U.S. v. Riley, 50 M.J. 410

First Principles: Constitutional Matters: Due Process

1. for an appellate court to affirm an included offense on a theory not presented to the trier of fact violates an accused’s due process right to be heard on the specific charges of which he or she is accused

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. where the Courts of Criminal Appeals exercise their unique fact-finding power and set aside a finding of guilty as incorrect in fact, as opposed to incorrect in law, that decision is virtually unreviewable by the Court of Appeals for the Armed Forces. See Article 67(c), UCMJ.

Trial Stages: Appeals: Law of the Case

1. where Court of Criminal Appeals found evidence factually insufficient to support conviction of unpremeditated murder, lesser offenses relying on theory of culpability not presented to the trier of fact may not be affirmed as a matter of due process

Trial Stages: Appeals: Scope of Review

1. appellate courts have authority to set aside a finding of guilty and affirm only a finding of a lesser-included offense, but it may not affirm an included offense on a theory not presented to the trier of fact