Two weeks ago, in this post, I discussed the Army CCA’s unpublished opinion in United States v. Hardin, No. 20120051 (A.Ct.Crim.App. Jun. 12, 2014) (link to unpub op.), in which the court found the appellant’s conviction for housebreaking to be legally sufficient but factually insufficient because the court was not convinced that the appellant’s entry into a bedroom was itself unlawful.

Shortly after the CCA decided Hardin, it issued a published decision in United States v. Schwin, 73 M.J. 711, No. 20130538 (A.Ct.Crim.App. Jun. 26, 2014) (link to slip op.), finding that the military judge erred in accepting the appellant’s plea of guilty to housebreaking for entering into the base skeet club building from which the appellant stole money. The appellant was a member of the Fort Rucker Skeet and Trap Club (a private organization). The club had a building on Fort Rucker that members could access 24 hours a day, and as a club member the appellant had authorized access to this building.

Using his authorized access, the appellant entered the building and stole money from a locked deposit box where members would pay shooting fees when utilizing the facility while no staff were present. For this theft he was charged with and pleaded guilty to one specification each larceny and housebreaking, at a special court-martial composed of a military judge alone. He also pleaded guilty to two specifications of violation of a general regulation for wrongfully maintaining privately owned firearms in his barracks and vehicle. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

Housebreaking requires two elements: An unlawful entry and the intent to commit a crime therein. The Government’s theory of the housebreaking charge in this case was that:

[I]t’s an unlawful entry because of [appellant’s] intent. He went in on this occasion … used his key, though it was issued— with the sole intent of committing a crime … [which] does constitute housebreaking. Though he had lawful access, the fact that he used his lawful access … to gain access for unlawful purposes constitutes housebreaking.

Slip op. at 6 (emphasis added). Accepting this theory during the plea inquiry, the military made a finding that:

[Appellant] did not have permission to enter the building for an illegal purpose, and certainly did not have permission to enter the building to perpetrate a theft once inside. So for the purpose of considering whether or not the factual scenario meets the criteria for housebreaking, the Court accepts the conclusions of counsel and [appellant] that this does constitute housebreaking.

Slip op. at 7. But the CCA reverses on the basis that “unlawful entry is not established through a showing of mere ingress with contemporaneous criminal intent.” Slip op. at 4 (quoting United States v. Williams, 15 C.M.R. 241, 246 (C.M.A. 1954)) (marks omitted). In other words, to gain access for unlawful purposes does not constitute housebreaking. The court explains that unlawful entry “is distinct from the second element of specific intent to commit a crime upon entry.” Slip op. at 4. And on the fact of this case it finds:

[T]he fundamental legal question to be answered [is]: absent the offense committed therein, was appellant’s entry unlawful—that is, did he trespass? In this case, appellant did not trespass when he entered the club. If appellant had not committed larceny, his entry, presence, and activities in the Skeet Club were authorized, permitted, and invited. Appellant is not guilty of housebreaking, but certainly guilty of larceny.

Slip op. at 8 (citation omitted). The court therefore reverses the appellant’s housebreaking conviction and grants a slight reduction to the sentence to confinement (meaningless to the appellant as the time was undoubtedly already served).

11 Responses to “Another reversal of a housebreaking conviction by the Army CCA”

  1. RKincaid3 (RK3PO) says:

    A most excellent, restrained and informed judicial decision.  I love it.  I hope we see many more such correct and proper judicial analyses by courts staying within their judicial lanes, thereby avoiding judicial legislating simply to avoid absurd results!

  2. Christian Deichert says:

    Housebreaking is such an arcane (or archaic) statute.  I recognize the higher maximum punishment makes it a more attractive option than wrongful entry, but sometimes it’s best to just play it safe and give the finder of fact less elements to worry about.

  3. Zachary D Spilman says:

    I don’t think the appellant would be guilty of unlawful entry either, considering he was a member of the club authorized to enter the clubhouse at any time:

    An entry is “unlawful” if made without the consent of any person authorized to consent to entry or without other lawful authority.

    MCM (2012), Part IV, ¶111.c.

  4. SFC V says:

    How about congress just amends the UCMJ to include a modern definition of burglary. Say:

     without authority, entering or remaining within any structure with the intent to commit a crime therein

    That way we wouldn’t have to discuss arcane distinctions emanating from the early days of the English common law.  

  5. Fromthecheapseats says:

    Why do we congratulate a logical judicial decision? Is the baseline for our courts so low that the correct answer on a 1L exam is “excellent, restrained and informed?”

  6. Zachary D Spilman says:

    And still, SFC V, would this appellant be guilty? The CCA’s decision is based on his authority to enter and remain in the building.

    It seems to me that this case reveals no flaws in the UCMJ itself, but significant flaws in how it’s employed.

  7. RKincaid3 (RK3PO) says:

    Given how bad Congress has screwed up Art 120, I would prefer they not tinker with any other statutes an more than necessary. 
    And I congratulate logical (excellent, restrained and informed) court decisions from military courts of appeal when I see them because there are so few of them.  

  8. SFC V says:

    It would make no difference in this case but it would take what is now 3 separate offenses and make them one.  Kind of like how larceny used to be 3-4 separate offenses (Laceny by taking, Larceny by trick, false pretenses, and embezzlement) and is now one. 
    My comment was directed at the comments about whether he should have been charged with unlawful entry instead. 

  9. k fischer says:

    Once again, why didn’t the TC just charge the larceny because that is why he got four months confinement from the MJ?  In fact, four months confinement?  Why didn’t they just approve the Chapter 10 that was offered?  (if one was offered)
    I am not happy with my employees in this case.

  10. stewie says:

    Charging aside, 4 months for this offense is not remotely unreasonable, nothing wrong with not accepting a CH 10.

  11. Zachary D Spilman says:

    What are the odds that this case started at an Article 32? Guns, larceny, and the appellant was a military policeman. See slip op. at 2.