2014 (September Term)
United States v. Plant, 74 M.J. 297 (the elements of the child endangerment offense are (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 to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces).
(the third element of child endangerment requires an accused to have endangered a child; endanger means to subject one to a reasonable probability of harm).
(in this case, the third element of child endangerment has two requirements: (1) the accused’s acts or omissions must endanger the child’s safety; and (2) the accused’s mental state must be that of culpable negligence; each aspect of the third element requires a different threshold of risk; the threshold of risk for endanger is conduct that subjects the child to a reasonable probability, not merely a reasonable possibility, of harm; however, the threshold of risk for the mental state of culpable negligence is lower; the government establishes culpable negligence if a reasonable person would be aware that the accused’s conduct might foreseeably result in harm to a child, even though such harm would not necessarily be the natural and probable consequences of such acts; because the threshold of risk of harm for establishing culpable negligence is lower than that required for endangerment, the facts may satisfy the mental state of culpable negligence despite failing to establish the act of endangerment).
(in this case, the evidence was not legally sufficient to support appellant’s conviction for child endangerment where there was no substantiation in the record for the proposition that appellant’s intoxication at the time he had a duty to care for his son created a reasonable probability that his healthy thirteen-month-old son, who was placed in his own crib to sleep during ordinary bedtime hours, would experience harm; viewing the evidence in the light most favorable to the government and acknowledging that the possibility of harm could not be ruled out, on the facts of this case, no rational trier of fact could have found beyond a reasonable doubt that there was a reasonable probability that appellant’s son’s mental or physical health, safety, or welfare were endangered on the night in question; although appellant’s actions of drinking an excessive amount of alcohol while caring for his young child were irresponsible, 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).
United States v. Norman, 74 M.J. 144 (the elements of child endangerment are (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 to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces).
(in this case concerning a contested child endangerment offense, where the military judge properly instructed the members with 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 and where the members could permissibly consider evidence of the charged conduct when evaluating the terminal element, excluding the Marine MP’s testimony regarding his opinion of service discrediting conduct, without more, did not necessitate reversing appellant’s conviction for lack of independent evidence of the terminal element; there was no unconstitutional presumptive conclusion because the military judge properly instructed the members of the court as to the elements of the offense, and did not require them to find proof of the terminal element simply because the government provided proof of the underlying conduct).
(the extent of a child’s injuries may not, in every instance, have any bearing on the conduct of the accused in a child endangerment case; an accused’s culpably negligent conduct may be found service discrediting even where there is no harm to the child; the converse also holds true: an accused’s conduct may not be found service discrediting simply because a child has sustained a grievous injury if the accused’s conduct is not prejudicial to good order and discipline or service discrediting).
(in this case, concerning a contested child endangerment charge, the evidence at trial was legally sufficient to demonstrate that appellant’s conduct was of a nature to bring discredit upon the armed forces where appellant’s ten-month-old son sustained second- and third-degree burns on about 35% of his body after appellant left him unattended in a bathtub with running hot water; a rational trier of fact could have determined, extrapolating from the expert’s testimony, that appellant left his son 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 also could have determined that appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds, disregarding his son’s cries when the hot water made contact with the skin; furthermore, in light of the expert’s testimony, a rational trier of fact could have concluded that the evidence proved that appellant’s actions were more than bad parenting, but amounted to culpable and criminal negligence, which was of a nature to discredit the armed forces; moreover, a rational trier of fact could have further found this conduct service discrediting because appellant was a Marine Corps sergeant; finally, a rational trier of act could reason that the public would expect appellant, an NCO who had been selected and promoted to the rank of sergeant, to exhibit competence and responsibility toward some in his care; consequently, appellant’s culpably negligent behavior would have a tendency to bring the service into disrepute or tend to lower it in public esteem).