U.S. v. Rodriguez, 66 M.J. 201

Trial Stages: Merits: Findings

1. when members find an accused guilty of an “on divers occasions” specification, they need only determine that the accused committed two acts that satisfied the elements of the crime as charged -- without specifying the acts, or how many acts, upon which the conviction was based
2. the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; the rule is based on the presumption that the verdict attaches to each of the several alternative theories charged; because the verdict attaches to all theories, the verdict may stand despite trial errors if any one of the counts is good and warrants the judgment

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. so long as the factfinder entered a general verdict of guilty to a “on divers occasions” specification without exception, any one of the individual acts may be affirmed by the CCA as part of its Article 66, UCMJ, review
2. the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; the rule is based on the presumption that the verdict attaches to each of the several alternative theories charged; because the verdict attaches to all theories, the verdict may stand despite trial errors if any one of the counts is good and warrants the judgment; the presumption is similarly applicable where an “on divers occasions” general verdict is modified on appeal to a single act

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

1. the CCA cannot review a conviction for factual sufficiency under Article 66, UCMJ, when appellant was charged with committing an illegal act “on divers occasions,” but was found guilty at trial by exceptions and substitutions to a single unspecified act; this rule applies only in those narrow circumstances involving the conversion of a “divers occasions” specification to a “one occasion” specification through exceptions and substitutions by the members
2. so long as the factfinder entered a general verdict of guilty to a “on divers occasions” specification without exception, any one of the individual acts may be affirmed by the CCA as part of its Article 66, UCMJ, review
3. the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; the rule is based on the presumption that the verdict attaches to each of the several alternative theories charged; because the verdict attaches to all theories, the verdict may stand despite trial errors if any one of the counts is good and warrants the judgment; the presumption is similarly applicable where an “on divers occasions” general verdict is modified on appeal to a single act
4. where the accused was found guilty of using marijuana on divers occasions by members, without exception, the CCA, in the course of conducting its legal and factual sufficiency review, could affirm the conviction with respect to a single act, after finding the evidence for the other acts was factually insufficient
5. where the evidence was factually insufficient as to two of the three acts of marijuana use, the charge could nevertheless be sustained on appeal as to the third marijuana use; because that single use affirmed by the CCA no longer constituted an “on divers occasions” offense, the lower court necessarily reconstituted appellant’s charge as a single use and reassessed his sentence; the action by the CCA in this case is no different than if appellant had been charged with the three acts in question in the conjunctive, a general verdict had been returned, and the CCA found two of the acts to be unsupported by the facts adduced at trial; when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; where factually insufficient alternatives were removed on appeal, the conviction may nonetheless be sustained; an unadulterated, unobjected-to, general verdict implicitly contains a verdict of guilt as to each underlying act, and the CCA did not err in exercising its factual and legal review pursuant to Article 66, UCMJ
6. a general verdict on an “on divers occasions” charge can be changed into a single act on appeal when the general verdict was reached without exception by the factfinder; it makes no difference how many members chose one act or the other, one theory of liability or the other; the only condition is that there be evidence sufficient to justify a finding of guilty on any theory of liability submitted to the members

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

1. whether a CCA can affirm a conviction for a single act after determining that the evidence is factually insufficient to support the “on divers occasions” general verdict returned by the factfinder at trial is a question of law that the CAAF reviews de novo