States v. Barton, No. 03-0272/NA 

4

they pertained to Appellant’s specification, including the 

required dollar amount. See United States v. Care, 18 C.M.A. 

535, 40 C.M.R. 247 (1969). After describing the elements 

involved in Specification 1, the judge asked Appellant, “Do you 

understand the elements of the offense of larceny[?]” Appellant 

responded, “Yes, sir.” The judge further questioned Appellant 

about the elements. 

Numerous specifications on this charge sheet would 

normally require me to advise you again and again of 

the crime—the elements of the crime of larceny and the 

definitions associated with that crime. In the 

interest of time, we could dispense with me reading 

that to you over and over again if you can assure me 

that you understand the elements of the crime of 

larceny and the definitions that I have given you. Do 

you understand all of those elements for sure and 

those definitions? 

At the completion of the judge’s question, Appellant once 

again responded, “Yes, sir.” The judge also advised Appellant 

that if he got confused about any of the elements or definitions 

he should stop the judge. 

The military judge asked Appellant if he would like to have 

the elements of larceny restated prior to his inquiry with 

respect to Specification 2, which concerned the alleged 

conspiracy to commit larceny of goods with a value in excess of 

$100 from Powerzone on June 21, 2000. The judge noted, “The 

only difference between that set of elements that I gave you 

earlier and the elements that apply to this offense is the owner 
United States v. Barton, No. 03-0272/NA 

5

of the property alleged. In this specification, the owner of 

the property is alleged to be the Power Zone (sic).” At that 

time, Appellant once again acknowledged that he understood the 

elements of larceny as they applied to his case. The same 

procedure was followed regarding the third specification of 

conspiracy in Charge I, which resulted in the larceny of goods 

valued over $10,000 from Powerzone. At the close of the Care

inquiry, the judge ultimately asked Appellant whether Appellant 

believed and admitted that “taken together” the elements, 

stipulation of fact, and the Care discussion described what 

Appellant had done “on each occasion?” Appellant responded, 

“Yes, Sir.” 

Appellant argues that his plea to Specification 2 of Charge 

1 lacks a factual basis substantiating each element of the 

offense. In particular, Appellant argues that nowhere in the 

Care inquiry did he admit to conspiring to steal property of a 

value more than $100 on June 21, 2000. Nor can such a factual 

predicate be inferred from the elements of other offenses for 

which Appellant was charged and to which he providently pleaded. 

According to Appellant, the fact that he stole $10,000 in 

merchandise from the store on June 22, 2000, does not establish 

that he conspired to steal over $100 in merchandise from the 

same store one day earlier. In short, a plea must stand on its 
United States v. Barton, No. 03-0272/NA 

6

own four legs, with a factual basis for each element of each 

offense. 

The Government responds that the record as a whole 

establishes each element of the offense. Further, there is 

nothing in the record that suggests Appellant’s plea to this 

offense was not knowing, voluntary, or complete. Appellant 

understood the value of the merchandise in question and admitted 

to this element of the offense. Thus, the purpose of Care and 

its progeny are satisfied. 

Discussion 

“[A] guilty plea is an admission of all the elements of a 

formal criminal charge[.]” Id. at 539, 40 C.M.R. at 251 

(quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)). 

Therefore, before accepting a guilty plea, a military judge must 

explain the elements of the offense and ensure that a factual 

basis for each element exists. United States v. Faircloth, 45 

M.J. 172, 174 (C.A.A.F. 1996). “It is not enough to elicit 

legal conclusions. The military judge must elicit facts to 

support the plea of guilty.” United States v. Jordan, 57 M.J. 

236, 238 (C.A.A.F. 2002)(citing United States v. Outhier, 45 

M.J. 326, 331 (C.A.A.F. 1996)). This factual predicate is 

sufficiently established if “the factual circumstances as 

revealed by the accused himself objectively support that plea . 

. . .” United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 
United States v. Barton, No. 03-0272/NA 

7

1980). As a result, “the issue must be analyzed in terms of 

providence of his plea not sufficiency of the evidence.” 

Faircloth, 45 M.J. at 174. 

When considering the adequacy of the plea, this Court 

considers the entire record to determine whether the dictates of 

Article 45, UCMJ, 10 U.S.C. § 845 (2000), Rule for CourtsMartial 910, and Care and its progeny have been met. Jordan, 57 

M.J. at 239. We will not overturn the acceptance of a guilty 

plea unless there is a “substantial basis in law and fact for” 

doing so. United States v. Prater, 32 M.J. 433, 436 (C.M.A. 

1991). 

In the specification at issue, Appellant was charged with 

conspiracy to commit larceny of property with value more than 

$100. The specific elements of larceny are specified in the 

Manual for Courts-Martial, United States (2002 ed.) [hereinafter 

MCM], Part IV, para. 46.b.(1): 

(a) That the accused wrongfully took, obtained, or 

withheld certain property from the possession of the 

owner or of any other person; 

(b) That the property belonged to a certain person; 

(c) That the property was of a certain value, or of some 

value; and 

(d) That the taking, obtaining, or withholding by the 

accused was with the intent permanently to deprive or 

defraud another person of the use and benefit of the 

property or permanently to appropriate the property 

for the use of the accused of for any person other 

than the owner. 
United States v. Barton, No. 03-0272/NA 

8

Article 121 provides for gradations in the maximum sentence 

depending on the value and type of the property in question.∗

 

Appellant was charged with three specifications of larceny 

and conspiracy to commit larceny. “In the interest of time,” 

the judge elected not to repeat the elements for each offense 

during his Care inquiry, but rather established the relationship 

of fact to law by cross-referencing his predicate statement of 

elements. As a result, at no point during the Care inquiry 

regarding Specification 2 did Appellant admit in declaratory 

fashion that he intended to steal more than $100 in merchandise. 

Nor did the stipulation of fact specify the value in question. 

Rather, any such admission must be found in Appellant’s 

acknowledgement that he understood the elements of Specification 

2, which included a value of more than $100, and that his 

conduct fit the elements of larceny. 

Although we may have doubts that a similar methodology of 

cross-reference will work generally, it did not amount to error 

in this case. Reviewing the Care inquiry in whole, we are 

satisfied that Appellant understood the elements of conspiracy 

to commit larceny, understood that the elements included a 

 

∗ At the time of trial, Article 121 allowed increased punishment 

for the larceny of property in excess of $100. Manual for 

Courts-Martial, United States (2000 ed.), Part IV, para. 

46.e.(1). Article 121 now provides increased punishment for 

property in excess of $500. MCM, (2002 ed.), Part IV, para. 

46.(e).(1)(a). 
United States v. Barton, No. 03-0272/NA 

9

property valuation of over $100, and affirmatively admitted to 

the military judge that his actions satisfied this element of 

the offense. First, when the judge listed the elements at the 

outset, Appellant told the judge that he understood the elements 

of larceny, including the $100 value requirement. Moreover, the 

judge did not take “yes” for an answer, but took care to test 

the answer and asked Appellant whether he in fact understood the 

elements and understood that he could ask for them to be 

repeated at any time. Further, the judge required Appellant to 

follow along during the Care inquiry using his charge sheet. 

Because Specification 2 contained the phrase “of a value more 

than $100.00,” and the judge informed Appellant of this element, 

it is reasonable to conclude that Appellant was aware of the 

elements to which he was pleading. 

In reaching this conclusion, we are cognizant that we are 

considering element (c), property of a value more than $100. 

See MCM, Part IV, para. 46.b.(1)(c). This is not a complex 

legal element. An understanding of this element does not 

require an intricate application of law to fact. Moreover, 

Appellant’s admission to this element involved more than simply 

his agreement with a legal conclusion, as the element itself 

contains a specific factual threshold. Therefore, Appellant’s 

admission to this element was an admission to law and fact. 

Thus, this case is distinguishable from Jordan, where the 
United States v. Barton, No. 03-0272/NA 

10

Appellant was asked for a legal conclusion as to whether his 

conduct was service discrediting, without explanation as to why 

leaning on a boat might fit that legal element. 57 M.J. at 239. 

This case is also distinguishable from United States v.

Hardeman, for Appellant did not say anything during the Care 

inquiry that was factually inconsistent with the charged offense 

or an admission of guilt to that offense. 59 M.J. 389 (C.A.A.F. 

2004). Nor is this a case where Appellant has pleaded guilty to 

something he factually did not do as was the case in United 

States v. Pinero, M.J. ___ (C.A.A.F. 2004)(attempting to 

plead to a continuous unauthorized absence when the record 

established an interrupted period of absence). The question 

here, is whether the record says enough to objectively support 

an admission to each element of the offense. 

We cannot lose sight that this is a guilty plea case. As 

this Court indicated in Jordan, “a guilty plea case is less 

likely to have developed facts . . . .” Jordan, 57 M.J. at 238. 

With the benefit of appellate hindsight, one might well identify 

questions unasked or be tempted to look for the factual 

development that only a contested trial might contain. 

At the same time, we cannot lose sight that in a guilty 

plea case the Care inquiry is a substitute for a contested 

trial. 18 C.M.A. 535, 40 C.M.R. 247. By pleading guilty, an 

accused is relinquishing significant constitutional rights. He 
United States v. Barton, No. 03-0272/NA 

11

also spares the victim and the government the costs and 

consequences of a trial. As a result, Appellant’s desire to 

plead guilty should not obscure the necessity of establishing 

each element to each offense; speed and economy must cede to 

care. 

For the reasons stated above, we are satisfied that each 

element of Specification 2 of Charge 1 was established. 

Therefore, there is no substantial basis in law and fact to 

question Appellant’s guilty plea to Specification 2. 

Conclusion 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Barton, No. 03-0272/NA 

1 

ERDMANN, J. dissenting: 

I respectfully dissent. In my view, there is an inadequate 

factual basis to support Appellant’s plea of guilty to 

conspiracy to commit larceny of merchandise of a value of more 

than $100. As I believe that there is an adequate factual basis 

to support a plea to conspiracy to commit larceny of merchandise 

of some value, I would affirm the guilty plea to that extent. I 

would further find that the error was harmless with respect to 

the sentence and affirm the sentence. 

The charges and specifications relating to conspiracy and 

larceny include:1

 conspiracy to commit larceny and larceny of 

merchandise of a value of more than $100 from the Kadena Tennis 

Pro Shop on May 27 and 28, 2000; conspiracy to commit larceny of 

merchandise with a value of over $100 in regard to an attempted 

larceny from the Powerzone on June 21, 2000; and conspiracy to 

commit larceny and larceny of merchandise with a value over $100 

from the Powerzone on June 22. 

The specification that is the subject of this appeal is the 

conspiracy to commit larceny from the Powerzone on June 21. 

Although Appellant and his co-conspirators were successful on 

 

1

 Appellant was charged with three specifications of conspiracy 

to commit larceny; two specifications of violating a lawful 

order (consuming alcohol under the age of 21); three 

specifications of larceny; and four specifications of 

housebreaking. 
United States v. Barton, No. 03-0272/NA 

2 

that date in entering the building in which the Powerzone was 

located, they were unable to gain entry to the Powerzone itself. 

Therefore, unlike the conspiracy charges relating to the larceny 

from the Kadena Tennis Pro Shop and the June 22 larceny from the 

Powerzone, there was no successful larceny of the Powerzone on 

June 21, 2000 and consequently no merchandise was taken. 

Perhaps because there was no successful completion of this 

conspiracy to commit larceny, there was no exchange between the 

military judge and Appellant concerning the value of merchandise 

that he and his co-conspirators intended to steal from the 

Powerzone on June 21. Indeed the majority recognizes that “at 

no point during Appellant’s providence inquiry regarding 

Specification 2 did Appellant admit in declaratory fashion that 

he intended to steal more than $100 in merchandise. Nor did the 

stipulation of fact specify the value in question.” ____ M.J. 

at (8). 

In order to find a factual basis that Appellant intended to 

steal merchandise of a value of more than $100, the majority 

notes: “[A]ny such admission must be found in Appellant’s 

acknowledgement that he understood the elements of Specification 

2, which included a value of more than $100[.]” __ M.J. at (9). 

In United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 

2002), this Court set forth a comprehensive overview of the 

legal requirements in a providence inquiry: 
United States v. Barton, No. 03-0272/NA 

3 

 To guard against improvident pleas under Article 45, RCM 

910(e), Manual, supra, provides: “The military judge shall 

not accept a plea of guilty without making such inquiry of 

the accused as shall satisfy the military judge that there 

is a factual basis for the plea.” In order to establish an 

adequate factual predicate for a guilty plea, the military 

judge must elicit “factual circumstances as revealed by the 

accused himself [that] objectively support that plea[.]” 

United States v. Davenport, 9 MJ 364, 367 (CMA 1980). It 

is not enough to elicit legal conclusions. The military 

judge must elicit facts to support the pleas of guilty. 

United States v. Outhier, 45 MJ 326, 331 (1996). The 

record of trial must reflect not only that the elements of 

each offense charged have been explained to the accused, 

but also “make clear the basis for a determination by the 

military trial judge . . . whether the acts or the 

omissions of the accused constitute the offense or offenses 

to which he is pleading guilty.” United States v. Care, 18 

USCMA 535, 541, 40 CMR 247, 253 (1969). 

Upon appellate review, this Court will not overturn a 

guilty plea unless there is a substantial basis in law and fact 

for questioning the providence of the plea. United States v. 

Russell, 50 M.J. 99, 100 (C.A.A.F. 1999); United States v. 

Prater, 32 M.J. 433, 436 (C.M.A. 1991). We will consider the 

whole record, including references to a stipulation of fact, to 

find that a guilty plea inquiry is adequate. See, e.g., United 

States v. Sweet, 42 M.J. 183 (C.A.A.F. 1995). 

Looking at the entire record in this case, there is no 

discussion with Appellant as to whether he intended to steal 

more than $100 in merchandise from the Powerzone on June 21. 

There is no reference to the value of this merchandise in the 

stipulated facts. The only basis that can be found is the 
United States v. Barton, No. 03-0272/NA 

4 

following statement of the military judge, after he listed the 

elements of larceny in regard to Charge 1, Specification 1:2

Okay, Numerous specifications on this charge sheet would 

normally require me to advise you again and again of the 

crime -- - the elements and the definitions associated with 

that crime. In the interest of time, we could dispense 

with me reading that to you over and over again if you can 

assure me that you understand the elements of the crime of 

larceny and the definitions that I have given you. 

Appellant responded, “Yes, Sir.” to the military judge’s 

question as to whether he understood the elements and 

definitions. The mere recitation of the elements of a crime, 

however, and an accused’s rote response is simply not sufficient 

to meet the requirements of Article 45, Uniform Code of Military 

Justice, 10 U.S.C. § 845 (2000), United States v. Care, 18 

C.M.A. 535, 40 C.M.R. 247 (1969) and its progeny, or Rule for 

Courts-Martial 910 [hereinafter R.C.M.]. In recognition of this 

requirement, the military judge revisited Charge I, 

Specification 1 and specifically elicited Appellant’s response 

to each element, including that the merchandise had a value of 

more than $100. The military judge failed to conduct a similar 

inquiry for Specification 2. 

Because of the requirement for notice pleading in military 

practice, the specifications of charged offenses must contain 

factual allegations. See R.C.M. 307(c)(3). In turn, a military 

 

2

 Charge I, Specification 1 charged conspiracy to commit larceny 

of the Kadena Tennis Pro Shop on May 27, 2000. 
United States v. Barton, No. 03-0272/NA 

5 

judge recites these factual allegations within the elements of 

offenses during a guilty plea inquiry. I am not aware of a post 

Care case that found an adequate factual basis for a guilty plea 

solely from an accused’s acknowledgement of the elements of an 

offense. “[T]he military judge must elicit ‘factual 

circumstances as revealed by the accused himself’[.]” Jordan, 

57 M.J. at 238 (quoting United States v. Davenport, 9 M.J. 364, 

367 (C.M.A. 1980)). Appellant himself revealed nothing about 

value and nothing about his specific intent to steal items of a 

value of over $100.3

 

Appellant’s specific intent to steal merchandise of a value 

of more than $100 related directly to the maximum punishment. 

At the time of Appellant’s trial, the maximum sentence for 

larceny of property of a value of more than $100 included five 

years confinement, whereas larceny of property of a value of 

$100 or less included confinement for only six months. See

Manual for Courts-Martial, United States (2000 ed.), Part IV, 

para. 46.e.(1)(a)-(b). This distinction in the maximum 

 

3

 A common sense review would lead one to the conclusion that 

Appellant was unlikely to conspire to steal less than $100 from 

the Powerzone – a conclusion that is supported by the fact that 

when Appellant was ultimately successful in breaking into the 

Powerzone, he and his co-conspirators stole approximately 

$10,000 in merchandise. Common sense, however useful as it is 

in approaching a variety of legal issues, is not a substitute 

for the requirement that the record must contain the factual 

basis for a guilty plea. 
United States v. Barton, No. 03-0272/NA 

6 

punishment applies also to the offense of conspiracy to commit 

larceny. Manual for Courts-Martial, United States (2002 ed.), 

Part IV, para. 5.e. The issue on appeal in this case did not 

merely involve a simple fact, but rather involved a distinction 

of consequence that was not developed properly on the record of 

trial. 

 This providence inquiry fails to meet the requirements of 

Article 45, Care and its progeny or R.C.M. 910. There is simply 

no factual predicate based upon questioning of the accused, the 

stipulation, or other facts in the record that establishes 

Appellant intended to steal property of a value over $100. The 

omission here is substantial. 

 I would affirm only so much of the finding of guilty of 

Specification 2 of Charge I as provides that Appellant conspired 

to commit larceny of merchandise of some value. However, as I 

am convinced that Appellant suffered no substantial prejudice 

with respect to sentencing, I would affirm the sentence.