          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                         Staff Sergeant MICHAEL L. MITCHELL
                                   United States Air Force

                                              ACM 38254

                                              5 June 2014

         Sentence adjudged 14 September 2012 by GCM convened at Little Rock
         Air Force Base, Arkansas. Military Judge: Natalie D. Richardson.

         Approved Sentence: Bad-conduct discharge, confinement for 6 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant:                 Major Matthew T. King and
         Major Grover H. Baxley

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel Nurit Anderson; and Gerald R. Bruce, Esquire.

                                                  Before

                           MARKSTEINER, HECKER, and WEBER
                                Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



HECKER, Senior Judge:

       Consistent with his pleas, the appellant was convicted at a general court-martial of
six specifications of child endangerment by culpable negligence, in violation of
Article 134, UCMJ, 10 U.S.C. § 934. A panel of officer and enlisted members sentenced
him to a bad-conduct discharge, confinement for 6 months, and reduction to E-1. The
convening authority approved the sentence as adjudged.

       The appellant raises one issue on appeal: whether his guilty plea to four of the
specifications of child endangerment was improvident because there was an insufficient
factual predicate to demonstrate that those children suffered “actual harm.” Finding no
error that materially prejudices a substantial right of the appellant, we affirm.

       “[W]e review a military judge’s decision to accept a guilty plea for an abuse of
discretion and questions of law arising from the guilty plea de novo.”
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). In doing so, “we apply
the substantial basis test, looking at whether there is something in the record of trial, with
regard to the factual basis or the law, that would raise a substantial question regarding the
appellant’s guilty plea.”         Id.; United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991) (holding that a guilty plea should not be overturned as improvident unless
the record reveals a substantial basis in law or fact to question the plea). “An accused
must know to what offenses he is pleading guilty.” United States v. Medina, 66 M.J. 21,
28 (C.A.A.F. 2008). A military judge’s failure to explain the elements of a charged
offense is error. United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969).
Accordingly, “a military judge must explain the elements of the offense and ensure that a
factual basis for each element exists.” United States v. Barton, 60 M.J. 62, 64 (C.A.A.F.
2004) (citing United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)). If an
accused makes statements during trial that are inconsistent with the elements required for
the charged offense, the military judge must resolve those inconsistencies before
accepting the plea. United States v. Bullman, 56 M.J. 377, 382-83 (C.A.A.F. 2002).

       The offense of child endangerment under Article 134, UCMJ, includes the
requirement that a child’s “mental or physical health, safety, or welfare” be endangered
by the appellant’s culpable negligence. Manual for Courts-Martial, United States
(MCM), Part IV, ¶ 68a.b.(3) (2012 ed.). “‘Endanger’ means to subject one to a
reasonable probability of harm.” MCM, Part IV, ¶ 68a.c.(5). Culpable negligence “may
include acts that, when viewed in the light of human experience, 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, Part IV, ¶ 68a.c.(3). For this offense, actual
harm to the child need not occur as the offense only requires that the appellant’s actions
reasonably could have caused physical or mental harm or suffering. MCM, Part IV, ¶
68a.c.(4). If the appellant’s conduct did result in harm, the potential maximum sentence
to confinement increases from 1 year to 2 years. MCM, Part IV, ¶ 68a.e.(5)-(6). Here,
the Government charged the appellant with causing actual harm (“mental injury”) to the
children, and the maximum sentence the appellant faced reflected his conviction for that
offense.

       On appeal, the appellant now contends that his guilty plea to endangering two of
the children must be set aside because the guilty plea inquiry failed to elicit sufficient
evidence that the children suffered actual harm as a result of his behavior. We disagree.
During the providency inquiry, the military judge explained the elements of this offense,
including the requirement that the children must have experienced actual mental injury as
a result of his conduct. During specific questioning by the military judge and through a


                                              2                                    ACM 38254
stipulation of fact, the appellant admitted on multiple occasions that his actions had
caused the two children to suffer mental injury, and we do not find a substantial basis in
law or fact to question the providency of his guilty plea. The stipulation of fact itself
demonstrates that the elements of this offense are all met. Furthermore, even if his plea
was improvident as to the “actual harm” element, we would still affirm the appellant’s
convictions for endangering these two children and would reassess the sentence to the
adjudged and approved sentence: a bad-conduct discharge, confinement for 6 months,
and reduction to E-1. See United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013);
United States v. Peoples, 29 M.J. 426, 427-28 (C.M.A. 1990).

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are

                                       AFFIRMED.


             FOR THE COURT


             LAQUITTA J. SMITH
             Appellate Paralegal Specialist




                                              3                                 ACM 38254
