              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 38885
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                           Donald W. COX
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 22 February 2017
                          ________________________

Military Judge: Matthew P. Stoffel (sitting alone).
Approved sentence: Confinement for one year and reduction to E-1. Sen-
tence adjudged 25 June 2015 by GCM convened at Vandenberg Air Force
Base, California.
For Appellant: Major Lauren A. Shure, USAF (argued) and Colonel Jef-
frey G. Palomino, USAF.
For Appellee: Major G. Matt Osborn, USAF (argued); Colonel Katherine
E. Oler, USAF; and Gerald R. Bruce, Esquire.
Before DREW, MAYBERRY, and J. BROWN, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the Court, in which Senior
Judge MAYBERRY and Senior Judge J. BROWN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

DREW, Chief Judge:
    A general court-martial composed of a military judge sitting alone con-
victed Appellant, contrary to his plea, of one specification of involuntary man-
slaughter by culpable negligence, in violation of Article 119, Uniform Code of
                       United States v. Cox, No. ACM 38885


Military Justice (UCMJ), 10 U.S.C. § 919. 1 The adjudged and approved sen-
tence was confinement for one year and a reduction to E-1.
   Appellant raises one assignment of error: whether his conviction for invol-
untary manslaughter is legally and factually sufficient. 2 We find that it is and
thus affirm the findings and sentence.

                                   I. BACKGROUND
    Appellant and another Airman drove their cars from the dorms on Vanden-
berg Air Force Base, California, in the direction of an off-base grocery store.
Both had two passengers each. At the time, Appellant was 21 years old and
had very little experience driving a standard transmission car, like the one he
had recently purchased and was driving that day. After leaving the base, Ap-
pellant and the other Airman drove at excessive speeds on a divided four-lane
road while passing other cars on the left and on the right. The cars entered a
curvy, downhill stretch of road when Appellant lost control of his car. His car
skidded diagonally across the road, hit a small curb, flew into and tumbled in
the air, collided with a tree, and rolled over on the ground several times before
finally coming to a rest in a cloud of dust and debris. The car sustained cata-
strophic damage. Appellant and his rear-seat passenger were injured but sur-
vived; his front-seat passenger died.

             II. DISCUSSION – LEGAL AND FACTUAL SUFFICIENCY
    Appellant challenges the legal and factual sufficiency of the evidence. Spe-
cifically, he alleges that it does not prove that he acted with culpable negli-
gence. As Appellant concedes that his driving that day constituted simple neg-
ligence, this case presents a question as to what is necessary to constitute the
higher standard of culpable negligence.
    We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for legal sufficiency is
“whether, considering the evidence in the light most favorable to the prosecu-
tion, a reasonable factfinder could have found all the essential elements beyond
a reasonable doubt.” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F.


1 The military judge also convicted Appellant of one specification of reckless driving,
in violation of Article 111, UCMJ, 10 U.S.C. § 911, but immediately dismissed this
finding as an unreasonable multiplication of charges. The military judge acquitted Ap-
pellant of one specification of willfully engaging in a vehicle speed contest, in violation
of Article 134, UCMJ, 10 U.S.C. § 934.
2We heard oral argument in this case on 12 January 2017 at The Ohio State University
Moritz College of Law as part of this court’s Project Outreach.


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                      United States v. Cox, No. ACM 38885


2002) (quoting United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). In
applying this test, “we are bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001); see also United States v. McGinty, 38 M.J. 131, 132
(C.M.A. 1993).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of [Appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presumption
of innocence nor a presumption of guilt” to “make [our] own independent de-
termination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” Washington, 57 M.J. at 399. Proof beyond
reasonable doubt does not mean that the evidence must be free from conflict.
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our assessment of
legal and factual sufficiency is limited to the evidence produced at trial. United
States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
   The elements of involuntary manslaughter by culpable negligence are:
       (1) a death,
       (2) the death resulted from Appellant’s act or omission,
       (3) the killing was unlawful, and
       (4) Appellant’s act or omission constituted culpable negligence.
Manual for Courts-Martial, United States (MCM) (2012 ed.), pt. IV ¶ 44.b.(2);
United States v. Oxendine, 55 M.J. 323, 325 (C.A.A.F. 2001); United States v.
McDuffie, 65 M.J. 631, 634 (A.F. Ct. Crim. App. 2007).
    As an initial matter, Appellant argues that the Government, in attempting
to prove his actions amounted to culpable negligence, is—based on how they
elected to charge the offense—limited only to proof that Appellant “exceeded
the speed limit.” We disagree. In addition to exceeding the speed limit, the
specification specifically alleged the act of causing his car to veer off the road
and crash.
    Moreover, the specification alleges—and the Government must prove—
that these specified acts constituted culpable negligence. To prove the culpably
negligent nature of Appellant’s acts, the Government may, and often must, rely
on the additional surrounding circumstances and the manner in which he com-
mitted them. It is not necessary that all of the details that together establish
that an act or omission rose to the level of culpable negligence be specifically
alleged in a specification. See generally, United States v. Crafter, 64 M.J. 209



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                      United States v. Cox, No. ACM 38885


(C.A.A.F. 2006) (addressing the test for the sufficiency of a specification). In-
stead, the fact-finder at trial and this court on appeal may consider all of the
evidence admitted during findings when determining whether Appellant’s ac-
tions constituted culpable negligence.
   Appellant’s primary argument on appeal is that his actions amounted to
nothing more than simple negligence and did not rise to the level of culpable
negligence necessary to sustain a conviction of involuntary manslaughter.
   “Culpable negligence is a degree of carelessness greater than simple negli-
gence.” MCM, pt. IV ¶ 44.c.(2)(a)(i). “Simple negligence is the absence of due
care, that is an act or omission of a person who is under a duty to use due care
which exhibits a lack of that degree of care of the safety of others which a rea-
sonably careful person would have exercised under the same or similar circum-
stances.” Id. at ¶ 85.c.(2).
       [Culpable negligence] is a negligent act or omission accompanied
       by a culpable disregard for the foreseeable consequences to oth-
       ers of that act or omission. Thus, the basis of a charge of invol-
       untary 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, even though death would not nec-
       essarily be a natural and probable consequence of the act or
       omission.
Id. at ¶ 44.c.(2)(a)(i). “We apply an objective test in determining whether the
consequences of an act are foreseeable.” McDuffie, 65 M.J. at 635 (citing United
States v. Riley, 58 M.J. 305, 311 (C.A.A.F. 2003); Oxendine, 55 M.J. at 326).
    The MCM defines recklessness, in the context of operating a vehicle, in a
similar fashion under Article 111, UCMJ, 10 U.S.C. § 911, as a “culpable dis-
regard of foreseeable consequences to others from the act or omission involved.”
MCM, pt. IV, ¶ 35.c.(7). The MCM goes on to state that recklessness “cannot
be established solely by reason of the happening of an injury . . . or . . . by proof
alone of excessive speed or erratic operation” of a vehicle, but these facts may
be relevant to the ultimate question of whether an appellant’s actions were of
a “heedless nature which made it actually or imminently dangerous to the oc-
cupants.” Id.; see also United States v. Bennitt, 72 M.J. 266, 269 (C.A.A.F. 2013)
(noting that the 1917 MCM stated that “the driving of an automobile in slight
excess of the speed limit . . . is not the kind of unlawful act” sufficient to sustain
a conviction for involuntary manslaughter); United States v. Lawrence, 18
C.M.R. 855, 857 (A.F.C.M.R. 1955) (“[E]xceeding the speed limit, . . . standing
alone, may show nothing more than simple negligence, which will not suffice
for a conviction for reckless driving. Nor may we conclude from the mere oc-
currence of the accident that it was precipitated by a culpably negligent or


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                     United States v. Cox, No. ACM 38885


wanton operation of the vehicle.”) (citations omitted); United States v. Gamble,
40 C.M.R. 646, 648 (A.C.M.R. 1969) (“[S]imply exceeding the speed limit is not
culpable negligence.”).
    Appellant, relying on the MCM’s guidance for reckless operation of a vehi-
cle, argues that Appellant’s speed alone cannot establish culpable negligence.
Because the definitions of “recklessness” and “culpable negligence” employ the
same operative language, the MCM’s discussion of recklessness is instructive
to our analysis of culpable negligence, but we disagree that it leads to a con-
clusion that no amount of speed alone can ever establish culpable negligence.
While exceeding the speed limit by a few miles per hour would not, by itself,
establish culpable negligence, there are circumstances where sufficient excess
speed alone could do so.
    When reviewing for legal sufficiency, we view the evidence in the light most
favorable to the Government. The posted speed limit was 65 miles per hour.
The Government’s expert testified that Appellant was driving over 100 miles
per hour, perhaps up to 115 miles per hour, when he lost control of his car. One
of Appellant’s passengers died as a result of his operation of his car and it is
foreseeable that his unlawful act in driving over 100 miles per hour on a curvy,
downhill public road would result in a fatal crash.
    When giving the evidence a fresh, impartial look, as we are required to do
when assessing factual sufficiency, Appellant’s exact speed at the time of the
crash becomes less clear. The Defense successfully challenged the Government
expert’s conclusions and provided an alternative expert opinion. If the sole ev-
idence before the military judge was the testimony of these expert witnesses,
this case might be a closer call, but the evidence was much more than just a
so-called “battle of the experts.” The Government expert’s opinion was corrob-
orated by multiple lay witnesses, including the civilian occupants of two other
cars on the road that day, by occupants of the fellow Airman’s car, by the sur-
viving passenger of Appellant’s car, and even by Appellant’s own admissions.
    Appellant’s friend, who was his rear-seat passenger at the time of the crash,
testified that he had ridden with Appellant more times than he could count
and this was the fastest Appellant had ever driven. He also testified that 10-
30 seconds before the crash, Appellant was driving at what seemed to him as
over 120 miles per hour. The two civilian drivers on the road put Appellant’s
speed when he passed them as well above 80 miles per hour. Appellant himself
admitted that he was driving over 80 miles per hour. The evidence of his ex-
cessive speed alone might well have been sufficient to establish the foreseea-
bility of a fatal crash, but the Government introduced additional evidence to
prove the degree of Appellant’s negligence.




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                     United States v. Cox, No. ACM 38885


    The evidence established that Appellant was a relatively inexperienced
driver, driving a modified manual transmission “muscle car,” and that his driv-
ing behavior on the day in question involved high-speed passing, along with
rapid acceleration and deceleration. Although the driving conditions were gen-
erally good, with dry well-maintained pavement and ample daylight, the crash
occurred in a portion of the road with two curves and a significant downhill
grade. This evidence of the manner in which Appellant was driving and of the
other surrounding circumstances, taken together with his excessive speed, es-
tablishes that Appellant’s actions constituted culpable negligence.
    It is foreseeable that a crash will occur when an inexperienced driver en-
gages in high-speed passing on both sides of other vehicles, on a stretch of road
with curves and a notable downhill grade, all while driving at speeds at least
in excess of 80 miles per hour. Moreover, death of an occupant is a foreseeable
result of a crash at these speeds. After reviewing the testimony and photo-
graphs of the crash and resulting destruction, we are convinced that it is not
only foreseeable, but a natural and probable result of such a high speed crash
for all three occupants to be killed. Appellant’s actions in driving the way he
did culpably disregarded these foreseeable consequences and, thus, amounted
to culpable negligence.
    Appellant next argues that the pre-crash modifications to his vehicle, par-
ticularly the unexplained disconnection of the side airbags, were the actual
cause of the death. He points to the testimony of the medical examiner that the
deceased was partially ejected from the vehicle and died as a result of a com-
pression fracture of his skull. Appellant argues that if the airbags had worked
properly, Appellant might not have been partially ejected and would not have
suffered the same type of injury to his skull.
    The modifications to the vehicle did not make a fatal crash at Appellant’s
speed and manner of driving any less foreseeable. There is no evidence that
the modifications to Appellant’s vehicle would have caused a reasonable person
to expect it to handle so safely at high speeds on such a road that it would be
unforeseeable for an inexperienced driver to crash and cause the death of a
passenger. Additionally, while it is possible that a fully functioning airbag sys-
tem could have intervened to save the decedent’s life, it was Appellant’s acts or
omissions—not the lack of a side airbag—that caused his death. Thus, none of
the modifications to Appellant’s vehicle made a fatal accident any less foresee-
able nor do they make his disregard for these foreseeable results any less cul-
pable. It was Appellant’s driving behavior, not the modifications to his vehicle,
that caused his passenger’s death.
   We are convinced that a reasonable factfinder could have found—as the
military judge did—all the essential elements of involuntary manslaughter be-
yond a reasonable doubt. In addition, after weighing the evidence in the record

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                     United States v. Cox, No. ACM 38885


of trial and making allowances for not personally observing the witnesses, we
are convinced of Appellant’s guilt beyond a reasonable doubt.

                               III. CONCLUSION
    The approved findings and the sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a); 866(c). Accordingly, the ap-
proved findings and the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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