CAAF will hear oral argument in the Air Force case of United States v. Plant, No. 15-0011/AF (CAAFlog case page), on Tuesday, April 14, 2015, at noon. This will be a Project Outreach oral argument and will occur at the Marquette University Law School, Milwaukee, Wisconsin.
The case presents a single issue of legal sufficiency:
Whether the evidence is legally sufficient to support the finding of guilty to Charge V and its specification (child endangerment) because the evidence failed to prove Appellant’s alcohol use alone amounted to culpable negligence that endangered the welfare of L.P.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of rape, aggravated sexual assault of a child over 12 but under 16, adultery, and child endangerment, in violation of Articles 120 and 134. He was sentenced to confinement for 12 years, reduction to E-1, and a dishonorable discharge.
The conviction of child endangerment is largely unrelated to the other offenses. During a party at his house, Appellant became intoxicated. Appellant’s infant son was sleeping in the house and “did not wake the entire night.” Gov’t Br. at 2. The other offenses occurred during the party but did not otherwise involve or implicate the child. Appellant was convicted of child endangerment based on his alcohol consumption alone, under the following theory:
Appellant’s conviction for child endangerment by his use of alcohol is legally sufficient. The evidence introduced at trial, when viewed in the light most favorable to the prosecution, easily provided the fact-finder with sufficient evidence to conclude that Appellant was culpably negligent by using alcohol excessively. This alcohol use thereby impaired Appellant’s judgment so substantially that it was reasonably foreseeable his son, also present in the residence, could suffer mental or physical harm.
Gov’t Br. at 5. Specifically, the Government alleged the following:
1) That Appellant had a duty for the care of LP;
2) That LP was under the age of 16;
3) That Appellant endangered LP’s mental and physical health, safety, or welfare through culpable negligence by using alcohol;
4) That under such circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.
Gov’t Br. at 9 (emphasis added). The charge also alleged that Appellant used cocaine, but he was acquitted of that language. The Air Force CCA affirmed the findings and sentence, reasoning in part that:
the appellant’s alcohol use and the circumstances surrounding that alcohol use might foreseeably result in harm to the child, even if such harm would not necessarily be the natural and probable consequences of such acts.
United States v. Plant, No. 38274, slip op. at 7 (A.F. Ct. Crim. App. Jul. 2, 2014).
Appellant’s brief makes a two-pronged attack on the legal sufficiency of the evidence presented at trial. He asserts that (1) the evidence does not show that he endangered his child; and (2) that the evidence does not show that his conduct was service discrediting. Because of the subjective nature of a conclusion that certain conduct is m service discrediting, Appellant’s first argument is the better of the two.
And that argument focuses largely on the things absent from this case. For instance, Appellant’s brief notes that while the case included an allegation that Appellant permitted illegal drug activity in a separate room in the house, “Appellant was never accused of exposing the child to drugs through the presence of others.” App. Br. at 15. Additionally, there was no evidence that the child was sick or crying. App. Br. at 15. Further, the Government did not refer the case to a child welfare agency. App. Br. at 15-16. And finally,
There was no evidence of a pattern of alcohol related behavior and associated consequences of which the events of the night alleged might form a pattern, and which could elevate the risk to something beyond mere speculation.
App. Br. at 15 (citation omitted) (emphasis added).
The Government’s brief wallows in such speculation:
There is no doubt that Appellant’s judgment was impaired. Appellant’s decisions that evening–permitting minors to drink excessively and use cocaine in his home during a severe storm, facilitating the illegal use of cocaine by minors, not checking or infrequently checking on his son, climbing into bed with three teenage girls and sexually assaulting two of them, and not answering the door to the master bedroom for up to 30 minutes–illustrate why his conduct, fueled primarily by his alcohol use, was culpably negligent and why it could foreseeably result in harm to his child.
Gov’t Br. at 13. The Government’s brief also tries to recast the case as involving more than the charged “culpable negligence by using alcohol”:
Appellant’s conduct went far beyond having a simple party and consuming alcohol with his guests. Article 134’s instructions regarding child endangerment, coupled with its requirement that the conduct be service discrediting, ensures that parents are not prosecuted for having responsible parties where they consume alcohol. The circumstances surrounding the alcohol consumption–including the age of the child, the care available for the child, and degree to which the child’s care provider is impaired–are critical to concluding the conduct constitutes culpable negligence or that mental or physical harm was foreseeable as a result.
Gov’t Br. at 13-14.
The amicus brief focuses on this point:
The Air Force Court of Criminal Appeals (AFCCA) recognized the difficulty in the Government’s prosecution theory and was thus forced to labor through the MCM’s explanation of culpable negligence to salvage a child endangerment conviction. See Slip Op. at 6. The Government continues this endeavor by arguing that Appellant’s poor decisions must have been “fueled” by alcohol use. However, even if Appellant engaged in excessive alcohol consumption, which is a matter of factual uncertainty, the Government has failed to show how this alcohol use caused any “reasonable probability of harm” to L.P.
Amicus Br. at 4.
Appellant’s second argument – that the evidence does not show that his conduct was service discrediting – presents an analysis that could dramatically change the way service discrediting conduct is proven at trial. Appellant argues that CAAF “should adopt the position of Judges Ryan and Erdmann in dissent in Phillips, and require proof plus some demonstration to the fact-finder of how those facts tend to discredit.” App. Br. at 18. In United States v.Phillips, 70 M.J. 161 (C.A.A.F. 2011), CAAF explained that:
The terminal element in a clause 1 or 2 Article 134 case is an element of the offense like any other. Conduct need not be violative of any other criminal statute to violate clause 1 or 2. United States v. Davis, 26 M.J. 445, 448 (C.M.A.1988). The terminal element must be proved beyond a reasonable doubt like any other element. Whether any given conduct violates clause 1 or 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; it cannot be conclusively presumed from any particular course of action.
70 M.J. at 165. It then elaborated:
Whether conduct is of a ” nature” to bring discredit upon the armed forces is a question that depends on the facts and circumstances of the conduct, which includes facts regarding the setting as well as the extent to which Appellant’s conduct is known to others. The trier of fact must consider all the circumstances, but such facts— including the fact that the conduct may have been wholly private— do not mandate a particular result unless no rational trier of fact could conclude that the conduct was of a ” nature” to bring discredit upon the armed forces. For example, the extent to which conduct is constitutionally protected may impact whether the facts of record are sufficient to support a conviction.
70 M.J. at 166. While Appellant’s conduct may well not provide sufficient facts to constitute conduct of a nature to bring discredit upon the armed force, I doubt the standard articulated Phillips is in much jeopardy in this case.