                       UNITED STATES, Appellee

                                       v.

          Phillip S. OXENDINE, Private First Class
                U.S. Marine Corps, Appellant

                                No. 01-0050


                        Crim. App. No. 99 0381



    United States Court of Appeals for the Armed Forces

                        Argued April 25, 2001

                       Decided August 23, 2001

     BAKER, J., delivered the opinion of the Court, in
which CRAWFORD, C.J., and GIERKE and EFFRON, JJ., joined.
SULLIVAN, J., filed an opinion concurring in part and in
the result.



                                   Counsel


For Appellant:     Lieutenant M. Eric Eversole, JAGC, USNR
(argued).


For Appellee: Captain Danny R. Fields, USMC (argued);
Colonel Marc W. Fisher, Jr., USMC and Lieutenant Commander
Philip L. Sundel, JAGC, USN (on brief); Lieutenant Danette
L. Walker, JAGC, USNR.




Military Judge:      A. W. Keller, Jr.



       THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
  United States v. Oxendine, No. 01-0050/MC



     Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of making a

false official statement (2 specifications), involuntary

manslaughter by culpable negligence, and disorderly conduct, in

violation of Articles 107, 119, and 134, Uniform Code of

Military Justice, 10 USC §§ 907, 919, and 934, respectively.

The panel sentenced him to a dishonorable discharge, confinement

for 10 years, total forfeitures, and reduction to pay grade E-1.

The convening authority approved the sentence but suspended all

confinement in excess of 6 years.    The Court of Criminal Appeals

affirmed only so much of the sentence as included a dishonorable

discharge (reduced by the Naval Clemency and Parole Board to a

bad-conduct discharge), confinement for 4 years, total

forfeitures, and reduction to pay grade E-1.   54 MJ 508, 514 and

n. 3 (2000).   We granted review on the following issue:

                                I
          WHETHER THE EVIDENCE FOR INVOLUNTARY
          MANSLAUGHTER WAS LEGALLY INSUFFICIENT WHEN
          APPELLANT DID NOT ACT WITH CULPABLE
          NEGLIGENCE AND THE VICTIM’S NEGLIGENCE WAS A
          SUPERCEDING CAUSE.

We resolve this issue against appellant.




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United States v. Oxendine, No. 01-0050/MC


                           Background

     The court below summarized the facts as follows:

          The facts are undisputed and tragic. On the night
     of 20-21 December 1997 at Camp Schwab, Okinawa, Japan,
     several Marines gathered in the third-floor barracks
     room of PFC Minnicks to celebrate the birthday of PFC
     Knox. Among those present were Corporal (Cpl) Tessier,
     Lance Corporal (LCpl) Epley and the appellant. All of
     the Marines, except for the appellant, had consumed
     large amounts of beer and vodka. The appellant had
     only two sips of a vodka drink and was not
     intoxicated.

          At some point during the festivities, the subject
     of hanging people out of the barracks room window was
     brought up. The Marines thought this would not only
     provide them with a thrill and something to do, but it
     would, in their minds, also be a way they could show
     their comrades the ultimate trust they had in each
     other. Four of the Marines were lowered headfirst out
     of the third-floor window and were held by their
     ankles without incident. They used no safety devices.
     None of them believed that anyone would be dropped.
     As they were being edged out the window and lowered
     down the side of the building, each Marine would use
     his hands to steady himself. The fifth Marine to be
     lowered was LCpl Epley. LCpl Epley wore a cast on his
     right arm and was one of the heavier Marines in the
     group. He and the appellant were good friends. As he
     willingly leaned out of the window, LCpl Epley could
     not use both of his hands to edge himself down the
     side of the building because of his injured arm. Cpl
     Tessier and the appellant were holding his legs.

          According to the statement the appellant made to
     an investigator, LCpl Epley leaned out of the window
     with all of his weight, and his exit was different
     from the others because he "went right out" instead of
     crawling out as the others had done. Prosecution
     Exhibit 4 at 6. As soon as LCpl Epley went out of the
     window, the appellant could feel that he was losing
     his grip. Within seconds, both Cpl Tessier and the
     appellant lost their hold on LCpl Epley, who fell to
     the ground. Despite the best efforts of numerous
     medical personnel, LCpl Epley died within a few hours.


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United States v. Oxendine, No. 01-0050/MC


     The cause of death was blunt force trauma.     His blood
     alcohol level was .21.

  54 MJ at 509-10.

                              Discussion

     Before this Court, appellant contends that the evidence is

insufficient to sustain his conviction for involuntary

manslaughter because LCpl Epley’s negligent manner in exiting

the window was "a superceding cause of his death" that relieved

appellant of criminal responsibility.      Alternatively, he argues

that Epley’s death was not reasonably foreseeable from the

standpoint of "a reasonable eighteen to twenty-year-old"

Marine.   Final Brief at 3.

     Our standard for reviewing legal sufficiency of the

evidence 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.”   Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)(emphasis in original);

United States v. Turner, 25 MJ 324 (CMA 1987).     In resolving

such questions, we are "bound to draw every reasonable inference

from the evidence of record in favor of the prosecution."

United States v. Rogers, 54 MJ 244, 246 (2000) (quoting     United

States v. Blocker, 32 MJ 281, 284 (CMA 1991)).




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United States v. Oxendine, No. 01-0050/MC


The elements of involuntary manslaughter are:

        (i) "That a certain named or described person is dead;"

        (ii) "That the death resulted from the act or omission

        of the accused;"

        (iii) "That the killing was unlawful; and"

        (iv) "That this act or omission of the accused

        constituted culpable negligence . . . ."

Para. 44b(2), Part IV, Manual for Courts-Martial, United States

(1995 ed.).

     Negligence is conduct that "involves the creation of

substantial and unjustifiable risk of which the person should be

aware in view of all the circumstances."    United States v.

Brown, 22 MJ 448, 450 (CMA 1986)(emphasis in original).

Culpable negligence is defined as "a negligent act or omission

accompanied by a culpable disregard for the foreseeable

consequences to others of that act or omission."    This means

that the "basis of a charge of involuntary manslaughter may be a

negligent act or omission which, when viewed in the light of

human experience, might foreseeably result in the death of

another."   Para. 44c(2)(a)(i), Part IV,   Manual, supra.   The

test for foreseeability is “whether a reasonable person, in view

of all the circumstances, would have realized the substantial

and unjustifiable danger created by his acts.”    United States v.

Henderson, 23 MJ 77, 80 (CMA 1986).


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United States v. Oxendine, No. 01-0050/MC


                      Reasonable Foreseeability

     Having decided to participate with the deceased and the

other Marines in a dangerous joint enterprise, appellant was

bound by the circumstances that would have put a reasonable

person on notice as to the risk he was creating or helping to

create, and the foreseeable consequences of that risk.     It was

not necessary that appellant himself "be aware of the

substantial risk he is creating, but only that a reasonable

person would have realized the risk.”    Brown, 22 MJ at 450.

     In addition to the facts found by the Court of Criminal

Appeals, the record contains additional evidence available to

the members for their evaluation of the circumstances relating

to the reasonable foreseeability of Epley’s fall.    The

participants were aware of the cast on Epley’s right arm that

extended from his elbow down to his wrist and looped around his

thumb.    While appellant did not testify, his statements to

investigators were admitted in evidence.    In them he describes

how when he entered the barracks room, he noticed Epley

"drinking vodka and Kool-aid . . . from a large size Burger King

cup.”    Private Minnicks, one of the participants, testified

that, to him, it appeared Epley "was under the influence of

alcohol."    Appellant also described one Marine as “passed out on

the floor in the head” when he got to the room.    He also




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United States v. Oxendine, No. 01-0050/MC


remembered a comment by Minnicks that "he had already drank

about one case of beer” at that point.

     Appellant’s statement also indicates that his motivation

for participating in the “game” was to show that “you could

trust that person with your life.”    One could strongly infer

from this statement that appellant realized the risk presented

by the game included the real possibility of loss of life.

     Another participant, PFC Grant, testified that while being

lowered by his ankles, his loose-fitting trousers slipped down

to about his thigh and he became nervous.    At this point, Grant

asked to be pulled back into the room and the holders complied.

Appellant admitted to being one of those who held PFC Grant as

he was lowered out of the window and described how his trousers

had begun to slip off.    He also admitted to holding Minnicks and

Tessier out of the window.    Notwithstanding the degree of

alcohol use he encountered and the incident with Grant,

appellant continued his participation as one of the holders

until the game concluded with Epley’s tragic fall.

     Appellant relies on United States v. Adams, 49 MJ 182

(1998), for the proposition that the objective-reasonableness

standard must be applied from the viewpoint of appellant and the

18 to 20-year-old enlisted Marines participating in this

dangerous enterprise.    Adams had been convicted of having used

provoking speech to a military policeman who was part of a group


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United States v. Oxendine, No. 01-0050/MC


which "had surrounded him and ordered him out of his car."         The

lower court in exercising its unique factfinding powers found as

a matter of factual sufficiency that Adams' statements "would

not provoke a reasonable military policeman to violence because

of his special police training."       We upheld the lower court’s

action as "a permissible exercise of its factfinding power."

Id. at 184-85.

     However, in doing so we made clear that from a legal-

sufficiency standpoint, the status as a military policeman was

but one of several circumstances to be considered in determining

whether a reasonable person would have been provoked.        Id.   We

did not hold or suggest that the objective standard of “a

reasonable person” was being altered in any way.       Thus, Adams

simply stands for the proposition that all the circumstances

surrounding the particular event are to be considered in

determining the issue of legal sufficiency of the evidence of

how a reasonable person would view the language.       Id.

     No authority offered by appellant stands for the

proposition that the status or attributes of a particular person

are to be imputed to “a reasonable person.”       Adopting such a

proposition would convert this long-standing common-law concept

from an objective standard to a subjective one.       We decline to

do so.   Thus, we are convinced that this record supports a

finding by rational members that an objectively reasonable


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United States v. Oxendine, No. 01-0050/MC


person would have known the risk he was creating and the

foreseeable consequences of that risk.

          The Deceased’s Conduct as a Superseding Cause

     Appellant contends that LCpl Epley was contributorily

negligent in deciding to join the enterprise and that the manner

in which he pushed himself away from the windowsill while

Tessier and appellant were holding him was a superseding cause

eliminating appellant from the field of proximate causation.

Assuming arguendo that Epley’s decision to participate amounted

to negligence on his part, that alone would not suffice to

create the proximate cause of his death required in the context

of this particular joint enterprise to exonerate appellant.

     The dangerous game of trust these participants engaged in

is unlike drag-racing scenarios, for example, that result in

convictions for homicide for the death of a co-participant.

Some courts have held that a conviction for homicide cannot

stand "when the sole basis" for attaching criminal liability for

the death "is the defendant’s participation in" the race.

Velazquez v. State, 561 So.2d 347, 348 (Fla. App. 3 Dist.

1990)(emphasis added); Thacker v. State, 117 S.E.2d 913 (Ga.App.

1961)(dismissing indictment of surviving racer because it failed

to allege any act of the defendant, save his own participation

in the race, which caused the death); State v. Uhler, 402 N.E.2d

556 (Ohio Ct Com Pleas 1979)(ruling that "criminal liability"


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United States v. Oxendine, No. 01-0050/MC


will not be imposed "on the survivor of a drag race whose only

contribution to the death of the other participant was his own

participation in the race").   Contra Goldring v. State, 654 A.2d

939, 942-44 (Md. App. 1995).

     As the record makes clear, unlike a decision to participate

in a race, this joint enterprise required more than just each

participant’s decision to participate.   The objective of the

game sought by the individual participants could not have been

achieved but for the assistance of others in holding them

outside the window.   Thus, Epley’s decision to expose himself to

the danger could not have resulted in his death had appellant

not agreed to be his holder, at least as far as appellant’s

liability is concerned.

     Even if one is found "criminally negligent. . . it is

possible for negligence of the deceased . . . to intervene

between" an accused’s "conduct and the fatal result in such a

manner as to constitute a superseding cause, completely

eliminating the defendant from the field of proximate

causation.”   However, "[t]his is true only in situations in

which the second act of negligence looms so large in comparison

with the first, that the first is not to be regarded as a

substantial factor in the final result.”    United States v.

Cooke, 18 MJ 152, 154 (CMA 1984)(quoting R. Perkins, Criminal

Law 703 (2d ed. 1969)(emphasis omitted)).


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United States v. Oxendine, No. 01-0050/MC


     The question, then, is whether the manner in which LCpl

Epley hoisted himself away from the windowsill when compared to

appellant’s culpably negligent participation as one of his

holders “loom[ed] so large” that appellant’s actions could not

"be regarded as a substantial factor in the fatal result."       See

United States v. Lingenfelter, 30 MJ 302, 307 (CMA 1990).

     As discussed earlier, the circumstances appellant

encountered when he decided to participate foreshadowed a tragic

outcome.   Young Marines under the influence of alcohol, the

clumsy handling of Grant, the intoxicated state of Epley and the

others, and Epley’s cast were bugles warning appellant that

something might go terribly wrong during this unjustifiably

dangerous game.

                                 Conclusion

     This case is the tragic result of a group of young men’s

decision to confirm their trust in each other as Marines through

foolhardy and dangerous means.    While from the participants’

perspective their actions may have been well intended, their

lack of mature judgment resulted in the death of one of their

brethren and appellant’s best friend.    The military expects

young Soldiers, Sailors, Airmen, and Marines to exercise good

judgment in combat and no less in the barracks.

     We hold that a rational trier of fact could have properly

concluded that a reasonable person in this scenario would have


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United States v. Oxendine, No. 01-0050/MC


been on notice that he was participating in the creation of

substantial risk of serious harm to the participants.    Likewise,

on this record the trier of fact could reasonably have found

that dropping Epley to his death, when viewed in the light of

human experience, was a foreseeable result of the culpable

disregard required by the statute.   Finally, we hold the

evidence of record was sufficient to support a rational

factfinder’s conclusion that Epley’s conduct was not a

superseding cause and that appellant’s conduct was a substantial

factor in Epley’s fall and thus, the proximate cause of his

death.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Oxendine, 01-0050/MC

    SULLIVAN, Judge (concurring in part and in the result):



    This case can be resolved solely under military case law.

See United States v. Martinez, 42 MJ 327, 330 (1995) (citing

United States v. Brown, 22 MJ 448 (CMA 1986), and United States

v. Gordon, 31 MJ 30 (CMA 1990)).   As I have said before, “The

Bible (Genesis 4:9) asks the question, ‘Am I my brother’s

keeper?’ . . .   There are instances in military life where the

high standards set for membership in the profession of arms

require that Armed Forces members not only take care of

themselves but also their fellow warriors.”   United States v.

Martinez, supra at 330-31 n.5. (emphasis added).



    This case is one of those instances.
