United States v. Harville

14 M.J. 270, 1982 CMA LEXIS 14016

• Court: United States Court of Military Appeals
• Decided: December 13, 1982
• Docket: No. 37,996; ACM S24696
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Judge:

At his special court-martial¹ appellant was found guilty, inter alia, of wrongful appropriation of an automobile. We granted review of this case to determine whether the evidence is insufficient as a matter of law to support the conviction of this offense. We have perused the testimony at trial. As we conclude that it failed to exclude any fair and reasonable doubt except that of guilt, we reverse the decision of the court below regarding that offense. 7 M.J. 895.

A brief examination of the evidence is essential. Appellant, charged with stealing Airman Rebecca Lemke’s auto, was confronted at trial by two government witnesses. The less important one was Staff Sergeant Ibanez, who interviewed Lemke concerning the vehicle after it was reported missing. The principal witness, however, was Lemke herself, who stated that she owned the automobile and had frequently allowed appellant to borrow her car.

Review of the entirety of Lemke’s testimony reveals somewhat contradictory assertions. On the one hand, at one point in her testimony Lemke denied giving appellant verbal permission to use the automobile off base on August 1, 1978. She, however, explained that she reported the automobile missing the next afternoon, but did not consider it stolen. Apparently her concern was not only for her automobile, but also for appellant’s well-being. Lemke’s uniforms and several other personal possessions were in the automobile.

On the other hand, however, during cross-examination, Lemke testified that she was aware appellant, a close friend, wanted to use her automobile to drive to Texas. She had discussed this with appellant and contrary to her earlier testimony, she admitted that she had told him he could use her car to make such a trip. However, on the date in question, appellant had not informed her that he had taken the automobile to Texas or where he could be reached. A conversation with one of the maids, however, led her to believe there could have been a note on her door containing such information.

The defense to this charge consisted solely of appellant’s testimony. Appellant denied stealing Lemke’s automobile and believed he had verbal permission from Lemke to take her automobile to Texas. He had used Lemke’s automobile several times; they were friends. It was his understanding that whenever he had to go to Texas he only had to let Lemke know where he was going and when he would be back. He got this impression from a conversation he had with Lemke a few days before August 1,1978. He told Lemke that he would be gone three or four nights. During that conversation, she gave him permission to take her car on the trip.

On August 1, 1978, he overslept and missed an appointment. He called Texas and decided to go there but did not know Lemke’s duty telephone number or her place of duty. He did not then ask Lemke’s permission to use the automobile because she was at work. Instead, he left a note on her door which indicated where he had gone, when he would return, and how she could reach him. By leaving the note, he believed he was complying with their understanding as to the use of the automobile.

“Not every wrongful taking constitutes a violation of Article 121,” Uniform Code of Military Justice, 10 U.S.C. § 921. United States v. Hayes, 8 U.S.C.M.A. 627, 629, 25 C.M.R. 131, 133 (1958); see United States v. Pelton, 19 U.S.C.M.A. 131, 41 C.M.R. 131 (1969); United States v. Caid, 13 U.S.C.M.A. 348, 32 C.M.R. 348 (1962). “[T]he mere ‘borrowing’ of an article of property without the prior consent of the owner does not make out either of the offenses under Article 121.” United States v. Hayes, supra at 629-30, 25 C.M.R. at 133-34. There must be a criminal taking in order to make out an offense under Article 121. United States v. Bridges, 12 U.S.C. M.A. 96, 30 C.M.R. 96 (1961). Borrowing an item — even without the owner’s consent— does not per se constitute an Article 121 offense. Mens rea is required.

In order to sustain a conviction, the evidence must not only prove all the elements of the offense; it must also “exclude ... any fair and rational hypothesis except that of guilt.” Para. 74a (3), Manual for Courts-Martial, United States, 1969 (Revised edition). United States v. Mason, 8 U.S.C.M.A. 329, 24 C.M.R. 139 (1957). Appellant testified that he took Lemke’s automobile believing he had her permission to do so. He borrowed the property thinking he had satisfied the notice requirement she demanded by leaving a note on her door. Appellant asserts that he never believed he had committed an offense. Whether or not one totally accepts appellant’s contention that he borrowed the car with permission and left a note on Lemke’s door, at the very least we cannot conclude that this possibility was entirely rebutted by Lemke’s testimony. Lemke stated that the maid indicated a message of some sort was on her door. The testimony only indicates that the unexplained disappearance of Lemke’s car resulted from a communication break-down between Lemke and appellant as to the extent notice was to be given prior to departure. Thus, the evidence is insufficient as a matter of law to support the conviction of wrongful appropriation of the automobile. There remains reasonable doubt that appellant is guilty.

The decision of the United States Air Force Court of Military Review as to Charge II and the sentence is reversed. The findings as to this charge are set aside and this charge is dismissed. The record of trial is returned to the Judge Advocate General of the Air Force for submission to that court for reassessment of the sentence in light of the remaining findings of guilty.

Chief Judge EVERETT concurs.

1 . Contrary to his pleas, appellant was found guilty of wrongful appropriation of an automobile and uttering bad checks; and consistent with his pleas of AWOL, in violation of Articles 121, 123a and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 923a and 886, respectively. Appellant was sentenced to a bad-conduct discharge, confinement at hard labor for 3 months, and forfeiture of $279.00 pay per month for 3 months.