U.S. v. Augspurger, 61 M.J. 189

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge should ensure that the members’ findings, as announced, are clear as to the factual basis for an offense; first, the military judge should properly instruct the members that if they except the “divers occasion” language from a specification, they need to make clear which allegation was the basis for their guilty finding; second, after the military judge examines the findings worksheet but prior to announcement, the military judge should ask the members to clarify any ambiguous findings; once the findings of a court-martial have been announced, any finding that amounts to a finding of not guilty is not subject to reconsideration or a post-trial session such as a proceeding in revision
2. it is the responsibility of military judges to ensure that any ambiguities in findings are clarified before the findings are announced, and if they fail to do so, the appellate courts cannot rectify that error

Military Justice Personnel: Military Judge: Instructions

1. the military judge should properly instruct the members that if they except the “divers occasion” language from a specification, they need to make clear which allegation was the basis for their guilty finding

Trial Stages: Merits: Instructions › Divers occasions

1. the military judge should properly instruct the members that if they except the “divers occasion” language from a specification, they need to make clear which allegation was the basis for their guilty finding

Trial Stages: Merits: Findings

1. when a servicemember is charged with illegal conduct “on divers occasions” and the members find the accused guilty of charged conduct but strike out the “on divers occasions” language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions
2. the military judge should ensure that the members’ findings, as announced, are clear as to the factual basis for an offense; first, the military judge should properly instruct the members that if they except the “divers occasion” language from a specification, they need to make clear which allegation was the basis for their guilty finding; second, after the military judge examines the findings worksheet but prior to announcement, the military judge should ask the members to clarify any ambiguous findings; once the findings of a court-martial have been announced, any finding that amounts to a finding of not guilty is not subject to reconsideration or a post-trial session such as a proceeding in revision
3. it is the responsibility of military judges to ensure that any ambiguities in findings are clarified before the findings are announced, and if they fail to do so, the appellate courts cannot rectify that error

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a Court of Criminal Appeals cannot find as fact any allegation in a specification for which the factfinder below has found the accused not guilty

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. when a servicemember is charged with illegal conduct “on divers occasions” and the members find the accused guilty of charged conduct but strike out the “on divers occasions” language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; where the findings do not disclose the single occasion on which the conviction is based, the Court of Criminal Appeals cannot conduct a factual sufficiency review or affirm the findings because it cannot determine which occasion the servicemember was convicted of and which occasion the servicemember was acquitted of
2. a Court of Criminal Appeals cannot find as fact any allegation in a specification for which the factfinder below has found the accused not guilty
3. where the accused was charged with wrongfully using marijuana “on divers occasions,” and the members found him guilty of only a single use, and not guilty of use “on divers occasions,” without indicating which of three alleged uses formed the basis of its finding, the Court of Criminal Appeals did not have the authority to review and affirm the accused’s conviction for drug use by selecting the occasion that formed the basis for the conviction and then reviewing that conclusion for factual sufficiency; that court could not conduct a factual sufficiency review of appellant’s conviction because the military judge failed to clarify the factual basis upon which the members’ findings of guilty and not guilty were based; there was simply no indication by the members as to the factual basis for their findings and, in fact, the inability to determine the basis for the findings was reflected in the record; after the findings were announced, each party held a different view of the basis for the findings; even the military judge was uncertain