UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 RISCH, 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); Major Scott L.
Goble, JA; Captain John Gardella, JA (supplemental brief).


                                       19 September 2016

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                    MEMORANDUM OPINION ON RECONSIDERATION
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, 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, 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.

       In our earlier decision, United States v. Wiglitton, ARMY 20140638, 2016
CCA LEXIS 376 (Army Ct. Crim. App. 13 Jun. 2016), we affirmed only so much of
the finding of guilty to Specification 2 of Charge I as provided for the lesser-
WIGLITTON—ARMY 20140638

included offense of assault consummated by battery. We affirmed the remaining
findings of guilty and, after reassessment, affirmed the sentence. We provided this
limited relief under our statutory authority to affirm only so much of the findings
that “should be approved.” UCMJ art. 66(c).

       The government requested we reconsider our decision, expressing concern
that we had departed from the statute’s legal constraints as our superior court
described in United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010)(“the statutory
phrase ‘should be approved’ does not involve a grant of unfettered discretion but
instead sets forth a legal standard subject to appellate review.”). Given our original
decision’s brevity with respect to our “should be approved” authority, we seek to
explain more fully.

       At trial, the parties spent considerable effort to provide the military judge a
common picture of appellant as culpably negligent. This task was particularly
difficult for appellant for at least one reason–he had previously told law enforcement
authorities his son’s blunt force head trauma was simply an accident. To “come
clean” during the providence inquiry and get the benefit of his pretrial agreement,
appellant risked exposing himself to future prosecution for making a false statement
to law enforcement.

       We frequently see cases in which the intangible forces of human nature
discourage appellants from fully describing their misconduct during inquiries
pursuant to United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253
(1969). This case highlights a tangible interest—avoiding future prosecution—
which worked at cross purposes with the military judge’s duty to elicit sufficient
facts to determine whether appellant was provident.

       Appellant obviously struggled to explain how his son’s head injuries were the
result of culpable negligence, but ultimately offered an explanation. Each time
appellant carried his son on his hip, his son would resist by extending his body
backward—appellant knew this before but disregarded it on the day in question. On
the day in question, his son had a dirty diaper and appellant carried him on his hip to
another room in order to change it. As appellant jogged with his son through the
doorway, his son launched his upper body away from him and struck his head.
Appellant asserted that because he knew his son launched himself backwards, he was
culpably negligent when he put his son on his hip and tried to pass through a door
with insufficient clearance. Essentially—as a result of the conflict between the
military judge’s duty and appellant’s self-interest—we are left with a description of
a five-month-old baby, with sufficient core strength to propel his body with such
force that he suffered multiple skull fractures and intracranial bleeding from striking
the doorframe.


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WIGLITTON—ARMY 20140638

       Appellant’s description of the injury mechanism was internally consistent—at
least after pointed questioning by the military judge. And appellant claimed he was
culpably negligent and therefore guilty. For these reasons, we declined to find the
military judge abused his discretion in accepting his guilty plea to the affected
specification. We have never required—indeed the military justice system does not
require—a military judge to independently determine whether appellant’s statements
in a Care inquiry are true; therefore, the military judge did not err. However, our
duties are different from those held by military trial judges, for we may only affirm
so much of the findings and sentence that “should be” affirmed. UCMJ art. 66(c).

       Our decision is not motivated by equity or any desire to grant appellant some
measure of clemency. Rather, it is motivated by what we perceive as our duty to
affirm only the results of proceedings which are reliable—those which are unreliable
should not be affirmed. Appellant’s Care inquiry bordered on the fantastical and
was therefore unreliable. We have no doubt the baby suffered these injuries at
appellant’s hands and we are similarly certain it was no accident. However, the
offense did not happen as appellant described.

       On reconsideration, the incredulity of appellant’s providence inquiry with
respect to the affected specification also undermines the reliability of our affirmed
finding of guilty of the lesser-included offense. The sine qua non of such an
affirmed finding remains appellant’s characterization of his behavior as culpably
negligent. Accordingly, for similar reason as just discussed, his conviction for
simple battery also cannot stand on such unreliable grounds.

                                   CONCLUSION

       The finding of guilty of Specification 2 of Charge I is set aside and
DISMISSED. The remaining findings of guilty are AFFIRMED. We are able to
reassess the sentence on the basis of the error noted and do so after conducting a
thorough analysis of the totality of 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 that based on the entire record and
appellant’s misconduct, the military judge would have imposed a sentence of at least
that which was adjudged, and accordingly we AFFIRM the sentence.

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.



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WIGLITTON—ARMY 20140638

    Chief Judge RISCH and Judge WOLFE concur.

                                  FOR
                                 FOR  THE
                                     THE  COURT:
                                         COURT:




                                 MALCOLM
                                   MALCOLM   H.H.
                                                SQUIRES, JR.JR.
                                                  SQUIRES,
                                 Clerk of Court
                                   Clerk of Court




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