United States v. Riley

UNITED STATES, Appellee

v.

Leslie D. RILEY, Airman
U.S. Air Force, Appellant

No. 98-0146

Crim. App. No. 32183

United States Court of Appeals for the Armed Forces

Argued November 5, 2002

Decided June 23, 2003

GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, J.J., joined.

Counsel
For Appellant: Major Karen L. Hecker (argued); Colonel Beverly
B. Knott, Major Terry L. McElyea, and Major Patricia A.
McHugh (on brief).
For Appellee: Major Jennifer R. Rider (argued); Lieutenant
Colonel Lance B. Sigmon and Lieutenant Colonel LeEllen
Coacher (on brief).

Military Judge: Terence A. Curtin

This opinion is subject to editorial correction before final publication.
United States v. Riley, No. 98-0146/AF

Judge GIERKE delivered the opinion of the Court.

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to her pleas, of the

unpremeditated murder of her newborn baby girl, in violation of

Article 118, Uniform Code of Military Justice [hereinafter UCMJ],

10 U.S.C. § 918 (2000).1 The convening authority approved the

adjudged sentence of a dishonorable discharge, confinement for 25

years, total forfeitures, and reduction to the lowest enlisted

grade. In three successive appellate decisions, two of them

after remands from this Court, the Court of Criminal Appeals set

aside the murder conviction, affirmed a conviction of the lesser-

included offense of involuntary manslaughter in violation of

Article 119, UCMJ, 10 U.S.C. § 919 (2000), and affirmed a

sentence of dishonorable discharge, confinement for 10 years,

total forfeitures, and reduction to the lowest enlisted grade.

United States v. Riley, 47 M.J. 603 (A.F. Ct. Crim. App. 1997)
[hereinafter Riley I], rev’d, 50 M.J. 410 (C.A.A.F. 1999),

modified and aff’d, 52 M.J. 825 (A.F. Ct. Crim. App. 2000)
[hereinafter Riley II], rev’d 55 M.J. 185 (C.A.A.F. 2001),
modified and aff’d, 56 M.J. 551 (A.F. Ct. Crim. App. 2001)

[hereinafter Riley III].

1
The court members initially convicted Appellant of premeditated murder.
During the sentencing hearing, the defense submitted an affidavit from the
psychiatrist who had been the president of a sanity board convened to evaluate
Appellant’s mental responsibility. Among other things, the psychiatrist
opined that Appellant, who was 19 years old at the time of the sanity board,
was “operating on the maturity level of a 12 or 13 year old,” that she was
“genuinely remorseful over the death of her infant,” and that “[s]he exhibited
signs of acute depression and grief” so severe that at times it was necessary
to stop the evaluation because she “simply could not continue.” The
psychiatrist’s evaluation of Appellant caused the court members to reconsider
their findings. On reconsideration, the court members reduced their findings
from premeditated murder to unpremeditated murder.

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I. Factual Background

On April 7, 1995, Appellant went to the base hospital,

complaining that she was cramping, spotting, and had not had a

menstrual cycle for six months. She was examined by an emergency

room physician, who gave her a painkiller. Twelve days later, on

April 19, Appellant returned to the same physician, complaining

of cold symptoms, nausea, and tightness in her chest. The

physician gave her breathing treatments, a decongestant, and an

antibiotic.

At some time during April 1995, Appellant administered a

home pregnancy test to herself, and the result was positive. She

talked about the positive result to a “couple of friends,” who

opined that they did not think she could be pregnant. She did

not seek medical confirmation of her pregnancy because she

“didn’t even want to think that [she] was pregnant.” When the

criminal investigators asked her why she did not seek a medical

confirmation whether she was pregnant, she responded, “I didn’t

want to be pregnant so I didn’t want to find out, so I just

didn’t do it.”

On July 3, 1995, Appellant returned to the base hospital in

severe pain, and she told the emergency room technicians that she

had hurt her back playing racquetball. A contract physician gave

her a painkiller. While Appellant was waiting to be released,

she doubled over in pain and began crying. The technicians asked

another physician to examine her. This physician drew blood for

a pregnancy test.

While awaiting the results of the pregnancy test, Appellant

went into a bathroom adjacent to the examining room. The

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emergency room technicians could hear her, softly moaning and

crying. Twice, they knocked on the door. The first time,

Appellant said she should be out in a few minutes. The second

time, she said she had been sick and needed a mop. Appellant

gave birth to a baby girl in the bathroom, but she did not tell

anyone.

The baby girl was later found dead in the bathroom trash

can. The bathroom floor was covered with blood. There was blood

spattered on the walls and bloody footprints on the floor.

Appellant’s t-shirt showed the outline of an infant held against

her chest with its head near her left shoulder.

Appellant was subsequently hospitalized. On July 4, 1995,

while she was receiving a blood transfusion, she was questioned

by Detective Roger Joe Berry, a member of the Abilene, Texas,

Police Department, and Special Agent Chuck Roseberry, a member of

the U.S. Air Force Office of Special Investigations. The

questioning was tape-recorded and played for the members at her

court-martial.

Appellant told the investigators that she did not realize

she was giving birth when she went to the bathroom. She told

them: “I didn’t know what was wrong. And then I start to push

like instinctly [sic], and I looked down and there was hair that

wasn’t mine there. So I just kept on pushing. It dropped on the

floor.” She told the investigators that she pushed two or three

times and the baby kept coming out “little by little,” but on the

third time, the baby’s head and the rest of the body went

through. According to Appellant, the baby “like squirted out.

After I pushed, whoosh.” She said, “I didn’t have any chance to

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catch it, or anything. I didn’t know it was coming that quick.”

She said the baby “cracked its head. It was dead . . . it never

moved.”

An expert witness testified for the defense that a woman

will feel a strong need for a bowel movement when the first urge

to push comes during labor. The witness also testified that an

unassisted birth will produce an “explosive” delivery.

The cause of the baby’s death was determined to be a blunt

force crush of the skull. The medical examiner opined that the

most likely cause of the skull fracture was one or more impacts

of the skull against a hard flat surface with significant force.

The prosecution theory at trial was that Airman Riley

intentionally killed her baby girl by smashing or crushing her

skull. The defense theory was that the baby was killed when she

fell to the floor during the birthing process, through no fault

of Appellant.

The military judge proposed to instruct on the lesser-

included offenses of voluntary and involuntary manslaughter and

negligent homicide. He proposed to instruct that an element of

the lesser-included offenses was that Appellant “failed to

prevent the fracture of Baby Girl Riley’s skull or failed to

summon medical assistance which was immediately available for the

infant.” The defense objected to any instruction on culpable

negligence by failure to act, arguing that the Government had

charged Appellant with a culpable act but not a culpable failure

to act. The prosecution agreed in part, informing the military

judge that it had not tried the case on the theory that Airman

Riley was culpable for failure to summon medical assistance, and

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that it did not intend to argue that theory. The military judge

did not instruct on culpable negligence by failure to act, and

he specifically directed the court members to delete the

reference to a culpable failure to act from the written

instruction that had been provided to them.

In contrast to his instruction on involuntary manslaughter,

the military judge instructed the members that an element of the

negligent homicide was that the baby’s death “resulted from the

act or failure to act” of Appellant. However, he further

instructed them that Appellant’s “failure to summon medical

assistance may not, as a matter of law, constitute the negligent

act or failure to act set out above.”

Three decisions of the Air Force Court of Criminal Appeals

have affirmed a conviction of involuntary manslaughter on three

different bases: impeding medical assistance (Riley I); stuffing
a paper towel into the baby’s mouth and applying force to the

baby’s skull in a gross and reckless manner (Riley II); and

choosing to give birth while seated on a toilet seat despite the

risk of the baby falling to the floor (Riley III). Riley III is
now before this Court for review of four issues raised by

Appellant and three issues specified by this Court. The granted

issues are:

I. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN
A CONVICTION IN THIS CASE OR WHETHER THE AIR FORCE COURT’S
THIRD REVIEW OF THIS CASE WAS ERRONEOUS BECAUSE:

A. THE AIR FORCE COURT HAD PREVIOUSLY CONCLUDED THAT
THE EVIDENCE WAS INSUFFICIENT TO DETERMINE HOW THE
BABY’S SKULL WAS FATALLY FRACTURED; AND/OR

B. DEATH IS NOT A FORESEEABLE CONSEQUENCE OF AN
UNATTENDED CHILDBIRTH;

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C. THE NEGLIGENCE OF THE AIR FORCE DOCTORS WHO TREATED
APPELLANT WAS A SUFFICIENT INTERVENING PROXIMATE CAUSE
TO RELIEVE HER OF CRIMINAL LIABILITY; AND/OR

D. THE AIR FORCE COURT HAD ALREADY CONCLUDED THAT
DROPPING THE BABY ON THE FLOOR WOULD CONSTITUTE SIMPLE
NEGLIGENCE, NOT CULPABLE NEGLIGENCE.

II. WHETHER THE AIR FORCE COURT APPLIED THE IMPROPER
STANDARD WHEN EVALUATING THE FACTUAL SUFFICIENCY OF THE
EVIDENCE.

III. WHETHER THE AIR FORCE COURT ERRED WHEN IT REFUSED TO
FOLLOW THIS COURT’S MANDATE REQUIRING A SENTENCE REHEARING
AND WHEN IT THEN IMPROPERLY APPLIED THIS COURT’S PRECEDENTS
IN REASSESSING THE SENTENCE.

In addition, we specified the following issues:

IV. WHETHER THE AIR FORCE COURT’S REASSESSMENT OF THE
SENTENCE BY AGAIN AFFIRMING THE MAXIMUM SENTENCE CONSTITUTES
AN OBVIOUS MISCARRIAGE OF JUSTICE OR ABUSE OF DISCRETION.

V. WITH RESPECT TO FINDINGS OF FACT MADE BY A COURT OF
CRIMINAL APPEALS UPON INITIAL REVIEW THAT ARE RELEVANT TO
THE LEGAL OR FACTUAL SUFFICIENCY OF FINDINGS OF GUILT, WHAT
IS THE AUTHORITY, IF ANY, FOR THE COURT OF CRIMINAL APPEALS
TO RECONSIDER AND MAKE MATERIAL ALTERATIONS IN SUCH FINDINGS
UPON REMAND IN THE COURSE OF APPROVING A FINDING OF GUILT?

VI. WITH RESPECT TO THE ACTIONS OF THE COURT OF CRIMINAL
APPEALS SUBSEQUENT TO THE INITIAL REMAND FROM THIS COURT (50
M.J. 410):

A. HAS THE COURT OF CRIMINAL APPEALS DEMONSTRATED THAT
THE FINDINGS OF FACT IN ITS INITIAL DECISION (47 M.J.
603) WERE CLEARLY ERRONEOUS OR OTHERWISE INVALID AS A
MATTER OF LAW?

B. HAS THE COURT OF CRIMINAL APPEALS DEMONSTRATED THAT
ITS ACTIONS HAVE BEEN CONSISTENT WITH MANDATES OF THIS
COURT?

VII. ASSUMING THE FINDINGS OF FACT IN THE INITIAL DECISION
OF THE COURT OF CRIMINAL APPEALS MUST BE APPLIED WITHOUT
MATERIAL MODIFICATION DURING FURTHER APPELLATE CONSIDERATION
OF THIS CASE, IS THERE ANY OFFENSE THAT MAY BE AFFIRMED
BASED UPON THOSE INITIAL FINDINGS OF FACT?

For the reasons set out below, we affirm only so much of the

decision below in Riley III as affirms a finding of guilty of
negligent homicide in violation of Article 134, UCMJ, 10 U.S.C. §

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934 (2000). We set aside the sentence and order a sentence

rehearing.

II. Discussion
The granted and specified issues in this case fall into five

categories: (1) Whether the lower court had authority to

reconsider and modify its findings of fact in Riley II (Issues V

and VI-A); (2) Whether the lower court has complied with the

terms of this Court’s remand (Issue VI-B); (3) Whether the

evidence is legally sufficient to support a conviction of any

offense (Issues I and VII); (4) Whether the lower court applied

the correct test for factual sufficiency of the evidence in Riley
III (Issue II); and (5) Whether a sentence rehearing is required

(Issues III, IV, and VI-B).

A. Reconsideration of Facts on Remand (Issues V and VI-A)

In its initial review, Riley I, the Court of Criminal

Appeals set aside the murder conviction on the ground that it was

not satisfied beyond a reasonable doubt that Appellant was guilty

of unpremeditated murder. The court commented, “None of the

physical evidence or expert testimony presented in this case
persuade us to accept any one of the many possible explanations

for the injuries.” 47 M.J. at 608. The court stated that it was

not convinced beyond a reasonable doubt that Appellant fractured

her baby’s skull with the intent to kill or inflict great bodily

harm. Id.

The court affirmed a lesser-included offense of involuntary

manslaughter through culpable negligence, in violation of Article

119, based on Appellant’s “disregard for the foreseeable

consequences of refusing and impeding assistance in the delivery

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and care of her child[.]” Id. It reassessed the sentence and

affirmed a sentence to a dishonorable discharge, confinement for

10 years, total forfeitures, and reduction to the lowest enlisted

grade, the maximum sentence for involuntary manslaughter. See

Manual for Courts-Martial, United States (2002 ed.) Part IV,

para. 44.e.(2) [hereinafter MCM].

On review of Riley I, our Court held that an appellate court

violates due process if it affirms an included offense on a

theory not presented to the trier of fact. Our Court explained:

Like the theory that [A]ppellant failed to summon
medical assistance, which was expressly disclaimed by
the prosecution, this theory of intentional prevention
of medical intervention was not asserted by the
prosecution and was never submitted to the trier of
fact. Thus, [A]ppellant was never given an opportunity
to defend against it.

50 M.J. at 416.

In light of the lower court’s comment in Riley I that none
of the evidence persuaded it to accept any one of the possible

explanations for the baby’s death, it was not clear “whether that

court also found the evidence factually insufficient to support a

conviction of a lesser-included offense premised on negligent
infliction of the fatal injuries on the baby.” Id. Accordingly,

our Court remanded the case for clarification and

“reconsideration consistent with the principles of due process

set out above.” Id. Our reference to due process precluded the

court below from considering any withholding of medical care as a

basis for affirming any offense. Id.

On remand, Riley II, the court below reconsidered its

previous findings of fact, held that some of its findings of fact

in Riley were clearly erroneous, and modified its findings. The

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lower court then found beyond a reasonable doubt that Appellant

stuffed a paper towel into her baby’s mouth and applied force to

the baby’s skull in a gross and reckless manner. The court again

affirmed a conviction of involuntary manslaughter by culpable

negligence and affirmed the sentence. 52 M.J. at 828-30.2

On review of Riley II, this Court held that the Air Force

court’s reconsideration and modification of its previous findings

of fact was beyond the scope of the remand and, therefore, this

Court again reversed and remanded the case for clarification. 55

M.J. at 189; see United States v. Montesinos, 28 M.J. 38, 44
(C.M.A. 1989)(lower court’s authority on remand is limited by the

limitations and conditions prescribed by the remand).3 Thus, in

accordance with our remand, we review Riley III based on the

facts found by the court below in Riley I, except for those facts

pertaining to withholding of medical care.

B. Compliance with the Remand (Issue VI-B)

In Riley I, the Air Force court recited that Appellant sat

on the toilet in the clinic restroom, instinctively “pushed two

2
While Riley II was under advisement by the Air Force court, Appellant filed
a petition for habeas corpus with that court, which was denied. Appellant
then filed a writ-appeal petition with this Court, United States v. Riley, 55
M.J. 467 (C.A.A.F. 2001), which was denied without prejudice on September 12,
2001. United States v. Riley, 56 M.J. 144, 144-45 (C.A.A.F. 2001). Appellant
filed a habeas corpus petition with this Court on October 6, 2001. United
States v. Riley, 56 M.J. 206 (C.A.A.F. 2001). On September 17, 2002, this
Court granted her request to withdraw the habeas corpus petition as moot,
since she was released from confinement on August 25, 2002, having reached the
minimum release date for her 10-year term of confinement. United States v.
Riley, 57 M.J. 436 (C.A.A.F. 2002).
3
The timely filing of a petition for review vests jurisdiction in this Court
and divests the Court of Criminal Appeals of jurisdiction to reconsider its
decision. United States v. Jackson, 2 C.M.A. 179, 181, 7 C.M.R. 55, 57
(1953). This Court may, however, return jurisdiction to the lower court by a
remand. Id. at 182, 7 C.M.R. at 58. See Rules for Courts-Martial
1203(d)(2)(B) discussion (“The placing of a petition for review in proper
military channels divests the Court of Criminal Appeals of jurisdiction over
the case, and jurisdiction is thereby conferred on the Court of Appeals for
the Armed Forces.”).

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or three times, then the baby ‘squirted out’ onto the floor.” 47

M.J. 603. In Riley III, the Air Force court amplified this

recital with facts contained in Appellant’s statement to the

criminal investigators. The court found that, while Appellant

was sitting on the toilet, she looked down and saw “hair that

wasn’t” hers. She removed her underwear, shorts, and sneakers.4

She pushed again and a baby girl “squirted out” onto the hard

tile bathroom floor . . . . Appellant ripped the umbilical cord

from the child and discarded her in the trashcan.5 56 M.J. at

553. The Air Force court again affirmed a conviction of

involuntary manslaughter, based on the following rationale:

[A]ppellant gave birth to a child, delivering her head-
first onto the hard ceramic tile on the bathroom floor.
The resulting crush-fracture of the skull was the
proximate cause of the baby’s death. Choosing to
deliver the child from the toilet seat onto the hard
tile floor was more than an absence of due care. It
was an act in total disregard for the baby’s safety
and, when viewed in the light of human experience,
might foreseeably have resulted in the death of the
child.

Id. at 555.
In Riley I, the Air Force court did not reject any of the
explanations for the baby’s injuries, but stated that it could

4
There is no direct evidence that Appellant removed her clothing before or
during birth. However, this finding of fact is a fair inference from the
physical evidence in the bathroom. Appellant’s underpants were found “in the
immediate vicinity of the body,” and they were not heavily bloodied. Her
sneakers were lightly spattered with blood, but there were only bare
footprints and no shoeprints in the bathroom.
5
The transcript of Appellant’s responses to the criminal investigators
reflects that when asked how she separated the umbilical cord, she responded,
“I ripped it. I pinched it.” She explained that after she separated the
umbilical cord, she knelt on the floor and tried various measures to determine
whether her baby was dead. Once she concluded that her baby was dead, she put
her in the trash can. When asked why she put her dead baby in the trash can,
she responded, “It was, it was dead. Where was I supposed to put it? What
was I supposed to do with it?” Thereafter, she repeatedly said, “I didn’t
kill my baby.”

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not determine which explanation to accept. The facts described

in Riley III are a reasonable and permissible clarification

regarding the immediate cause or causes of the baby’s injuries.

The additional facts found by the Air Force court in Riley III

are not inconsistent with Riley I. Thus, we hold that the Air

Force court’s decision in Riley III complies with this Court’s

remand.

C. Legal Sufficiency of the Evidence (Issues I and VII)
The elements of involuntary manslaughter by culpable

negligence are as follows:

(1) “That a certain named or described person is dead”;

(2) “That the death resulted from the act or omission
of the accused”;

(3) “That the killing was unlawful”; and

(4) “That this act or omission of the accused
constituted culpable negligence[.]”

MCM Part IV, para. 44.b.(2). MCM Part IV, para. 44.c.(2)(a)(i)

defines culpable negligence as follows: “Culpable negligence is a

degree of carelessness greater than simple negligence. It is a

negligent act or omission accompanied by a culpable disregard for
the foreseeable consequences to others of that act or omission.”

We apply an objective test in determining whether the

consequences of an act are foreseeable. See United States v.

Oxendine, 55 M.J. 323, 326 (C.A.A.F. 2001).

Negligent homicide in violation of Article 134 is a lesser

included offense of involuntary manslaughter. The elements of

this offense are as follows:

(1) That a certain person is dead;

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(2) That this death resulted from the act or failure to
act of the accused;

(3) That the killing by the accused was unlawful;

(4) That the act or failure to act of the accused which
caused the death amounted to simple negligence; and

(5) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.

MCM Part IV, para. 85.b. MCM Part IV, para. 85.c.(2) defines
simple negligence 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.

The test for legal sufficiency of the evidence 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.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Legal sufficiency

is a question of law, reviewed de novo. United States v.
Tollinchi, 54 M.J. 80, 82 (C.A.A.F. 2000).
Appellant first argues that the evidence was insufficient to

determine how the baby’s skull was fractured. She bases her

argument on the Air Force court’s statement in Riley I that it

was not persuaded to accept any one of the many explanations for

the baby’s injuries.

The essential element in question is a specific act of

negligence that was the proximate cause of the baby’s death.

Riley III concluded that the negligent act was Appellant’s

delivery of her baby while sitting on a toilet with nothing

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beneath her but a hard ceramic tile floor. The court’s findings

and conclusions in Riley I are not in conflict with that

conclusion. Once the court in Riley III reached a legal
conclusion that the evidence was sufficient as a matter of fact

and law to establish Appellant’s negligence as the proximate

cause of death, it was not necessary for the court to make any

further determination as to the specific cause of death.

We turn next to the sufficiency of the evidence of culpable

negligence. In light of this Court’s holding in Riley I that any

finding of culpability based on intentional prevention of medical

intervention was barred by due process, this Court may not

consider, in evaluating the sufficiency of the evidence of

negligence, Appellant’s decision not to summon medical assistance

when she realized that she was about to give birth in the clinic

bathroom. We may consider, however, that Appellant realized

while she was in the bathroom that she was about to give birth.

She was in sufficient control of her mental and physical

faculties to remove her clothing and shoes. Knowing that

childbirth was underway, she chose to sit on the toilet seat.
Based on these facts, we hold that a reasonable factfinder

could find beyond a reasonable doubt that it was negligent for

Appellant to position herself on the toilet seat instead of on

the floor, where the danger of injury to her baby would have been

lessened. We further hold that a reasonable factfinder could

find beyond a reasonable doubt that Appellant’s negligence

“play[ed] a material role in the victim’s decease.” United

States v. Romero, 1 M.J. 227, 229 (C.M.A. 1975), cited with

approval in United States v. Gordon, 31 M.J. 30, 35 (C.M.A.

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1990). Thus, we hold that the evidence is legally sufficient to

support a conviction of negligent homicide in violation of

Article 134.

We are not satisfied, however, that a reasonable factfinder

could conclude that Appellant’s negligence rose to the level of

culpable negligence, i.e., a culpable disregard for the

foreseeable consequences to her baby. An experienced medical

professional would be aware of the potential for an explosive and

unexpected birth, sufficient to suddenly propel the baby onto the

hard floor, and consequently would be likely to foresee death as

a consequence of Appellant’s acts. This case, however, does not

involve an experienced medical professional. Instead, it

involves an inexperienced, immature lay person, giving birth for

the first time. We do not believe that a reasonable factfinder

could find beyond a reasonable doubt that Appellant culpably

disregarded the likelihood of the sudden and explosive birth of

her baby and her baby’s death as a consequence of her acts.

Thus, we hold that the evidence in this case was legally

insufficient to support a conviction of involuntary manslaughter

in violation of Article 119, because a reasonable factfinder

could not find “a culpable disregard for the foreseeable

consequences to others” beyond a reasonable doubt.

Finally, we reject Appellant’s argument that the failure of

the doctors to diagnose Appellant’s pregnancy was an intervening

proximate cause of the baby’s death sufficient to relieve

Appellant of criminal liability. Even if the doctors negligently

failed to diagnose Appellant’s pregnancy on April 7, April 19,

and July 3, their negligence was, at best, a contributing cause.

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They did not intervene between Appellant’s “negligent birthing”

and the ultimate death of her baby. See United States v. Cooke,

18 M.J. 152, 154-55 (C.M.A. 1984)(discussing differences between

contributing and intervening proximate cause). Even if Appellant

did not know that she was in labor when she went into the

bathroom, she admitted that she saw the baby’s head emerge while

she was sitting on the toilet. After she realized that she was

giving birth, she chose to remain in a position that

significantly increased the danger to the baby. Notwithstanding

any negligence by the doctors before she went into labor, her

lack of due care for the safety of her baby, once labor began,

“play[ed] a material role in the victim’s decease.” Romero, 1
M.J. at 229.

D. Test for Factual Sufficiency (Issue II)

In Riley III, the Air Force court concluded that the

evidence supporting the conviction of involuntary manslaughter

was factually sufficient “whether we apply the test mandated by

Congress or that decreed by the [Court of Appeals for the Armed

Forces].” 56 M.J. at 555. Thus, we hold that the issue whether
the Air Force court applied the correct test is moot, because the

Air Force found the evidence factually sufficient under either

test. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.

2002).

E. Sentence Rehearing (Issues III, IV, and VI-B)

In light of the dramatic change in the “penalty landscape”

in this case, we do not believe that an appellate court can

reliably determine what sentence the members would have imposed.

The court members considered a maximum sentence including life

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imprisonment but imposed a term of 25 years. The maximum term of

confinement is now three years. MCM Part IV, para. 85.e. The

offense has been reduced from an intentional killing to an act of

simple negligence resulting in death. We conclude that the only

“fair course of action” is a sentencing rehearing. See United

States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000).

III. Decision

Only so much of the decision of the United States Air Force

Court of Criminal Appeals is affirmed as affirms a finding of

guilty of negligent homicide in violation of Article 134. In all

other respects, the decision below is reversed, and the sentence

is set aside. The record of trial is returned to the Judge

Advocate General of the Air Force for a rehearing on the

sentence. In the event that a rehearing on the sentence is

impracticable, a sentence of no punishment may be approved.

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