## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class KYLE A. PICCIRILLO United States Army, Appellant

ARMY 20140897

Headquarters, 7th In fantry Division

Jeffery D. Lippert, Military Judge

Colonel Robert F. Resnic k, Staff Judge Advocate

For Appellant: Captain Heather L. Tregle, JA (argued); Major Aaron R. Inkenbrandt, JA; Captain Heather L. Tregle , JA (on brief); Colonel Mary J. Bradley, JA; Captain Heather L. Tregle, JA (on brief on specified issue).

For Appellee: Captain Ro byn M. Chatwood, JA (argued); Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain Ro byn M. Chatw ood, JA (on brief); Colonel Mark H. Sydenham, JA; Ma jor John K. Choike, JA; Captain Robyn M. Chatwood, JA (on brie f on specified issue).

29 January 2016

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

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PENLAND, Judge:

A military judge sitting as a special court-martial convicted appellant, consistent with his pleas, of three speci fications of conspira cy, larceny, simple arson, and receiving stolen property, in violat ion of Articles 8 1, 121, 126, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 88 1, 921, 926, and 934 (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge, confinement for 350 days, and reduction to the grade of E-1. The convening authority approved only 300 days of the confinement term and the

remainder of the ad judged sentence.

We review appellant’s case pursuant to Articl e 66, UCMJ. We have considered matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J.PICCIRILLO—ARMY 20140897

2 431 (C.M.A. 1982); they lack merit. Appellant assign s one error wh ich warrants

discussion but no relief. We specified an additional issue for briefi ng and argument and, finding it constitutes le gal error, grant relief in our decr etal paragraph.

1. Terminal Element of Receiving Stolen Military Property

Appellant pleaded guilty to and was co nvicted of, inter alia , receiving stolen

property, 1 “such conduct being to th e prejudice of good order and discipline in the armed forces.” The providence inqu iry on the terminal element follows:

MJ: Can you tell me why you believe your involvement in receiving the proper ty, along with Serg eant Serini, from Specialist Scott, is prej udicial to good order and discipline.

ACC: Because we cannot have Soldiers . . . stealing things in the mil itary, Your Honor.

MJ: Why not?

ACC: It’s part of the Army values, Your Hono r, Integrity. It’s as simple as that.

MJ: It goes to discipline, correct?

ACC: Yes, Your Honor.

MJ: The Army provid es that stuff for you and for all the other people in your unit to use as part of your training and preparations for winning our nation’s wars, correct?

ACC: Yes, Your Honor.

MJ: And if you conv ert it to your ow n use, or someone steals it and then gives it to you, what does that do to discipline?

ACC: It ruins it, Your Honor.

In his assigned error, appellant contends “the milit ary judge failed to elicit a

factual basis to support that [appellant’s] conduct was prejudicial to good order and

1 The items were advanced military thermal imaging devi ces, worth approximately $10,000 each.PICCIRILLO—ARMY 20140897

3 discipline . . . .” We review a military ju dge’s decision to accept a guilty plea for an

abuse of discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008) (citing United States v. Eberle , 44 M.J. 374, 375 (C.A.A.F . 1996)). A guilty plea will only be set aside if we find a substan tial basis in la w or fact to question the plea. Id. (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). We apply this “substantial basis” test by determining whether the record raises a substantial question about the factua l basis of appellant’s guilty plea or the law underpinning the plea. Id. ; see also UCMJ art. 45(a); Rule for Courts-Martial 910(e).

Appellant relies on United States v. Caldwell , 72 M.J. 137, 140-42 (C.A.A.F. 2013) and United States v. Cendejas , 62 M.J. 334, 340 (C.A .A.F. 2006) (“Conduct that is prejudicial to good or der and discipline is ‘conduct that ca uses a reasonably direct and palpable injury to good order and discipline.’”). Those cases recite the correct legal standard, but th eir facts are significantly diffe rent from thos e before us now. Appellant admitted that he knew he was receiving advanc ed tactical optics

from a fellow soldier who stol e them from another company in his battalio n, and that their purpose was for use in combat. We find no subs tantial basis to question appellant’s providency to committing conduct prejudicial to good order and discipline. See also United States v. Nance , 67 M.J. 362 (C.A.A.F. 2009).

2. Aiding and Abetting Simple Arson

Appellant was also convicted of, inter alia , conspiring with Specialist (SPC) KD to commit simple arson 2 and the actual commission of that offense. By way of background, SPC KD was a fellow soldier who owned a car which had broken down. To avoid paying for repairs or the car itse lf, SPC KD hatched a plan to burn it and file a claim against his insurance polic y. He asked appell ant for help, which appellant rendered by purchasing lighter fl uid and helping tow th e car to a location which they assessed as suita ble to the purpose. Duri ng the providence inquiry, appellant testified that SPC KD sprayed lighte r fluid into the car, let it soak in, and then ignited it with a piece of paper he grabbed from th e backseat of appellant’s

vehicle and lit a flame.

2 The elements of simple arson are as follows:

(a) That the accused burned or set fire to certain proper ty of another;

(b) That the property was of a certain value; and

(c) That the act was willful and malicious.

Manual for Courts-Martial, United States (2012 ed.), pt . IV, ¶ 52.b.(2).PICCIRILLO—ARMY 20140897

4 The military judge briefl y discussed criminal liabi lity concepts found in Article 77, UCMJ (Principal s), and appellant admitted, “I aided and abetted [SPC KD], Your Honor.” However, neither the military judge nor the parties tackled the fundamental legal problem with appellant’s culpability fo r simple arson: appellant helped SPC KD burn his own car. We find, as a matter of law, that appellant cannot be guilty of simple arson or conspiracy to commit that o ffense under thes e facts. “If the owner in poss ession is not guilty of arson in burning his ow n property, then one

who assists the owner in burning it or who burns it at the owne r’s reques t is not guilty of arson, for the agen t’s guilt can only be coex tensive with that of the principal.” United States v. Banta, 26 M.J. 109, 1 13 (C.M.A. 1988) (Everett, C.J. concurring) (quoti ng 5 Am. Jur. 2d Arson § 23 (1962)).

The government argues that the majority opinion in Banta controls the result

here. We di sagree. The Banta majority focused not on the elemental question of whether petitioner bu rned the property “of another,” but instead, if he did so maliciously—a completely differe nt element under Article 126. Banta , 26 M.J. at

112.

CONCLUSION

The findings of guilty of Sp ecification 3 of Charge I, and the Spec ification of Charge III and Charge III are set aside an d DISMISSED. The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors note d, the entire record, and in accordance with the principles of United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986) and United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are conf ident the military judg e would have adjudged at least as severe a sentence as that which the convening auth ority ultimately appr oved. The approved

sentence is AFFIRMED. All rights, privileges, and propert y, of which appellant has been deprived by virtue of those findings set aside an d dismissed by this decision

are ordered restored.

Senior Judge HAIGHT and Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: