UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Specialist RONALD C. GIVENS
United States Army, Appellant

ARMY 20190132

Headquarters, Fort Stewart
David H. Robertson, Military Judge
Colonel Steven M. Ranieri, Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Jack D. Einhorn, JA; Major Benjamin A. Accinelli, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA; Captain A. Benjamin Spencer, JA (on
brief).

19 October 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

On appeal, appellant contends his conviction of child endangerment is legally
and factually insufficient.| We agree and grant relief in our decretal paragraph and
reassess appellant’s sentence.”

 

1A military judge sitting as a general court-marital convicted appellant, consistent
with his plea, of one specification of assault consummated by a battery, in violation
of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (2012 & Supp. IV
2016) [UCMJ]. On 1 March 2019, an enlisted panel sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification each of
making a false official statement, larceny of military property, assault consummated

(continued .. .)
GIVENS—ARMY 20190132
BACKGROUND

Appellant and SPC KN began dating while they were students in Advanced
Individual Training (AIT) at Fort Sam Houston, Texas. While they were dating, SPC
KN became pregnant with the couple’s daughter, AG. The couple married in
February 2018 when AG was one month-old.

On the evening of 21 February 2018, appellant placed their sleeping daughter,
AG, in the center of an air mattress surrounded by two pillows in the bedroom.
Appellant laid down next to his daughter and attempted to go to sleep.

Appellant and Specialist KN had previously been arguing. Specialist KN
entered the bedroom, turned on the lights, and began using her phone, which upset
appellant. After SPC KN refused to turn off the lights and stop using her phone,
appellant reached across the air mattress and smacked the phone out of her hand. In
response, SPC KN said she would leave the room. Specialist KN tried to pick up
AG, but appellant reached over, grabbed SPC KN’s arm, and pushed her up against
the wall by her neck so that only her big toe was still touching the ground. When
SPC KN again attempted to reach for their infant daughter, appellant grabbed her by
the arm and pushed her out of the bedroom.

LAW AND DISCUSSION

We review questions of legal and factual sufficiency de novo. United States
v. Walters, 

, 395 (C.A.A.F. 2003). “The test for legal sufficiency is
whether, after viewing the evidence 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. Gutierrez, 

, 175 (C.A.A.F. 2014)
(quoting United States v. Bennitt, 

, 268 (C.A.A.F. 2013) (citations and
internal quotations omitted)). 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, the members of the service court are themselves

 

(.. . continued)

by a battery, communicating a threat, and child endangerment, in violation of
Articles 107, 121, 128 and 134, UCMJ. Appellant was sentenced to confinement for
90 days, forfeiture of $1,680 pay per month for one month, reduction to E-1, anda
bad-conduct discharge. Appellant was acquitted of one specification of assault
consummated by a battery and one specification of adultery in violation of Articles
128 and 134, UCMJ.

We have given full and fair consideration to appellant’s other assigned errors and
matters personally submitted pursuant to United States v. Grostefon, 

(C.M.A. 1982), and find them to be without merit.
GIVENS—ARMY 20190132

convinced of appellant’s guilt beyond a reasonable doubt.” United States v.
Rosario, 

, 117 (C.A.A.F. 2017) (quoting United States v. Oliver, 

, 68 (C.A.A.F. 2011)).

We first address the legal and factual sufficiency of appellant’s conviction for
child endangerment of his infant daughter. The panel was instructed on the
following elements:

(1) That the accused had a duty of care of AG;
(2) That AG was, then, under the age of 16 years;

(3) That on or about 21 February 2018, at or near Fort Stewart,
Georgia, the accused endangered AG's physical health, safety,
and welfare through culpable negligence by strangling,
striking, and grabbing her mother, Specialist KN, while in
close proximity to AG.; 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 of a nature to bring discredit upon the Armed
Forces.

In reviewing the evidence contained in the record for factual sufficiency, we
are concerned by the lack of evidence to support the third element. The government
had the burden to establish appellant’s conduct subjected AG to a “reasonable
probability of harm.” United States v. Plant, 

, 299 (C.A.A.F. 2015).

The record indicates that there was a physical altercation between appellant
and SPC KN in the room where AG was asleep. When appellant knocked SPC KN’s
phone from her hand, appellant reached across the bed, over AG, and smacked the
phone out of SPC KN’s hand. The record does not indicate where the phone landed.

Specialist KN testified that she attempted to pick up AG on two separate
occasions. No further evidence is provided as to what efforts she made to pick up
AG or how close she was to AG when appellant “jumped” across the bed, grabbed
SPC KN and pushed her against the wall. The evidence indicates appellant was
pushing SPC KN away from AG as AG slept soundly on the bed behind appellant.

Under the circumstances, AG does not appear to have been subject to a
reasonable probability of harm as she continued to sleep peacefully throughout the
entirety of the disturbance. After weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, we are not
GIVENS—ARMY 20190132

convinced beyond a reasonable doubt of appellant’s guilt of child endangerment of
AG. See United States v. Turner, 

, 325 (C.M.A. 1987).

CONCLUSION

On consideration of the entire record, the finding of guilt of Specification 2 of
Charge IV is SET ASIDE and DISMISSED. The remaining findings are
AFFIRMED.

We reassess the sentence in accordance with the principles of United States v.
Winckelmann, 

, 15-16 (C.A.A.F. 2013) and United States v. Sales, 

, 307-08 (C.M.A. 1986). Appellant’s affirmed offenses are of the type that this
court has the experience and familiarity with to reliably determine what sentence
would have been imposed absent appellant’s conviction of the specification of child
endangerment. Based on his convictions, appellant could have been sentenced to a
dishonorable discharge, twenty years of confinement, forfeiture of all pay and
allowances, a reprimand, and reduction to the grade of E-1. The offense of child
endangerment by culpable negligence not resulting in harm carries a maximum
punishment of one year. The dismissal of this specification does not constitute a
dramatic change in the penalty landscape. Accordingly, we AFFIRM the adjudged
sentence of confinement for 90 days, forfeiture of $1,680.00 pay per month for one
month, reduction to the grade of E-1, and a bad-conduct discharge.

All rights, privileges, and property of which appellant has been deprived by
virtue of that portion of the findings set aside by this decision and reassessed
sentence are ordered restored. See UCMJ arts. 58b(c) and 75(a).

Judge RODRIGUEZ and Judge FLEMING concur.

FOR THE COURT:
\

i

JOHN P. TAITT
Chief Deputy Clerk of Court
UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Specialist RONALD C. GIVENS
United States Army, Appellant

ARMY 20190132

IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,

GENERAL COURT-MARTIAL ORDER NUMBER 2, HEADQUARTERS,
FORT STEWART, FORT STEWART GEORGIA 31314, dated 29 January 2020,

IS CORRECTED AS FOLLOWS:

BY reflecting in Specification 1, Charge III, a Finding of
“Guilty of assault consummated by battery.”

DATE: 19 October 2020

FOR THE COURT:

QP Ze

JOHN P. TAITT
Chief Deputy Clerk of Court