United States v. Haney

39 M.J. 917, 1994 CMR LEXIS 378, 1994 WL 87898
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedFebruary 18, 1994
DocketNMCM 91 02749
StatusPublished
Cited by1 cases

This text of 39 M.J. 917 (United States v. Haney) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Haney, 39 M.J. 917, 1994 CMR LEXIS 378, 1994 WL 87898 (usnmcmilrev 1994).

Opinion

LAWRENCE, Judge:

Consistent with his pleas, appellant was found guilty of attempting to steal merchandise from a vending machine, conspiring to commit larceny, wrongfully selling military property, wilfully damaging the glass case of a vending machine, stealing numerous items and money, unlawfully entering a storage shed, and receiving stolen property, in violation of Articles 80, 81,108,109, 121, 130, and 134, Uniform Code of Military Justice [916]*916(UCMJ), 10 U.S.C. § 880, 881, 908, 909, 921, 930, and 934. He was sentenced to confinement for 5 months, reduction to pay grade E-l, forfeiture of $500.00 pay per month for 5 months, and a bad-conduct discharge. The convening authority approved the sentence but, in accordance with the pretrial agreement, suspended confinement in excess of 90 days.

Providence Inquiry

During the providence inquiry into the attempt to steal merchandise from the vending machine, appellant said that while he and another sailor were working they became hungry. They had no money, however, there was a vending machine containing food in the area. They conceived the idea of breaking the glass and taking food from the machine. The following colloquy occurred:

ACC: ... And so we started to drill a hole through the glass so we could stick a piece of wire in to drop down the food. While I drilled, he looked — looking out to see if anybody was coming, and then he did some drilling and I’d look out. I tried it again and the glass broke. We said, well, forget this, now that the glass broke we called the Navy Exchange and the Navy police so that they could come there and see that the glass was broken, and we didn’t take anything out of the machine at all.
MJ: The glass broke as you were drilling it?
ACC: Yes, ma’am.
MJ: And what stopped you from taking the food out of there?
ACC: We realized it was a bad idea, what we were doing, and we didn’t want to do it any longer.
MJ: Were you afraid the glass was going to damage the food?
ACC: No, ma’am.
MJ: Were you afraid somebody was going to catch you?
ACC: Not really, ma’am.
MJ: You just decided you didn’t want to take the food out?
ACC: Yes, ma’am.

Record at 17-18. The military judge then elicited appellant’s concession that his acts amounted to more than mere preparation. Appellant said that they did attempt to obtain the food. The colloquy continued:

MJ: Was this, in fact, the last thing “we” would have had to do before “we” actually took the food out?
ACC: Yes, ma’am.
MJ: If I (sic) hadn’t stopped, is this the next thing to taking the food out? You’ve broken the glass by drilling a hole in it, is that correct?
ACC: Yes, ma’am. When the glass broke, it like all shattered. It was still within itself. It didn’t fall down. It still stayed in place.
MJ: Could you have reached in and taken food?
ACC: No, ma’am.
MJ: You would have had to do a little bit more?
ACC: Yes, ma’am.
MJ: But you still think that the act was an actual part of — it amounted to an attempt to steal the food?
ACC: Yes, ma’am.

Record at 20-21.

Specified Issue and Holding

Based on the foregoing, we specified the following issue for briefing by the parties:

WHETHER APPELLANT’S RESPONSES DURING THE PROVIDENCE INQUIRY REGARDING CHARGE I AND ITS SPECIFICATION RAISED THE AFFIRMATIVE DEFENSE OF VOLUNTARY ABANDONMENT OF THE ATTEMPT TO STEAL MERCHANDISE FROM THE VENDING MACHINE, AND, IF SO, WHETHER THE MILITARY JUDGE’S FAILURE TO INQUIRE INTO THE DEFENSE SHOULD RESULT IN SETTING ASIDE THE FINDINGS OF GUILTY OF THAT CHARGE AND SPECIFICATION? See United States v. Byrd, 24 M.J. 286 (C.M.A.1987); United States v. Walther, 30 M.J. 829 (N.M.C.M.R.1990); [917]*917United States v. Rios, 32 M.J. 501 (A.C.M.R.1990); Record at 17-22.

We hold that appellant’s responses do not raise the defense of voluntary abandonment of the attempt to steal the food, accordingly, the military judge was not required to explain the defense to- appellant or elicit additional facts to establish that the defense was not present.

Rationale

In United States v. Schoof, 37 M.J. 96 (C.M.A.1993), the Court of Military Appeals recognized “abandonment as an affirmative defense to a completed attempt.” Id. at 103. The Court indicated that the parameters of the defense are those contained in the Model Penal Code. In United States v. Smauley, 39 M.J. 853 (N.M.C.M.R.1994), we applied the provisions of the Model Penal Code in determining whether the appellant’s responses during the providence inquiry raised the defense of voluntary abandonment of an attempt to commit carnal knowledge and found that the defense was not raised. In deciding whether appellant’s responses during the providence inquiry in this case raise the defense, we look again to the Model Penal Code provisions themselves and then to the guidance provided in Smauley.

Under the Model Penal Code, in order to avail himself of the defense, the actor must have “abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” Model Penal Code § 5.01(4), reprinted in ALI Model Penal Code and Commentaries 296-97 (1985) [hereinafter Commentaries]. The Model Penal Code states that

renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose.

Id at 297. The Comment to the subsection states that “the- abandonment of the criminal effort must originate with the actor, and not be influenced by external circumstances that increase the probability of detection or that make more difficult the accomplishment of the criminal purpose.” Model Penal Code § 5.01 Comment, reprinted in Commentaries at 358.

The Court of Military Appeals in United States v. Rios, 33 M.J. 436 (C.M.A.1991), arguably extended the admonition contained in the Comment. Rios attempted to rob a fast-food store by giving a cashier a threatening note. The cashier unexpectedly turned away and returned with the manager who was unaware of what was occurring. When Rios reached into his pocket, the manager became alarmed and ran to the back of the store to call the police. Rios ran away.

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Cite This Page — Counsel Stack

Bluebook (online)
39 M.J. 917, 1994 CMR LEXIS 378, 1994 WL 87898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-haney-usnmcmilrev-1994.