UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

BARTO, CLEVENGER, and MAHER

Appellate Military Judges

 

UNITED STATES, Appellee

v.

Chief Warrant Officer Four NEIL S. LUBASKY

United States Army, Appellant

 

ARMY 20020924

 

101st Airborne Division (Air Assault) and Fort Campbell

Robert L. Swann, Military Judge

Colonel Richard O. Hatch, Staff Judge Advocate

 

 

For Appellant:  William E. Cassara, Esquire (argued); Captain Craig A. Harbaugh, JA (on brief); William E. Cassara, Esquire; Captain Charles L. Pritchard, Jr. (on supplemental brief); Major Allyson G. Lambert, JA.

 

For Appellee:  Captain Edward E. Wiggers, JA (argued); Colonel Steven T. Salata, JA; Lieutenant Colonel Mark L. Johnson, JA; Major Natalie A. Kolb, JA (on brief and supplemental brief).

 

31 January 2006

 

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MEMORANDUM OPINION

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Per Curiam:

 

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of larceny (fifteen specifications) and conduct unbecoming an officer and gentleman in violation of Articles 121 and 133, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 933 [hereinafter UCMJ].  The military judge sentenced appellant to confinement for twenty-two months, total forfeiture of pay and allowances, dismissal from the service, and a fine of $50,000.00 (and to serve additional confinement for two years if the fine is not paid).  The convening authority approved the adjudged sentence but suspended the fine “for a period of 60 days, conditioned upon [appellant] making restitution in the amount of $42,267.00 to the victim, at which time, unless the suspension is sooner vacated for failure to satisfy the condition, the suspended part of the sentence will be remitted without further action.”

 

This case is before us for review under Article 66, UCMJ.  Appellant asserts, the government concedes, and we agree that appellant is not guilty of stealing certain bank service charges.  We will modify the affected findings in our decretal paragraph.  We also agree with appellant that the evidence is not factually sufficient to sustain his convictions under Specification 3 of Charge II (conduct unbecoming an officer and gentleman) and Specification 43 of Charge I (larceny).  Appellant further asserts, inter alia, that the evidence is legally and factually insufficient to support the findings of guilty of Charge I and its specifications.  Except as noted above, a majority of this court disagrees.  We will grant appropriate relief for the errors noted in our decretal paragraph.

 

Background

 

In September 1998, appellant was assigned as a casualty assistance officer to help Mrs. Mary Shirley after Mrs. Shirley’s spouse, Lieutenant Colonel (retired) Courtney Shirley, passed away.  According to the paperwork appellant brought to Mrs. Shirley, appellant’s duties were to “help [Mrs. Shirley] with her financial affairs and get a new ID Card for [her].”  Appellant’s assistance to Mrs. Shirley should have concluded in December 1998 after he procured an identification card for her, but Mrs. Shirley agreed to allow appellant to continue helping her with her financial affairs because she said “[she] wasn’t able to help herself.” 

 

Appellant managed or had a role in making decisions concerning most, if not all, of Mrs. Shirley’s financial affairs until June 2000.  During this time, appellant obtained an insurance policy for Mrs. Shirley which named him as the beneficiary of the policy; opened a money market savings account at Pentagon Federal Credit Union (PFCU) in Mrs. Shirley’s name which listed him as a joint owner; and became, at least in some limited sense, a joint owner of Mrs. Shirley’s checking account at Union Planter’s Bank (UPB).  Mrs. Shirley testified that, for the most part, appellant acted without her consent when handling her finances.

 

Discussion

 

Theft of Bank Service Charges

 

Appellant asserts and the government concedes that appellant was improperly found guilty of stealing certain service charges in connection with the thefts alleged in Specifications 4, 5, 22, and 23 of Charge I.  As such, we will modify the findings for those specifications to remove the amount of the service charges from the value of the monies stolen by appellant from Mrs. Shirley.  See United States v. Sanchez, 54 M.J. 874 (Army Ct. Crim. App. 2001).

 

Unbecoming Conduct

 

Appellant contends that the evidence adduced at trial is legally and factually insufficient to establish that he wrongfully and dishonorably named himself as the sole beneficiary on an insurance policy taken out on the life of Mrs. Shirley (Specification 3 of Charge II).  The test for legal sufficiency requires us to review the evidence in the light most favorable to the government.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Turner, 25 M.J. 324 (C.M.A. 1987).  If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient.  Id.  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 accused’s guilt beyond a reasonable doubt.”  Turner, 25 M.J. at 325.

 

On 31 August 1999, Mrs. Shirley signed a an application for a life insurance policy taken out in her name wherein appellant¾identified as “estate executor”¾was designated as the beneficiary.  At trial, she agreed that the signature on the application was hers but she said she did not read the document before she signed it.  Mrs. Shirley said that on several occasions, she could not see the content of the documents she signed because appellant covered the documents before he asked her to sign.  Mrs. Shirley testified that she “was just shocked” when she learned about the life insurance policy about which she knew nothing until a letter arrived advising her that her premium payments were late.  She further said she did not authorize appellant to take out the policy and that she did not authorize appellant to name himself as a beneficiary on such a policy because she had “a son and grandchildren to think of.”

 

On cross-examination, however, Mrs. Shirley admitted that around the same time the insurance policy was purchased, she prepared a holographic will wherein she designated appellant as the trustee of her estate and named him as a beneficiary of certain property.  Under these circumstances, and “recognizing that the trial court saw and heard the witnesses,” UCMJ art. 66(c), we are not persuaded beyond a reasonable doubt that appellant “wrongfully and dishonorably name[d] himself as the sole beneficiary on a certain insurance policy on the life of Mrs. Mary Shirley.”  We will set aside the findings as to the affected specification and charge in our decretal paragraph.  

Pentagon Federal Credit Union Money Market Account

 

Appellant further contends that the evidence adduced at trial was legally and factually insufficient to establish that he was guilty of stealing thousands of dollars from Mrs. Shirley’s money market savings account at PFCU (Specification 43 of Charge I).  The government introduced a document at trial which listed appellant as a joint owner of the account.  Mrs. Shirley, however, denied authorizing appellant to open the money market account at PFCU.  She testified that appellant must have duped her into signing the paperwork necessary to establish the account by covering up the entire document except for the space in which she signed.  After examining the membership application and signature card pertaining to the money market account, we have misgivings concerning the feasibility of the actions described by Mrs. Shirley.  “[R]ecognizing that the trial court heard and saw the witnesses,” UCMJ art. 66(c), we have a reasonable doubt as to whether appellant had an ownership interest in the property inferior to that of Mrs. Shirley.  See Manual for Courts-Martial, United States (2000 ed.), Part IV, para. 46(c)(1)(d).  As such, we will set aside the findings of guilty as to Specification 43 of Charge I in our decretal paragraph.  

 

We have considered the remaining assignments of error raised by appellant, through counsel and pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and conclude they are without merit.*

 

Decision

 

We affirm only so much of the finding of guilty of Specification 4 of Charge I as finds that appellant did, on divers occasions between on or about 1 July 1999 and on or about 7 May 2000, at or near Kissimmee, Florida, steal money of a value of about $840.00, the property of Mary Shirley.  We affirm only so much of the finding of guilty of Specification 5 of Charge I as finds that appellant did, at or near Fort Gordon, Georgia, on or about 20 June 2000, steal money of a value of about $80.00, the property of Mary Shirley.  We affirm only so much of the finding of guilty of Specification 22 of Charge I as finds that appellant did, at or near Kissimmee, Florida, on divers occasions between on or about 29 January 2000 and on or about 20 March 2000, steal money of a value of about $500.00, the property of Mary Shirley.  We affirm only so much of the finding of guilty of Specification 23 of Charge I as finds that appellant did, at or near Atlanta, Georgia, on or about 15 April 1999, steal money of a value of about $301.50, the property of Mary Shirley.  The findings of guilty of Specification 43 of Charge I and Specification 3 of Charge II and Charge II are set aside and dismissed.  The remaining findings of guilty are affirmed.  The sentence is set aside.  A rehearing on the sentence may be ordered by the same or a different convening authority.  

 

 

BARTO, Senior Judge, concurring in part and dissenting in part:

 

Subject to my dissent, I concur with the court’s decision concerning the theft of bank service charges alleged in Specifications 4, 5, 22, and 23 of Charge I and the disposition of Specification 43 of Charge I and Specification 3 of Charge II.  I also concur, in light of the findings of the majority, that a rehearing on sentence is appropriate.  However, I conclude that the evidence is factually insufficient to establish appellant’s guilt to the following offenses:  (1) Specifications 4, 5, 9, 10, 11, 13, and 14 of Charge I (larceny of money from Mrs. Shirley by making withdrawals and debit card purchases from her checking account at Union Planters Bank (UPB)); (2) Specification 18 of Charge I (larceny of money from Mrs. Shirley by making purchases with Mrs. Shirley’s First USA Visa card; (3) Specifications 22 and 23 of Charge I (larceny of money from Mrs. Shirley in the form of cash advances obtained using Mrs. Shirley’s MBNA MasterCard); (4) Specifications 27, 29, and 30 of Charge I (larceny of money from Mrs. Shirley by making purchases with Mrs. Shirley’s MBNA MasterCard); and (5) Specification 41 of Charge I (larceny of money from Mrs. Shirley by making purchases with a British Petroleum credit card that belonged to Mrs. Shirley’s spouse).

 

At trial, Mrs. Shirley denied giving appellant access to her UPB checking account.  However, Mr. Jason Turnbow, a representative from UPB, testified that Mrs. Shirley had authorized appellant to access her checking account.  Mr. Turnbow testified that shortly after Mrs. Shirley’s husband died, he and his manager visited Mrs. Shirley to discuss her intentions concerning appellant’s access to the checking account.  Mrs. Shirley stated that she wanted appellant to be added to her checking account.  Mr. Turnbow said that Mrs. Shirley told him she trusted appellant and that appellant had “really helped her out.”  Mr. Turnbow understood that appellant’s role would be to “help [Mrs. Shirley] pay bills and do things” that she could not otherwise do because of her fragile health.

The bank representatives added appellant to the account and Mr. Turnbow described appellant’s “authority . . . over the account” as one of “joint ownership” in the account.  There was no other evidence introduced at trial to help the trier of fact understand the terms of Mrs. Shirley’s actual agreement with UPB or that provided a definition of “joint ownership” as that term pertained to appellant’s access to Mrs. Shirley’s UPB checking account.  The incredibility of Mrs. Shirley’s assertions, coupled with the ambiguous evidence concerning the nature of appellant’s ownership interest in the account, create in my mind a reasonable doubt as to whether appellant’s ownership interest in the UPB bank account was truly inferior to that of Mrs. Shirley.  For this reason, I find the evidence factually insufficient to sustain the findings of guilty as to Specifications 4, 5, 9, 10, 11, 13 and 14, of Charge I.  See UCMJ art. 66(c); United States v. Turner, 25 M.J. 324 (C.M.A. 1987).

 

Further, the conduct that gave rise to the allegations in Specifications 22, 23, 27, 29, 30, and 41 of Charge I, discussed above, is that appellant used credit cards to effect purchases and cash advances, thereby creating a debt belonging to Mrs. Shirley.  As a threshold matter, “a debt or the amount thereof is not the proper subject of a larceny under Article 121.”  United States v. Mervine, 26 M.J. 482, 483-84 (C.M.A. 1988).  Moreover, there is also substantial evidence in the record that appellant satisfied these debts using funds in which he had an ownership interest.  Appellant may very well have wrongfully appropriated the credit cards used to make the purchases and obtain the cash advances at issue, but the evidence is insufficient to support findings of guilty as to the larcenies of money belonging to Mrs. Shirley alleged in these specifications.

 

 

MAHER, Judge, concurring in part and dissenting in part:

 

I concur in the correction of the findings in Specifications 4, 5, 22, and 23 of Charge I, in the disposition of Specification 3 of Charge II, and in our sentence disposition.  As to Specification 43 of Charge I, concerning the larceny from the Pentagon Federal Credit Union account, I am satisfied beyond a reasonable doubt that appellant had no moiety in, and thus owned no share of, the account.  I, thus, respectfully dissent in part and would affirm the finding of guilty as to the larceny from the Pentagon Federal Credit Union account.

 

                                                          FOR THE COURT:

 

 

 

 

                                                          MALCOLM H. SQUIRES, JR.

                                                          Clerk of Court