## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and BORGERDING Appellate Military Judges

UNITED STATES, Appellee

v. Specialist WILLIAM J. SCHWIN

United States Army, Appellant

ARMY 20130538

Headquarters, United States Army Aviation Center of Excellence and Fort Rucker Stephen Castlen, Military Judge
Lieutenant Colonel Patrick L. Gary, Staff Judg e Advocate

For Appellant: Captai n Patrick A. Crocker, JA (arg ued); Colonel Ke vin Boyle, JA;
Lieutenant Colonel Peter Ka geleiry, Jr. JA; Major Vinc ent T. Shuler, JA; Captain Patrick A. Crocker, JA (on brief); Major Robert N. Michaels, JA; Captain Patrick A. Crocker, JA (on su pplemental brief).

For Appellee: Ca ptain Daniel H. Karna, JA (argue d); Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on br ief); Major Robert A. Rodrig ues, JA; Captain Daniel H. Karna, JA (on supp lemental brief).

26 June 2014

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OPINION OF THE COURT

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LIND, Senior Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to hi s pleas, of two specifications of violation of a lawful general regulation, one specifi cation of larceny of property of a value in ex cess of $500.00, and one specification of ho usebreaking in vi olation of Article s 92, 121, and 130, Uniform Code of Military Ju stice, 10 U.S.C. §§ 892, 921, 930 ( 2012) [hereinafter UCMJ]. The military judge sentenced appellant to a ba d-conduct discharge, four months confinement, and reduction to the grade of E-1. Th e convening authority approved the adjudged sentence.SCHWIN

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2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant alleges two errors, both of which warrant di scussion and relief. 1

FACTS

Appellant was a military policeman at Fort Rucker , Alabama. In 2011, he applied for and was granted membership in the Fort Rucker Skeet and Trap Club [hereinafter Skeet Club], a pr ivate organization located on Fort Rucker that provides facilities and equipment for members to shoot sk eet. Each memb er of the Skeet Club was given a key to the club with 24-hour access to the facilit ies. All members were required to pay for use of the range and the skeet th ey shot. They could also purchase ammunition, bevera ges, and clothing. The Skeet Club did not have sufficient staff to be present at the range at all times. If a member wanted to shoot skeet when no staff was present, the member would fill out a re ceipt accounting for
the date and the amount of skeet used and would op erate the skeet equipment
himself. In such cases, the member wa s required to place full payment with a receipt into a locked fee deposit box kept in the clubhouse.

Appellant was having fi nancial difficulties. To obtain additional funds, appellant began stealing from the Skeet Club fee deposit bo x. From 27 Ja nuary 2013 to 24 February 2013, on multipl e occasions, appellant used his key to enter the Skeet Club at night when no staff were present and stole money from the fee deposit box by shaking it out of the sl it where receipts and m oney were deposited by the
members. Skeet Club offi cials became aware money was missing from the fee deposit box and placed a camera to moni tor the box. On 24 February 2013, the camera captured appellant at tempting to remove money from the fee deposit box.
Skeet Club official s notified Military Police Investigator s (MPI) who summoned appellant to the Department of Safety at Fort Rucker where he conf essed to the
theft. 2 Appellant estimated he stole a total of about $600.00 on four or five occasions over the one-month pe riod. The stipulation of f act stated that the Skeet
Club records indicated that $1,101.00 in total was missing from the fee deposit box.

1 We have also considered those matters pe rsonally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and find they are without
merit.

2 Military Police Investigat ors searched appellant’s barracks room and vehicle pursuant to a search authorization. During the search, MPI discovered the privately owned weapons appellant poss essed in violation of a la wful general regulation as charged in Specification 1 (wrongfully main taining a privately ow ned firearm in his barracks room) and Specif ication 2 (wrongfully main taining privately owned
firearms in his vehi cle) of Charge I.SCHWIN

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3 LAW AND ANALYSIS

Appellant assigns two errors asserting there is a substantial basis in law and fact to question his guilty pleas to the Specification of Char ge II (larceny of property of a valu e in excess of $500. 00) and the Specific ation of Charge I (housebreaking).

We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Schell , 72 M.J. 339, 345 (C .A.A.F. 2013) (citing United
States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008 )). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the plea. Id. (citing
Inabinette , 66 M.J. at 322). The court applies this “subst antial basis” test by determining whether the record raises a su bstantial question about the factual basis of appellant’s guilty plea or the law un derpinning the plea. Inabinette , 66 M.J. at 322; see also UCMJ art. 45(a); Rule for Courts-Martial [hereinafter R.C.M.] 910(e);
United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse of discretion for a military judge to accept a guilt y plea without an adequa te factual basis to support it . . . [or] if the ruling is based on an erro neous view of the law.”).

Larceny of a Valu e Over $500.00

Appellant avers that the military judge abused hi s discretion by accepting appellant’s guilty plea to th e Specification of Ch arge II (larceny of money of a value more than $500.00 on divers occasions between 27 Janua ry 2013 and 24 February 2013) because neither the stip ulation of fact nor appell ant’s providen ce inquiry established that appe llant stole more than $500.00 fro m the fee deposit box at any one time. The government concedes the error.

This court has long held that “the record must show either th at one item of the property stolen has . . . a value [of more th an $500.00] or that se veral items taken at substantially the same time and place have such an aggregate va lue” for an accused to be convicted of the grea ter offense and subjected to a maximum punishment that includes five years of confinement. United States v. Harding , 61 M.J. 526, 528 (Army Ct. Crim. App. 2005) (quoting United States v. Christensen , 45 M.J. 617, 619 (Army Ct. Crim. App. 1997)); Manual for Courts-Martial

, United States (2012 ed.) [hereinafter MCM ], pt. IV, ¶ 46.c(1)(i)(ii), e(1)(d); cf. United States v. Hines

, 73 M.J. 119, 121 (C.A.A.F. 201 4) (holding that larceny and wro ngful appropriation of Basic Allowance for Housing pay over several months was properly aggregated because “[t]he formulation of a plan or scheme or th e setting up of a mechanism which, when put into operation, will resu lt in the taking or di version of sums of money on a recurrin g basis, will produce but one crime.”) (citati on omitted).

In this case, neither th e providence inqu iry nor the stipul ation of fact established appellant stole more than $50 0.00 at substantially the same time and place. As such, the military judge elicited testimony only that appell ant stole moneySCHWIN

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4 on four or five oc casions over a one-month period from the Skeet Club for a combined total of approx imately $600.00. Because ap pellant did not admit to stealing over $500.00 on any one occasion or at substantially the same time and place, the military judge failed to elicit the factual predicat e necessary to find appellant guilty of the offe nse of larceny of a value greater than $500.00. We therefore accept the government’s concessi on and will grant relie f in our decretal paragraph.

Housebreaking

Appellant argues the military judge abused his discre tion by accepting appellant’s guilty plea to hou sebreaking (the Specification of Charge III) because he applied an incorrect legal prin ciple. We agree and will gr ant relief in our decretal paragraph.

“Housebreaking” und er Article 130, UCMJ, has two elements: (1) that appellant unlawfully entered a certain buildin g or structure of a certain other person; and (2) that the unlawful entry was made with the intent to commit a criminal
offense therein. MCM (2012 ed.), pt. IV, ¶ 56.b; see also United States v. Davis

, 56 M.J. 299, 300 (C.A.A.F. 200 2). “An entry is ‘unlawfu l’ if made without the consent of any person auth orized to consent to entr y or without other lawful authority.” Davis , 56 M.J. at 301 (quoting MCM (2000 ed.), pt. IV, ¶ 111.c); see also MCM (2012 ed.), pt. IV, ¶ 111.c.

“‘[U]nlawful entry’ is no t established throu gh a showing of mere ingress with contemporaneous criminal intent . . . .” United States v. Williams

, 4 U.S.C.M.A. 241, 246, 15 C.M.R. 241, 246 (1954). Rather , it is distinct from the second element of specific intent to commit a crime upon entry. In other words, entry into a building or struct ure is not per se unlawful when accompanied by a contemporaneous
intention to commit a crime within that building or structure. Id. at 243, 15 C.M.R.
at 243.

Congress intended the el ement of “unlawful entry” in housebre aking under Article 130, UCMJ, to requir e a “trespassory entry.” See id . at 244-46, 15 C.M.R. at 244-46. Any determination of the legality of an entry de pends in part on the nature of the building or st ructure involved. Id. at 246, 15 C.M. R. at 246. Williams classified buildings or structures into three groups: private, publ ic, and semiprivate.
Id. For wholly private buildings or st ructures, such as one’s home, “every penetration is unlawful in the absence of invitation, express or implied.” Id . For public buildings or st ructures like a post-office whic h is typically not locked, “all
unobstructed incursions must be regarded as li cit—that is, as authorized—in the absence of a clear direction to the contrary.” Id. Semiprivate buildings and structures present “a more complicated problem, and one in which the line between
the welcome and the unwelcome visito r is more difficu lt to draw.” Id.SCHWIN

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5 In Davis

, our superior court a ffirmed that the framework set forth in Williams “remains our benchmark for analysis of the lawfulness of the entry into a semiprivate structure . . . .” 56 M.J. at 300 (citing Williams

, 4 U.S.C.M.A. 241, 15 C.M.R. 241). The court reiterated that “‘the lawfulness of an entry for . . . [these] purposes depends on authorization, negative or positive, express or implied’
and must be determined based on th e circumstances in each case.” Id. at 301 (quoting Williams , 4 U.S.C.M.A. at 247, 15 C.M.R. at 247) (altera tion in original).

Factors relevant to this question with regard to semiprivate structures include:

(a) the nature and function of the building involved;

(b) the character, status, and duties of the entrant, and even at times his identity;

(c) the conditions of the entr y, including time, method, ostensible purpo se, and numerous other factors of frequent relevance but generally in susceptible of advance articulation;

(d) the presence or absence of a directive of whatever nature seeking to limit or regulate free ingress;

(e) the presence or absence of an explicit invitation to the visitor;

(f) the invitational authority of any purported host; and

(g) the presence or absence of a prior course of dealing, if any, by the entrant with the structure or its inmates, and
its nature.

Id. (quoting Williams , 4 U.S.C.M.A. at 247, 15 C.M.R. at 247). The court “avoided any suggestion that the list was exhaustive and indicated that ‘no one of . . . [these factors] will necessarily control or even maintain relevance, in all cases.’” Id. (quoting Williams , 4 U.S.C.M.A. at 247, 15 C.M.R. at 247) (alte ration in original).

We note that Davis suggests an increased relevance to an accused’s purpose or intent upon entry to the question of tr espass, however, this increased relevance appears to be limited to t hose situations involving mili tary duties and places where the authority to enter is define d by official military duty. See id. at 301-03. The
court in Davis nonetheless recognized that the totality of the circumstances, to
include the Williams factors for semiprivate structures, must always be considered in each case when determining whethe r an unlawful entry occurred. See id. at 302-03 (“[W]e have never suggested that the factors discussed in Williams render intent orSCHWIN

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6 purpose irrelevant. To th e contrary, the purpose for the entry, then as now,
ostensible or otherwis e, remains a relevant factor in determining whether the entry was unlawful . . . .”) (emphasis added). This comports with Williams and maintains the fundamental legal questi on to be answered : absent the offense committed therein, was the accused trespassing? See Williams , 4 U.S.C.M.A. at 247; 15 C.M.R. at 247 (“[T]he lawfulness of an entry for present purpos es depends on authorization, negative or positive, e xpress or implied . . . . Illegality of the original penetration is
an element of the offense with which we are dealing. It must be alleged. It must be the subject of instruction . . . . And it must be found.” ) (internal citations omitted)

.

Turning to the facts of this case , with respect to appella nt, the Skeet Club is a semiprivate structure. 3 The stipulation of fact and the providence inquiry show that appellant was authorized to access the Skeet Club with his ke y, 24 hours a day,
without limitation.

The military judge asked tr ial counsel what the gove rnment’s theory was “on this being an unlawful entry.” Trial counsel, relying on Davis , stated that:

[I]t’s an unlawful en try because of [appel lant’s] intent. He
went in on this occasion . . . used his key, though it was issued--with the sole intent of committing a crime . . . [which] does constitute hous ebreaking. Though he had lawful access, the fact that he us ed his lawful access . . . to gain access for unlawful purposes constitutes housebreaking.

After further colloquy with appellant and counsel, the military judge asked
defense counsel: “And . . . the factors that are listed in United States v. Davis

. . . when you consider all [of] thos e factors, is it the defense’ s position that this factual scenario described by [appellant] constitut es housebreaking? A nd I’m asking that
because that’s what you’re pleading guilty to.” After conferring with appellant, defense counsel replied: “[appe llant’s] position is that he believed he had authority to enter that building at any time, but he didn’t have the au thority to enter the building at any time to steal.”

The military judge then ma de the following findings of fact and conclusions
of law:

Well, the Court finds that based upon the colloquy the Court had with [appellant], that the function of the building was multi-purpose, to include recr eational, to include security, to include st orage and other things; that

3 Having membership open to the public, the Skeet Club is not so private as a person’s home, yet not so public as a grocery st ore, for example.SCHWIN

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7 the building was entered at a time no one else was around, later in the evening when perhaps shooting may not be going on. [Appellant] did not have perm ission to enter the building for an illegal purpose , and certainly did not have permission to enter the building to perpetrate a theft once inside. So for the purpose of considering whether or not
the factual scenario meets the criteria for housebreaking, the Court accepts the conclusions of counsel and [appellant] that th is does constitute housebreaking.

“The providence of a plea is based not only on th e accused’s understanding and recitation of the factual history of th e crime, but also on an understanding of
how the law relates to those facts.” United States v. Medina

, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care , 18 U.S.C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51 (1969) ). An accused must under stand “the na ture of the charges brought agains t him . . . .” Id. This is due to the fa ct that “an accused has a right to know to what offense and under wh at legal theory he or she is pleading guilty.” Id. “An essential aspect of [accurately] informing [a ]ppellant of the nature
of the offense is a correct de finition of legal c oncepts. The judge’ s failure to do so may render the plea improvident.” United States v. Negron , 60 M.J. 136, 141 (C.A.A.F. 2004).

The facts that appellant entered the bu ilding late in the evening, when few people were around, and no shooting was occurring, are factors that go towards appellant’s intent to steal, not to the lawful ness of the entry. It is clear from the colloquy between the military judge, counse l, and appellant during the providence inquiry, and from the st ipulation of fact, that all parties to the trial were erroneously relying solely on the purpose, or criminal intent, appellant had when entering the
Skeet Club to find th e entry “unlawful.” 4

4 The government on appeal ar gues an alternative factual theory of unlawful entry: that the photographs attached to the stipulation of fact show the fee deposit box was located in a separate room or closet in th e Skeet Club, and it is appellant’s entry of that room or closet, rather than the Skeet Club itself, that cons titutes the unlawful entry. We reject this theory because there is no evidence in the record that appellant unlawfully entered this room or closet. In fact, both the stipulation of fact and the providence inquiry esta blished that members were required to deposit mone y into the safety deposit box if they used the facilitie s when the staff was not present, and the
record contained no limitati ons precluding memb ers from accessing the room, closet,
or the box. Additional ly, there is no indication in th e record that a ppellant pleaded guilty to housebreaking on the factual circumstances of entering this separate room or closet within the Skeet Club.SCHWIN

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8 After a thorough review of the record, we fi nd no factual ba sis to establish appellant unlawfully entered th e Skeet Club. Considering the Williams factors, the record establishes: (1) the Skeet Club is semiprivate with resp ect to appellant; (2) appellant was a member of the Skeet Club with a key and had 24-hour access to the club and its facilities; (3) there were no ex press or implied cond itions on appellant’s entry into the Skeet Club; hi s ostensible purpos e for entry was to enjoy the facilities as he was unconditionally inv ited to do; (4) there was no directive seeking to limit or regulate free ingress; (5) appellant ha d an express invitation to enter the Skeet Club 24 hours a day by usi ng the key given to him by the Skeet Club; (6) Skeet Club management had authority to give appellant his me mbership, key, and 24-hour access to the Skeet Club; and (7) there wa s no prior course of dealing by appellant with respect to entry of the Skeet Club or its facilities th at would suggest a limit to
his access to the facilities.

Turning to the fundamental legal question to be answered: absent the offense committed therein, was appella nt’s entry unlawful—that is, did he trespass? In this case, appellant did not trespass when he entered the club. If appellan t had not committed larceny, his entry, pres ence, and activities in the Skeet Club were authorized, permitte d, and invited. See Williams

, 4 U.S.C.M.A. at 2 46, 15 C.M.R. at 246 (“[W]e must grapple wi th the question of author ity, of permission, of
invitation—call it wh at we may.”). Appe llant is not guilty of housebre aking, but certainly guilty of larceny.

We hold the military judge abused his disc retion in accepting appellant’s plea to housebreaking: the judge’s ruling was based on an erroneous view of the law, and
the record contains no fa ctual circumstances to establish appellant unlawfully
entered the Skeet Club. We therefore find a substantia l basis in both la w and fact to question appellant’s plea of guilty to the Specificat ion of Charge III.

CONCLUSION

The findings of guilty of Charge III and its Specif ication are set aside and dismissed. We affirm only so much of Charge II and its specification as provides:

In that Specialist (SPC) Will iam J. Schwin, U.S. Army, did, at or near Fo rt Rucker, Alabama, on divers occasions
between on or about 27 Janu ary 2013 and 24 February 2014, steal money, of a valu e of $500.00 or less, the property of the Fort Rucker Skeet Club.

The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors note d, the entire record, and applying the principles of United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986) and the factor s set forth in United States v. Winckelmann , 73 M.J. 11, 15-16SCHWIN

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9 (C.A.A.F. 2013), we ar e confident the military judge w ould have adjudged at least a bad-conduct discharge, three months confinem ent, and reduction to the grade of E-1.

There is no dramatic change in th e penalty landscape or exposure. See
Winckelmann , 73 M.J. at 15-16. Wh ile appellant’s theoretical maximum sentence to
confinement is reduced from fourteen years to four year s and six months, appellant was tried at a special court-martial where th e sentence to confinement was limited to

one year. See MCM (2012 ed.), pt. IV, ¶¶ 46.e(1)(b ), (d), 56.e; UCMJ art. 19; R.C.M. 201(f)(2)(B). Although as a result of ou r decision we set aside the housebreaking charge and a ffirm a larceny of a valu e of $500.00 or less, the gravamen of the offenses and the aggr avating circumstance s have not changed significantly. See Winckelmann , 73 M.J. at 16. The total amount st olen by appellant
remains the same. The res gestae of the larceny offens es demonstrates the aggravating conduct of appellant manipulating his lawf ul access to the Skeet Club to
steal from the Club on mult iple occasions. Be cause appellant was tried by a judge alone, we are more confiden t of the sentence th e military judge w ould have imposed for the remaining offenses. See id. Finally, this court reviews the records of a
substantial number of courts-m artial involving larcenies and violations of general regulations, and we have ex tensive experience with the level of sentences imposed
for such offenses unde r various circumstances. See id.

The court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for three months, and reduction to the grade of E-1. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of the findings and senten ce set aside by this decision, are ordered
restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

Judge KRAUSS and Judge BORGERDING concur.

FOR THE COURT:

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

Clerk of Court FOR THE COURT: