United States v. Smith
ACM 38943
| A.F.C.C.A. | Jul 14, 2017Background
- Appellant (Air Force lieutenant) was convicted at a judge-alone general court-martial of: assault consummated by a battery on a child under 16 (spanking HS), perjury (false testimony at a civil custody hearing), and child endangerment by culpable negligence (multiple alleged incidents of placing newborn BS on a changing table). He was sentenced to a dismissal.
- Relevant evidence: SS (wife) described a minor “plop/blup” incident placing BS on a changing pad (a couple-inch drop); KF (maternal grandmother) described three occasions (one relayed excitedly by SS, and two she observed as apparent "tosses" or "downward tosses") where Appellant placed BS on the changing table. Photographs and Appellant’s admission to CPS established the spanking of HS.
- At a December 2, 2013 civil custody hearing, Appellant denied (answering “no”) that he was “presently looking at a hearing . . . to determine whether [he] should stand charged with a sexual assault,” and later acknowledged there had been an allegation—elicited through follow-up questioning.
- The military judge acquitted Appellant of several other charges (including sexual assault specifications) but convicted on the three counts above; he excepted the words “on divers occasions,” "the mental health," and "throwing" from the child-endangerment specification, effectively modifying the specification to allege a single incident of “dropping” BS between Sep 16 and Nov 30, 2012.
- On appeal, Appellant challenged (1) legal/factual sufficiency of perjury, (2) factual sufficiency of the assault/battery on HS, and (3) ambiguity of the child-endangerment finding due to the military judge’s excepting of "on divers occasions," preventing identification of which alleged occasion formed the basis of conviction. The Court of Criminal Appeals (judges Harding, Mayberry, Brown) affirmed the assault conviction, but set aside and dismissed with prejudice the perjury and child-endangerment findings; the sentence was set aside and a rehearing on sentence authorized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of perjury conviction | Appellant: his answer was ambiguous/technically true given the compound/imprecise question; proof is factually insufficient | Government: the testimony at the civil hearing supported conviction for willfully giving false testimony about pending hearing/allegation | Reversed — court finds the answer ambiguous and factually insufficient, dismissing perjury specification |
| Factual sufficiency of assault on HS | Appellant: evidence insufficient to prove unlawful force beyond permissible parental discipline | Government: photographs and Appellant’s admission to CPS show he spanked HS causing bruises | Affirmed — court finds evidence convincing beyond a reasonable doubt |
| Ambiguity of child-endangerment finding (excepted "on divers occasions") | Appellant: removing "on divers occasions" leaves unclear which of multiple alleged incidents formed the basis for conviction, blocking factual-sufficiency review | Government: the only incident matching the excepted specification is SS’s "blup" (single minor drop) so the finding is not ambiguous | Reversed — court concludes multiple incidents in record meet the modified specification; findings are fatally ambiguous and dismissal with prejudice required |
| Sentence reassessment after dismissals | Appellant: (implicit) errors affected sentencing so reassessment/rehearing appropriate | Government: (implicit) may seek reassessment without rehearing | Court: cannot reliably reassess; sentence SET ASIDE and rehearing on sentence authorized |
Key Cases Cited
- United States v. Beatty, 64 M.J. 456 (legal/factual sufficiency standards)
- United States v. Turner, 25 M.J. 324 (legal sufficiency test)
- United States v. Humpherys, 57 M.J. 83 (evidence standard discussions)
- United States v. Evans, 37 M.J. 468 (literally true or ambiguous testimony cannot support perjury)
- United States v. Arondel de Hayes, 22 M.J. 54 (unresponsive/literally true answers and remedy)
- United States v. Augspurger, 61 M.J. 189 (effect of removing "on divers occasions")
- United States v. Wilson, 67 M.J. 423 (ambiguous findings prevent factual-sufficiency review)
- United States v. Walters, 58 M.J. 391 (ambiguity in findings and review limitations)
- United States v. Scheurer, 62 M.J. 100 (remedy for Walters violation — dismissal)
- United States v. Winckelmann, 73 M.J. 11 (sentence reassessment framework)
- United States v. Sales, 22 M.J. 305 (standard for reassessing sentences)
- United States v. Tardif, 57 M.J. 219 (standing for appellate delay/Tardif relief)
- Moreno v. United States, 63 M.J. 129 (appellate delay standards)
- Barker v. Wingo, 407 U.S. 514 (speedy trial balancing test)