United States v. Norman

UNITED STATES, Appellee
v.
Troy B. NORMAN, Sergeant
U.S. Marine Corps, Appellant
No. 14-0524
Crim. App. No. 201300152
United States Court of Appeals for the Armed Forces
Argued January 14, 2015
Decided April 29, 2015
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Lieutenant Jennifer L. Myers, JAGC, USN
(argued); Lieutenant David C. Dziengowski, JAGC, USN.
For Appellee: Captain Matthew M. Harris, USMC (argued);
Lieutenant Ann E. Dingle, JAGC, USN, and Brian K. Keller, Esq.
(on brief); Colonel Stephen C. Newman, USMC.
Military Judge: Chris J. Thielemann
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Norman, No. 14-0524/MC
Chief Judge BAKER delivered the opinion of the Court.
Appellant, a sergeant in the U.S. Marine Corps, was
convicted by a general court-martial composed of officers and
enlisted members, contrary to his pleas, of child endangerment
by culpable negligence in violation of Article 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 934 (2012). The members
sentenced Appellant to confinement for sixty days, a
dishonorable discharge, and reduction to the lowest enlisted
grade. The convening authority approved the sentence as
adjudged, and the United States Navy-Marine Corps Court of
Criminal Appeals (CCA) affirmed. United States v. Norman, No.
NMCCA 201300152, 2014 CCA LEXIS 88, at *7, 2014 WL 656249, at
*3, (N-M. Ct. Crim. App. Feb. 20, 2014) (per curiam). This
Court granted review on the following issue:
WHETHER THE CONVICTION FOR CHILD ENDANGERMENT BY
CULPABLE NEGLIGENCE IS LEGALLY INSUFFICIENT WHEN THE
ONLY TESTIMONY OFFERED TO PROVE ITS SERVICE
DISCREDITING NATURE WAS ADMITTED IN ERROR.
Appellant’s ten-month-old son, TBN, sustained second- and third-
degree burns after Appellant left TBN unattended in a bathtub
with running hot water. At trial, the Government called Staff
Sergeant (SSgt) Neil C. Moody, a military police officer who
responded to Appellant’s 911 call, to testify that Appellant’s
conduct was of a nature to bring discredit upon the armed forces
under Article 134, UCMJ. For the reasons set forth below, we
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conclude that the admission of SSgt Moody’s testimony was error
under Military Rule of Evidence (M.R.E.) 701. Nevertheless,
because “proof of the conduct itself may be sufficient for a
rational trier of fact to conclude beyond a reasonable doubt
that, under all the circumstances, it was of a nature to bring
discredit upon the armed forces,” the remaining evidence
admitted at trial was legally sufficient to support Appellant’s
conviction on the service discredit element under Jackson v.
Virginia, 443 U.S. 307, 319 (1979). United States v. Phillips,
70 M.J. 161, 163 (C.A.A.F. 2011). Therefore, we affirm the
decision of the United States Navy-Marine Corps Court of
Criminal Appeals.
BACKGROUND
Appellant was stationed at Marine Corps Air Station Yuma,
Arizona, where he was living at an on-base residence with his
wife and his ten-month-old son, TBN. According to Appellant, on
August 24, 2011, Appellant was watching over TBN while his wife
was asleep in the other room, when TBN soiled himself. After
attempting, and failing, to wipe TBN clean, Appellant moved his
son to the bathroom in the upstairs hallway to bathe him. The
only accounts of what followed were provided to military
personnel by Appellant.
According to the testimony of SSgt Moody, Appellant
initially told first responders that he:
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United States v. Norman, No. 14-0524/MC
was cradling [TBN] . . . and set [him] on the edge of
the tub and turned the water on and was letting it
run, and he tested the water and he realized it was
hot, so he turned the knob to full cold, let it run
for a few minutes, and then started to lower his son
down into the tub. When the water splashed up, his
son screamed, and that was when he realized the water
was still too hot and he went and called 911.
SSgt Moody testified that Appellant repeated this version of
events to the same first responders after TBN was taken to the
hospital. Another first responder, military police officer SSgt
Robert Eugene Soli, testified that after hearing Appellant’s
version of events, he alerted United States Naval Criminal
Investigative Service (NCIS) because in his opinion, “the
injuries and the story [he] was being told didn’t match up.”
Later that day, upon questioning by a representative of the
NCIS, Appellant changed the details of his story. He stated
that when he took TBN upstairs to take a bath, he placed TBN in
the bathtub “on his buttocks, with his back facing the faucet,
sitting in an upright position.” Appellant “turn[ed] the handle
of the faucet to approximately the 9:00 position” and although
he “did not plug the drain . . . some water was pooling in the
bathtub.” After “check[ing] the water temperature approximately
three times by touching the running water with [his] hand,”
Appellant “went to the vanity area of the bathroom where the
sinks are to get soap,” leaving TBN’s side for approximately
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United States v. Norman, No. 14-0524/MC
“30-45 seconds.” The vanity area was in an adjacent room
separated by a doorway, but was within sight of the bathtub.
While searching for soap, Appellant heard TBN “whimper,”
and when he returned to the “tub area of the bathroom,” TBN was
squirming on his back and “appeared to be in visible pain and
was screaming.” Appellant lifted TBN from the tub and noticed
that “the water was very hot,” and that “the skin on his back
and arms was peeling off.” Appellant alerted his wife, then
called 911. Appellant stated that this was only his second time
bathing TBN, and the first time he had bathed him in that
particular bathtub. As a result of TBN’s exposure to scalding
water, he sustained second- and third-degree burns on 35 percent
of his body, including his scalp, neck, buttocks, back, and
arms.
Appellant was charged with, inter alia, one specification
of child endangerment for:
endanger[ing] the physical health of [TBN] by leaving
him unattended in a bathtub where hot water was
running from the faucet, and that such conduct
constituted culpable negligence which resulted in
grievous bodily harm, to wit: 2nd degree burns on
approximately 35% of his body, which conduct was of a
nature to bring discredit upon the armed forces.
At trial, trial counsel offered the testimony of Dr. Michael
Dickens Peck, who treated TBN for his injuries, to testify
regarding the extent of TBN’s burns. Dr. Peck testified that
TBN was treated for fifty days at the Maricopa Burn Center,
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United States v. Norman, No. 14-0524/MC
undergoing seven surgeries to excise his burnt skin and receive
skin grafts for his third-degree burns. He also offered his
expert opinion on the possible cause of TBN’s injuries,
specifically, the water temperature and exposure time required
to cause such burns. In particular, he stated that “for an
adult, it takes ten minutes to get a third-degree burn at
[exposure to water temperature of] 120 degrees.” Dr. Peck
opined that, generally, it takes less time to produce the same
burns in children as compared to adults because “[t]heir skin
isn’t as thick . . . [so] it doesn’t take as long to produce a
burn.” He also provided his expert opinion that it would not be
possible for a ten-month-old child to sustain third-degree burns
“when exposed to water at a temperature of 115 degrees for 30 to
45 seconds.”
Trial counsel also called military police officer SSgt
Moody to offer an opinion on whether Appellant’s conduct was of
a nature to bring discredit upon the armed forces. Defense
counsel objected to the admission of SSgt Moody’s testimony.
They argued that SSgt Moody was offering improper lay opinion
testimony because he was a Marine, not a civilian, and therefore
was not “the appropriate party” to “offer[] an opinion as to
what the public may ascertain.” The military judge overruled
the objection. He found that SSgt Moody’s testimony was
admissible because:
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United States v. Norman, No. 14-0524/MC
it is rationally based upon his perception as a
witness of being a Marine as well as a civilian. It
would be helpful to the clear understanding, perhaps,
of his testimony why he’s offering such an opinion,
and clearly it is not based on any scientific,
technical, or other specialized knowledge other than
his performance as a United States Marine.
On direct examination, trial counsel asked SSgt Moody,
“[i]n your opinion, does a Marine who endangers the life of his
child bring discredit on the Marine Corps?” SSgt Moody
responded: “I would think somebody who did that would -- anybody
who would do that would bring discredit upon themselves, but
especially a Marine, because of the high opinion that we are --
I feel we are held to by the public, sir.” SSgt Moody was the
only Government witness who proferred an opinion on whether
Appellant’s conduct was service discrediting. Appellant was
convicted by the panel members of child endangerment by culpable
negligence.
On appeal, the CCA affirmed Appellant’s conviction.
Norman, 2014 CCA LEXIS 88, at *5-6, 2014 WL 656249, at *2. In
its opinion, the CCA “assum[ed] error in admitting this lay
opinion,” without deciding the issue, because it ultimately held
that the remaining evidence presented at trial was legally
sufficient to support the conviction. This appeal followed.
DISCUSSION
The elements of child endangerment, as stated in the Manual
for Courts-Martial, are:
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United States v. Norman, No. 14-0524/MC
(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.
Manual for Courts-Martial, United States pt. IV, para. 68a.b
(2012 ed.) (MCM).
The only element in contention in this case is the terminal
element: whether the evidence at trial was legally sufficient
to demonstrate that Appellant’s conduct was of a nature to bring
discredit upon the armed forces. We first address whether SSgt
Moody’s testimony was admitted in error, before discussing
whether the evidence otherwise properly admitted at trial is
legally sufficient to sustain Appellant’s conviction.
I. Military Rule of Evidence 701
M.R.E. 701 governs the admissibility of opinion testimony
by a lay witness. Under M.R.E. 701:
[i]f the witness is not testifying as an expert,
the witness’ testimony in the form of opinions or
inferences is limited to those opinions or
inferences that are (a) rationally based on the
perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not
based in scientific, technical, or other
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United States v. Norman, No. 14-0524/MC
specialized knowledge within the scope of Rule
702. 1
“M.R.E. 701 establishes a two-part test for admissibility of lay
opinion: (1) the opinion must be rationally based on the
witness’s perception; and (2) the opinion must be helpful to the
determination of a fact in issue.” United States v. Byrd, 60
M.J. 4, 6 (C.A.A.F. 2004). “It is generally held . . . that
opinion testimony is not helpful where it does no more than
instruct the factfinder as to what result it should reach.”
United States v. Littlewood, 53 M.J. 349, 353 (C.A.A.F. 2000)
(citation omitted). This Court reviews a military judge’s
application of M.R.E. 701 for an abuse of discretion. Id.
Trial counsel sought to admit SSgt Moody’s testimony in
order to establish the terminal element. SSgt Moody testified
on his view of the Marine Corps both before and after he joined
the service, whether he believed that Marines “are held to a
higher standard of conduct” by the public, and why “the opinion
of the American public [is] important to a Marine.” After
1
Appellant argues that the Government is judicially estopped
from arguing before this Court that SSgt Moody’s testimony was
properly admitted under M.R.E. 701 because the Government
conceded this point in its brief to the CCA. See Brief of
Appellee at 15-16, United States v. Norman, No. 201300152
(C.A.A.F. Nov. 10, 2014). Given this Court’s conclusion that
SSgt Moody’s testimony was improperly admitted under M.R.E. 701,
we need not reach this issue. Consequently, for the purposes of
the following discussion, this Court assumes, without deciding,
that the Government is not judicially estopped from arguing that
SSgt Moody’s testimony was properly admitted.
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United States v. Norman, No. 14-0524/MC
laying this foundation, SSgt Moody offered his opinion that
“anybody” who “endangers the life of his child . . . would bring
discredit upon themselves, but especially a Marine, because of
the high opinion that we are -- I feel we are held to by the
public.” He provided no further elaboration.
This Court addressed a comparable scenario in Littlewood,
53 M.J. at 351. At issue in that case was whether the military
judge erroneously permitted the accused’s commander, a
lieutenant colonel, to offer his lay opinion testimony that the
accused’s charged conduct was indecent and prejudicial to good
order and discipline. Id. at 351-52. In Littlewood, during
direct examination of the witness, trial counsel described
various acts the accused was charged with having committed, then
asked the witness to opine on whether such acts were indecent,
prejudicial, or service discrediting. Id. at 351. Direct
examination consisted of the following line of questioning,
repeated for each Article 134, UCMJ, charge the accused faced:
Q: If an adult were to perform oral sex on a 12-year-old
girl or have a 12-year-old girl perform oral sex on him,
would these acts be indecent?
A: Yes, they would.
Q: Prejudicial to good order and discipline?
A: Yes, they would.
Q: Would they bring discredit upon the Air Force?
A: Yes, they would.
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Id. at 351. This Court concluded that the testimony was not
helpful because it “consisted of bald assertions, unsupported by
reasoning or particular facts showing the manner in which the
charged offenses embarrassed the command or undermined its
morale.” Id. at 353.
In the instant case, similar to Littlewood, SSgt Moody’s
lay opinion testimony essentially restated the terminal element.
He offered no “reasoning or particular facts” as to his
understanding of the concept of service discrediting conduct, or
how he understood this concept as applied to Appellant’s
actions. SSgt Moody’s testimony regarding his perceptions of
the Marine Corps may have established a rational basis for his
opinion, but did not establish sufficient details to aid the
factfinder in evaluating the service discredit element.
Indeed, the military judge overruled defense counsel’s
objection to SSgt Moody’s testimony on the basis that his
testimony “would be helpful to the clear understanding, . . . of
. . . why he’s offering such an opinion.” The military judge’s
explanation suggests that trial counsel’s questions regarding
SSgt Moody’s background were helpful because they laid the
foundation for SSgt Moody’s opinion. This reasoning goes to the
first requirement in M.R.E. 701, that the witness provide a
rational basis for his perceptions. This rationale, however,
does not articulate why the proferred testimony would be helpful
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United States v. Norman, No. 14-0524/MC
to the factfinder. 2 Although a witness may offer an opinion on
an ultimate issue, M.R.E. 704, offering this opinion without
further explanation, as SSgt Moody did, is unlikely to be
helpful to the trier of fact. Restated, it is not clear why the
testimony of a Marine military police officer, without more,
would be helpful regarding a question of parenting practice, and
whether such practice was service discrediting. Like
Littlewood, we find that the military judge abused his
discretion in admitting the testimony of SSgt Moody.
Nevertheless, such error was harmless. Article 59(a),
UCMJ, 10 U.S.C. § 859(a). This Court conducts de novo review of
“[w]hether an error, constitutional or otherwise, was harmless.”
United States v. Hall, 66 M.J. 53, 54 (C.A.A.F. 2008) (citation
omitted). “For nonconstitutional errors, the Government must
demonstrate that the error did not have a substantial influence
on the findings.” Id. This Court determines whether prejudice
resulted from an erroneous “evidentiary ruling by weighing four
factors: ‘(1) the strength of the Government’s case, (2) the
strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
2
Even the military judge stated that he was “hesitant to frame
[SSgt Moody’s testimony] as a lay opinion testimony.”
Nevertheless, the military judge ultimately admitted the
testimony, noting that it was being offered by the Government
“in light of the need to put on some evidence to support a
terminal element.”
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question.’” Id. (citing United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999)). In applying these four factors, we conclude
that, by virtue of being conclusory and unhelpful to the trier
of fact, SSgt Moody’s testimony was not qualitatively
significant, nor was it material to the Government’s overall
case. Moreover, the Government had a strong case
notwithstanding this testimony: SSgt Moody’s testimony only
supported one element of the charged conduct which, as discussed
below, was established by other evidence at trial. In applying
the four Kerr factors, we conclude that three out of four
factors weigh in the Government’s favor. Accordingly, admission
of SSgt Moody’s testimony by the military judge was harmless
error.
II. Legal Sufficiency
A. The Phillips Standard
Appellant argues that evidence demonstrating the charged
conduct may not also be considered as proof of the service
discredit element because this would be an unconstitutional
presumptive conclusion. Brief of Appellant at 11, 13-14, United
States v. Norman, No. 14-0524 (C.A.A.F. Oct. 10, 2014).
Appellant reasons that absent the testimony of SSgt Moody, there
is no independent evidence supporting the service discredit
element, and consequently his conviction must be overturned.
Id. at 7. We disagree.
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United States v. Norman, No. 14-0524/MC
In Phillips, this Court concluded that “proof of the
conduct itself may be sufficient for a rational trier of fact to
conclude beyond a reasonable doubt that, under all the
circumstances, it was of a nature to bring discredit upon the
armed forces.” 70 M.J. at 163. Further, as discussed below, a
factfinder may permissibly conclude that the same piece of
evidence proves more than one element of a charged crime, so
long as this conclusion is reached independently with respect to
each element.
An unconstitutional presumptive conclusion arises when the
military judge instructs members that they must conclude that
evidence of the charged conduct also satisfies the terminal
element. Such an instruction is unconstitutional because it
relieves the government of its burden of proof, “subvert[s] the
presumption of innocence accorded to accused persons[,] and also
invade[s] the truth-finding task assigned solely to juries in
criminal cases.” Carella v. California, 491 U.S. 263, 265
(1989); see Morissette v. United States, 342 U.S. 246, 274
(1952) (“A conclusive presumption which testimony could not
overthrow would effectively eliminate . . . an ingredient of the
offense . . . . [which] would prejudge a conclusion which the
jury should reach of its own volition.”); see also Estelle v.
McGuire, 502 U.S. 62, 78 (1991) (O’Connor, J., concurring in
part and dissenting in part) (“[W]e have held that mandatory
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United States v. Norman, No. 14-0524/MC
presumptions violate the Due Process Clause if they relieve the
State of the burden of persuasion on an element of the
offense.”); Gov’t of the Virgin Islands v. Parrilla, 7 F.3d
1097, 1106 (3d Cir. 1993) (noting that where jurors have been
instructed to conclusively presume an element of the offense,
the conviction may not stand because “an unconstitutional
failure of proof of every element of the offense may result”);
Tyler v. Phelps, 643 F.2d 1095, 1098 (5th Cir. 1981)
(“Presumptions which act to preclude consideration of an element
of the crime conflict with the presumption of innocence and
invade the factfinding function of the jury.”).
In this case, the military judge provided the members 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.” See Dep’t
of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook ch. 3, para. 3-68a-1 (2014). During oral argument,
Appellant’s counsel conceded that the military judge did not err
in providing this instruction. Given that the members were
properly instructed and may permissibly consider evidence of the
charged conduct when evaluating the terminal element, excluding
SSgt Moody’s testimony, without more, does not necessitate
reversing Appellant’s conviction for lack of independent
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United States v. Norman, No. 14-0524/MC
evidence of the terminal element. As a result, there was no
unconstitutional presumptive conclusion because the military
judge properly “instruct[ed] 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. Article 51(c), UCMJ; Phillips,
70 M.J. at 166.
We now proceed to determine whether “all the facts and
circumstances” of Appellant’s charged conduct demonstrate that
Appellant’s conviction was legally sufficient. Phillips, 70
M.J. at 165.
B. The Jackson Standard
“This Court reviews the issue of legal sufficiency de
novo,” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)
(citing United States v. Green, 68 M.J. 266, 268 (C.A.A.F.
2010)), applying the standard set forth by the Supreme Court in
Jackson, 443 U.S. at 319. Under the Jackson standard, “in
reviewing for legal sufficiency of the evidence, ‘the relevant
question’ an appellate court must answer is ‘whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
Oliver, 70 M.J. at 68 (C.A.A.F. 2011) (quoting Jackson, 443 U.S.
at 319).
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As this Court noted in United States v. Oliver, this
standard “does not require a court to ‘ask itself whether it
believes that the evidence at the trial established guilt beyond
a reasonable doubt,’ rather it requires that a reviewing court
examine only whether ‘any rational trier of fact’ could have
made that determination.” Id. at 68 (quoting Jackson, 443 U.S.
at 318-19). This standard “gives full play to the
responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts,” and “preserves
‘the factfinder’s role as weigher of the evidence.’” Id.
(quoting Jackson, 443 U.S. at 319). In other words, this
Court’s decision “does not hinge on whether or how the parties’
lists of circumstantial evidence or negating factors stack up
against each other. Rather, it hinges on whether reasonable
factfinders could have drawn inferences one way or the other
under a given set of circumstances.” Id. This Court evaluates
whether there is an avenue through which a rational factfinder
could find the essential elements of the crime.
C. The Jackson Standard Applied
Appellant originally told the first responder, SSgt Moody,
that he had turned the faucet handle in the tub “to full cold,”
lowered his son into the water, and removed him from the tub
shortly thereafter. Upon questioning by NCIS, Appellant later
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United States v. Norman, No. 14-0524/MC
told criminal investigators that he had turned the faucet handle
to “approximately the 9:00 position,” left the “tub area of the
bathroom” and turned his attention away from TBN for 30 to 45
seconds, then returned, saw TBN “in visible pain and . . .
screaming,” and lifted him out of the tub.
The interplay of four pieces of evidence is at issue in
determining “‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’” Oliver, 70 M.J. at 68 (quoting Jackson, 443
U.S. at 319).
First, at trial the Government established, through the
testimony of Dr. Peck, that a person exposed to hot water would
register “an almost instantaneous sensation of pain,” and that
“a child [would] scream when exposed to very hot water.”
Second, the Government offered evidence demonstrating that
TBN sustained second- and third-degree burns on 35 percent of
his body. 3
3
TBN’s injuries are relevant with respect to the service
discredit element insofar as they shed light on Appellant’s
conduct. The extent of TBN’s burns was a predicate fact assumed
by Dr. Peck in order to provide his opinion on the range of
temperatures and possible duration of TBN’s exposure to the hot
water. Accordingly, it is circumstantial evidence of the
position of the faucet handle, and the length of time that TBN
was left unattended in the bathtub. Notably, SSgt Soli first
notified NCIS of Appellant’s conduct when he observed that TBN’s
injuries were more severe than Appellant’s initial account of
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United States v. Norman, No. 14-0524/MC
Third, at trial, the Government presented evidence of
temperature readings conducted at Appellant’s residence by NCIS.
According to the readings and testimony by an NCIS agent, when
the faucet handle was turned to the 9 o’clock position and left
to run for 30 seconds, the water pooling in the center of the
bathtub reached 115 degrees. The water coming directly out of
the faucet at the 9 o’clock position was 115 degrees. When
turned to the “10 to 11 o’clock position,” the temperature of
the water coming out of the faucet reached 122 degrees. When
turned to the hottest position, almost 12 o’clock, the water in
the center of the tub reached a temperature of approximately 133
to 137 degrees.
Finally, and significantly, Dr. Peck tied together TBN’s
burn injuries and the water temperature readings. Dr. Peck
events suggested. However, 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. This Court has recognized
that an accused’s culpably negligent conduct may be found
service discrediting even where there is no harm to the child.
See United States v. Vaughan, 58 M.J. 29, 36 (C.A.A.F. 2003);
MCM pt. IV, paras. 68a.b.(4), 68a.c.(4) (“Actual physical or
mental harm to the child is not required. The offense requires
that the accused’s actions reasonably could have caused physical
or mental harm or suffering.”). 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. See MCM pt. IV, para.
68a.b. (2012 ed.) In the instant case, as noted, Dr. Peck
relied on the extent of TBN’s injuries to offer his expert
opinion on the temperature of the hot water and TBN’s exposure
time to that water. Such evidence directly bears upon
Appellant’s conduct.
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United States v. Norman, No. 14-0524/MC
offered expert testimony on “the relationship between the
temperature of a burning substance and time of exposure that it
takes to create a third-degree burn,” also known as a “full-
thickness burn.” He stated that he was basing his opinion on a
1940 study conducted on adult males, because there were no
comparable studies on the burn rate of infants as “[i]t would be
unethical” to “repeat these experiments in children.” He
nevertheless opined that, as a general matter, “it would take
less time” to develop a burn on a child’s skin “because the[ir]
skin isn’t [as] thick [so] it doesn’t take as long to produce a
burn that goes all the way through the skin.” He stated that in
order to determine “how long . . . someone ha[s] to be immersed
in hot water before a third-degree burn occurs,” he must first
ascertain “how long they were in the water; . . . [and] how hot
the water is.” Dr. Peck testified that in adults, “as the water
temperature goes much below 125 and certainly below 120 degrees,
that the risk of getting a full-thickness burn diminishes
greatly, because the amount [of time] that you have to be in the
water goes up significantly.”
Dr. Peck testified that at 115 degrees, which was the
temperature of the water with the faucet handle at the 9 o’clock
position, “clearly [exposure] is going to [need to last] much
more than ten minutes” in order to produce a third-degree burn
in an adult. He stated that “for an adult, it takes ten minutes
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United States v. Norman, No. 14-0524/MC
to get a third-degree burn at 120 degrees.” He estimated that
“30 seconds [of exposure] at 130 degrees in an adult [would]
produce a full-thickness burn,” but that he would assume “it
would take less time [to develop a full-thickness burn] in a
child because a child’s skin is thinner.” Dr. Peck was then
asked, consistent with Appellant’s version of events, “[w]ould
it be possible, in your professional medical opinion, for [TBN]
to suffer full thickness burns when exposed to water at a
temperature of 115 degrees for 30 to 45 seconds?,” to which Dr.
Peck responded, “No.” 4
We review this evidence in the light most favorable to the
Government, and only with a view to whether a rational
factfinder could find that Appellant’s conduct was service
discrediting. In light of the preceding evidence, a rational
trier of fact could have concluded that there were alternative
explanations of Appellant’s conduct, other than his statement,
that were more credible and supported by scientific evidence.
Having reached such a conclusion, a rational trier of fact could
have then determined, extrapolating from Dr. Peck’s testimony,
that Appellant left TBN unattended in a tub of running hot water
for a period of time that was longer than 30 to 45 seconds and
4
A second Government witness, Dr. Kathryn Anne Coffman, an
expert in child abuse pediatrics, further opined that TBN’s
exposure to running water at a temperature of 115 degrees was
inconsistent with the extent of TBN’s burns.
21
United States v. Norman, No. 14-0524/MC
less than the ten minutes required for an adult male to receive
comparable burns. A rational trier of fact could have instead
determined that Appellant turned the faucet handle to the
hottest setting and then left his child unattended for 30 to 45
seconds, disregarding TBN’s cries when the hot water made
contact with his skin. Considering these scenarios, the
standard of review is critical. This Court must view “the
evidence in the light most favorable to the prosecution” to
determine whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
Oliver, 70 M.J. at 68 (quoting Jackson, 443 U.S. at 319). In
light of Dr. Peck’s testimony, a rational trier of fact could
conclude 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. 5
Moreover, a rational trier of fact could have further found
this conduct service discrediting because Appellant was a
5
Although we find the evidence here legally sufficient, the
better practice would be for trial counsel to make its theory of
discredit apparent during closing arguments. Here, trial
counsel made no mention of the terminal element during closing
arguments, omitting any mention of SSgt Moody’s testimony or any
other evidence supporting this element, leaving this Court to
evaluate each piece of evidence post hoc, on the basis of a cold
record. As the instant case demonstrates, enumerating the
evidence during closing argument where material evidence is
ultimately excluded, will not only clarify the record on appeal
but will, surely, facilitate the members’ deliberation.
22
United States v. Norman, No. 14-0524/MC
sergeant of the Marine Corps. A rational trier of fact could
reason that the public would expect Appellant, a noncommissioned
officer who had been selected and promoted to the rank of
sergeant, to exhibit competence and responsibility toward
someone 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.”
MCM pt. IV, para. 60.c.(3). Accordingly, we affirm the CCA’s
decision.
CONCLUSION
We hold that Appellant’s conviction for child endangerment
by culpable negligence is legally sufficient. The decision of
the United States Navy-Marine Corps Court of Criminal Appeals is
affirmed.
23