UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                WILSON, PENLAND, and WOLFE
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                           v.
                           Specialist PHILLIP L. WIGLITTON
                             United States Army, Appellant
                                       ARMY 20140638

                                Headquarters, Fort Bliss
                            Michael J. Hargis, Military Judge
                     Colonel Karen H. Carlisle, Staff Judge Advocate

For Appellant: Major Daniel E. Goldman, JA (argued); Lieutenant Colonel Charles
D. Lozano, JA; Major Andres Vazquez, Jr., JA; Major Daniel E. Goldman, JA (on
brief).

For Appellee: Captain John Gardella, JA (argued); Colonel Mark H. Sydenham, JA;
Major John K. Choike, JA; Major Matthew T. Grady, JA (on brief).

                                          13 June 2016
                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WILSON, Chief Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of assault consummated by battery upon a child under the age
of sixteen, two specifications of aggravated assault upon a child under the age of
sixteen, and two specifications of child endangerment by culpable negligence, in
violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
928 and 934 [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a bad-conduct discharge, confinement for thirty months, and reduction to
the grade of E-1.

      Appellant’s case is now before us for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error, which merits discussion and relief. 1

1
 We heard oral argument in this case on 13 April 2016. Both parties not only
provided exceptional presentations of the positions advanced in their briefs, but also
offered well-reasoned and thoughtful responses to an array of questions raised by the
court for the first time during oral argument.
WIGLITTON—ARMY 20140638

                                  BACKGROUND

       In February of 2014, appellant, on three separate occasions, committed
physical abuse against his five-month-old son, VW. As a result of appellant’s
actions, VW suffered significant injuries, to include multiple rib fractures, skull
fractures, and intracranial bleeding. Additionally, despite the fact that appellant was
aware that during two of these instances his actions had likely caused significant
injuries to VW, appellant did not seek immediate medical attention for his son. As a
result of this misconduct, appellant was charged with and pleaded guilty to the
above-listed assault and child endangerment offenses. The facts surrounding one of
these offenses bear further review and consideration.

        In Specification 2 of Charge I, appellant pleaded guilty to “commit[ing] an
assault upon [VW], a child under the age of 16 years by hitting . . . [VW’s] head on
a doorframe, a means likely to produce death or grievous bodily harm.” 2 Before
discussing this specification with appellant, the military judge gave a detailed
description of its elements and other relevant terms, to include “culpable
negligence,” “grievous bodily harm,” and “likelihood” of death or grievous bodily
harm. 3

       After appellant confirmed that he understood the elements and definitions, the
military judge directed appellant to “[t]ell me why you believe you are guilty of . . .
Specification 2 [of Charge I].” Appellant explained:

             [M]e and my son . . . were in the living room . . . in our
             home. He was in his rocking chair. I started to smell
             feces coming out of his diaper. So I looked down at him,
             and I noticed there was feces coming out of his diaper. So
             I went ahead and picked him up and put him on my hip . . .
             and . . . I ran with him to the bedroom so I could change
             his diaper, and right before we entered the bedroom, he
             threw himself back and then hit his head on the doorframe.
             So he started crying, and I put him on the bed, and then I
             got him to calm down by giving him his pacifier, and then


2
 The government originally charged appellant with “unlawfully strik[ing]” VW’s
head on a doorframe “thereby intentionally inflict[ing] grievous bodily harm upon
him.” Appellant pleaded guilty to aggravated assault by a means likely to cause
death or grievous bodily harm by exceptions and substitutions.
3
 The military judge’s definitions and explanations were highly consistent with those
found in the Military Judge’s Benchbook applicable at the time of appellant’s trial.
See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook
[hereinafter Benchbook], para. 3-54-8 (1 Jan. 2010).

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WIGLITTON—ARMY 20140638

              I noticed that he had a [sic] swelling on his head from the
              doorframe . . . .

      Appellant subsequently explained that VW suffered “a skull fracture and
bleeding in his brain” as a result of this incident.

        Following appellant’s initial description of the offense, he and the military
judge engaged in a lengthy colloquy about a number of key facts, to include: the
specific manner in which appellant was carrying VW on his way into the bedroom;
VW’s “flailing” while in appellant’s arms; how fast appellant was moving; and how
wide the doorway was that VW struck his head on. For instance, appellant stated
that if he entered the doorframe by himself, there would only be about “8 or 9
inches” of clearance between him and either side of the doorframe. Additionally, he
testified that on instances when VW previously threw his head back while appellant
was holding him against his hip, VW’s head would be “8 to10 inches” away from
appellant’s arm.

       The military judge was clearly having difficulty with the explanation of how
appellant was carrying VW and how the child “threw himself back” the moment
before they reached the door. At one point he noted, “I’m trying to understand and
get a visual picture of this . . . .” Appellant provided a few additional details, to
include that he had previously held VW against his hip and that VW had thrown his
head back in a similar fashion. However, appellant also explained he had never held
VW that way while he was “moving with him” and that during the event in question,
he was “jogging” into the master bedroom and had not “done the math [himself] as
to whether [VW’s] head might clear the doorway if he arched his back like he
normally did.” He confirmed that he “didn’t give [VW’s arching back] a thought” as
he approached the bedroom.

       After a few more responses from appellant, the military judge stopped the
colloquy and explained, “Counsel, I’m having a great amount of difficulty with
Specification 2. It appears to me that this is nothing more than simple negligence.”
Trial counsel then provided the military judge with a case, United States v. Mayo, 50
M.J. 473 (C.A.A.F. 1999), which he told the military judge “discusses culpable
negligence in a very similar situation.” 4 The court then took a brief recess, and
when they returned, both parties, relying on Mayo, reasserted their position that
appellant’s actions amounted to culpable negligence. The military judge maintained
his skepticism, and re-opened the colloquy with appellant, asking appellant to verify
that he “didn’t think about the fact that there might not be sufficient clearance” for

4
  In Mayo, our superior court upheld Specialist Mayo’s conviction (by a panel) for
an assault against his 19-month-old child as legally sufficient, holding that “[t]he
intentional throwing of a . . . 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.” 50 M.J. at 474-75.

                                            3
WIGLITTON—ARMY 20140638

VW’s head as he jogged toward the bedroom. However, this time appellant
answered “[n]o, sir, because I knew there was risk doing that, but I just disregarded
it, because I could have secured his head while I was running with him through the
door frame, and like I said, I just disregarded it and was reckless.” The military
judge responded “Okay. That’s a little different than what you told me before, and
all I’m interested in hearing from you is the truth, all right?” Ultimately, the
military judge concluded the colloquy to his satisfaction with the following
exchange:

               MJ: When you were headed down the hallway with him
               on your hip like this, did you think that there was a
               possibility that you might not fit through the door frame if
               he did arch his back like he normally did?

               ACC: Yes, sir.

               MJ: And if that happened, did you care what the results
               were?

               ACC: No, sir.

               MJ: Do you believe that the amount of force that was
               involved with him hitting his head on the door frame
               would have likely resulted in serious bodily injury as I
               have defined that term for you?

               ACC: Yes, sir.

       Ultimately, the military judge concluded that appellant “has cleared the hurdle
of culpable negligence,” but “barely.”

                                       DISCUSSION

         In his sole assignment of error, appellant asserts that:

               THE MILITARY JUDGE ERRED BY ACCEPTING
               APPELLANT’S PLEA OF GUILTY TO SPECIFICATION
               2 OF CHARGE I (ASSAULT WITH A MEANS LIKELY
               TO PRODUCE DEATH OR GRIEVOUS BODILY HARM
               ON A CHILD), WHERE THE EVIDENCE IS LEGALLY
               AND FACTUALLY INSUFFICIENT TO SUSTAIN A
               CONVICTION FOR THAT OFFENSE. 5

5
    Because appellant pleaded guilty to this specification, we do not weigh the legal

                                                                          (continued . . .)
                                              4
WIGLITTON—ARMY 20140638

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will not be
set aside unless we find a substantial basis in law or fact to question the plea.
Inabinette, 66 M.J. at 322. We apply this “substantial basis” test by determining
whether the record raises a substantial question about the factual basis of appellant’s
guilty plea or the law underpinning the plea. Id.; see also United States v. Weeks, 71
M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse of discretion for a military judge to
accept a guilty plea without an adequate factual basis to support it . . . [or] if the
ruling is based on an erroneous view of the law.”).

       Here, the military judge correctly and comprehensively defined and explained
the elements of aggravated assault by a means likely to produce death or grievous
bodily harm to appellant. Moreover, appellant gave a detailed description of what
transpired during the event in question. When the military judge became alarmed
that appellant’s testimony did not provide an adequate factual basis to support each
element of the offense—primarily if his actions with VW were in fact culpably
negligent—he allowed each party to pause and review what they deemed was the
controlling legal authority. The military judge reopened the providence inquiry and
when appellant offered a slightly different account of the events, the military judge
identified the inconsistency and ensured that appellant clarified his answer in
accordance with the proper legal standard (i.e., culpable negligence). See
Benchbook, para. 3-54-8. This was not an instance of a military judge merely
“drag[ging] appellant across the providence finish line.” United States v. Le, 59
M.J. 859, 864 (Army Ct. Crim. App. 2004) (citation omitted).

        Although we harbor what we perceive to be many of the same doubts as the
military judge with respect to the plausibility of appellant’s account of Specification
2 of Charge I, we are reluctant to disturb the factual assertions and admissions made
by appellant in his stipulation of fact and again during his lengthy providence
inquiry—to include a recess where he presumably had ample opportunity to discuss
any concerns with his defense counsel. Had this been a contested trial, and had
appellant’s explanation instead been a theory unilaterally advanced by the
government, a fact finder or this court (in its Article 66(c), UCMJ, factual and legal
sufficiency review) may have reached a different result. However, “we adhere to the
well-established principle that a guilty plea generally precludes the post-trial
litigation of factual questions pertaining to one’s guilt.” United States v. Lloyd, 46
M.J. 19, 24 (C.A.A.F. 1997). The military judge did not abuse his discretion in
accepting appellant’s guilty plea to this offense.

(. . . continued)
and factual sufficiency of the evidence supporting the offense, but rather we
evaluate whether the military judge abused his discretion by accepting appellant’s
plea—a subtle but important distinction in our Article 66(c), UCMJ, review. At oral
argument, the parties agreed this was the proper standard of review and proceeded
accordingly.
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WIGLITTON—ARMY 20140638


       On appeal, however, our duties are different than that of the military judge.
While not amounting to legal error, our concerns with appellant’s plea are not
entirely extinguished. In light of our Article 66(c), UCMJ, “duty” to “affirm only
such findings of guilty . . . as [we] . . . determine, on the basis of the entire record
should be approved,” we will exercise this “highly discretionary power” here and
affirm only the lesser-included offense of an assault consummated by battery upon a
child under the age of 16 years. United States v. Butcher, 56 M.J. 87, 93 (C.A.A.F.
2001).

                                    CONCLUSION

      On consideration of the entire record, we AFFIRM only so much of
Specification 2 of Charge I as finds that:

             In that [Appellant], U.S. Army, did, at or near White
             Sands Missile Range, New Mexico, between on or about 1
             February 2014 and on or about 28 February 2014, commit
             an assault upon VW, a child under the age of 16 years, by
             hitting the said VW’s head on a doorframe.

      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident the military
judge would have adjudged at least as severe a sentence as that which the convening
authority ultimately approved. The approved sentence is AFFIRMED. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside and dismissed by this decision are ordered restored.

      Judge PENLAND and Judge WOLFE concur.

                                       FOR THE COURT:
                                     FOR THE COURT:



                                     JOHN P. TAITT
                                        JOHN
                                     Chief     P. Clerk
                                           Deputy TAITT of Court
                                        Acting Clerk of Court




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