                       UNITED STATES, Appellee

                                    v.

                     Rodger J. DAY, Airman Basic
                      U.S. Air Force, Appellant

                              No. 07-0690

                         Crim. App. No. 36423

       United States Court of Appeals for the Armed Forces

                       Argued January 15, 2008

                        Decided April 1, 2008

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.


                                 Counsel

For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Ryan N. Hoback (argued); Colonel Gerald
R. Bruce, Major Matthew S. Ward, and Major Donna S. Rueppell (on
brief).

Military Judge:   Mary M. Boone




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Day, No. 07-0690/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried before a general court-martial with

members at Little Rock Air Force Base, Arkansas.   Contrary to

his pleas, he was convicted of making a false official

statement, reckless endangerment, and obstructing justice, all

in violation of Articles 107 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 907, 934 (2000).   The adjudged and

approved sentence included a bad-conduct discharge, confinement

for ninety days, and forfeiture of all pay and allowances.     The

United States Air Force Court of Criminal Appeals affirmed.

United States v. Day, No. ACM 36423, 2007 CCA LEXIS 202, 2007 WL

1732431 (A.F. Ct. Crim. App. May 9, 2007) (unpublished).      On

Appellant’s petition we granted review of the following

question:

     WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN
     APPELLANT’S CONVICTION OF CHARGE I AND ITS SPECIFICATION,
     FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, WHERE THE
     STATEMENTS WERE NOT “OFFICIAL” STATEMENTS.

Based on the reasoning below, we hold that although the

statements made by Appellant to the on-base emergency medical

personnel were “official” under Article 107, UCMJ, those made to

the civilian 911 operator were not.    Nonetheless, for the

reasons discussed below, we affirm.




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United States v. Day, No. 07-0690/AF


                              FACTS

     The lower court set forth the following facts relevant to

the granted issue:

          The appellant, his wife, and two children lived
     in base housing at Little Rock Air Force Base, (LAFB)
     Arkansas. On 26 September 2003, the appellant was at
     home with the children while his wife went out. The
     appellant put the children to bed and then went to bed
     shortly thereafter. At approximately 0400 hours on 27
     September 2003, O.J.H.D. awoke the appellant. The
     appellant got up, went into O.J.H.D.’s room, changed
     his diaper, applied paste to his son’s diaper rash,
     and propped a bottle in his mouth using a teddy bear
     found in the crib to do so. In addition, the
     appellant tucked O.J.H.D. in his crib with blankets
     (including a quilt) before going back to his room to
     go to sleep. The appellant woke up at about 0900
     hours on 27 September 2003. He noticed his son had
     not awakened him between 0400 and 0900 hours. This
     was unusual because normally O.J.H.D. would awaken the
     appellant sometime during those hours. When the
     appellant checked on his son, he found him lying still
     on his back with his mouth and nose covered by the
     quilt. According to the appellant’s written
     statement, he took his son out of the crib, went to
     the living room, and started checking him for signs of
     life. He then changed his son’s diaper and got
     dressed before calling 911 for help. He took
     approximately 45 minutes between the time he first
     noticed his son lying motionless and the time he
     called 911. According to the appellant, he tried to
     revive his son via CPR before calling 911, but was
     unable to do so.

          The appellant informed the 911 dispatcher, Ms.
     E.M., he found his son lying face down, his lips were
     blue, and he was not moving. Ms. E.M. instructed the
     appellant how to perform CPR on his infant son. The
     appellant continued to perform CPR on O.J.H.D. until
     the fire department arrived. The appellant told Mr.
     J.T. and Mr. W.P., firemen from the LAFB Fire
     Department, he found his son face down in the crib.
     The firemen began performing CPR on the appellant’s
     son. Once the paramedics arrived, O.J.H.D. was


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United States v. Day, No. 07-0690/AF


       transported by ambulance to a local off base hospital.
       Unfortunately, O.J.H.D. could not be saved and was
       declared dead at 0953 hours on 27 September 2003.1

2007 CCA LEXIS 202, at *2-*4, 2007 WL 1732431, at *1 (footnotes

omitted).    Appellant’s statements to the dispatch operator and

the responding firemen formed the basis of the offense charged

under Article 107, UCMJ.2

                             DISCUSSION

       The test for legal sufficiency of the evidence is 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.

Turner, 25 M.J. 324, 324 (C.M.A. 1987).    This Court’s assessment

of an appellant’s guilt or innocence for legal sufficiency is




1
    At the time, Appellant’s infant son was nine weeks old.
2
    The specification under Charge I reads as follows:

       Specification: In that AIRMAN BASIC RODGER J. DAY,
       United States Air Force, 314th Civil Engineer
       Squadron, Little Rock Air Force Base, Arkansas, did,
       at or near Little Rock Air Force Base, Arkansas, on
       divers occasions, on or about 27 September 2003, with
       intent to deceive, make to Mr. Jan Edrick Tan, Mr.
       William Powell, and Ms. Elaine Mayberry an official
       statement, to wit: that on 27 September 2003, Airman
       Basic Rodger J. Day found his son, Owen Jasper Hosford
       Day, lying face down in his crib, which statement was
       false in that Airman Basic Rodger J. Day found his
       son, Owen Jasper Hosford Day, lying face up in his
       crib, and was then known by said Airman Basic Rodger
       J. Day to be so false.

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United States v. Day, No. 07-0690/AF


limited to the evidence presented at trial.   See United States

v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

     Appellant argues that the statements made were not

“official” statements within the meaning of Article 107, UCMJ.

First, the statements were made to a civilian.    Second, they

were made when he was in an off-duty military status.    And

third, they did not relate to his military duties.   In support

of his argument, Appellant points to the Manual for Courts-

Martial, United States pt. IV, para. 31.c.(1) (2005 ed.) (MCM),

which states in relevant part, “[O]fficial statements include

all documents and statements made in the line of duty.”

     Article 107, UCMJ, states:

     Any person subject to this chapter who, with intent to
     deceive, signs any false record, return, regulation,
     order, or other official document, knowing it to be
     false, or makes any other false official statement
     knowing it to be false, shall be punished as a court-
     martial may direct.

This article has been interpreted in light of the Supreme

Court’s analysis of its federal analogue, 18 U.S.C. § 1001

(2000).   Specifically, this Court analogized the meaning of

“official” with the language of 18 U.S.C. § 1001 prohibiting any

false statement made concerning “any matter within the

jurisdiction of any department or agency of the United States,”

as interpreted liberally by the federal courts.   United States




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United States v. Day, No. 07-0690/AF


v. Jackson, 26 M.J. 377, 378 (C.M.A. 1988) (citation and

quotation marks omitted).

     At the same time, Article 107, UCMJ, and 18 U.S.C. § 1001

are not perfectly congruent.   “In fact, this Court has

recognized that the scope of Article 107 is more expansive than

its civilian counterpart, because ‘the primary purpose of

military criminal law —- to maintain morale, good order, and

discipline -- has no parallel in civilian criminal law.’”

United States v. Teffeau, 58 M.J. 62, 68-69 (C.A.A.F. 2003)

(citations omitted).   For example, in United States v. Harrison,

26 M.J. 474, 476 (C.M.A. 1988), statements made to a battalion

personnel actions center clerk regarding the appellant’s pay

inquiry were found to be official due to the appellant’s

admission that they “were related to [the clerk’s] job.”

     With this legal backdrop we turn to Appellant’s three

arguments.   Regarding Appellant’s first distinction, the fact

that the statements were made to a civilian or a military member

is not dispositive of their official nature.   Rather, the

critical distinction is not whether the recipient of a statement

is civilian or military, but whether the statements relate to

the official duties of either the speaker or the hearer, and

whether those official duties fall within the scope of the

UCMJ’s reach.   Thus, in Teffeau, this Court found that the

appellant’s statements to civilian law enforcement officers were


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United States v. Day, No. 07-0690/AF


official because they “bore a direct relationship to Appellant’s

duties and status as a Marine Corps recruiter.”   Teffeau, 58

M.J. at 69.

     For similar reasons, Appellant’s off-duty status is not

determinative in this case; and Appellant’s effort to

distinguish Teffeau by correctly noting that his statements did

not relate to his military duties is not persuasive.    False

official statements are not limited to line of duty statements.

This principle is reflected in this Court’s case law, which has

approached the issue from the perspective of both the hearer and

the speaker.   See generally United States v. Arthur, 8 C.M.A.

210, 210-11, 24 C.M.R. 20, 20-21 (1957); United States v.

Cummings, 3 M.J. 246, 248 (C.M.A. 1977).3

     There are any number of determinations made outside of a

servicemember’s particular duties that nonetheless implicate

official military functions, and thus the proscription against

false official statements.   For example, under the Federal Tort

Claims Act, 28 U.S.C. §§ 2671-2672 (2000), determinations made

regarding a servicemember’s entitlements are official as are

statements implicating the government’s liability.   Teffeau, 58

M.J. at 68 n.3.


3
  In both Arthur and Cummings, the Court found that the
statements made were unofficial due to the lack of a
governmental function, but were analyzed from the standpoint of
the recipients.

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United States v. Day, No. 07-0690/AF


     Applying this legal framework to the present facts and in

light of the purposes of Article 107, UCMJ, Appellant’s

statements were appropriately determined to be false.    They were

also official, in so far as they were made to civilian personnel

who were members of the base fire department charged with

performing an on-base military function.     These personnel were

providing on-base emergency services pursuant to the commander’s

interest in and responsibility for the health and welfare of

dependents residing in base housing over which he exercised

command responsibility.

     This is evident in the case of the firemen.     However, a

closer question is presented as to whether Article 107, UCMJ,

reaches the statement made to the civilian off-base 911 dispatch

operator.   On this record the evidence is not sufficient for us

to conclude that the statements to the 911 operator were

official, but this conclusion does not affect the finding of

guilt as to the charge and specification.4    In affirming

Appellant’s conviction for the statements made to the emergency

responders, we are confident that without the additional




4
  In theory, statements made to an off-base 911 operator might
implicate Article 107, UCMJ, in situations where, among other
things, there is a predictable and necessary nexus to on-base
persons performing official military functions on behalf of the
command.

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United States v. Day, No. 07-0690/AF


statement made to the 911 operator, the sentence adjudged and

approved would have been the same.5

                            DECISION

     For the reasons stated above, the decision of the United

States Air Force Court of Criminal Appeals is affirmed, except

for the words “and Ms. Elaine Mayberry” contained in the

specification under Charge I.




5
  In the specification at issue, the 911 operator is Ms. Elaine
Mayberry.

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