CAAFlog » September 2014 Term » United States v. Norman

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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Norman, No. 14-0524/MC (CAAFlog case page): Oral argument audio.

United States v. Adams, 14-0495/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Marine Corps case of United States v. Norman, No. 14-0524/MC (CAAFlog case page), on Wednesday, January 14, 2015. The case presents CAAF with the following question about the quantum of evidence required to prove that certain conduct was of a nature to bring discredit upon the armed forces, in violation of Article 134:

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 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 only 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. As charged in this case, this offense 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). Without the final element that the conduct was discrediting to the service, Appellant’s conduct did not violate Article 134 of the UCMJ.

During trial, and over Defense objection, the Government presented the lay opinion of a Staff Sergeant military policeman to prove the discrediting nature of Appellant’s conduct. In response to a question from the trial counsel, the Staff Sergeant testified:

I would think somebody who did that would–anybody who would do that would bring discredit upon themselves, but especially a Marine, because of he high opinion that we are–I feel we are held to by the public, sir.

App. Br. at 6; Gov’t Br. at 6. This was the only evidence specifically offered to prove the discrediting element. But on review at the Navy-Marine Corps CCA, the Government conceded that this testimony was improperly admitted. Then, in its opinion affirming the findings and sentence, the CCA assumed such error but found it harmless, reasoning that “the members did not need the SNCO’s generic testimony to establish the terminal element; in fact, they required no testimony at all regarding this element.” United States v. Norman, No. 201300152, slip op. at 4 (N-M. Ct. Crim. App. Feb. 20, 2014).

CAAF then granted review, and the Government made a dramatic change in its position, asserting that admission of the Staff Sergeant’s lay opinion was not error:

Before the Court of Criminal Appeals, the United States stated that Staff Sergeant Moody’s opinion was admitted in error. (J.A. 55-56.) This was incorrect. The Court of Criminal Appeals’ decision assumed, but did not accept the misstatement, that Staff Sergeant Moody’s testimony was admitted in error. (J.A. 2.) The United States now corrects the Record and its position: there was no error in admitting Staff Sergeant Moody’s testimony.

Gov’t Br. at 15-16. Because of this, next week’s oral argument will likely begin with the question of what to do about the Government’s vacillating position.

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