United States v. Specialist PHILLIP THOMPSON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
POND, EWING, ! and JUETTEN
Appellate Military Judges

UNITED STATES, Appellee
v.
Specialist PHILLIP E. THOMPSON, JR.
United States Army, Appellant

ARMY 20190525

Headquarters, Fort Stewart
David H. Robertson, Military Judge (trial)
J. Harper Cook, Military Judge (rehearing)
Colonel Michael D. Mierau, Jr., Staff Judge Advocate (trial)
Colonel Joseph M. Fairfield, Staff Judge Advocate (rehearing)

For Appellant: Major Robert W. Rodriguez, JA (argued);? Colonel Philip M. Staten,
JA; Major Bryan A. Osterhage, JA (on brief); Colonel Philip M. Staten, JA; Major
Bryan A. Osterhage, JA; Major Robert W. Rodriguez, JA (on reply brief).

For Appellee: Captain Anthony J. Scarpati, JA (argued); Major Chase C. Cleveland,
JA; Colonel Richard E. Gorini, JA; Captain Anthony J. Scarpati, JA (on brief).

— 30 June 2025

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

POND, Chief Judge:

' Judge EWING took final action in this case while on active duty.

? We heard oral argument in this case on 26 September 2024 at University at Buffalo
School of Law as a part of “Project Outreach,” a public awareness program
demonstrating the operation of the military justice system.
THOMPSON — ARMY 20190525

In the early afternoon of Sunday, 5 March 2017, Sergeant (SGT) Shaquille
Craig murdered two fellow Soldiers, Private Second Class (PV2) and Specialist
(SPC) Pe in an apartment in Hinesville, Georgia. Appellant assisted SGT Craig in
gaining access to the apartment and was later convicted, contrary to his pleas, of two
specifications of involuntary manslaughter. Appellant raises two issues before this
court. First, whether the military judge’s special findings warrant reversal of
appellant’s convictions? Second, whether the government’s use of inconsistent
theories at appellant’s and SGT Craig’s courts-martial also warrants reversal? For
reasons discussed below, we answer both of these questions in the negative and
affirm the findings and sentence.?

BACKGROUND
A. Procedural History

This is not the first time appellant’s case has been before this court on appeal.
Appellant was first convicted, pursuant to his pleas, of two specifications of
premeditated murder in violation of Article 118, UCMJ, predicated on an aider and
abettor theory of liability.* United States v. Thompson, 81 M.J. 824, 826 (Army Ct.
Crim. App. 2021). He was sentenced to a dishonorable discharge and confinement
for life without the possibility of parole; the convening authority approved only so
much of the sentence as provided for Dishonorable Discharge and 35 years of
confinement. During his first appeal, appellant asserted the military judge abused
his discretion by accepting appellant’s plea to premeditated murder. During the
providence inquiry, the military judge failed to advise appellant of the specific
intent required, and appellant made statements that he “did not wish harm upon” the
victims, “didn’t desire for them to be killed,” and “hoped nobody would be hurt.”

Id. This court concluded that while the providence inquiry established appellant had
the specific intent to assist SGT Craig, appellant’s plea was improvident because it
failed to establish that appellant possessed the requisite mens rea: the specific
intent to unlawfully kill with premeditation. Jd. at 830 (stating “one cannot both
desire the victims not to be killed or hurt while also possessing the specific intent to
unlawfully kill the same with premeditation”). Consequently, this court set aside the
finding and sentence and authorized a rehearing. Jd. at 836.

> We have also given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and
determine they merit neither discussion nor relief.

* Specifications 1 and 2 of Charge I read as follows: “In that SPC Phillip E.
Thompson, U.S. Army, did, at or near Hinesville, GA, on or about 5 March 2017,
with premeditation, murder [the victim] by means of shooting him with a handgun.”
THOMPSON — ARMY 20190525

The government subsequently re-referred the two specifications of
premeditated murder to court-martial. But this time, at the rehearing, appellant
pleaded not guilty to the charged offenses. A military judge, sitting as a general
court-martial, acquitted appellant of the greater offense of premeditated murder but
convicted appellant, contrary to his pleas, of two specifications of involuntary
manslaughter, in violation of Article 119, Uniform Code of Military Justice [UCMJ],
10 U.S.C. § 919, and sentenced him to a Dishonorable Discharge and eight years of
confinement.’ The convening authority approved the sentence and, except for the
Dishonorable Discharge, ordered it executed, and credited appellant with 1,004 days
of confinement towards the sentence to confinement. Appellant now contends his
convictions should be reversed.

B. The Murders

On 5 March 2017, appellant was attending Sunday church service with his
family when he received a phone call from his friend, SGT Shaquille Craig. SGT
Craig had seen his estranged wife the night before at a party with another man, PV2
mm SGT Craig asked appellant to meet him at a parking lot next to a library, just
down the street from the apartment to where he had followed PV2 MJ earlier that
day. Appellant told his wife he would not be very long and drove to meet SGT
Craig with his infant son in the back seat. When appellant arrived at the parking lot,
SGT Craig climbed inside appellant’s truck and said he had seen his wife “hugged
up” with another man. SGT Craig then said “these n[***] got to go” and pulled a
Glock handgun from his waistband.

SGT Craig told appellant to drive to the apartment down the street where he
had spotted PV2 earlier that day and to “go see if the back door... was
unlocked, and if it was [appellant] should go in and ask them if [appellant] left a
laptop” during a party the night before. Appellant did as SGT Craig requested but
discovering the back door was locked, knocked and rang the doorbell. PV2[ the
first victim, opened the back door slightly and asked appellant to come around to the
front door, which he did and was invited inside. PV2 J} wearing white pants and a
blue-flowered shirt, asked appellant if he had been there at the party the night
before, whether the party was any good, and whether appellant left anything.
Appellant murmured that he had left his laptop. PV2(Ewalked towards the
kitchen, texting, then turned to the back of the apartment to speak to SPC a who
lived there.

° The military judge also acquitted appellant of three additional charges including
three specifications of accessory after the fact, one specification of child
endangerment, and one specification of conspiracy, in violation of Articles 78, 81,
and 134, UCMJ, 10 U.S.C. §§ 878, 881, 934.
THOMPSON — ARMY 20190525

AS Pv2 ii turned back around towards appellant, SGI_Craig walked in
through the front door, carrying a jacket. Upon seeing pv2 i SGT Craig asked
him if he knew who he was. PV2 MB responded that he did not. SGT Craig told
Pv. ii “you was with my wife.” When PV2 responded “I wasn’t with that
bitch,” SGT Craig lifted up the jacket and shot PV2 Bin the chest.® As Pv2 ii
fell to the floor and gasped for breath, SGT Craig walked over to him stated,
“mhmm mhmm I got you I got you fuck n[***]” before shooting PV2 again.

Hearing the shots, SPC im who was in a bedroom in the back of the
apartment, attempted to flee past SGT Craig, who turned around and fired off
another shot, hitting SPC [J in the jaw. Despite being shot, src ii managed to
continue running. But before SPCHM could make it out of the front door, SGT
Craig grabbed him in a chokehold and flung him away from the door and onto the
floor next to PV2/iFs body. SGT Craig then shot SPC mm a second time.
Appellant stated he watched SGT Craig walk into the kitchen and retrieve a knife,
then SGT Craig looked at appellant and told him to leave and “don’t tell nobody
cause this could be [your] boy.” Police would later discover the bodies with a knife
protruding from PV2 ms neck,

After SGT Craig shot both men, appellant left the apartment and walked over
to a church across the street, where service was still being conducted. Appellant
stated he grabbed a door to the church but found it locked. When he returned to his
truck, SGT Craig was sitting inside and asked where appellant had gone. SGT Craig
then asked appellant multiple times if he was “good” and told him to be calm. He
then began bragging about what he had done. SGT Craig told appellant not to leave
and walked back towards the apartment. SGT Craig then called appellant’s cell
phone to say he was waiting for people at the church across the street to “clear out.”
Eventually, both appellant and SGT Craig returned to the library parking lot, where
SGT Craig had left a red Infiniti car he had borrowed from another soldier, SPC mm

SGT Craig handed appellant his Glock and instructed him to put it back in
SGT Craig’s case at appellant’s home. Appellant drove away with SGT Craig
following appellant’s truck in the red Infiniti. Upon arriving home, appellant took
his son and SGT Craig’s Glock out of his truck and carried them inside. Appellant
then got into the red Infiniti with SGT Craig.

SGT Craig drove them to SPC Ps apartment to return the red Infiniti. Once
there, and in the presence of appellant and SPC Ps roommate, Mr. im SGT Craig

®° The pistol used in the shootings was a .380 Jimenez Arms pistol, which SGT Craig
was also carrying at the time, not the Glock handgun he showed to appellant earlier
in appellant’s truck.
THOMPSON — ARMY 20190525

told SPC BR about killing PV2 Bana sec While there, SGT Craig changed
clothes and placed the clothes he was wearing into a bag. SPC asked to keep
SGT Craig’s shoes, which had a nickel-sized bloodstain. SGT Craig agreed.

SGT Craig and appellant then drove to an isolated location where SGT Craig
disposed of the murder weapon and the clothes he had been wearing. Appellant later
confessed and showed law enforcement where the clothing and weapon were
disposed of, ultimately leading to the seizure of the murder weapon.

C. Rehearing
A year before appellant’s rehearing commenced, the government provided
draft instructions with proposed elements for the offense of premeditated murder
under an aider and abettor theory and for the lesser included offense of involuntary

manslaughter.’

Two days before trial, the government amended its proposed elements for
involuntary manslaughter as follows:

(1) That [victim] is dead;
(2) That [victim’s] death resulted from the act of SGT Craig;
(3) That the killing of [victim] by SGT Craig was unlawful;

(4) That the accused assisted SGT Craig; and

7 At the time of the offense, involuntary manslaughter was an enumerated lesser
included offense of premeditated murder. Manual for Courts-Martial, United States
(2016 ed.) [MCM], Appendix 12, Section A-3. The elements of involuntary
manslaughter as prescribed by the President are as follows:

(a) That a certain named or described person is dead;

(b) That the death resulted from the act or omission of the accused;

(c) That the killing was unlawful; and

(d) That this act or omission of the accused constituted culpable negligence, or
occurred while the accused was perpetrating or attempting to perpetrate an
offense directly affecting the person other than burglary, forcible sodomy,
rape, robbery, or aggravated arson.

MCM, pt. IV, 944.
THOMPSON — ARMY 20190525

(5) That the accused’s assistance constituted culpable
negligence.

After the close of evidence, defense filed a brief with its own proposed
elements for the military judge’s consideration. In particular, the defense requested
the following elements for involuntary manslaughter, with the dissimilarity that SGT
Craig’s actions, rather than appellant’s actions, were culpably negligent:

(1) That [victim] is dead;

(2) That his death resulted from the act of SGT Shaquille
Craig in shooting him with a handgun on or about 5 March
2017 at or near Hinesville, GA;

(3) That this act amounted to culpable negligence;

(4) That the killing of [victim] by SGT Shaquille Craig was
unlawful; and

(5) That [appellant] aided and abetted SGT Shaquille Craig to

commit the offense of involuntary manslaughter by
8

After receiving both briefs, the military judge then discussed with the parties
the appropriate elements for the charged and lesser included offenses under an aider
and abettor theory of liability under Article 77, UCMJ. The defense acknowledged
that appellant may be found guilty of a lesser included offense to premeditated
murder if appellant’s mental state was less criminal than that of SGT Craig.

MJ: So, could the government prove premeditated murder on
Craig’s behalf, but the accused be only guilty of the
lesser-included offense of — well, three of them...
[Article] 118(2), unpremeditated murder, [Article] 118(3),
depraved heart murder or [Article] 119(2), involuntary
manslaughter.

ADC: Your Honor, as an aider and abettor, I think you could...
.I think it’s pretty clear on that point.

® The defense also asked the military judge to consider ignorance or mistake when
specific intent or actual knowledge is at issue, for both premeditated murder and the
lesser included offense of involuntary manslaughter.
THOMPSON — ARMY 20190525

MJ: The government in this trial could prove beyond a
reasonable doubt that Craig [did] with premeditation,
murder (Pv2 and [SPC i. but that if the accused
didn’t share that — that intent, the accused could be found
of a lesser-included offense, specifically — those three I
just laid out.

ADC: Yes, Your Honor. And to be very clear, as an aider
and abettor.

MJ: As an aider and abettor.
ADC: Yes, Your Honor.

Upon reviewing the government’s proposed closing argument presentation,
the defense objected for lack of notice of the government’s intent to pursue a
perpetrator liability theory for involuntary manslaughter under Article 119(2). In
response, the government confirmed they would argue, as outlined in the
government’s bench brief, that appellant’s assistance to SGT Craig constituted
culpable negligence. After further discussion with defense, the military judge said,
“I don’t see daylight between your two arguments,” but allowed the defense to re-
raise the issue during closing.

After deliberations, the military judge acquitted appellant of premeditated
murder but found appellant guilty of involuntary manslaughter. The military judge
then provided special findings which included the following:

Anyone who knowingly and willfully aids or abets another
in committing an offense is also a principal and is equally
guilty of the offense. An aider and abettor must
knowingly and willfully participate in the commission of
the crime as something he wishes to bring about and seek
by his action to make succeed. He must also aid,
encourage, incite the person to commit the criminal act.
Presence at the scene of the crime is not enough, nor is
failure to prevent the commission of an offense. There
must be an intent to aid or encourage the person who
commits the crime. Although the accused must
consciously share in Sergeant Craig’s criminal intent to
be an aider or abettor, there is no requirement that the
accused agree with, or even have knowledge of the means
THOMPSON — ARMY 20190525

by which Sergeant Craig was to carry out that criminal
intent.

The military judge determined the evidence established beyond a reasonable doubt
that appellant “aided and abetted Sergeant Craig to commit the unlawful killings”
and that he did so by “knowingly and willfully” doing the following five things, at
Sergeant Craig’s request:

(1) He drove Sergeant Craig to (spc is] apartment;
(2) He checked whether the door of apartment was locked;

(3)He knocked on the apartment door and/or rang the
doorbell;

(4)He gained access to the apartment by lying to [PV2

; Specifically that he was present at the party the

night before and that he left a laptop there, which
assertions were totally false;

(5)He stayed inside the apartment until Sergeant Craig
arrived.

In his special findings, the military judge stated under the law of principals, “a
person may be an aider and abettor to a lesser degree than the active perpetrator if
he did not share the required criminal intent or purpose of the active perpetrator,”
citing United States v. Foushee, 13 M.J. 833, 835 (A.C.M.R. 1982) and United
States v. Jackson, 6 U.S.C.M.A. 193 (1955). Applying that legal principle, the
military judge found the government failed to prove:

that Specialist Thompson shared Sergeant Craig’s
premeditated design to kill, intent to kill, or intent to
inflect great bodily harm upon [the victims]. However,
the government did prove by legal and competent
evidence, beyond a reasonable doubt, that Specialist
Thompson’s knowing and willful assistance to Sergeant
Craig amounted to culpable negligence, which was a
proximate cause of the deaths of both [victims].
Specifically, the government also proved beyond a doubt
the following ten things:

(1) That Specialist Thompson knowingly and willfully
assisted Sergeant Craig;
THOMPSON — ARMY 20190525

(2) That Specialist Thompson then knew that Sergeant
Craig intended to confront and probably kill [PV2
] and the friend who was helping him;

(3) That Specialist Thompson then knew Sergeant Craig
had the motive to confront and probably kill them;

(4) That Specialist Thompson then knew Sergeant Craig
had a weapon with which he could confront and
probably kill them;

(5) That under these circumstances, their deaths were
the foreseeable result of Specialist Thompson’s
assistance to Sergeant Craig;

(6) That Specialist Thompson’s knowing and willful
actions facilitated Sergeant Craig’s opportunity to
kill these two Soldiers;

(7) That Specialist Thompson’s actions amounted to
culpable negligence. . .

(8) That Specialist Thompson’s culpably negligent acts
were a proximate cause of the deaths of both [PV2

GB and spc...

(9) That Specialist Thompson did not mistakenly
believe that Sergeant Craig “just wanted to talk
with them” or that he desired entry into the home
for an innocent purpose. And if he did, the
Government proved beyond a reasonable doubt that
any such mistake of fact was unreasonable under
the circumstances; and

(10) The Government also disproved beyond a
reasonable doubt that Specialist Thompson provided
knowing and willful assistance to Sergeant Craig
under duress. ...

Appellant now argues his convictions warrant reversal because the military
judge’s special findings convicted him as a perpetrator of involuntary manslaughter,
a theory not presented at trial, rather than under a theory of aiding and abetting
involuntary manslaughter. Moreover, appellant argues that the military judge’s
special finding that appellant knew Sergeant Craig would probably kill is
THOMPSON — ARMY 20190525

insufficient to satisfy the knowledge required for an aider and abettor theory of
liability. Appellant also argues that because aiding and abetting requires specific
intent, appellant’s mistake of fact needed only to be honest, rather than both honest
and reasonable. As discussed below, we disagree.

LAW AND DISCUSSION
A. The Military Judge’s Special Findings
1. Standard of Review

We analogize special findings in a bench trial to instructions in a trial before
members. United States v. Falin, 43 C.M.R. 702, 704 (A.C.M.R. 1972). This court
“adopt[ed] the standards applied to appellate review of special findings under
Fed.R.Crim.P. 23(c), for appellate review of special findings under R.C.M. 918(b).”
United States v. Truss, 70 M.J. 545, 547 (Army Ct. Crim. App. 2011) (citation
omitted). That is, “[s]pecial findings for an ultimate issue of guilt or innocence are
subject to the same appellate review as a general finding of guilt, while other special
findings are reviewed for clear error.” Id.

We review legal and factual sufficiency under Article 66, UCMJ.? “The test
for legal sufficiency is whether, considering the evidence in the light most favorable
to the government, any rational trier of fact could have found the appellant guilty
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Turner, 25 M.J. 324 (C.M.A. 1987). “The test for factual sufficiency is
whether, after weighing the evidence in the record of trial and allowing for the fact
that we did not personally see and hear the witnesses, we ourselves are convinced of
the appellant's guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

2. Article 77, UCMJ — Theories of Criminal Liability

“Article 77 does not define an offense” but simply clarifies “that a person
need not personally perform the acts necessary to constitute an offense to be guilty
of it,” a legal principle found at common law. Manual for Courts-Martial, United
States (2016 ed) [MCM], pt. IV, J1(b)(1). The statutory language of Article 77
provides:

® Article 66, UCMJ, has been amended to modify the statutory standard for factual
sufficiency review. Fiscal Year 2021 National Defense Authorization Act (NDAA),
P.L. 116-283, 1 January 2021. Because appellant’s offenses occurred prior to 1
January 2019, we review under the previous version of Article 66, UCMJ. See
Manual for Courts-Martial, United States (2016 ed) [MCM].

10
THOMPSON — ARMY 20190525
Any person punishable under this chapter who —

(1) Commits an offense punishable by this chapter, or aids,
abets, counsels, commands, or procures its
commission; or

(2) Causes an act to be done which if directly performed
by him would be punishable by this chapter;

is a principal.
10 U.S.C. § 877.

The statute eliminated common law distinctions between a principal in the
first degree (the perpetrator or actual offender who committed the crime); a principal
in the second degree (someone who aids or abets, counsels, commands, or
encourages the commission of the crime, while present, or constructively present);
and an accessory after the fact (someone who was not present but provides
assistance after, knowing a crime has been committed). Manual for Courts-Martial,
United States (2016 ed) [MCM], pt. IV, J1(b)(1); see also 2 Wayne R. LaFave &
Austin W. Scott, Jr., Substantive Criminal Law § 13.1 at 442 (2018). While the
common law distinctions have been erased in the statute, the MCM’s explanation to
Article 77 uses “perpetrator” and “other party” to help clarify the necessary mens
rea to be guilty as a principal, which is often an area of confusion. MCM, pt. IV,
411(b)(2),(4)-(6); see e.g., Thompson, 81 M.J. 824; LaFave, supra, at 466
(“Considerable confusion exists as to what the accomplice’s mental state must be in
order to hold him accountable for an offense committed by another.”).

In our previous decision in this case, this court discussed in great detail
principal liability as an aider and abettor under Article 77, UCMJ. Thompson, 81
M.J. at 831-833. And as this court discussed, “criminal liability as a principal under
an aider and abettor theory is one of shared intent.” Jd. (citing Nye & Nissen v.
United States, 336 U.S. 613, 620 (1949)). That is, to be guilty of an offense
committed by a perpetrator, the other party must have an actus reus (e.g., doing
something to aid the crime) and share in the criminal purpose or design. Rosemond
v. United States, 572 U.S. 65, 66 (2014) (determining a person must not merely
associate himself with the crime but “participate in it as something that he wishes to
bring about” under the parallel federal statute) (internal quotations and citation
omitted); United States v. Jackson, 6 USCMA 193, 19 CMR 319 (CMA 1955) (to be
an aider and abettor “requires concert of purpose . . .a conscious sharing of [the
perpetrator’s] criminal intent.”); United States v. Pritchett, 31 M.J. 213, 217
(C.M.A. 1990) (the aider must have “sufficient knowledge and participation to
indicate that he knowingly and willfully participated in the offense in a manner that
indicated he intended to make it succeed”)(citation omitted). Thus, it is not

11
THOMPSON — ARMY 20190525

sufficient that an appellant intentionally took certain actions which may have later
aided the perpetrator, if the appellant did not intend his acts to have the effect of
aiding the crime. LaFave, supra, at 469.

As the military judge referenced in his special findings, our superior court in
Jackson further determined that a lack of shared intent does not absolve the other
party of criminal liability: “the aider and abettor may be guilty in a different degree
from the principal, each to be held to account according to the turpitude of his own
motive.” 6 USCMA at 203 (citation and internal quotation omitted)(finding error
where appellant was convicted of aiding and abetting murder, not to instruct on the
lesser included offense of involuntary manslaughter); see also United States v.
Foushee, 13 M.J. 833, 836 (ACMR 1982) (“a person may be an aider and abettor to a
lesser degree than the principal if he did not share the required criminal intent or
purpose of the active perpetrator”). Thus, “it is possible for a party to have a state
of mind more or less culpable than the perpetrator of the offense. In such a case, the
party may be guilty of a more or less serious offense than that committed by the
perpetrator.” MCM, pt. IV, §1(b)(4).

Courts have applied this legal principle in affirming a lesser included offense
to the one with which appellant is charged with aiding and abetting. See e.g., United
States v. Richards, 56 M.J. 282, 286 (C.A.A.F. 2002) (affirming appellant’s
conviction for voluntary manslaughter, under an aider and abettor theory, as a lesser
included offense to unpremeditated murder); United States v. Hofbauer, 2 M.J. 922
(A.C.M.R. 1976) (affirming only aiding and abetting assault and battery where
evidence failed to show appellant shared intent to commit aggravated assault).

3. Discussion

Here, appellant does not contest his level of mens rea nor that involuntary
manslaughter is a lesser included offense of premeditated murder. Rather, appellant
argues he was convicted under a theory not presented at trial. That is, the military
judge’s special findings—in stating appellant’s culpably negligent acts were the
proximate cause of the death of the victims—reflect appellant was convicted as a
perpetrator, i.e., the one who committed the offense of involuntary manslaughter
rather than as an “other party” being criminally liable for aiding and abetting SGT
Craig’s crime. Consequently, appellant argues his convictions should be set aside.
We disagree.

The CAAF has held, “[a]n appellate court cannot affirm a criminal conviction
on the basis of a theory of liability not presented at trial.” United States v. Ober, 66
M.J. 393, 405 (C.A.A.F. 2008) (citing Chiarella v. United States, 445 U.S. 222, 236-
37 (1980)). Here, however, the theory of appellant’s criminal liability was the same
for the charged offense (premeditated murder) as it was for the lesser included
offenses (voluntary and involuntary manslaughter): (1) that appellant drove

12
THOMPSON — ARMY 20190525

Sergeant Craig to the victim’s apartment, (2) checked whether the door was locked,
(3) knocked on the apartment door and rang the doorbell, (4) gained access to the
apartment by falsely stating he had left a laptop there at the party the night before,
and (5) remained until Sergeant Craig walked into the apartment and began shooting
the victims. The only difference between the offenses was appellant’s state of mind
in committing these acts.

The government notified defense through its various bench briefs that, in the
alternative to premeditated murder, the government intended to argue appellant’s
actions, and not Sergeant Craig’s, constituted culpable negligence under involuntary
manslaughter. The defense did not object to the consideration of the lesser included
offense; to the contrary, the defense specifically requested the military judge
consider the lesser included offense of involuntary manslaughter during his
deliberations. The defense just disagreed on whose actions must be culpably
negligent, arguing to find appellant guilty of involuntary manslaughter, SGT Craig’s
act of shooting the victims must have been culpably negligent. Yet, from the charge
sheet to the evidence presented at trial, the government’s theory was never that SGT
Craig’s shooting of the two victims was anything but an act committed with the
specific intent to kill.

We find the military judge’s special findings are clearly supported by the
record. We also find that appellant was convicted of involuntary manslaughter as a
perpetrator rather than as an aider and abettor to that offense. That is, while
appellant provided assistance to SGT Craig, appellant’s assistance, in and of itself,
constituted a crime under the UCMJ without the need for vicarious liability as an
aider and abettor. While the special findings refer to appellant’s knowing and willful
assistance to SGT Craig, that knowledge and willfulness refers to appellant’s
actions. In other words, appellant actions were neither inadvertent nor involuntary.
But it does not extend to the requisite mens rea for the offense. By finding
appellant’s actions were culpably negligent and that those culpably negligent acts
were a proximate cause of the victims’ deaths, the factfinder, in essence, found that
appellant was the one who actually committed the offense of involuntary
manslaughter. We disagree with appellant that this was error warranting reversal.

We recognize that the law of aider and abettor, as reiterated by the military
judge in the special findings, may not be a perfect fit for involuntary manslaughter
by culpable negligence under Article 119, UCMJ. Specifically, the statement of law
that an “aider and abettor must knowingly and willfully participate in the
commission of the crime as something he wishes to bring about and seek by his
action to make succeed.” (emphasis added). This statement recites Judge Learned
Hand’s “oft-quoted” “canonical formulation” from United States v. Peoni, 100 F.2d
401 (2d Cir. 1938) which was later appropriated by the Supreme Court in analyzing
aider and abettor liability in Nye & Nissen v. United States, 336 U.S. 613, 619
(1949) and echoed in later military court decisions. Rosemond, 572 U.S. at 76-77;

13
THOMPSON — ARMY 20190525

see e.g., United States v. Pritchett, 31 M.J. 213, 217 (C.M.A. 1990).!° In Rosemond,
the Supreme Court stated this intent requirement is met “when a person actively
participates in a criminal venture with full knowledge of the circumstances” of the
crime. Jd. at 77.

Yet, the mens rea required for involuntary manslaughter is only culpable
negligence—defined as “a culpable disregard for the foreseeable consequences to
others”—a mens rea less than knowledge and specific intent. MCM, pt. IV,
/44.c.(2)(a) (2016 ed.). So, it seems questionable “that a servicemember can be
convicted of aiding and abetting a crime that is predicated on negligence.” United
States v. Brown, 22 M.J. 448, 451 (C.M.A. 1986) (Everett, C.J., concurring).!! If
aiding and abetting requires a shared purpose, then how is a person whose mens rea
is less than knowledge capable of sharing in another person’s purpose or intent?

In Brown, the appellant was charged with murder after he allowed another
Soldier, who was drunk, to operate his car on the German public highways, resulting
in the death of a 15-year-old boy. Jd. at 449. The appellant, however, pleaded
guilty and was convicted of the lesser offense of involuntary manslaughter. Id. On
appeal, he argued his plea was improvident because he could not be held liable as an

'In Pritchett, our superior court outlined the elements of aiding and abetting as
follows:

(1) The specific intent to facilitate the commission of a
crime by another;

(2) Guilty knowledge on the part of the accused;

(3) That an offense was being committed by someone; and

(4) That the accused assisted or participated in the
commission of the offense.

31 M.J. at 217 (internal citations omitted) (emphasis added).

'l As discussed further below, in Brown, both the perpetrator and the appellant were
culpably negligent. Brown, 22 M.J. 448, 451 (C.M.A. 1986). In his concurring
opinion, Chief Judge Everett stated, “it is hard to convict someone on a premise that
he shared a purpose with another person who had no purpose but was only culpably
negligent.” Brown, 22 M.J. at 451. In contrast, in appellant’s case, the actions of
SGT Craig (the perpetrator) were not culpably negligent but intentional. But the
issue remains the same as in Brown because of appellant’s mens rea of culpable
negligence. It is hard to convict someone on a premise he shared a purpose with the
perpetrator if he did not have full knowledge of the perpetrator’s intent but was only
culpably negligent.

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aider and abettor to the other Soldier’s culpably negligent actions because there was
no sharing of criminal purpose. Jd. at 449. The court decided it “need not decide in
this case whether liability can be based on aiding and abetting a negligent act”
though noting several jurisdictions have sustained convictions of involuntary
manslaughter as an aider and abettor. Jd. at n.*. Rather, it sustained Brown’s
convictions on his own culpably negligent act in turning his car over to someone
who was intoxicated, finding the providence inquiry was sufficient where appellant
admitted he was culpably negligent and that his conduct was a proximate cause of
the death. Jd.

There is an important distinction between appellant’s case and Brown. And
that is, unlike in Brown, the government did not argue that SGT Craig was culpably
negligent in killing PV2 Wh and SPC to the contrary, and as discussed, the
evidence presented at appellant’s trial was that the killing was intentional. Thus,
unlike in Brown, the issue before us is not whether appellant can aid and abet
another person’s culpably negligent acts. The question as presented by the special
findings is whether appellant can be convicted as a perpetrator for his own culpably
negligent acts as a lesser included offense of aiding and abetting a specific intent
crime. Our sister service court of criminal appeals answered that question in the
affirmative in United States v. Rowden, 1994 CCA LEXIS 100 (A.F. Ct. Crim. App.
1994). There, appellant unsuccessfully challenged his conviction of involuntary
manslaughter where the original charge was for aiding and abetting murder by
providing the perpetrator a loaded firearm. Sergeant Rowden argued that “the
findings of guilt by culpable negligence . . . created a fatal variance which misled
defense in their preparation.” Jd. at *3. The court disagreed, reasoning that whether
the charge was murder or involuntary manslaughter, the wrongful act of providing
the loaded firearm was the same. /d. at *6. As in this case, “the difference between
the offenses is one of intent.” Id.'? We find Rowden persuasive.

We also note that the definition of principal under Article 77, UCMJ,
encapsulates both a person who commits an offense and a person who aids and abets
an offense. Thus, whether appellant was convicted as an aider and abettor or the
perpetrator—both are treated as principals under the law.’ Thus, it would appear

'2 In Rowden, the military judge “specifically instructed the members that the aiding
and abetting theory did not apply to the lesser-included offense of involuntary
manslaughter.” 1994 CCA LEXIS 100. We find that would have been the

appropriate instruction here.

'3 We also note that “Under the common law rules of pleading, it was not necessary
for the defendant to be charged specifically as a principal in the first degree or

(continued .. .)

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appellant’s argument is a distinction without a difference. We conclude, that under
these certain circumstances, appellant can be convicted to a lesser degree asa
perpetrator although charged with aiding and abetting a greater offense.

For all these reasons, we are unpersuaded that the military judge’s findings
warrant reversal of appellant’s convictions. Consequently, appellant’s additional
arguments on this issue also fail. They are premised upon a theory that if convicted
as an aider and abettor, appellant must have had knowledge of SGT Craig’s action or
specific intent. But as discussed, the mens rea required for involuntary
manslaughter is culpable negligence and the government was not required to prove a
more culpable mens rea to meet the elements of that offense.

The military judge’s special findings addressed all elements necessary for the
convictions. Further, given the evidence presented at trial, the military judge
properly found appellant’s culpably negligent acts were a proximate cause of the
deaths of the two victims. Thus, we conclude the evidence is legally and factually
sufficient to support appellant’s conviction of involuntary manslaughter.

B. Inconsistent Theories
1. Additional Facts and Background

Appellant’s second assignment of error is that his convictions warrant reversal
because the government argued inconsistent theories at his and SGT Craig’s
respective courts-martial. Before appellant’s trial, SGT Craig pleaded guilty to the
murders of PV2 (i and sec As part of the plea agreement, the government,
the defense, and SGT Craig entered into a stipulation of fact agreeing that SGT
Craig’s comment “these n[***] got to go” meant “these men needed to stop sleeping
with his wife.” The stipulation further provided that appellant “was not certain what
[SGT Craig] intended to do, in fact 50 percent of him believed that he was just going
to talk to or confront [PV2 a and 50 percent of him thought he might kill [PV2

9°
.

At appellant’s rehearing, the defense moved to compel the production of
witnesses who would authenticate portions or the entirety of the stipulations of fact
from SGT Craig’s trial, as well as appellant’s previous trial, which the defense
intended to introduce at appellant’s rehearing. The government opposed. After
discussing defense’s motion with the parties during an Article 39(a) session, the

(. . . continued)
principal in the second degree; a general allegation that the defendant was a
principal would suffice.” LaFave, supra, § 13.1(d)(2) at 449.

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military judge made a preliminary ruling of inadmissibility for the stipulations of
fact and denied the motion to compel witnesses. During closing arguments, the
government argued that SGT Craig:

Takes out a Glock, puts it on his lap, says “They’ve got to
go.” What other way — what other way is there to
interpret this? What other ways is there to interpret that?
But to realize, to understand Sergeant Craig wants to kill
this guy. The accused doesn’t say there’s a different way.
.. It’s obvious he knew.

On appeal, appellant contends the government violated his due process rights
by arguing a theory—that appellant knew SGT Craig intended to kill the victims when
he said “these n[***] got to go”—which was inconsistent with the government’s
theory during SGT Craig’s guilty plea-that SGT Craig only meant the men needed to
stop sleeping with his wife and that appellant was uncertain what SGT Craig
intended to do. Appellant also argues the military judge erred in ruling SGT Craig’s
stipulation of fact was inadmissible at appellant’s trial. We disagree on both counts.

2. Law and Discussion

This court reviews a military judge’s decision to admit evidence for an abuse
of discretion. United States v. St. Jean, 83 M.J. 109, 112 (C.A.A.F. 2023) (citing
United States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019)). To be admissible,
evidence must be logically and legally relevant and not otherwise be excluded for
prejudice, confusion, waste of time, or other reasons. Military Rules of Evidence
[Mil. R. Evid.] 401, 402, 403. Here, the military judge’s discussion with counsel
during the Article 39(a) illustrated the questionable relevancy of a stipulation of fact
entered into as part of a plea agreement in a co-accused’s case during appellant’s
separate proceeding. The military judge also expressed concerns about the use of
the stipulations not only by the defense but also the government. In ruling the
stipulation of fact was inadmissible, we find no abuse of discretion.

This Court previously addressed inconsistent theories in United States v.
Turner, 2018 CCA LEXIS 592 (Army Ct. Crim. App. 30 Nov. 2018), in which the
court noted while the Supreme Court and other federal appeals and district courts
have addressed the right and left limits of when the government’s conflicting
theories violate due process, it appeared to be “an issue of first impression for
military courts.” Jd. at *15 (citing in part Bradshaw v. Stumpf, 545 U.S. 175 (2005);
Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997); Smith v. Groose, 205 F.3d
1045 (8th Cir. 2000)). In reviewing those opinions, the Turner court stated, “Most
courts hold that a due process violation will only be found when the inconsistency
exists at ‘the core’ of the prosecution’s case.” Id. (quoting Sifrit v. Nero, 2014 U.S.
Dist. LEXIS 145759 at *80 (D. Md. 2014). “Discrepancies based on rational

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inferences from ambiguous evidence will not support a due process violation
provided the two theories are supported by consistent underlying facts.” Id.
(internal quotations omitted).

First, it is unclear whether a stipulation of fact entered into by both parties
and the accused constitutes a government theory at trial. As an agreement between
opposing parties, stipulations of fact often include concessions by both sides about
what the facts of the case are, rather than representing one party’s theory of the case.
Second, even if it qualified as a government theory, the two interpretations of SGT
Craig’s statements are not entirely inconsistent. That is, a statement to the effect of
“They’ve got to go” could reasonably be interpreted to mean that these men needed
to stop sleeping with SGT Craig’s wife but also mean SGT Craig intended to stop
the men from sleeping with his wife by killing them. That is reflected in SGT
Craig’s stipulation of fact that “50 percent of [appellant] believed that [SGT Craig]
was just going to talk to or confront [PV2 i and 50 percent of him thought he
might kill [PV2 Jj.”

Even if there is an inconsistency, appellant’s argument hinges on a difference
in interpretation of an underlying fact that remained the same from SGT Craig’s
guilty plea to appellant’s contested court-martial—that is, SGT Craig told appellant,
“these n[***] got to go.” The government’s theory that SGT Craig told appellant
this remained the same in both trials, as did the core of the government’s case. The
defense does not argue that there were inconsistent theories about who killed the
victims, or what SGT Craig said to appellant, or that appellant assisted SGT Craig.
Thus, the only inconsistency, if one exists, is an additional reasonable inference
drawn from SGT Craig’s statement.

Finally, even were this court to be convinced the government violated
appellant’s due process rights, any violation was harmless beyond a reasonable
doubt. The military judge’s special findings made unequivocally clear that he
rejected the government’s argument that appellant could only interpret SGT Craig’s
words to mean he intended to kill the victims. Therefore, any inconsistent theories
in this case had no bearing on the ultimate convictions.

CONCLUSION

The findings and sentence are AFFIRMED."

4 The Judgement of the Court, dated 13 December 2023, is amended to reflect
“20190525” as the “ACCA Case Number.”

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Judge EWING and Judge JUETTEN concur.

FOR THE COURT:

JAMES W. HERRING, JR.
Clerk of Court

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