

   
   
   
   U.S. v. Mayo



IN THE CASE OF
United States, Appellee
v.
Mark J. MAYO, Specialist
U.S. Army, Appellant
 
No. 98-1022
Crim. App. No. 9700501
 
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
Argued March 3, 1999
Decided July 1, 1999

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


Counsel
For Appellant: Captain Scott A.
De La Vega (argued); Lieutenant Colonel Adele H. Odegard and
Captain
Kirsten V. Campbell-Brunson (on brief).
For Appellee: Captain Daniel G.
Brookhart (argued); Colonel Russell S. Estey, Lieutenant
Colonel Eugene R. Milhizer, and Major Patricia A. Ham (on brief).
Military Judges: Keith H. Hodges and
Larry S. Merck
 


This opinion is subject
to editorial correction before publication.

Chief Judge COX delivered opinion of the Court.
Appellant was tried by a general court-martial
consisting of officer and enlisted members, where he was convicted, pursuant
to his pleas, of false swearing, in violation of Article 134, Uniform Code
of Military Justice, 10 USC § 934. Contrary to his pleas, appellant
was also convicted of assault consummated by a battery upon a child under
the age of 16 years, in violation of Article 128, UCMJ, 10 USC § 928.
The assault was committed on his 19-month-old son, who sustained a broken
femur.
The members sentenced appellant to be reduced
to E-1, to forfeit all pay and allowances, and to receive a bad-conduct
discharge. The convening authority only approved so much of the sentence
as provided for a bad-conduct discharge, forfeiture of $600 pay per month
until final appellate action is complete, and reduction to E-1. The Court
of Criminal Appeals affirmed in an unpublished decision.
We granted an issue that was personally raised
by appellant, in which he asks us to rule that the evidence was legally
insufficient to support his conviction for assault on a child. See United
States v. Grostefon, 12 MJ 431 (CMA 1982).1/
We reject this assertion and affirm appellants conviction.

Facts
The evidence presented by the prosecution at
appellants trial consisted of several witnesses, as well as documents--including
the victims medical records. The treating pediatrician testified that
the childs injury, a broken femur, was a serious injury that could result
in death. The treating pediatrician also testified that appellants first
statement to the hospital--that his son injured his leg by falling out
of the crib--was inconsistent with the severity of the childs injury.2/
A Child Protective Services investigator, a
social worker, and an investigator from the Killeen, Texas, police department
testified to the different statements that appellant made and how his story
about the way in which the injury occurred changed. These witnesses testified
that appellant offered other versions, given subsequent to the "crib" version.
All of these witnesses stated that appellant told each of them that he
was playing with his son, that he tossed him into a large pile of clothing,
and that his son landed wrong, breaking his leg. This "playing" version
became his defense at trial. The other final version appellant gave was
that he was frustrated his son would not go to sleep, so acting in anger,
appellant picked him up and threw him to the ground.
Additionally, the Government presented limited
testimony from the leader of appellants anger-management group. He offered
the opinion that appellant had an "aggressive personality," in direct rebuttal
to defense testimony that appellant was a "good father." While perhaps
no one piece of evidence here convicted appellant, certainly on the whole,
the evidence was legally sufficient to support the members finding that
appellant assaulted his son. Jackson v. Virginia, 443 U.S. 307 (1979).

The Law
Assault consummated by a battery on a child
under 16 years is defined in the Manual for Courts-Martial, United States
(1995 ed.), as:


(i) That the accused did bodily harm to a
certain person;
(ii) That the bodily harm was done with unlawful
force or violence; and
(iii) That the person was then a child under
the age of 16 years.


Para. 54b(3)(c), Part IV, Manual, supra.
An offer-type assault need not include the
specific intent to inflict bodily harm.


An "offer" type assault is an unlawful demonstration
of violence, either by an intentional or by a culpably negligent act or
omission, which creates in the mind of another a reasonable apprehension
of receiving immediate bodily harm. Specific intent to inflict bodily harm
is not required.


Para. 54c(1)(b)(ii).
"A 'battery is an assault in which the . .
. offer to do bodily harm is consummated by the infliction of that harm."
Para. 54(c)(2)(a).
Culpable negligence is a "degree of carelessness
greater than simple negligence." It is further defined as "a negligent
act or omission accompanied by a culpable disregard for the foreseeable
consequences to others of that act or omission." Para. 44c(2)(a)(i).

Discussion
First, it is clear that, if the court members
accepted the testimony of the Killeen police department investigator that
appellant stated he intentionally threw his son to the ground in anger
because he would not fall asleep, then there is ample evidence to sustain
the conviction of an intentional assault accompanied by a battery. Even
if the members chose to accept appellants assertion at trial that he injured
his son accidentally, while tossing him into a pile of clothing as part
of a game, there is still ample testimony to support his conviction. The
intentional throwing of a 19-month-old child into a pile of clothes on
the floor, with sufficient force and from a sufficient height to fracture
the childs femur, is an act that a reasonable factfinder could determine
was culpably negligent. The intentional act of throwing the boy, combined
with the resulting injury, completes the battery. These findings meet the
standards for legal sufficiency necessary to sustain appellants conviction.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1/ We granted the following
issue, as raised by appellant:



WHETHER THE FINDINGS OF GUILT
ARE LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR ARTICLE
128.



Although we granted the issue as
drafted above, we are only considering whether the evidence is legally
sufficient because this Courts jurisdiction to review issues is limited
to questions of law by Article 67, UCMJ, 10 USC § 867.
2/ Incidentally,
this was the same statement that appellant initially made to his next door
neighbors.

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