United States v. Ray

44 M.J. 835, 1996 CCA LEXIS 395, 1996 WL 733088
CourtArmy Court of Criminal Appeals
DecidedDecember 18, 1996
DocketARMY 9501545
StatusPublished
Cited by1 cases

This text of 44 M.J. 835 (United States v. Ray) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ray, 44 M.J. 835, 1996 CCA LEXIS 395, 1996 WL 733088 (acca 1996).

Opinion

OPINION OF THE COURT

CARTER, Judge.

A general court-martial convicted appellant, pursuant to her pleas, of aggravated assault, assault consummated by a battery upon a child under sixteen years of age, and cruelty to a child in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (1988)[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable discharge, confinement for eight years, forfeiture of all pay and allowances, and reduction to Private El. The convening authority approved the adjudged sentence, but suspended confinement in excess of sixty months for sixty months. The case is before this court for automatic review under Article 66, UCMJ.

Appellant raises two assignments of error which merit discussion:

I.
WHETHER THE APPELLANT’S PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2 (CRUELTY TO A CHILD), WAS IMPROVIDENT IN THAT THE SPECIFICATION FAILED TO STATE AN OFFENSE.
II.
WHETHER THE APPELLANT’S PLEA OF GUILTY TO CHARGE I, SPECIFICATION 1, WAS IMPROVIDENT WHEN THE PROVIDENCE INQUIRY FAILED TO ESTABLISH A SUFFICIENT FACTUAL PREDICATE ON THE ELEMENT OF INTENT TO INFLICT GRIEVOUS BODILY HARM.

The court finds that only the first assignment of error has merit.

I. FACTS

This is a child abuse ease. On 22 March 1995, appellant became “very angry” when she noticed that her three-year-old daughter had smeared feces in her hair. Appellant admits her conduct in a stipulation of fact:

The accused drew a bath of very hot water for the purpose of punishing [her daughter]. After partially filling the tub with water, the accused took [her daughter] by the shoulders and forced her down into the scalding water. She held [her daughter] down in the tub while the scalding water spread over her thighs, around her ankles, and into her vagina. [Her daughter] was unable to get out of the tub because of the force with which the accused held her down. The accused forced [her daughter] to remain in the tub of hot water for approximately three minutes.

Later that same day an adult friend arrived at the accused’s house. The stipulation of fact describes what he saw:

[I]t appeared to him that the child had third degree burns from her waist down. He noticed that the burns started at the top of her buttocks and went half way down her thighs, and that the inside of her vagina, buttocks, and portions of her ankles were burned. The child was shaking, and had a fever of 102 [degrees]. [The friend] also noticed that there were large strips of skin, that had apparently peeled from [the child’s] body, lying on the floor next to the couch where [the child] lay.

[837]*837According to the stipulation of fact and appellant’s admissions during the guilty plea inquiry, appellant told her Mend that her daughter had accidentally turned on the hot water and crawled into the tub when appellant was not looking. Appellant then asked her Mend to take the child to the hospital, provide false names, and say the child accidentally burned herself while the Mend was baby-sitting the child. The Mend refused. Later, the child repeatedly stated that “mommy” burned her, even though the appellant tried to get the child to say that she burned herself. The appellant told her Mend that she did not want to get in trouble and asked him not to tell anyone. Ultimately, the appellant and her family fled Fort Benning, Georgia, without obtaining medical care for the child and went to the appellant’s mother’s home in Michigan.

On 27 March 1995 the child received medical care for the first time since her injuries. The attending doctor prescribed salye and antibiotics and agreed not to report the case to proper authorities. On 28 March 1995, after receiving an anonymous phone call, the police seized the child and transported her to a medical center. Medical authorities removed layers of dead skin in order to treat the child. The child had a 102 degree fever, a distended stomach, and a potentially fatal sepsis infection in her blood stream, all caused by her injuries or lack of proper treatment thereof. The child was placed on a special diet and subsequently admitted to a special burn unit in a Michigan hospital for fourteen days due to the severity of her injuries. The child received first, second, and third degree burns over fifteen percent of her body including her buttocks, portions of her thighs, portions of her feet, and inside her vagina.

II. CRUELTY TO CHILDREN

Appellant was convicted of a violation of the Official Code of Georgia Annotated, § 16-5-70(a)(1995), Cruelty to children, as assimilated by Article 134, UCMJ, for willfully depriving her child of “necessary sustenance” by failing to obtain proper medical treatment for her between 22 and 27 March 1995. Appellant argues that there is no such offense under Georgia law. We agree.

Under Georgia case law, denial of necessary medical care does not constitute denial of sustenance. Howell v. State, 180 Ga.App. 749, 350 S.E.2d 473 (1986). Accordingly, we will dismiss this charge and specification,

III. GRIEVOUS BODILY HARM

To be guilty of assault in which grievous bodily harm is intentionally inflicted, one must have specifically intended to inflict grievous bodily harm. Manual for Courts-Martial, United States (1995 edition) [hereinafter MCM, 1995], Part IV, para. 54b(4)(b)(iv). “ ‘Grievous bodily harm’ means serious bodily injury.” MCM, 1995, para. 54c(4)(a)(iii).

During the guilty plea inquiry, the military judge advised the appellant of the elements for the offense of assault in which grievous bodily harm is intentionally inflicted, including that at the time of the assault she had to have the specific intent to inflict grievous bodily harm. The appellant answered “Yes” when asked if she understood the elements of this charge and admitted that they correctly described what she did. The military judge did not define the term “grievous bodily harm” or inquire further regarding her specific intent to inflict grievous bodily harm.

A military judge may not accept a plea of guilty without first determining that there is a factual basis for the plea. Rule for Courts-Martial 910(e)[hereinafter R.C.M.]. An accused must admit every element of the offense to which he pleaded guilty. Additionally, the elements of the offense should be explained to the accused during the providence inquiry. See R.C.M. 910(e) discussion. If, after a plea of guilty, an accused “sets up matter inconsistent with” the plea, that plea cannot be accepted. Article 45(a), UCMJ. To reverse a guilty finding on appeal, the record must “show a ‘substantial basis’ in law and fact for questioning the guilty plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991).

When discussing the factual basis for the plea with the appellant, the military judge [838]*838failed to ask or discuss in any manner whether appellant intended to cause serious bodily injury to her child when “punishing” her.

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Cite This Page — Counsel Stack

Bluebook (online)
44 M.J. 835, 1996 CCA LEXIS 395, 1996 WL 733088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ray-acca-1996.