U.S. v. Brown, 65 M.J. 356

Military Justice Personnel: Military Judge: Instructions

1. the military judge did not err by instructing the court members that they could convict appellant of indecent assault as a lesser included offense of rape based on any one of three possible factual scenarios, without requiring the members to vote on each scenario and to disclose the factual basis of their findings; in this case, the military judge’s lesser-included-offense instruction identified the three different ways appellant could have indecently assaulted the victim at the time and place alleged, based on the evidence presented at trial and the parties’ theories of the case; and in the case of indecent acts, the elements require acts done with intent to gratify, and not the specification of particular acts or methods of gratification

Military Justice Personnel: Court Members: Generally

1. military criminal practice requires neither unanimous panel members, nor panel agreement on one theory of liability, as long as two-thirds of the panel members agree that the government has proven all the elements of the offense

Trial Stages: Merits: Instructions › Lesser-included offenses

1. the military judge did not err by instructing the court members that they could convict appellant of indecent assault as a lesser included offense of rape based on any one of three possible factual scenarios, without requiring the members to vote on each scenario and to disclose the factual basis of their findings; in this case, the military judge’s lesser-included-offense instruction identified the three different ways appellant could have indecently assaulted the victim at the time and place alleged, based on the evidence presented at trial and the parties’ theories of the case; and in the case of indecent acts, the elements require acts done with intent to gratify, and not the specification of particular acts or methods of gratification

Trial Stages: Merits: Findings

1. with minor exceptions for capital cases, a court-martial panel, like a civilian jury, returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to convict or acquit; in returning such a general verdict, a court-martial panel resolves the issue presented to it: did the accused commit the offense charged, or a valid lesser included offense, beyond a reasonable doubt; a factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt
2. military criminal practice requires neither unanimous panel members, nor panel agreement on one theory of liability, as long as two-thirds of the panel members agree that the government has proven all the elements of the offense

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a military judge properly instructed court members is a question of law, which an appellate court reviews de novo