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________________________

No. ACM S32540

________________________

UNITED STATES Appellee

v.

M ya R. MEDINA
Airman Basic (E

- 1 ) , U.S. Air Force, Appellant

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 14 February 2020

________________________ Military Judge: Patricia A. Gruen

. Approved sentence: Bad

- conduct discharge and confinement for 4 months . Sentence adjudged 27 April 2018 by SpCM convened at Joint Base Elmendorf

- Richardson, Alaska

. For Appellant: Mark C. Bruegger, Esquire

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; M ajor Michael T. Bunnell , USAF; Andrew J. Quillen (legal intern) ; 1 Mary Ellen Payne, Esquire

. Before MINK, KIEFER, and LEWIS

, Appellate Military Judges

. Judge KIEFER delivered the opinion of the c ourt, in which Senior Judge
MINK and Judge LEWIS joined.

________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

1 Mr. Quillen was at all times supervised by an attorney admitted to practice before this court.United States v. Medina , No. ACM S32540

2 KIEFER, Judge:
Appellant was convicted

, pursuant to her pleas and a pretrial agreement (PTA)

, of one specification o f absence without leave on divers occasions , one specification of wrongful possession of marijuana, one specification of wrongful use of Percocet, one specification of wrongful use of Xanax

, one specification of willful disobedience of a superior commissioned officer, one specification of willful dereliction of duty, and one specification of false official statement in violation of Articles 86, 90, 92, 107, and 112a, Uniform Code of Military Justice (UCMJ) , 10 U.S .C. §§ 886

, 890, 892, 907, 912a

. 2 Pursuant to the PTA, Appellant also pleaded guilty to two specifications of wrongful appropriation

, but she

was ultimately convicted by the military judge of the greater offenses of larceny under Article 121, UCMJ , 10 U.S. C. § 921

. Appellant was sentenced to a bad

conduct discharge and six months confinement. Pursuant to the terms of her PTA, the approved sentence was a bad

- conduct discharge and four months confinement.
Appellant asserts three assignments of error : (1) w he ther the military judge abus e d her discretion by failing t o award Appellant credit fo r illegal pretrial punishment ; (2) w hether Appellant’s guilty plea to dereliction of duty was provident ; and (3) w hether Appellant ’ s convictions for larceny were factually sufficient

. We find no prejudicial error and affirm.

I. B ACKGROUND
In January 2018, Appellant liv ed with two civilian sister s and their mother at an off

- base residence. While Appellant was living at the ho me , one of the
sisters showed Appellant wher e they ke pt cash in the house

. In late January 2018, Appellant wrongfully took approximately $2

, 100.00 that belonged to the
sister s from the location where the money was stored

. When one of the sisters confronted Appellant about the missing mone y , Appellant lied and created a story that some stranger must have stolen the money. Appellant used the money to pay her bills and place a down payment on a BMW.

By early February 2018, Appellant had moved on base. On or about 3 February 2018, Appellant br ough t two male civilian friends on base to visit her

new residence. The civilians had marijuana with them

, and they left some of the marijuana at Appellant’s on

- base residence with her knowledge. Around this same time, Appellant obtained one pill each of P ercocet and Xanax from civilian friends. She knowingly ingested both pills without any legal justification or authorization.

2 All references in this opinion to the Uniform Code of Military Justice and Rules for Courts

- Martial are to the Manual for Courts

- Martial, United States (2016 ed.).United States v. Medina , No. ACM S32540

3 Security f orces investi g ators found out about the civ i lians ’ visit to Appellant’s on

- base residence and about the presence of marijuana. A s ecurity f orces investigator informed Appellant that one of the civilian friends had a felony conviction, and Appellant was not permitted to bring him on base.
In February and March 2018, Appellant was assigned to the 673d Secu rity Forces Squadron at Joint Base Elmendorf

- Richardson (JBER). During this time, she was scheduled to work various shifts. On more than one occasion, s he failed to show at her duty location at the appointed time s and did not have any
authorization for her absence s

. On March 9, 2018, Appellant submitted a response to a nonjudicial punishment action under Article 15, UCMJ, 10 U.S.C. § 815, to her commander. In the response, Appellant indicated that she was providing financial support to
her sister in the ho pes that the commander would not adju d ge forfeitures as part of a punishment. At the time Appel l ant prepared and submitted the response , she knew the statement regarding financial support for her sister was false, and she intended to mislead the commander in making this statement.
On 13 March 2018, Appellant’s commander restricted her to the limits of
J BER . On or about 3 April 2018, despite the order from her commander, Appellant drove off base

, picked up the civilian friend who had a felony conviction, and brought him back to base

. She was stopped by s ecurity f orces , who prevented Appellant from taking the civilian to her residence. Appellant’s acts of leaving base while restricted and bringing a known felon on base constituted
the offenses of disobeying a superior commissioned officer and willful dereliction of duty. On 4 April 2018, Appellant was ordered into pretrial confinement by her commander.

II. D ISCUSSION

A. Illegal Pretrial Punishment

1. Additional Background
Appellant ’s commander ordered her into pretrial confinement because she continued to engage in misconduct and violate orders. On 5 April 2018

, the pretrial confinement review officer conducted a hearing pursuant to Rule f or Courts

- Martial ( R.C.M. ) 305 and deter mined pretrial confi n emen t was appropriate and should continue.
Appellant was initially process ed at the Anchorage Correctional Complex (ACC) . S he was soon transferred to the Hiland Mountain Correctional Center (HMCC) in Eagle River, Alaska

, because the ACC could not accommodate female pretrial confinees

. Appellant was placed in the segregation unit at HMCC to satisfy Air Force requirements that she not be housed with post

- convictionUnited States v. Medina , No. ACM S32540

4 inmates. She remained in pretrial confinement there until her trial on 27 April
2018.
Appellant’ s cell at HMCC had a bed, toilet, and sink as well as a window to the outside on one wall and a window in the door. She was confined in this cell for approximately 23 hours per day and was given one hour of recreation time in an enclosed yard outside of th e building as well as a 20

- minute private shower period outside of the cell each day. She ate her meals in the cell. Appellant was transported within the facility with handcuffs and/or leg shackles, but
these were not worn in her cell. Appellant was permit ted to make 93 telephone calls, and she was allowed to receive visitors.
Appellant’s initial cell had a camera that could be monitored by corrections officers within the segregation unit but not all cells ha d cameras. Appellantwas initially placed in a cell with a camera because that was all that was available within the segregation unit when she arrived at HMCC

. The militaryjudge found that there was no evidence to support that the camera would capture Appe llant using the latrine. This conclusion is not clearly erroneous and is supported by the weight of the evidence. See United States v. King , 61 M.J. 225, 227 (C.A.A.F. 2005)

. An Air Force corrections official visited Appellant while she was at H MCC

. Appell ant told the official that H MCC staff had mistakenly given her paperwork to a general population inmate with the same last name. Appellant was concerned that the inmate now knew Appellant was a “cop

. ” Appellant ask ed to remain in the segregation unit for s afety reasons. Appellant was confined in
the HMCC segregation unit for 23 days up to the first day of trial. Evidence was presented that s he was moved to different cells during her stay at H MCC,
but i t is unclear exactly how many days she was in a cell wit h a camera.
At trial, Appellant argued that she was entitled to additional credit against any adjudged confinement due to the alleged violation of her Article 13, UCMJ

, 10 U.S.C. § 813

, rights . She asserted that the conditions of her pretrial confinement either constituted punishment or were so egregious that she was entitled
to three

- for

- one credit beyond the day

- for

- day credit she was to receive for her time in pretrial confinement.

In parti cular, Appellant argue s that the presence of a camera in her cell constituted egregious conditions that violated Air Force standards for confinees as outlined in Air Force Instruction (AFI) 31

- 105

, Air Force Correction s System

, ¶ 4.2.5.1.1 (15 Jun. 2015 , a s amended by AFGM 2017

- 01, 28 Jun.
2017 ) . Appellant asserts that cameras may not be present in Air Force confinee cells. The AFI, however, states that Air Force officials should “[e]nsure CCTV does not invade confine e privacy (i.e., do not place in cells, toilet, or shower areas) unless suicidal or violent behavior dictates otherwise.” Id. Purs u ant toUnited States v. Medina , No. ACM S32540

5 this same AFI, Air Force officials also have a responsibility to ensure “ a secure, humane, and productive environment for confine e s and staff.” AFI 31

- 105

, ¶
1.1. Additionally, Air Force officials are responsible for ensuring military pretrial detainees are separated from illegal aliens and other foreign nationals and not comingled with post

- trial civilian inmates. AFI 31

- 105

, ¶ 5.2.4.1. Thus, officials must balance various c ircumstances to ensure an overall secure and
humane environment.

2. Law
Article 13, UCMJ, 10 U.S.C. § 813, states:
No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the
cha rges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstancesrequired to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

This a rticle essentially prohibits: (1) the imposition of punishment prior to trial and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused’s presence for trial. See i d. The commander’s intent for ordering pretrial confinement is a “significant factor in [the] judicial calculus” for determining whether there has been an Article 13, UCMJ, violation. United States v. Huffman , 40 M.J. 225, 227 (C.M.A. 1994) ( citing Bell v. Wolfish , 441 U.S. 520 (1979)), overruled on other grounds by United States v. Inong , 58 M.J. 460, 464 (C.A.A.F. 2003).
Appellant bears the burden of establishing an Article 13, UCMJ, violation. See United States v. Harris , 66 M.J. 166, 168 (C.A.A.F. 2008) (citation omitted).
We will not overturn a military judge’s findings of fact unless they are clearly erroneous, and we review de novo whether Appellant is entitled to credit for a violation of Article 13, UCMJ. King , 61 M.J. at 227 (citations omitted).

3. Analysis

T he military judge det er m ined that none o f the condit i ons of Appellant ’ s pretrial confinement were for the purpose of punishment or were so egregious that they constituted illegal pretrial punishment. Appellan t w a s initially classified as admi ni strative segregation, and she was no t tr e ated any differently
than other ad m in is trative segregation confine e s at the HMCC in terms of the time she spent in her cell or the type of cell in which she was housed

. She was kept separate from civilian post

- conviction inmates pursuant to Air Force policy. Additionally, Appel l ant request ed to remain in administrative segregation due to safety concerns about inmates possibly knowing she was a law enforcement officer . With re s pect to the camer a in her cell, Appellant failed to show how often the camer a was actually monitored, how many days she spent in aUnited States v. Medina , No. ACM S32540

6 cell with a camera

, or th e extent to which the camera deprived her of privacy.
T he w e ight of the evidence indicates she had privacy when using the toilet in
her cell and when showering, which occurred i n a separate room without a

camera outside of her cell. The military judge also found Appellant was able to make 93 phone calls during her time in pretrial confinement and was permitted to receive visitors. Finally, the military judge found an appropriate balance between the conditions of Appellant’s confinement and safety considerations.
We find the military judge did not abuse her discretion in finding that Appellant’s conditions of pretrial confinement were not for the purpose of punishment and were not so egregious to warrant any relief beyond the day

- for

- day credit she received for her time in pretrial confinement.

B. Providence of Appellant ’s Guilty Plea to Willful Dereliction of Duty

1. Additional Background
Appellant stated during her guilty plea inquiry that she brought her civilian friend

, who was a convicted felon

, to the gate at J BER . She admitted that
she knew he was a co n vi c ted felon

, and that she was not permitted to bring
him on base. She knew this as a security forces member and because she was

to ld by a security forces investigator that the civilian was a convicted felon and was not permitted on base. Appellant ’ s only challenge to the providen ce of her plea is whether bring ing the civilian to the gate and getting caught by security forces a t that location constitute s bringing a convi cted felon “on base.”
Appel lant acknowledged during the Care 3 inquiry that the gate was within the base at JBER. She explained there was a fence line outside o f the gate area

, and entrants had to cross the fence line to reach the gate. Additional l y, during
the providenc e inquiry on the offense of disobeying a superior commissioned officer

, Appellant stated she was restric t ed “to base.” She further noted

, “ T hat night I left out Muldoon Gate, which was part of the b ase

. . . . ” (Emphasis added). She then admitted she came back on base and was stopped at the same gate with the civilian felon.
Later in the same inquiry regarding the Article 90 , UCMJ, offense , Appellant and the military judge discussed the commander’s order restricting Appellant to base.

[ M ilitary Judge (M J ) : ] Okay. And what exactly was the order

as you un derstood it to be when you read the document.
[Appellant:] That I was not allowed to leave the base or any gate.

3 See United States v. Care , 40 C.M.R. 247 (C.M.A. 1969).United States v. Medina , No. ACM S32540

7 [ MJ: ] Okay. So the fenced area was basically your perimeter, and you couldn’t go outside that.
[Appellant:] Yes ma’am.

2. Law
“We review a military judge’s acceptance of a guilty plea for an abuse of
discretion.” United States v. Blouin , 74 M.J. 247, 251 (C.A.A.F . 2015) (citation omitted). “The test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea.” United States v. Moon , 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United Sta tes v. Passut , 73 M.J. 27, 29 (C.A.A.F. 2014)). “The military judge mustquestion the accused under oath about the offenses to ensure there is an adequate factual basis for a guilty plea.” United States v. Mull , 76 M.J. 741, 744 (A.F. Ct. Crim. App. 2017) (citing R.C.M. 910(e); Article 45(a), UCMJ, 10 U.S.C. § 845(a)). “It is an abuse of discretion for a military judge to accept a guilty plea without an adequate factual basis . . . .” United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 2012) (citation omitted) . However, we look to the entire record to determine whether there is a substantial basis to question the guilty plea. See United States v. Jordan , 57 M.J. 236, 239 (C.A.A.F. 2002).
“A plea is provident so long as Appellant was ‘convinced of, and [was] abl e to describe, all of the facts necessary to establish [his] guilt.’” United States v. Murphy , 74 M.J. 302, 308 (C.A.A.F. 2015) (alteration s in original) (quoting United States v. O’Connor , 58 M.J. 450, 453 (C.A.A.F. 2003)). “If an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Hines

, 73 M.J. 119 , 124 (C.A.A.F. 2014) (quoting United States v. Goodman , 70 M.J. 396, 399 (C.A.A.F. 2011)) (internal quotation marks omitted). We “must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty pl ea. The mere possibility of a conflict is not sufficient.” Id. (citation and internal quotation marks omitted)

.
3. A nalysis

Th e exchange between the military judge and Appellant confirms Appellant’s understanding that there is a difference between the perimet er of the base and the gate, and her act of crossing the fence line when she brough t the convicted felon to the gate constituted the offense of willful dereliction of duty. We also note the inquiry on the Article 90 , UCMJ, offense occurred prior to the inq uiry on the willful dereliction of duty offense. Thus, Appellant established

an understanding that the gate is on the base prior to being questioned about the willful dereliction of duty offense.United States v. Medina , No. ACM S32540

8 We consider the entire record in determining whether a plea is provident. See Jordan , 57 M.J. at 239. Thus, e ven though some of Appellant’s most telling statements about the boundaries of the base occurred during the inquiry on
the disobedience offense , we may consider them with regard to Appellant’s understanding of what constitutes “the base” for the purpose s of her guilty plea

to willful dereliction of duty

. In reviewing the entire record , we find the military judge did not abuse her discretion in accepting Appellant’s guilty plea to willful dereliction of duty by failing to refrain from bringing a convicted felon on base

. C. Factual Sufficiency of Convictions for Larceny

1. Law
We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted) . Our assessment of factual sufficiency is limited to the evidence presented at trial. United States v. Dykes , 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted)

. The test for factual sufficiency is “whether, after weighi ng the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we are] convinced of the [appellant ’s ] guilt beyond a reasonable doubt.” United States v. Turner , 25 M.J. 324, 325 (C.M.A. 1987); see also Unite d States v. Reed , 54 M.J. 37, 41 (C.A.A.F. 2000) (citation omitted) . In conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own in dependent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.” Washington , 57 M.J. at 399. Article 121, UCMJ

, sets forth definitions related to the offense of larceny and wrongful appropriation. An intent to steal may be proven by circumstantial evidence. Manual for Courts

- Martial , United States (MCM) pt. IV, ¶ 46. c

. (1)(f)(ii). Further, “[a]n intent to steal may be inferred from a wrongful and intentional dealing with the property of another in a manner likely to cause that person to suffer a permanent loss thereof.” Id. “An intent to pay for or replace the stolen property is not a defense, even if that intent existed at the time of the theft,” as long as the perpetrat or had the intent to permanent ly deprive the true owner at some point

. MCM

, pt. IV, ¶
46. c

. (1)(f)(iii)(B).

2. Analysis
Appellant pleaded guilty to two specifications of wrongful appropriation and admitted all elements of the greater larceny offenses, except the intent toUnited States v. Medina , No. ACM S32540

9 permanently depri ve the true owners of their property. 4 Appellant instead asserted that she intended to repay the money once she received back pay from the Air Force due to a prior finance mistake.
The military judge found beyond a reasonable doubt that Appellant ha d the
i ntent to permanently deprive and con v i c ted her of the greater larceny offense for each Article 121 , UCMJ, specification

. After reviewing the evidence and making allowances for having not personally observed the witnesses, we are similarly convinced . While we acknow l e d g e that Appellant indicated throughout her providence inquiry that she intended to repay the money

, her statements were in consistent with her act i ons at the t i me of and immediately following the thefts

. The evidence presented in findings showed that, when first confront ed by one of the sisters about the missing money

, Appe l lant lied and fabricated a story whereby a stranger must have come into the ho me , figured
out where the mon e y wa s , and stole n it. Later, Appellant admitted she told the

purpor ted “stranger” where the money was, but she did not take the money or intend for the stranger to take it. Appella nt repeatedly recounted stor ies that were inconsistent and untruthful before she finally admitted that she took the

money. While a person may lie about wrongfully taking an item and still have the intent to return it, Appellant’s various versions of events were so far

- fetc h ed
that the y demonstrate a more permanent intent

. Additionally, Appellant spent most of the money soon after stealing it. Wh ile she indicated at trial that she intended to repay the money upon receipt of back pay from the Air Force, her first inclination upon tak ing the cash was to use it for her own benefit , including paying her bills and plac ing a down payment on a BM W. Final ly, the factthat Appellant made no effort to return the money before she was caught suppor t s a fin di ng of larceny.
An intent to permanently deprive need only exist for a moment at the time of or subsequent to the wrongful taking to consummate the offense of larceny. We find that despite Appellant’s representations during the providence inquiry on wrongful appropriation, there was a t least a moment when she intended to permanently keep the money she stole. Accordingly, we find the evidence related to the l arceny specifications is factually sufficient.

4 The larceny offenses were set forth as two separate specification s because it was determined, and Appellant admitted, that she stole money that belonged to each sister.United States v. Medina , No. ACM S32540

10 III. C ONCLUSION
The findings and the sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ

, 10 U.S.C. §§ 859(a)

, 866(c)

. Accordingly, the findings
and sentence are AFFIRMED

. 5

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

5 Counsel for Appellant not e s two errors in the promulgating order, specifically that the ending date in the charged timeframe of both specifications of Charge III was 30 January 2018, not 15 January 2018. We concur and direct the publication of a corrected

court

- martial order to re medy the errors.