United States v. Reyes

37 M.J. 579, 1993 CMR LEXIS 179, 1993 WL 143823

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: March 29, 1993
• Docket: NMCM 92 0255
• Status: Published

Opinions

PER CURIAM:

While being minded by the appellant, his girlfriend’s infant son incurred what were eventually discovered to be life-threatening internal injuries. The appellant had told the mother that whatever injuries the victim may have incurred must have been caused by his two-year-old sister's falling onto him and poking him with a fork. For several days, the appellant, perhaps unaware of the severity of the injuries, tried to convince the mother not to take the victim to the U.S. Naval Hospital, because he was concerned about questions that might be asked regarding the origin of the injuries. Notwithstanding his pleas, the appellant was found guilty by officer members of assault with intentional infliction of grievous bodily harm. We have no hesitancy whatever in affirming the findings of guilty of that heinous offense.

The appellant was also found guilty of obstructing justice by misinforming the mother of the cause of the injuries and influencing, or attempting to influence, her from seeking medical attention and/or treatment for the victim. In two assignments of error,¹ the appellant challenges this finding of guilty. We think that these assignments of error have merit.

What the appellant sought proximately to deter was a medical examination of the victim, which, presumably, would have raised suspicions regarding the origin of the injuries. Presumably also, the medical authorities would have referred the matter to the Family Advocacy Committee, which, upon further inquiries, might have called in the Naval Investigative Service. Thus, while a future criminal investigation was not unforeseeable, at the time of the alleged obstruction the authorities had not discovered any crime, and no criminal investigation was then contemplated by them.

We find this case indistinguishable from United States v. Turner, 33 M.J. 40 (C.M.A.1991). There the accused was required to participate in a command-directed unit urinalysis inspection; fearing that her recent drug use would be detected, she substituted toilet bowl water for her urine. When that was recognized for what it was, she was instructed to provide a genuine sample of her urine, which tested positive for cocaine use. Her conviction for obstruction of justice was reversed by the U.S. Court of Military Appeals on the following reasoning: '

Here the alleged obstructionist act consisted of appellant’s attempting to preclude discovery of her offense by impeding an inspection, not a criminal investigation. At the time of the inspection, she was not a suspect in any crime or part of any criminal investigation. There were no other criminal proceedings or other official acts taking place that would lead to disciplinary action.

33 M.J. at 42-43.

That is precisely the situation in this case. The appellant sought to preclude discovery of his offense by impeding a medical examination, not a criminal investigation. Even when grounds to suspect criminal activity appear in the course of a medical examination, the medical examination is not thereby converted into a criminal investigation, United States v. Fisher, 21 U.S.C.M.A. 223, 44 C.M.R. 277 (1972), and even questioning regarding possible criminal abuse during a medical examination has been viewed as relating to diagnosis and treatment, vice criminal investigation, United States v. Edens, 31 M.J. 267 (C.M.A.1990). Ai; the time the child would have been presented for examination in this case, the appellant would not have been a suspect in any crime nor part of any criminal investigation. There would have been at that time no criminal proceedings or other official acts taking place that would lead to disciplinary action. Of course, the results of the medical examination might eventually have led, via a Family Advocacy inquiry, to a criminal investigation, but the same was obviously true for Turner’s urinalysis inspection.² It was not only foreseeable to Turner, but virtually inevitable, that the “positive” urinalysis which Turner knew would be forthcoming would lead to criminal prosecution or disciplinary action of some sort, and the urinalysis inspection in Turner did, in fact, lead to criminal prosecution, yet there was no obstruction of justice. So it must be here.³

Whether or not Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, encompasses offenses analogous to those defined by various state statutes prohibiting child neglect and reckless endangerment, under which this appellant might have been successfully prosecuted, is a matter which may warrant consideration in future cases.

The findings of guilty of Charge III and its Specification are set aside, and that charge and specification are dismissed. The remaining findings of guilty are affirmed. The sentence has been reassessed on the basis of the affirmed findings of guilty in accordance with United States v. Sales, 22 M.J. 305 (C.M.A.1986), and is affirmed.

1 . I. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE APPELLANT GUILTY OF OBSTRUCTION OF JUSTICE WHERE THE GOVERNMENT FAILED TO PROVE THAT ANY LAW ENFORCEMENT AGENCY WAS CONDUCTING AN INVESTIGATION.

II. IN THE ALTERNATIVE, IF CHARGE III IS FOUND TO BE AN OFFENSE UNDER THE U.C.M.J., THE GOVERNMENT DID NOT PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT OBSTRUCTED JUSTICE.

III. ADMISSION OF APPELLANT’S STATEMENT WHICH OCCURRED THREE MONTHS PRIOR TO THE ALLEGED CRIME WHERE APPELLANT STATED THAT ‘IF THE KID WAKES UP AT NIGHT, HE [APPELLANT] WOULD DROP KICK THE KID’ CAUSED PLAIN ERROR WHEN THE TRIAL COUNSEL ARGUED ON THE FINDINGS, BEFORE A MEMBERS PANEL, THAT THIS PROVED THAT APPELLANT HAD ACTED IN CONFORMITY WITH HIS STATEMENT.

IV. APPELLANT’S COURT-MARTIAL VIOLATED HIS RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT BECAUSE ARTICLE 52(a)(2), U.C.M.J., ALLOWED A SIX MEMBER GENERAL COURT-MARTIAL PANEL TO CONVICT APPELLANT WITH THE POSSIBLE CONCURRENCE OF ONLY FOUR OF THE VOTING MEMBERS.

2 . If anything, this case is even weaker than Turner, because Turner’s connection with her own urine sample would have been clearly documented and, thus, apparent during the urinalysis without any investigation, whereas the appellant’s connection with the child and his injuries would not have been apparent from the mother's presentation of the child for examination, nor from the medical examination itself, but only from investigation after suspicious causation had been medically determined.

3 . The dissent’s purported distinction between Turner and this case depends on limiting the "inspection” in Turner to the mere "presentation” of the urine without regard to its subsequent scientific analysis. As we know, however, an "inspection” of urine encompasses both collection and scientific analysis (hence the term "urinalysis”); consequently, Turner's actions in obstructing the "inspection" must be viewed as impeding not only the mere collection of her urine but also its scientific analysis. At some point during the scientific analysis phase of the "inspection” ‘of Turner’s urine, her use of cocaine would have become manifest, just as child abuse would presumably have been revealed by the medical examination in this case. In any event, what the appellant sought proximately to prevent was the child's presentation for examination. Consequently, we are satisfied that the analogy between Turner and this case holds.