CAAF decided the Marine Corps case of United States v. Norman, 74 M.J. 144, No. 14-0524/MC (CAAFlog case page) (link to slip op.), on Wednesday, April 29, 2015. The court finds that the military judge erred in admitting lay opinion testimony about the service discrediting nature of Appellant’s alleged child endangerment by culpable negligence, but that Appellant’s conviction is nevertheless legally sufficient because of other evidence in the record that may have been considered by the members, even though the trial counsel didn’t argue it. The court affirms the opinion of the Navy-Marine Corps CCA that affirmed the findings and sentence.

Chief Judge Baker writes for a unanimous court.

CAAF granted review of one issue:

Whether the conviction for child endangerment by culpable negligence is legally insufficient when the only testimony offered to prove its service discrediting nature was admitted in error.

Appellant – a sergeant in the Marines – was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of a single specification of child endangerment by culpable negligence in violation of Article 134, charged as service discrediting conduct. In the same trial Appellant was acquitted of four specifications of aggravated assault in violation of Article 128, UCMJ, and four additional specifications of child endangerment by design and/or by culpable negligence in violation of Article 134. The members sentenced Appellant to confinement for sixty days, reduction to E-1, and a dishonorable discharge.

The sole conviction for child endangerment related to burns suffered by Appellant’s infant child while Appellant was giving the child a bath. The child suffered second and third-degree burns, and “was treated for fifty days at the Maricopa Burn Center, undergoing seven surgeries to excise his burnt skin and receive skin grafts for his third-degree burns.” Slip op. at 5-6. There were no witnesses to the incident, but Appellant made statements to law enforcement in which he first stated that he ran the water at “full cold,” and then subsequently stated that he “turned the handle of the faucet to approximately the 9:00 position” and left the child in the water for 30-45 seconds. Slip op. at 4-5 (marks omitted). Yet investigation revealed that with the faucet at the 9 o’clock position, the water temperature in Appellant’s bathroom was only 115 degrees Fahrenheit, and an expert testified that at that temperature “clearly exposure is going to need to last much more than ten minutes in order to produce a third-degree burn in an adult.” Slip op. at 20 (marks omitted).

As charged in this case, the offense of child endangerment by culpable negligence has four elements:

  1. That the accused had a duty for the care of a certain child;
  2. That the child was under the age of 16 years;
  3. That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence; and
  4. That, under the circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.

Manual for Courts-Martial, United States, pt. IV, ¶ 68a (2012). To prove the element that the conduct was of a servicing discrediting nature, the Government presented the lay testimony of a Marine staff sergeant (and military policeman) to opine on “whether Appellant’s conduct was of a nature to bring discredit upon the armed forces.” Slip op. at 6. The defense objected to the testimony but the military judge permitted it.

CAAF finds that the military judge abused his discretion in permitting the testimony of the staff sergeant. Nevertheless, CAAF affirms Appellant’s conviction by concluding that “a rational trier of fact could have instead determined that Appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds.” Slip op. at 22. The court reaches this conclusion despite the fact that “trial counsel made no mention of the terminal element during closing arguments, omitting any mention of [the staff sergeant’s] testimony or any other evidence supporting this element, leaving this Court to evaluate each piece of evidence post hoc, on the basis of a cold record.” Slip op. at 22 n.5.

Chief Judge Baker’s opinion begins with analysis of the lay opinion of the staff sergeant that was admitted over objection from the defense. A military judge’s decision to permit certain testimony is reviewed under the highly-deferential standard of an abuse of discretion.

A military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.

United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008). CAAF unanimously finds that this military judge abused his discretion in permitting the testimony of the staff sergeant because:

Although a witness may offer an opinion on an ultimate issue, M.R.E. 704, offering this opinion without further explanation, as SSgt Moody did, is unlikely to be helpful to the trier of fact. Restated, it is not clear why the testimony of a Marine military police officer, without more, would be helpful regarding a question of parenting practice, and whether such practice was service discrediting.

Slip op. at 12. However. the court finds the error to be harmless because “by virtue of being conclusory and unhelpful to the trier of fact, [the staff sergeant’s] testimony was not qualitatively significant, nor was it material to the Government’s overall case.” Slip op. at 13.

The staff sergeant’s opinion about the service discrediting nature of Appellant’s conduct was the only direct evidence offered by the Government to prove that element of the offense. Having concluded that the opinion testimony was neither qualitatively significant nor material to the overall case, CAAF is left with neither direct evidence nor trial-stage argument to satisfy the terminal element. Nevertheless, Chief Judge Baker finds a way to lead the court to affirm the conviction.

His analysis begins with the instructions provided to the members, noting a significant concession made by Appellant’s counsel:

In this case, the military judge provided the members the standard instruction in the Military Judges’ Benchbook verbatim, advising them that in order to convict Appellant, they must find “that under the circumstances the conduct of the accused was of a nature to bring discredit upon the armed forces.” See Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 3, para. 3-68a-1 (2014). During oral argument, Appellant’s counsel conceded that the military judge did not err in providing this instruction. Given that the members were properly instructed and may permissibly consider evidence of the charged conduct when evaluating the terminal element, excluding SSgt Moody’s testimony, without more, does not necessitate reversing Appellant’s conviction for lack of independent evidence of the terminal element.

Slip op. at 15-16 (emphasis added). This concession is significant because the Benchbook actually contains two different explanations for what type of conduct is of a nature to bring discredit upon the armed forces. The one found in paragraph 3-68a-1 states:

“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.

Benchbook, para. 3–60–2a.d. Yet paragraph 3–60–2a provides a more detailed (and, I think, more restrictive) definition:

With respect to “service discrediting,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as service discrediting in some indirect or remote sense; however, only those acts which would have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under this Article.

Benchbook, para. 3–60–2a, note 3. Appellant’s brief to CAAF asserted that there was an instructional error (an assertion that I questioned in my argument preview). The brief argued that the military judge “did not instruct the members panel on how it should execute its duty to make this unique determination,” App. Br. at 22. In retrospect, this seems like it might have been a reference to the para. 3–60–2a instruction. Yet Chief Judge Baker’s opinion doesn’t discuss this issue, presumably because of the concession during oral argument that the members were properly instructed.

Without instructional error, CAAF is left to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Slip op. at 16 (citation omitted) (emphasis in original). Chief Judge Baker elaborates that:

[T]his Court’s decision does not hinge on whether or how the parties’ lists of circumstantial evidence or negating factors stack up against each other. Rather, it hinges on whether reasonable factfinders could have drawn inferences one way or the other under a given set of circumstances. This Court evaluates whether there is an avenue through which a rational factfinder could find the essential elements of the crime.

Slip op. at 17 (marks and citation omitted). The court concludes that the members could have made such a finding by functionally concluding that Appellant lied in his statements about the incident:

[A] rational trier of fact could have concluded that there were alternative explanations of Appellant’s conduct, other than his statement, that were more credible and supported by scientific evidence. Having reached such a conclusion, a rational trier of fact could have then determined, extrapolating from Dr. Peck’s testimony, that Appellant left TBN unattended in a tub of running hot water for a period of time that was longer than 30 to 45 seconds and less than the ten minutes required for an adult male to receive comparable burns. A rational trier of fact could have instead determined that Appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds, disregarding TBN’s cries when the hot water made contact with his skin.

Slip op. at 21-22. Chief Judge Baker also notes Appellant rank and position:

Moreover, a rational trier of fact could have further found this conduct service discrediting because Appellant was a sergeant of the Marine Corps. A rational trier of fact could reason that the public would expect Appellant, a noncommissioned officer who had been selected and promoted to the rank of sergeant, to exhibit competence and responsibility toward someone in his care.

Slip op. at 22-23. And so the conviction is affirmed.

CAAF’s conclusion certainly feels like the right result in this case, considering the severity of the child’s injuries and the inconsistent statements by Appellant. However, the court gives the Government a free pass on the terminal element; something Chief Judge Baker seems to halfheartedly acknowledge in a footnote at the end of the opinion:

Although we find the evidence here legally sufficient, the better practice would be for trial counsel to make its theory of discredit apparent during closing arguments. Here, trial counsel made no mention of the terminal element during closing arguments, omitting any mention of SSgt Moody’s testimony or any other evidence supporting this element, leaving this Court to evaluate each piece of evidence post hoc, on the basis of a cold record. As the instant case demonstrates, enumerating the evidence during closing argument where material evidence is ultimately excluded, will not only clarify the record on appeal but will, surely, facilitate the members’ deliberation.

Slip op. at 22 n.5. It’s hard to imagine that the Government would enumerate the evidence during closing argument (and risk relying on evidence erroneously admitted while overlooking inferences in the other evidence), when CAAF will salvage the conviction with a post hoc analysis.

Case Links:
NMCCA opinion
Appellant’s brief
Appelleee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

16 Responses to “Opinion Analysis: A post hoc analysis of a cold record reveals evidence of service discrediting conduct in United States v. Norman, No. 14-0524/MC”

  1. Peter E. Brownback III says:

    1. “A post hoc analysis of a cold record…” It seems highly unlikely that you’re going to get CAAF, ACCA, or appellate counsel into a courtroom, so all that you’re ever going to get on appeal is a post hoc analysis of a cold record. A trial court functions in real time and deals with people and things. Appellate courts function in appellate time and deal with a record.
    2. There is no indication as to the makeup of the panel, but it would seem likely that at least half the panel was older and more experienced than the trial counsel.  A panel may listen respectfully, but argument by counsel for either side is really just keeping the panel from going back and talking to each other. The judge has told them or will tell them the law, counsel are just giving an opinion.
     

  2. Monday morning QB says:

    You can’t overlook the fact that the victim in this case was a 10 month old child.  I know that has nothing to do with the legal arguments.  But CAAF seems to find away to affirm convictions with tender age victims – whether it be a child sexual exploitation case or otherwise – unless its a battle of experts i.e. shaken baby syndrome.  You read these facts and it’s just a sad, sad case all around.  Plus, I am not sure where the MJWG is right now, but I think they are going to recommend removing this offense from 134 and putting it under Art. 119 which would get rid of the terminal element requirement.  If so, this issue never comes up again.

  3. stewie says:

    I think Congress should revisit this whole PGOD/SD thing.  It’s vague in some ways, confusing in others, inconsistently applied, and quite frankly unnecessary. Particularly SD. I see some value to PGOD. For example, adultery…I don’t care if servicemember sleeps with some married civilian woman (and neither does society since that’s almost never illegal anymore), I do care if 1SG sleeps with the wife of one of his Soldiers, or one Soldier play “Jodie” to another Soldier’s wife/husband.
     
    But all in all, part of the issues with this case is the issue with 134 offenses in general.  I would argue it’s time to enumerated the “enumerated” offenses, get rid of 134 (while retaining the ability to assimilate state/federal offenses).

  4. Monday morning QB says:

    Agree with you Stewie.  Unless its a uniquely military offense, we need to put common law crimes back in under the enumerated offenses.  You want to charge a guy with drinking liquor with a prisoner or leaping from a vessel into the water, then prove it was PGOD/SD.

  5. Joseph Wilkinson says:

    How would you charge this one?
     
    Deployed Soldier comes into his trailer at an ungodly hour.  Roommate doesn’t appreciate the noise; gets up and punches him.  Soldier, being angry and not excessively skilled at conflict management, locks and loads his weapon and gets into bed.  He doesn’t point it at the other guy or make any threats — so no assault — but using his assigned weapon for this kind of implicit threat is a discipline problem and oughtn’t to be allowed to slide.   The closest thing to an on-point order is a base policy about unloading when you come on post…but no one seriously thinks that is a punitive order.
     
    Assume the guy has “history” and the command believes this offense needs punishment.  What charge would you use?  We used unspecified 134 and it worked well (the roomie, of course, got punished for assault).  That to me is what the general article is for…for the things that just don’t fit a statute, but that sometimes “need punishing” to keep the troops in line…and I would not get rid of it.   I’m just not convinced that the enumerated offenses cover it all.
     
    (Cases like the one in the OP, the problem I think is taking fundamentally civilian offenses like child endangerment to court-martial at all, but that is another story.)

  6. Terry says:

    I’m sure I’m missing the obvious, but how does this decision square with Fosler and Humphries?  Fosler overturned hundreds of cases on the premise the accused was not put on notice that being charged with taking indecent liberties with a child or kidnapping (or pick your 134 offense) was service discrediting or prejudicial to good order & discipline because the government did not specifically put the terminal element on the charge sheet.  CAAF repeatedly refused to consider the common sense argument (and years of precedent in my opinion) that being charged with those offenses would put any reasonable person on notice of having to defend against Art 134 clause 1 or clause 2. 
    Now, CAAF says the accused can be convicted without any evidence being presented to prove the terminal element because being convicted of the offense itself is enough by itself to be service discrediting or prejudicial to good order.  If that’s the case, isn’t CAAF essentially saying commission of the offense (or allegation) is enough to put a person on notice of SD/PGoD?
    Norman and Fosler seem inconsistent to me.  I would appreciate any thoughts from some of the more experienced military justice guys.  As I said, I’m probably missing the obvious.

  7. Andy Pollock says:

    Why did the military try this case?  Doesn’t this seem like one that should have stayed downtown.  I had a baby scalding case back in the 1990s, but we charged maiming then  They are hard cases.

  8. MurshinDurkin says:

    Could any rational member convict with these facts, using the most unconstitutional statute ever written? Yes.

  9. The Silver Fox says:

    Listed offenses under Article 134 aren’t statutes.  If you’re referring to Article 134 itself, Parker v. Levy would like a word with you.

  10. k fischer says:

    JW,
     
    I don’t see the PGOD issue.  I bet roommate didn’t punch him again.  I think Roach referred to that as “Peace through superior firepower.”. His actions enhanced good order and discipline in that nobody got punched again.  The reason the Command has a problem with him is because they let everyone in the unit use him as a punching bag, so he finally shows that he will defend himself, so now they want to bust him?  C’mon Command, you are stuck on stupid……

  11. Zeke says:

    Two points jump out to me from Parker v. Levy.  First, the Court only found Art 133 (and Art 134) to be constitutional, and not void for vagueness, after: 1) pointing out that the sort of infractions often prosecuted under those Articles tend to be impose administrative-like sanctions rather than criminal sanctions; and 2) pointing out that military appellate courts had narrowed the scope of those statutes by precluding conviction for an act or omission unless the prejudice to good order and discipline from such is “direct and palpable.”  One might wonder whether the Supreme Court today, reviewing Article 133/134 prosecutions, would make those same presumptions?  Would the Court today be as deferential to the military as the Court was when Rehnquist wrote Parker v. Levy?  The majority of Justices at the time Parker v. Levy was written had served in the military.  I’m not convinced the Court today would reach the same decision.

  12. stewie says:

    Correct me if I’m wrong, but I thought Parker v. Levy only applied “direct and palpable” to areas implicated by constitutional rights? Like First Amendment issues for example.
     
    At any rate, to answer the hypo above, first I’d say I’m not it’s a crime, or should be.  But that’s nitpicking.  The broader argument is that there are some offenses that are unique to the military and are unique situations that there might be some desire to criminalize.  I’d argue though that if you took the “enumerated” 134 offenses, and made them actual enumerated offenses, you’d be left with very little left you’d need under the general article.  Give them a little more form, get rid of PGOD/SD as an element.

  13. Joseph Wilkinson says:

     
    I don’t see the PGOD issue…
    First I’d say I’m not it’s a crime, or should be.  But that’s nitpicking….
     
     
    It’s not really a hypo…I actually encountered it on my first Iraq tour, though a detail or two might be slightly off.  The commander who was responsible for the conduct of his troops was quite sure it should be a crime (particularly given the previous belligerent behavior of that particular Soldier), because he could not expect to carry these fellows through the strains of a combat tour if they extend their little ego bubbles that far: that they were ready to implicitly threaten deadly force with their assigned weapons as a threat against punching.  (The classic poetic vision of indiscipline includes the telling line: “Yes, every little drummer had his rights and wrongs to mind.”)  I think it would be a bad idea for anyone to second-guess his judgment on that score, as long as he’s the one responsible for the troops not killing each other for the year of duty.  That’s not a nitpicky point at all…that goes to the heart of what discipline is, and why we have (and ought to have) 134.
     
    The issue (in the real case) was compounded by the fact that this was a massively cross-leveled reserve unit, so that most of the Soldiers did not know each other well before being deployed, and the social situations in those units could get pretty tense.  The actual guy got summary CM, and spent 30 days in jail at Arifjan, which was a very “reform-oriented” institution.  We didn’t have a peep of trouble out of him for the rest of the tour.  That tells me that Article 134 worked exactly the way it is supposed to, and I wouldn’t too easily toss away something that works.  
     
    If you don’t think that’s a discipline issue (and how anyone could not think that is incomprehensible to me), then take it to a real hypothetical.  Suppose the roomie had just woken up and made disparaging remarks about the Soldier’s character, and the other Soldier felt “dissed,” so that he locked and loaded in the same fashion.  Are you sure whether or not that should be a crime in a deployed military unit?  Is it “peace through strength” in your eyes?  Should the commander be forbidden to punish it?

  14. stewie says:

    Sure we should second-guess. Commanders need to be reigned in from time to time.  They should not be given free-reign or absolute deference.
     
    That’s why they have JAGs, and the good commanders turn to their JAGs and ask them for their advice, and the good JAGs yes they try to get to yes but they also say, no, really shouldn’t do that, or no, not really a crime, may want to look to another tool to handle this (like counseling, mental health, or administrative actions) rather than court-martial.
     
    Just because something “works” doesn’t mean it’s correct. Beating him with a stick might have worked too. And again, don’t see the crime.
     
    Doesn’t strike me as “behavior to be punished” so much as “an issue to be resolved.”

  15. k fischer says:

    JW,
     
    It appears that whatever happened in your hypo/real life scenario worked.  Just like some corrective training is actually illegal punishment, but it saves a young Soldier from having an Article 15.  It works.  I guess the problem arises when it doesn’t work.  When someone goes too far, or when the Soldier is advised to turn down the Summary Court Martial because the charge is weak.  What happens, then?
     
    And the Roach line from Point Break was me being flippant.  I think there is a difference between feeling dissed and being assaulted and feeling like you are in danger.  In the former, I think there is a problem.  In the latter, I think it is effective.  Sounds like the facts are a little more complex with this Soldier’s history.  But, had I been his TDS counsel, I would have seriously considered that he turn it down, which sounds like it could have been a mistake as all turned out okay.
     

  16. Joseph Wilkinson says:

     
    Me: The commander who was responsible for the conduct of his troops was quite sure it should be a crime (particularly given the previous belligerent behavior of that particular Soldier), because he could not expect to carry these fellows through the strains of a combat tour if they extend their little ego bubbles that far: that they were ready to implicitly threaten deadly force with their assigned weapons as a threat against punching…. I think it would be a bad idea for anyone to second-guess his judgment on that score, as long as he’s the one responsible for the troops not killing each other for the year of duty.
     
    Sure we should second-guess. Commanders need to be reigned in from time to time.  They should not be given free-reign or absolute deference.
     
    Me again:  Strawman.  On points like this one (which is so obviously related to the discipline and safety of his troops) the commander has to have discretion and the power to punish, because he carries the responsibility.  If he had tolerated that conduct, and six months later one of his Soldiers had gotten shot over something equally weighty, he’d be up for punishment himself or at least disgrace (“Why didn’t you see the signs?  Why didn’t you do something?”).  As long as commanders have that level of responsibility for their troops they’ve got to have the power to exercise that responsibility.
     
    Just because something “works” doesn’t mean it’s correct. Beating him with a stick might have worked…
     
    “Beating him with a stick” would’ve been unlawful; punishing him under Article 134 was perfectly lawful.  If it ain’t broke, don’t fix it.
     
    It appears that whatever happened in your hypo/real life scenario worked.  Just like some corrective training is actually illegal punishment, but it saves a young Soldier from having an Article 15.  It works.
     
    Except that what my commander did was lawful, whereas unlawful punishment is…unlawful.  But I agree they can work, and I think the solution is to legalize “spot punishments” by NCO’s…as I used to advise my clients, sore muscles and bruised egos heal faster than bad paper records…but to keep the excellent rule that the command can’t “double dip” on a minor offense.
     
    Didn’t recognize the line at all, I’m afraid…my taste in movies runs a little older.  (Apropos….maybe this scene illustrates the atmosphere the commander was trying to avoid…)