United States v. Thompson

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Chase M. THOMPSON, Airman First Class
United States Air Force, Appellant
No. 22-0098
Crim. App. No. 40019
Argued October 13, 2022—Decided November 21, 2022
Military Judge: Willie J. Babor
For Appellant: Captain Alexandra K. Fleszar (ar-
gued); Major Ryan S. Crnkovich (on brief); Mark C.
Bruegger, Esq.
For Appellee: Major Allison Gish (argued); Colonel
Naomi P. Dennis, Lieutenant Colonel Matthew J.
Neil, Major Allison R. Barbo, Major Cortland Bob-
czynski, and Mary Ellen Payne, Esq. (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS,
Judge HARDY, and Senior Judge ERDMANN
joined.
_______________
United States v. Thompson, No. 22-0098/AF
Opinion of the Court
Judge MAGGS delivered the opinion of the Court.1
Appellant argues that the United States Air Force
Court of Criminal Appeals (AFCCA) erred in affirming a
judgment that he sexually assaulted a fifteen-year-old girl
in violation of Article 120b(b), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920b(b) (2018). Appellant as-
serts the AFCCA erred in conducting its factual sufficiency
review under Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1)
(2018), by requiring him to prove his mistake of fact de-
fense with “direct evidence.” We agree that certain lan-
guage in the AFCCA’s opinion supports Appellant’s argu-
ment. We therefore set aside the AFCCA’s decision and
remand the case for a new factual sufficiency review.
I. Background
Appellant first made contact with VP through an online
dating service in March 2019. Her dating profile portrayed
her as a nineteen-year-old college student. In reality, VP
was a fifteen-year-old girl living with her mother and
stepfather on Aviano Air Base. Over the next month,
Appellant and VP exchanged hundreds of electronic
messages. In addition, Appellant and VP met in person and
engaged in sexual activity on four occasions. Later, when
Air Force investigators interviewed Appellant, he lied
about his actions.
A military judge sitting as a general court-martial
found Appellant guilty, contrary to his pleas, of one speci-
fication of making a false official statement, one specifica-
tion of sexual assault of a child who had attained the age
of twelve but who had not attained the age of sixteen years,
and one specification of producing child pornography, in vi-
olation of Articles 107(a), 120b(b), and 134, UCMJ, 10 U.S.C.
§§ 907(a), 920b(b), 934 (2018). The military judge sentenced
1 The Court heard oral argument in this case at the Univer-
sity of San Diego School of Law, San Diego, California, as part
of the Court’s “Project Outreach.” See United States v. Mahoney,
58 M.J. 346, 347 n.1 (C.A.A.F. 2003). Project Outreach is a public
awareness program demonstrating the operation of a federal
court of appeals and the military justice system.
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United States v. Thompson, No. 22-0098/AF
Opinion of the Court
Appellant to a dishonorable discharge, confinement for
twelve months, and reduction to the grade of E-1. The con-
vening authority took no action on the findings and ap-
proved the sentence.
On appeal to the AFCCA, Appellant challenged the fac-
tual sufficiency of the evidence for finding that he is guilty
of sexually assaulting VP. United States v. Thompson, No.
ACM 40019, 2021 CCA LEXIS 641, at *2, 2021 WL
5570291, at *1 (A.F. Ct. Crim. App. Nov. 29, 2021) (un-
published). Appellant contended that he had proved by a
preponderance of the evidence that he had a good faith and
reasonable belief that VP had attained the age of sixteen.
See id. at *15, 2021 WL 5570291, at *6. He therefore as-
serted that he had a defense under Article 120b(d)(2),
UCMJ, and Rule for Courts-Martial (R.C.M.) 916(j)(2). See
Thompson, 2021 CCA LEXIS 641, at *14-16, 2021 WL
5570291, at *6.
In assessing this assignment of error, the AFCCA de-
scribed the applicable legal rules at some length. Id. at *14-
16, 2021 WL 5570291, at *6-7. The court quoted the test for
factual sufficiency announced in United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987); described the elements of
the offense of sexual assault of a child under Article
120b(b), UCMJ; quoted what Appellant had to show under
Article 120b(d)(2), UCMJ, to establish a mistake of fact de-
fense; and cited R.C.M. 916(j)(2) which addresses the mis-
take of fact defense in the context of child sexual offenses.
Thompson, 2021 CCA LEXIS 641, at *14-16, 2021 WL
5570291, at *6-7. The AFCCA also explained: “An accused
is not required to testify in order to establish a mistake of
fact defense. . . . The evidence to support a mistake of fact
instruction can come from evidence presented by the de-
fense, the prosecution, or the court-martial.” Id. at *16,
2021 WL 5570291, at *6 (citing United States v. Jones, 49
M.J. 85, 91 (C.A.A.F. 1998)).
The AFCCA then summarized the evidence that “Appel-
lant could have had a reasonable belief VP was at least 16”
as follows:
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United States v. Thompson, No. 22-0098/AF
Opinion of the Court
The record shows that VP consistently held
herself out to be at least 16 years old to individu-
als she was meeting on various social media plat-
forms and cell phone dating applications. While
there is no discussion of VP’s actual age in the
[electronic] messages Appellant and VP ex-
changed between 28 March 2019 and 30 May
2019, there are numerous examples in the record
which would support the reasonableness of a be-
lief that VP was over the age of 16: the references
on VP’s Bumble account to being 18 years old and
being an “undergrad;” VP stating she was drink-
ing alcohol while messaging Appellant; VP talking
about relationships with other, older men; VP’s
mention of consuming “edibles” (presumably
drugs); VP purportedly taking a college class; and
VP leaving Italy to go to London and Germany for
weeks at a time when someone under 18 years old
would presumably have been in school.
Id. at *22-23, 2021 WL 5570291, at *8.
Despite this evidence, the AFCCA concluded that
Appellant had not proved his mistake of fact defense,
explaining:
Under all of the circumstances, although there
was plenty of evidence for one to conclude that Ap-
pellant could have had a reasonable belief VP was
at least 16, there was no direct evidence that this
belief existed in Appellant’s mind. Even Appellant
acknowledges this on appeal, noting that “there is
no direct evidence that shows [he] ever knew her
real age during the time period between 30 March
2019 and 30 May 2019. Rather, there is only evi-
dence about [his] conduct.” We agree with this as-
sessment, and as such, the Defense failed to meet
its burden to demonstrate by a preponderance of
the evidence that a mistake of fact actually ex-
isted in Appellant’s mind every time he had sex
with VP.
Id. at *23-24, 2021 WL 5570291, at *8 (alterations in
original).
The AFCCA concluded by affirming the finding that Ap-
pellant was guilty of the offense of sexually assaulting a
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United States v. Thompson, No. 22-0098/AF
Opinion of the Court
child in violation of Article 120b(b), UCMJ. Id. at *24, 2021
WL 5570291, at *8. The AFCCA stated: “[I]n assessing fac-
tual sufficiency, after weighing all the evidence in the rec-
ord of trial and having made allowances for not having per-
sonally observed the witnesses, we are convinced of
Appellant’s guilt beyond a reasonable doubt.” Id., 2021 WL
5570291, at *8. In portions of the opinion not at issue here,
the AFCCA set aside the finding that Appellant was guilty
of producing child pornography and affirmed the finding
that he was guilty of making a false statement. Id. at *2 &
n.2, *27, 2021 WL 5570291, at *1 & n.2, *10. The AFCCA
reassessed the sentence and affirmed it as adjudged. Id. at
*27, 2021 WL 5570291, at *10.
We granted Appellant’s petition for review of the follow-
ing question: “Did the Court of Criminal Appeals err by re-
quiring that Appellant introduce direct evidence of his sub-
jective belief to meet his burden for a reasonable mistake
of fact defense?”
II. Standard of Review and Governing Law
Review of the factual sufficiency of the evidence is a spe-
cial power and duty that Article 66(d)(1), UCMJ, confers
only on the Courts of Criminal Appeals (CCA). United
States v. Nerad, 69 M.J. 138, 141 n.1 (C.A.A.F. 2010) (ex-
plaining that the CCA’s duty under Article 66, UCMJ, to
affirm only findings that are “ ‘correct in law and fact’ ” re-
quires review of both the legal and factual sufficiency of the
evidence). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making al-
lowances for not having personally observed the witnesses,
the members of the [CCA] are themselves convinced of the
accused’s guilt beyond a reasonable doubt.” Turner, 25 M.J.
at 325. Although this Court does not review evidence for
factual sufficiency, we “retain the authority to review fac-
tual sufficiency determinations of the CCAs for the appli-
cation of ‘correct legal principles,’ but only as to matters of
law.” United States v. Clark, 75 M.J. 298, 300 (C.A.A.F.
2016) (quoting United States v. Leak, 61 M.J. 234, 241
(C.A.A.F. 2005)).
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United States v. Thompson, No. 22-0098/AF
Opinion of the Court
In determining whether a CCA has applied correct legal
principles, this Court starts with the rule that the “CCAs
are presumed to know the law and follow it.” United States
v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). Accordingly, the
CCAs need not address each issue raised by an appellant
and are not required to state their reasoning for their deci-
sions. United States v. Reed, 54 M.J. 37, 42 (C.A.A.F. 2000).
But when the record reveals that a CCA misunderstood the
law, this Court remands for another factual sufficiency re-
view under correct legal principles. United States v.
Thompson, 2 C.M.A. 460, 464, 9 C.M.R. 90, 94 (1953). This
Court also has remanded when it is “an open question”
whether a CCA’s review under Article 66(d)(1), UCMJ, was
“consistent with a correct view of the law.” Nerad, 69 M.J.
at 147 (internal quotation marks omitted).
The version of Article 120b(b), UCMJ, applicable to this
case provides that “[a]ny person subject to this chapter who
commits a sexual act upon a child who has attained the age
of 12 years is guilty of sexual assault of a child and shall be
punished as a court-martial may direct.”2 Article
120b(h)(4), UCMJ, defines a “child” as a “person who has
not attained the age of 16 years.” Article 120b(d)(2), UCMJ,
provides:
In a prosecution under this section, it need not be
proven that the accused knew that the other per-
son engaging in the sexual act . . . had not at-
tained the age of 16 years, but it is a defense in a
prosecution under subsection (b) (sexual assault
of a child) . . . which the accused must prove by a
preponderance of the evidence, that the accused
2 The specification at issue alleged conduct occurring be-
tween March and May 2019. The version of Article 120b, UCMJ,
found in 10 U.S.C. § 920b (2018), applies to conduct occurring
after January 1, 2019. See National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, § 5542(a), 130 Stat.
2000, 2967 (2016) (making the 2016 amendment effective on the
date designated by the President); 2018 Amendments to the
Manual for Courts-Martial, United States, Exec. Order No.
13,825, § 3, 83 Fed. Reg. 9889, 9889 (Mar. 1, 2018) (setting the
effective date as Jan. 1, 2019).
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Opinion of the Court
reasonably believed that the child had attained
the age of 16 years, if the child had in fact attained
at least the age of 12 years.
Consistent with this statutory provision, the applicable
version of R.C.M. 916(j)(2) places the burden on the
accused to “prove this defense by a preponderance of the
evidence.”3
Neither Article 120b(d)(2), UCMJ, nor R.C.M. 916(j)(2)
place any limitations on the source or the kind of evidence
that may establish a mistake of fact defense. As the AFCCA
correctly observed, this Court held in Jones, 49 M.J. at 91,
that an accused need not testify to establish a mistake of
fact defense and the evidence supporting the defense can
come from evidence presented by the defense, the prosecu-
tion, or the court-martial. No precedent of this Court has
ever required proof by “direct” evidence nor restricted the
proof to “direct” evidence. Either such holding would con-
tradict R.C.M. 918(c), which provides that “[f]indings may
be based on direct or circumstantial evidence.”4
3 The version of R.C.M. 916 that appears in Manual for
Courts-Martial, United States (2019 ed.) reflects amendments
that were made on March 1, 2018, that became effective on
January 1, 2019. See Exec. Order No. 13,825, § 5, 83 Fed. Reg.
at 9890.
4 The Discussion to R.C.M. 918(c) explains:
“Direct evidence” is evidence which tends di-
rectly to prove or disprove a fact in issue (for ex-
ample, an element of the offenses charged). “Cir-
cumstantial evidence” is evidence which tends
directly to prove not a fact in issue but some other
fact or circumstance from which, either alone or
together with other facts or circumstances, one
may reasonably infer the existence or non-exist-
ence of a fact in issue.
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United States v. Thompson, No. 22-0098/AF
Opinion of the Court
III. Discussion
Appellant contends that the AFCCA Court “erred by in-
sisting that if [he] wanted to defend against [the sexual as-
sault] charge, he needed to rely upon direct evidence to es-
tablish that in his own mind, he subjectively believed VP
was at least 16 years old.” In supporting this contention,
Appellant focuses on the AFCCA’s statements, quoted
above, that “ ‘there was no direct evidence’ ” that Appellant
believed in his mind that VP was sixteen.
We would not question the AFCCA’s understanding of
the applicable legal rules if the AFCCA had merely ex-
pressed an observation about whether the record contained
direct evidence to support Appellant’s mistake of fact de-
fense. The CCAs often summarize the content and nature
of relevant evidence when conducting a factual sufficiency
review. See, e.g., United States v. Mitchell, No. ARMY
9601800, 1998 CCA LEXIS 595, at *4-5, 1998 WL
35319989, at *2 (A. Ct. Crim. App. Dec. 28, 1998) (observ-
ing that there was “no direct evidence, and only speculative
circumstantial evidence” to support a finding of guilt). Such
summaries are helpful to anyone reading CCA opinions.
But in this case, the AFCCA appears to have gone beyond
merely noting a lack of direct evidence. Instead, the
AFCCA twice stated that there was no direct evidence to
support the mistake of fact defense and then said “and as
such, the Defense failed to meet its burden.” Thompson,
2021 CCA LEXIS 641, at *23-24, 2021 WL 5570291, at *8.
The AFCCA’s use of the phrase “and as such” leaves the
impression that the AFCCA rested its decision on an erro-
neous view that the mistake of fact defense required direct
evidence.
The Government acknowledges that the quoted state-
ments “incorrectly implied Appellant needed to prove his
state of mind as to VP’s age with ‘direct evidence.’ ” But the
Government nevertheless contends that “a contextual
reading of AFCCA’s opinion suggests that, despite its mis-
statement about direct evidence, [the] AFCCA understood
circumstantial evidence could be used to infer Appellant’s
state of mind as to VP’s age.” We agree with the general
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Opinion of the Court
point that a reviewing court must read specific statements
in a judicial opinion in context to determine whether the
statements are correct. See, e.g., United States v. Antonelli,
35 M.J. 122, 128 (C.M.A. 1992) (determining that context
clarified an otherwise problematic statement in a judicial
opinion). We also agree that the AFCCA correctly stated
numerous applicable legal principles. But the Government
has not identified anything in the AFCCA’s opinion that
negates the impression left by the specific statements
about direct evidence quoted above.
The Government also contends that we do not need to
remand the case because no evidence presented at trial
shows that Appellant actually believed VP was at least six-
teen. Appellant disagrees, citing various text messages
that Appellant contends provide such evidence. In our
view, these competing arguments concern the persuasive-
ness of the evidence, which is not a matter for us to deter-
mine. Instead, the AFCCA should consider these conten-
tions when conducting a new factual sufficiency review
under Article 66(d)(1), UCMJ, consistent with this opinion.
See Clark, 75 M.J. at 300.
In sum, even though the CCAs are presumed to know
the law absent contrary indications, the AFCCA’s language
creates at least “an open question” about whether the court
applied the correct rule. Nerad, 69 M.J. at 147. Accord-
ingly, we set aside the AFCCA’s decision and remand for a
new Article 66(d)(1), UCMJ, review consistent with this
opinion. In so doing, we express no view on whether, when
reviewed under correct legal principles, the evidence is or
is not factually sufficient. That determination is solely for
the AFCCA to make.
IV. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is set aside. The record of trial is re-
turned to the Judge Advocate General of the Air Force for
remand to the United States Air Force Court of Criminal
Appeals for a new review under Article 66(d)(1), UCMJ, 10
U.S.C. § 866(d)(1) (2018).
9