              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                               Before
          M.D. MODZELEWSKI, F.D. MITCHELL, M.K. JAMISON
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         TROY B. NORMAN
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300152
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 10 December 2012.
Military Judge: LtCol Chris J. Thielemann, USMC.
Convening Authority: Commanding Officer, Marine Corps Air
Station, Yuma, AZ.
Staff Judge Advocate's Recommendation: Maj Robert M. Bueno,
USMC.
For Appellant: LT David C. Dziengowski, JAGC, USN.
For Appellee: Maj Crista D. Kraics, USMC.

                           20 February 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of endangering a child in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934. The members
sentenced the appellant to 60 days of confinement, reduction to
pay grade E-1, and a dishonorable discharge. The convening
authority approved the sentence as adjudged.
     The appellant now assigns four errors (AOEs): that the
evidence is factually and legally insufficient; that lay opinion
on the terminal element was admitted in error; that the sentence
to a dishonorable discharge is inappropriately severe; and that
prosecutorial misconduct compelled the appellant’s wife to
invoke her Fifth Amendment rights, thereby depriving the
appellant of an ability to present a defense. After considering
the pleadings and the record of trial, we conclude that the
findings and the sentence are correct in law and fact and that
no error materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                           Background

     This case arose while the appellant lived on board Marine
Corps Air Station Yuma with his wife and infant son. Medical
personnel responded to a 911 call placed from the home and
discovered the infant, then 10 months old, had been severely
burned. Initially, the appellant stated that he had been
cradling his son near the tub when the baby was splashed with
hot water. Subsequently, the appellant gave a statement to law
enforcement in which he explained that he placed his son in the
bathtub facing away from the faucet, with the water running and
the faucet turned to the “9 o’clock” position. The appellant
stated he left the baby in the tub for approximately 30-45
seconds, returned to find the boy on his back, and discovered he
was severely burned upon pulling him out of the tub. The baby
was hospitalized for 50 days, and underwent seven skin grafting
surgeries.

     At trial, evidence was received as to the temperature of
the water at the 9 o’clock, 10 o’clock, and 12 o’clock
positions: sequentially - 115, 122, and 130 degrees. Expert
testimony established that the baby suffered second to third
degree burns to thirty-five percent of his body, including his
back, buttocks, scalp and neck, caused by immersion in scalding
water. Experts disputed that the burns could have been caused
by exposure to 115 degree water for the short period of time as
described by the appellant. Additional facts necessary for the
resolution of particular AOEs are included below.

                  Factual and Legal Sufficiency

     The appellant was convicted of endangering his son
“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

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wit: 2nd degree burns on approximately 35% of his body, which
conduct was of a nature to bring discredit upon the armed
forces.”

     The appellant alleges that the evidence of service
discrediting conduct was factually and legally insufficient. He
also alleges that the military judge abused his discretion in
allowing a Marine staff noncommissioned officer (SNCO) to give
his lay opinion on that same element.

     The test for legal sufficiency is whether any rational
trier of fact could have found that the evidence met the
essential elements of the charged offense, viewing the evidence
in a light most favorable to the Government. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual
sufficiency is whether we are convinced of the appellant’s guilt
beyond a reasonable doubt, allowing for the fact that we did not
personally observe the witnesses. Id. at 325. We find in the
affirmative as to both.

     The appellant contends that the Government was required to
call “a reasonable member of the public” to testify that his
conduct was service-discrediting or, alternatively, that the
trial counsel “should have introduced some evidence that members
of the public . . . were actually aware of the accident and
found it discrediting.” Appellant’s Brief of 30 Sep 2013 at 14.
However, the Government is not required to introduce testimony
that anyone became aware of the conduct, nor is the Government
required to introduce evidence regarding views of the public.
Instead, the responsibility for determining whether an accused’s
conduct would tend to bring discredit on the armed forces rests
with the trier of fact. United States v. Phillips, 70 M.J. 161,
166 (C.A.A.F. 2011).

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are persuaded that a reasonable fact-finder, in
this case the members, could indeed have found all the essential
elements of child endangerment beyond a reasonable doubt.
Furthermore, after weighing all the evidence in the record of
trial and having made allowances for not having personally
observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt as to this charge.

     In a related AOE, the appellant asserts that the military
judge erred by allowing a Marine SNCO to testify that the
appellant’s conduct was service discrediting. The SNCO’s

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testimony, given over defense objection, was that “anybody who
would do that would bring discredit upon themselves, but
especially a Marine, because of the high opinion that we are . .
. held to by the public.” Record at 712. Assuming error in
admitting this lay opinion, we test for prejudice by weighing:
(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 question.
United States v. Byrd, 60 M.J. 4, 10 (C.A.A.F. 2004).

     Here, the Government meets its burden of establishing the
harmlessness. The Government’s case on this specification was
strong: the members had before them ample evidence of the extent
of the injury to the baby, including his pain and suffering, the
hospitalization, and the required surgeries. The members also
had before them evidence that the appellant’s accounts were
implausible and inconsistent with the medical evidence. The
testimony now in issue was of limited materiality and in no way
a focal point of the case. The members did not need the SNCO’s
generic testimony to establish the terminal element; in fact,
they required no testimony at all regarding this element. We
conclude that any error in allowing the SNCO’s testimony was
harmless.

                                  Sentence Severity

     The appellant contends that his sentence to a dishonorable
discharge is inappropriately severe. We disagree. This court
reviews the appropriateness of the sentence de novo. United
States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Sentence
appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he
deserves. United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). We engage in a review that gives “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and the character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamuluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)). We have examined the record of trial and the
parties’ briefs. Applying the law to the facts of this case, in
which an infant was grievously injured due to the appellant’s
culpable negligence, we find the sentence appropriate.

     The final AOE alleging prosecutorial misconduct lacks any
factual foundation in the record of trial.1
1
    Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


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                           Conclusion

     We conclude that the findings and the sentence are correct
in law and fact, and that no error materially prejudicial to the
substantial rights of the appellant exists. Arts. 59(a) and
66(c), UCMJ. The findings and the sentence are affirmed.


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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