CAAFlog » September 2014 Term » United States v. Plant

CAAF decided the Air Force case of United States v. Plant, 74 M.J. 297, No. 15-0011/AF (CAAFlog case page) (link to slip op.), on Wednesday, July 15, 2015. Taking a narrow view of the facts of the case based on the wording of the specification and the findings at trial, a divided CAAF finds that the evidence is legally insufficient to support the appellant’s conviction for child endangerment. The court reverses the conviction and the decision of the Air Force CCA, remanding for further action on the sentence.

Judge Ohlson writes for the court, joined by Judges Erdmann and Stucky. Judge Ryan dissents, joined by Chief Judge Baker.

CAAF granted review of a single issue:

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.

The 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, the appellant became intoxicated. At the time, the appellant’s infant son was sleeping in the house and did not awaken during the night. The other offenses occurred during the party but did not otherwise involve or implicate the child.

The appellant was charged with child endangerment in violation of Article 134 with the following specification:

Within the State of Arkansas, between on or about 9 April 2011 and on or about 9 May 2011, [Appellant] had a duty for the care of L.E.P., a child under the age of 16 years, and did endanger the welfare of said L.E.P., by using alcohol and cocaine, and that such conduct constituted culpable negligence, and that under the circumstances, the conduct was of a nature to bring discredit upon the armed forces.

Slip op. at 4. The members convicted the appellant of this specification, however they excepted the words “and cocaine,” acquitting the appellant of that allegation. This finding significantly limits that majority’s review of the sufficiency of the evidence, with Judge Ohlson explaining that:

Thus, because of the manner in which the Government charged the offense, and because of the panel’s verdict in regard to the specification, the child endangerment conviction was based solely on Appellant’s use of alcohol at the time he had a duty to care for his son. Accordingly, we may not examine whether Appellant endangered LP by allegedly using cocaine during the party, by inviting virtual strangers into his home while his young son was present, or by sexually assaulting two young women in the same residence in which his son slept.

Slip op. at 4-5 (citations omitted). It is this limitation that divides the court.

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Audio of this week’s Project Outreach oral arguments is now available at the following links:

United States v. Plant, No. 15-0011/AF (CAAFlog case page): Oral argument audio.

United States v. Keefauver, No. 15-0029/AR (CAAFlog case page): Oral argument audio.

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).

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