Opinion of the Court
Quinn, Judge:
Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, the Judge Advocate General of the United States Air Force certified this case on the following question:.
Was the Court of Military Review correct in its determination that the accused's plea of guilty was improvident?
The accused was charged with larceny of stereo equipment from Sergeant Lee. At his request, he was tried by a military judge alone. He pleaded not guilty to larceny but guilty to the lesser offense of wrongful appropriation. During the judge's inquiry into the providence of the plea, the accused maintained that he had told Sergeant Lee not to leave his "equipment out constantly on his desk with his door wide open" because "people could walk in and take it." One night, he removed it and placed it in his locker. He explained that he "just wanted to teach" Lee "a lesson," and that if Lee "had approached me and- asked me if I had it, I would have told him that I did and explain my reason to him and returned it to him at that time." The plea to wrongful appropriation was accepted, but after hearing the Government's evidence, the judge found the accused guilty of larceny as charged. On review, the United States Air Force Court of Military Review concluded that the accused's assertions in connection with his plea of guilty to the lesser offense "amounted to a complete disclaimer of criminality and were thus inconsistent with guilt of wrongful appropriation."
For purposes of this appeal, we assume, without deciding, that the plea of guilty to the lesser offense of wrongful appropriation was erroneously accepted. However, we perceive no reasonable justification for the conclusion of the Court of Military Review that the accused was prejudiced by that plea.
The trial judge convicted the accused of larceny. As the independent evidence demonstrated beyond doubt that the accused took Sergeant Lee's property without consent or authority, the only disputed issue was the accused's intent. The trial judge determined that the accused intended to deprive Sergeant Lee permanently of his property. This finding is supported by compelling evidence, including testimony by the accused's roommate to the effect that the accused had told him he had purchased the equipment at the Post Exchange, and testimony by the First Sergeant that the accused had represented to him that the equipment was his. In our opinion, the trial judge's finding of a larcenous intent constitutes a complete rejection of the intent admitted by the accused in his plea of guilty. That finding does not rest in any significant way upon either the admission of an intent to temporarily deprive, inherent in the accused's plea of guilty to the lesser offense, or upon the disclaimer of any criminal state of mind in the accused's explanation of the reasons that led him to take Sergeant Lee's property. These circumstances distinguish this case from United States v Cleveland, 15 USCMA 121, 35 CMR 93 (1964). There, the accused's plea of guilty to wrongful appropriation could reasonably have influenced the court members to disregard his testimony that he was merely an innocent participant in the wrongful taking and asportation of the victim's property. Consequently, in answer to the certified question, we hold that, regardless of the providence of the plea of guilty to the lesser offense, the plea did not prejudice the accused.
The record of trial is returned to the Judge Advocate General of the Air Force for submission to the Court of Military Review for further proceedings consistent with this opinion.
Chief Judge Darden concurs.