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