              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                    GRIFFIN J. CHRASTINA
    INTELLIGENCE SPECIALIST SEAMAN RECRUIT (E -1), U.S. NAVY

                           NMCCA 201200464
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 13 July 2012.
Military Judge: CAPT Tierney Carlos, JAGC, USN.
Convening Authority: Commander, Navy Region Europe, Africa,
Southwest Asia.
Staff Judge Advocate's Recommendation: CDR J.A. Link, JAGC,
USN.
For Appellant: LT David Dziengowski, JAGC, USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                           25 February 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

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

WARD, Senior Judge:

     A military judge sitting as general court-martial convicted
the appellant of involuntary manslaughter and aggravated assault
of a child in violation of Articles 119 and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 919 and 928.1 The military judge

1
  This case is the second of the appellant’s two general courts-martial
following his successful pretrial severance motion. In the first trial,
Chrastina I, a panel of members with enlisted representation convicted the
appellant, contrary to his pleas, of indecent acts under Article 120, UCMJ,
sentenced the appellant to fifteen years’ confinement and a
dishonorable discharge. In accordance with a pretrial
agreement, the convening authority (CA) suspended all
confinement in excess of eleven years and, except for the
dishonorable discharge, ordered the sentence executed.

     The appellant raises five assignments of error.2

                            Factual Background

     This is an infant death case. Assigned to a joint command
in southern England, the appellant lived off base with his wife
and the couple’s five-week-old baby girl, Madeline. Two weeks
before her death, the appellant was home alone with Madeline.
According to his providence inquiry, after changing her diaper
and attempting to swaddle her, he applied “too much pressure
against her while she was on her side,” and then “heard a pop.”
Record at 667. The appellant neither sought medical attention
for Madeline nor said anything when his wife came home. A post-
mortem examination conducted several weeks later revealed this
“pop” was the sound of three of Madeline’s ribs breaking.
     Approximately two weeks later, the appellant was again home
alone with Madeline. In a sequence of events he described to
the military judge, he first noticed sounds from Madeline

and sentenced him to be reduced to pay grade E-1. In the instant case,
Chrastina II, the appellant elected trial by military judge alone and pleaded
guilty to aggravated assault of a child and negligent homicide, the latter in
violation of Article 134, UCMJ. After the military judge accepted the
appellant’s guilty pleas, a contested trial proceeded on the greater offense
of involuntary manslaughter.
2
  (1) That the appellant’s confinement conditions at U.S. Air Force
Correctional Facility at Royal Air Force Station Lakenheath, England were
unlawful under Article 55, UCMJ, and the Eighth Amendment because the
appellant was deprived of his right to counsel and repeatedly threatened and
harassed by guards;

(2) That the military judge erred when he admitted expert testimony over
defense objection;

(3) That the evidence for the involuntary manslaughter conviction is legally
and factually insufficient;

(4) That the appellant was deprived of his constitutional right to
confrontation when the military judge denied his request to explore bias of
his wife (raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982); and

(5) That the appellant was deprived of a fair and impartial military judge
when the same judge presided over both trials in Chrastina I and II (raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982)).

                                      2
indicating she had spit up and was choking. Id. at 682-83. He
picked her up and took her to the changing table to have a flat
surface. He explained that he initially tried to perform rescue
breathing, but since she still struggled to breathe, he
attempted to “clear her airway.” Id. at 682. He then raised
his hand past his ear and struck her twice on the abdomen with
the “butt of his hand.” Id. at 682, 684. He finally called
British emergency services and reported that his daughter was
not breathing and appeared to be choking.

     British paramedics responded within minutes to find
Madeline in full cardiac arrest with a clear airway. Id. at
1082-84. They quickly evacuated her to a nearby hospital, but
doctors were unable to re-establish her heartbeat and she was
subsequently declared dead. The attending pediatrician observed
a catastrophic injury to her abdomen, causing it to fill with
air. At a deposition later played at trial, the pediatrician
testified that Madeline was effectively dead upon arrival. Id.
at 1126, 1130. Throughout the time when paramedics were on
scene at the residence and later at the emergency room, the
appellant never mentioned to anyone that he struck Madeline’s
abdomen.

     British authorities subsequently performed two post-mortem
examinations. The first revealed that Madeline suffered a
perforation within the small intestine not caused by any natural
means. The second examination, conducted by Dr. Nathaniel Cary,
a forensic pathologist, also revealed a perforation in the small
intestine. Dr. Cary concluded that the cause of death was
severe blunt force trauma to the abdomen. Id. at 1319-20.
Additional analysis was conducted by a histopathologist,
Professor Archibald Malcolm. Professor Malcolm concluded that
Madeline had also sustained three rib fractures caused by
significant force three weeks prior to her death. Prosecution
Exhibit 12 at 2, 6.

     British police conducted an initial investigation. About a
week following Madeline’s death, they questioned the appellant
and he again failed to mention that he had struck Madeline.
Record at 822; PE 1. After the post-mortem examinations,
British police arrested the appellant and his wife for suspected
infanticide and interrogated both at length. Although police
confronted him with the post-mortem findings, the appellant
refused to admit to striking Madeline or squeezing her several
weeks earlier. Record at 835-41. The Naval Criminal
Investigative Service (NCIS) eventually assumed investigative
jurisdiction and re-interrogated the appellant. After a lengthy

                                3
interrogation, the appellant finally admitted to squeezing
Madeline while swaddling her, and admitted to striking her twice
on the abdomen. Id. at 928-34.

     During the guilty plea inquiry, the appellant acknowledged
that his blows to Madeline’s abdomen caused her death. Id. at
682, 692, 696-98. Furthermore, he admitted his use of force was
excessive, not what a reasonable person would have done, and
that he would not have struck her had he exercised due care.
Id. at 686-94. In light of his guilty plea to negligent
homicide, the only remaining issue in dispute for the greater
offense of involuntary manslaughter was whether he acted with
culpable negligence.3

                                  Analysis

1. Legal and Factual Sufficiency

     The appellant argues that his involuntary manslaughter
conviction is legally and factually insufficient because his
actions “amount[ed] to nothing more than simple negligence” in
an attempt to save his daughter’s life. Appellant’s Brief of 15
Apr 2013 at 39. We disagree.

     We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citation omitted). We review factual sufficiency by
determining whether “after weighing all the evidence in the
record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, [we are] convinced of the
appellant’s guilt beyond a reasonable doubt.” United States v.
Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J.
348 (C.A.A.F. 2007) (citations omitted).
      Despite his current claims that he thought Madeline was
choking, British paramedics at the scene found her airway clear
with no signs of any vomitus. Record at 1083. The appellant
also admitted to NCIS agents that two weeks before Madeline’s

3
  The military judge explained to the appellant that his “plea of guilty
admitted every element of involuntary manslaughter except that the act
amounted to culpable negligence and that [Madeline] was a child under the age
of 16,” although the latter fact was not in dispute. Record at 721.


                                      4
death he squeezed her out of frustration so hard he heard a
“pop.” Id. at 928-33. Even with this stark reminder of her
fragility, two weeks later he struck her so hard as to rupture
her small intestine and cause her death. Id. at 669-70. He
never told anyone that day, either at the scene or at the
hospital, what he had done. We are convinced beyond a
reasonable doubt that the appellant acted with a “culpable
disregard for the foreseeable consequences” of striking
Madeline. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part
IV, ¶ 44c(2)(A)(1). Furthermore, considering the evidence in a
light most favorable to the prosecution, we are convinced that a
reasonable fact-finder could have found the same. Day, 66 M.J.
at 173-74.

2. Expert Testimony of Doctor Cary

     During the contested portion of trial, the Government
called Dr. Nathaniel R. Cary, the forensic pathologist who
conducted the autopsy of Madeline. When trial counsel offered
him to the court as an expert in forensic pathology, trial
defense counsel questioned Dr. Cary on his familiarity with and
use of biomechanics in general, and with respect to the autopsy
of Madeline. Record at 1286-90. Trial defense counsel then
objected to any testimony by Dr. Cary on the level of force
involved due to the lack of any familiarity with biomechanics or
biomechanical consultation. Id. at 1290.4 The military judge
overruled the defense objection, finding that any perceived
shortcomings in these areas could be adequately explored on
cross-examination. Dr. Cary then explained that he typically
classified force into three categories: mild, moderate and
severe; and opined that Madeline’s fatal injuries were the
result of “severe force.” Id. at 1315-18.

     The appellant argues that the military judge erred as Dr.
Cary’s lack of qualifications in biomechanics and failure to
consult with a biomechanical engineer rendered his opinion on
the level of force involved unreliable. We review a military
judge’s ruling on the admissibility of expert testimony for an
abuse of discretion. United States v. Houser, 36 M.J. 392, 397
(C,M.A. 1993). In performing the function of “gatekeeper” in
this area, a military judge considers “(1) the qualifications of
the expert; (2) the subject matter of the expert testimony; (3)
the basis for the expert testimony; (4) the legal relevance of

4
  According to Dr. Cary, biodynamics or biomechanics is a separate and
distinct field from forensic pathology. It is the quantitative “study of the
application of force on the body.” Record at 1287.


                                     5
the evidence; (5) the reliability of the evidence; and (6) that
the probative value of the testimony outweighs other
considerations outlined in M.R.E. 402.” United States v.
Billings, 61 M.J. 163, 166 (C.A.A.F. 2005) (citing Houser, 36
M.J. at 397).

     After examining Dr. Cary’s answers during voir dire and the
remainder of his testimony, we conclude that the military judge
did not abuse his discretion. Dr. Cary testified that his field
of forensic pathology “obviously incorporates considering forces
and the [force’s] involvement in injury.” Record at 1288. In
addition to quantifying force “in a simple three point scale of
mild, moderate, and severe,” he also testified that he places
force in context of whether “forces are likely to be developed
in an immobile infant” and what forces are associated with
particular acts. Id. at 1289. He explained that his
assessments of force are “custom and practice within forensic
pathology,” and he provided contextual examples on what
constitutes mild, moderate, or severe force. Id. at 1289-90,
1317-20. During cross-examination, he testified that a
biomechanical study in the case of Madeline “would not be the
norm” because an “immobile infant is not going to develop this
injury themselves.” Id. at 1382-83. Trial defense counsel
offered no treatise, study, or data impeaching Dr. Cary’s
opinion as unreliable for lack of biomechanical consultation.5
Accordingly, we find no abuse of discretion by the military
judge.

3. The Appellant’s Treatment in Confinement
5
  During the defense case, trial defense counsel called Dr. Ophoven, a
forensic pediatric pathologist from the United States. She agreed with Dr.
Cary on the cause of death, blunt force trauma. However, she testified that
based on her review she could not render an opinion on the level of force
behind the blunt force trauma because “the amount of force required to cause
damage in the bowel has many variables.” Record at 1466. Furthermore, she
testified that she had “never heard” of Dr. Cary’s classifications of force
as mild, moderate or severe. Id. at 1469. She also testified that generally
when levels of force involved are at issue, she would seek the expertise of
someone in biomechanics to determine “whether or not the event was
plausible.” Id. at 1471. We are not persuaded that Dr. Ophoven’s testimony
rendered Dr. Cary’s opinion on the level of force unreliable. Trial defense
counsel never asked whether Dr. Ophoven agreed with Dr. Cary’s assessment
that biomechanical consultation was unnecessary in the instant case because
of the lack of any competing forces involved with an immobile infant.
Although Dr. Ophoven expressed a preference for biomechanical engineering
consultation in general, she offered no explanation how any such consultation
was necessary to determine the level of force involved in this case. We
agree with the military judge that these were matters more appropriate for
cross-examination.


                                      6
          Following trial, the appellant was initially confined
at the U.S. Air Force Correctional Facility (USAF-CF) located at
Royal Air Force Station (RAF) Lakenheath, England. After
approximately six weeks, he was transferred to the U.S.
Disciplinary Barracks at Fort Leavenworth, Kansas. During his
brief incarceration at USAF-CF, he alleges several instances of
mistreatment by guards or officials there that violated his
rights under the Eighth Amendment and Article 55, UCMJ. We
disagree. His principal complaints are that guards seized his
privileged documents folder during a search of his cell and that
prison officials at his Discipline and Adjustment Board (D & A
Board) threatened to vacate the suspended portion of his
sentence. He also alleges that the D & A Board ultimately
vacated 480 days of “good conduct time” that he would have
accrued over the course of his sentence. For relief, he urges
us to disapprove 480 days of confinement from his approved
sentence.

     Even assuming that the appellant’s allegations are true, we
are not persuaded by his claims of “cruel and unusual”
punishment. To be viable, an Eighth Amendment/Article 55, UCMJ,
claim must satisfy both an objective and subjective component.
United States v. White, 54 M.J. 469, 474 (C.A.A.F. 2001).
“First, there is an objective component, where an act or
omission must result in the denial of necessities and is
‘objectively, sufficiently serious.’” Id. (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). Second, there must exist
subjectively a “culpable state of mind” on behalf of a
government agent. Id. This culpable state of mind is a
“‘deliberate indifference to inmate health or safety.’” Id.
(quoting Farmer, 511 U.S. at 832). Government actors’
indifference is evidenced by continuing to act despite the harm
or risk of harm to the inmate. United States v. Sanchez, 53
M.J. 393, 396 (C.A.A.F. 2000). Intimidation, threats, or
ransacking a prisoner’s cell are not per se Eighth Amendment
violations. White, 54 M.J. at 474. We review de novo whether
the treatment asserted by the appellant constitutes “cruel and
unusual treatment” under the Eighth Amendment and Article 55,
UCMJ. Id. at 471.

     Undertaking an objective analysis, we find that the
appellant’s allegations, if true, did not deny him any “life
necessities.”6 We note that he “regularly communicated with his
6
  Cf. Hope v. Pelzer, 536 U.S. 730 (2002) (finding that handcuffing a
shirtless inmate outside to a hitching post while denying him adequate water
and causing a severe sunburn resulted in an Eighth Amendment violation);

                                      7
trial defense counsel” after the court-martial. Appellant’s
Brief at 23. Moreover, the crux of the appellant’s complaint of
“psychological harm” stems from the alleged threats by officials
at the USAF-CF to vacate 480 days “good time credit” and vacate
his suspended sentence. But nowhere in the record is there any
sign that suspended punishment was actually vacated. Likewise,
there is no evidence that any “good time credit” was actually
vacated.7 The record similarly contains no evidence that the
appellant sought or was treated for any realized physical or
mental condition stemming from these alleged incidents.
Consequently, we conclude that the appellant has failed to meet
his burden of establishing a violation of his rights under
Article 55, UCMJ and/or the Eighth Amendment.

4. Remaining Assignment of Errors

     Having reviewed the record, we find no merit in the
appellant’s remaining assignment of errors. United States v.
Clifton, 35 M.J. 79 (C.M.A. 1992).

                                 Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

     Judge MCFARLANE AND Judge MCDONALD concur.

                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009) (denial of meals); Mandel v.
Doe, 888 F.2d 783 (11th Cir. 1989) (denial of medical attention); Washington
v. Dugger, 860 F.2d 1018 (11th Cir. 1988) (denial of medical attention).
7
  On 15 Aug 2013, we granted the appellant’s Nonconsent Motion to Attach.
However, these additional materials offered by the appellant fail to
substantiate whether the alleged threats to remove the appellant’s credit for
“good time” or vacate his suspended sentence ever materialized.


                                      8
