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
(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).