UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

M.D. MODZELEWSKI, F.D. MITCHELL, M.K. JAMISON

Appellate Military Judges

UNITED STATES OF AMERICA

v.

TROY B. NORMAN

SERGEANT (E-5), U.S. MARINE CORPS

NMCCA 201300152

GENERAL COURT-MARTIAL

Sentence Adjudged: 10 December 2012.

Military Judge: LtCol Chris J. Thielemann, USMC.

Convening Authority: Commanding Officer, Marine Corps Air 

Station, Yuma, AZ.

Staff Judge Advocate's Recommendation: Maj Robert M. Bueno, 

USMC.

For Appellant: LT David C. Dziengowski, JAGC, USN.

For Appellee: Maj Crista D. Kraics, USMC.

20 February 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

 

A panel of members with enlisted representation sitting as 

a general court-martial convicted the appellant, contrary to his 

pleas, of endangering a child in violation of Article 134, 

Uniform Code of Military Justice, 10 U.S.C. § 934. The members 

sentenced the appellant to 60 days of confinement, reduction to 

pay grade E-1, and a dishonorable discharge. The convening 

authority approved the sentence as adjudged. 
2

The appellant now assigns four errors (AOEs): that the 

evidence is factually and legally insufficient; that lay opinion 

on the terminal element was admitted in error; that the sentence 

to a dishonorable discharge is inappropriately severe; and that 

prosecutorial misconduct compelled the appellant’s wife to 

invoke her Fifth Amendment rights, thereby depriving the 

appellant of an ability to present a defense. After considering 

the pleadings and the record of trial, we conclude that the 

findings and the sentence are correct in law and fact and that 

no error materially prejudicial to the substantial rights of the 

appellant was committed. Arts. 59(a) and 66(c), UCMJ.

Background

This case arose while the appellant lived on board Marine 

Corps Air Station Yuma with his wife and infant son. Medical 

personnel responded to a 911 call placed from the home and 

discovered the infant, then 10 months old, had been severely 

burned. Initially, the appellant stated that he had been 

cradling his son near the tub when the baby was splashed with 

hot water. Subsequently, the appellant gave a statement to law 

enforcement in which he explained that he placed his son in the 

bathtub facing away from the faucet, with the water running and 

the faucet turned to the “9 o’clock” position. The appellant 

stated he left the baby in the tub for approximately 30-45 

seconds, returned to find the boy on his back, and discovered he 

was severely burned upon pulling him out of the tub. The baby

was hospitalized for 50 days, and underwent seven skin grafting 

surgeries.

At trial, evidence was received as to the temperature of 

the water at the 9 o’clock, 10 o’clock, and 12 o’clock 

positions: sequentially - 115, 122, and 130 degrees. Expert 

testimony established that the baby suffered second to third 

degree burns to thirty-five percent of his body, including his 

back, buttocks, scalp and neck, caused by immersion in scalding 

water. Experts disputed that the burns could have been caused 

by exposure to 115 degree water for the short period of time as 

described by the appellant. Additional facts necessary for the 

resolution of particular AOEs are included below. 

Factual and Legal Sufficiency

The appellant was convicted of endangering his son 

“by leaving him unattended in a bathtub where hot water was 

running from the faucet, and that such conduct constituted 

culpable negligence which resulted in grievous bodily harm, to 
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wit: 2nd degree burns on approximately 35% of his body, which 

conduct was of a nature to bring discredit upon the armed 

forces.”

The appellant alleges that the evidence of service 

discrediting conduct was factually and legally insufficient. He 

also alleges that the military judge abused his discretion in 

allowing a Marine staff noncommissioned officer (SNCO) to give 

his lay opinion on that same element. 

The test for legal sufficiency is whether any rational 

trier of fact could have found that the evidence met the 

essential elements of the charged offense, viewing the evidence 

in a light most favorable to the Government. United States v. 

Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual 

sufficiency is whether we are convinced of the appellant’s guilt 

beyond a reasonable doubt, allowing for the fact that we did not 

personally observe the witnesses. Id. at 325. We find in the 

affirmative as to both. 

The appellant contends that the Government was required to 

call “a reasonable member of the public” to testify that his 

conduct was service-discrediting or, alternatively, that the 

trial counsel “should have introduced some evidence that members 

of the public . . . were actually aware of the accident and 

found it discrediting.” Appellant’s Brief of 30 Sep 2013 at 14. 

However, the Government is not required to introduce testimony 

that anyone became aware of the conduct, nor is the Government 

required to introduce evidence regarding views of the public. 

Instead, the responsibility for determining whether an accused’s 

conduct would tend to bring discredit on the armed forces rests 

with the trier of fact. United States v. Phillips, 70 M.J. 161, 

166 (C.A.A.F. 2011). 

After carefully reviewing the record of trial and 

considering the evidence in the light most favorable to the 

prosecution, we are persuaded that a reasonable fact-finder, in 

this case the members, could indeed have found all the essential 

elements of child endangerment beyond a reasonable doubt. 

Furthermore, after weighing all the evidence in the record of 

trial and having made allowances for not having personally 

observed the witnesses, we are convinced beyond a reasonable 

doubt of the appellant’s guilt as to this charge. 

In a related AOE, the appellant asserts that the military 

judge erred by allowing a Marine SNCO to testify that the 

appellant’s conduct was service discrediting. The SNCO’s 
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testimony, given over defense objection, was that “anybody who 

would do that would bring discredit upon themselves, but 

especially a Marine, because of the high opinion that we are . .

. held to by the public.” Record at 712. Assuming error in 

admitting this lay opinion, we test for prejudice by weighing:

(1) the strength of the Government’s case; (2) the strength of 

the defense case; (3) the materiality of the evidence in 

question and, (4) the quality of the evidence in question. 

United States v. Byrd, 60 M.J. 4, 10 (C.A.A.F. 2004). 

Here, the Government meets its burden of establishing the 

harmlessness. The Government’s case on this specification was 

strong: the members had before them ample evidence of the extent 

of the injury to the baby, including his pain and suffering, the 

hospitalization, and the required surgeries. The members also 

had before them evidence that the appellant’s accounts were 

implausible and inconsistent with the medical evidence. The 

testimony now in issue was of limited materiality and in no way 

a focal point of the case. The members did not need the SNCO’s 

generic testimony to establish the terminal element; in fact, 

they required no testimony at all regarding this element. We 

conclude that any error in allowing the SNCO’s testimony was 

harmless. 

Sentence Severity

The appellant contends that his sentence to a dishonorable 

discharge is inappropriately severe. We disagree. This court 

reviews the appropriateness of the sentence de novo. United 

States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Sentence 

appropriateness involves the judicial function of assuring that 

justice is done and that the accused gets the punishment he 

deserves. United States v. Healy, 26 M.J. 394, 395 (C.M.A. 

1988). We engage in a review that gives “‘individualized 

consideration’ of the particular accused ‘on the basis of the 

nature and seriousness of the offense and the character of the 

offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 

1982) (quoting United States v. Mamuluy, 27 C.M.R. 176, 180-81 

(C.M.A. 1959)). We have examined the record of trial and the 

parties’ briefs. Applying the law to the facts of this case, in 

which an infant was grievously injured due to the appellant’s 

culpable negligence, we find the sentence appropriate.

The final AOE alleging prosecutorial misconduct lacks any 

factual foundation in the record of trial.1 

 

1 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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Conclusion

We conclude that the findings and the sentence are correct 

in law and fact, and that no error materially prejudicial to the 

substantial rights of the appellant exists. Arts. 59(a) and 

66(c), UCMJ. The findings and the sentence are affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court