                        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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United States v. Norman, No. 14-0524/MC


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:


                                  6
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



                                   8
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.

                                 9
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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United States v. Norman, No. 14-0524/MC


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


                                11
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.”

                                    12
United States v. Norman, No. 14-0524/MC


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


                                   14
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).


                                 16
United States v. Norman, No. 14-0524/MC


     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

                                18
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.

                                19
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.

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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.



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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.




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