United States v. Thompson

This opinion is subject to revision before publication. UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________ UNITED STATES Appellee v. Phillip E. THOMPSON Jr., Specialist United States Army, Appellant No. 25-0254 Crim. App. No. 20190525 Argued April 15, 2026—Decided November 5, 2026 Military Judges: David H. Robertson (trial) and J. Harper Cook (rehearing) For Appellant: Captain Andrew W. Moore (argued); Lieutenant Colonel Kyle C. Sprague, Major Peter M. Ellis, and Jonathan F. Potter, Esq. (on brief); Major Bryan A. Osterhage. For Appellee: Captain Nicholas A. Schaffer (argued); Colonel Richard E. Gorini (on brief); Lieutenant Colonel K. M. Bohlke. Judge HARDY delivered the opinion of the Court, in which Chief Judge MAGGS and Judge JOHNSON joined. Chief Judge MAGGS filed a separate concur- ring opinion. Judge OHLSON filed a separate opin- ion concurring in part and concurring in the judg- ment, in which Judge SPARKS joined. _______________  United States v. Thompson, No. 25-0254/AR Opinion of the Court Judge HARDY delivered the opinion of the Court. In 2017, Appellant drove his friend, Sergeant (SGT) Shaquille Craig, to the apartment of another soldier and helped SGT Craig gain entry to the apartment. Once in- side, SGT Craig brutally shot and killed two soldiers. Based on Appellant’s role in the shootings, the Government charged Appellant with two specifications of premediated murder in violation of Article 118, Uniform Code of Mili- tary Justice (UCMJ), 10 U.S.C. § 918 (2012), under an aid- ing and abetting theory of liability. A military judge sitting as a general court-martial found Appellant not guilty of the two specifications of premediated murder because the mil- itary judge concluded that Appellant did not share SGT Craig’s premeditated design to kill, intent to kill, or intent to inflict great bodily harm. However, the military judge found Appellant guilty of two specifications of the les- sor included offense (LIO) of involuntary manslaughter in violation of Article 119, UCMJ, 10 U.S.C. § 919 (2012), without explicitly stating whether he found Appellant guilty under an aiding and abetting theory or a perpetrator theory of criminal liability. Before the United States Army Court of Criminal ap- peals (ACCA), Appellant argued that the military judge erred by convicting him under a perpetrator theory of crim- inal liability that was not presented by the Government during his court-martial. The Government countered that the military judge found Appellant guilty under an aiding and abetting theory of criminal liability and that the con- victions were legally sufficient. The ACCA agreed with Ap- pellant about the military judge’s theory of liability but still affirmed Appellant’s convictions as legally sufficient, con- cluding that Appellant could “be convicted to a lesser de- gree as a perpetrator although charged with aiding and abetting a greater offense.” United States v. Thompson, No. ARMY 20190525, 2025 CCA LEXIS 303, at *26, 2025 WL 1829397, at *9 (A. Ct. Crim. App. June 30, 2025) (un- published). Before this Court, Appellant and the Government now agree that the military judge found Appellant guilty of 2  United States v. Thompson, No. 25-0254/AR Opinion of the Court involuntary manslaughter under an aiding and abetting theory of liability. Appellant argues, however, that his con- victions must be overturned because due process prohib- ited the ACCA from affirming his convictions under a dif- ferent theory of liability than the one presented at trial. Appellant further argues that once review is limited to an aider and abettor theory of liability, his convictions are le- gally insufficient. We agree with Appellant that the ACCA’s review should have been limited to the aider and abettor theory of crimi- nal liability presented by the Government at his court-mar- tial, and that the ACCA therefore erred by affirming his convictions under an alternative theory. We disagree, how- ever, that Appellant’s convictions for the LIO of involun- tary manslaughter are legally insufficient. Accordingly, we set aside the ACCA’s decision and remand this case to the lower court for further Article 66 review 1 under the aiding and abetting theory of liability. I. Background On a Sunday morning in March 2017, Appellant re- ceived a phone call from his friend, SGT Craig. SGT Craig was upset because he has seen his estranged wife with an- other man, Private Second Class (PV2) MJ, at a party the night before. SGT Craig had followed PV2 MJ to an apart- ment earlier that day, and SGT Craig asked Appellant to meet him in a parking lot down the street from the apart- ment. With his infant son in the back seat of his truck, Ap- pellant drove to the parking lot and picked up SGT Craig. SGT Craig told Appellant that “these n[******] got to go” and pulled a Glock handgun from his waistband. SGT Craig told Appellant to drive to the apartment where he had followed PV2 MJ 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” in the apart- ment during the party the night before. Appellant did as SGT Craig asked but found the back door locked. After 1 Article 66, UCMJ, 10 U.S.C. § 866 (2012). 3  United States v. Thompson, No. 25-0254/AR Opinion of the Court Appellant knocked and rang the doorbell, PV2 MJ came to the back door and asked Appellant to come around to the front door. PV2 MJ met Appellant at the front door of the apartment and invited him inside. PV2 MJ asked Appel- lant if he had attended the party the night before, whether the party was any good, and whether Appellant left any- thing. Appellant replied that he had left his laptop. PV2 MJ walked towards the kitchen, texting on his phone, then turned to the back of the apartment to speak to Spe- cialist (SPC) MB, who lived in the apartment. At this time, SGT Craig entered the apartment through the front door and confronted PV2 MJ. During the follow- ing few moments, SGT Craig shot PV2 MJ and then shot, assaulted, and stabbed SPC MB as he attempted to flee the apartment. Both PV2 MJ and SPC MB died from their wounds. As relevant here, the Government charged Appellant with two specifications of premeditated murder in violation of Article 118, UCMJ, under an aiding and abetting theory of liability. At his first court-martial, Appellant pleaded guilty to both specifications but stated during the Care in- quiry 2 that he “did not wish harm upon” the victims, “didn’t desire for them to be killed,” and “hoped nobody would be hurt.” Nevertheless, the military judge accepted Appel- lant’s pleas and found him guilty of both specifications of premeditated murder. On appeal, the ACCA reversed, con- cluding that Appellant’s pleas were improvident because the providence inquiry failed to establish that Appellant possessed the necessary intent to kill with premeditation. The Government re-referred the two specifications of premeditated murder, leading to the instant proceedings. At his second court-martial, Appellant elected trial by mil- itary judge alone and pleaded not guilty. The military judge found Appellant not guilty of premeditated murder, con- cluding that the Government had not proved Appellant 2 United States v. Care, 18 C.M.A. 535, 541-42, 40 C.M.R. 247, 253-54 (1969). 4  United States v. Thompson, No. 25-0254/AR Opinion of the Court “shared [SGT] Craig’s premeditated design to kill, intent to kill, or intent to inflict great bodily harm.” 3 However, the military judge found Appellant guilty of two specifications of the LIO of involuntary manslaughter in violation of Ar- ticle 119, UCMJ. After announcing the general verdict, the military judge delivered special findings pursuant to Appellant’s request under Rule for Courts-Martial (R.C.M) 918(b) and Arti- cle 51(d), UCMJ, 10 U.S.C. § 851(d) (2012). In those find- ings, the military judge explained that the Government had proved beyond a reasonable doubt that Appellant had “aided and abetted Sergeant Craig to commit the unlawful killings” by knowingly and willfully taking five distinct ac- tions at SGT Craig’s request. The military judge further ex- plained that the Government had also proven beyond a rea- sonable doubt that Appellant’s “knowing and willful assistance to Sergeant Craig amounted to culpable negli- gence, which was a proximate cause of the death of both [PV2 MJ] and [SPC MB].” The military judge sentenced Appellant to a dishonora- ble discharge and confinement for eight years. The conven- ing authority approved the sentence. Before the ACCA, the parties disagreed over whether the military judge had convicted Appellant of involuntary manslaughter as a perpetrator or as an aider and abettor. The ACCA agreed with Appellant and concluded that he “was convicted of involuntary manslaughter as a perpetra- tor rather than as an aider and abettor to that offense.” Thompson, 2025 CCA LEXIS 303, at *21, 2025 WL 1829397, at *8. The lower court reasoned that the act of assisting SGT Craig with the killings “in and of itself con- stituted a crime under the UCMJ without the need for vi- carious liability as an aider and abettor,” and that by 3 The military judge also found Appellant not guilty of three specifications of accessory after the fact, one specification of conspiracy, and one specification of child endangerment in violation of Articles 78, 81, and 134, UCMJ, 10 U.S.C. §§ 878, 881, 934 (2012). 5  United States v. Thompson, No. 25-0254/AR Opinion of the Court “finding [A]ppellant’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 [A]ppellant was the one who actually committed the of- fense of involuntary manslaughter.” Id. at *21-22, 2025 WL 1829397, at *8. Recognizing that the Government had presented an aid- ing and abetting theory of liability at trial, the ACCA con- cluded that a defendant “can be convicted to a lesser degree as a perpetrator although charged with aiding and abetting a greater offense.” Id. at *26, 2025 WL 1829397, at *9. Hav- ing concluded that Appellant’s conviction under the perpe- trator theory was legally sufficient, the ACCA then found the evidence was also factually sufficient, affirming the findings and sentence. Id. at *26, *31, 2025 WL 1829397, at *9, *11. We granted review of the following question: Whether the special findings warrant reversal of Appellant’s conviction for involuntary man- slaughter. United States v. Thompson, 87 M.J. 76 (C.A.A.F. 2026) (or- der granting review). II. Standard of Review This Court reviews the legal sufficiency of convictions de novo. United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (citing United States v. Kearns, 73 M.J. 177, 180 (C.A.A.F. 2014)). A conviction is legally sufficient if, “ ‘after viewing the evidence in the light most favorable to the pros- ecution, any rational trier of fact could have found the es- sential elements of the crime beyond a reasonable doubt.’ ” United States v. Robinson, 77 M.J. 294, 297-98 (C.A.A.F. 2018) (quoting United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). III. Discussion Appellant challenges his involuntary manslaughter convictions on two grounds. First, he argues that the ACCA impermissibly affirmed his convictions under a perpetrator 6  United States v. Thompson, No. 25-0254/AR Opinion of the Court theory of liability that was never presented to or adopted by the factfinder. Second, if review is limited to the aider and abettor theory originally presented by the Government at trial, Appellant argues that his convictions are legally insufficient. We address each argument in turn. A. Affirming on a Theory of Liability Not Presented at Trial In United States v. Ober, this Court recognized that “[a]n appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact.” 66 M.J. 393, 405 (C.A.A.F. 2008) (citing Chiarella v. United States, 445 U.S. 222, 236-37 (1980)). Seizing on this precedent, Appellant now argues that the ACCA erred by affirming his involuntary manslaughter convictions under a perpetrator theory of liability even though the Govern- ment presented an aiding and abetting theory of liability at trial. Before addressing the merits of Appellant’s argument, we note two unusual aspects of this case. First, the ACCA reached its conclusion, at least in part, at Appellant’s re- quest. Appellant argued before the ACCA that “[t]he gov- ernment presented an aider and abettor theory, but the special findings convicted appellant as the perpetrator.” To the extent that Appellant now argues that the ACCA erred by affirming his conviction under a perpetrator theory of criminal liability, that argument potentially implicates the invited error doctrine which “prevents a party from cre- ate[ing] error and then tak[ing] advantage of a situation of his own making [on appeal].” United States v. Martin, 75 M.J. 321, 325 (C.A.A.F. 2016) (alterations in original) (ci- tations omitted). Second, before this Court, Appellant now agrees with the Government and argues that the military judge found Appellant guilty under an aiding and abetting theory of li- ability. Appellant’s change in strategy raises the incon- sistent positions principle, which generally prohibits a party from changing litigation positions unless adequate reasons are presented for the change and there is no 7  United States v. Thompson, No. 25-0254/AR Opinion of the Court prejudice to the opposing party. United States v. Ellis, __ M.J. __, __ (10-11) (C.A.A.F. 2026); see also 18B Wright & Miller’s Federal Practice and Procedure § 4477 (2d ed. 1992 & Supp. 2021) (“Absent any good explanation, a party should not be allowed to gain an advantage by litigating on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory.”). The Government has declined, however, to raise any objections along these lines, so we assume that it has suffered no prejudice from Appellant’s appellate litigation strategy. Before this Court, both parties now agree that the military judge found Appellant guilty under an aiding and abetting theory of liability, but that the ACCA affirmed Appellant’s convictions under a perpetrator theory of liability. Consistent with the party-presentation principle, we accept the parties’ framing of the legal issue and proceed to the merits of Appellant’s claim. See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (“The parties frame the issues for decision, while the court serves as neutral arbiter of matters the parties present.” (internal quotation marks omitted) (citation omitted)). In its decision below, the ACCA concluded that—at least in the context of the involuntary manslaughter charges in this case—there was no material difference be- tween the perpetrator theory of liability and the aiding and abetting theory of liability. Thompson, 2025 CCA LEXIS 303, at *21-22, 2025 WL 1829397, at *8-9. The ACCA char- acterized Appellant’s arguments about the switch from one theory to the other as raising a “distinction without a dif- ference” and concluded that “in essence” the military judge had found that Appellant committed, rather than aided and abetted, the offense of involuntary manslaughter. Id. at *22, *26, 2025 WL 1829397, at *8-9. We disagree. In fairness to the ACCA, we recognize that the differ- ences between the perpetrator and aiding and abetting the- ories of liability in an involuntary manslaughter case might be slight. And we further acknowledge that based on the facts presented in this case, the Government could have pursued a perpetrator theory of liability based on 8  United States v. Thompson, No. 25-0254/AR Opinion of the Court Appellant’s own culpably negligent acts. Nevertheless, we reaffirm our statement in Ober that “[a]n appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact.” 66 M.J. at 405. Accordingly, we agree with Appellant that the ACCA erred when it affirmed his convictions for involuntary man- slaughter under a perpetrator theory of liability that was never presented at trial. The legal sufficiency of Appel- lant’s involuntary manslaughter convictions must be eval- uated under the same theory of liability that the Govern- ment presented at trial. 4 We therefore turn to Appellant’s second argument, that the military judge’s special findings are not legally sufficient to support his involuntary man- slaughter convictions under an aiding or abetting theory of liability. B. Legal Sufficiency of Appellant’s Involuntary Manslaughter Convictions The Government charged Appellant with two specifica- tions of premeditated murder in violation of Article 118, UCMJ. Both parties agree that the Government’s theory of liability at trial was one of aiding and abetting: Appellant did not shoot the victims, but he aided and abetted SGT Craig’s premeditated murder of both victims. For each specification, the military judge found Appellant not guilty of premeditated murder, but guilty of the LIO of involun- tary manslaughter in violation of Article 119, UCMJ. Both parties also now agree that the military judge’s findings of guilt for involuntary manslaughter were based on an aider and abettor theory of liability. Appellant challenges those findings of guilt as legally insufficient. 1. Aiding and Abetting under Article 77, UCMJ Article 77, UCMJ, 10 U.S.C. § 877 (2012), does not de- fine an offense. Instead, it establishes a theory of liability under which a servicemember may be held criminally 4 Although an appellate court may affirm a finding of guilty on an alternative theory in certain circumstances (a question we need not address here), it may not do so without first finding error in the underlying theory of conviction from trial. 9  United States v. Thompson, No. 25-0254/AR Opinion of the Court liable for another’s crime. Article 77, UCMJ, provides that any servicemember who “commits an offense punishable by this chapter, or aids, abets, counsels, commands, or pro- cures its commission . . . is a principal.” Article 77(a), UCMJ. As the President has explained, “[i]ts purpose is to make clear that a person need not personally perform the acts necessary to constitute an offense to be guilty of it.” Manual for Courts-Martial, United States pt. IV, para. 1.b.(1) (2016 ed.) (MCM or Manual). Thus, a person who aids and abets an offense, “is equally guilty of the of- fense as one who commits it directly, and may be punished to the same extent.” Id. As the United States Air Force Court of Criminal Appeals has aptly put it, an accused “would be guilty not only if he were the actual perpetrator, but also if he aided or abetted an actual perpetrator who committed the charged offense, provided the requisite ele- ments of principal liability for aiding and abetting are proven beyond a reasonable doubt.” United States v. Bah, No. ACM S32634, 2021 CCA LEXIS 348, at *21, 2021 WL 2908140, at *7 (A.F. Ct. Crim. App. July 9, 2021) (un- published) (citing United States v. Mitchell, 66 M.J. 176, 178 (C.A.A.F. 2008)). Military courts have long imposed a significant limita- tion on aider and abettor liability under Article 77, UCMJ: an aider and abettor may only be held criminally liable up to his own personal mens rea. This principle was first es- tablished in United States v. Jackson, when our predeces- sor court held that when an aider and abettor does not have a shared intent with the perpetrator, 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 C.M.A. 193, 203, 19 C.M.R. 319, 329 (1955) (in- ternal quotation marks omitted) (citation omitted). In Jackson, a stabbing victim died from his wounds af- ter being attacked by two soldiers, Burns and Jackson, both of whom were carrying knives. Id. at 196, 19 C.M.R. at 322. Burns confessed to investigators that he had drawn his knife and repeatedly stabbed the victim. Id. at 199, 19 C.M.R. at 325. Jackson admitted to chasing the victim with 10  United States v. Thompson, No. 25-0254/AR Opinion of the Court Burns, but he denied that he stabbed the victim or even removed his knife from his pocket. Id. at 201, 19 C.M.R. at 327. As summarized by the law officer at Jackson’s court- martial, the theory of the prosecution was “that the actual wielder of the knife involved was Private Burns, and that Private First Class Jackson [was] an aider and abettor and hence liable as a principal.” Id. at 200, 19 C.M.R. at 326 (internal quotation marks omitted). The court-martial found Jackson guilty of murder. Id. at 196, 19 C.M.R. at 322. On appeal, Jackson argued that the members should have been instructed on the LIO of involuntary manslaugh- ter because he did not share Burns’s intent to kill or to in- flict grievous bodily harm. Id. at 203-04, 19 C.M.R. at 329-30. Jackson’s defense counsel asserted that “Jackson’s intention was to do nothing worse to the [victim] than as- sault him with his fists.” Id. at 202, 19 C.M.R. at 328 (in- ternal quotation marks omitted). Our predecessor court agreed, holding that the failure to instruct the members on involuntary manslaughter was reversible error because Burns’s intent was not necessarily imputable to Jackson. Id. at 204, 19 C.M.R. at 330. As explained by Chief Judge Quinn in his lead opinion: [T]he court-martial might have found from the ev- idence that Jackson had no conscious knowledge Burns was carrying a weapon and that he would be inclined to use it. The court-martial could, therefore, reasonably conclude that Jackson did not share [Burns’s] criminal intent and that his guilt was no greater than that of manslaughter. Id. at 203, 19 C.M.R. at 329. Judge Brosman offered addi- tional explanation in his separate opinion that is perhaps even more relevant to this case: The principal [Burns] may have been moved by a clear purpose to kill the victim, but the aider and abettor [Jackson] may have intended a simple as- sault alone, and may not have known of the graver intention in the principal’s mind. In that event, the principal will be liable for murder in violation of Article 118, [UCMJ], but the aider will be held 11  United States v. Thompson, No. 25-0254/AR Opinion of the Court responsible only for involuntary manslaughter as proscribed by Article 119, [UCMJ]. Id. at 208, 19 C.M.R. at 334. (Brosman, J., concurring in part and dissenting in part) (emphasis added). 2. Establishing Legal Sufficiency For Appellant’s conviction to be legally sufficient, the evidence—when viewed in the light most favorable to the prosecution—must establish that any rational trier of fact could have found the essential elements of involuntary manslaughter beyond a reasonable doubt. Robinson, 77 M.J. at 297-98. Because the Government tried Appellant under an aiding and abetting theory, the evidence must also establish the judicially defined elements of aiding and abetting. In other words, the evidence must be sufficient to establish that Appellant could be convicted of involuntary manslaughter under an aiding and abetting theory of lia- bility. a. The Elements of Involuntary Manslaughter The President has specified the following four elements for involuntary manslaughter in violation of Article 119, UCMJ: (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 . . . . MCM pt. IV, para. 44.b.(2). The first three elements are identical to those for premeditated murder in violation of Article 118, UCMJ. The two offenses only differ by the mens rea requirement specified in the fourth element. Pre- meditated murder requires “[t]hat, at the time of the kill- ing, the accused had a premeditated design to kill,” while involuntary manslaughter only requires that the accused’s acts or omission “constituted culpable negligence.” 12  United States v. Thompson, No. 25-0254/AR Opinion of the Court Compare MCM pt. IV, para. 43.b.(1)(d), with MCM pt. IV, para. 44.b.(2)(d). 5 b. The Elements of Aiding and Abetting Neither Congress nor the President has provided ele- ments for proving that an accused acted as an aider and abettor to a crime under Article 77, UCMJ. In United States v. Pritchett, our predecessor court implicitly adopted the United States Court of Appeals for the District of Co- lumbia Circuit’s four element test for aiding and abetting under the similar federal aiding and abetting statute, 18 U.S.C. § 2. 31 M.J. 213, 217 (C.M.A. 1990) (citing United States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982)). This Court has reaffirmed those elements in subsequent cases. United States v. Gosselin, 62 M.J. 349, 351 (C.A.A.F. 2006); United States v. Vela, 71 M.J. 283, 286 (C.A.A.F. 2012). As most recently articulated in Vela, the four elements that the government must prove beyond a reasonable doubt to establish that an accused aided and abetted an offense are: (1) the specific intent to facilitate the crime by an- other; (2) guilty knowledge on the part of the accused; 5 In Schmuck v. United States, the Supreme Court stated: “To be necessarily included in the greater offense the lesser must be such that it is impossible to commit the greater without first having committed the lesser.” 489 U.S. 705, 719 (1989) (internal quotation marks omitted) (citation omitted). Other courts have observed that a strict application of this test might suggest that involuntary manslaughter by culpable negligence should not be a LIO of premeditated murder. See, e.g., United States v. Browner, 889 F.2d 549, 554 n.3 (5th Cir. 1989) (recognizing the argument but rejecting it due to the “deeply entrenched” legal presumption that gross negligence is a lesser included culpabil- ity of intent). This issue is not before us because Appellant’s de- fense counsel agreed at trial that involuntary manslaughter was an LIO of premeditated murder, and therefore, that culpable negligence was a lesser included mens rea of intent to kill. See also Article 79(b)(2), 10 U.S.C. § 879(b)(2) (including within the definition of an LIO “any lesser included offense so designated by regulation prescribed by the President”). 13  United States v. Thompson, No. 25-0254/AR Opinion of the Court (3) that an offense was being committed by some- one; and (4) that the accused assisted or participated in the commission of the offense. Vela, 71 M.J. at 286 (internal quotation marks omitted) (ci- tation omitted). Establishing these elements allows the government to hold the aider and abettor criminally liable for the offense committed by the perpetrator. c. The Military Judge’s Special Findings Upon the request of the defense, the military judge is- sued special findings explaining Appellant’s “two findings of guilt for involuntary manslaughter.” The military judge began by explaining that the Government proved beyond a reasonable doubt that SGT Craig committed two premedi- tated murders. The Government therefore had proven: (1) that the two victims were dead; (2) that their deaths had resulted from SGT Craig’s actions; (3) that the killings were unlawful; and (4) that SGT Craig had a premeditated design to kill. MCM pt. IV, para. 43.b.(1). The military judge then accurately explained the law of principals under Article 77, UCMJ, noting “[a]nyone who knowingly and willfully aids or abets another in commit- ting an offense is also a principal and equally guilty of the offense.” The military judge found that Appellant took the following five specific actions that “established, beyond a reasonable doubt, that [Appellant] aided and abetted Ser- geant Craig to commit the unlawful killings”: (1) He drove Sergeant Craig to [SPC MB’s] apart- ment; (2) He checked whether the door of [SPC MB’s] 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 MJ]; specifically, that he was present at the party the night before and that he left a laptop there, which assertions were totally false; and 14  United States v. Thompson, No. 25-0254/AR Opinion of the Court (5) He stayed inside the apartment until Sergeant Craig arrived. Appellant has not challenged any of the military judge’s special findings as clearly erroneous. d. Appellant’s Status as an Aider and Abettor Appellant does not challenge that the military judge’s findings were legally sufficient for a reasonable factfinder to find the second, third, and fourth Vela elements for aid- ing and abetting beyond a reasonable doubt. Appellant had guilty knowledge, as indicated by his lying to gain entrance to the victims’ residence. SGT Craig committed two pre- meditated murders. And Appellant assisted the commis- sion of the murders by driving SGT Craig to the victim’s apartment and gaining access to the apartment by lying. 6 On appeal, Appellant challenges whether the military judge’s special findings are legally sufficient to satisfy the first Vela element: the specific intent to facilitate the crime by another. In Appellant’s view, the first Vela element re- quires the Government to prove that Appellant had the specific intent to facilitate a particular offense. Moreover, Appellant argues that the military judge’s special findings are legally deficient because they failed to identify which particular offense Appellant intended to facilitate. We dis- agree with both assertions. Appellant’s argument conflates two separate concepts: the mental state necessary for Appellant to be an aider and abettor to SGT Craig’s crimes under Article 77, UCMJ, and the mental state necessary for Appellant to be held crimi- nally liable for SGT Craig’s crimes. Appellant’s confusion is understandable because courts have long wrestled with the complex question of what state of mind is necessary for 6 As stated in the military judge’s special findings, the Gov- ernment proved beyond a reasonable doubt that “[Appellant] did not mistakenly believe the Sergeant Craig ‘just wanted to talk with [the victims]’ 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 was unreasonable un- der the circumstances.” 15  United States v. Thompson, No. 25-0254/AR Opinion of the Court criminal liability to attach to an aider and abettor. See Ba- ruch Weiss, What Were They Thinking?: The Mental States of the Aider and Abettor and the Causer Under Federal Law, 70 Fordham L. Rev. 1341, 1344 (2002) (examining what mental state suffices to convert an act of assistance into criminal liability equivalent to that of the perpetrator under federal law). Historically, knowing and intentional assistance by the aider and abettor was sufficient for the aider and abettor to share the perpetrator’s liability even if they did not share the same intent. Id. at 1366-67; see Hanauer v. Doane, 79 U.S. 342, 347 (1870) (rejecting the argument that an aider and abettor could avoid criminal liability based on the “nice metaphysical distinction” that he did not share the perpetrator’s intent). Under the common law, the aider and abettor was assumed “to intend the consequences of his own voluntary act.” Hanauer, 79 U.S. at 347. Congress first enacted Article 77, UCMJ, in 1950 against this common law backdrop, using the same broad language that remains unaltered in the article today. Act of May 5, 1950, ch. 169, Pub. L. No. 81-506, § 1, 64 Stat. 107, 134. Forty years ago, our predecessor court examined the language of Article 77, UCMJ, in the context of a felony murder case to determine whether that language sup- ported holding an aider and abettor vicariously liable for a perpetrator’s acts. United States v. Jefferson, 22 M.J. 315, 321-23 (C.M.A. 1986). After recognizing the common law background and that earlier cases had upheld felony mur- der convictions under an aiding and abetting theory “even though the accused may not have killed the victim or even intended his death,” the court concluded that Article 77, UCMJ, did impose vicarious liability on an aider and abet- tor. Id. (emphasis added). To prove that an aider and abettor’s assistance is know- ing and intentional (i.e., that he had the specific intent to facilitate the perpetrator’s crime), the aider and abettor and the perpetrator must “[s]hare in the criminal purpose or design” of their venture. MCM pt. IV, para. 1.b.(2)(b)(ii). The accused must “in some sort associate himself with the 16  United States v. Thompson, No. 25-0254/AR Opinion of the Court venture, in that he participate in it as in something that he wishes to bring about, and that he seek by his action to make it succeed.” Vela, 71 M.J. at 286 (alterations in origi- nal removed) (internal quotation marks omitted) (citations omitted). In contrast, a servicemember cannot be held criminally liable if, without knowledge of the criminal ven- ture, the servicemember unintentionally encourages or as- sists another in the commission of an offense. MCM pt. IV, para. 1.b.(2)(b)(ii). Importantly, although the aider and abettor must join in the shared criminal venture with his fellow principals, they need not have the same specific intent or state of mind. MCM pt. IV, para. 1.b.(4). In such a case, the aider and abettor “may be guilty of a more or less serious offense than that committed by the perpetrator.” Id. Furthermore, an aider and abettor may be held liable for any crimes com- mitted by another principal if that crime is the natural and probable consequence of the criminal venture. MCM pt. IV, para. 1.b.(5). In this case, the military judge found that when Appellant assisted SGT Craig, Appellant “knew that Sergeant Craig intended to confront and probably kill [the victims].” Importantly, the military judge also found that Appellant “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.” The military judge’s special findings establish that Appellant and SGT Craig had a common criminal purpose: to go to the victim’s apartment, to gain entry, and to provide SGT Craig with an opportunity to violently confront the victims. See Jackson, 6 C.M.A at 202, 19 C.M.R. at 328 (holding that the court-martial “could reasonably infer a predetermined criminal design to inflict harm” from the evidence). Like the accused in Jackson, Appellant and SGT Craig “could expect only violence as a consequence of their conduct.” Id., 19 C.M.R. at 328. Once the military judge established that Appellant knowingly and intentionally associated himself with and participated in the criminal venture that had no innocent 17  United States v. Thompson, No. 25-0254/AR Opinion of the Court purpose and that resulted in a crime (in this case the two premeditated murders), nothing more was required. 7 Ap- pellant did not need to have the specific intent to commit a particular offense, and the military judge did not need to specify a particular offense in his special findings. Because Appellant had the specific intent to facilitate SGT Craig’s ill-fated criminal endeavor and that endeavor resulted in two premeditated murders, the military judge’s special findings were legally sufficient to satisfy the first Vela ele- ment and establish that Appellant was an aider and abet- tor under Article 77, UCMJ. e. Appellant’s Personal Mens Rea As correctly recognized by the military judge, establish- ing that Appellant aided and abetted the premeditated murders is not the end of the analysis. As described above, our predecessor court imposed an additional limitation on an aider and abettor’s criminal liability, holding in Jackson that an aider and abettor can only “be held to account ac- cording to the turpitude of his own motive.” Jackson, 6 C.M.A. at 203, 19 C.M.R. at 329 (internal quotation marks omitted) (citation omitted). The Jackson court did not base this limitation on Article 77, UCMJ, which the court only mentioned in concluding that the article did not compel the court to impute the perpetrator’s specific intent to the aider and abettor. Id., 19 C.M.R. at 329. Instead, the court rec- ognized a trend among courts in other jurisdictions moving away from the common law rule and holding that an aider and abettor should be held liable only up to the level of his own purposeful intent. Id. at 203-04, 19 C.M.R. at 329-30 (citing cases from Kentucky, Texas, and Iowa); see also Weiss, 70 Fordham L. Rev. at 1366-72 (describing the tran- sition from the knowledge standard to the purposeful in- tent standard for aider and abettor liability). Accordingly, after Jackson, even though a servicemember may have 7 It is vital that the criminal scheme results in a crime be- cause there can be no aider and abettor liability without the com- mission of an offense by a perpetrator. See Article 77, UCMJ; Vela, 71 M.J. at 286. 18  United States v. Thompson, No. 25-0254/AR Opinion of the Court aided and abetted a more serious offense, he can only be held criminally liable up to the level of his own personal mens rea. MCM pt. IV, para. 1.b.(4). SGT Craig committed two premeditated murders, and the military judge found that Appellant aided and abetted those crimes. But under Jackson, Appellant could not be criminally liable for premeditated murder under Arti- cle 118, UCMJ, unless he shared SGT Craig’s “premedi- tated design to kill” the victims. MCM pt. IV, para. 43.b.(1)(d). The military judge concluded that he did not, stating: “The Government did not prove beyond a rea- sonable doubt that [Appellant] shared SGT Craig’s pre- meditated design to kill, intent to kill, or intent to inflict great