CAAF decided the Army case of United States v. Wilson, 76 M.J. 4, No. 16-0267/AR (CAAFlog case page) (link to slip op.), on Friday, January 13, 2017. Considering an issue raised personally by the appellant, CAAF concludes that a fenced motor pool is not a structure for the purposes of housebreaking in violation of Article 130, 10 U.S.C. § 930. Accordingly, the appellant’s housebreaking conviction is factually insufficient and CAAF reverses the conviction and the decision of the Army CCA.
Judge Ryan writes for a unanimous court.
Specialist (E-4) Wilson and an accomplice entered the 3rd Brigade Special Troops Battalion motor pool at Fort Benning, Georgia, intending to steal batteries. They were caught. Wilson pleaded guilty to larceny in violation of Article 121 (for prior thefts) but he contested a charge of housebreaking of the motor pool in violation of Article 130.
The offense of housebreaking requires unlawful entry into a building or structure. The motor pool at issue, however, “is a concrete lot completely surrounded by a fence. . . used for the storage and maintenance of military property, including vehicles.” Slip op. at 3. The motor pool contains sotrage buildings, but Wilson did not enter any building “nor did he cut any locks, open any doors, or climb through the windows of any building.” Slip op. at 3.
At trial Wilson moved for a finding of not guilty arguing that the motor pool did not qualify as a structure under Article 130. The military judge denied the motion. Wilson renewed his argument on appeal but it was rejected by the Army CCA. CAAF then granted review of a single issue:
Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.
CAAF finds that the military judge did err.
Judge Ryan explains that:
Both the commonsense meaning of “structure” within a housebreaking offense and the limiting language of the [Manual for Courts-Martial] leave us with no doubt that an open-air fenced area like the 3rd BTSB motor pool does not fall within the scope of Article 130, UCMJ, because it is not a structure in the nature of a building or dwelling.
Slip op. at 4.
Considering the dictionary definition of the term structure along with the explanation promulgated by the President in Part IV of the Manual for Courts-Martial, Judge Ryan rejects the notion that a structure under Article 130 is “anything and everything that is composed of parts ‘purposefully joined together.'” Slip op. at 5. She specifically considers the assembly of LEGO bricks into a TIE Fighter as an example of purposefully joined together parts that isn’t a structure, explaining in a footnote that:
LEGO is a line of plastic construction toys manufactured by The Lego Group, a privately held company based in Denmark. LEGO sells sets of interlocking plastic bricks that are combined to create a range of miniature constructions. LEGO frequently releases such sets with licensed themes from the science-fantasy franchise Star Wars. One example of such a product is a recreation of the TIE Fighter, a small Imperial fighter powered by twin ion engines without life support or hyperdrive capabilities. See LEGO Shop, TIE Fighter, https://shop.lego.com/en-US/TIEFighter-75095 (last visited Jan. 10, 2017).
Slip op. at 4-5 n.1.
the meaning of a “structure” for the purposes of Article 130, UCMJ, is a more or less permanent constructed edifice, built up of parts purposefully joined together, more or less completely enclosed by walls and covering a space of land, or a building or construction intended to be or used for residence.
Slip op. at 6.
The motor pool at issue in this case “does not fit within this description, even if the [buildings] within it would.” Slip op. at 6. In particular, Judge Ryan highlights that “the mere presence of a fence cannot transform an outdoor area into a structure in the nature of either a building or a dwelling.” Slip op. at 7.
Accordingly Wilson’s conviction for housebreaking is legally insufficient and is set aside.