United States v. Deloso

55 M.J. 712, 2001 CCA LEXIS 228, 2001 WL 1007670
CourtUnited States Air Force Court of Criminal Appeals
DecidedSeptember 6, 2001
DocketACM 34208
StatusPublished
Cited by3 cases

This text of 55 M.J. 712 (United States v. Deloso) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Deloso, 55 M.J. 712, 2001 CCA LEXIS 228, 2001 WL 1007670 (afcca 2001).

Opinion

OPINION OF THE COURT

BURD, Senior Judge:

On 27 June 2000, the appellant was tried by general court-martial composed of a military judge sitting alone at Wright Patterson Air' Force Base (AFB), Ohio. Consistent with his pleas, he was found guilty of failure to go to his appointed place of duty, in violation of Article 86, UCMJ, 10 U.S.C. § 886, four specifications of willful damage to private property, in violation of Article 109, UCMJ, 10 U.S.C. § 909, one specification of multiple wrongful uses of marijuana and two specifications of single wrongful uses of marijuana, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a, two specifications of reckless [713]*713endangerment, in violation of Article 134, UCMJ, 10 U.S.C. § 934, and one specification under an additional charge of multiple possessions of marijuana, in violation of Art. 112a, UCMJ. Under the terms of a pretrial agreement (PTA), the prosecution did not go forward on four other allegations. The military judge sentenced the appellant to a bad-conduct discharge, confinement for 18 months, forfeiture of $500 pay per month for 15 months, and reduction to E-l. The convening authority, in accordance with the PTA, approved only so much of the sentence as provided for a bad-conduct discharge, confinement for 18 months, and reduction to E-1. He also waived automatic forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b.

The appellant now raises for the first time two issues. He claims his plea of guilty to one of the specifications of willful damage to private property was improvident. He also claims that the three specifications of wrongful use of marijuana were an unreasonable multiplication of charges for sentencing purposes. For the reasons stated herein, we affirm.

I. Guilty Plea to Damaging Private Property

The appellant’s wife left him and returned to live in their hometown in Maryland. Late one evening, the appellant decided to visit her unannounced. When he arrived at the house where she was living, he discovered a “friend’s” car (a 1994 Ford Mustang) parked on the street adjacent to his wife’s car (a 1991 Ford Escort). No one answered his knocks on the front door. The location was on a steep hill. The appellant decided to relieve his resulting frustration by putting the ears in neutral and releasing the parking brakes. The cars careened down the hill under the force of gravity until they collided with a hardware store that was across a street intersection at the base of the hill.

Both the appellant and his wife were registered owners of the Ford Escort. From this fact, the appellant argues that his plea was improvident because it is not a crime to intentionally damage one’s own property. This argument ignores the obvious. The appellant’s wife also owned the car. The position the appellant espouses would give any owner of property a license that would expose others with interests in that property to unacceptable risk of loss. We decline to join in this flight from rationality.

Nearly a half century ago, this Court held that ownership is an essential element of the offense of willfully and wrongfully damaging private property. United States v. Rand, 17 C.M.R. 893, 894, 1954 WL 2721 (A.F.B.R. 1954). Therein, we said:

Certainly, such is the demand of reason and logic, for it is elemental that one may treat or dispose of his own property in any manner he may deem fit, even to its utter destruction, so long as he does not infringe upon the rights of others thereby (cf. ACM 8037, Freeman, 15 C.M.R. 639, 1954 WL 2374 [(1954)]). No offense under Article 109 exists under those conditions and criminal responsibility arises only upon the commission of an act which unlawfully damages the property of another.

Id. (emphasis added) (parenthetical citation in original).

Our Army colleagues addressed the issue in a case involving destruction of an automobile subject to a lender’s property interest. The Army Court said: .

The term “property of another” imposes “criminal responsibility on a person who damages another’s interest in property, regardless of whether ownership in the property is shared; a person does not have the right, by virtue of part ownership, to harm the interest of another person in that property.”

United States v. McDuffie, 28 M.J. 869, 870 (A.C.M.R.1989) (quoting People v. Jones, 145 Ill.App.3d 835, 99 Ill.Dec. 636, 495 N.E.2d 1371, 1372 (3d Dist.1986)). We agree with our Army colleagues. See State v. Zeien, 505 N.W.2d 498 (Iowa 1993) (affirming conviction of husband who maliciously damaged property co-owned with wife); State v. Superior Court, 188 Ariz. 372, 936 P.2d 558 (1997) (reinstating criminal damage conviction where husband damaged home jointly owned with wife); People v. Kahanic, 196 Cal. App.3d 461, 241 Cal.Rptr. 722 (5th Dist.1987) (affirming conviction of wife who vandalized community property automobile); People v. [714]*714Schneider, 139 Ill.App.3d 222, 93 Ill.Dec. 712, 487 N.E.2d 379, 380 (5th Dist.1985) (assuming co-ownership of automobile, husband lacks right to harm wife’s property interest); Victoria L. Lutz & Cara M. Bonomolo, My Husband Just Trashed Our Home; What Do You Mean That’s Not a Crime?, 48 S.C. L.Rev. 641, 651 (1997) (“[W]hen a husband destroys property that he owns jointly with his wife, not only does he destroy his property, which he may have a right to destroy, but he simultaneously destroys his wife’s undivided one hundred percent interest in the property, which he does not have a right to destroy.”). See also LaParle v. State, 957 P.2d 330, 334 (Alaska Ct.App.1998) (“ ‘property of another’ includes the undivided property rights of co-owners”). But compare State v. Webb, 64 Wash.App. 480, 824 P.2d 1257 (1992), rev. denied, 119 Wash.2d 1015, 833 P.2d 1389 (1992), and People v. Brown, 185 Misc.2d 326, 711 N.Y.S.2d 707 (N.Y.City Crim.Ct.2000), with State v. Coria, 105 Wash. App. 51, 17 P.3d 1278 (2001), and People v. Person, 239 A.D.2d 612, 658 N.Y.S.2d 372 (1997).

During the military judge’s inquiry into the providence of the appellant’s guilty plea, after the judge explained the elements of the offenses charged under Art. 109, UCMJ, the following exchange took place in discussing the appellant’s actions in damaging the two cars:

Military judge (MJ): Well what was your intention?

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Bluebook (online)
55 M.J. 712, 2001 CCA LEXIS 228, 2001 WL 1007670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-deloso-afcca-2001.