William Cassara - United States v Waggoner

For Appellant: William E. Cassara, Esq. (argued); Captain David S. Hurt, JA (on brief).

For Appellee: Captain Paul T. Cygnarowicz, JA (argued); Colonel David L. Hayden, JA; Lieutenant Colonel Edith M. Rob, JA; Major Anthony P. Nicastro, JA (on brief); Major Virginia G. Beakes, JA.

A general court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of aggravated assault in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. The convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for forty-two months, forfeiture of $926.00 pay per month for forty-two months, and reduction to Private E1. This case is before the court for mandatory review pursuant to Article 66, UCMJ.

The appellant asserts, inter alia, that the evidence is factually and legally insufficient to uphold the findings of guilty of aggravated assault by intentional infliction of grievous bodily harm. We agree in part. The evidence is insufficient to prove that the appellant intentionally caused “severe head trauma.” It is likewise insufficient to establish that the facial cuts alone constitute grievous bodily harm. We will affirm only a conviction of assault consummated by a battery. Under the circumstances of this case, we cannot “determine to [our] satisfaction” that the adjudged sentence “would have been of at least a certain severity,” and will return the case for a sentence rehearing, United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v. Riley, ___ M.J. ___, Nos. 00-5003 & 98-0146, 2001 CAAF, LEXIS 764, at *13-14 (June 29, 2001).

FACTS

Because of financial problems, the victim (the appellant’s ex-wife) moved with their son into the appellant’s trailer home. She slept on the couch,[1] while the appellant and their son slept in the two bedrooms. On the evening of 12 January 1997, after arguing with the appellant about child custody, the victim took three tablets of Flexeril and three tablets of Ambien, medications prescribed to her as muscle relaxants and sleeping pills, respectively.[2] She entered the appellant’s bedroom in an attempt to discuss and resolve their earlier argument, sat on the end of the bed closest to the door, spoke with him briefly, and then stood up to leave. She remembers nothing from that moment until she regained consciousness at the hospital, except for a fleeting memory of being told by the appellant that “they were not going to find [her] in his bedroom” as the appellant dragged her by the ankles from his bedroom through the hallway.

The appellant called for emergency medical assistance at about 0200 on 13 January 1997. When medical personnel arrived, they found the victim face up on the bathroom floor. She was in a comatose state, with non-reactive pupils, no gag reflex, and stiff, rigid limbs. She had bruises on her ankles and shoulders, cuts on her eyebrow and the columella (the part of the nose that separates the nostrils), and a cut or abrasion on the bridge of her nose. The appellant had no apparent cuts or injuries, but did have blood on his left hand and the stomach area of his shirt. The appellant informed the responding medical personnel that he woke up and discovered the victim next to him in bed,[3] convulsing or seizing.

Thereafter, according to the medical records and the testimony of medical personnel and the victim’s boyfriend, the appellant gave five different versions of what happened next: in the first version, the victim rolled off the bed, hitting her head against a dresser next to the bed; in the second, she stood up, then fell, hitting her head, and he dragged her to the bathroom; in the third, she fell face first, he picked her up, and she had a seizure, causing him to drop her; in the fourth, he pushed her twice to wake her up, she “flopped” off the bed, and she landed on the floor with no audible impact with any furniture; and finally, the appellant related that the victim, after experiencing seizures, got up, stumbled to the bathroom, had another seizure, and fell again. Bloodstains were documented on the bed, dresser, and floor at the base of the dresser.

A paramedic from the scene, the doctor who treated the victim at the hospital, and two expert witnesses testified that the drugs the victim claimed to have taken would not likely have caused seizures or respiratory depression; that individuals who have seizures are not capable of standing up or walking; that the victim showed none of the electrocardiac, metabolic, or other physical symptoms of either seizures or a Flexeril overdose; and that the victim’s facial injuries were inconsistent with a simple fall or roll from the bed. The treating physician and a forensic pathologist opined that the facial injuries probably resulted either from being accelerated into the dresser or from contact with a blunt, rounded object, such as a fist. The treating physician deduced from the description of the victim’s posture when the medical personnel arrived and from the victim’s medical records (which included no evidence of head trauma other than the isolated facial cuts), that the victim was demonstrating myclonus[4] brought on by either toxins or lack of oxygen. He speculated that a large overdose of the medications the victim ingested could cause myclonus, but an overdose would probably cause lasting brain damage.

The panel convicted the appellant of “commit[ting] an assault upon Lynn M. Helfer by striking her on the head and upper body and dragging her body across his mobile home trailer, thereby intentionally inflicting grievous bodily harm upon her, to wit: several deep cuts, bruises and abrasions about the head, upper body and limbs and severe head trauma.”

DISCUSSION

When we review a case for legal sufficiency, the test “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. Pabon, 42 M.J. 404, 405 (1995) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (last emphasis added in Pabon); cf. United States v. Henderson, 52 M.J. 14 (1999), cert. denied, 528 U.S. 1159 (2000). On the other hand, when testing for factual sufficiency under Article 66(c), UCMJ, this court must, “after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,” be convinced of an accused’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

After thoroughly reviewing the voluminous record, including the extensive medical records admitted as exhibits, we are not convinced beyond a reasonable doubt that any medical evidence links the victim’s comatose state to any intentional act by the appellant. The specification alleges that the appellant inflicted “severe head trauma.” The medical records list the victim’s facial cuts as “isolated,” and neither the records nor the testimony of any of the medical personnel describe any head trauma to explain her condition. No witness concluded that the medications in the amounts the victim claimed to have ingested would have caused the victim’s myclonus and other symptoms, from which she recovered completely. No evidence in the record permits an inference that the appellant somehow caused the ingestion of any additional medication, and the victim’s toxicology reports were consistent with her claims, although the reports could not quantify the amount of any drug present in her body. No medical record or witness explained how the appellant’s intentional actions could have resulted in a lack of oxygen leading to myclonus. Even if we were to conclude that the appellant inflicted the victim’s facial injuries by blows or by pushing her into the dresser, leaving her face down in front of the dresser on the shag rug, unconscious, where she was unable to move and slowly suffocating, his conduct constituted—at worst—reckless disregard for her welfare. Such culpable negligence is insufficient to sustain a conviction for intentional infliction of grievous bodily harm. Manual for Courts-Martial, United States (1995 ed.)[hereinafter MCM], Part IV, para. 54c(4)(b)(i). In short, the evidence shows that the victim’s coma resulted from either the medication she voluntarily ingested, or a lack of oxygen that the appellant did not intentionally cause, or a combination of the two causes.

We are also not convinced beyond a reasonable doubt that the facial injuries, standing alone, qualify as sufficiently “deep cuts” to support a conviction for inflicting grievous bodily harm.[5] The medical records describe the length of the lacerations over the eyelid and on the columella as one centimeter in length. The eyebrow laceration extended down to, but apparently did not involve, the “orbicularis oculi muscle,” and the columellar laceration reached the “medial crust of the [apparently undamaged] alar cartilages,” but neither term was further explained to the panel. When the treating physician was asked whether the cuts were deep and how deep they were, he replied in turn, “They had to be closed with stitches,” and “I did not see the cuts, sir, I only saw the stitches.” The cuts left no lasting scars or impairment. Under these facts, the record is insufficient to uphold the appellant’s conviction for aggravated assault based only on the facial cuts.[6] See generally United States v. Miles, 10 C.M.R. 283 (A.B.R. 1953), discussed in United States Army Legal Services Agency, The Advocate for Military Defense Counsel: DAD Notes, Army Law. 6 (1991), Dep’t of Army, Pam. 27-50-219 (March) (Grievous Bodily Harm?: Give Me a (Real) Break!); United States v. Thompson, 27 C.M.R. 662, 666-67, 666-67 (A.B.R. 1959).

Finally, we see no evidence, nor was the theory presented to the panel, that the manner in which the appellant inflicted the facial injuries, such as striking the victim with his fist or pushing her off the bed against the dresser, constituted a means likely to cause grievous bodily harm. Cf. United States v. Riley, 50 M.J. 410 (1999).

The remaining assertions of error, to include those raised personally by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit or mooted by our decision.

The court affirms only so much of the finding of guilty of the Specification of the Charge as finds that the appellant did, on or about 12 January 1997, unlawfully inflict upon Lynn M. Helfer several cuts, bruises and abrasions about the head, upper body and limbs. The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.

[1] The record contains no evidence of a reconciliation, and in fact, the victim was dating another man.

[2] The parties stipulated that a military family care physician had prescribed Flexeril at the rate of one tablet twice a day in December 1996, and a civilian psychiatrist prescribed one to two tablets of Ambien at bedtime, as needed, in September 1996.

[3] His description put her on the side of the bed furthest from the door, which the victim’s boyfriend testified was the opposite side from the side on which the victim usually slept.

[4] Rigid musculature.

[5] The MCM, Part IV, para. 54c(4)(a)(iii), defines “grievous bodily harm” as “serious bodily injury. It does not include minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.” Thus, the “bruises and abrasions about the head, upper body and limbs” which the appellant was convicted of inflicting would clearly not be considered grievous bodily harm.

[6] We recognize that generally, “whether the injuries are sufficiently serious to constitute grievous bodily harm is a question of fact best left to the court members,” United States v. Haynes, 29 M.J. 610 (A.C.M.R. 1989) (quoting United States v. Spearman, 23 U.S.C.M.A. 31, 33, 48 C.M.R. 405, 407 (1974)). In this case, however, we cannot determine if the members found grievous bodily harm based solely on the facial injuries.

* Judge Vowell took final action prior to her reassignment.