                       UNITED STATES, Appellee

                                    v.

                    William C. THOMPSON, Private
                    U.S. Marine Corps, Appellant

                              No. 08-0334
                       Crim. App. No. 200600807

       United States Court of Appeals for the Armed Forces

                       Argued November 18, 2008

                       Decided January 5, 2009

                               PER CURIAM


                                 Counsel


For Appellant: Major Richard D. Belliss, USMC (argued);
Lieutenant Colonel Richard R. Posey, USMC (on brief).

For Appellee: Major James W. Weirick, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, Lieutenant Derek D. Butler, JAGC,
USN (on brief); Brian K. Keller, Esq.


Military Judge:   J. M. Schum



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Thompson, No. 08-0334/MC


     PER CURIAM:

     After entering mixed pleas, Appellant was convicted by a

general court-martial composed of officer and enlisted members

of one specification of absence without leave, one specification

of disobeying an officer, one specification of assault, one

specification of breaking restriction, one specification of

possessing child pornography, and one specification of

kidnapping in violation of Articles 86, 90, 128 and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 890, 928, and

934 (2000).   Consistent with his pleas, he was found not guilty

of one specification of rape and three specifications of assault

in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920,

928 (2000).   Appellant was sentenced to a dishonorable

discharge, confinement for seven years, and forfeiture of all

pay and allowances.   The convening authority disapproved

confinement in excess of five years but approved the rest of the

sentence as adjudged.   The United States Navy-Marine Corps Court

of Criminal Appeals (CCA) amended the kidnapping specification

to the offense of reckless endangerment in violation of Article

134, UCMJ, 10 U.S.C. § 934 (2000) and reassessed the sentence to

a bad-conduct discharge, confinement for three years, and

forfeiture of all pay and allowances.   United States v.




                                 2
United States v. Thompson, No. 08-0334/MC


Thompson, No. NMCCA 200600807 (N-M. Ct. Crim. App. Dec. 11,

2007).1    We granted review of the following issues:

     WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE
     MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO
     SUPPRESS APPELLANT’S CONFESSION TO INVESTIGATOR AR, THE
     ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

     WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE
     OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO
     RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE
     COURT-MARTIAL’S FINDING OF GUILT AS TO THE OFFENSE OF
     KIDNAPPING AS PLED UNDER CHARGE V, SPECIFICATION 2.

                                FACTS

     Appellant’s charges primarily resulted from events

surrounding his tumultuous, and often violent, relationship with

his wife.    The facts relevant to the granted issues are few.

     The Government placed Appellant in pretrial confinement for

alleged violations of Article 86, UCMJ, (absence without leave)

and Article 92, UCMJ, (failure to obey) and provided Appellant

with detailed counsel for his defense at a subsequent IRO

hearing.    Several weeks later, Criminal Investigation Division

Investigator AR questioned Appellant regarding altercations with

his wife without notifying Appellant’s detailed military

counsel.    Appellant signed a waiver form indicating that he was

aware of his rights, including the right to have his detailed

counsel present, and gave a six page sworn confession in which

he admitted a litany of misconduct.

1
  The lower court mistakenly stated that the Appellant’s sentence
included a reduction to pay grade E-1.

                                  3
United States v. Thompson, No. 08-0334/MC


     Prior to trial, defense counsel moved to suppress the

confession, and it appears that the military judge denied the

motion without issuing findings of fact or conclusions of law.

At trial, the prosecution used the confession to refresh

Investigator AR’s memory while questioning him about Appellant’s

statements during the interrogation; the confession itself was

not admitted into evidence.    During cross-examination of the

same investigator, defense counsel proffered a redacted form of

the confession that the military judge admitted as evidence.

Neither the statements of Appellant, as relayed to the panel by

Investigator AR, nor the contents of the redacted confession

admitted at the behest of the defense, provided proof of a

contested charge that ultimately resulted in a guilty verdict by

the panel.

                              DISCUSSION

                                  A.

     We review de novo whether a constitutional error in

admitting evidence at trial was harmless.   United States v.

Hall, 58 M.J. 90, 94 (C.A.A.F. 2003) (citing Arizona v.

Fulminante, 499 U.S. 279, 295-96 (1991)).    “‘Before a federal

constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a

reasonable doubt.’”   United States v. Moran, 65 M.J. 178, 187

(C.A.A.F. 2007) (quoting Chapman v. California, 386 U.S. 18, 24


                                  4
United States v. Thompson, No. 08-0334/MC


(1967)).   If “‘there is a reasonable possibility that the

evidence [or error] complained of might have contributed to the

conviction,’” then the constitutional error was not harmless

beyond a reasonable doubt.   Id. (quoting Chapman, 386 U.S. at

24).

       The CCA assumed, without deciding, that Appellant’s

confession was obtained in violation of his Fifth Amendment

right to counsel, but found that the error was harmless beyond a

reasonable doubt.   Thompson, No. NMCCA 200600807, at *8-*9.

When determining whether a constitutional error is harmless, an

appellate court should review the entire record.   See Milton v.

Wainwright, 407 U.S. 371, 372-78 (1972) (performing an

“examination of the extensive record of petitioner’s [] trial”

to conclude that any error in the admission of the petitioner’s

pretrial confession was harmless beyond a reasonable doubt).

The CCA examined “all of the circumstances,” noted that “none of

the admissions made by the appellant in his confession relate to

any of the offenses of which members found him guilty,” and

found that any error was harmless beyond a reasonable doubt.

Thompson, No. NMCCA 200600807, at *8-*9.    After reviewing the

entire record, and assuming it was error for the military judge

to deny Appellant’s motion to suppress the confession, an issue

not before us, we agree that any such error was harmless beyond

a reasonable doubt.


                                  5
United States v. Thompson, No. 08-0334/MC


     Appellant was charged with five specifications of assault

against his wife, one of which was dismissed.2   The redacted

confession contained a general statement from Appellant that he

“pushed,” “grabbed,” and “shouted at” his wife and specifically

referenced the conduct underlying two of the four remaining

assault charges.   Despite Appellant’s statements, the court-

martial found Appellant not guilty of the two assaults mentioned

in the redacted confession.3   Of the final two assault

specifications, neither of which was mentioned in Appellant’s

statement, the court-martial found Appellant guilty of only one.4

     In regard to other charged conduct, although Appellant’s

redacted confession included statements regarding his absence

without leave and his breaking restriction, Appellant pleaded

guilty to both of these offenses, and he does not suggest that

the military judge’s failure to suppress his confession

compelled his guilty pleas.    While Appellant pleaded not guilty

to willfully disobeying an officer and possessing child

pornography and was found guilty of those offenses by the court-

martial, no statement related to either offense was contained in




2
  Additional Charge II, Specification 2 (assault on 9 January
2005).
3
  Additional Charge I, Specification 1 (assault on 12 December
2004); Additional Charge I, Specification 2 (assault on 14 July
2004).
4
  Additional Charge II, Specification 1 (assault on 16 May 2004).

                                  6
United States v. Thompson, No. 08-0334/MC


the redacted confession.5    Moreover, the military judge gave the

appropriate limiting instruction on the use of uncharged

misconduct and the proper spillover instruction regarding

evidence of multiple charges.    See United States v. Jenkins, 54

M.J. 12, 20 (C.A.A.F. 2000) (noting that panel members are

presumed to follow a military judge’s instructions).

     Based on the above, we affirm the lower court’s ruling that

even if the military judge erred in denying the defense motion

to suppress Appellant’s confession, the error was harmless

beyond a reasonable doubt.

                                 B.

     At trial, the members found Appellant guilty of the charge

and specification of kidnapping.6     On appeal, the CCA found the

evidence of kidnapping factually and legally insufficient


5
  The only remaining charge for which the panel could have
considered Appellant’s redacted confession to find guilt -- the
kidnapping charge –- is mooted, as that charge, as modified by
the CCA, is now dismissed. See Part B infra.
6
  The elements of Article 134, UCMJ, kidnapping are:

     (1) That the accused seized, confined, inveigled, decoyed,
     or carried away a certain person;
     (2) That the accused then held such person against that
     person’s will;
     (3) That the accused did so willfully and wrongfully; and
     (4) 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.

Manual for Courts-Martial, United States pt. IV, para. 92.b
(2005 ed.) (MCM).

                                  7
United States v. Thompson, No. 08-0334/MC


because the detention was de minimis.    Thompson, No. NMCCA

200600807, at *6-*7.    The lower court then affirmed a conviction

to reckless endangerment as an offense “closely related” to the

offense of kidnapping.7    A comparison of the elements of the two

offenses reveals that a conviction for reckless endangerment

requires proof of elements that are not included in a

specification for kidnapping.    Compare MCM pt. IV, para 100a.b

(2005 ed.) with MCM pt. IV, para 92.b (2005 ed.) (requiring

proof that the accused’s conduct was wrongful and reckless or

wanton and that the conduct was likely to produce death or

grievous bodily harm to another person to convict the accused of

reckless endangerment).

       The Government concedes, and we agree, that the

substitution was improper.    Reckless endangerment is not an

offense necessarily included in the offense of kidnapping.      See

Article 79, UCMJ, 10 U.S.C. § 879 (2000) (governing conviction

of lesser included offenses).


7
    The elements of Article 134, UCMJ, reckless endangerment are:

       (1) That the accused did engage in conduct;
       (2) That the conduct was wrongful and reckless or wanton;
       (3) That the conduct was likely to produce death or
       grievous bodily harm to another person; and
       (4) 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 pt. IV, para. 100a.b (2005 ed.).

                                  8
United States v. Thompson, No. 08-0334/MC


                             DECISION

     That portion of the decision of the United States Navy-

Marine Corps Court of Criminal Appeals affirming a conviction of

reckless endangerment under Article 134, UCMJ, and reassessing

the sentence is reversed.   The amended finding as to

Specification 2 of Charge V is set aside.   The decision is

affirmed as to the remaining findings.   The record is returned

to the Judge Advocate General of the Navy for remand to the

Court of Criminal Appeals to reassess Appellant’s sentence in

light of this Court’s action on the reckless endangerment

specification or to order a rehearing.




                                 9
