The NMCCA made two significant holdings in United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim. App. 2014) (discussed here). First, it found the evidence of forcible rape – where the force was merely the appellant’s position on top of the victim – to be insufficient to prove “the use of such physical strength or violence as is sufficient to overcome, restrain, or injure.” Article 120(g)(5) (2012) (defining force). Second, it suggested that military judges conditionally dismiss specifications in the event of an unreasonable multiplication of charges:
When a military judge is presented with findings that reflect an unreasonable multiplication of charges that cannot be adequately addressed by merging the charges for sentencing purposes, the military judge must then decide whether to consolidate or dismiss the affected specifications. This is a significant decision that should be carefully considered by the military judge. Specifically, consideration should be given to what happens if, on appeal, the remaining offense is set aside. . . .
When consolidation is impracticable, such as when the guilty findings involve violations of different UCMJ articles, military judges should consider a conditional dismissal of one or more findings. Conditional dismissals “become effective when direct review becomes final in the manner described in Article 71(c), UCMJ” and therefore “protect the interests of the Government in the event that the remaining charge is dismissed during [appellate] review.” United States v. Britton, 47 M.J. 195, 203-05 (C.A.A.F. 1997) (Effron, J., concurring).
74 M.J. at 568-569.
Both of these holdings of Thomas are applied by the NMCCA in a recent decision in United States v. Parker, __ M.J. __, No. 201500158 (N-M. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), in which a three-judge panel of the court finds that the evidence supporting the appellant’s conviction of rape is legally and factually insufficient (due to the lack of evidence sufficient to overcome the victim), and the court revives a conviction of sexual assault that was based upon the same sexual act and was conditionally dismissed by the military judge prior to the sentencing phase of the court-martial (as an unreasonable multiplication of charges).