UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman BRANDI D. MEDEIROS

United States Air Force

ACM S32289

2 June 2016

Sentence adjudged 7 October 2014 by SPCM convened at Joint Base San 

Antonio–Randolph, Texas. Military Judge: Mark W. Milam (sitting alone).

Approved sentence: Bad-conduct discharge, confinement for 7 days, and 

restriction for one month.

Appellate Counsel for Appellant: Lieutenant Colonel Judith A. Walker,

Major Isaac C. Kennen, Major Thomas A. Smith, and Captain Annie W. 

Morgan. 

Appellate Counsel for the United States: Lieutenant Colonel Roberto 

Ramirez and Gerald R. Bruce, Esquire.

Before

MITCHELL, SANTORO, and MAYBERRY

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

SANTORO, Judge:

A military judge sitting as a special court-martial convicted Appellant, pursuant to 

her plea, of wrongfully using methamphetamine on divers occasions in violation of Article

112a, UCMJ, 10 U.S.C. § 912a. Contrary to her pleas, she was convicted of wrongfully 

using marijuana on one occasion and endangering the welfare of her child, in violation of 

Articles 112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934. The adjudged and approved 

sentence was a bad-conduct discharge, confinement for 7 days, and restriction to the limits 

of her base for one month. 
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Appellant argues that the military judge erred when he admitted, over Defense 

objection, a child neglect investigation report prepared by the state’s child welfare agency 

and that the evidence was legally and factually insufficient to support her conviction for 

child endangerment. Our resolution of the latter issue makes it unnecessary to resolve the 

former.

Background

Appellant told the military judge during her guilty plea inquiry that she used

methamphetamine with her then-boyfriend, TJ, on three or four weekends in January and 

February, 2014. TJ introduced the substance to her. The first time she used 

methamphetamine she did not know what it was (although she did know it was a prohibited 

substance), but after that initial use TJ told her the substance was methamphetamine.

During the weekend of 23 February 2014, Appellant and a friend, Senior Airman 

(SrA) SH, went to a mall to get pedicures. They then went to a restaurant where they ate 

and drank alcoholic beverages for several hours. After leaving the restaurant, they went to 

a local bar and continued to drink until the bar closed at 0200. SrA SH was too intoxicated 

to drive so Appellant drove her to the apartment Appellant shared with TJ and their fivemonth-old daughter, BAH.

Appellant, SrA SH, and TJ drank “razberitas” and smoked methamphetamine and 

marijuana. Around sunrise, Appellant drove SrA SH back to the bar to retrieve her car. TJ 

was left in the apartment to care for BAH, who had apparently remained asleep throughout

the evening.

The following day, SrA SH, remorseful about her drug use and concerned about 

BAH’s welfare, told a non-commissioned officer what had happened. That disclosure 

ultimately led to both child protective services and criminal investigations. Child 

protective services concluded that Appellant had endangered BAH on multiple occasions 

by leaving her in her father’s care while he smoked methamphetamine.

Additional facts necessary to resolve the assignments of error are included below.

Legal and Factual Sufficiency

Appellant argues that the evidence is legally and factually insufficient to sustain her

conviction for endangering the welfare of her child. The specification at issue alleged that 

at or near San Antonio, Texas, Appellant:

on divers occasions between on or about 1 January 2014 and 

on or about 23 February 2014, was responsible for the care of 

[BAH], a child under the age of 16 years, and did endanger the 
3 ACM S32289

welfare of [BAH], by leaving the said [BAH] under the care of 

[TJ] while the said [TJ] smoked methamphetamine, 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.

We review issues of legal 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 prosecution, a reasonable 

factfinder could have found all the essential elements beyond a reasonable doubt.” United 

States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 

M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw every 

reasonable 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); see also United States v. McGinty, 38 

M.J. 131, 132 (C.M.A. 1993).

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, [we are] 

convinced of [Appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. In 

conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” 

applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] 

own independent determination as to whether the evidence constitutes proof of each 

required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. The term 

reasonable doubt, however, does not mean that the evidence must be free from conflict. 

United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our assessment of legal and 

factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38 

M.J. 270, 272 (C.M.A. 1993).

The prosecution called two witnesses and introduced one exhibit related to this 

offense. SrA SH testified about the 23 February 2014 incident, noting that Appellant left 

TJ alone with BAH while she drove SrA SH back to her car. SrA SH offered no evidence 

with respect to any other instances in which BAH was in TJ’s care.

The remainder of the evidence on this specification came from Mr. JL, an 

investigator with the Texas Department of Family Services, and a report generated to 

document the investigation. Mr. JL’s testimony suggested that he had authored only 

(unspecified) portions of the report. His testimony addressing whether Appellant knew TJ 

was using methamphetamine while caring for their daughter was as follows:

Q: Did you discuss the allegation against [TJ] with 

[Appellant] at that point?

A: Yes.
4 ACM S32289

Q: Okay, and what if anything did she tell you in regard to 

that?

A: She had knowledge that he was using methamphetamine 

while caring for her daughter.

Q: On multiple occasions?

A: Multiple occasions.

Q: Do you know how many?

A: Without getting to exactly what he said?

Q: Whatever the accused told you.

A: She just knew. She was aware that he was doing it.

Mr. JL testified that the allegation he was investigating was “neglectful supervision” 

because there was “drug use in the home.”

The only other evidence of Appellant’s knowledge of TJ’s methamphetamine use

while caring for their daughter was contained in Mr.JL’s department’s investigation report, 

which was admitted as a business record over Defense objection.1 The report contains two 

passages discussing this point. The first, in an overall summary of the investigation’s 

findings, said: “[Appellant] also admitted to leaving her child in the care of [TJ] with the 

knowledge that he was smoking meth while caring for their daughter.” The second, in what 

appears to be a summary of Mr. JL’s interview of Appellant, said: “She admitted to having 

knowledge of [TJ] smokinh (sic) meth on a regular basis while caring for their daughter 

during the week while she is at work.”

TJ did not testify. However, the investigative report indicates that he made the 

following statement regarding his methamphetamine use while caring for BAH: “He 

indicated he smoked meth in the home while caring for his daughter to help him stay up 

because he is as (sic) light sleeper.” A paragraph summarizing the entire investigation, 

which appears not to document a separate interview but a summary of all investigative 

steps, adds an additional detail not found in the interview summary: “He indicated he 

would smoke meth amphetamines (sic) approximately 2 to 3 times a week and would 

smoke in the restroom while his daughter was in her bedroom.”

 

1 Our analysis of this issue assumes, without deciding, that the investigative report was properly admitted.
5 ACM S32289

The prosecution offered no evidence concerning the amount of methamphetamine 

TJ used on any of these occasions. There was no evidence of the effect, if any (other than 

staying awake), that it had on him. There was no evidence concerning the effects of 

methamphetamine generally, or on people of TJ’s height, weight, build, and/or drug use 

history. There was no evidence that there was any actual harm to BAH.

Mr. JL also noted that Appellant’s apartment was clean, that BAH had food and 

diapers, was well-developed and well-nourished, and appeared to have bonded well with 

TJ. She had no bruises, diaper rash, or any physical signs of abuse or neglect.

The specification required the Government to prove that Appellant’s conduct was 

culpably negligent. Culpable negligence is 

a negligent act or omission accompanied by a culpable 

disregard for the foreseeable consequences to others of that act 

or omission. In the context of this offense, culpable negligence 

may include acts that, when viewed in the light of human

experience, might foreseeably result in harm to a child, even 

though such harm would not necessarily be the natural and 

probable consequences of such acts.

Manual for Courts-Martial, United States, pt. IV, ¶ 68a.c.(3) (2012 ed.).

The prosecution’s theory appeared to be that the use of any quantity of 

methamphetamine (no matter how small) while caring for a child was an offense. That 

belief was bolstered by the testimony of Mr. JL, who opined that “[u]sing drugs in the 

home while caring for a child is neglectful supervision under Texas family code.” The 

military judge’s questioning of Mr. JL also reflects this strict-liability theory.

Our superior court has stated, 

[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.

United States v. Plant, 74 M.J. 297, 300 (C.A.A.F. 2015). In Plant, the accused was 

convicted of child endangerment when he drank an excessive amount of alcohol while 

caring for his 13-month-old child. Id. at 298–99. The child was a normal, healthy 13-

month-old without any apparent special needs and was in his crib and away from Plant’s 
6 ACM S32289

alcohol use at the time of the offense. Id. In finding the evidence legally insufficient to 

sustain Plant’s conviction, our superior court noted that while Plant’s actions were 

irresponsible and “the possibility of harm could not be ruled out, . . . no rational trier of 

fact could have found beyond a reasonable doubt that there was a reasonable probability 

that [the child’s] mental or physical health, safety, or welfare were endangered on the night 

in question.” Id. at 300.

Although Appellant’s case is distinguishable from Plant in that methamphetamine 

is per se illegal whereas alcohol is not, the required evidentiary predicate—that there be a 

reasonable probability of harm—remains the same. Based on the absence of any evidence 

concerning the quantity of methamphetamine TJ ingested on any or all of the occasions on 

which he was the sole caretaker for BAH, the lack of evidence of the effects of 

methamphetamine, and the reasonable probability of impairment of functioning or 

reasoning, we conclude that the evidence is legally insufficient to support Appellant’s 

conviction for child endangerment.

Moreover, having reviewed the entire record of trial, in particular noting the vague 

generalities of the statements attributed both to Appellant and TJ, we are not persuaded 

beyond a reasonable doubt that Appellant is factually guilty of child endangerment. With 

respect to the 23 February 2014 incident when Appellant left BAH in TJ’s care while she 

returned SrA SH to her car, while there is evidence of methamphetamine use (coupled with 

marijuana and alcohol use), there is no evidence of the effects those substances might 

reasonably have had on TJ.2 We also note that the military judge found Appellant not 

guilty of driving a vehicle while impaired by drugs at that same time and the evidence 

suggested that the quantity of controlled substances ingested by Appellant and TJ were 

similar, further casting doubt on whether TJ was sufficiently impaired by 

methamphetamine to meet the prosecution’s burden of proof.

With respect to the occasions prior to 23 February 2014, we find Mr. JL’s testimony 

failed to establish when Appellant became aware that TJ was using methamphetamine 

while caring for their daughter. His testimony could equally be understood to mean that 

Appellant learned of TJ’s methamphetamine use with the child after child protective 

services had been called as that she had been aware of it at the time she left BAH in his 

care.

As we find Appellant’s conviction for child endangerment both legally and factually

insufficient, we set aside the findings of guilty to this charge and specification.

 

2 Even had such evidence been introduced, we question whether the specification’s allegation that endangerment 

occurred “while [TJ] was smoking methamphetamine” would have been factually or legally sufficient, in that the 

evidence established that the methamphetamine use had concluded when Appellant left BAH in TJ’s care. (Emphasis 

added.)
7 ACM S32289

Sentence Reassessment

Having set aside and dismissed the child endangerment charge, we must next 

determine whether we can reassess the sentence or must return the case to the convening 

authority for a rehearing. We have “broad discretion” when reassessing sentences. United 

States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly 

held that if we “can determine to [our] satisfaction that, absent any error, the sentence 

adjudged would have been of at least a certain severity, then a sentence of that severity or 

less will be free of the prejudicial effects of error.” United States v. Sales, 22 M.J. 305, 

308 (C.M.A. 1986).

This analysis is based on a totality of the circumstances with the following as 

illustrative factors: dramatic changes in the penalty landscape and exposure, the forum, 

whether the remaining offenses capture the gravamen of the criminal conduct, whether 

significant or aggravating circumstances remain admissible and relevant, and whether the 

remaining offenses are the type that we as appellate judges have experience and familiarity 

with to reliably determine what sentence would have been imposed at trial. Winckelmann, 

73 M.J. at 15–16. 

The penalty landscape has not dramatically changed. Appellant was tried by a 

special court-martial which could have imposed no more than a bad-conduct discharge and 

one year in confinement. The offenses for which we affirm her convictions—using 

methamphetamine on divers occasions and using marijuana on a single occasion—still 

subject Appellant to the jurisdictional maximum of the court-martial.

It is less clear whether the child endangerment offense or the drug offenses were 

considered more severe by the sentencing authority. Because the sentencing authority was 

a military judge, we are more likely as appellate military judges to be confident of the 

sentence the military judge would have adjudged absent the error. Moreover, less than one 

page of trial counsel’s 12-page sentence argument discussed the child endangerment 

offense.

Applying the Winckelmann factors to this case, we are confident that reassessment 

by this court is appropriate. The remaining offenses of illegal drug use are offenses that 

we have familiarity with in determining appropriate and just sentences. Appellant’s use of 

methamphetamine on multiple occasions was neither experimental nor unplanned. She 

told SrA SH that she had determined when and how much methamphetamine and 

marijuana she could use to avoid being caught by the Air Force’s drug detection program 

and planned her drug use accordingly. Absent any error, the adjudged sentence would have 

been no less severe than a bad-conduct discharge. This reassessed sentence is free of any 

prejudicial effects of error.
8 ACM S32289

Conclusion

The findings of guilty to Specification 2 of the Additional Charge and the Additional 

Charge are set aside and dismissed. The remaining findings of guilty are affirmed. We 

have reassessed the sentence to a bad-conduct discharge. The findings, as modified, and 

the sentence, as reassessed, are correct in law and fact and no error materially prejudicial 

to the substantial rights of Appellant remains. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. 

§§ 859(a), 866(c). Accordingly, the findings, as modified, and the sentence, as reassessed,

are AFFIRMED.

FOR THE COURT

 LEAH M. CALAHAN

Clerk of the Court