This opinion is subject to administrative correction before final disposition.

Before KISOR
, DALY
, and MIZER Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.

Jaden T. ROHLFS Lance Corporal (E

- 3 ), U.S. Marine Corps Appellant

No. 20 2 300019

_________________________
Decided: 23 J uly 2024

Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge : Nicholas S. Henry

Sentence adjudged 28 September 2022 by a general court

- martial convened at Marine Corps Base Camp Lejeune
, North Carolina, consisting of a military judge sitting alone. Sentence in the Entry of Judgment : reduction to E

- 1, confinement for 24 months
, forfeiture of all pay and allowances
, and a dishonorable discharge

. For Appellant: Major Joshua P. Keefe
, Major, USMC (Argued) Lieutenant Jackson M. Beach
, JAGC, USN ( On Brief)U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

2 For Appellee: Lieutenant Lan T. Nguyen, JAGC, USN (Argued) Lieutenant Commander James P. Wu Zhu, JAGC, US N (On Brief)

Senior Judge DALY delivered the opinio n of the Court, in which Senior Judge KISOR and Judge MIZER joined.

_________________________
This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Ru le of Appellate Procedure 30.2.

_________________________

DALY
, Senior J udge: Appe llant was charged with one specification of negligent homicide, in violation of Article 134, Uniform Code of Military Justice ( UCMJ )
, one specification of involuntary manslaughter, in violation of Article 119, UCMJ, and one specification of obstruction of justice, in violation of Article 131b, UCMJ. 1 Appellant pleaded guilty to negligent homicide and not guilty to involuntary manslaughter and obstruction of justice. A military judge, sitting alone, convicted Appellant of negligent homicide and involuntary m anslaughter and found him not guilty of obstruction of justice. After findings were entered, t he military judge conditionally dismissed Appellant’s negligent homicide conviction and sentenced him for involuntary manslaughter.

A ppellant asserts one assignment of error (AOE): whether the evidence is legally and factually sufficient to support his conviction of involuntary manslaughter

. We find no prejudicial error and affirm.



### I. B ACKGROUND

1. Live Fire Training and Follow

- O n Inspections Appellant conducted live fire training with his platoon on Range 111 in Twentynine Palms, California on 2 October 2022

. The range control officer gave a safety brief to the Marines b efore ammunition was distributed and the exercise began. The safety brief included the four we apons safe handling

1 10 U.S.C. §§ 934, 919, 931b.U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

3 rules

. 2 Appellant attended th is safety brief with his platoon

. As a Marine
, Appellant had been repeatedly instructed on th e four weapons safe handling rules beginning in boot camp

. A nd a s a Marine rifleman 3 serving with the infantr y , Appellant handled firearms routinely. At the conclusion of the live fire training on Range 111, Appellant and his platoon underwent an inspection with the Marshalling Area Control Officers ( MACO ) . The MACO inspection consisted of two Marines who checked each platoon member ’ s rifle, cha mber , magazines, gear, and person for any live ammunition. This inspection specifically included pulling and locking each rifle ’ s bolt back to the rear and examining inside the chamber to e nsure no rounds remained in the wea pon or in the possession of the Marine being inspected

. Afterwards
, Appellant and his platoon went through a second inspection performed by their squad leaders

. For the second inspection the squad leader visually inspected each Marine ’ s rifle and gear for ammunition. Appellant’s squad leader, Corporal (Cpl) B eta , 4 testified he inspected Appellant’s rifle, the
mag azines, pouches, and any gear in the vicinity. Corporal B eta further stated Appellant’s rifle was in condition four

. 5 After the squad inspection, Appellant traveled with h is platoon to Range 230. They arrived in the evening and bivouacke d outside Range 230

. The next day, 3 October 2022, the agenda was to pla n , rehears e , and conduct reconnaissance for the upcoming live fir e exercise attacking a mock town on Range 230 the following day

. No ammunition was distributed to the platoon or to Appellant. No live fire was scheduled for this day

. As such, no additional safety brief was given

. The platoon and Appellant s tarted their day with a tape

- house exercise

. The tape

- house simulated the building’s walls and doors with engineer tape on the ground that formed an outline of the buildings

. 6 The Marines practiced

2 (1) Treat every weapon as if it was loaded; (2) Never point your weapon at anything you do not inten d to shoot; ( 3 ) Keep your finger straight and off the trigger until you inten d to fire; and ( 4 ) Keep your weapon on safe unt il you inten d to fire

. R

. at 269, 296 , and 309

.

3 (Appellant ’s Military Occupational Specialty is 0311 , Rifleman) Pros Ex. 11 at 2.

4 All names in this opinion, other than those of Appellant, the judges
, and counsel, are pseudonyms.

5 Safety on, magazine removed, chamber empty, bolt forward, and ejection port cover closed

. R

. at 142 and 282

.

6 R. at 140, 204

- 220, 251, and 304.U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

4 clearing ( the removal of enemy forces ) from the simulated tape

- house buildings. Captain ( Capt ) Sierra
, the r ange Officer

- in

- Charge, explained that tape

house exercises could be conducted anywhere, even when not on a range. During these exercises Marines may often flag 7 each other ; so prior to any tape

house exercise all Marines conduc ting that training would normally be cleared 8 out at a minimum by their squad leader . Marines would not take their weapons of

f safe or pull the trigger. However, t here was no testimony that Appellant or his squad were inspected f or ammunition or verified for condition four weapons before the tape

- house exercise.
Afte r the tape

- house exercise
, t he platoon ate and began weapons maintenance. Several Marines testified that the entire platoon conducted weapons maintenance in the same location. However, no one specifically testified that Appellant was seen there cleaning his weapo n

. That afternoon, another Marine unit , not Appellant’s, completed its live fire training on Range 230. O nce th ose Marines were inspected for live a mmunition and shell casings (brass)
, they departed Range 230

. T he range itself was not cleared of ammunition or shell casings between live fire exercise s

. Specifically, Capt Sierra
, authorized the previous company to depart the range without conducting a police call
, 9 where the Marines cleaned the range to return
any shell casings or live rounds back to him for accountability. This decision was made to save time
, as a police call could take two to four hours, “ [a] nd that’s the time we did not have to waste before the sun came down for the next company to do their dry run.” 10 Corporal Alpha testified that there were live rounds on Range 230, explaining “ [t] here was just various rounds [on the range] . So pretty much everything from 5.56 to 50 cal. t hat h ad just been discarded. Whether it was empty casing or live round.

. . . there was a lot of rounds in the training area.” 11

7 Pointing or sweeping a weapon at someone.

8 Marine perform s unload , lock s bolt to the rear, allow s for secondary inspection to ensure there are no live rounds or shell casings in the chamber , release s and watch es the bolt go forward on an empty chamber

. R

. at 250, 259 , and 300

.

9 When every Marine traces their footstep s from whe re they finished to where they started in order to pick up any brass fired from their weapons. I f they happen to find live ammunition on the ground, they would pick that up as well

. R

. at 199.

10 R. at 204.

11 R. at 143.U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

5 2. The Range Walk Through and Shooting After the other unit completed its live fire events, Capt Sierra authorize d Appellant and his platoon to enter Range 230 for familiarization . The platoon was given access to the range so that they could “walk through the range, see the layout

... The only thing they were allowed to take with them due to only being a walk through wa s their weapon, which is on their body at all times
anyways . And then a water source as well. ” 12 Appellant’s squad was responsible for clearing building 18

. T he p latoon c ommander directed Appellant’s squad, to “ go ahead and go into the building and take a l ook around

. ” 13 Specifically, this was not a dry run where Marines follow the plan as if it were really happening, moving tactically

. 14 However, the Marines were not explicitly order ed to refrain from tactically entering the building. 15 C orporal Romeo testified the Marines treated the train ing seriously and had their weapons at the ready , not slung over a shoulder in an administrative carry

. 16 Appellant carried his weapon tactically and was not corrected by his fire team leader. 17 Appellant’s squad enter ed the first room of the building in the following order: Lance Corporal ( LCpl ) Bravo (deceased Marine) , Appellant, Cpl Alpha, Cpl Charlie
, Cpl Tango ( LCpl Bravo ’s and Appellant ’s fire team leader ) , Cpl Echo
, LCpl Papa, Cpl Romeo , and lastly Cpl Beta

. L anc e C orporal B ravo and Appellant move d into the second room on the left. Lance Corporal Bravo enter ed the third room and returned to the doorway of the second room. Lance Corporal Bravo and Appellant we re a pproximately 8 feet apart. Corporal Alpha testified he saw Appellant smile and raise his rifle

. “[Appellant] wasn’t expecting there would to be a live round and he discharged the weapon.” 18 C orporal Tango testified that after entering the first room through the windo w , he practiced the movements of clearing the second room with his rifle slung when

12 R. at 197.

13 R. at 129.

14 A dry run s imulate s combat movements of entering a house with weapons carr ied at the ready

. R. at 129.

15 R. at 134

.

16 R. at 244.

17 R. at 264.

18 R. at 143.U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

6 he faced Appellant. According to Cpl Tango , when the shot went off
, Appellant had the weapon “raised” and o n his “shoulder aimed towards [ LCpl Bravo ] .” 19 Immediately following the shooting, Appellant drop ped his rifle
, sc reamed
, ran out , and called for a Corpsman

. Corporal Echo helped Appellant call for a Corpsman. Corporal Echo testified that Appellant then sat down in the corner of the first room of building 18 and started crying. Corporal Echo hugged and comforted Appellant and wanted to make sure he was okay. H e testified that Appellant said, “[ t ]hat it wasn’t supposed to happen.” 20 Corporal Echo also testified that after he let go of him , Appellant pull ed another round out of his pocket and shoved it into the ground. C orporal Echo described it as a “ casing

.

. . shiny brass

. ” 21 Corporal Echo did not know the caliber
, or if it was a live round or merely a shell casing. H e also testified that as Appellant shove d the round in to the ground
, Appellant said “f ** k this s ** t.” 22

3. Appellant Pleaded Guilty to Negligent Homicide Appellant pleaded guilty to negligent homicide without a plea agreement. The military judge went over the defense of accident with him

. After the military judge found Appellant’s guilty plea prov ident and accepted it, the G overnment moved forward on the charges to which Appellant pleaded not guilty (involuntary manslaughter and obstruction of justice)

.

4. Appellant Entered a Stipulation of Fact and Evidence During the contested part of the case, Appellant entered a stipulation of fact and stipulated to evidence 23 that his weapon, fully functional, discharged the 5.56 round that struck LCpl Bravo in the chest. H e was airlifted to Naval Hospital Twentyn ine Palms in an unsuccessful attempt to save his life. Appellant also stipulated that NCIS agents collected a “live 5.56 CAL round” from Building 18 at Range 230. The live round was found on the ground in a corner adjacent to the entrance to Building 18. Appellant also stipulated the round (Prosecution Exhibit 14

– Live Round) was authentic and the proper

19 R. at 255.

20 R. at 224.

21 Id

.

22 R. at 225.

23 Pros. Ex. 18. The Stipulation of Fact was not used during Appellant’s guilty plea and was introduced as evidence during the contested portion of his case.U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

7chain of custody was maintained. Appellant did not object to entering as evidence photographs of the same in Prosecution Exhibit 5. 24
Additional facts ne cessary to resolve Appellant’s AOE are discussed below.



### II. D ISCUSSION

A. The e vidence is l egally and f actually s ufficient

.

1. Standards of review:

a. Legal sufficiency:

To determine legal sufficiency, a question we review de novo, we ask whether, “considering the evi dence in the light most favorable to the prosecution, a reasonable fact

- finder could have found all the essential elements beyond a reasonable doubt.” 25 In conducting this analysis, we must “draw every reasonable inference from the evidence of record in fav or of the prosecution.” 26 “As such, the standard for legal sufficiency involves a very low threshold to sustain a conviction. ” 27

b. Factual Sufficiency:

Our authority to review cases for factual sufficiency is found in Article 66, UCMJ. Historically, our duty to review for factual sufficiency was to conduct a de novo review of the case. 28 That changed for offenses committed after 1 January 2021, when Congress amended Article 66. As we have previously stated, to trigger factual sufficiency review under the present Article 66(d)(1)(B), UCMJ, two circumstances must be present: “ (1) a request of the

24 Pros. Ex. 5, 4 - 5.

25 United States v. Turner , 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Vir

ginia , 443 U.S. 307, 319 (1979)); see also United States v. Gutierrez , 73 M.J. 172, 175 (C.A.A.F. 2014).

26 United States v. Nicola , 78 M.J. 223, 226 (C.A.A.F. 2019) (quoting United States

v. McGinty , 38 M.J. 131, 132 (C.M.A. 1993) (internal quotation and citation omitted) )

.

27 United States v. Smith
, 83 M.J. 350, 359 (C.A.A.F. 2023) (internal citations and quotations omitted, cleaned up).

28 United States v. Rosario , 76 M.J. 114, 117 (C.A.A.F. 2017).U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

8 accused; and (2) a specific showing of a deficiency in proof.” 29 In conduct ing our review, we are to give “ appropriate deference to the fact that the trial court

saw and heard the witnesses and other evidence. ” 30 We may not “dismiss, set aside, or modify [a] finding, or affirm a lesser finding” unless we are “clearly convinced that the finding of guilty was against the weight of the evidence.” 31

2. The Charge in this Cas e:
The involuntary manslaughter offense was charged as follows:
In that Lance Corporal Jaden T. R ohlfs, U.S. Marine Corps, did, while on active duty, at or near Marin e Corps Air Ground Combat Center Twentynine Palms, CA on or about 3 October 2021, by culp able negligence, unlawfully kill Lance Corporal [ Bravo ]
, U.S. Marine Corps, by shooting him with a service rifle. 32 Thus, in order to prove involuntary manslaughter, the Government had to
prove that, on or about 3 October 2021 : 1) Lance Corporal [ Bravo ] is de ad; 2) That the death resulted from the act or omission of Appellant; 3) That the killing was unlawful; and 4) That this act or omission of Appellant constituted culpable negligence.
The President defined “ culpable negligence ” as “a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission.” 33 Importantly, conduct is culpably negligent when, “view ed in the light of human experience, [the conduct] might foreseeably result in the death of another, even though death would not necessarily be a natural and probable consequence.” 34 As an example, the President identified several acts that could
amount to culpable negligence, including “pointing a pistol in jest at another

29 United States v. Harvey
, 83 M.J. 685, 691 (N

- M Ct. Crim. App. 2023), rev

. granted
,

_ M.J

.

__ , No. 23

- 0239 /NA, 2024 CAAF LEXIS 13 (C.A.A.F. Jan. 14, 2024)

30 Article 66(d)(1)(B)(ii).

31 Article 66(d)(1)(B)(iii).

32 Charge Sheet.

33 Manual for Courts

- Martial, United States (2019 ed .) [MCM], pt. IV, para. 57.c.(2)(a)(i) at IV

- 79.

34 Id

.U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

9 and pulling the trigger, believing, but without taking reasonable precautions to ascertain, that it would not be dangerous.” 35

Similar to his strategy at trial, Appellant here only cont ests the fourth element, arguing that the Government failed to prove that he acted with culpable negligence

.

3. The conviction is legally sufficient. Appellant asserts that his conviction for involuntary manslaughter is legally insufficient because the Gover nment failed to prove that Appellant wasculpably negligent. A necessary element of culpable negligence is foreseeability. “The test for foreseeability is ‘whether a reasonable person, in view of all the circumstances, would have realized the substantial a nd unjustifiable danger created by his acts.’” 36 Appellant argues that his conduct did not constitute culpable negligence since it was not foreseeable his rifle had a round in the chamber because of the previous day’s rifle inspections and t hat Appellant’s reliance on the previousinspections amounted to reasonable measures. We disagree. A reasonable person , in view of all the circumstances, would recognize the substantial and unjustifiable danger in raising a weapon to one’s shoulder
, point ing it at anothe r human being
, and pulling the trigger. Even if we assume that the fatal round remained in Appellant’s rifle from the live fire exercise on 2 O ctober 2024, it was Appellant’s responsibility to ensure the proper safe condition of his weapon before pointing it at another and pulling the trigger. Said another way, the other Marine’s failure to catch Appellant’s error does not absolve him of criminal liability

. This is especially so given the length of time between the inspections and the shooting, the presence of ammunition, and the nature and circumstances in which he handled and employed his weapon. Relying on United States v. White, Appellant argues that, “[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, or ordinary carelessness, howev er serious the consequences may happen to be, do not constitute ‘culpable negligence.’’’ 37 However, as we stated in United States v. Watlington
,

35 Id

.

36 United States v. Oxedine , 55 M.J. 323, 325 (C.A.A.F 2001) (quoting United States v. Brown , 22 M.J. 448, 450 (CMA 1986)).

37 App. Brief at 27 citing United States v. White , 7 C.M.R 448, 451 (U.S.N.B.R. 1953).U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

10 “this language from a 1953 case does not reflect the current state of the law.” 38 In culpable neglig ence cases, i t is not “necessary that appellant foresaw a fatal
outcome [;] ” the law only requires that “a reasonable person, in view of all thecircumstances” would have recognized the substantial and unjustifiable danger. 39 Accordingly, applying this objective standard
, Appellant’s subsequent “disbelief” 40 that his rifle discharged is irrelevant to the issue of whether he was culpably negligent

. Additionally, Appellant claims that the evidence of his failure to follow the four weapons safe handling rules cannot be per se culpable negligence. But t he trier of fact was not required to find that Appellant’s failure to follow the four weapons safe handing rules was per se culpable negligence and neither are

we

. 41 A reasonable trier of fact could find that Appellant should ha ve inspected his weapon the next day and not rel ied on the previous day’s inspections. Moreover, this, combined with his failure to follow the four weapon safe handling rules, aiming his rifle at L Cpl Bravo, removing the safety, and pulling the trigger, co uld constitute a culpable disregard for the foreseeable consequences to others.
We are convinced that a reasonable factfinder could have found

– as the military judge did

– all the essential elements of involuntary manslaughter, including culpable negligence, beyond a reasonable doubt. Thus, viewing this evidence in the light most favorable to the prosecution, the conviction is legally sufficient.

4. The conviction is factually sufficient. We find that while Appellant has made a showing sufficient to trigger ourfactual sufficiency analysis, he has not met his burden to show that his conviction is factually insufficient. After a complete review of the evidence and after giving appropriate deference to the fact that the military judge saw and heard

38 Watlington, 2023 CCA LEXIS 426
, at * 9 (N

- M. Ct. Crim. App. 2023) review denied , __ M.J. __, No. 24

- 0074/NA, 2024 CAAF LEXIS 130 (C.A.A.F. Mar. 5, 2024).

39 Id. at *12 (citing Oxendine , 55 M.J. at 325).

40 R. at 255.

41 If this was a memb ers case, there would be no per se culpability instruction, Dep’t of the Army Pam. 27

- 9, Military Judges’ Benchbook , para. 3a

- 43

- 2 (Apr. 12, 2024).U nited States v. Rohlfs
, NMCCA No. 202300019 Opinion of the Court

11 t he witnesses, w e are not clearly convinced that the verdict is against the weight of the evidence. 42



### III. C ONCLUSION
After careful consideration of the record and briefs of appellate counsel, and the excellent oral arguments of both counsel heard at the Washington Navy Yard on 14 May 2024, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant ’s substantial rights occurred. 43

T he findings and sentence are AFFIRMED

.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

42 Art 66(d) (1)(B), UCMJ.

43 Articles 59 & 66, UCMJ

.