United States v. Epps

OPINION OF THE COURT RABY, Senior Judge: The accused pled guilty to and was convicted of a $90 larceny from his roommate [535] in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (1982) [hereinafter cited as UCMJ]. The theory of the case against appellant was that he became a principal under Article 77(1), UCMJ, 10 U.S.C. § 877(1), by aiding, abetting, counseling, commanding, or procuring the commission of this larcenous act. Appellant asserts that the military judge erred by accepting appellant’s guilty plea notwithstanding substantial factual inconsistencies as to whether appellant participated in the commission of the offense or was a mere bystander. The facts pertinent to the resolution of this issue are as follows. In accordance with the terms of his negotiated pretrial agreement, appellant entered a detailed stipulation of fact1 which was introduced in evidence and considered by the judge in determining the providence of appellant’s guilty plea. After advising appellant of the elements of larceny, the military judge conducted an inquiry into the circumstances surrounding the commission of the offense. The judge did not advise appellant on the record of the pertinent law of principals, although he did ascertain that appellant had consulted with his counsel regarding this legal principle.2 During the military judge’s factual inquiry, appellant made several statements which we conclude are facially inconsistent with the accepted stipulation of fact and the permissible inferences to be drawn therefrom. For example, appellant stated under oath that he was not aware that Private Usher intended to steal from appellant’s roommate, Private Lightner, until after he and Private Usher entered appellant’s room. That night, when Private Usher asked appellant to help him take Private Lightner’s money, the appellant said “no.” Appellant also stated that Private Usher removed Private Lightner’s wall locker key from the top of the locker and offered the key to the appellant, who declined the offer and refused to open the locker. Appellant claimed that it was Private Usher alone who opened the wall locker, searched for Private Lightner’s wallet, and removed the wallet from the locker after finding it. Appellant maintains that he “was just standing there” watching while Private Usher took the wallet. Appellant denied watching Private Lightner and admitted no facts from which it could be inferred that he was a lookout. Appellant admits that after the wallet came under Private Usher’s control, the latter opened it and said he would split the proceeds with appellant. Appellant admits that he took a portion of the stolen money that night and some more the following day. However, appellant stated that Private Usher did not announce his intent to split the money until after he had removed the money from the wallet. At the time appellant initially received part of the stolen money, the wall locker was still open. [536] Private Usher closed the locker and left with the portion of the stolen money that he had retained. Appellant, who was very intoxicated that evening, moved a few feet to his bed and went to sleep. He slept with his clothes on and with the stolen money in his pocket.3 Appellant admitted that at the time the money was taken he knew it was wrong and had no intention of returning the money to his roommate. Appellant also claimed, however, that at the time the money was split, he did not think he was involved in the commission of a crime. In response to a question by the military judge as to whether appellant’s acceptance of the money “made it a little easier for Usher to go through with” the larceny, appellant responded, “It’s possible, sir, I don’t really know.” Appellant also stated he “wouldn’t think” his acceptance of the money would in any way encourage or assist Private Usher. Appellant subsequently stated, in response to further questions by the military judge, that he encouraged and aided Private Usher by “not stopping” him, by not refusing to accept the money, and by telling him that he “didn’t care” if Private Usher stole Private Lightner’s money.4 We find that the facts of this case are readily distinguishable from those in United States v. Crouch, 11 M.J. 128 (C.M.A. 1981). In view of appellant’s general in-court denial of complicity, his confused, hesitant, and occasionally conflicting responses to the military judge, and the inconsistent facts contained in the stipulation of fact, we find this case closer to the facts of United States v. Craney, 1 M.J. 142 (C.M.A.1975), and United States v. Radzewicz, 16 M.J. 781 (A.C.M.R.1983). We also note that “in deciding a providence issue, the sole question is whether appellant made a statement during the trial which was in conflict with his guilty plea. It is unnecessary that his statement be credible; instead, it only need be inconsistent.” United States v. Lee, 16 M.J. 278, 281 (C.M.A.1983); see also United States v. Jemmings, 1 M.J. 414, 418 (C.M.A.1976) (in determining the providence of an appellant’s guilty plea, his version of the facts must be accepted “at face value”). We further believe that the stipulation of fact contains certain matters which are inconsistent with the appellant’s sworn providence responses. During the providence inquiry, the military judge correctly advised the appellant: “[A] stipulation of fact ordinarily cannot be contradicted. If this stipulation should be contradicted after I have accepted your guilty plea, I will have to reopen the providency inquiry”.5 [537] Although some of appellant’s sworn providence responses were at variance with the stipulation of fact, ■ the military judge attempted neither to call appellant’s attention to these matters nor to resolve this factual conflict. Considering appellant’s less than persuasive acquiescence on the record to a rendition of the facts which would establish the providence of his guilty plea, it was error for the military judge to fail both to discuss these inconsistencies and to seek resolution of the factual conflicts. Cf. United States v. Dunbar, 43 C.M.R. 318, 321 (C.M.A.1971); United States v. Care, 40 C.M.R. 247 (C.M.A.1969); United States v. Kaufman, 46 C.M.R. 822 (A.C.M.R. 1972). Accordingly, we find that the military judge erred by failing to explain the pertinent portions of the law of principals to the appellant, by failing to resolve inconsistencies between the facts alleged in the stipulation and those asserted by the appellant during the providence inquiry, and by accepting his pleas of guilty notwithstanding the appellant’s failure to admit the requisite facts establishing guilt under the theory of principals.6 “[CJonsistency between what is charged and pled with what is presented at trial must exist and inconsistency will invalidate the plea.” United States v. Roby, 49 C.M.R. 544, 546 (C.M.A. 1975); United States v. Irving, 2 M.J. 967, 968 (A.C.M.R.1976). We find that the cumulative effect of these errors negated the providence of appellant’s guilty plea. The findings of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority. Judge NAUGHTON concurs. Footnotes [1] This stipulation states, in pertinent part: On the night of 9 May or early morning of 10 May 1984 the accused and Private E2 Henry E. Usher Jr. entered the room of the victim, Private E2 Michael A. Lightner. PV2 Usher reached on top of the victim’s wall locker and took a key which the victim kept hidden there. The accused and PV2 Usher unlocked the victim's wall locker, reached into a pair of the victim’s pants, and removed the victim’s wallet. The accused and PV2 Usher wrongfully took $90.00 from the wallet of PV2 Lightner. The $90.00 belonged to PV2 Lightner. They each kept $45.00. At the time the accused and PV2 Usher took the money, the taking was with the intent to permanently deprive the victim of the use and benefit of the money or to permanently appropriate the money for the use of the accused or for any person other than the victim. Before he was apprehended and confessed to the larceny, the accused had not offerred [sic] to return the money and had not voluntarily come forward on his own initiative to admit his crime. (Emphasis added.) [2] The record of trial contains the following exchange: M.J.: Now, have you talked with your counsel about the legal principle of being a principal to a crime, you know, one who aids and abets in the commission of a crime? ACC: Yes, sir. M.J.: Well, do you feel that your conduct aided or abetted the commission of this crime? ACC: Yes, sir. [3] In view of our disposition of this case, we need not determine the exact point at which the larceny terminated under the unusual facts of this case. The principle of asportation has been the subject of much discussion. See generally United States v. Escobar, 7 M.J. 197 (C.M.A. 1979); United States v. Bryant, 9 M.J. 918 (A.C. M.R.1980); United States v. Barlow, 470 F.2d 1245 (D.C.Cir.1972). [4] See United States v. Knudson, 14 M.J. 13, 15 (C.M.A. 1982), which establishes that it is necessary "to show some affirmative participation which at least encourages the principal to commit the offense in all its elements as defined by statute." (Emphasis supplied.) We believe neither that appellant had a legal obligation to stop this larceny, United States v. Sanders, 34 C.M.R. 304 (C.M.A.1964), nor that his mere words constituted some form of "encouragement” within the meaning of Article 77, UCMJ. Even if we found otherwise, however, this would not be enough. As’ the Court of Military Appeals said in United States v. Knudson, 14 M.J. at 15, “The law requires that it be established that there is a concert of purpose or the aiding or encouraging of the commission of the criminal act and a conscious sharing of the criminal intent." (Emphasis added.) We find that the military judge failed to ascertain, by eliciting an informed response from appellant, that the latter consciously shared in the perpetrator’s criminal intent. We consider this a fatal flaw in the providence inquiry in view of appellant’s express denial on the trial record that he shared such a criminal purpose. [5] Subsequently, the record contains the following exchange regarding the stipulation: M.J.: And is [the stipulation] accurate? ACC: Yes, sir. M.J.: Is there anything in here you believe is not true? ACC: No, sir. M.J.: Now, you hesitated, are you sure of that? ACC: Yes, I was looking it over, sir. [537] M J.: Now, have you had a chance to read the Stipulation? ACC: Yes, sir. M.J.: Is there anything that you feel is untrue or you wish to change? ACC: No, sir. [6] If writing on a “fresh slate,” we might not require the military judge to advise the appellant sua sponte of the law of principals once it has been ascertained on the record that appellant’s defense counsel has already done so. We are not, however, writing on a clean slate and we will follow applicable precedent as long as it remains viable.