UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                       BURTON, CELTNIEKS, and SCHASBERGER
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Major MICHAEL D. THOMPSON
                           United States Army, Appellant

                                       ARMY 20140974

                             Headquarters, Fort Bliss
               Timothy P. Hayes, Jr., Military Judge (arraignment)
                     Michael J. Hargis, Military Judge (trial)
   Colonel Karen H. Carlisle, Staff Judge Advocate (pretrial & recommendation)
 Lieutenant Colonel Runo C. Richardson, Acting Staff Judge Advocate (addendum)


For Appellant: William E. Cassara, Esquire.

For Appellee: Pursuant to A.C.C.A Rule 15.4, no response filed.


                                       26 February 2018

                    --------------------------------------------------------------
                          SUMMARY DISPOSITION ON REMAND
                    --------------------------------------------------------------

Per Curiam:

       The findings of guilty of Charge I and its specifications are reversed in light
of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017). The sentence is set
aside, and a rehearing is authorized.

       A panel of officers sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of willfully disobeying a superior
commissioned officer, seven specifications of rape, one specification of assault
consummated by battery, and six specifications of conduct unbecoming an officer in
violation of Articles 90, 120, 128 and 133, Uniform Code of Military Justice, 10
U.S.C. §§ 890, 920, 928, 933 (2006 & 2012). The panel sentenced appellant to
confinement for sixteen years. The convening authority approved the sentence as
adjudged.
THOMPSON—ARMY 20140974

       On 6 January 2017, this court affirmed the findings and sentence in this case.
United States v. Thompson, ARMY 20140974, 2017 CCA LEXIS 7 (Army Ct. Crim.
App. 6 Jan. 2017) (summ. disp.). On 10 January 2018, the Court of Appeals for the
Armed Forces (CAAF) set aside this court’s decision and remanded the case for a
new review under Article 66, UCMJ, in light of Guardado. United States v.
Thompson, 77 M.J. ___, 2018 CAAF LEXIS 61 (C.A.A.F. Jan. 10, 2018) (summ.
disp.). No further pleadings were filed by the parties.

                                 BACKGROUND

       Appellant stands convicted of sexually assaulting his wives, Major (MAJ) YL
and Ms. UT. At the close of evidence on findings, the military judge provided an
instruction concerning the use of both charged and uncharged sexual misconduct
involving MAJ YL and Ms. UT pursuant to Military Rules of Evidence [hereinafter
Mil. R. Evid.] 413 and 414. The instruction permitted evidence of one charged
offense to show appellant’s propensity to commit the other charged offenses in
Charge I. See Dep’t of Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook [hereinafter Benchbook], para. 7-13-1, note 4 (1 Jan. 2010).

                              LAW AND DISCUSSION

       After appellant’s court-martial, the CAAF held it is constitutional error for a
military judge to give an instruction to a panel under Mil. R. Evid. 413 that permits
evidence of charged sexual misconduct to be considered as propensity evidence
when considering other charged sexual misconduct. United States v. Hills, 75 M.J.
350, 352 (C.A.A.F. 2016). In Guardado, the CAAF stated, “we cannot escape the
conclusion that Appellant suffered prejudice from the confusing nature of the
military judge’s instructions.” 77 M.J. at 94.

       If instructional error is found when there are constitutional dimensions at
play, this court tests for prejudice under the standard of harmless beyond a
reasonable doubt. United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006).
“The inquiry for determining whether constitutional error is harmless beyond a
reasonable doubt is ‘whether, beyond a reasonable doubt, the error did not contribute
to the defendant’s conviction or sentence.’” United States v. Kreutzer, 61 M.J. 293,
298 (C.A.A.F. 2005) (quoting United States v. Davis, 26 M.J. 445, 449 n.4 (C.M.A.
1988)). An error is not harmless beyond a reasonable doubt when there is a
reasonable possibility the error complained of might have contributed to the
conviction. United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007); United
States v. Chandler, 74 M.J. 674, 685 (Army Ct. Crim. App. 2015).

       Having reviewed the evidence, even if we believe the evidence factually
sufficient to support the findings of guilty of sexual assault of MAJ YL and Ms. UT,
we are not convinced beyond a reasonable doubt that the Mil. R. Evid. 413 error did



                                           2
THOMPSON—ARMY 20140974

not contribute to those findings of guilty. Therefore, Charge I and its specifications
cannot stand. We grant relief in our decretal paragraph.

                                  CONCLUSION

      The findings of guilty of Charge I and its specifications are SET ASIDE, and
Specifications 1 through 5 of Charge I are DISMISSED in light of United States v.
Mangahas, __ M.J. ___, 2018 CAAF LEXIS 68 (C.A.A.F. Feb. 6, 2018). The
remaining findings of guilty are AFFIRMED. The sentence is SET ASIDE. The
same or a different convening authority may order a rehearing on Specifications 6
and 7 of Charge I, and the sentence.

                                           FOR THE COURT:




                                           MALCOLM H.
                                           MALCOLM     H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk of
                                           Clerk of Court
                                                    Court




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