IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES,
Appellee
v.
Senior Airman (E-4)
DONALD W. COX,
USAF
Appellant.
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ASSIGNMENT OF ERROR
Before Panel No. 1
Case No. ACM 38885
Tried at Vandenberg AFB, California,
22-25 June 2015 before a General
Court- Martial convened by 14 AF/CC
(AFSPC)
TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS:
Issue Presented
WHETHER APPELLANT’S CONVICTION FOR INVOLUNTARY
MANSLAUGHTER BY CULPABLE NEGLIGENCE IS LEGALLY AND
FACTUALLY INSUFFICIENT WHERE THE GOVERNMENT FAILED
TO OFFER SUFFICIENT EVIDENCE TO PROVE APPELLANT ACTED
WITH CULPABLE NEGLIGENCE.
Statement of the Case
On 11 May and 22-25 June 2015, Appellant was tried at a general court-martial by a
military judge sitting alone at Vandenberg Air Force Base, California. Contrary to his plea,
Appellant was found guilty of one charge and one specification of manslaughter in violation of
Article 119, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §919 (2012). In accordance
with his plea, Appellant was found not guilty of willfully engaging in speed contest in violation
of Article 134, UCMJ, 10 U.S.C. §934 (2012). The military judge purported to find the
Appellant guilty of one charge and specification of reckless driving in violation of Article 111,
UCMJ, 10 U.S.C. §911 (2012), however, the military judge immediately thereafter dismissed
that charge and specification with prejudice as a result of the defense’s motion to dismiss for
unreasonable multiplication of charges. Appellant was sentenced to a reduction to E-1 and 12
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months’ confinement. R. at 528. On 3 September 2015, the convening authority approved the
findings and sentence as adjudged.
Statement of Facts
On 13 July 2014, Appellant and a few friends decided to go to Wal-Mart in Lompoc,
California. R. at 253. Appellant drove his black Subaru with his friend, Airman First Class
(A1C) N.D., in the passenger seat and another friend, Senior Airman (SrA) J.R., in the rear
passenger side seat. R. at 254. Then-A1C D.J.R. (D.R.1) was driving his car, a red Ford
Mustang, and in the car with him were SrA D.R.2 and Ms. V.M. R. at 427.1 A1C D.R.1 and
Appellant met up at the Visitor’s Center and from there headed down Highway 1 to Lompoc. R.
at 254. The posted speed limit on Highway 1 is 65 miles per hour. R. at 202.
As they traveled on Highway 1, southbound, the cars both passed other cars, once in the
left-hand lane, and once in the right-hand lane. R. at 255, 429. They finished passing cars by the
time they reached the stoplight at Timberlane Road, just outside of Vandenberg AFB, roughly
one-half mile from where they entered the Highway. R. at 263-264. The two cars they passed
were driven by two unrelated individuals.
Major J.A. testified he was traveling at about 70 miles per hour and a red vehicle and
black vehicle passed him very quickly. R. at 203. According to Maj J.A. the driving conditions
for that day were excellent. R. at 211. Mr. F.O.A. was the driver of the other vehicle the cars
passed. R. at 226. He also testified that the weather and driving conditions were excellent. R. at
236. He was traveling at about 80 miles per hour. R. at 227. Both the red car and the black car
1
Counsel filed a motion to suspend the rules in Appellant’s assignment of error with regard to the two main
witnesses whose testimony is key to resolution of this issue. That motion was denied by this Court on 17 August
2016 without explanation. Given the confusing nature of using initials in this case D.R., D.J.R. and J.R., counsel is
electing to differentiate with numbers. D.J.R. and J.R. are referred to repeatedly and the similar nature of their
initials will become confusing. This is an effort to assist the Court, the government and counsel.
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passed Mr. F.O.A. in the right hand lane, and then the black car got into the left-hand lane. R. at
228-229. Mr. F.O.A. further testified that the black car appeared to slow down after it passed
him. R. at 233.
Airman Randall was driving the red Mustang on 13 July 2014. R. at 427.2 From the light
at the main gate to the light at Timberlane, the distance is roughly one-half mile, and A1C D.R.1
and Appellant were finished passing cars within that half mile. R. at 429, 436. As A1C D.R.1
approached the right-hand curve in the road he looked at his speedometer and saw he was
traveling 85 miles per hour. R. at 429. A1C D.R.1 approached Appellant’s car and saw
Appellant’s brake lights and noticed him slowing down. R. at 430. He then passed Appellant.
Id. A1C D.R.1 did not have to speed up to pass Appellant and he was certain he was going 85
miles per hour when he passed Appellant and Appellant was slowing down. R. at 434-435.
SrA J.R. drove with Appellant “more times than he can count.” R. at 261. He observed
that Appellant had a habit of speeding up to around 75-80 miles per hour and then slowing down
to at or below the speed limit, only to speed up again. Id.
Appellant purchased the car he was driving, a black Subaru, in March of 2014. R. at 256.
SrA J.R. was with Appellant when they purchased the car. R. at 257. The car was a manual
transmission. Appellant was new to operating a manual transmission, and SrA J.R. had been
teaching him how to drive on SrA J.R. ’s car. The lessons stopped though because SrA J.R. did
not want to risk Appellant burning up the clutch on the only car SrA J.R. had to drive every day.
R. at 260.
There were modifications made to the vehicle. Both SrA J.R. and the previous owner
explained the modifications made to the car to Appellant. R. at 257, 262. “The suspension on
2
Airman Basic Randall was court-martialed for the events of that day; he was testifying under a grant of immunity.
R. at 432, App. Exh. XXIX. AB Randall was acquitted of Negligent Homicide and Engaging in a Speed Contest
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the vehicle had been modified. There was a modified exhaust. There was ... the hood was
modified. The trunk was modified. And the motor had a turbo charger and some modifications
done to it.” R. at 257. The modifications to Appellant’s car were made mostly to make it look
cooler, however they allegedly also helped the car drive faster and to handle better especially at
higher rates of speed. R. at 261-62. SrA J.R. and the previous owner of the car explained those
modifications and the effect on the car to Appellant, specifically that it would allow the car to
handle better at high rates of speed, but Appellant did not make any additional modifications
because he did not have the knowledge, skill or tools to make them. R. at 262.
After A1C D.R.1 passed Appellant, SrA J.R. felt the car “slightly accelerate” and then
immediately felt a deceleration of the vehicle. R. at 256. Soon thereafter, he felt the vehicle go
into a slide and a jerking motion on the wheel; he testified the jerking motion was similar to and
felt like Appellant over-correcting a turn. R. at 267. SrA J.R. believed that, in an effort to keep
the car safely on the road, Appellant over-corrected and they ended up veering off the road. Id.
SrA J.R., who has a lot of experience with cars, believes the modifications to the suspension
could have played a part in causing the accident. R. at 268.
The government expert estimated Appellant’s speed anywhere from 44 miles per hour to
117 miles per hour, however he claims he is most confident with approximating Appellant’s
speed at 100 miles per hour. R. at 400, 402. The defense expert testified that based on his
calculations, the speed was more likely 66-74 miles per hour when the car began to slide off of
the road. R. at 450. When the vehicle hit the slightly elevated curb on the side of the highway, it
tripped, causing it to rollover a number of times causing severe damage to the entire car. R. at
449. A1C N.D. suffered severe injuries and died at the scene of the accident. R. at 210-11.
Dr. J.S. testified that he performed the autopsy on A1C N.D. R. at 410. Dr. J.S. noted
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significant head trauma that he concluded was due to a partial ejection; the cause of death was
blunt force trauma to the head. R. at 411-413. Dr. Smith explained,
[A] partial ejection is where an individual is seat-belted and so only the upper
portion of their body is ejected through the side window that is closest to them
during a rollover situation, and then the upper portion of their body becomes
trapped or pinned under the car during the rollover mechanism, typically the head,
or the head and neck.
R. at 412-413. Dr. J.S. concluded the blunt force trauma to A1C N.D.’s head was caused by his
partial ejection through the passenger window. R. at 415. On cross-examination, he admitted if
there had been something to prevent his head from exiting the window he would not expect to
see the compression fracture. Id.
The Multidisciplinary Accident Investigation Team (MAIT) of the California Highway
Patrol (CHP) conducted a thorough analysis of the car. Their narrative summary concluded
“[w]ith the addition of the after-market struts lowering the ride height, all four flexible rubber
hoses were chaffing on the underbody structure, degrading the integrity of the brake hoses.”
Def. Exh. A. Additionally, “[t]he modifications to the vehicle would have produced unsafe
handling characteristics during loss of control at high speed for an inexperienced driver.” Id.
The MAIT narrative further noted the wiring harness to the airbags was “disconnected at both
front seat locations.” Id. This was a pre-existing condition that “affected the functionality of
[the] vehicle upon the highway.” Id. There is no evidence that this modification was ever
explained to Appellant. The airbags did not deploy in the collision.
Argument
APPELLANT’S CONVICTION FOR INVOLUNTARY MANSLAUGHTER
IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE THE
GOVERNMENT FAILED TO OFFER EVIDENCE THAT APPELLANT’S
ACTIONS CONSTITUTED CULPABLE NEGLIGENCE.
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Standard of Review
“Article 66(c) requires the Court of Criminal Appeals to conduct a de novo review” for
legal and factual sufficiency. United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002). “Such
a review involves a fresh, impartial look at the evidence, giving no deference to the decision of
the trial court on factual sufficiency.” Id.; see also Article 66(c), UCMJ; United States v. Burns,
ACM 37847(rem) (A.F. Ct. Crim. App. 23 November 2015).
Law
“The test for legal sufficiency of the evidence is ‘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.’” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)
(quoting Jackson v. Virginia, 443 U.S. 307 (1979)). The legal sufficiency test requires this Court
to draw every reasonable inference from the record in favor of the prosecution. United States v.
McGinty, 38 M.J. 131, 132 (C.M.A. 1993); United States v. Blocker, 32 M.J. 281, 284 (C.M.A.
1991). The test for factual sufficiency weighs the evidence in the record of trial, makes
allowances for not having personally observed the witnesses, and requires the appellate judges to
be personally convinced of Appellant’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325.
This Court must be independently convinced of Appellant’s guilt beyond a reasonable doubt
before it may affirm his conviction for involuntary manslaughter. Specifically, “the test 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 convinced of
appellant’s guilt beyond a reasonable doubt.” United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003) (emphasis in original).
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Even when viewed in the light most favorable to the prosecution, the Government failed
to meet its extraordinarily high burden of proof in this case. The elements of involuntary
manslaughter by culpable negligence are:
(1) That a named person is dead;
(2) That his/her death resulted from the act or failure to act of the accused in a
certain way at a certain time and place;
(3) That the killing was unlawful; and
(4) That this act or omission of the accused constituted culpable negligence...
Manual for Courts-Martial, United States (MCM), Part IV, ¶44b(2) (2012). Culpable negligence
is defined as “a degree of carelessness greater than simple negligence.” MCM, Part IV,
¶44c(2)(a)(i). “It is a negligent act or omission accompanied by a culpable disregard for the
foreseeable consequences to others of that act or omission.” Id,; see also, United States v.
Daniel, 37 C.M.R. 112 (C.M.A. 1967) (firing a gun directly into a group of persons only 15-18
feet away is culpable negligence); United States v. Peterson, 38 C.M.R. 346 (C.M.A. 1968)
(throwing a fragmentation grenade toward a shower causing the grenade to explode killing one
and injuring five others amounted to culpable negligence); United States v. Mazur, 13 M.J.143
(C.M.A. 1982) (assisting someone in injecting heroin that was the material cause of death was
sufficient to amount to culpable negligence); United States v. Henderson, 23 M.J. 77 (C.M.A.
1986) (where appellant knew of friend’s history of abusing cocaine excessively and recklessly,
and deceased spoke of dying from the substance, it was culpable negligence to make available a
large amount of the drug to the deceased); United States v. Baker, 24 M.J. 354 (C.M.A. 1987)
(where a 13-month-old child was forcefully grabbed by the throat, held against a door and
thrown onto the floor with great force resulting in violent impact, the evidence was sufficient to
find culpable negligence); United States v. Brown, 26 M.J. 148 (C.M.A. 1988) (violent shaking
of an infant which subsequently caused the infant’s death amounted to culpable negligence);
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United States v. Mitchell, 12 M.J. 1015 (A.C.M.R. 1982) (repeatedly striking four-month old
child on the face and head to make her stop crying while attempting to change her diaper,
resulting in two skull fractures and fatal brain hemorrhage, constitute culpable negligence to
sustain conviction of involuntary manslaughter); United States v. Stanley, 60 M.J. 622
(A.F.C.C.A. 2004) (violently shaking an infant leading to shaken baby syndrome and the
eventual death of the child is culpable negligence sufficient to support a conviction of
involuntary manslaughter); United States v. Cowan, 39 M.J. 950 (N.M.C.C.M.R. 1994) (scraping
and stabbing a drunken, unconscious victim with knife constituted culpable negligence to
support conviction of involuntary manslaughter); United States v. Martinez, 48 M.J. 689
(A.C.C.A. 1998) (failure to seek medical attention for a 16-month-old child where appellant
knew of the brutalization by his wife of the child and knew the child was listless and running a
fever constituted culpable negligence sufficient to support a conviction of involuntary
manslaughter); United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000) (conscious decision to not
seek medical care during pregnancy and childbirth, failure to seek medical attention for the child
and failure to check on the condition of the child for over an hour after childbirth constituted
culpable negligence sufficient to support a conviction of involuntary manslaughter); United
States v. Oxendine, 55 M.J. 323 (C.A.A.F. 2001) (it was culpably negligent to hold deceased by
the ankles outside of a third story window without any safety equipment and subsequently
dropping him causing his death). These cases offer a glimpse into what this Court, our sister
service courts, and our superior court considers culpable negligence. It amounts to an act so
inherently dangerous that death or grievous bodily injury is likely. In order to be culpably
negligent one must disregard those obvious risks and thereby cause the death of another.
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This Court applies an “objective test in determining whether the consequences of an act
are foreseeable.” United States v. McDuffie, 65 M.J. 631, 635 (A.F.C.C.A. 2007) (citing, United
States v. Riley, 58 M.J. 305, 311 (C.A.A.F. 2003)); Oxendine, 55 M.J. at 326 (C.A.A.F. 2001).
Contrary to the above cited cases, and consisting of a nearly identical set of factual
circumstances, in McDuffie, this Court determined that the appellant did not act “with a culpable
disregard for the foreseeable consequences of his actions when, whether due to his falling asleep
or inattentiveness, he crossed the center line into oncoming traffic while operating his vehicle.”
65 M.J. at 637. McDuffie was driving a co-worker home from a medical appointment when he
crossed the center line into oncoming traffic and struck a pregnant woman killing her and her
unborn child. Id. at 632. At trial, the government’s theory of the case was that McDuffie was
culpably negligent because he had “severe sleep apnea and had been warned that he should not
drive when sleepy,” and yet he drove and fell asleep. Id. at 635. The evidence produced at trial
was inconclusive regarding whether McDuffie fell asleep or simply wasn’t paying attention to
the road. Id. The passenger of the car testified McDuffie was traveling about 50 miles per hour,
the posted speed limit. Id.
Analysis
Appellant’s case is tragically similar to the McDuffie case with regard to the factual
circumstances. This was a tragic accident, but it does not rise to the level of culpable negligence
sufficient to support a conviction for involuntary manslaughter. At trial the government’s theory
was that Appellant and A1C D.R.1 were racing and driving recklessly; however, based on the
findings of the court and the evidence produced at trial there was not sufficient evidence to
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support a conclusion that Appellant and A1C D.R.1 were racing or that they were driving
recklessly.3
Recklessness is defined as “a culpable disregard of the foreseeable consequences to
others from the act or omission involved.” MCM, Part IV, ¶35c(7). Wanton “connote[s]
willfulness, or a disregard of probable consequences.” Id. at ¶35c(8). Excessive speed alone is
not sufficient to support a finding of recklessness, you must factor in the driving conditions, the
manner of operation. Id. at ¶35c(7). “It is operating or physically controlling a vehicle, ... with
such a high degree of negligence that if death were caused, the [Appellant] would have
committed involuntary manslaughter, at least.” Id. The evidence produced at trial did not rise to
the level of culpable negligence or recklessness.
The evidence before the court at trial was that Appellant was aware of the modifications
to the car, but they were explained to him in such a manner as to indicate that the car would in
fact handle better at higher rates of speed. The testimony of SrA J.R. explains that, and
explained that both he and the previous owner explained to Appellant his car would handle better
at higher rates of speed. R. at 257, 262. According to SrA J.R.’s testimony, who had driven with
Appellant on a number of occasions, Appellant had been driving the car for three months without
incident and had been able to operate the car under similar conditions without incident. R. at
261. There was no evidence presented Appellant was ever made aware the air bags were
disconnected and nonfunctional. The information Appellant had about the car is akin to the
warnings McDuffie received about his sleep apnea. McDuffie had clear warnings not to do
something, and potentially did that very thing, thereby causing the accident. In this case
3
The military judge did in fact find Appellant guilty of reckless driving; however, he subsequently dismissed that
charge and specification as an unreasonable multiplication of charges. Recklessness and involuntary manslaughter
are closely tied, as a result Appellant chose to address both in this assignment of error, and asserts that his driving
was neither reckless nor culpable negligence.
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Appellant had no such warning. This case is even clearer cut than McDuffie. The evidence
simply does not support a conviction for manslaughter. Appellant had what he believed was
correct and sufficient information to make responsible decisions regarding the operation of his
car, which he did; however, the information he did not have played a large and significant role in
the accident. The MAIT report determined the modifications actually made the car handle
poorly, especially for an inexperienced driver – the opposite of what Appellant was told and
knew at the time. Moreover, Appellant was wholly unaware the airbags were nonfunctional, and
the lack of airbags were a significant contributing factor to A1C N.D.’s death. An individual
cannot deliberately disregard risks of which he has no knowledge.
With regard to Appellant’s speed at the time of the accident, the evidence was wildly
varied and difficult to reconcile. The government and defense experts’ estimates ranged
anywhere from 44 miles per hour to 117 miles per hour. However, the most concrete and
reliable information was AB Randall’s testimony. A1C D.R.1 was testifying under a grant of
immunity and had already been court-martialed for the same offenses; this lends credibility and
reliability to his testimony. He testified he was traveling at 85 miles per hour when he saw
Appellant slow down. SrA J.R. confirms the deceleration, testifying that shortly after they
started going downhill he felt the car slow down. This estimation is supported by the testimony
of both experts, and the fact that Appellant had a habit of speeding up and slowing down. The
other individuals on the road that day were operating their cars at similar speeds and the driving
conditions were excellent. As trial, defense counsel stated in closing argument, “[e]ither
everybody was reckless that day or simply exceeding the speed limit.” Exceeding the speed limit
is not enough.
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There is no explanation for the cause of Appellant’s accident. The evidence is unclear
whether Appellant saw something or thought he saw something or simply overcorrected on the
turn. SrA J.R. felt the car veering and he described it as someone overcorrecting and losing
control. What is clear is that Appellant was, in fact, exercising due care when he lost control of
the car. Losing control of a vehicle is not wanton, it is not recklessness, it is not a deliberate
disregard and it is certainly not culpable negligence.
When one exercises due care and an accident occurs, it is just that, an accident, not a
crime. This is especially true when the facts of this case are compared to the other instances
where military courts have found culpable negligence and when compared to McDuffie.
Appellant’s actions simply do not rise to the level to support a conviction for involuntary
manslaughter. The difference lies in the actions of the accused. Where an accused repeatedly
strikes an infant causing brain hemorrhages, there is a deliberate disregard for the likely
consequences of one actions; that is culpable negligence. Appellant’s case is different. He did
not disregard any known risks, nor did he intentionally avoid knowledge of any risks, and he did
not operate his car in a negligent manner. The government concedes he lost control of the car,
but it was not as a result of driving the car at a high rate of speed, it was as a result of the
modifications to the car. Losing control of a car is frankly less culpable than falling asleep or not
paying attention to the road. Appellant was exercising due care in slowing down and trying to
control his car; this was not culpable negligence and the government did not offer any evidence
to support such a finding.
In McDuffie, this Court affirmed the lesser included offense of negligent homicide.
However, in light of United States v. Jones, 68 M.J. 465 (C.A.A.F. 2012) (holding that even
though an offense may be listed as a lesser included offense it must pass the elements test to in
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fact be a lesser included offense), and United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011)
(holding that the government must offer evidence to prove the terminal elements when alleging
an Article 134, UCMJ, offense), this Court cannot affirm the offense of negligent homicide, even
if it believes Appellant failed to exercise due care, because it is no longer a lesser included
offense of involuntary manslaughter and because the government did not offer any evidence in
support of the terminal elements.
WHEREFORE, Appellant respectfully requests this Honorable Court dismiss the
findings and sentence in this case.
Respectfully Submitted,
LAUREN A. SHURE, Maj, USAF
Appellate Defense Counsel
Air Force Legal Operations Agency
United States Air Force
(240) 612-4770
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CERTIFICATE OF FILING AND SERVICE
I certify that the original and copies of the foregoing was sent via email to the Court and served on
the Appellate Government Division on 17 August 2016.
LAUREN A. SHURE, Maj, USAF
Appellate Defense Counsel
Air Force Legal Operations Agency
United States Air Force
(240) 612-4770
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