United States v. Sharpton

72 M.J. 777, 2013 WL 5434602, 2013 CCA LEXIS 769
CourtUnited States Air Force Court of Criminal Appeals
DecidedSeptember 6, 2013
DocketACM 38027
StatusPublished
Cited by3 cases

This text of 72 M.J. 777 (United States v. Sharpton) 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. Sharpton, 72 M.J. 777, 2013 WL 5434602, 2013 CCA LEXIS 769 (afcca 2013).

Opinion

[779]*779OPINION OF THE COURT

WEBER, Judge:

At a general eourt-martial before a military judge sitting alone, the appellant pled not guilty to one specification of larceny, in violation of Article 121, UCMJ, 10 U.S.C. § 921; one specification of fraudulent enlistment, in violation of Article 83, UCMJ, 10 U.S.C. § 883; and three specifications of cocaine and oxycodone use, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The military judge found her guilty of the larceny 1 and fraudulent enlistment specifications, as well as one specification of oxycodone use and one specification of cocaine use. He found her not guilty of the remaining oxyco-done use specification, and sentenced her to a bad-conduct discharge, confinement for 12 months, payment of a $20,000.00 fine and further confinement of an additional 6 months if the fine was not paid, and reduction to E-l. The convening authority approved the sentence as adjudged, with the exception of the contingent confinement.

On appeal, the appellant argues that the guilty finding as to the larceny specification is legally and factually insufficient. She also raises issues concerning the statute of limitations’ effect on the fraudulent enlistment charge. She further asserts that trial defense counsel were ineffective for not seeking to suppress evidence derived from the Government’s search of her urine, and contends that expert testimony linking her urinalysis sample to the positive results found in the drug testing report violated her Sixth Amendment2 right to confront the witnesses against her. We disagree. Finding no error prejudicial to the substantial rights of the appellant, we affirm.

Legal and Factual Sufficiency

In July 2010, a government purchase card (GPC) approving official for the Keesler Air Force Base (AFB) medical clinic accessed a website to approve GPC purchases made by cardholders. She noticed that the appellant — an authorized GPC holder — had made some apparently unauthorized purchases from places such as the Base Exchange and the Class VI store. The approving official did not confront the appellant about these matters at the time. The next month, she noticed similar questionable charges under the appellant’s GPC. Again, she did not confront the appellant about the purchases because the appellant was at Airman Leadership School. Finally, in September 2010, after noticing still more questionable purchases made with the appellant’s GPC, the approving official notified authorities. The ensuing investigation revealed that the appellant used her GPC to make about $20,000 in unauthorized personal purchases, mostly gift cards.

At trial, the appellant pled not guilty to a larceny charge and specification based on her misconduct, but she did not contest the underlying facts the prosecution put forth.3 The prosecution introduced the appellant’s confession to GPC misuse, financial statements from the appellant’s purchases during the charged time frame, testimony from the GPC approving official, receipts from retailers showing the appellant used her GPC on several occasions to buy gift cards and other personal items, security camera footage of the appellant making unauthorized purchases, and testimony of a base financial analyst that the Government pays bills generated by GPC purchases. The prosecution also presented documents showing the Government ultimately paid for the appellant’s unauthorized purchases, a fact to which the parties later stipulated.

The appellant asks this Court to set aside the guilty findings as to Charge I and its Specification because the evidence is not factually or legally sufficient to support her conviction. Specifically, she argues that the victim in this case was not the United States [780]*780Air Force (as the Government charged), but the GPC merchant, U.S. Bank.

We review issues of factual and legal sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.2002).

“The test for factual sufficiency ‘is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we are] convinced of the [appellant’s guilt beyond a reasonable doubt.’ ” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.2000) (quoting United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987)). In conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.

“The test for legal sufficiency of the evidence is ‘whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.’ ” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F.2002) (quoting Turner, 25 M.J. at 324). “[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.2001) (citations omitted). Our assessment of legal and factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.1993) (citations omitted).

The applicable elements of the offense of larceny are:

(1) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;
(2) That the property belonged to a certain person;
(3) That the property was of a certain value, or of some value; and
(4)That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person other than the owner.

Manual for Courts-Martial, United States CMCM), Part IV, ¶ 46.b.(l) (2008 ed.).

The appellant relies on United States v. Lubasky, 68 M.J. 260 (C.A.A.F.2010), to contend that the victim of unauthorized GPC transactions is the card’s issuer or the business establishment where the goods were purchased, not the Government. In Luba-sky, the appellant was assigned to help an elderly widow with financial matters, but he misused her credit cards to make personal purchases for his own benefit. A court-martial convicted him of larceny of property from the widow. Our superior court, however, held that the victim of the larceny was actually the merchant who issued the credit card or the merchant selling the goods. The Court relied upon the discussion to Article 121, UCMJ, which states, “Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them.” Id. at 263 (quoting

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Cite This Page — Counsel Stack

Bluebook (online)
72 M.J. 777, 2013 WL 5434602, 2013 CCA LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sharpton-afcca-2013.