United States v. Master Sergeant KELVIN R. CURRY

CURRY - ARMY 20240073 gas, and she was not provided with feminine products while menstruating. In addition, the victim testified that having to live in these conditions made her feel "like nothing." Giving due deference to the panel's implicit credibility determination that the government's witnesses were more credible than the defense witnesses, and based on our own review of the record, we are convinced beyond a reasonable doubt that appellant's culpable negligence endangered the victim and therefore affirm the findings as factually sufficient.3 B. The Applicability of the Parental Discipline Defense in a Child Endangerment Case 1. Parental Discipline Although not directly raised by the parties, we requested supplemental briefing on the issue of whether it was appropriate for the military judge to instruct the jury on the parental discipline defense in a child endangerment case that did not involve the actual use of force. As we recently explained in United States v. Brass.field, our superior court has long recognized the parental discipline defense in the context of a general intent assault charge involving the use of force. 85 M.J.

523, 525-26 (Army Ct. Crim. App. 2024). For example, in United States v. Brown, the Court of Military Appeals [CMA] cited the Model Penal Code for the proposition that the use of force by parents or guardians is justifiable if: (a) the force is used to safeguard or promote the welfare of the minor, including the prevention or punishment of his misconduct; and (b) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. 26 M.J. 148, 150 (C.M.A. 1988). See also United States v. Robertson, 36 M.J. 190, 192 (C.M.A.

1992) (holding that "[t]he second prong of the [parental discipline] test is one of reasonable force."); United States v. Rivera, 54 M.J. 489, 491 (C.A.A.F. 2001)

The "new" Article 66 factual sufficiency standards, as recently explained in United States v. Harvey, 85 M.J. 127 (C.A.A.F. 2024), apply to those cases in which the conduct at issue occurred after 1 January 2021. In this case, the period of time charged for the child endangerment is 15 May 2020 through 30 July 2021, which would appear to overlap the applicability of the "old" and "new" standards. On the other hand, it is clear from the record that the victim went into the shed in May of 2020 and was not there for more than three months, which is still well prior to 1 January 2021. Nevertheless, even if we were to consider factual sufficiency under the "new" test set forth in Harvey, after giving the appropriate level of deference to the panel members who saw and heard the witnesses as they testified, and based on our own review and weighing of all the evidence in the record of trial, we are still clearly convinced beyond a reasonable doubt that appellant is guilty.