United States v. Robertson

37 M.J. 432, 1993 CMA LEXIS 99, 1993 WL 360968

• Court: United States Court of Military Appeals
• Decided: September 20, 1993
• Docket: No. 67,524; CMR No. 8902851
• Status: Published

Opinions

Opinion of the Court

WISS, Judge:

After a contested trial, a general court-martial of officer and enlisted members convicted appellant of involuntary manslaughter and committing indecent acts with a child under the age of 16 years. See Arts. 119 and 134, Uniform Code of Military Justice, 10 USC §§ 919 and 934, respectively. The members sentenced appellant to a bad-conduct discharge, confinement for 1 year, and reduction to the lowest enlisted grade. The convening authority approved these results.

On appeal, the Court of Military Review concluded that the evidence was insufficient to establish the required criminal intent relating to the indecent acts.¹ 33 MJ-832, 833 (1991). Additionally, that court concluded that “there is insufficient evidence to support a finding of culpable negligence, and thus the manslaughter conviction cannot stand.” In the court’s view, however, the evidence was both legally and factually sufficient “to support a finding of negligent homicide. Art. 134, UCMJ.” Id. at 834. Accordingly, the court affirmed only a finding of negligent homicide and, on reassessment of the sentence “on the basis of the errors noted and the entire record,” a sentence extending only to reduction to the grade of E-5. Id. at 835.

On appellant’s petition, this Court agreed to review: “Whether the Army court erred in finding the evidence to be sufficient as a matter of law to support a finding of guilty to negligent homicide in violation of ... Article 134.” On further consideration of the decision below, we agree with one prong of appellant’s multi-faceted attack within this issue: We hold that the evidence of appellant’s negligence — even the simple negligence that is in issue in negligent homicide, see para. 85b(4), Part IV, Manual for Courts-Martial, United States, 1984 — is insufficient as a matter of law to support the finding affirmed below.

I

The opinion of the Court of Military Review told the truly sad story of the anorexic/bulimic mission that appellant’s son Brad set for himself and the tragic, fatal consequences. Added to this human tragedy for appellant was his own court-martial for alleged negligence in letting his son pursue his suicidal course.

As already indicated, the Court of Military Review held that the evidence was insufficient to support a finding of culpable negligence, see Art. 119(b)(1). The court concluded, though, that the evidence did reflect beyond a reasonable doubt appellant’s simple negligence, so a conviction of negligent homicide under Article 134 could be affirmed. See para. 85b(4).

In this Court, appellant assails that conclusion on three grounds: “1) [TJhere is insufficient proof that appellant’s conduct was negligent; 2) there is insufficient proof that appellant’s conduct was the proximate cause of Brad’s death; and 3) there is no evidence whatsoever that appellant’s conduct was prejudicial to good order and discipline or service-discrediting.” Final Brief at 8. Because, as just indicated, we agree with his first ground, we do not need to address the other two.

II

A

We will not fully retell the story that is recounted in the opinion of the Court of Military Review. We will, though, trace the thread of its development and, in the process, expressly note some important events, uncontested in the evidence, that the court below either did not recite or noted only fleetingly.

Brad’s mother had had custody of him since her divorce from appellant in 1981, and appellant had not seen his son since then until he visited Brad at his home in Kansas during Christmas of 1987. Their relationship renewed, Brad visited his father in New Jersey during spring break in 1988.

At the time he arrived in New Jersey in early April, Brad was well along on his journey toward self-destruction. Trial testimony indicates that Brad began this pattern of abuse when he discovered during a virus that he had contracted in the fall of 1986 that, if he vomited and did not eat, he would lose weight — a noteworthy discovery to Brad, who had been “quite chunky” at “one point in his life.” Before he came into appellant’s care in April 1988, Brad already had been hospitalized once for a week in connection with his difficulty in eating and his weight loss; had seen a medical doctor 4 times in February 1988 (who could find “no physical cause” for Brad’s condition and suspected “emotional problems”); and had seen a psychiatrist thereafter 5 times over 2 weeks.

The psychiatrist’s treatment involved hypnosis in an effort to help Brad relax and hold down his food, and it ended when Brad reported to the doctor, just before going to New Jersey, that he had stopped vomiting. The psychiatrist’s diagnosis was chronic low-level depression, characterized by eating disturbances. Actually, Brad’s medical history involved three distinct episodic periods of nausea and vomiting over the year and a half preceding his visiting his father.

Brad’s mother testified that, at one time, Brad had weighed 180 pounds, though she did not tell this to either the medical doctor or the psychiatrist who treated Brad in early 1988. In fact, she did not tell the medical doctor about Brad’s earlier hospitalization, either. At the time Brad first saw the psychiatrist, he weighed 140 pounds, and the doctor knew only that Brad once had weighed 160 pounds. Consequently, neither of these doctors diagnosed anorexia.

The Court of Military Review found that, notwithstanding this history, “appellant received essentially no information from Brad’s mother at the time of the boy’s arrival to alert him to Brad’s previous weight loss and erratic eating habits.” 33 MJ at 833. Appellant’s wife testified concerning specifically what Brad’s mother had told them in that regard:

All she told me was, “Watch what he’s eating ‘cause his stomach’s iffy.” I said, “What do you mean it’s iffy? Is it anorexia?” ‘cause I just watched a TV show on it. And, she says, “No, it’s a virus. It’s a stomach virus.” Well I had an ulcer when I was 15. I thought stomach virus, weak, iffy stomach, bland diet, so I went and stocked up on bland foods; cottage cheese, basically an ulcer diet.

Appellant and his wife noticed, on Brad’s arrival, that Brad looked thin. Over the next couple of weeks, Brad seemed mostly to pick at his food rather than to eat much of it. On April 17, Brad complained of dizziness, so appellant took him to the hospital emergency room, where Brad was examined and referred to the pediatric clinic.

On April 20, appellant and Brad saw Dr. (Lieutenant Colonel) Grace Nadhiry at the clinic. Dr. Nadhiry testified in part as follows in response to a question concerning what transpired during his visit to her office:

A. And the first thing Brad stated was that he was in perfectly good health and the reason he was in was just because the doctors [in the emergency room] had asked him to come in. And, of course, I tried to get more history from Brad about his problem and the reasons for his dizziness at that time when he was in the emergency room, and tried to get more history into his eating habits, about how he was doing in school, at which time he stated that he used to have nerves and so he doesn’t eat very well, and he had lost some weight and that brought up the topic of anorexia. Then he stated that he had been evaluated for anorexia by psychiatrists and he was — he had been evaluated and was told by psychiatrists that he didn’t have anorexia.

Q. Was Brad, at this time, resistant to you?

A. Brad was unfriendly. He was— yeah, I could say he was resistant.

Q. Was his father present throughout the entire visit?

A. He was.

Dr. Nadhiry weighed Brad during her examination, finding that he then weighed 122 pounds; she plotted this weight on a weight chart for boys of Brad’s age and found that he was at the 50th percentile. She did notice that his weight on that occasion was less than the 125 pounds that had been recorded as his weight in the emergency room 3 days earlier. When asked, however, whether that weight loss had caused her “any concern,” she answered, “Not from the appearance that Brad had. Brad clinically looked perfectly in good health.”

Dr. Nadhiry talked to both Brad and appellant about anorexia and the problems associated with it. She talked to Brad in a way intended to elicit his confidence and friendship and asked to have his records from Kansas brought to her. Because the word “psychiatrist really scares most children from Brad’s stage and with his type of attitude, which was unfriendly,” Dr. Nadhiry “talked to him about a psychologist and counseling.” Brad responded that “he didn’t need that.”

Dr. Nadhiry did not order any lab work because that had been done in the emergency room; neither did she order a test to “check electrolytes.” She explained: “See, you have to realize one thing, the patient was in very good clinical state and his blood pressure was normal.”

Because this was simply a “sick call follow-up type of appointment which was a very short appointment,” Dr. Nadhiry told appellant about “the problems that could come up” and told appellant that she wanted to see Brad again in 3 to 4 weeks. She characterized appellant during this visit as “a very concerned father.”

During his testimony, appellant addressed Brad’s attitude toward doctors, hospitals, etc. — an attitude that Dr. Nadhiry had characterized as “unfriendly”:

And she [Dr. Nadhiry] was talking to Brad and I. She mentioned the subject of anorexia and/or bulimia. And Brad dang near went right out through the ceiling. He was very vehement and he said, “No, I’ve been checked for that. I don’t have it. I don’t want psychiatric, psychologist, nothing.” And that persisted later in the evening into the discussion at home, still the vehemence that this was not the problem. He wanted no part of these people.

Over the next 3 weeks, appellant noticed that Brad still was not eating much, which he believed to be atypical for a 15-year-old. That factor, plus Dr. Nadhiry’s advice that she should see him again in 3 to 4 weeks, led appellant to decide that “I think I will get this boy back.” He described what then happened:

I had the number [to the clinic] laying on my dresser in my bedroom where the phone is. And I wasn’t trying to hide anything. I left the bedroom door open and Brad walked up, “What you going to do, dad?” “I think it’s time we got back to Colonel Nadhiry.” That’s when I had some real serious trouble with a 15 — 14-almost 15-year old that was ready to punch my running lights out, I picked up that phone. I mean, we’re talking balled fist, fighting stance, “No, I am not going.”

With this adamant determination not to go back to Dr. Nadhiry, appellant decided that physically forcing Brad to return would be counterproductive. Moreover, Brad had told him in conversations about the “stress and turmoil” in the family situation in Kansas, and appellant believed that it was important for Brad to feel comfortable and accepted by appellant. Accordingly, appellant decided on a more “low-keyed” approach of trying to persuade Brad to be more receptive to medical attention (like he had been earlier to eye and dental exams). He explained:

My opinion, based on his comments to me, was that he’d been yelled and screamed at enough. And in dealing with my two stepdaughters because of their situation, I have found I can go much further by trying — by making my points in a calm conversational tone. I let Brad know that I was concerned.

Appellant continued:

I finally — I think I had finally got through to him and this was as close as I came to really jumping on him, although there were many times I wanted to. He had been complaining [that his] stomach didn’t want to accept the food, blase, but he — again, the doctor vehement [sic], “No, I’m not going.” Finally, one evening in the dining room, I looked at him, I said, “Son, you say your stomach’s bothering you?” “Yes.” “Are you a doctor?” “No.” I said, “Then you can’t handle yourself, can you?” He says, “No.” I said, “Son, then you need to do one of two things, reach a conclusion.” I says, “One, either get yourself back to a doctor, or two, remember what you learned in high school biology about the intake of food. And if you don’t want to go back to the doctor, get ahold of an undertaker of your choice and make your own funeral arrangements because inevitably that’s where this is going to end.”

Appellant believed that at last he “had reached a turning point.” Shortly after that conversation — and about 10 days before Brad was scheduled to return to Kansas to celebrate his brother’s birthday— Brad telephoned his mother in Kansas and “asked her to set up an appointment with the doctor out there.” Brad called back about 2 days later to check on the appointment. He “made a commitment to [appellant] that he was going to go see the doctor who had helped him before.” When asked, then, whether it had been at appellant’s “instigation that [Brad] arranged for this doctor,” appellant responded, “I would like to think that I finally got through, yes.”

Throughout the approximately 3 months that Brad spent with appellant and his wife, Brad had followed a pattern of conscious deceit concerning his eating and his weight. For instance, Brad always wore very loose clothes, like “big, baggy shirts, long sleeves”; and, since he was almost 15 years old, neither appellant nor his wife ever saw him undressed. Moreover, Brad was an excellent cook, and typically appellant and his wife would arrive home from work about 7:00 p.m. and find that Brad had dinner waiting for them. When they would ask why he was not eating, too, he would answer that he had eaten while cooking. Appellant’s wife testified, for example:

One night he took cube steak — no, not cube steak — chuck roast and cut it into cubes and made like shish kebabs and the like. And there was two dirty thing — you know, dirty plate and that in the sink, and two of the skewers were cleared off and that, and he had set the table for two. “Well, aren’t you eating?” “Well, I already ate. See, it’s in the sink.” So, you know, he’s fifteen. He was hungry. We didn’t get in till almost seven. He ate.

Appellant put Brad on an airplane back to Kansas on July 27, and Brad had an appointment with the doctor the next day. His mother picked him up at the airport, took him home at Brad’s insistence even though he looked “[h]ideous,” unsuccessfully tried to get him to eat something, and finally let him go to bed. Brad’s mother called a doctor that night and was told she could bring him in when the office opened the next morning. She found Brad dead in his bed at 7:00 a.m. The conclusion of the subsequent autopsy was death caused by “cardiac failure due to starvation.”

Although a number of witnesses, both expert and lay, testified on both sides on the merits, the only expert witness who addressed actions and reactions of parents of an anorexic or bulimic child was Dr. Neal Satin, a psychiatrist with expertise in eating disorders. Dr. Satin then was Director of the Eating Disorder Program at the Institute of Pennsylvania Hospital, a member of the Board of Directors of the American Anorexia Bulimia Association of Philadelphia, a frequent lecturer on eating disorders, and the treating physician or supervising physician in at least 200 such cases.

Dr. Satin’s extensive testimony concerning anorexia and bulimia is fascinating and truly enlightening. For our present purposes, though, the critical portions relate to behavior of a child suffering from such a problem and relate, as well to the parents of such a child. Some critically important excerpts are as follows:

[Anorexic sufferers] often times display an interest in food in a way to control the food of the family so that no one knows what they’re eating or not eating, and that they may claim, “Oh, I don’t really have to eat dinner because I'm so busy serving. I nibbled before while I was preparing,” this is a very common -notion____

There’s a characteristic concealing of the changes in their body size and shape in anorexia. The patient may be significantly underweight and malnourished but will wear several layers of clothing; a sweater, a baggie sweatshirt, long sleeves in the summertime — to conceal the changes that have taken place____ Families, when they see these patients, often express amazement that such changes could’ve taken place without their observation____

There’s a deviousness about these patients that seems to be part of the illness. These are not people who are chronically tricky and deviant in their behavior, but once the illness starts, there’s lots of abnormal behaviors to protect the starvation____

It’s possible [for a person to cover up weight loss even up to 80 pounds]. It requires, you know, a great deal of effort, but it’s certainly possible.

Q. Doctor, do you know of any situations where persons have been anorexic, or bulimic, or both, and had weight loss and not had it observed?

A. Sure, I mean, it happens all the time____

In response to questions asking how parents of anorexic/bulimic children respond and concerning, specifically, appellant’s responses, the following colloquys are instructive:

I think that invariably with families, they’re no villains, they’re only victims. Parents do the best that they can. They often do things that I wouldn’t do as an expert, but they try to do what they can to get the individuals either to seek treatment, to eat, to change their behavior, and they are almost invariably unsuccessful____ And so I don’t think that in

these instances, parents can do anything right or wrong because there isn’t a clear answer of what is right or wrong. I think that the best that parents can do is attempt to get the children to accept treatment and to hope that the people that are training are sufficiently competent and have enough expertise in the field that they can raise the likelihood of success a slight higher percentage____

Q. And without — without giving us an opinion as to whether or not you feel Sergeant Robertson acted properly, do you believe that he reacted normally to this disease?

A. I’m sorry, I don’t understand the question.

Q. Okay. Do you — did he react as most patients — or parents and patients of yours to this disease, from what you know of what he did in response to this situation?

A. Yes, he did. He attempted to convince the boy to go back to see the psychiatrist that he had seen previously.

Q. And that was the gentleman out in Kansas.

A. I — yeah, I believe that was a Doctor Boxer who was in Kansas. My understanding was that the boy had agreed, after some long struggle, to go back to Kansas for the specific purpose of reinstituting treatment with a doctor that he already knew, that he had some reluctance to get involved with the doctors in this area for reasons that I’m not certain about, but had expressed a willingness to see Doctor Boxer again, and that that was, I think, a significant event. It was unfortunate that that did not happen, I mean that the boy died before he could start treatment again with Doctor Boxer and be evaluated. Nonetheless I think that trying to get a kid who has started in treatment to go back into treatment was the appropriate response for the family. It’s something that is very, very difficult to get a kid to do who’s resistent. And, you know, I think the only additional alternative that might’ve been available would’ve been to seek involuntary commitment. Now involuntary commitment is getting someone to have psychiatric treatment against their will. And that is something that is somewhat complicated, requires almost an expert to tell you how to get through the system____. But I think that the effort to get him to restart treatment was the responsible action that needed to be taken and appears to have been taken in this instance.

B

The restricted role of this Court relating to the sufficiency of the evidence is limited to determining legal sufficiency. See United States v. Turner, 25 MJ 324 (CMA 1987). Thus, in the face of a challenge to the legal sufficiency of the evidence, this Court’s charge is to answer “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).” 25 MJ at 324.

One of the elements of negligent homicide, of course, is simple negligence. See para. 85b(4), Part IV, Manual, supra. Paragraph 85c(2) defines simple negligence for purposes of this crime as follows:

Simple negligence is the absence of due care, that is, an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care of the safety of others which a reasonably careful person would have exercised under the same or similar circumstances.

At the risk of over-simplification, appellant’s approach to getting his son the continued medical treatment that appellant ultimately recognized was needed was to persuade his nearly 15-year-old, strong-minded son, who had demonstrated a willingness to physically fight appellant’s effort to get him to a doctor. Some parents, on the other hand, might have pursued more authoritative action, just like some parents are more authoritative than others with their children on virtually all aspects of their upbringing.

Nonetheless, urging that negligence cannot be judged by hindsight or by the ultimate result, in essence appellant asks: If the boy’s death were unknown (in order to preclude any subconscious impact), does the evidence establish beyond reasonable doubt that his approach was a negligent one? Stated in terms of paragraph 85e(2), did appellant’s approach to parenting exhibit a lack of that degree of care for his son which a reasonably prudent parent would have exercised under the same or similar circumstances?

Measured against this standard, we conclude that the evidence is such that a reasonable factfinder could not find beyond a reasonable doubt that appellant’s approach to caring for his son was negligent. The uncontroverted evidence demonstrates the following: Appellant had no knowledge of Brad’s past medical difficulties relating to eating disorders or weight loss, except for being told Brad had an “iffy” stomach; Brad consciously and creatively concealed both the severity of his weight loss and his non-eating; even when appellant did become aware of these related symptoms, he did not fully appreciate their magnitude because of Brad’s determined effort to hide them; and when Brad did exhibit a medical difficulty — dizziness—appellant promptly obtained medical attention for him.

Thereafter, he followed Dr. Nadhiry’s advice and closely watched his son, tried to get him to eat, and asked his wife and friends of the family to assist him to persuade his son to eat; when it appeared 3 to 4 weeks later that it was not working, he set out to call Dr. Nadhiry, prompting a physical confrontation with his son who adamantly refused to return to her. Rather than fight his 15-year-old son who was physically and emotionally determined to resist, appellant set out to watch him closely and to persistently try to persuade his son that he needed medical help; indeed, appellant ultimately did exactly that, and his son called his mother to ask her to make an appointment with a doctor back home whom he had seen before.

In light of Dr. Satin’s testimony, we are at a loss how reasonable factfinders could find appellant’s course of caring for his son to be criminally at odds with what “a reasonably careful” parent would have done under the same or similar circumstances.² Absence of negligence does not require that judgment be right, only that it reflect what a reasonably careful person would do. Brad died — and that truly is tragic. But that regrettable result does not necessarily mean that appellant was not reasonably careful. Indeed, Dr. Satin’s testimony makes it clear that it does not necessarily mean even that appellant’s actions were “wrong.”

Ill

The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The charge is dismissed.

Chief Judge SULLIVAN concurs.

1 . Appellant had been convicted of a charge alleging that he had “commit[ted] an indecent act [with his 14-year-old stepdaughter] by giving her a vibrator and simulations of the male penis, with intent to arouse or appeal to the sexual desires of the said [stepdaughter] or [appellant].” At trial, appellant had testified that he merely had given the vibrator to his stepdaughter at her request because otherwise, in his judgment, his stepdaughter — who he had concluded was not a typical naive 14-year-old— would become sexually involved with boys. In the Court of Military Review appellant argued that that act, "unaccompanied by the requisite intent to arouse his sexual passions, those of the child, or both, causes this conviction to fail for lack of sufficient proof.” The court agreed. Acknowledging that, "[t]hough many parents would condemn the appellant’s actions as a serious error in judgment,” the court held "that the evidence fails to establish the required criminal intent by proof of behavior or language which accompanied the alleged indecent act. See United States v. Orben, 28 MJ 172 (CMA 1989), cert. denied, 493 U.S. 854, 110 S.Ct. 157, 107 L.Ed.2d 115 (1989).” 33 MJ at 833.

2 . Perhaps the evidence regarding the offense involving appellant's stepdaughter, the conviction of which the Court of Military Review found unsupported by the evidence, subconsciously spilled over to fatally taint any realistic hope of a good-parent defense to the instant charge. See generally United States v. Haye, 29 MJ 213, 214 (CMA 1989); United States v. Hogan, 20 MJ 71, 73 (CMA 1985).