United States v. Private E2 TOUFDY H. LOUSSOUBA ( 2019 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Private E2 TOUFDY H. LOUSSOUBA
United States Army, Appellant
ARMY 20180132
Headquarters, I Corps
Timothy P. Hayes, Jr. and Douglas K. Watkins, Military Judges
Colonel Steven C. Henricks, Staff Judge Advocate
For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Jack D. Einhorn, JA; Captain Patrick G. Hoffman, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Captain Thomas J. Darmofal, JA (on
brief).
18 December 2019
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
Per Curiam:
An officer panel sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of wrongful possession of a controlled
substance, one specification of wrongful use of a controlled substance, and one
specification of consuming alcohol under the age of twenty-one years, in violation of
Articles 112a and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 934
[UCMIJ]. The panel also convicted appellant, contrary to his pleas, of one
specification of maiming, in violation of Article 124, UCMJ, and acquitted appellant
of one specification of attempted murder, charged in violation of Article 80, UCMJ.
The panel sentenced appellant to a bad-conduct discharge, twenty-seven months
confinement, total forfeitures, a reprimand, and reduction to the grade of E-1. The
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convening authority approved the sentence as adjudged, and credited appellant with
201 days against his sentence to confinement.
Appellant’s case is now before us for review pursuant to Article 66, UCMJ.
On appeal, appellant raises one assignment of error: that his conviction for maiming
is legally and factually insufficient. As discussed below, we find appellant’s
conviction for maiming sufficient both legally and factually.
BACKGROUND
In the early morning hours of 3 September 2017, appellant and a group of
other soldiers stationed at Joint Base Lewis-McChord, Washington, were drinking,
smoking, and listening to music at a smoke pit near appellant’s barracks building.
By 0500, appellant was “drunk,” “loud,” and “very obnoxious.” Specialist (SPC)
KS, one of the other soldiers at the smoke pit, decided to escort appellant back to his
barracks room to keep him from “get[ting] in trouble.”
After escorting appellant back to his barracks room, SPC KS went to his own
barracks room to sleep. Soon after arriving at his barracks room, SPC KS realized
he left his phone and speaker at the smoke pit, and went to retrieve the items. Upon
arriving back at the smoke pit, SPC KS noticed that appellant had also returned.
Specialist KS then approached appellant to again escort him back to his barracks
room.
This time, instead of agreeing to go to his barracks room, appellant pulled out
two knives and slashed at SPC KS. One of the knives contacted SPC KS, causing a
laceration across SPC KS’s neck. After being cut, SPC KS ran into a nearby
barracks building seeking assistance. One soldier in the barracks rendered aid by
applying pressure to SPC KS’s neck wound, while another soldier called 911.
Specialist KS was taken to the on-post emergency room, where the attending
trauma surgeon, Major (MAJ) Kevin Clive, assessed and treated SPC KS. Major
Clive assessed SPC KS’s wound as “easily evaluated” and “superficial,” and treated
SPC KS’s wound by closing it with absorbable sutures. Major Clive also opined that
SPC KS would “most likely have a visible scar” as a result of the injury, and SPC
KS is at “increased risk for hypertrophic scarring/keloid formation given that he is
African-American.” Other than the scar, MAJ Clive did not expect “further
complications or long-term consequences” of SPC KS’s injury.
At trial in March 2018, the government admitted a photograph of the wound
on SPC KS’s neck that was taken a few days after the injury. As part of SPC KS’s
testimony, the government also asked SPC KS to step down from the witness stand
and display the scar on his neck to the panel members. The government neither
described nor admitted pictures of SPC KS’s neck scar as it appeared at trial.
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LAW AND DISCUSSION
This Court holds findings of guilt legally sufficient when any rational fact
finder “could have found all essential elements of the offense beyond a reasonable
doubt.” United States v. Nicola, 78 M.J. 223, 226 (C.A.A.F. 2019) (citations
omitted). In conducting our legal sufficiency review, we are obligated to draw
“every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Robinson, 77 M.J. 294, 298 (C.A.A.F. 2018)
(citations omitted). “As such, the standard for legal sufficiency involves a very low
threshold to sustain a conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (citation and internal marks omitted).
With regard to factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). We may not
affirm a conviction unless, “after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses,” we are
personally convinced beyond a reasonable doubt of appellant’s guilt. United States
vy. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
In order to sustain a conviction for maiming, the government must prove
beyond a reasonable doubt: “(1) That the accused inflicted a certain injury upon a
certain person; (2) That this injury seriously disfigured the person’s body, destroyed
or disabled an organ or member, or seriously diminished the person’s physical vigor
by the injury to an organ or member; and (3) That the accused inflicted this injury
with an intent to cause some injury to a person.” Manual for Courts-Martial, United
States (2016 ed.) [MCM], pt. IV, §] 50.b.
“The essence of the offense of maiming is the permariency of the injury
inflicted.” United States v. Goins, 18 U.S.C.M.A. 395, 398, 40 C.M.R. 107 (1969).
“The disfigurement, diminishment of vigor, or destruction or disablement of any
member or organ must be a serious injury of a substantially permanent nature,”
regardless of whether “the victim may eventually recover the use of the member or
organ, or that the disfigurement may be cured by surgery.” MCM, pt. IV, 4 50.c.(1).
This court has also held that when analyzing whether scarring is sufficient to sustain
a maiming conviction, the scars must be “easily detectable to the casual observer”
when the scar is actually viewed. United States v. Morgan, 47 M.J. 644, 648 (Army
Ct. Crim. App. 1997) (discussing United States v. McGhee, 29 M.J. 840, 841
(A.C.M.R. 1989)).
Applying the test for legal sufficiency to the facts and elements in this case,
we find that appellant’s conviction for maiming is indeed legally sufficient. The
government produced sufficient evidence that a rational fact finder could be
LOUSSOUBA—ARMY 20180132
convinced, beyond a reasonable doubt, that appellant’s actions, along SPC KS’s
injury, satisfy the elements of maiming.
With regard to factual sufficiency, we are personally convinced beyond a
reasonable doubt that appellant is guilty of maiming SPC KS. Looking at the
elements of maiming, the record conclusively demonstrates, and appellant does not
contest on appeal, that appellant intended to cause and indeed caused an injury to
SPC KS. Instead, appellant’s argument before this court focuses solely on whether
SPC KS’s injury is of sufficient severity to satisfy the second element of maiming.
We are convinced that it does.
In reaching our conclusion, we find persuasive the photograph of SPC KS’s
injury a few days after it occurred, MAJ Clive’s stipulation of expected testimony
explaining the permanency of SPC KS’s scar, and appellant’s presentation of his
scar to the panel during his testimony. Unquestionably, the government should have
taken additional steps to preserve the record with photographs or a description of the
scar on the day of trial. Nonetheless, after making allowances that the fact finders
personally observed SPC KS’s scar on the day of trial, we are personally convinced
beyond a reasonable doubt that SPC KS’s injury satisfies the second element of
maiming in both severity and permanency.”
CONCLUSION
Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.
“We are cognizant that we must make “allowances for not having personally
observed the witnesses” when conducting our factual sufficiency review. Turner, 25
M.J. at 325. Such allowances are especially important in this case as SPC KS’s scar
was displayed to the panel during his testimony, but neither the government nor the
military judge took steps to describe the scar or preserve it via photograph. In some
cases, the government’s failure to preserve the record of trial with a description or
photograph of what was presented to the panel may preclude us from being
convinced as to an appellant’s guilt. However, in this case, the photograph of the
wound days after it occurred, the stipulation of expected testimony, the fact that the
panel members themselves saw appellant’s scar up close, that the panel was properly
instructed regarding the “substantially permanent nature” of SPC KS’s injury, and
that they were themselves satisfied that appellant’s scar was sufficiently severe,
combine to convince us of appellant’s guilt.
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FOR THE COURT:
Mebbettors,
MALCOLM H. SQUIRES, JR.
Clerk of Court