WOOD – ARMY 20080273

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

TOZZI, HAM, and JOHNSON

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Sergeant CLINTON H. WOOD**

**United States Army, Appellant**

ARMY 20080273

Headquarters, 4th Infantry Division (Mechanized)

Gregg A. Marchessault, Military Judge

Lieutenant Colonel Tania M. Martin, Staff Judge Advocate

For Appellant:  Major Teresa L. Raymond, JA; Captain Pamela Perillo, JA.

For Appellee:  Pursuant to A.C.C.A.  Rule 15.2, no response filed. 

24 September 2008

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of dereliction of duty, wrongful use of Diazepam, a Schedule IV controlled substance, wrongful distribution of Diazepam, a Schedule IV controlled substance, wrongful possession of Diazepam, a Schedule IV controlled substance, and larceny of military property of a value over $500.00, in violation of Articles 92, 112a, and 121 of the Uniform Code of Military Justice, 10 U.S.C. §§ 892, 912, and 921 [hereinafter UCMJ].  The military judge sentenced appellant to a bad-conduct discharge, forfeiture of all pay and allowances, confinement for six months, and reduction to Private E1.  The convening authority approved the adjudged sentence. Appellate defense counsel submitted the case for appellate review on its merits.  

Upon review of the case before us under Article 66, UCMJ, we find appellant’s guilty plea to The Specification of Charge IV, larceny of military property over $500.00 to be improvident, but do find the providency inquiry established this guilt to the lesser included offense of larceny of military property under $500.00.  

A providence inquiry into a guilty plea must:  (1) establish that the accused believes and admits he or she is guilty of the charged offenses; and (2) provide a set of factual circumstances—admitted by the accused—which objectively support the guilty plea.  Rule for Courts-Martial 910(e); *United States v. Simmons*, 63 M.J. 89, 92 (C.A.A.F. 2006); *United States v. Barton*, 60 M.J. 62, 64 (C.A.A.F. 2004); *United States v. Morris*, 58 M.J. 739, 742-43 (Army Ct. Crim. App. 2003).  

While serving in Iraq as the unit’s Chemical,  Biological, Radiological, and Nuclear Non-Commissioned Officer, appellant stole approximately 259 diazepam injectors, which he either used himself, distributed or attempted to distribute to two other Soldiers, or possessed at the time of a command authorized search of his trailer. As stipulated by the parties at trial, Diazepam, also called valium, is a controlled substance used to prevent or treat convulsions resulting from moderate to severe nerve agent poisoning. The parties also agreed each injector was worth $14.84, and the total value of all the stolen injectors was about $3,170.00.

During the providence inquiry, appellant admitted he stole up to four Diazepam injectors three times a week during a two month period and, on three other occasions, stole a box containing fifteen injectors.  The value of each individual larceny was less than $500.00. 

At trial, the government argued the maximum punishment for The Specification of Charge IV included ten years confinement because the aggregate value of the Diazepam injectors the appellant stole was greater than $500.00, compared to a maximum authorized sentence to confinement of one year if the value of the military property was less than $500.00.  This Court, however, has long held that “the record must show either that one item of the property stolen has [a value of $500.00] or that several items taken at substantially the same time and place have such an aggregate value” for an accused to be convicted of the greater offense and subjected to a maximum punishment that includes ten years of confinement.  *United States v. Harding*, 61 M.J. 526, 528 (Army Ct. Crim. App. 2005)(citing *United States v. Christensen*, 45 M.J. 617, 619 (Army Ct. Crim. App. 1997)(quoting *United States v. Rupert*, 25 M.J. 531, 532 (A.C.M.R. 1987)).  Because appellant only admitted to committing separate larcenies of military property of a value less than $500.00,  the military judge failed to elicit the factual predicate necessary to find appellant guilty of the offense of larceny of military property of a value greater than $500.00.

Accordingly, the court affirms only so much of the finding of guilty of The Specification of Charge IV as finds that the appellant did, at or near LSA Anaconda, Iraq, and Camp Taji, Iraq, from about 15 September 2007 to about 5 January 2008, steal Diazepam, military property, of a value less than $500.00, the property of the United States Army.  The remaining findings of guilty are affirmed.  Reassessing the sentence on the basis of the modified findings, the entire record, and in accordance with the principles of *United States v. Sales,*22 M.J. 305 (C.M.A. 1986), and *United States v. Moffeit*, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion, the sentence is affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

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