## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 ERIC MINSHALL United States Army, Appellant

ARMY 20140981

Headquarters, 1st Cavalry Division

Wade N. Faulkner , Military Judge

Lieutenant Colonel Alison C. Martin, Staff Ju dge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Jennifer K. Be erman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Anne C. Hsieh, JA (on brief).

25 April 2017

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

----------------------------------

Per Curiam:

A military judge sitting as a special court-martial convicted appellant, consistent with his pleas, of one specifi cation each of attempte d larceny, going from his place of duty, absence without leave, and false official statement; seven specifications of larceny; an d one specification of housebreaking, in violation of Articles 80, 86, 107, 121, and 130, Uniform C ode of Military Jus tice, 10 U.S.C. §§ 880, 886, 907, 921, 930 (2012) [hereinafter UCMJ]. The military j udge sentenced appellant to a bad-conduct discharge, conf inement for 181 days, and reduction to the grade of E-1. He credited appellant with fifty-three days against the sentence to

confinement. The conveni ng authority approved the sentence as adjudged.

This case is before the court for review pursuant to Article 66, UCMJ. Appellant raises two assignmen ts of error. We discuss each argume nt and determine they do not merit relief.MINSHALL—ARMY 20140981

2 BACKGROUND

Appellant was convicted pu rsuant to his pleas of seven specifications of larceny, along with other o ffenses, all related to stea ling items from his barracks cohabitants. On appeal he contests two of the larceny convictions alleging substantial bases in law and fact to qu estion the pr ovidence of his pleas.

The facts of appellant’s crimes are unco ntested. In the evening hours of 8 September 2014 and while a gu est in another so ldier’s barracks ro om on Fort Hood, appellant stole Private First Class (PFC) KH ’s wallet containing a debit and credit card. Immediately after steal ing the cards, appellant dr ove to an o ff-post Exxon Mobil gas station and used the stolen cred it card to buy a pr epaid Visa card for $101. Appellant then drov e to the M&R Convenience Store and again used the stolen credit card to purcha se a prepaid phone card for $48.07. A ppellant attempted to buy more prepaid Visa cards and pr epaid phone cards fro m Wal-Mart, but the stolen credit card was declined for suspec ted fraudulent activity. After having the credit card declined, appellant threw aw ay the stolen credit and debit cards.

On 30 October 201 4, appellant stole Private (PVT ) JA’s debit ca rd. Appellant

saw the soldier leave his barracks room un locked and unattended, waited until the

soldier was out of si ght, and entered the room. He searched through PVT JA’s personal items until he fou nd the soldier’s Fort Hood National Bank debit card, which he stole. Appe llant stipulated that on 1 November 2014, he used this stolen debit card to make multipl e purchases of prep aid Visa cards an d Verizon prepaid phone cards from both the Fort Hood Post Exchange an d the on-post III Corps Shoppette. The tota l of his multiple th efts was $575.88.

Appellant alleges th e larceny specification encomp assing his criminality on 8 September 2014, (Specificatio n 4 of Charge I), should be questioned for three reasons. First, appellant did not steal th e prepaid Visa card an d prepaid phone card

“on divers occasions” from each location but rather he went to each location once on the same day. Seco nd, the military judge erroneously a ssigned a valu e of $101 to the prepaid VISA card and a value of $48.07 to a prepai d phone card. And third, theft of a prepaid phone card is actually the theft of serv ices and not a larceny of the assigned value of the card.

Appellant makes similar allegations rega rding a second larc eny specification, (Specification 7 of Charge I), in which th e Fort Hood Exchange and the III Corps Shoppette are the na med victims of his crimina lity on 1 November 2014.MINSHALL—ARMY 20140981

3 LAW AND DISCUSSION

We will not disturb a guilty plea unless appellant demonstrat es “a substantial

basis” in “law or fact ” to question the plea. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008). “We review a military judge’s deci sion to accept a guilty plea

for an abuse of disc retion and questions of law aris ing from the pl ea de novo.” Id

.

Appellant’s first allegation of error involves the use of the term “on divers occasions.” He alleges it does not adequa tely reflect the facts of this case. We disagree. Here the milita ry judge correctly defined “on divers occasions” as meaning two or more occasion s. This court lo oks to appellant’s testimony during the providence inquiry a nd the written stipulation of fact to determine if an adequate factual predicate was established to support appellant’s guilty plea. United States v. Harding , 61 M.J. 526, 530 (Army Ct. Crim App. 2005). Th e record clearly reflects appellant committed two separate larcenie s against two different victims at two

different locations on the sa me day: 8 September 2014. The same analysis applies again to the 1 November 2014 misconduct. The use of term “on di vers occasions” signifies two acts of larceny within a single specification.

Specification 4 of Charge I allege s appellant stole “goods” on divers occasions, which is ex actly what he did. The spec ification, which combined two

larcenies from two different locations and two different victims into a single specification “on divers occasions,” coul d have been properly charged as two separate specifications. He re the government elected to combine the two larcenies into a single specification and use the term “on divers occasions” to signify the two

distinct larcenies: one from the Exxon Mo bile gas station and the other, separate larceny from the M&R Convenience Store.

Similarly, the larceny specification for appellant’s use of PVT JA’s stolen

debit card on 1 November 20 14 which alleged “on divers occasions” involved two different victims, the Fort Hood Post Exchange an d the III Corps Shoppette respectively, at two di fferent locations and at different times. In contrast to his conduct on 8 September 2014, where he pu rchased one prepaid Visa card and one prepaid phone card, appellant admitted in his stipula tion of fact that on 1 November 2014 “[a]t the two locations, he buys mult iple Visa prepaid cred it cards and Verizon prepaid phone-cards totaling $5 75.88.” The use of th e word “on divers occasions” in the context of appellant’s larcenies on 1 November 2 014 was clearly appropriate.

Appellant’s second argument asserts the military judge erro neously assigned values to the prepaid Visa cards and the prepaid phone cards beyond the nominal

value of the cards themselves. Value is a question of fact to be determined on the

basis of all the ev idence admitted. United States v. Manriquez , ARMY 20140893, 2016 CCA LEXIS 347 (Army Ct. Crim. App. 20 May 2016) (m em. op.). Here, appellant directly contradicts on appeal what he agreed to regard ing the value of theMINSHALL—ARMY 20140981

4 prepaid Visa card and prepai d phone card in the stipulation of fact and his sworn testimony during the provi dence inquiry. It is appropriate to reject facts asserted on appeal that contradict an appellant’s admissions during his gu ilty plea. United States v. Ferguson , 68 M.J. 431, 434 (C.A.A.F. 2010). It is clear the value of the prepaid Visa cards and the pr epaid phone cards went bey ond the mere cost of the plastic itself.

Lastly, appellant alleges the theft of a prepaid phone card is actually a theft of services, not a larcen y of the prepaid card. We disa gree. Appellant misconstrues, under the facts of this case, at what point a larceny took place. The larcenies were complete when the named vic tim businesses parted with their prop erty under false pretenses. The fact that a prepaid phone card can la ter be redeemed for phone

services does not transform the theft of a card into the theft of services. United

States v. Oki , ARMY 20050114, 2006 CCA LEXIS 431, at *4 (Army Ct. Crim. App. 28 June 2006) (mem. op.)

Unlike here, in Oki , appellant in that case used a stolen credit card to deal directly with the phone co mpany to steal services. Id . There was not a larceny of a good (a prepaid phone car d) but rather a theft of services (credit of minutes) directly from the phone company to Specialist Oki’s phone.

CONCLUSION

Having resolved there is no substantial basis in la w upon which to question appellant’s plea, and finding appellan t described in the providence inquiry all the facts necessary to es tablish his guilt , the findings of guilt y and the sentence are

AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: