United States v. Cahill

23 M.J. 544, 1986 CMR LEXIS 2102
CourtU S Air Force Court of Military Review
DecidedSeptember 30, 1986
DocketCM 448598
StatusPublished
Cited by1 cases

This text of 23 M.J. 544 (United States v. Cahill) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cahill, 23 M.J. 544, 1986 CMR LEXIS 2102 (usafctmilrev 1986).

Opinion

OPINION OF THE COURT

RICHARDSON, Judge:

Pursuant to his plea, appellant was convicted of attempting to enter a Government building with the intent to commit larceny, six specifications of larceny, wrongful appropriation, and four specifications of unlawful entry in violation of Articles 80,121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 921, and 930 (1982) [hereinafter cited as UCMJ]. A military judge sitting as a general court-martial sentenced him to a bad-conduct discharge, confinement for three years, forfeiture of all pay and allowances and reduction to the grade of Private E-l. The convening authority approved only so much of the sentence as provided for a bad-conduct discharge, confinement for two years and six months, forfeiture of all pay and allowances and reduction to the grade of Private E-l.

The appellant raises as the first of three assigned errors that Specification 2 of Charge I (housebreaking into a delivery van in violation of Article 130, UCMJ) fails to state an offense. He contends that the delivery van does not fall within the meaning of “building” or “structure” as required for the offense of housebreaking. We disagree.

Between 18 and 22 December 1985, appellant approached a delivery van parked next to the Furniture Mart at Schofield Barracks, Hawaii. The van was property of the Army and Air Force Exchange Service (AAFES), and was secured by banding wire. With the intent to steal something from inside the van, appellant, using a tire iron, broke the wire band that secured the rear door and gained access. He “found nothing in the van to steal.”

Article 130, UCMJ, provides:

Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a [546]*546criminal offense therein is guilty of housebreaking

Manual for Courts-Martial, United States [hereinafter cited as M.C.M.], 1984, Part IV, para. 56c(4), in discussing the offense of housebreaking provides:

‘Building’ includes a room, shop, store, office, or apartment in a building. ‘Structure’ refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an inclosed truck or freight car, a tent, and a houseboat____1

The Court of Military Appeals in discussing the offense of housebreaking has indicated that it is designed to protect real property and the type of personal property which amounts to a structure used for habitation or storage. See United States v. Gillin, 25 C.M.R. 173 (C.M.A.1958); United States v. Breen, 36 C.M.R. 156 (C.M.A. 1966); United States v. Taylor, 30 C.M.R. 44 (C.M.A.1960), and United States v. Hall, 30 C.M.R. 374 (C.M.A.1961).

Our research reveals that the definition of “structure” is not a uniform one,2 but in its broadest sense the word means anything constructed or built and generally refers to any product or piece of work artificially built up or composed of parts and joined together in some definite manner. See People v. Moyer, 635 P.2d 553, 555 (Colo.1981); see also Watson Industries, Inc. v. Shaw, 235 N.C. 203, 69 S.E.2d 505, 509 (1952). Thus, inclosed trailers are structures; the question is whether they are of the sort used for habitation or storage.

Black’s Law Dictionary3 defines “storage” as the safekeeping of goods in a warehouse or other depository and defines “store” as keeping merchandise for safe custody, to be delivered in the same condition as when received, where the safekeeping is the principal object of deposit, and not the consumption or sale. Inclosed trucks by the very nature of their physical configuration are intended for the safekeeping or storage of property over some period of time, that is, to secure property for some period of time so that it will be delivered or removed in the same condition as when received or placed in the inclosed truck. Whether the inclosed truck is mobile or immobile is not controlling. Nor is the duration the object is secured or stored in the inclosed truck controlling as long as safekeeping is the principal object of placing the property in the inclosed truck.

As an inclosed truck is specifically identified in the M.C.M., 1984, as being included within the meaning of the word “structures ... in the nature of buildings or dwellings” [547]*547we are not confronted with a difficult question of statutory construction in a virgin legal area. Further, in the past, the United States Court of Military Appeals has given due deference to the Manual’s definition of structures. See Gillin, 25 C.M.R. 173, and Hall, 30 C.M.R. 374; but compare Judge Ferguson’s concurring opinion in Hall, 30 C.M.R. at 375.

We find as a fact that the AAFES delivery van was an inclosed truck, and thus it met the legal definition of structure within the meaning of Article 130, UCMJ. While the delivery van contained nothing the appellant chose to steal, by its very physical configuration it could have been and, undoubtedly, was normally used by AAFES to store or secure property. In fact, we note that in the case sub judice the AAFES delivery van was sealed with a wire band which is a security measure more commonly used to secure a storage facility or structure than a vehicle used for mere conveyance. Furthermore, the break-in occurred only days before Christmas, a time when AAFES may have demanded additional storage space and logically relied upon the van to provide it. The appellant certainly believed the delivery van was likely to have property stored inside or he surely would not have broken the band and entered therein. Therefore, we are satisfied that the delivery van fell within the definition of a “structure” under Article 130, UCMJ. See Breen, 36 C.M.R. 156.

The appellant’s second assignment of error is that his plea of guilty to Specification 3 of Charge I (housebreaking into an AAFES “Matson” trailer in violation of Article 130, UCMJ) was improvident. He contends that “18 wheelers” are commonly used for transporting freight by land and are not usually used for storage or habitation.

On the evening of 24 December 1985 appellant broke into a “Matson” trailer located adjacent to the AAFES Furniture Mart at Schofield Barracks. He gained access by cutting the padlock off the door using a set of bolt cutters. Once inside, appellant stole three brass framed mirrors, four plant stands, two cabinet doors, a bookcase, and a box of automobile floor mats. At trial, appellant referred to the “Matson” trailer as an “18 wheeler.” A “Matson” trailer is the type of large semitrailer used to ship cargo by land, sea or rail. United States v. Kellom, CM 439284 (A.C.M.R. 27 June 1980) (unpub.); United States v. Barton, CM 439282 (A.C.M.R. 27 June 1980) (unpub.). The name “Matson” refers to the Matson Navigation Company which uses such trailers.

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Cite This Page — Counsel Stack

Bluebook (online)
23 M.J. 544, 1986 CMR LEXIS 2102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cahill-usafctmilrev-1986.