UNITED STATES, Appellee 

v. 

Joshua K. PLANT, Staff Sergeant 

U.S. Air Force, Appellant 

No. 15-0011 

Crim. App. No. 38274 

United States Court of Appeals for the Armed Forces 

Argued April 14, 2015 

Decided July 15, 2015 

OHLSON, J., delivered the opinion of the Court, in which ERDMANN 

and STUCKY, JJ., joined. RYAN, J., filed a separate dissenting 

opinion, in which BAKER, C.J., joined. 

 

Counsel 

For Appellant: Philip D. Cave, Esq. (argued); Captain Johnathan 

D. Legg (on brief); Captain Travis L. Vaughan. 

For Appellee: Captain Thomas J. Alford (argued); Colonel 

Katherine E. Oler, Lieutenant Colonel Steven J. Grocki, and 

Gerald R. Bruce, Esq. (on brief). 

Amicus Curiae for Appellant: Joshua J. Bryant (law student) 

(argued); Scott C. Idleman, Esq. (supervising attorney) and 

Aloysius F. Rohmeyer, Esq. (supervising attorney) (on brief) -- 

Marquette University Law School. 

Military Judge: J. Wesley Moore 

This opinion is subject to revision before final publication. 
United States v. Plant, No. 15-0011/AF 

2

Judge OHLSON delivered the opinion of the Court. 

Contrary to Appellant’s pleas, a general court-martial 

composed of officer and enlisted members convicted Appellant of 

two specifications of aggravated sexual assault and one 

specification each of adultery and child endangerment, in 

violation of Articles 120 and 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2012). The panel 

sentenced Appellant to confinement for twelve years, a 

dishonorable discharge, and a reduction to the grade of E-1. 

The convening authority approved the adjudged sentence, and the 

United States Air Force Court of Criminal Appeals (CCA) affirmed 

the findings and sentence.1

 United States v. Plant, No. ACM 

38274, 2014 CCA LEXIS 389, at *19, 2014 WL 4803255, at *6 (A.F. 

Ct. Crim. App. July 2, 2014). 

 We granted review in this case to determine whether the 

evidence was legally sufficient to support Appellant’s 

conviction for child endangerment. Despite viewing the evidence 

in the light most favorable to the Government, we conclude that 

no rational trier of fact could have found a reasonable 

probability that the child’s welfare was endangered. 

 

1

 We heard oral argument in this case at Marquette University Law 

School as part of the Court’s “Project Outreach.” See United 

States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This 

practice was developed as part of a public awareness program to 

demonstrate the operation of a federal court of appeals and the 

military justice system. 
United States v. Plant, No. 15-0011/AF 

3

FACTS

 The trial evidence established that on the night of April 

30, 2011, Appellant hosted a party at his off-base residence. 

Six people were in attendance: Appellant, his adult male 

friend, and four teenage women ranging in age from fifteen to 

eighteen years. Appellant’s thirteen-month-old son also was in 

the residence during the party, but he was asleep in his crib in 

an adjoining room and did not awaken during the night. Although 

he was deemed “a little delayed” physically because he had not 

yet begun to walk, Appellant’s son was otherwise healthy. 

Five of the six attendees at the party, including 

Appellant, consumed significant amounts of alcohol. When 

Appellant’s friend testified at the court-martial, he stated 

that he was “pretty sure everybody was pretty well drunk.” When 

Appellant gave a statement to investigators, he admitted he was 

drunk and estimated that during the party he consumed two to 

three alcoholic drinks per hour throughout the night. The 

drinking lasted approximately five hours, from 8:00 p.m. to 1:00 

a.m. 

At the court-martial, one of the young women who attended 

the party testified that Appellant “wasn’t in any condition to 

take care of his child.” Further, when Appellant’s friend was 

asked whether Appellant would have been able to care for his son 

if the need had arisen, he responded, “I would say no.” 
United States v. Plant, No. 15-0011/AF 

4

However, Appellant did remind his guests to keep the noise level 

down because the baby was sleeping, and witnesses testified that 

they thought Appellant went to check on his son throughout the 

night. Additionally, when the teenaged girl who was sober at 

the party was asked if she would have known what to do with the 

child if an emergency had happened, she testified, “Well kind 

of, yeah,” and “I guess.”2 

ANALYSIS

 The child endangerment offense alleged: 

Within the State of Arkansas, between on or about 9 April 

2011 and on or about 9 May 2011, [Appellant] had a duty for 

the care of L.E.P., a child under the age of 16 years, and 

did endanger the welfare of said L.E.P., by using alcohol 

and cocaine, and that such conduct constituted culpable 

negligence, and that under the circumstances, the conduct 

was of a nature to bring discredit upon the armed forces. 

 

 The panel found Appellant guilty of this specification but 

excepted the words, “and cocaine” and returned a finding of not 

guilty as to these excepted words. Thus, because of the manner 

in which the Government charged the offense, and because of the 

panel’s verdict in regard to the specification, the child 

endangerment conviction was based solely on Appellant’s use of 

alcohol at the time he had a duty to care for his son. See

United States v. Rauscher, 71 M.J. 225, 227 (C.A.A.F. 2012) 

 

2

 The evidence introduced at trial also demonstrated that 

Appellant sexually assaulted two of the young women at the party 

after they ingested cocaine. However, because these facts are 

not relevant to the granted issue before us, we will not address 

them further. 
United States v. Plant, No. 15-0011/AF 

5

(noting that accused has “‘substantial right to be tried only on 

charges presented in [a specification]’” (alteration in 

original) (quoting Stirone v. United States, 361 U.S. 212, 217 

(1960))); United States v. Geppert, 7 C.M.A. 741, 743, 23 C.M.R. 

205, 207 (1957) (noting that “the Government is free to 

prosecute under specifications couched in language of its 

choice”). Accordingly, we may not examine whether Appellant 

endangered LP by allegedly using cocaine during the party, by 

inviting virtual strangers into his home while his young son was 

present, or by sexually assaulting two young women in the same 

residence in which his son slept. Cf. United States v. Lubasky, 

68 M.J. 260, 264-65 (C.A.A.F. 2010) (indicating that our review 

is limited to the facts alleged in the specification and the 

findings of the panel, specifically considering whether any 

exceptions or substitutions had been made). Rather, the 

specific question before us is: 

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT 

THE FINDING OF GUILTY TO CHARGE V AND ITS 

SPECIFICATION (CHILD ENDANGERMENT) BECAUSE THE 

EVIDENCE FAILED TO PROVE APPELLANT’S ALCOHOL USE ALONE 

AMOUNTED TO CULPABLE NEGLIGENCE THAT ENDANGERED THE 

WELFARE OF L.P. 

 We review the legal sufficiency of the child endangerment 

offense de novo. United States v. Kearns, 73 M.J. 177, 180 

(C.A.A.F. 2014). To determine whether evidence is legally 

sufficient, we ask “whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of 
United States v. Plant, No. 15-0011/AF 

6

fact could have found the essential elements of the crime beyond 

a reasonable doubt.” United States v. Gutierrez, 74 M.J. 61, 65 

(C.A.A.F. 2015) (citation omitted) (internal quotation marks 

omitted). This determination is “based on the evidence before” 

the factfinder. United States v. Cauley, 45 M.J. 353, 356 

(C.A.A.F. 1996). 

In analyzing this issue, we first note the following 

elements of the child endangerment offense with which Appellant 

was charged: 

(1) That the accused had a duty for the care of a 

certain child; 

(2) That the child was under the age of 16 years; 

(3) That the accused endangered the child’s mental or 

physical health, safety, or welfare through design or 

culpable negligence; 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. 

 

Manual for Courts-Martial, United States pt. IV, para. 68a.b. 

(2012 ed.) (MCM). Although the parties address both the third 

and fourth elements in their briefs, we will focus exclusively 

on the third element because the outcome of this case turns on 

whether the evidence is legally sufficient to establish this 

element. 

As a threshold matter, the third element requires an 

accused to have “endangered” a child. The MCM defines this 
United States v. Plant, No. 15-0011/AF 

7

term, stating: “‘Endanger’ means to subject one to a reasonable 

probability of harm.” MCM pt. IV, para. 68a.c.(5). We next 

note that the trial record indicates that Appellant’s son was a 

healthy thirteen-month-old child who did not have any medical 

conditions that increased his risk of harm compared to any other 

typical thirteen-month-old child.3

 We further note that 

Appellant’s son was placed in his own crib during normal bedtime 

hours in order for him to sleep for the night. It is within 

this factual context that we must analyze the legal sufficiency 

of the child endangerment offense in the instant case. 

To be clear, we deem Appellant’s actions of drinking an 

excessive amount of alcohol while caring for his young child to 

be irresponsible. However, a criminal conviction for child 

endangerment requires more than a showing of irresponsible 

behavior coupled with speculation by the prosecution about what 

possibly could have happened to a child as a consequence of an 

accused’s conduct. Rather, it requires proof that the accused’s 

conduct, either through design or culpable negligence, resulted 

in a reasonable probability that the child would be harmed. 

Here, there was no such showing by the Government. 

Specifically, we find no substantiation in the record for the 

 

3

 As noted above, although LP was considered “a little delayed” 

physically because he had not yet started to walk, Appellant 

testified that according to LP’s pediatrician this “wasn’t a 

problem.” 
United States v. Plant, No. 15-0011/AF 

8

proposition that Appellant’s intoxication created a reasonable 

probability that his healthy thirteen-month-old child, who was 

placed in his own crib to sleep during ordinary bedtime hours, 

would experience harm. Therefore, even though we view the 

evidence in the light most favorable to the Government and 

acknowledge that the possibility of harm could not be ruled out, 

on the facts of this case we are compelled to conclude that no 

rational trier of fact could have found beyond a reasonable 

doubt that there was a reasonable probability that LP’s mental 

or physical health, safety, or welfare were endangered on the 

night in question.4

 

CONCLUSION

The decision of the United States Air Force Court of 

Criminal Appeals is reversed as to Charge V and its 

 

4

 The third element for child endangerment has two requirements: 

(1) the accused’s acts or omissions must endanger the child’s 

safety; and (2) the accused’s mental state must be that of 

“culpable negligence.” See MCM pt. IV, para. 68a.b.(3). Each 

aspect of the third element requires a different threshold of 

risk. As we explain in the main text, the threshold of risk for 

“endanger” is conduct that subjects the child to a “reasonable 

probability,” not merely a reasonable possibility, of harm. 

However, the threshold of risk for the mental state of culpable 

negligence is lower. The Government establishes culpable 

negligence if a reasonable person would be aware that the 

accused’s conduct “might foreseeably result in harm to a child, 

even though such harm would not necessarily be the natural and 

probable consequences of such acts.” MCM pt. IV, para. 

68a.c.(3). Because the threshold of risk of harm for 

establishing culpable negligence is lower than that required for 

endangerment, we note that the facts of this case may satisfy 

the mental state of culpable negligence despite failing to 

establish the act of endangerment. 
United States v. Plant, No. 15-0011/AF 

9

Specification and the sentence, but affirmed in all other 

respects. The findings of guilty with respect to this charge 

and specification are set aside, and Charge V and its 

Specification are dismissed. The record of trial is returned to 

the Judge Advocate General of the Air Force for remand to the 

lower court for reassessment of the sentence. 
United States v. Plant, No. 15-0011/AF 

RYAN, Judge, with whom BAKER, Chief Judge, joins 

(dissenting): 

The majority holds that the Government’s chosen charging 

language limits this Court to considering “‘alcohol use alone’” 

in the strictest sense, separating Appellant’s alcohol use from 

the circumstances under which he used alcohol and his behavior 

under the influence of alcohol. United States v. Plant, __ M.J. 

__, __ (5) (2015). However, the act of consuming alcohol and 

the circumstances of consumption cannot be so neatly 

disaggregated, nor is there legal authority or any other reason 

compelling us to do so. 

This Court reviews questions of legal sufficiency de novo. 

United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011). 

To determine legal sufficiency, this Court asks whether, when 

the evidence is “viewed 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. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011) 

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

Assessment of legal sufficiency is limited to evidence produced 

at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 

1993). “In resolving questions of legal sufficiency, this court 

is bound to draw every reasonable inference from the evidence of 

record in favor of the prosecution.” United States v. Bright, 
United States v. Plant, No. 15-0011/AF 

2 

66 M.J. 359, 365 (C.A.A.F. 2008) (quoting United States v.

Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000)) (internal quotation 

marks omitted). 

Neither the factfinder nor this Court needed to divorce the 

circumstances under which Appellant used alcohol from that act. 

To the contrary, the Manual for Courts-Martial, United States

(MCM) defines “[c]ulpable negligence” in relation to child 

endangerment as “includ[ing] acts that, when viewed in the light 

of human experience, might foreseeably result in harm to a 

child.” MCM pt. IV, para. 68a.c.(3) (2012 ed.) (emphasis 

added). To view an act “in the light of human experience” 

requires considering its context. Moreover, the MCM specifies 

that a factfinder may consider circumstantial factors such as 

“the conditions surrounding the neglectful conduct”; “the 

proximity of assistance available”; “the nature of the 

environment”; “provisions made for care of the child”; and “the 

location of the parent or adult responsible.” Id. This Court’s 

precedent in child neglect and maltreatment cases, too, directs 

us to consider the circumstances. See United States v. Vaughan, 

58 M.J. 29, 35 (C.A.A.F. 2003) (upholding child neglect 

conviction where the trier of fact defined culpable negligence 

“by what was reasonable under the circumstances”); United States 

v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002) (holding that in 

maltreatment cases “[i]t is only necessary to show, as measured 
United States v. Plant, No. 15-0011/AF 

3 

from an objective viewpoint in light of the totality of the 

circumstances, that the accused’s actions reasonably could have 

caused physical or mental harm or suffering”). 

A rational trier of fact could certainly have concluded, as 

the members did in this case, that Appellant’s decision to 

consume so much alcohol constituted culpable negligence under 

the circumstances. Put simply, what is culpably negligent in 

one situation may not be so in another. This is not a parent 

who drank to excess alone or drank moderately as his healthy 

child slept, but a parent who drank to excess, in a milieu of 

strangers, sexual activities, and drug use, while serving as his 

dependent toddler’s sole caretaker. Under the circumstances, a 

rational trier of fact, properly instructed (as this panel was), 

could certainly have found that the charged culpable negligence 

by using alcohol (two to three drinks an hour, by Appellant’s 

own admission, over the course of a five-hour party), Plant, __ 

M.J. at __ (3), created a reasonable probability that the child 

would be harmed. The fact that no harm in fact occurred is 

fortuitous. 

As in United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 

2012), Appellant’s “‘substantial right to be tried only on 

charges presented in [a specification]’ was not violated.” Id.

at 227 (alteration in original) (quoting Stirone v. United 

States, 361 U.S. 212, 217 (1960)). Appellant was not tried for 
United States v. Plant, No. 15-0011/AF 

4 

conduct beyond the specification, for uncharged actions he took 

under the influence of alcohol, for example, but for choosing to 

consume as much alcohol as he did given the surrounding 

circumstances. These include the young age of the child and the 

inebriated or otherwise impaired strangers who had access to the 

child. Whether Appellant caused the surrounding circumstances 

is irrelevant: What is relevant is that the circumstances 

surrounding Appellant’s alcohol use created a reasonable 

probability of danger to his child. I respectfully dissent.