## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant BIANCA L. KOTH United States Army, Appellant

ARMY 20150179

Headquarters, 25th Infantry Division

Gregory A. Gross, Military Judge Colonel William D. Smoot, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Ryan T. Yoder, JA (on reply brief); Co lonel Mary J. Brad ley, JA; Captain Ry an T. Yoder, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Anne C. Hsieh, JA; Captain Jonathan S. Reiner, JA (on brief).

16 March 2017

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

----------------------------------

BURTON, Judge:

On appeal, appellan t alleges her convic tion of child enda ngerment is legally and factually insufficient because the gove rnment failed to prov e she was culpably negligent and subjecte d her child to a reas onable probability of harm. We disagree.

A panel of officers and enlisted members sitting as a general court-martial convicted appellant, contrary to her pleas, of one specifi cation of assault consummated by a battery upon a chil d under the age of16 years and one specification of child endang erment, in violation of Ar ticles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934 (2006 & Su pp. IV 201 1; 2012 & Supp. I 2014) [hereinafter UCMJ]. The pa nel sentenced appellan t to a bad-conduct discharge, confinement for th ree months, and forfeiture ofall pay and allowances. The convening authority approved the adjudged sentence.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellate defense counsel assign s one error to this court: whether the ev idence supporting the conviction of child endangerment for failure to seek medical treatment is legally and factually sufficient, where the governmen t failed to present any evidence thatKOTH—ARMY 20150179

2 appellant should have known of her son’s injuries orthat there wa s a reasonable probability of harm. After due consideration, we find the as signed error in this case warrants discussion and partial relief on ot her grounds. Those matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), are without merit.

LAW AND DISCUSSION

In accordance with Article 66(c), UCMJ, we review issues oflegal 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 pr osecution, a reason able factfinder co uld have found all the essential elements beyo nd a reasonable doubt.” United States v. Turner , 25 M.J. 324, 324 (C.M .A. 1987) (citing Jackson v. Virginia , 443 U.S. 3 07, 319 (1979)); see also United States v. Humpherys , 57 M.J. 83, 94 (C.A.A.F . 2002). In resolving questions of legal su fficiency, we are “bo und to draw every re asonable 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). The test for factual sufficiency is “whether, after weighing the evidence in the record of tr ial and making allowa nces for not having personally observed th e witnesses, [we] are [ourselv es] convinced of the accused’s guilt beyond a reas onable doubt.” Turner , 25 M.J. at 325.

Mens Rea: Cul pable Negligence

On appeal, appellan t alleges the government offered “no direct evidence” that she “was aware of any injuries sustained by [her son,] TK,” a nd thereby failed to establish her culpable neglig ence. On this point, appell ant overlooked two important issues—direct evidence is not required and child endangerment by culpable negligence is a general-intent offense. Co nsidering first the nature of the evidence, while direct evidence can establish an appe llant’s state of mind, direct evidence is not required to establish proofbeyond a reasonable doubt. Rule for Courts-Martial [hereinafter R.C.M.] 918(c) (“Findings may be based on di rect or circumstantial evidence.”). Circumstantial evidence, st anding alone or t ogether with other evidence, can prove a fact necessary to es tablish an element of an offense beyond a
reasonable doubt . R.C.M. 918(c) discussion; see also United States v. Roberts , 59 M.J. 323, 327 (C .A.A.F. 2004); United States v. Caballero , 37 M.J. 422, 425 (C.M.A. 1993); United States v. Hurt , 9 U.S.C.M.A. 735, 763, 27 C.M.R. 3, 31 (1958). Accordingly, a reas onable panel could have been convinced of appellant’s culpable negligence based on the circ umstantial evidence in this case.

We next consider th e nature of the offe nse. Appellant was found guilty of child endangerment by culpable negligence, not by design. Child endangerment, like other offenses by culpable negligence, is a general-intent offens e reviewed under an objective test. See

, e.g. , United States v. Gibson , 43 M.J. 343, 346 (C.A.A.F. 1995) (rejecting a subjective test regarding the ap pellant’s knowledge ofthe risk of harm,KOTH—ARMY 20150179

3 and applying an objective test whether a re asonable person would have known of the risk); United States v. Redding , 14 U.S.C.M.A. 242, 245, 34 C.M.R. 22, 25 (1963) (finding aggravated assault by culpable negligence even where the government and defense both agreed the appellan t never intended to harm the victim). Therefore, it is sufficient if, “when viewed in the light of human experience,” a reasonable person in appellant’s circumstance s would have known her ne gligent omissi on “might foreseeably result in harm to [her son.]” Manual for Courts-Martial (2012 ed.) [hereinafter MCM], pt. IV, ¶ 68a.c.(3)). The panel could have been convinced appellant was sincerely unawar e of the potential harm to her son, while at the same time concluding her l ack of awareness was unreasonable and criminally negligent. Essentially, the pa nel could have found appellant’s neglig ent omission was accompanied by a culpable disregard for the foreseeable consequences, even if not a
conscious and deliberate disregard.

Among the available facts an d circumstances in evid ence for th e panel to consider were the following: TK was only ten ye ars old at the time of the offense; TK was living at the same address listed on appellant’s military records as her residence; TK had bruises and other injuries covering approximately 8% of his body’s surface area ; TK’s injuries were visible enough to th e school staff to prompt
them to seek immediate medical attentio n for TK; and the panel had photographic evidence of TK’s injuries from which they could determine whet her appellant’s lack
of awareness amounted to a culpable disr egard for TK’s health, safety, and welfare. Appellant also made several admissions to a special agent from which the panel could judge her credibility and the reasonableness ofher professed lack of awareness. Specifically, she was aware he r son had been punish ed the day before the injuries were di scovered for eating a popsicle, and was fami liar enough with her
son’s extracurricular activities to exclud e other potential caus es of injury, but
claimed to be unaware of visi ble physical injuries to her son that were consistent
with assault.

Essentially—when considering “the conditions surroundi ng the neglectful conduct” (e.g., the read ily apparent nature of TK’s bruises and self-protective body posture), “the provisions made for care of th e child” (which proved to be insufficient to make her aware of inju ries covering 8% of TK’s body), and “loc ation of the parent . . . responsi ble for the child rela tive to the location of the ch ild (e.g., appellant was not deployed to a foreign loca tion, but apparently living in the same house)—a reasonable panel could have concluded appellant’s negligent omission was accompanied by a culpable disregard fo r the foreseeable cons equences to TK.
Id.

Moreover, after careful review of the evidence presented at trial, we are convinced beyond a reasonab le doubt appellant endangered TK’s physical health, safety, and welfare through culpable negligen ce. Our finding of culpable negligence is not a reflexive indictment of any parent that fails “to be omni sciently aware of a child’s well-being at all time s[,]” as appellant cautions. Instead, it is a conclusionKOTH—ARMY 20150179

4 borne of the circumst antial evidence concerning appe llant’s negligent omission when ensuring TK received timely medical care for serious and visible injuries.

Actus Reus: Endangerby Subjecting to a Reaso nable Probabi lity of Harm

When appellant failed to seek medical care for her ten-year -old son after he sustained visible injuries co vering 8% of the surface ar ea of his body, her negligent omissions endangered her son—that is, it resulted in a reasonable pr obability that
her son would be harmed. With in the context of this offens e, “the threshold of risk for ‘endanger’ is c onduct that subjects the child to a ‘reaso nable probability,’ not merely a reasonable pos sibility, of harm.” United States v. Plant , 74 M.J. 297, 300 n.4 (C.A.A.F. 2015). See also MCM , pt. IV, ¶ 68a. c.(5) (defining “endanger” as subjecting a child to a “rea sonable probability ofharm.”). “Act ual physical or
mental harm to the chil d is not required.” Id. ¶ 68a.c.(4). In stead, the offense requires that an appellant’s “actions re asonably could have ca used physical or mental harm or suffering.” Id. We note, as did our superior court, the “threshold of risk” for proving enda ngerment (i.e., reason able probability) is higher than the threshold for pr oving culpab le negligence (i.e., foreseeab ility although not necessarily the natural and probable cons equence). Plant , 74 M.J. at 300 n.4.

Based on the facts in this case, a reasonable panel could have found appellant subjected her son to a reasonable pr obability of additional physical harm and suffering by failing to notice or put into place a mechani sm for providing her notice of serious and readily apparent injuries to her son (i.e., a neglig ent omission). First, as previously mentioned, the panel had photographic evidence of the extensive bruising on TK’s body, from wh ich they could asse ss the risk of additional harm and suffering from delayed medi cal care. Second, the panel heard testimony from the attending pediatrician, who spoke specifica lly about the continued pain and suffering from TK’s injuries. The pe diatrician testified she imme diately noticed the visible bruising on TK’s body. When she examined TK, he pulle d his arm away and made “a gasping sound” when she touched his arm. She also noticed a loss of mobility in
TK’s arm “because it was too painful” when he tried to rotate it. Third, the pediatrician also testified about the risks of additional harm fr om delayed medical care for TK’s particular injuries.

In our analysis, we find some, but not all, ofthe risks described by the attending pediatrician constituted a reasona ble probability of ha rm. For example, there may have been a reasonable po ssibility the risks associat ed with TK’s injuries could have resulted in death or permanent brain injury, but these risks were likely not a reasonable probability. In contrast , the extensive bruisi ng across TK’s body
and the hard tissue in his ar m muscle presented a reasonab le probability of internal bleeding, muscle breakdow n, and rhabdomyolysis. C onsequently, we are also convinced beyond a reasonab le doubt appellant’s culpab le negligence endangered TK’s physical health, safe ty, and welfare by subjecting him to a reasonable probability of additi onal physical ha rm and suffering.KOTH—ARMY 20150179

5 Prejudice to Good Order and Discipline

As required pursuant to United States v. Fosler , 70 M.J. 225, 226 (C.A.A.F. 2011), the Specification of Ad ditional Charge II alleged the termin al element of an Article 134, UCMJ, offense as follows: “such conduct being to the prejud ice of good order and discipline in the armed forces and ofa nature to brin g discredit upon the
armed forces.” There is in sufficient evidence in the record establishing the terminal element beyond a reasonable doubt as it relates to th e effect on good order and discipline. Therefore, we except the unsup ported language from the Specification of Additional Charge II.

CONCLUSION

On consideration of the entire recor d, we AFFIRM only so much of the Specification of Additional Charge II as finds:

In that [appellant], U.S. Army, at or near Schofield Barracks, Hawaii, on or about 22 Apr il 2014, had a duty for the care of [TK], a child under the age of 16 years, and did endanger the welfare of sa id [TK], by failing to seek medical care for injuries to his arms, legs, buttocks, and head, and that such condu ct constituted culpable negligence, such co nduct being of a nature to bring discredit upon th e armed forces.

The remaining findings of guilty are AFFIRMED.

In evaluating the factors for potential sentence reassessme nt pursuant to United States v. Winkelmann , 73 M.J. 11, 15-16 (C .A.A.F. 2013), and United States v. Sales, 22 M.J. 305, 308 (C.M.A . 1986), we fi nd there is no change to the sentencing landscape. The gravamen ofmisconduct has no t changed, and the charges before us are commonl y reviewed by this court. Accordingly, the sentence approved by the convening authority is AFFIRMED. Al l rights, privileges, and property, of which ap pellant has been depr ived by virtue of that portion of the findings set aside by this decision, are ordered restored. See UCMJ arts. 58a(b), 58b(c), 75(a).

Senior Judge TOZZI and Judge CELTNIE KS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: