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.

Focusing on the facts as limited by the findings, Judge Ohlson explains that:

To be clear, we deem Appellant’s actions of drinking an excessive amount of alcohol while caring for his young child to be irresponsible. However, a criminal conviction for child endangerment requires more than a showing of irresponsible behavior coupled with speculation by the prosecution about what possibly could have happened to a child as a consequence of an accused’s conduct. Rather, it requires proof that the accused’s conduct, either through design or culpable negligence, resulted in a reasonable probability that the child would be harmed. Here, there was no such showing by the Government.

Slip op. at 7 (emphasis in original). Possibilities and probabilities were central to CAAF’s resolution of another case this term: The HIV-exposure case of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page). In Gutierrez, a unanimous CAAF concluded that the Government failed to prove that any of the appellant’s actions were likely to transmit HIV to his sexual partners. In Plant, Judge Ohlson reaches a similar conclusion regarding the appellant’s use of alcohol and the risk of danger to his son:

even though we view the evidence in the light most favorable to the Government and acknowledge that the possibility of harm could not be ruled out, on the facts of this case we are compelled to conclude that no rational trier of fact could have found beyond a reasonable doubt that there was a reasonable probability that LP’s mental or physical health, safety, or welfare were endangered on the night in question.

Slip op. at 8.

Yet Judge Ryan, joined by Chief Judge Baker, dissents because she does not agree with Judge Ohlson’s conclusion that the facts must be viewed so narrowly:

The majority holds that the Government’s chosen charging language limits this Court to considering “‘alcohol use alone’” in the strictest sense, separating Appellant’s alcohol use from the circumstances under which he used alcohol and his behavior under the influence of alcohol. However, the act of consuming alcohol and the circumstances of consumption cannot be so neatly disaggregated, nor is there legal authority or any other reason compelling us to do so.

Diss. op. at 1 (citation to majority opinion omitted). In Judge Ryan’s view, “neither the factfinder nor this Court needed to divorce the circumstances under which Appellant used alcohol from that act.” Diss. op. at 2. And considering the circumstances, Judge Ryan concludes:

A rational trier of fact could certainly have concluded, as the members did in this case, that Appellant’s decision to consume so much alcohol constituted culpable negligence under the circumstances. Put simply, what is culpably negligent in one situation may not be so in another. This is not a parent who drank to excess alone or drank moderately as his healthy child slept, but a parent who drank to excess, in a milieu of strangers, sexual activities, and drug use, while serving as his dependent toddler’s sole caretaker.

Diss. op. at 3.

I believe that Judge Ohlson’s majority opinion is likely to become a significant precedent. His conclusion that CAAF “may not examine” the circumstances surrounding the alcohol consumption is a significant limitation on legal (and factual) sufficiency reviews.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
• Brief of Amicus Curiae (law students)
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

5 Responses to “Opinion Analysis: With a narrow view of the facts, CAAF reverses for legal insufficiency in United States v. Plant, No. 15-0011/AF”

  1. DCGoneGalt says:

    Why do SJAs feel the need to charge (ok, recommend charging) this additional nonsense that has nothing to do with the meat of the case?  This isn’t a law school exam where you have to address every conceivable offense.  I recently saw a child endangerment conviction for a woman who used drugs while her toddler child was asleep in another room.  I may be crazy (ok, I likely am) but just get the drug conviction (guilty plea), discharge the member, and move along to the next Art 120.

  2. Tami a/k/a Princess Leia says:

    Congratulations Phil!

  3. Grey says:

    It looks like the conviction would have been upheld had the specification listed out the the other irresponsible conduct (having strangers at the house and committing various other crimes during which time, presumably, appellant would not have been able to respond to the child’s needs).
    I know Article 134 has withstood scrutiny at the US Supreme Court, but it is still is difficult statute to work with due to its amorphous elements.  There seems to be a lot of Article 134 litigation, especially considering how minor the 134 offenses often tend to be in comparison with the other charges that are not even being considered on appeal.

  4. Bassomatic says:

    So the holding is: “Despite viewing the evidence in the light most favorable to the Government, we conclude that no rational trier of fact could have found a reasonable probability that the child’s welfare was endangered.” Why use the word, “despite”? Under the law, the court has to view the evidence in the light most favorable to the government. Not sure where “despite” fits in. In any event, IMHO, the dissent seems to have the stronger argument here.

  5. Tami a/k/a Princess Leia says:

    The use of “despite” is necessary to show CAAF followed the requirement to consider the evidence in most favorable light to Government.  Theoretically, there could always be a “trier of fact” who decides he his guilty of child endangerment simply by drinking alcohol.  Is that person rational?  No.  Anyone with kids knows that a 13 month old child who sleeps through the night is unlikely to be in any danger, unless there is a health problem that requires care in the middle of the night.  In this case, given the way the Government charged the offense, this case is the same as if appellant was home alone with his child, and appellant got completely wasted by drinking alcohol.  Under those circumstances, the chances of harm are probably 1-500(?).  I agree with Grey, if the Government had included the other misconduct, then CAAF might have upheld.  I say might have because the person who was sober was old enough to be responsible for caring for the child, almost like a de facto babysitter.
    There is a difference between considering misconduct appellant was acquitted of for sentencing purposes as aggravating circumstances, and considering misconduct appellant was acquitted of for purposes of determining guilt.  The dissent seems to be doing the former.
    CAAF seems to be focused on drawing a line between “risk of harm” and “likelihood of harm.”  Is there a risk of transmitting HIV during unprotected sex w/ HIV positive person?  Yes, but if the likelihood of transmission is low, then it is not “aggravated assault.”  Apparently they are drawing the same line with child endangerment.