United States v. Plant, 2015 CAAF LEXIS 609

Appellant (Air Force member) was convicted at a general court-martial of two aggravated sexual assaults, adultery, and child endangerment; sentenced to 12 years confinement, dishonorable discharge, reduction to E‑1. CCA affirmed. Supreme Court of the Air Force (this Court) granted review limited to legal sufficiency of the child endangerment conviction.
On April 30, 2011 Appellant hosted an off‑base party attended by six adults/teens; Appellant’s 13‑month‑old son slept in a crib in an adjoining room and did not awaken.
Appellant and four others drank heavily through the night; Appellant admitted drinking two–three drinks per hour over about five hours. Some witnesses said Appellant appeared unable to care for his child; others said he checked on the baby and told guests to be quiet.
The child endangerment specification alleged endangerment by use of alcohol and cocaine; the panel found guilt but excepted the words “and cocaine,” so conviction rested solely on alcohol use while having duty of care.
The legal question: whether evidence that Appellant consumed alcohol under the circumstances established culpable negligence that subjected the child to a "reasonable probability" of harm (the MCM definition of "endanger").

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether alcohol use alone (under the charged specification) was legally sufficient to prove child endangerment by culpable negligence	Plant argued that under the charged specification the surrounding circumstances of his alcohol consumption (strangers, drugs, sexual assaults at the party, young child present) could be considered and supported a finding of a reasonable probability of harm	Government argued the evidence, viewed in the light most favorable to the prosecution, showed culpable negligence and a reasonable probability of harm resulting from Plant’s heavy drinking while responsible for his child	Reversed: viewing the record most favorably to the prosecution, no rational trier of fact could find beyond a reasonable doubt that Plant’s alcohol use alone created a reasonable probability of harm to the healthy, sleeping 13‑month‑old child; conviction for Charge V set aside and dismissed; remand for sentence reassessment

Jackson v. Virginia, 443 U.S. 307 (establishes standard for review of sufficiency of evidence)
Stirone v. United States, 361 U.S. 212 (defendant entitled to be tried only on the charges presented in the specification)
United States v. Rauscher, 71 M.J. 225 (C.A.A.F.) (limits review to charged specification and panel findings)
United States v. Lubasky, 68 M.J. 260 (C.A.A.F.) (review confined to specification language and any exceptions/substitutions)
United States v. Kearns, 73 M.J. 177 (C.A.A.F.) (legal sufficiency reviewed de novo)