The AFCCA dismissed with prejudice the conviction Staff Sergeant Clayton E. Turner (Appellant) for one specification of assault consummated by a battery, finding the evidence to be factually insufficient. The Court affirmed the convictions of four other specifications of assault consummated by a battery.
Contrary to his plea, Appellant was convicted by a military judge sitting as a general court-martial of five specifications of assault consummated by a battery in violation of Article 128, UCMJ. He was acquitted of a sixth specification of assault consummated by a battery. The military judge sentenced Appellant to a bad-conduct discharge, eight months confinement, and reduction to the grade of E-1. On appeal, the Court addressed three issues raised by Appellant. First, Appellant argued that his convictions were legally and factually insufficient. Second, Appellant argued that he was subjected to unlawful post-trial confinement conditions. Third, Appellant asserted a Grostefon claim that trial counsel improperly referenced information during closing arguments as substantive evidence.
The Court first reviewed the legal and factual sufficiency of Appellant’s convictions. Each of the assault charges arose from a domestic dispute between Appellant and his wife, SrA BT. Specifically, four of the assault charges arose from actions against SrA BT, and two of the assault charges arose from actions against their one-year-old son, MT. At trial, Appellant was acquitted of one of the two assault charges against MT.
First, the Court affirmed the convictions of four specifications of assault consummated by a battery against SrA BT, finding that a reasonable factfinder could conclude that all elements of the charge were met beyond a reasonable doubt. Asserting self-defense, Appellant argued that SrA BT possessed a motive to fabricate her testimony due to ongoing divorce proceedings; however, the Court found SrA BT’s testimony to be sufficiently credible, noting that her trial testimony matched the initial report she gave prior to any motive to fabricate. Additionally, though Appellant argued that the investigation of the assault was inadequate, the Court found that any inadequacies were not enough to create a reasonable doubt.
The Court set aside the remaining conviction of the specification alleging assault against MT. Specifically, the government alleged that during the fight between Appellant and SrA BT, Appellant pulled MT away from SrA BT to continue his attack on her. However, Appellant alleged that he took MT away from SrA BT because she was not in the “right frame of mind” to hold the child. In order to sustain the conviction, Appellant’s contact with MT must have been both offensive and made with no legally cognizable justification. Assuming the contact to be offensive, the Court concluded that Appellant still had a legal right to pick up his child and that his legal right was no less than SrA BT’s right to hold the child.Accordingly, because the government offered no evidence to suggest that Appellant touched MT with the intent to do harm, the Court found that there was a reasonable doubt as to whether Appellant was guilty of assault consummated by a battery against MT. Thus, his conviction on the specification was set aside. After reassessing Appellant’s sentence, the Court concluded that the specification did not significantly contribute to the sentence imposed at trial and only adjusted the length of confinement from eight months to seven months.
Appellant also alleged that his post-trial confinement conditions violated his rights under the Eighth Amendment and Article 55, UCMJ.Specifically, Appellant alleged that he was subjected to cruel and unusual punishment because there were bugs and mice in his cell at the Taylor County Jail in Texas. However, the Court noted that although encountering non-biting bugs and mice may be unpleasant, Appellant did not establish that the infestation was so pervasive to be considered a “denial of necessities” as required to prevail under an Eighth Amendment claim.In addition, the fact that Appellant did not complain of these conditions until the end of his time in jail showed that the conditions could not have been much of a legitimate concern. Hence, the Court held that Appellant’s Constitutional rights were not violated.
Finally, Appellant argued that the military judge improperly admitted scholarly text relied upon by the defense’s expert witness as an exhibit, instead of only being read into evidence as a learned treatise under Mil. R. Evid. 803(18). However, because defense counsel was the one who improperly sought to admit the scholarly articles as exhibits, incorrectly thinking they could not be used for their substance, the Court held that Appellant waived his right to raise this argument on appeal. In addition, Appellant waived his right to appeal the admission of other scholarly articles that were improperly admitted as exhibits by the government when no objection was raised at trial by defense counsel. Finally, the Court held that the military judge did not err in allowing trial counsel to reference the substance of the articles during closing arguments because regardless of the previous error in admitting the articles as exhibits, the information elicited during the expert testimony would nevertheless be admissible for its substance under the learned treatise exception in Mil. R. Evid. 803(18).
In reaching this conclusion, the Court cited United States v. Rivera, 54 M.J. 489, 491 (C.A.A.F. 2001), which stated in part that reasonable force may be used by parents to safeguard the welfare of minors.
Appellant did not argue for additional protections in Article 55, UCMJ beyond that already provided for in the Eighth Amendment. Thus, his claim was only analyzed under the Eighth Amendment.
See United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (listing the elements of an Eight Amendment violation).
LT Chris Clifton
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