                   UNITED STATES, Appellee

                              v.

                   Jose M. RIVERA, Sergeant
                     U.S. Army, Appellant

                         No. 00-0630

                   Crim. App. No.    9701863


    United States Court of Appeals for the Armed Forces


                     Argued February 7, 2001

                     Decided May 2, 2001

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ.,
joined.


                           Counsel

For Appellant: Captain Sean S. Park (argued); Colonel Adele
H. Odegard, Lieutenant Colonel David A. Mayfield, and Major
Jonathan F. Potter (on brief).

For Appellee: Captain William J. Nelson (argued); Colonel
David L. Hayden, Lieutenant Colonel Edith M. Rob, and
Captain Daniel G. Brookhart (on brief).


Military Judge:   James J. Smith
United States v. Rivera, 00-0630/AR


Judge BAKER delivered the opinion of the Court.

      On August 7 and November 20-21, 1997, appellant was

tried by a general court-martial at Fort Bragg, North

Carolina.   Contrary to his pleas, appellant was found

guilty, by a military judge sitting alone, of two

specifications of assault consummated by a battery, in

violation of Article 128, Uniform Code of Military Justice,

10 USC § 928.   Appellant was sentenced to a bad-conduct

discharge, confinement for 30 days, total forfeitures, and

reduction to Private E-1.   The convening authority approved

the adjudged sentence.

      On June 16, 2000, the Court of Criminal Appeals

affirmed the findings of guilty and the sentence.   We

granted review on November 8, 2000, of the following

issues:

I.    WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT
      THE FINDING OF GUILTY TO SPECIFICATION 1 OF THE CHARGE
      (ASSAULT CONSUMMATED BY A BATTERY ON A CHILD UNDER THE
      AGE OF SIXTEEN) WHEN THE GOVERNMENT FAILED TO PROVE
      BEYOND A REASONABLE DOUBT THAT THE AFFIRMATIVE DEFENSE
      OF PARENTAL DISCIPLINE DID NOT RENDER APPELLANT’S
      ACTION LAWFUL.

II.   WHETHER ONE PUNCH IN THE STOMACH TO A FOURTEEN-YEAR-
      OLD MALE, WITHOUT ANY EVIDENCE OF ANY PHYSICAL INJURY
      OR TRAUMA INCLUDING BRUISING, WELTING, OR BLEEDING,
      OVERCOMES THE AFFIRMATIVE DEFENSE OF PARENTAL
      DISCIPLINE.




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United States v. Rivera, 00-0630/AR


     We hold, based on the evidence of record, that a

rational factfinder could have found beyond a reasonable

doubt that appellant was guilty of assault consummated by a

battery on a child and that such assault was not justified

under the parental-discipline defense.   We further

conclude, as a matter of law, that a single punch can,

without evidence of actual physical harm, overcome the

affirmative defense of parental discipline, where as here,

the trier of fact found beyond a reasonable doubt that the

force used created a substantial risk of serious bodily

injury and was unreasonable under the circumstances.

                              FACTS

     Although appellant was convicted of assault

consummated by a battery against both his step-daughter and

his step-son, at issue is only appellant’s assault of his

step-son, Edward. At the age of 13, Edward brought home a

report card with several Ds and Fs.   Immediately after

reviewing the report card, appellant “started screaming”

and told Edward that he needed to “get [his] stuff

straight.”   Edward testified at trial that appellant then

“got mad and punched me in my stomach and I fell down....”

Edward testified that he “stayed down” until appellant

“stopped talking” and left.




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United States v. Rivera, 00-0630/AR


                         DISCUSSION

     Appellant argues that based on the Government’s proof,

no reasonable factfinder could find beyond a reasonable

doubt that the purpose and degree of force used by

appellant moved on a continuum from reasonable parental

discipline to criminal conduct.   Because the test of legal

sufficiency under specification 1 of the Charge is

intertwined with resolution of Issue II, we treat the

questions together.

     "The test for" legal sufficiency "is whether,

considering the evidence in the light most favorable to the

prosecution, a reasonable factfinder could have found all

the essential elements beyond a reasonable doubt."     United

States v. Turner, 25 MJ 324 (CMA 1987)(citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

     In the present case the Government had the burden of

presenting the factfinder with proof beyond a reasonable

doubt that appellant attempted "with unlawful force or

violence to do bodily harm to another person, whether or

not the attempt...is consummated."    Art. 128 (a).   Because

appellant put in issue the parental-discipline defense, the

Government had the additional burden of refuting beyond a

reasonable doubt appellant’s defense of parental

discipline.


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United States v. Rivera, 00-0630/AR


      Appellant argues that he used force with appropriate

motive, to discipline his child for poor performance in

school.   He also argues that the force used was necessary

parental discipline and that his single blow did not cause

substantial risk of serious bodily injury.           Appellant

argues this is evidenced by the absence of any physical

harm to Edward.1     Edward did not receive any welts, bruises,

or other marks, and he did not go to a doctor or to the

hospital.    The record does not reflect any mental distress.

Edward did not visit a mental health professional, advise

his friends of mental trauma, or convey to the trier of

fact mental distress at the time he testified that he was

punched in the stomach and fell down.2

      In United States v. Brown, 26 MJ 148, 150-51

(1988), and United States v. Robertson, 36 MJ 190,

191-92 (1992), this Court applied the standards of the

Model Penal Code in determining whether the Government

overcame appellant’s defense of parental discipline.

Section 3.08 (1), Model Penal Code (ALI 1985), reprinted in



1
  There was no testimony as to the condition of his stomach immediately
after Edward was struck.
2
  The Government has not relied on mental distress as the predicate for
prosecution. As a result we need not determine here what degree of
mental distress is so unreasonable or extreme as to overcome an
affirmative defense of parental discipline, and we decline to do so in
the abstract.


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United States v. Rivera, 00-0630/AR


ALI Model Penal Code and Commentaries 136 (1985), states

that force may be used by parents or guardians when

     (a) the force is used for the purpose of safeguarding
or promoting the welfare of the minor, including the
prevention or punishment of his misconduct; and

     (b) the force used is not designed to cause or known to
create a substantial risk of causing death, serious bodily
injury, disfigurement, extreme pain or mental distress or
gross degradation....



     As a result, both the Government and appellant have

argued this case on the basis of the Model Penal Code.

Because this Court’s conclusions in Robertson and Brown

relied, in part, on the existence of numerous blows as well

as physical evidence of harm, and because the parties in

this case do not contest that there was only one punch (of

disputed force) to the stomach, for which there was no

documented medical manifestation, this case tests anew the

scope of the parental-discipline defense.

     Jurisprudence in the area of parental discipline must

be developed with caution.   In this area of law there is an

inherent tension between the privacy and sanctity of the

family, including the freedom to raise children as parents

see fit, and the interest of the state in the safety and

well-being of children.   The affirmative defense of

parental discipline resides at a crossroad of these two



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United States v. Rivera, 00-0630/AR


significant interests.    Caution is also advisable because

society accepts some, but not all, forms of corporeal

punishment.    It is the duty of appellate courts to say what

the law is; not to make moral judgments about what the law

should be.    Moreover, the enormous variety of variables

that affect human interaction and which place the family at

the core of a child’s social interaction cautions against

black letter rules of conduct.

     One need not look to the Bible, Dickens, or Twain to

understand that parental discipline is as necessary as it

is varied and that parental discipline has always had a

physical component.    We need only look to our own

experience.    Experience also teaches that a finger to the

eye, or a slap to the head, can cause as much harm as a

closed fist.    Punches can be playful or even affectionate.

For these reasons, we eschew a per se rule.

     Brown established a test of contextual reasonableness

in determining when proper parental motive turns to

criminal anger, or necessary force becomes a substantial

risk of serious bodily harm.    Clearly what is reasonable

between a father and his 13-year-old son may be

unreasonable with an infant.    However, human experience

also teaches that a single punch to the torso or head can

kill or cause serious bodily injury.    This conclusion does


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United States v. Rivera, 00-0630/AR


not rest on specialized medical knowledge, but rather on

the everyday "common sense and [their] knowledge of human

nature and of the ways of the world" expected of triers of

fact, who have been to the playground, trained in the

combat arms, or read the sports page.   United States v.

Oakley, 11 USCMA 187, 191, 29 CMR 3, 7 (1960) (Ferguson,

J.,   concurring).

      We expect a lot of our servicemembers, and sometimes

we expect more of them than of their civilian counterparts.

For instance, because members of the Armed Forces are

accountable to their superiors in ways that a civilian is

not, this Court has concluded that the probability of

truthfulness for a military witness is greater than one

would find with a comparable civilian witness.   United

States v. Wood, 25 MJ 46 (1987).   We expect that military

deployments and rotations will impose upon military

families stress not found in most civilian occupations.      At

the same time, we expect our military members to take care

of their families.   We also expect servicemembers to

understand and apply discriminate use of force, and to

understand that a Soldier, Sailor, Airman, or Marine wields




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United States v. Rivera, 00-0630/AR


an extraordinary potential for force based on his or her

special fitness, background, and training.3

      As a result, we hold that in the context of this case

the members could have properly concluded that one closed-

fist punch to the stomach can cause substantial risk of

serious bodily injury as contemplated by this Court’s

decisions in Brown and Robertson.         We also hold that the

burden of establishing substantial risk can be met without

physical manifestation of actual harm.4          A rule that

requires physical evidence of injury invites one blow too

many.

      While we do not adopt a per se rule involving closed

fists, as some states have, we recognize that a closed-fist

punch bears certain burdens, which carry forward through

case law.    Use of a closed fist does not prove ill motive;

however, it may more readily allow the factfinder to infer

ill motive and undermine a claim of proper intent.             And

while use of a closed fist does not per se risk serious

injury, as compared to a slap or a spank, a fist amplifies




3
   This same rationale would apply to a civilian with comparable
fitness, background, and training.
4
 Just as a person firing a weapon and missing still causes a substantial
risk of serious bodily injury for which there will be no physiological
evidence, a blow to the head or torso that one time fortuitously fails
to impact a vital organ or the temple, nevertheless risks serious
bodily injury the next time.


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United States v. Rivera, 00-0630/AR


force magnifying the likelihood that a punch will be found

to create a substantial risk of serious bodily injury.

     Having concluded that use of a single punch to the

stomach can be legally sufficient to prove an assault upon

a child, what is left to decide is whether in this case,

applying Jackson v. Virginia, 443 U.S. at 319, the

prosecution proved beyond a reasonable doubt that

appellant’s motive was improper or that the force he used

was unreasonable under the circumstances.    RCM 916(b),

Manual for Courts-Martial, United States (2000 ed.).

     It is beyond peradventure of doubt that a very bad

report card is an appropriate predicate for parental

discipline.   In this case, the record also documents

appellant’s desire to improve Edward’s scholastic

performance. We need not look into appellant’s psyche to

measure the degree to which he was also motivated by anger

or whether the trier of fact could have reasonably

concluded his motive was more anger than discipline.    For

appellant’s claim is defeated by our conclusion that the

members could have properly found that the force he used

was unreasonable.   Three facts are critical.   Edward was

struck with a closed fist; he was punched.    He was struck

in the stomach.   And, based on Edward’s testimony, and

applying Jackson v. Virginia, 443 U.S. at 319, the members


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United States v. Rivera, 00-0630/AR


could reasonably conclude that he was struck with

sufficient force so as to fall down, and thus with

sufficient force so as to cause a substantial risk of

serious bodily injury when punched.   And it was reasonably

within the common knowledge of the members that a blow to

the stomach that is strong enough to knock a 13-year-old

down creates a substantial risk of serious bodily injury.

     The decision of the United States Army Court of

Criminal Appeals is affirmed.




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