                       UNITED STATES, Appellee

                                    v.

                  Joshua K. PLANT, Staff Sergeant
                     U.S. Air Force, Appellant

                              No. 15-0011

                         Crim. App. No. 38274

       United States Court of Appeals for the Armed Forces

                        Argued April 14, 2015

                        Decided July 15, 2015

OHLSON, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., joined. RYAN, J., filed a separate dissenting
opinion, in which BAKER, C.J., joined.


                                 Counsel

For Appellant: Philip D. Cave, Esq. (argued); Captain Johnathan
D. Legg (on brief); Captain Travis L. Vaughan.

For Appellee: Captain Thomas J. Alford (argued); Colonel
Katherine E. Oler, Lieutenant Colonel Steven J. Grocki, and
Gerald R. Bruce, Esq. (on brief).

Amicus Curiae for Appellant: Joshua J. Bryant (law student)
(argued); Scott C. Idleman, Esq. (supervising attorney) and
Aloysius F. Rohmeyer, Esq. (supervising attorney) (on brief) --
Marquette University Law School.

Military Judge:   J. Wesley Moore



       This opinion is subject to revision before final publication.
United States v. Plant, No. 15-0011/AF


     Judge OHLSON delivered the opinion of the Court.

     Contrary to Appellant’s pleas, a general court-martial

composed of officer and enlisted members convicted Appellant of

two specifications of aggravated sexual assault and one

specification each of adultery and child endangerment, in

violation of Articles 120 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2012).   The panel

sentenced Appellant to confinement for twelve years, a

dishonorable discharge, and a reduction to the grade of E-1.

The convening authority approved the adjudged sentence, and the

United States Air Force Court of Criminal Appeals (CCA) affirmed

the findings and sentence.1   United States v. Plant, No. ACM

38274, 2014 CCA LEXIS 389, at *19, 2014 WL 4803255, at *6 (A.F.

Ct. Crim. App. July 2, 2014).

     We granted review in this case to determine whether the

evidence was legally sufficient to support Appellant’s

conviction for child endangerment.   Despite viewing the evidence

in the light most favorable to the Government, we conclude that

no rational trier of fact could have found a reasonable

probability that the child’s welfare was endangered.



1
  We heard oral argument in this case at Marquette University Law
School as part of the Court’s “Project Outreach.” See United
States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This
practice was developed as part of a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.

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United States v. Plant, No. 15-0011/AF

                                 FACTS

       The trial evidence established that on the night of April

30, 2011, Appellant hosted a party at his off-base residence.

Six people were in attendance:    Appellant, his adult male

friend, and four teenage women ranging in age from fifteen to

eighteen years.   Appellant’s thirteen-month-old son also was in

the residence during the party, but he was asleep in his crib in

an adjoining room and did not awaken during the night.     Although

he was deemed “a little delayed” physically because he had not

yet begun to walk, Appellant’s son was otherwise healthy.

       Five of the six attendees at the party, including

Appellant, consumed significant amounts of alcohol.   When

Appellant’s friend testified at the court-martial, he stated

that he was “pretty sure everybody was pretty well drunk.”       When

Appellant gave a statement to investigators, he admitted he was

drunk and estimated that during the party he consumed two to

three alcoholic drinks per hour throughout the night.      The

drinking lasted approximately five hours, from 8:00 p.m. to 1:00

a.m.

       At the court-martial, one of the young women who attended

the party testified that Appellant “wasn’t in any condition to

take care of his child.”   Further, when Appellant’s friend was

asked whether Appellant would have been able to care for his son

if the need had arisen, he responded, “I would say no.”



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United States v. Plant, No. 15-0011/AF

However, Appellant did remind his guests to keep the noise level

down because the baby was sleeping, and witnesses testified that

they thought Appellant went to check on his son throughout the

night.   Additionally, when the teenaged girl who was sober at

the party was asked if she would have known what to do with the

child if an emergency had happened, she testified, “Well kind

of, yeah,” and “I guess.”2

                             ANALYSIS

     The child endangerment offense alleged:

     Within the State of Arkansas, between on or about 9 April
     2011 and on or about 9 May 2011, [Appellant] had a duty for
     the care of L.E.P., a child under the age of 16 years, and
     did endanger the welfare of said L.E.P., by using alcohol
     and cocaine, and that such conduct constituted culpable
     negligence, and that under the circumstances, the conduct
     was of a nature to bring discredit upon the armed forces.

     The panel found Appellant guilty of this specification but

excepted the words, “and cocaine” and returned a finding of not

guilty as to these excepted words.   Thus, because of the manner

in which the Government charged the offense, and because of the

panel’s verdict in regard to the specification, the child

endangerment conviction was based solely on Appellant’s use of

alcohol at the time he had a duty to care for his son.   See

United States v. Rauscher, 71 M.J. 225, 227 (C.A.A.F. 2012)


2
  The evidence introduced at trial also demonstrated that
Appellant sexually assaulted two of the young women at the party
after they ingested cocaine. However, because these facts are
not relevant to the granted issue before us, we will not address
them further.

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United States v. Plant, No. 15-0011/AF

(noting that accused has “‘substantial right to be tried only on

charges presented in [a specification]’” (alteration in

original) (quoting Stirone v. United States, 361 U.S. 212, 217

(1960))); United States v. Geppert, 7 C.M.A. 741, 743, 23 C.M.R.

205, 207 (1957) (noting that “the Government is free to

prosecute under specifications couched in language of its

choice”).   Accordingly, we may not examine whether Appellant

endangered LP by allegedly using cocaine during the party, by

inviting virtual strangers into his home while his young son was

present, or by sexually assaulting two young women in the same

residence in which his son slept.     Cf. United States v. Lubasky,

68 M.J. 260, 264-65 (C.A.A.F. 2010) (indicating that our review

is limited to the facts alleged in the specification and the

findings of the panel, specifically considering whether any

exceptions or substitutions had been made).    Rather, the

specific question before us is:

     WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT
     THE FINDING OF GUILTY TO CHARGE V AND ITS
     SPECIFICATION (CHILD ENDANGERMENT) BECAUSE THE
     EVIDENCE FAILED TO PROVE APPELLANT’S ALCOHOL USE ALONE
     AMOUNTED TO CULPABLE NEGLIGENCE THAT ENDANGERED THE
     WELFARE OF L.P.

     We review the legal sufficiency of the child endangerment

offense de novo.   United States v. Kearns, 73 M.J. 177, 180

(C.A.A.F. 2014).   To determine whether evidence is legally

sufficient, we ask “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of


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United States v. Plant, No. 15-0011/AF

fact could have found the essential elements of the crime beyond

a reasonable doubt.”   United States v. Gutierrez, 74 M.J. 61, 65

(C.A.A.F. 2015) (citation omitted) (internal quotation marks

omitted).   This determination is “based on the evidence before”

the factfinder.    United States v. Cauley, 45 M.J. 353, 356

(C.A.A.F. 1996).

     In analyzing this issue, we first note the following

elements of the child endangerment offense with which Appellant

was charged:

     (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).    Although the parties address both the third

and fourth elements in their briefs, we will focus exclusively

on the third element because the outcome of this case turns on

whether the evidence is legally sufficient to establish this

element.

     As a threshold matter, the third element requires an

accused to have “endangered” a child.    The MCM defines this



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United States v. Plant, No. 15-0011/AF

term, stating:   “‘Endanger’ means to subject one to a reasonable

probability of harm.”   MCM pt. IV, para. 68a.c.(5).   We next

note that the trial record indicates that Appellant’s son was a

healthy thirteen-month-old child who did not have any medical

conditions that increased his risk of harm compared to any other

typical thirteen-month-old child.3    We further note that

Appellant’s son was placed in his own crib during normal bedtime

hours in order for him to sleep for the night.    It is within

this factual context that we must analyze the legal sufficiency

of the child endangerment offense in the instant case.

     To be clear, we deem Appellant’s actions of drinking an

excessive amount of alcohol while caring for his young child to

be irresponsible.    However, a criminal conviction for child

endangerment requires more than a showing of irresponsible

behavior coupled with speculation by the prosecution about what

possibly could have happened to a child as a consequence of an

accused’s conduct.   Rather, it requires proof that the accused’s

conduct, either through design or culpable negligence, resulted

in a reasonable probability that the child would be harmed.

Here, there was no such showing by the Government.

Specifically, we find no substantiation in the record for the


3
  As noted above, although LP was considered “a little delayed”
physically because he had not yet started to walk, Appellant
testified that according to LP’s pediatrician this “wasn’t a
problem.”



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United States v. Plant, No. 15-0011/AF

proposition that Appellant’s intoxication created a reasonable

probability that his healthy thirteen-month-old child, who was

placed in his own crib to sleep during ordinary bedtime hours,

would experience harm.   Therefore, even though we view the

evidence in the light most favorable to the Government and

acknowledge that the possibility of harm could not be ruled out,

on the facts of this case we are compelled to conclude that no

rational trier of fact could have found beyond a reasonable

doubt that there was a reasonable probability that LP’s mental

or physical health, safety, or welfare were endangered on the

night in question.4

                            CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Charge V and its

4
  The third element for child endangerment has two requirements:
(1) the accused’s acts or omissions must endanger the child’s
safety; and (2) the accused’s mental state must be that of
“culpable negligence.” See MCM pt. IV, para. 68a.b.(3). Each
aspect of the third element requires a different threshold of
risk. As we explain in the main text, the threshold of risk for
“endanger” is conduct that subjects the child to a “reasonable
probability,” not merely a reasonable possibility, of harm.
However, the threshold of risk for the mental state of culpable
negligence is lower. The Government establishes culpable
negligence if a reasonable person would be aware that the
accused’s conduct “might foreseeably result in harm to a child,
even though such harm would not necessarily be the natural and
probable consequences of such acts.” MCM pt. IV, para.
68a.c.(3). Because the threshold of risk of harm for
establishing culpable negligence is lower than that required for
endangerment, we note that the facts of this case may satisfy
the mental state of culpable negligence despite failing to
establish the act of endangerment.



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United States v. Plant, No. 15-0011/AF

Specification and the sentence, but affirmed in all other

respects.   The findings of guilty with respect to this charge

and specification are set aside, and Charge V and its

Specification are dismissed.   The record of trial is returned to

the Judge Advocate General of the Air Force for remand to the

lower court for reassessment of the sentence.




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United States v. Plant, No. 15-0011/AF


     RYAN, Judge, with whom BAKER, Chief Judge, joins

(dissenting):

     The majority holds that the Government’s chosen charging

language limits this Court to considering “‘alcohol use alone’”

in the strictest sense, separating Appellant’s alcohol use from

the circumstances under which he used alcohol and his behavior

under the influence of alcohol.   United States v. Plant, __ M.J.

__, __ (5) (2015).   However, the act of consuming alcohol and

the circumstances of consumption cannot be so neatly

disaggregated, nor is there legal authority or any other reason

compelling us to do so.

     This Court reviews questions of legal sufficiency de novo.

United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011).

To determine legal sufficiency, this Court asks whether, when

the evidence is “viewed 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.”

United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Assessment of legal sufficiency is limited to evidence produced

at trial.   United States v. Dykes, 38 M.J. 270, 272 (C.M.A.

1993).   “In resolving questions of legal sufficiency, this court

is bound to draw every reasonable inference from the evidence of

record in favor of the prosecution.”   United States v. Bright,
United States v. Plant, No. 15-0011/AF


66 M.J. 359, 365 (C.A.A.F. 2008) (quoting United States v.

Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000)) (internal quotation

marks omitted).

     Neither the factfinder nor this Court needed to divorce the

circumstances under which Appellant used alcohol from that act.

To the contrary, the Manual for Courts-Martial, United States

(MCM) defines “[c]ulpable negligence” in relation to child

endangerment as “includ[ing] acts that, when viewed in the light

of human experience, might foreseeably result in harm to a

child.”   MCM pt. IV, para. 68a.c.(3) (2012 ed.) (emphasis

added).   To view an act “in the light of human experience”

requires considering its context.    Moreover, the MCM specifies

that a factfinder may consider circumstantial factors such as

“the conditions surrounding the neglectful conduct”; “the

proximity of assistance available”; “the nature of the

environment”; “provisions made for care of the child”; and “the

location of the parent or adult responsible.”   Id.   This Court’s

precedent in child neglect and maltreatment cases, too, directs

us to consider the circumstances.    See United States v. Vaughan,

58 M.J. 29, 35 (C.A.A.F. 2003) (upholding child neglect

conviction where the trier of fact defined culpable negligence

“by what was reasonable under the circumstances”); United States

v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002) (holding that in

maltreatment cases “[i]t is only necessary to show, as measured

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United States v. Plant, No. 15-0011/AF


from an objective viewpoint in light of the totality of the

circumstances, that the accused’s actions reasonably could have

caused physical or mental harm or suffering”).

     A rational trier of fact could certainly have concluded, as

the members did in this case, that Appellant’s decision to

consume so much alcohol constituted culpable negligence under

the circumstances.   Put simply, what is culpably negligent in

one situation may not be so in another.   This is not a parent

who drank to excess alone or drank moderately as his healthy

child slept, but a parent who drank to excess, in a milieu of

strangers, sexual activities, and drug use, while serving as his

dependent toddler’s sole caretaker.   Under the circumstances, a

rational trier of fact, properly instructed (as this panel was),

could certainly have found that the charged culpable negligence

by using alcohol (two to three drinks an hour, by Appellant’s

own admission, over the course of a five-hour party), Plant, __

M.J. at __ (3), created a reasonable probability that the child

would be harmed.   The fact that no harm in fact occurred is

fortuitous.

     As in United States v. Rauscher, 71 M.J. 225 (C.A.A.F.

2012), Appellant’s “‘substantial right to be tried only on

charges presented in [a specification]’ was not violated.”     Id.

at 227 (alteration in original) (quoting Stirone v. United

States, 361 U.S. 212, 217 (1960)).    Appellant was not tried for

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United States v. Plant, No. 15-0011/AF


conduct beyond the specification, for uncharged actions he took

under the influence of alcohol, for example, but for choosing to

consume as much alcohol as he did given the surrounding

circumstances.   These include the young age of the child and the

inebriated or otherwise impaired strangers who had access to the

child.   Whether Appellant caused the surrounding circumstances

is irrelevant:   What is relevant is that the circumstances

surrounding Appellant’s alcohol use created a reasonable

probability of danger to his child.   I respectfully dissent.




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