CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 - Unlawful Entry

2008 (September Term)


United States v. Conliffe, 67 M.J. 127 (the elements of an unlawful entry offense are (1) that the accused entered the real property of another or certain personal property of another which amounts to a structure usually used for habitation or storage, (2) that such entry was unlawful, and (3) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces). 


(the MCM expressly states that an unlawful entry violation under Article 134, UCMJ, is a lesser included offense to a housebreaking charge under Article 130, UCMJ; the first two elements of unlawful entry are subsumed within the first element of housebreaking, which expressly requires that the accused “unlawfully entered” a certain location; the third element required for unlawful entry is inherently included within the second element of housebreaking). 


(housebreaking requires that the accused entered with the intent to commit a criminal offense therein; Article 134, UCMJ, punishes, among other things, conduct which is or generally has been recognized as illegal under the common law or under most statutory criminal codes; such activity, by its unlawful nature, tends to prejudice good order or to discredit the service; therefore, by entering without authority and possessing the intent to commit an offense punishable under the UCMJ, the accused has engaged in service discrediting or prejudicial conduct).


(appellant, who pleaded guilty to housebreaking, was by definition on notice that unlawful entry was a lesser included offense of housebreaking because it is a subset of the greater offense alleged; further, the military judge advised appellant that he had the option of only pleading guilty to unlawful entry if appellant did not possess the criminal intent required for housebreaking; while the military judge did not provide the specific elements of unlawful entry to appellant, the military judge defined unlawful entry and put appellant on notice of this alternative theory of guilt). 

(in the context of this case, appellant, who pleaded guilty to housebreaking and conduct unbecoming an officer and a gentleman, was on fair constructive notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of the offense of unlawful entry, a lesser included offense of housebreaking; first, the military judge placed him on explicit notice that unlawful entry was a lesser included offense to housebreaking; second, as a matter of law and logic, discredit is encompassed within the concept of conduct unbecoming an officer and a gentleman, to which appellant readily pleaded). 


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