                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                 David R. THOMPSON, Sergeant First Class
                           U.S. Army, Appellant

                                      No. 03-0361
                             Crim. App. No. 20000342

       United States Court of Appeals for the Armed Forces

                            Argued December 10, 2003

                                Decided May 5, 2004

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

                                         Counsel

For Appellant: William E. Cassara, Esq. (argued); Colonel
    Robert D. Teetsel and Captain Lonnie J. McAllister, II (on
    brief); Lieutenant Colonel E. Allen Chandler, Jr. and Major
    Sean S. Park.

For Appellee: Captain Janine Felsman (argued); Colonel Lauren
    B. Leeker, Lieutenant Colonel Margaret B. Baines and Major
    Natalie A. Kolb (on brief).




Military Judge:        K. H. Clevenger


        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Thompson, No. 03-0361/AR


      Judge EFFRON delivered the opinion of the Court.

      At a general court-martial composed of officer and enlisted

members, Appellant was convicted, contrary to his pleas, of

indecent acts or liberties with a child, in violation of Article

134, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. § 934 (2000).    He was sentenced to confinement for four

years and reduction to the lowest enlisted grade.   The convening

authority approved these results, and the Court of Criminal

Appeals affirmed in an unpublished opinion.

       We granted Appellant’s petition for review under Article

67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3)(2000).1   For the reasons

set forth below, we hold that the military judge committed




1
    We granted review of three issues:

            I. WHETHER THE MILITARY JUDGE ERRED AS A
            MATTER OF LAW WHEN HE REFUSED TO DISMISS THE
            CHARGE AND ITS SPECIFICATIONS AS BEING
            OUTSIDE THE STATUTE OF LIMITATIONS.

            II. WHETHER THE MILITARY JUDGE ERRED AS A
            MATTER OF LAW WHEN HE REFUSED TO POLL THE
            MEMBERS AS TO WHETHER IT WOULD BE HELPFUL
            FOR THEM TO KNOW THE APPROXIMATE DATE THAT
            THE ALLEGED INDECENT ACT OCCURRED.

            III. WHETHER THE MILITARY JUDGE ABUSED HIS
            DISCRETION WHEN HE REFUSED TO STRIKE THE
            PRESIDENT OF THE PANEL AFTER IT WAS REVEALED
            THAT THE PRESIDENT WAS PASSING NOTES TO A
            JUNIOR MEMBER THAT DEMONSTRATED THE
            PRESIDENT’S INHERENT BIAS AGAINST APPELLANT.


                                  2
United States v. Thompson, No. 03-0361/AR


prejudicial error in his rulings related to the applicable

statute of limitations.



                          I. BACKGROUND

     Appellant was charged with one specification of rape.       The

panel at Appellant’s court-martial determined that he was not

guilty of rape, but was guilty of a lesser-included offense,

indecent acts with a child.

     At the time of Appellant’s trial, the offense of rape could

be tried at any time without limitation, while the offense of

indecent acts was subject to a five-year statute of limitations.

Article 43, UCMJ, 10 U.S.C. § 843 (2000); Willenbring v.

Neurauter, 48 M.J. 152 (C.A.A.F. 1998); United States v.

McElheney, 54 M.J. 120 (C.A.A.F. 2000).2    The present appeal

concerns the responsibilities of the military judge when

confronted by evidence that implicates the statute of

limitations applicable to a lesser-included offense.


1.   Preferral and referral of charges

     The charge sheet in the present case contained a single



2
 The subsequent amendment of Article 43(b) in the National
Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-
136, § 551, 117 Stat. 1392 (2003) (extending the statute of
limitations for certain child abuse offenses) is not at issue in
the present appeal. Cf. Stogner v. California, 539 U.S. 607
(2003).

                                3
United States v. Thompson, No. 03-0361/AR


specification alleging that Appellant “did, at or near

Glattbach, Germany, Fort Irwin, California, and Fort Knox,

Kentucky, on divers occasions on or between 1 September 1992 and

1 March 1996, rape [his stepdaughter], a person who had not

attained the age of 16 years.”    The summary court-martial

convening authority received the charge sheet on January 3,

2000.    Following consideration by superior convening

authorities, the charge and its specification were eventually

referred for trial by general court-martial.


2.   Trial on the merits

        Appellant’s stepdaughter, Ms. B, who was 20 years old at

the time of trial, testified that Appellant had abused her

sexually from age 5 through age 15.    She stated that Appellant

began touching her sexually in October 1985, about a year after

her mother married Appellant.    At that time, the family resided

in Glattbach, Germany, where Appellant was stationed until

February 1986.    She added that the sexual touching progressed to

anal sodomy during the family’s stay in Germany.

        Appellant was transferred to Fort Polk, Louisiana, in

February 1986, where he served until January 1989, accompanied

by his family.    Ms. B testified that the sexual abuse continued

during this period.    In January of 1989, Appellant was

reassigned to Germany, and the family returned to Glattbach.



                                   4
United States v. Thompson, No. 03-0361/AR


Ms. B said that the sexual abuse continued, including an

unsuccessful attempt at vaginal intercourse.

     Appellant and his family subsequently relocated to Fort

Irwin, California, where Appellant was stationed from March 1992

until June 1995.   According to Ms. B, Appellant engaged in

vaginal intercourse with her during this period.   She testified

that she did not tell anyone about the sexual abuse because

Appellant threatened “he would have the MP’s come and take

everything away from [her],” and that he would “put [her] in a

home for bad kids.”   Appellant moved with his family to Fort

Knox, Kentucky, in June 1995.   Ms. B stated that the acts of

sexual intercourse continued until March 1996, when all sexual

contact between her and Appellant ceased.

     Three and one-half years later, in September 1999, Ms. B

reported Appellant’s actions to law enforcement authorities.

According to her testimony at a pretrial hearing in the present

case, she decided to make the September 1999 report because she

feared that her younger brother might be subjected to the same

abuse.

     Additional evidence presented by the prosecution included

the testimony of Ms. B’s former boyfriend, to whom she revealed

the alleged sexual abuse in 1996, and an expert witness who

testified that Ms. B’s description of the alleged sexual abuse

that she suffered was consistent with cases of similar child


                                 5
United States v. Thompson, No. 03-0361/AR


sexual abuse.   The prosecution also introduced the deposition

testimony of Ms. B’s younger sister, Ms. NT, concerning an

incident when they lived at Fort Irwin.    In the deposition, Ms.

NT stated that she had walked into a room and saw Ms. B kneeling

on the floor while Appellant, with his pants down, kneeled

behind her.   Ms. NT recanted her deposition testimony at trial,

claiming that she was pressured into making it by Ms. B and Ms.

B’s then-current boyfriend.   The prosecution presented two

witnesses, a social worker and an investigator, Sergeant First

Class (SFC) Underwood, to whom Ms. NT had made statements

similar to her deposition testimony.

     The defense position was that the alleged abuse did not

occur, and that Ms. B’s promiscuity served both as a motive to

lie and as an explanation for her knowledge of sexual conduct.

Appellant’s wife and his mother-in-law each testified that

Appellant had not sexually abused Ms. B.    The defense also

presented witnesses who testified to Appellant’s good character,

reputation, and performance in the line of duty.   In closing

argument, trial defense counsel stressed that there was no

corroboration for Ms. B’s allegations and suggested that her

promiscuity provided a motive to fabricate accusations against

Appellant.




                                 6
United States v. Thompson, No. 03-0361/AR


3.   Instructions on findings

     As the presentation of evidence drew to a close, the

military judge discussed proposed instructions with the parties

in a session under Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2000).   The Government requested that the military judge

instruct the members that they could consider two lesser-

included offenses, carnal knowledge under Article 120 and

indecent acts with a child under Article 134.    The defense

objected.    With respect to the Article 134 offense, the defense

argued that the rape charge did not put the defense on notice

that they would have to defend against the facts elicited by the

Government pertinent to the specific offense of indecent acts

with a child.    The defense also contended that the Government

had not introduced any evidence on the element under Article 134

that the alleged lesser-included offense was prejudicial to good

order and discipline.    The military judge rejected the defense

objection.

     After counsel for both parties concluded their closing

arguments on findings, the military judge instructed the members

as to the elements of the rape charge and the two lesser-

included offenses.    With respect to indecent acts with a child,

the instructions included the following:

                  Now, the court is further advised that
             the offense of indecent acts or liberties
             with a child is also a lesser-included


                                   7
United States v. Thompson, No. 03-0361/AR


          offense in this case. In this instance it’s
          a lesser-included offense of carnal
          knowledge.

          . . . .

          . . . And in order to find the accused
          guilty of this lesser-included offense, that
          is, indecent acts with a child, you must be
          convinced by legal and competent evidence
          beyond a reasonable doubt of the following .
          . . elements.

          . . . .

               That at or near Glattbach, Germany,
          Fort Irwin, California, and Fort Knox,
          Kentucky, on divers occasions, on or between
          the 1st of September 1992 and 1st of March
          1996, the accused committed certain acts
          upon the body of [Ms. B], by touching her
          private parts.

          . . . .

               That at the time of the alleged acts .
          . . [Ms. B] was a female under the age of 16
          years.

          . . . .

               That the acts of the accused were
          indecent . . . .

          . . . .

               That [Ms. B] was a person not the
          spouse of the accused . . . .

          . . . .

               That the accused committed the acts
          with intent to arouse or gratify the lust or
          sexual desires of the accused and [Ms B].

          . . . .



                                8
United States v. Thompson, No. 03-0361/AR


                [And] [t]hat 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.


4.   Developments during deliberations concerning the statute of

limitations

      After the military judge completed his instructions, the

members began their deliberations on findings.      While the

members were deliberating, the military judge held a number of

conferences with the parties under Rule for Courts-Martial 802

[hereinafter R.C.M.], and Article 39(a).      During one conference

pursuant to R.C.M. 802, the trial counsel notified the military

judge of concerns about the statute of limitations with respect

to the lesser included offenses.       This led to several highly

technical discussions as the military judge belatedly

encountered a series of complexities resulting from the failure

to address the statute of limitations prior to instructing the

panel on findings.

      The first Article 39(a) session that considered the statute

of limitations included the following interchange between the

military judge, trial counsel and civilian defense counsel:

           MJ: Now, then, before we came back on the
           record we had an 802 conference and we
           talked about two issues.

                The first was a concern raised by the
           Government, quite properly, and that is; if


                                   9
United States v. Thompson, No. 03-0361/AR


          there is a lesser-included offense finding,
          that is, a finding as to an offense other
          than rape, there could be a statute of
          limitations problem.

               And the issue is, obviously, that under
          Article 43, the statute is [tolled] as to
          the death penalty offense of rape, and not
          as to the lesser-included offense of carnal
          knowledge and indecent acts. And, my
          calculation would be the -- the [tolling]
          point would be the 2nd of January 1995;
          because the charges were received by the
          summary court-martial convening authority on
          the 3rd of January 2000. So that would mark
          the five-year time period that the statute
          would bar offenses committed before the 2nd
          of January 1995.

               I had suggested to the parties that it
          would be an appropriate defense to raise
          against that, and the timing of it would be
          very awkward. And, the Government,
          apparently would not resist that in any way,
          and that the proper solution would be, that
          if the members returned a finding of a
          lesser-included offense, that included a
          time period before 1 -- Excuse me. --
          before the 2nd of January 1995.

               But, after that date, up until the
          charged date of 1 March 1996, . . . then the
          proper solution would be on a motion from
          the defense to exclude that portion of the
          finding barred by the statute of
          limitations. Without Government objection I
          would grant a motion, and order the
          specification thus amended.

               As near as I know, I haven't -- I
          don't recall seeing that in the law, but I
          see no reason why that would be an
          inappropriate process. Is that both a fair
          summary of what we talked about as to that
          matter, and would there be any objection to
          proceeding that way should it become
          necessary; Government?


                               10
United States v. Thompson, No. 03-0361/AR



          TC: That is a fair summary, Your Honor, and
          there would be no objection.

          MJ: Okay.

               Defense, I will give you a full
          opportunity to both consider and research
          the question if you'd like. I don't require
          you to answer immediately. But, if you have
          any ideas about it, I would be glad to
          listen.

          CDC: (A), we concur it's a fair summary; and
          (B), the only -- We are confident that it
          is possible and proper to do this since we
          are aware of case law allowing the military
          judge to enter findings after the panel has
          returned, in cases where there are
          inconsistent findings or otherwise, and we
          see it as being a similar analysis. The
          only penny-pinching we would do is whether
          it's the 2nd, or the 3rd, the 4th of
          January, and we'll look into that, Your
          Honor.

          MJ: Absolutely. Mine was the first cut on
          the timing. Somebody with a calendar can do
          a lot better, and I have not made any
          decision about that. We will await the
          event. But, at least we know what we are
          talking about should it occur.



     While the military judge and the parties engaged in these

discussions, the members continued their closed deliberations.

The members subsequently interrupted their deliberations and

returned to the courtroom on three separate occasions.   The

first interruption occurred when the military judge, in response

to an inquiry from the members, provided instructions on the



                               11
United States v. Thompson, No. 03-0361/AR


distinction between rape and carnal knowledge.   At that time,

the military judge also gave the members further instructions on

the offense of indecent acts.   Later, the members asked to

rehear Ms. NT’s testimony about the incident she witnessed at

Fort Irwin, as well as Ms. B’s testimony about the same subject.

The military judge permitted the members to rehear Ms. NT’s

testimony, and advised them that there was no testimony about

that incident by Ms. B.    Finally, the members asked if they

could rehear the testimony of SFC Underwood because they

believed that his testimony was “the only available evidence,

other than [Ms. NT]’s deposition, [that could] illuminate the

critical issue of the incident [described] by [Ms. NT] to have

occurred at Fort Irwin.”    At the direction of the military

judge, an audio tape of the pertinent testimony was played for

the members.


5.   Conclusion of the panel’s deliberations and announcement of
     findings

     The deliberations, which began in the early afternoon, were

concluded in the evening.   When the court-martial reconvened

that evening, the military judge asked the president of the

court-martial whether the members had reached a finding and

whether the finding was reflected on the findings worksheets.

After receiving an affirmative response, the military judge then

asked the president to read the findings.   The president


                                 12
United States v. Thompson, No. 03-0361/AR


announced that the court-martial found Appellant “Not Guilty of

Rape, but Guilty of indecent acts or liberties with a child.”

The findings worksheet set forth the following description of

the offense:

           In that Sergeant First Class David R.
           Thompson, United States Army, did, at or
           near Glattbach, Germany, Fort Irwin,
           California, and Fort Knox, Kentucky, on
           divers occasions on or between 1 September
           1992 and 1 March 1996, commit indecent acts
           upon the body of [Ms. B], a female . . .
           under 16 years of age, not the wife of the
           accused, by touching her private parts with
           intent to arouse the sexual desires of the
           accused and [Ms. B].


6.   Proceedings following announcement of the findings

      The military judge informed the members that because they

“entered a finding of guilty to a lesser-included offense,” the

court-martial would “go forward with sentencing.”   He also

advised the members that he would first need “to take a short

recess with counsel, outside of your presence, to conduct a

little bit of business.”

      At the ensuing Article 39(a) session, the military judge

stated that “the most significant thing is, we do now face the

issue of the statute of limitations on the lesser-included

offense finding.”   Both parties agreed that the five-year

limitations period should be based on receipt of charges by the

summary court-martial convening authority on January 3, 2000,



                                13
United States v. Thompson, No. 03-0361/AR


and that the statute of limitations would apply to events prior

to January 3, 1995.

     After hearing from both parties on the calculation of the

period, the military judge said:

          And so therefore the specification would
          have to be corrected to state: On divers
          occasions, on or between 3 January 1995, and
          1 March 1996; is that correct, Government?

The prosecution agreed.   The defense disagreed, and moved for a

finding of not guilty “because we cannot determine if any of the

offenses found occurred within the five-year statute.”   In

support of its position, the defense cited United States v.

Glenn, 29 M.J. 696 (A.C.M.R. 1989).

     The military judge observed that the matter raised by the

defense was “a close issue,” that Glenn was distinguishable, and

that the relevant test was “whether the record is sufficiently

clear that the acts occurred within the statutory time period.”

He stated that he was “satisfied that the record is sufficiently

clear, that on at least one occasion, that there was in fact a

touching of her private parts by the accused while at Fort Knox,

that would be sufficiently clear to indicate that the offense of

indecent acts with a child had occurred within the statutory

time period, as the evidence in this case suggests.”

     The defense disagreed.   After noting that the only evidence

involving Fort Knox was an allegation of sexual intercourse and



                                14
United States v. Thompson, No. 03-0361/AR


that the members acquitted Appellant of rape, the defense argued

that the verdict indicated that the members did not believe that

there was sexual intercourse at Fort Knox.   The defense comment

led to the following colloquy:

           MJ:   You are speculating, counsel.

           CDC: I think it’s fair comment, Your Honor.
           Clearly within the power of the panel, given
           the amount of time they took and the
           questions they asked, and the distinctions
           they drew. Further ---

           MJ: But we don’t know. We can’t know.
           Their deliberations are secret.

           CDC: That is the whole point, Your Honor, of
           the argument.


     The defense also noted that the majority of the members’

questions dealt with the incident described by Ms. NT, arguing

that if that incident occurred, the evidence showed that it

occurred outside the statutory period “in the 1993-94 time

frame.”   The defense urged the judge to dismiss the charge,

contending “that the court is substituting its belief of the

evidence, rather than that of the panel.”    The military judge

responded that, in his view, the legal test was whether he could

find evidence to support the finding:

                They have made a finding. Is there
           evidence which suggests all the elements of
           this offense could have been found within
           the statutory time period, is that evidence
           in the record? If I say, as I do, yes, I
           believe it is, I am not trying to justify


                                 15
United States v. Thompson, No. 03-0361/AR


          the finding. I am simply trying to
          determine whether or not Glenn is a bar to
          allowing the conviction to stand. I
          understand your argument though, sir.


     The military judge formally rejected the defense motion on

the grounds that the record contained sufficient evidence of an

offense not barred by the statute of limitations:

               [F]or the purposes of resolving the
          defense motion, I am going to conclude that
          the Glenn case is not controlling, and that
          our record does contain sufficient evidence
          to support a finding, within the statutory
          time period; [and] that the accused did
          commit indecent acts upon the body of [Ms.
          B].

Based on that ruling, the military judge announced that he would

amend the findings of the court-martial panel:


               [I]n order to clarify the issue as to
          whether the statute of limitations applies,
          I am going to direct that the finding of the
          court be amended such that the date, “1
          September 1992” would read, “3 January
          1995.”

He further stated that he would give the court-martial panel an

opportunity to evaluate the validity of his amendment of the

panel’s verdict:

               I will so direct the court-martial
          panel members, if they find that
          incompatible, they may very well say that to
          us - but for our purposes, that will be the
          nature of the offense for which sentencing
          evidence is being heard.




                               16
United States v. Thompson, No. 03-0361/AR


     The military judge then addressed each party.     First, he

directed the prosecution not to refer to any events prior to

January 3, 1995, during sentencing.   Next, he said:

          And, defense, your point is well taken and
          the court is willing to reconsider its
          ruling in light of further legal research or
          analysis, and it’s my belief if you prevail,
          the accused will not be irreparably damaged
          by the hearing of one sentencing witness
          this evening.

     When the members returned for the sentencing hearing, the

military judge informed them that he was modifying the

specification, and stated:

               It’s therefore important for you to
          recognize that the offense for which you
          have convicted the accused is as follows:

               [“]In that, Sergeant First Class David
               R. Thompson, U.S. Army, did, at or near
               Fort Irwin, California, and Fort Knox,
               Kentucky, on divers occasions between –
               on or between 3 January 1995 and 1
               March 1996, commit indecent acts upon
               the body of [Ms. B], a female under 16
               years of age, not the wife of the
               accused, by touching her private parts
               with intent to arouse the sexual
               desires of the accused and [Ms. B].[“]

          If that does violence to your verdict and
          your views, I need you to tell me that when
          we reconvene, or if you know that now, I
          would hear that now as well.

     When the military judge began to conduct the sentencing

proceedings, the President of the panel interrupted him and




                               17
United States v. Thompson, No. 03-0361/AR


stated that “[t]here may be a question . . . on the change.”

The military judge then informed the President of the panel --

                [L]et me make one thing very clear to
           you. In discussing this, what we must not
           do, is reveal the vote or opinion of any
           particular members. And, so, what I am
           really interested in is whether or not you
           need to say, well, as a matter of fact,
           based on what we were talking about in our
           discussions, it would appear that the
           changes I’ve made, would not reflect what
           you actually believe that you found beyond a
           reasonable doubt.

The President of the panel asked the military judge to allow the

members to discuss the amendment to the findings.   The military

judge advised the members that such a discussion would be

appropriate, adding that “you are talking among yourselves on

providing an answer to my question.   You are not reconsidering.”

     After the members had discussed the matter, the President

of the panel informed the military judge that if the amended

specification “includes a portion of the period at Fort Irwin, .

. . that satisfies the board.”   Appellant and his family had

resided at Fort Irwin for approximately five months during that

period.   The military judge then recessed the court-martial for

the evening after hearing a Government witness on sentencing.

     When the court-martial reconvened two days later, defense

counsel proposed a question for the military judge to pose to

the members in response to these events: “Would knowing the

approximate date or probable year of the incident about which


                                 18
United States v. Thompson, No. 03-0361/AR


[Ms. NT] spoke of as occurring ‘at the house with no grass’

possibly affect your finding of guilty now that the dates of the

specification have been modified to encompass the time period 3

January 1995 to 1 March 1996?”    The Government objected to the

proposed question, and the military judge did not make any

further inquiries of the members or rule on defense counsel’s

proposed question at that time.

     The discussion then turned again to the defense motion to

dismiss the finding, and the Government contended that the

defense had waived the statute of limitations.   The military

judge rejected the Government’s position, stating “[t]here is no

waiver in this case.”

     After advising the parties that he had engaged in further

research, the military judge ruled against the defense motion to

propound a further question to the members, and he also rejected

the defense motion to dismiss the finding.   The military judge

offered the following explanation for altering the findings that

had been returned by the members:

               Here, when the period in place of the
          finding, was in my mind, clarified to avoid
          the statute of limitations bar, and I did
          that because, number one, I didn’t believe
          the accused could properly stand convicted
          of an offense, a portion of which was within
          the statute of limitations, and I didn’t
          believe it was appropriate to allow
          sentencing to go forward in consideration of
          an element of an offense, that was in my
          view barred by the statue of limitations.


                                  19
United States v. Thompson, No. 03-0361/AR



                 I did determine at that time, and I
            adhere to my earlier conclusion that the
            evidence in the record of trial supports the
            conclusion that the panel made concerning
            the indecent act, of which [Appellant] has
            been convicted. I believe that [Ms. B] had
            testified to a period at which such an
            indecent acts [sic] occurred at Fort Irwin
            and at Fort Knox, Kentucky; that it was
            within the statue of limitations period.

     The military judge provided the following explanation for

his discussion with the members regarding modification of the

findings:

                 I believe I acted properly to confirm
            that with the court members, in accordance
            with R.C.M. 922 [announcement of findings];
            that is to say to, in effect, discuss an
            ambiguous finding with the court members.
            Once they recognized that I had modified the
            findings, they clearly said, hey, we think
            there is some concern about this, let us
            think about it. They were given an
            opportunity to think about it. They came
            back and were clearly not yet satisfied. I
            went further and made sure they understood
            that the modification left in a portion of
            the time period at Fort Irwin, and at that
            point the panel said very clearly, okay. In
            this case we understand it. That’s all
            right. That is consistent with what we
            found. I believe, at that point, the
            ambiguity was -- the ambiguity in the
            finding was cleared up and that that did not
            amount to a polling of the court members.

                 I did not have any member testify under
            M.R.E. 606 [competency of court member as
            witness], and I don’t believe the verdict
            was impeached under R.C.M. 923 [impeachment
            of findings] in any way by the clarification
            of that ambiguity, an ambiguity admittedly
            interjected into the trial by trial judge.


                                 20
United States v. Thompson, No. 03-0361/AR



                             II.   DISCUSSION

        When the evidence reasonably raises issues concerning a

lesser-included offense or the statute of limitations, the

military judge is charged with specific affirmative

responsibilities.    If the evidence at trial reasonably raises a

lesser-included offense, the military judge has an affirmative

duty to include in the instructions a “description of the

elements of each lesser included offense in issue, unless trial

of a lesser included offense is barred by the statute of

limitations (Article 43) and the accused refuses to waive the

bar.”    R.C.M. 920(e)(2).   See also R.C.M. 907(b)(2)(B)

discussion; United States v. Davis, 53 M.J. 202, 205 (C.A.A.F.

2000).    The military judge has an affirmative obligation to

advise an accused of the right to assert the statute of

limitations, and must determine that any waiver of the statute

of limitations bar is both knowing and voluntary.    R.C.M.

907(b)(2)(B); United States v. Moore, 32 M.J. 170, 173 (C.M.A.

1991); United States v. Salter, 20 M.J. 116, 117 (C.M.A. 1985)..

        In the present case, the military judge appropriately noted

that evidence at trial reasonably raised two lesser-included

offenses, carnal knowledge and indecent acts.    He also provided

appropriate instructions as to the elements of each offense.




                                    21
United States v. Thompson, No. 03-0361/AR


     Before giving those instructions, however, the military

judge was required to draw the attention of the Appellant to the

fact that a substantial portion of the time period set forth in

the proposed instructions included dates in which prosecution of

the lesser-included offenses was barred by the statute of

limitations.   In the present case, the military judge erred by

failing to engage in these discussions with Appellant prior to

instructing the members.

     The military judge had a timely opportunity to correct this

error after the court was closed for deliberations.   At that

point, when the problem was called to his attention by the trial

counsel, the military judge could have conducted the required

inquiry of Appellant to ensure that Appellant understood the

import of the statute of limitations in this case.    If the

military judge had made such an inquiry, and if Appellant had

responded in a manner demonstrating a knowing and voluntary

waiver, no further instructions would have been required.      If,

on the other hand, the military judge had determined that

Appellant would not waive the statute of limitations, the

military judge would have been obligated to modify the

instructions as to the lesser included offenses to include only

the period that was not time-barred.   See R.C.M. 920(b).

     It is possible that Appellant, had he been advised properly

by the military judge, might have decided to waive the statute


                                22
United States v. Thompson, No. 03-0361/AR


of limitations for tactical reasons.    The military judge,

however, did not ascertain whether Appellant wished to do so.

Instead, the military judge engaged in a highly technical

discussion with counsel for the parties as to the legal

implications of the statute of limitations -- a discussion that

was devoid of any attention to the subject of waiver.   In that

regard, it is noteworthy that when the trial counsel

subsequently asserted that defense counsel’s actions amounted to

waiver, the military judge expressly rejected the suggestion

that Appellant had waived the statute of limitations.

     When the panel announced its findings in open court, those

findings were final and were not subject to reconsideration by

the members.    See R.C.M. 922(a), 924(a); United States v.

Walters, 58 M.J. 391, 396 n.5 (C.A.A.F. 2003); see also R.C.M.

922(e) (prohibition on polling of members).   To the extent that

a military judge may clarify an ambiguous finding, see R.C.M.

922(b) discussion, any such authority is not applicable in the

present case.   The military judge had instructed the members

that they could return a verdict of guilty to the lesser-

included offense of indecent acts with a child.   He also had

instructed them that they could find Appellant guilty if they

determined that these acts occurred at any time between

September 1, 1992, and March 1, 1996.   They returned a verdict

in which their findings mirrored the military judge’s


                                 23
United States v. Thompson, No. 03-0361/AR


instruction both as to the lesser-included offense of indecent

acts and the full period of time from September 1, 1992, to

March 1, 1996.   There was no ambiguity.   The findings were

clear.

     The problem was not that the military judge permitted an

ambiguous verdict.   The problem was that, absent waiver, the

military judge was required to provide the members with

instructions that focused their deliberations on a much narrower

period of time -- January 3, 1995, to March 1, 1996 -- the

period not barred by the statute of limitations.   The time to

focus the members’ attention on the correct time period was

before they concluded their deliberations -- not after they

concluded their deliberations and returned a finding that

addressed a much longer span of time.   The failure to do so was

not relieved by the military judge’s subsequent reference to

evidence in the record that could support the finding.    The

issue here is not legal sufficiency of the evidence.   See United

States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987)(citing the

legal sufficiency test from Jackson v. Virginia, 443 U.S. 307

(1979)).   It is the failure of the military judge to focus the

panel’s deliberations on the narrower time period permitted by

the statute of limitations.

     In summary, the military judge’s instructions, although

erroneous, were not ambiguous.   The panel’s findings, which


                                 24
United States v. Thompson, No. 03-0361/AR


reflected those instructions, likewise were not ambiguous.    In

those circumstances, the military judge was not authorized to

modify the findings, irrespective of any subsequent discussions

with the members.   The failure to conduct a statute of

limitations waiver inquiry with Appellant, the erroneous

inclusion of the time-barred period in the instructions to the

members, and the post-announcement modification of the findings

constituted a series of errors materially prejudicial to the

substantial rights of Appellant.     See Article 59(a), UCMJ, 10

U.S.C. § 859(a) (2000).



                           III. DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The findings and sentence are set aside.

The record of trial is returned to the Judge Advocate General of

the Army.   A rehearing may be ordered.




                                25
United States v. Thompson, No. 03-0361/AR


     CRAWFORD, Chief Judge (dissenting):

     The majority finds prejudicial error in the military

judge’s “failure to conduct a statute of limitations waiver

inquiry with Appellant, the erroneous inclusion of the time-

barred period in the instructions to the members, and the post-

announcement modification of the findings[.]”   ___ M.J. (25)      I

respectfully disagree.   In my view, because the constitutional

policy behind the statute of limitations was otherwise served in

this case, no portion of the time period set forth in the

proposed instructions included dates in which prosecution of the

lesser-included offenses was barred by the statute of

limitations.   Furthermore, even assuming error, Appellant

suffered no prejudice to his substantial rights, as there is

overwhelming evidence that the indecent acts described in the

findings occurred within the modified time period.    Accordingly,

I would affirm Appellant’s conviction and sentence.

  A. The Statute of Limitations did not Bar Prosecution for any
     Applicable Lesser-Included Offenses in this Case

     The Fifth Amendment ensures that “[n]o person shall be held

to answer for a . . . crime . . . without due process of law.”

The Sixth Amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

informed of the nature and cause of the accusation.”    Statutes
United States v. Thompson, No. 03-0361/AR


of limitation exist precisely to protect these constitutional

provisions.

     The purpose of a statute of limitations is to limit
     exposure to criminal prosecution to a certain fixed
     period of time following the occurrence of those acts
     the legislature has decided to punish by criminal
     sanctions. Such a limitation is designed to protect
     individuals from having to defend themselves against
     charges when the basic facts may have become obscured
     by the passage of time and to minimize the danger of
     official punishment because of acts in the far-distant
     past. Such a time limit may also have the salutary
     effect of encouraging law enforcement officials to
     promptly investigate suspected criminal activity.

Toussie v. United States, 397 U.S. 112, 114-15 (1970)(emphasis

added).

     Invoking these same rights, military justice requires a

charge and its specifications “to be sufficiently specific to

inform the accused of the conduct charged, to enable the accused

to prepare a defense, and to protect the accused against double

jeopardy.”    United States v. Weymouth, 43 M.J. 329, 333

(C.A.A.F. 1995).   See also Rule for Courts-Martial 307(c)(3)

[hereinafter R.C.M.] (“A specification is a plain, concise, and

definite statement of the essential facts constituting the

offense charged.”).   Because of this required specificity,

Congress has dictated that an accused may be found guilty not

only of the charged offense, but also “of an offense necessarily

included in the offense charged[.]”   Article 79, Uniform Code of

Military Justice [hereinafter UCMJ], 10 U.S.C. § 879 (2000).



                                  2
United States v. Thompson, No. 03-0361/AR


See also R.C.M. 307(c)(3) (“A specification is sufficient if it

alleges every element of the charged offense expressly or by

necessary implication.”).   “A lesser offense is included in a

charged offense when the specification contains allegations

which either expressly or by fair implication put the accused on

notice to be prepared to defend against it in addition to the

offense specifically charged.”   Manual for Courts-Martial,

United States (2002 ed.), Part IV, para. 3.b.(1).

     Thus, the precise reason why a court-martial may convict an

accused of an uncharged lesser-included offense is because

inherent in the principal specification is notice of the lesser-

included offense.   This notice implicitly provides the accused

with the basic facts and information needed to defend against

the lesser-included offense.   In so doing, the constitutional

rights of due process and information of the nature and cause of

an accusation are guaranteed as to a necessarily-included

lesser-included offense.

     In the case at bar, Appellant’s conviction of indecent acts

with a minor arose from the same basic facts that led to his

initial rape charge.   In the same pattern of sustained sexual

abuse based on which the Government charged Appellant with rape,

the members found sufficient evidence of indecent acts with a

minor.   In other words, the arsenal of basic facts Appellant

addressed to defend his rape charge was the same arsenal of


                                 3
United States v. Thompson, No. 03-0361/AR


basic facts Appellant would have needed to defend a charge of

indecent acts with a minor.   In facing the rape charge for a

specific victim on specific dates at specific locations,

Appellant was adequately prepared to defend a charge of indecent

acts with the same victim on the same dates in the same

locations.   Because due process, and information of the nature

and cause of the accusation, remained secure as to the lesser-

included offense, the statute of limitations did not bar

prosecution for a lesser-included offense committed outside the

modified time period.

     In this vein, several state courts have held that the

running of the statute of limitations on the underlying felony

is irrelevant to a prosecution for felony murder.   See State v.

Dennison, 801 P.2d 193, 202 (Wash. 1990)(finding that complying

with the underlying felony’s statute of limitations is not a

jurisdictional prerequisite to prosecuting someone for felony

murder); People v. Sellers, 250 Cal. Rptr. 345, 351 n.15 (Cal.

Ct. App. 1988)(noting that a felony murder charge could be based

on attempted rape even though the statute of limitations had run

on attempted rape); Jackson v. State, 513 So. 2d 1093, 1094-95

(Fla. Dist. Ct. App. 1987)(concluding that the predicate or

threshold crime is statutorily distinct from the crime of felony

murder); People v. Lilliock, 71 Cal. Rptr. 434, 442 (Cal. Ct.

App. 1968)(holding that instruction on felony murder may be


                                 4
United States v. Thompson, No. 03-0361/AR


given in a prosecution for murder even though a prosecution for

the underlying felony would be barred by the statute of

limitations); People v. Harvin, 259 N.Y.S.2d 883, 886 (N.Y. Sup.

Ct. 1965)(holding that a charge of felony murder may not be

separated into its component parts so that if the statute of

limitations were a bar to the prosecution of one of the elements

of the crime, the major crime, the felony murder charge, would

also fall).   The relationship of felony murder to felony is

analogous to the relationship between a principal offense and

its lesser-included offense.   Indeed, commission of felony

murder encompasses as a lesser offense commission of the

underlying felony.   This analogy leads me to conclude that the

running of the statute of limitations for indecent acts does not

preclude prosecution for rape, or a subsequent conviction on the

lesser-included offense of indecent acts.

  B. Appellant Suffered no Prejudice

     “A finding or sentence of court-martial may not be held

incorrect on the ground of an error of law unless the error

materially prejudices the substantial rights of the accused.”

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).   Even assuming

the military judge erred, Appellant clearly suffered no

prejudice to his substantial rights.   Indeed, there was

overwhelming evidence that the indecent acts described in the

findings occurred within the modified time period, and therefore


                                 5
United States v. Thompson, No. 03-0361/AR


not within the period allegedly barred by the statute of

limitations.

     First, Ms. B’s testimony revealed a sustained pattern of

horrendous sexual abuse, as follows:

     •   Glattbach, Germany (pre-1985):    Appellant touched Ms. B

         sexually when he tucked her in at night.    Appellant

         required Ms. B to masturbate him under a blanket.

         Appellant forced Ms. B to engage in anal intercourse.

     •   Fort Polk, Louisiana (1986 - December 1989): Anal

         intercourse increased to three times per week.    Appellant

         induced Ms. B, with the promise of gifts and candy, to

         take his penis into her mouth.

     •   Grandmother’s House, Germany (January 1989 - February

         1992):   Fondling and anal intercourse continued with same

         frequency.   Appellant attempted vaginal penetration.

     •   Fort Irwin, California (March 1992 - May 1995): Appellant

         consummated act of vaginal intercourse, which replaced

         regular anal intercourse.    Ms. NT walked in on Appellant

         and Ms. B, and witnessed Ms. B kneeling over the bed with

         Appellant, pants down, behind Ms. B.

     •   Fort Knox, Kentucky (June 1995 – 1996):     Appellant

         continued to require vaginal intercourse.    Appellant was




                                  6
United States v. Thompson, No. 03-0361/AR


          verbally abusive.   Ms. B revealed abuse to her boyfriend

          and mother.   Abuse of Ms. B stopped.

     The pattern of abuse about which Ms. B testified

overwhelmingly supports a finding of indecent acts during the

modified time period, which encompassed January 3, 1995, through

March 1, 1996.    Indeed, Ms. B testified that Appellant sexually

abused her during this specific time period, consistent with the

overall pattern of abuse.

     Moreover, one of the members indicated that the panel based

its findings in large part on acts that occurred at Fort Irwin,

California, where Appellant was stationed during part of the

modified period.    These acts were described not only by Ms. B

herself, but also by her sister, Ms. NT, who testified in a

pretrial deposition that she observed her father sexually

abusing Ms. B at Fort Irwin.     Ms. NT’s subsequent recantation of

this testimony at trial is questionable.     See, e.g., United

States v. Suarez, 35 M.J. 374, 376 (C.M.A. 1992)(observing that

a child may render inconsistent statements as to abuse, recant

allegations of abuse, and fail to report or delay reporting

abuse).    Thus, in addition to the general pattern of abuse about

which Ms. B testified, there was additional evidence that

Appellant committed indecent acts with Ms. B specifically at

Fort Irwin, where Appellant resided during part of the modified

period.


                                   7
United States v. Thompson, No. 03-0361/AR


     Finally, after the members presented their findings, the

military judge clarified that the members understood the dates

during which Appellant’s indecent acts must have occurred, in

order to convict him for the offense.      The military judge

clarified that the members understood where Appellant was

stationed during the applicable dates.      The military judge

clarified that the members had sufficient time to digest the

change in the specification’s dates, and indeed the members took

a recess to discuss the change and make certain the findings

were still valid in light of it.       In the absence of evidence to

the contrary, this Court will presume the members followed the

judge’s instructions.   United States v. Orsburn, 31 M.J. 182,

188 (C.M.A. 1990).   These actions and instructions ensured that

the findings comported with the modified specification, and

therefore that Appellant was convicted of offenses not barred by

the statute of limitations.

     For these reasons, I respectfully dissent from the lead

opinion.




                                   8
