UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                         BURTON, RODRIGUEZ, and FLEMING
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                      Sergeant REGINALD D. BROWN, JR.
                         United States Army, Appellant

                                  ARMY 20180176

                     Headquarters, United States Army Alaska
                 Scott Oravec and Timothy Hayes, Military Judges
                Colonel Roseanne M. Bennett, Staff Judge Advocate


For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Captain Zachary A. Szilagyi, JA; Captain Alexander N. Hess, JA (on
brief); Lieutenant Colonel Tiffany D. Pond, JA; Major Julie L. Borchers, JA;
Captain Alexander N. Hess, JA (on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Jeremy S. Watford,
JA; Major Ian M. Guy, JA (on brief).


                                     31 July 2019

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                              SUMMARY DISPOSITION
                              ---------------------------------

BURTON, Senior Judge:

       On appeal, appellant contends his convictions for child endangerment and
willful disobedience of a superior commissioned officer are legally and factually
insufficient. 1 We agree and grant relief in our decretal paragraph and reassess
appellant’s sentence. 2


1
  A panel with enlisted representation sitting as a general court-martial convicted
appellant, contrary to his pleas, of two specifications of attempted voluntary
manslaughter, one specification of willful disobedience of a superior commissioned
officer, two specifications of assault with intent to commit murder, and two
specifications of child endangerment, in violation of Articles 80, 90, and 134,

                                                                     (continued . . .)
BROWN—ARMY 20180176

                                  BACKGROUND

       On the evening of 18 June 2017, appellant and his wife, CM, argued while at a
neighbor’s barbecue. Shortly after midnight, CM decided to sleep in a guest
bedroom at the neighbor’s home. As she was entering the guest bedroom, appellant
attacked her with a knife, stabbing her in the neck, arms, and head. CM fled to the
bathroom. Appellant chased after her and continued to assault her. CM was
eventually able to escape the neighbor’s house and fled into the street.

      Appellant returned to their own home to retrieve his .45 caliber pistol.
According to TM, their fourteen year-old son, both he and his sister, RB, saw
appellant enter their house with blood on his hands. TM testified that RB asked
appellant, if he had “killed anybody,” to which appellant responded, “not yet.”

       TM then ran outside “to see what was going on,” and saw his mother running
down the street and falling at the curb. Appellant entered the street moving toward
CM with the pistol; he loaded it and pointed it at her. TM stepped in between
appellant and CM. CM was able to run to another neighbor’s home and get
assistance. An ambulance transported CM to the hospital where she received
seventy stitches to wounds on her face, scalp, forearms, and arms.

       Appellant was apprehended by military police and released to his unit in the
afternoon on 19 June 2017. Appellant’s company commander, Captain (CPT) KJ,
ordered appellant not to communicate with CM, whether it be directly or indirectly.




(. . . continued)
Uniform Code of Military Justice, 10 U.S.C. §§ 880, 890, and 934 [UCMJ]. After
findings and prior to sentencing, the military judge conditionally dismissed two
specifications of assault with intent to commit murder as being an unreasonable
multiplication of charges and not reflecting the findings of the court. The panel
sentenced appellant to a dishonorable discharge, confinement for twenty-five years,
forfeiture of all pay and allowances, a reprimand, and reduction to the grade of E-1.
Appellant was credited with 307 days of confinement credit against his sentence.
The convening authority approved the adjudged findings and sentence.
2
  After due consideration, appellant’s other assigned errors and matters personally
submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1992), do not
merit discussion nor relief.



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                             LAW AND DISCUSSION

       We review questions of legal and factual sufficiency de novo. United States
v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). “The test for legal sufficiency is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)
(quoting United States v. Bennitt, 72 M.J. 266, 268 (C.A.A.F. 2013)). 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, the members of
the service court are themselves convinced of appellant’s guilt beyond a reasonable
doubt.” United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (quoting United
States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)).

                                 A. Child Endangerment

       We will first address the legal and factual sufficiency of appellant’s
conviction for child endangerment of his daughter, RB (Specification 2 of Charge
III). The panel was instructed on the following elements:

             (1) That on or about 19 June 2017, at or near Fort
                 Wainwright, Alaska, the accused had a duty for the
                 care of [RB];

             (2) That [RB] was under the age of 16 years;

             (3) That on or about 19 June 2017, at or near Fort
                 Wainwright, Alaska the accused endangered [RB’s]
                 mental health, safety, and welfare through culpable
                 negligence by walking past her with blood-soaked
                 hands after stabbing [CM]; and,

             (4) That under the circumstances, the conduct of the
                 accused was to the prejudice of good order and
                 discipline in the armed forces or was of a nature to
                 bring discredit upon the armed forces.

      In reviewing the evidence contained in the record for factual sufficiency, we
are concerned with the lack of evidence to support the third element. The
government had the burden to establish appellant’s conduct subjected RB to a
“reasonable probability of harm.” United States v. Plant, 74 M.J. 297, 299
(C.A.A.F. 2015).




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BROWN—ARMY 20180176

       The only testimony concerning what RB observed or said is from TM.
According to TM, RB saw appellant enter the house with bloody hands and RB asked
whether he “killed anybody.” It is reasonable to infer that appellant’s act of walking
past her with blood-soaked hands might harm RB’s mental health, safety, and
welfare. However, as our superior court noted in Plant, “the threshold of risk for
endanger is conduct that subjects the child to a reasonable probability, not merely a
reasonable possibility, of harm.” 74 M.J. at 300 n.4. (internal quotation marks
omitted). The record is devoid of RB’s account and reaction to seeing appellant
walk past her with blood-soaked hands. Furthermore, there is no evidence that RB
was aware that the blood on her father’s hands belonged to her mother.
Accordingly, after making allowances for not having observed the trial, we are not
convinced beyond a reasonable doubt of appellant’s guilt for child endangerment of
RB. See United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

             B. Willful Disobedience of a Superior Commissioned Officer

       We next turn to the legal and factual sufficiency of Charge IV and its
specification, appellant’s conviction for willful disobedience of a superior
commissioned officer, CPT KJ. The panel was instructed on the following elements:

             (1) That the accused received a certain lawful command to
                 restrain from initiating any contact or communication
                 with [CM] from [CPT KJ];

             (2) That, at the time, [CPT KJ] was the superior
                 commissioned officer of the accused;

             (3) That the accused, at the time, knew that [CPT KJ] was
                 his superior commissioned officer; and,

             (4) That between on or about 19 and 24 June 2017, at or
                 near Fort Wainwright, Alaska, the accused willfully
                 disobeyed the command.

       The government argues appellant violated CPT KJ’s no contact order on two
occasions. The first instance is appellant’s text message to CM on 19 June 2017
stating, “He was sorry for what he had done.” However, we find the record devoid
of any evidence appellant sent the text message to CM after CPT KJ issued him the
no contact order. CM testified she received a text message from appellant on 19
June 2017. She did not recall what time the message was sent, just that she read it
after she left the hospital at 0845 on 19 June 2017. Meanwhile, CPT KJ testified he
issued the no contact order to appellant in the afternoon on 19 June 2017 when
appellant was released from the military police station and returned to his unit.
Captain KJ did not specify an actual time he gave appellant the no contact order, nor



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BROWN—ARMY 20180176

did the government introduce the written order into evidence. Accordingly, we are
not convinced beyond a reasonable doubt appellant sent CM the text message in
violation of CPT KJ’s order.

       The second instance the government argues appellant violated the no contact
order is when another soldier in appellant’s unit, Specialist (SPC) R, called CM.
According to CM’s testimony, “the following day” SPC R called her and stated, “he
had seen [appellant] and [appellant] had voice (sic) to him how sorry he was. He
didn’t mean to do anything that he had done and he just wanted to let me know that
he loves me.” The government never clarified whether appellant requested SPC R
contact CM to pass on this message or whether SPC R contacted her on his own
volition. Specialist R did not testify. Accordingly, we are not convinced beyond a
reasonable doubt appellant willfully disobeyed CPT KJ’s order.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty to Specification 2
of Charge III and Charge IV and its Specification are SET ASIDE and DISMISSED.
The remaining findings of guilty are AFFIRMED. 3

       We reassess the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305, 307-08 (C.M.A. 1986). Appellant’s affirmed offenses are of the type that this
court has the experience and familiarity with which to reliably determine what
sentence would have been imposed absent appellant’s conviction for willful
disobedience of a superior commissioned officer and one of the specifications of
child endangerment. Based on his convictions, appellant could have been confined
for thirty-seven years. The gravamen of appellant’s misconduct is his twice
attempting to kill his wife with a knife and .45 caliber pistol. For these offenses
alone, appellant’s maximum punishment was thirty-one years of confinement. The
offenses of child endangerment by culpable negligence not resulting in harm and
willful disobedience of a superior commissioned officer carry a combined maximum
punishment of six years. The dismissal of these two specifications do not constitute
a dramatic change in the penalty landscape. For appellant’s affirmed offenses, we
are confident the panel would have adjudged a sentence of at least twenty years of
confinement. Accordingly, we AFFIRM only so much of the sentence as provides
for a dishonorable discharge, twenty years of confinement, forfeiture of all pay and
allowances, a reprimand, and reduction to the grade of E-1.

3
  We note Specifications 3 and 4 of Charge III, assault with intent to commit murder,
continue to remain conditionally dismissed pending final judgment as to the legality
of the proceedings. See UCMJ art. 71(c)(1) (defining final judgment as to the
legality of the proceedings); see also United States v. Britton, 47 M.J. 195, 203
(C.A.A.F. 1997).



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BROWN—ARMY 20180176

       All rights, privileges, and property of which appellant has been deprived by
virtue of that portion of the findings set aside by this decision, are ordered to be
restored. See UCMJ arts. 58b(c) and 75(a).

      Judge RODRIGUEZ and Judge FLEMING concur.

                                        FOR THE COURT:



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




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