                       UNITED STATES, Appellee

                                    v.

                  Benjamin D. THOMPSON, Airman Basic
                       U.S. Air Force, Appellant

                              No. 05-0575

                         Crim. App. No. 35274

       United States Court of Appeals for the Armed Forces

                        Argued April 18, 2006

                        Decided June 20, 2006

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

                                 Counsel

For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Lieutenant Colonel Mark R. Strickland, and
Major Sandra K. Whittington (on brief).

For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief).

Military Judge:    Kurt D. Schuman




       This opinion is subject to revision before final publication.
United States v. Thompson, No. 05-0575/AF

       Judge ERDMANN delivered the opinion of the court.

       Airman Basic Benjamin D. Thompson was charged with three

marijuana-related offenses, false swearing, and contributing to

the delinquency of a minor, violations of Articles 112a and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 934

(2000).    Thompson entered pleas of not guilty and, at a general

court-martial with members, was convicted of wrongful use,

possession and distribution of marijuana in violation of Article

112a, UCMJ.    He was sentenced to a bad-conduct discharge and one

year of confinement.     The convening authority approved the

sentence and the United States Air Force Court of Criminal

Appeals affirmed the findings and sentence.    United States v.

Thompson, No. ACM 35274, 2005 CCA LEXIS 145, at *16, 2005 WL

1017616, at *6 (A.F. Ct. Crim. App. Apr. 29, 2005)

(unpublished).    We granted review of an issue questioning

whether the military judge erred by admitting evidence of

uncharged misconduct.1

       To determine whether evidence of uncharged acts of

misconduct is admissible under Military Rule of Evidence

(M.R.E.) 404(b), this court looks to whether that evidence “is

offered for some purpose other than to demonstrate the accused’s

1
    On January 4, 2006, we granted review of the following issue:

            WHETHER THE MILITARY JUDGE ERRED IN
            ADMITTING EVIDENCE OF UNCHARGED MISCONDUCT.



                                   2
United States v. Thompson, No. 05-0575/AF

predisposition to crime . . . .”       United States v. Castillo, 29

M.J. 145, 150 (C.M.A. 1989).   Thompson contends that two

pretrial statements that contained information about his

preservice drug use were erroneously admitted by the military

judge in that they served no legitimate purpose, merely painted

him as an habitual drug user, and were prejudicial to his

substantial rights.   We conclude, as did the Court of Criminal

Appeals,2 that the military judge abused his discretion in

admitting this evidence of preservice drug use but that the

error was not prejudicial.

                                FACTS

     Thompson had been utilized as a confidential informant for

the Air Force Office of Special Investigations (AFOSI) from

September 18, 2001 until January, 2002.      Thompson had provided

information only three times in response to over thirty taskings

from AFOSI.    As a result, he was interviewed by AFOSI because it

was believed that he was “becoming basically uncontrollable” as

a confidential informant and that he was not disclosing drug

involvement.   During this interview, Thompson indicated that he

had been in approximately twenty-five situations in which he

simulated smoking marijuana, and that on two of those occasions




62 M.J. 436 (C.A.A.F. 2006).
2
  United States v. Thompson, No. ACM 35274, 2005 CCA LEXIS 145,
at *8-*12, 2005 WL 1017616, at *2-*4 (A.F. Ct. Crim. App. Apr.
29, 2005) (unpublished).

                                   3
United States v. Thompson, No. 05-0575/AF

he inhaled marijuana smoke.

     The Government’s case-in-chief consisted of testimony from

a number individuals with whom Thompson had engaged in various

drug-related activities and a forensic toxicologist who

testified as an expert on the psychological effects of

marijuana.   At the conclusion of the Government case, the

defense rested.

     During a session held pursuant to Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000), Thompson objected to the admissibility

of three pretrial statements.   Those statements involved:   (1)

admissions to Airman JB about Thompson’s use of marijuana “all

the time back home”; (2) a statement to a military dependent,

DG, about Thompson’s preservice practice of selling marijuana;

and (3) a statement to DG about Thompson’s use of marijuana in

high school.   Thompson challenged these statements as

inadmissible uncharged misconduct under M.R.E. 404(b) and

claimed that their prejudicial impact substantially outweighed

their probative value under M.R.E. 403.

     The military judge noted that the first and third

statements reflected “knowledge of marijuana use” and “knowledge

and absence of mistake.”   The military judge permitted testimony

about the statements to DG and Airman JB relating to preservice

use of marijuana.   The military judge reserved ruling on the

admissibility of the statement to DG about selling marijuana.



                                 4
United States v. Thompson, No. 05-0575/AF

Later, the military judge sustained Thompson’s objection to that

statement after conducting a balancing test under M.R.E. 403.

                            DISCUSSION

     As he did before the Court of Criminal Appeals, Thompson

challenges the ruling of the military judge admitting his two

statements about preservice drug use under M.R.E. 404(b).     He

makes this claim despite the fact that he received a favorable

ruling on that precise question from the Court of Criminal

Appeals.3   Thompson also claims that the Court of Criminal

Appeals erred in finding that the military judge’s error in

admitting the two statements was harmless.   The Government

responds that the military judge did not abuse his discretion by

admitting the two statements and that, even if he did err, the

error was harmless in light of the overwhelming evidence of

guilt, the limiting instructions, and the fact that no special

emphasis was placed upon this uncharged misconduct during the

Government’s case.


3
  Although Thompson prevailed at the Court of Criminal Appeals on
the question of whether the military judge erred in admitting
the two statements, he has again challenged the military judge’s
admissibility ruling before this court. Absent such a challenge
or certification of that ruling by the Government pursuant to
Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. §
867(a)(2) (2000), we would conduct a “law of the case” analysis
to determine whether that issue was properly before the court.
See United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002);
United States v. Grooters, 39 M.J. 269, 272-73 (C.M.A. 1994).
However, in light of Thompson’s specific challenge to the
military judge’s decision, we will proceed to review whether the
military judge erred in admitting the statements.

                                 5
United States v. Thompson, No. 05-0575/AF

     Military Rule of Evidence 404(b) provides:

             Other crimes, wrongs, or acts. Evidence of
             other crimes, wrongs, or acts is not
             admissible to prove the character of a
             person in order to show action in conformity
             therewith. It may, however, be admissible
             for other purposes, such as proof of motive,
             opportunity, intent, preparation, plan,
             knowledge, identity, or absence of mistake
             or accident, . . . .

The test for admissibility of uncharged acts is “whether the

evidence of the misconduct is offered for some purpose other

than to demonstrate the accused’s predisposition to crime and

thereby to suggest that the factfinder infer that he is guilty,

as charged, because he is predisposed to commit similar

offenses.”    Castillo, 29 M.J. at 150; see also United States v.

Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998); United States v.

Miller, 46 M.J. 63, 65 (C.A.A.F. 1997).

     To determine whether uncharged acts are admissible under

M.R.E. 404(b), this court uses the three-part test from United

States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).     United

States v. McDonald, 59 M.J. 426, 429 (C.A.A.F. 2004); United

States v. Diaz, 59 M.J. 79, 94 (C.A.A.F. 2003).     The first prong

of the test asks whether the evidence reasonably supports a

determination by the factfinder that an appellant committed the

prior misconduct.    Reynolds, 29 M.J. at 109 (citing United

States v. Mirandes-Gonzalez, 26 M.J. 411 (C.M.A. 1988)).       The

standard required to meet this first prong is low.    United



                                   6
United States v. Thompson, No. 05-0575/AF

States v. Dorsey, 38 M.J. 244, 246 (C.M.A. 1993).    The second

prong of the test asks what fact of consequence is made more or

less probable by the existence of this evidence.    Reynolds, 29

M.J. at 109 (citing M.R.E. 401; United States v. Ferguson, 28

M.J. 104, 108 (C.M.A. 1989)).    The final prong of the test calls

for balancing under M.R.E. 403.    Id.   We review a military

judge’s decision to admit evidence for abuse of discretion and

will not overturn that ruling unless it is “‘arbitrary,

fanciful, clearly unreasonable,’ or ‘clearly erroneous,’” or

influenced by an erroneous view of the law.    McDonald, 59 M.J.

at 430 (quoting Miller, 46 M.J. at 65).

       The evidence meets the first prong of the Reynolds test.

Thompson’s admissions to DG and Airman JB reasonably support a

finding that Thompson used marijuana before he entered the Air

Force.    However, this evidence fails the second prong of the

test for uncharged misconduct.    Even though M.R.E. 404(b) is a

rule of inclusion,4 the evidence must be relevant to a fact in

issue other than an accused’s character or predisposition to

commit the charged offenses.    McDonald, 59 M.J. at 429 (quoting

Huddleston v. United States, 485 U.S. 681, 686 (1988)).    Thus,

“evidence of prior drug use is not inadmissible per se at a

court-martial.    Mil.R.Evid. 404(b) permits evidence of ‘other

crimes, wrongs, or acts’ to prove facts other than a person’s


4
    United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002).

                                  7
United States v. Thompson, No. 05-0575/AF

character, such as ‘intent, knowledge, or absence of mistake or

accident.’”    United States v. Tyndale, 56 M.J. 209, 212

(C.A.A.F. 2001).    The express purposes for which the military

judge admitted this evidence of prior drug use were to show

knowledge of marijuana use and the absence of mistake.

        We agree with the Court of Criminal Appeals that Thompson

did not raise the issues of lack of knowledge or mistake of

fact.    Thompson, 2005 CCA LEXIS 145, at *8, 2005 WL 1017616, at

*3.   While the defense counsel did refer to Thompson as “young”

and “naive” in his opening statement, that description of

Thompson was never tied to any evidence showing that Thompson’s

alleged naiveté related to marijuana or caused him to

misapprehend any fact of consequence.    Indeed, nothing in the

record suggests that Thompson was unknowledgeable when it came

to the nature, effects or use of marijuana.    Nor is there

evidence in the record of any mistake, whether it be a mistake

rising to the level of a defense or a mistake that the defense

could argue to mitigate Thompson’s criminal culpability.      As

noted by the Court of Criminal Appeals, the defense focused on

the credibility of those who testified about Thompson’s

marijuana use and on the pressures and fears of detection he

faced as a confidential informant that caused him to act as he

did to conceal that status.    Thompson, 2005 CCA LEXIS 145, at

*8-*9, 2005 WL 1017616, at *3.    Because the matters for which



                                   8
United States v. Thompson, No. 05-0575/AF

the military judge admitted the uncharged acts evidence were not

in issue, that evidence served no relevant purpose and fails the

second prong of the Reynolds test.    We conclude that the

military judge abused his discretion by admitting the statements

about preservice drug use.

     Having found error, we must test for prejudice.     Article

59(a), UCMJ, 10 U.S.C. § 859(a) (2000).   We conduct a de novo

review to determine whether a nonconstitutional error in

admitting evidence is prejudicial to an accused’s substantial

rights, and we consider four factors:    (1) the strength of the

Government’s case; (2) the strength of the defense case; (3) the

materiality of the evidence in question; and (4) the quality of

the evidence in question.    United States v. Berry, 61 M.J. 91,

98 (C.A.A.F. 2005); McDonald, 59 M.J. at 430-31.    We conclude

that Thompson was not prejudiced.

     Although the Government’s case consisted largely of

testimony from other drug users or accomplices, that testimony

presents a telling picture of Thompson’s frequent involvement

with marijuana.   Thompson’s effort to undermine the credibility

of his accomplices was not persuasive.    In addition, their

testimony as to the unlawful nature Thompson’s drug activity was

enhanced by the fact that Thompson rarely provided any

information about drug activity when he was tasked to do so by




                                  9
United States v. Thompson, No. 05-0575/AF

the AFOSI.    The whole of the Government’s case against Thompson

was compelling.

     In contrast, the defense case was markedly less

substantial.    Not only was the attack on the credibility of the

accomplice testimony unsuccessful, the asserted duress defense

was de minimus.

             The defense of duress applies when the
             accused has a (1) “reasonable apprehension”
             that (2) “the accused or another innocent
             person” would (3) “immediately” suffer death
             or serious bodily injury if the accused “did
             not commit the act.” Id. A “reasonable
             apprehension” does not exist “if the accused
             has any reasonable opportunity to avoid
             committing the act without subjecting
             [himself] or another innocent person to the
             harm threatened[.]”

United States v. Vasquez, 48 M.J. 426, 430 (C.A.A.F. 1998)

(quoting Rule for Courts-Martial 916(h)) (alterations in

Vasquez).    Although the military judge did instruct on the

defense of duress, the evidence left to speculation the nature

of the physical harm threatened and there was virtually no

evidence about whether Thompson had a reasonable opportunity to

avoid the harm by doing something other than actually inhaling

marijuana.

     Finally, as to the materiality and quality of the evidence,

we conclude that the actual worth of the statements about

preservice drug use was minimal.       Each statement was mentioned

but once during the Government’s case-in-chief and during



                                  10
United States v. Thompson, No. 05-0575/AF

argument they were mentioned only in trial counsel’s rebuttal

argument.   Neither statement played a role of major significance

in the prosecution of the case against Thompson.   A limiting

instruction given by the military judge precluded the members

from considering this evidence on any issue other than

“knowledge on the part of the accused on how to use marijuana

and to prove that the accused intended to use marijuana.”

     If the members determined that Thompson did in fact inhale

marijuana, neither knowledge nor intent was in issue.    Thus,

under the instructions of the military judge, this evidence was

not helpful to the Government’s case.   Further, the members were

told they “may not consider this evidence for any other purpose,

and you may not conclude from this evidence that the accused is

a bad person or has general criminal tendencies and that he,

therefore committed the offenses charged.”   We presume this

instruction was followed.   United States v. Taylor, 53 M.J. 195,

198 (C.A.A.F. 2000); United States v. Holt, 33 M.J. 400, 408

(C.M.A. 1991).   We therefore conclude that this error was

harmless and had no prejudicial impact on Thompson’s substantial

rights.

                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                11
