United States v. Major MICHAEL D. THOMPSON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Major MICHAEL D. THOMPSON
United States Army, Appellant
ARMY 20140974
Headquarters, Fort Bliss
Timothy P. Hayes, Military Judge (arraignment)
Michael J. Hargis, Military Judge (trial)
Colonel Karen H. Carlisle, Staff Judge Advocate
For Appellant: Captain Katherine L. DePaul, JA; Mr. Leonard Morales, Esquire (on
brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief).
6 January 2017
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SUMMARY DISPOSITION
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Per Curiam:
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, and 933 (2006 & 2012) [hereinafter UCMJ]. The panel
sentenced appellant to confinement for sixteen years. The convening authority
approved the sentence as adjudged.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
asserts two assignments of error, only one of which warrants discussion but no
relief. We have considered the five assignments of error personally raised by the
THOMPSON—ARMY 20140974
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find they lack merit. *
BACKGROUND
Appellant stands convicted of sexually assaulting his wives, Major (MAJ) YL
and Ms. UT.
*
In his fifth assignment of error, appellant asserts his trial defense counsel were
ineffective by failing to present alibi evidence. Specifically, appellant claims his
defense counsel failed to obtain information from his personnel records showing his
deployments, leave forms, and Ms. UT’s passport information, all of which would
have served to show appellant was not in the same country on the dates Ms. UT
alleged she was raped. Further, defense counsel did not follow up on information
concerning Ms. UT’s blood disorder that made her susceptible to fainting. Appellant
also claims his defense counsel failed to call his mother or obtain his training
records, testimony and evidence that would have cast doubt on or provided an alibi
to the rape charge involving MAJ YL. Appellant’s Grostefon matters are unsigned
and appellant submitted no affidavits, unsworn declarations made under penalty of
perjury, or any other signed statements supporting his claim of ineffective assistance
of counsel. See United States v. Axtell, 72 M.J. 662, 665-66 (Army Ct. Crim. App.
2013). See also United States v. Gunderman, 67 M.J. 683, 686-87 (Army Ct. Crim.
App. 2009), and United States v. Ellis, 47 M.J. 20, 22 (C.A.A.F. 1997).
Appellant sexually assaulted MAJ YL on divers occasions in Hawaii in 2003.
Appellant fails to show how his training records or the testimony of his mother would
prove these assaults did not occur. He sexually assaulted Ms. UT on multiple
occasions on three continents from 2005 to 2013. Appellant fails to show how the
records of his deployments, leave forms, and Ms. UT’s passport information would
serve as an alibi for each of the multiple assaults alleged. Under the circumstances of
this case, and based upon the conclusory and nebulous claims of appellant, we see no
need to order affidavits from counsel or a fact-finding hearing pursuant to United
States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). The facts set forth in
appellant’s allegations—even if true—“would not result in relief.” United States v.
Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Furthermore, “the appellate filings and the
record as a whole ‘compellingly demonstrate’ the improbability of [appellant’s
allegations].” Id. Applying the first, second and fourth Ginn principles to appellant’s
unsworn submission, we reject appellant’s ineffective assistance claim.
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THOMPSON—ARMY 20140974
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 Mil. R. Evid. 413 and 414 as evidence of
appellant’s propensity to commit the offenses alleged in Charge I. See Dep’t of
Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook [hereinafter
Benchbook], para. 7-13-1, n.3, 4 (1 Jan. 2010).
LAW AND DISCUSSION
Appellant argues our superior court’s holding in United States v. Hills, 75
M.J. 350 (C.A.A.F. 2016), is controlling in this case and warrants a reversal of the
military judge’s findings of guilty and sentence. We disagree.
We review a military judge’s decision to admit evidence under Mil. R. Evid.
413 for an abuse of discretion. United States v. Solomon, 72 M.J. 176, 179
(C.A.A.F. 2013). “Whether a panel was properly instructed is a question of law we
review de novo.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citation
omitted). Where an instructional error rises to a constitutional dimension, we
review the error to determine if it was harmless beyond a reasonable doubt. United
States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005) (citations omitted). “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.” Id. (citations and internal quotation marks
omitted).
Here, the propensity instruction, while modeled on the Benchbook, was, in
hindsight, improper in light of our superior court’s decision in Hills. There, the
court noted the use of charged misconduct and propensity evidence to prove other
charged misconduct pursuant to Mil. R. Evid. 413 was improper. Hills, 75 M.J. at
356 (“It is antithetical to the presumption of innocence to suggest that conduct of
which an accused is presumed innocent may be used to show a propensity to have
committed other conduct of which he is presumed innocent.”).
While we find the military judge’s instruction created an error rising to a
constitutional dimension, the similarity between Hills and this case ends with the
propensity instruction. In Hills, our superior court found it error for the military
judge, in a member’s trial, to admit charged offenses as Mil. R. Evid. 413 evidence
to show an appellant’s propensity to commit the charged offenses. Hills, 75 M.J. at
357-58.
Hills involved two offenses against a single victim that occurred over the span
of two hours on one night. The case relied heavily on the testimony of the victim
who, at the time of assault, was heavily intoxicated and in and out of consciousness.
DNA evidence in the case also proved inconclusive.
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THOMPSON—ARMY 20140974
We have considered our superior court’s decision in Hills and find the present
case is distinguishable on many fronts. Appellant sexually assaulted two victims on
multiple occasions. The offenses involving MAJ YL occurred over a period of four
months in 2003. The offenses involving Ms. UT occurred on various occasions over
an eight-year period, from 2005 to 2013. Additionally, Major (MAJ) YL and Ms.
UT’s memories of appellant’s assault were clear and compelling. As a result, we are
convinced beyond a reasonable doubt that the propensity instruction did not
contribute to the findings of guilty or appellant’s sentence, and any instructional
error was harmless beyond a reasonable doubt.
CONCLUSION
On consideration of the entire record, the findings and sentence as approved
by the convening authority are AFFIRMED.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN
Deputy P. TAITT
Clerk of Court
Deputy Clerk of Court
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