U.S. v. Lubasky, 68 M.J. 260

Core Criminal Law Subjects: Crimes: Article 121 - Larceny and Wrongful Appropriation Pre-2019 offenses

1. a servicemember commits larceny under Article 121(a)(1), UCMJ, when that person wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner
2. as used in Article 121, UCMJ, the single term “larceny” encompasses and consolidates what in the past were separate crimes, i.e., larceny, larceny by trick, embezzlement, and obtaining property by false pretenses; because of this, the particular means of acquisition of the property became relatively unimportant
3. 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
4. under Article 121, UCMJ, larceny always requires that the accused wrongfully obtain money or goods of a certain value from a person or entity with a superior possessory interest
5. appellant’s unauthorized use of credit cards to obtain cash advances and goods was a larceny against the credit card issuers and the business establishments where the goods were purchased, not against the cards’ owner
6. evidence that appellant was granted access to an elderly account holder’s checking account after representing that he would use the funds in the account to help pay her bills and expenses, and that he thereafter entered into unauthorized ATM and other debit transactions from the account for his own purposes, was legally sufficient to support a conviction of larceny from the elderly account holder; even assuming that appellant was a joint owner of the account, the evidence supports a conclusion that he obtained access to the account as a joint owner by false pretenses -- representing to the elderly account holder that he would use her funds in the manner she authorized -- with the actual intent to use the funds for his own purposes instead; in using false pretenses to obtain access to the account in this manner, appellant committed larceny against elderly account holder; moreover, whatever apparent legal authority appellant possessed to use the checking account funds, it was properly limited in scope by the elderly account holder’s beneficiary status and appellant’s fiduciary role; in other words, while adding appellant to the account vested him with the authority to retrieve funds from it, his authority to make various uses of those funds was limited to making necessary purchases for the elderly account holder, not purchasing things for himself
7. two legal interests may coexist in the same property and the invasion of either may sustain a larceny prosecution
8. a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance: under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person
9. the question whether a variance to the ownership of property in a charged larceny specification was fatal would be one an appellate court could answer if the factfinder had made findings by exceptions and substitutions; as noted in RCM 918, exceptions and substitutions may be made by the factfinder at the findings portion of the trial; but nothing in either the UCMJ or the RCMs suggests that, at the appellate level, crossing out the alleged property owner in a larceny specification and inserting the name of some other owner is permissible; RCM 918 does not grant an appellate court the authority to make that change; while Article 59(b), UCMJ, provides an appellate court with the power to approve or affirm so much of a finding as includes an LIO where the evidence as to the greater offense is not legally sufficient, that provision does not provide authority for the proposition that larceny from one entity is an LIO of larceny from another entity

Trial Stages: Merits: Findings

1. a variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge
2. a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance: under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person
3. the question whether a variance to the ownership of property in a charged larceny specification was fatal would be one an appellate court could answer if the factfinder had made findings by exceptions and substitutions; as noted in RCM 918, exceptions and substitutions may be made by the factfinder at the findings portion of the trial; but nothing in either the UCMJ or the RCMs suggests that, at the appellate level, crossing out the alleged property owner in a larceny specification and inserting the name of some other owner is permissible; RCM 918 does not grant an appellate court the authority to make that change; while Article 59(b), UCMJ, provides an appellate court with the power to approve or affirm so much of a finding as includes an LIO where the evidence as to the greater offense is not legally sufficient, that provision does not provide authority for the proposition that larceny from one entity is an LIO of larceny from another entity

Trial Stages: Appeals: Generally

1. a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance: under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person
2. the question whether a variance to the ownership of property in a charged larceny specification was fatal would be one an appellate court could answer if the factfinder had made findings by exceptions and substitutions; as noted in RCM 918, exceptions and substitutions may be made by the factfinder at the findings portion of the trial; but nothing in either the UCMJ or the RCMs suggests that, at the appellate level, crossing out the alleged property owner in a larceny specification and inserting the name of some other owner is permissible; RCM 918 does not grant an appellate court the authority to make that change; while Article 59(b), UCMJ, provides an appellate court with the power to approve or affirm so much of a finding as includes an LIO where the evidence as to the greater offense is not legally sufficient, that provision does not provide authority for the proposition that larceny from one entity is an LIO of larceny from another entity

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the test for legal sufficiency 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.

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance: under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person
2. the question whether a variance to the ownership of property in a charged larceny specification was fatal would be one an appellate court could answer if the factfinder had made findings by exceptions and substitutions; as noted in RCM 918, exceptions and substitutions may be made by the factfinder at the findings portion of the trial; but nothing in either the UCMJ or the RCMs suggests that, at the appellate level, crossing out the alleged property owner in a larceny specification and inserting the name of some other owner is permissible; RCM 918 does not grant an appellate court the authority to make that change; while Article 59(b), UCMJ, provides an appellate court with the power to approve or affirm so much of a finding as includes an LIO where the evidence as to the greater offense is not legally sufficient, that provision does not provide authority for the proposition that larceny from one entity is an LIO of larceny from another entity