U.S. v. Wilson, 67 M.J. 423

First Principles: Constitutional Matters: Double Jeopardy

1. double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty

Trial Stages: Merits: Findings

1. when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; if there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the court of criminal appeals cannot perform a factual sufficiency review
2. where the military judge found appellant guilty of the specification of rape after multiple incidents of rape were charged in that specification and presented at trial, and where the military judge excepted the words “on divers occasions” from the specification in her findings, she was required to indicate the single incident for which she convicted appellant; because the record did not contain either substituted language or a statement on the record that would identify the specific incident for which the military judge convicted appellant, without such clarification, the findings were fatally ambiguous
3. clarification of ambiguous findings can generally be accomplished through reference in the substituted language to a relevant date or other facts in evidence that will clearly put the accused and the reviewing courts on notice of what conduct served as the basis for the findings; in addition, in the context of a judge-alone trial, clarification of the ambiguity can be accomplished by a clear statement on the record by the military judge as to which alleged incident formed the basis of the conviction

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

1. when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; if there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the court of criminal appeals cannot perform a factual sufficiency review
2. an ambiguous determination of guilt precludes a court of criminal appeals from performing a factual sufficiency analysis; the court may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial
3. when the phrase “on divers occasions” is removed from a specification, and there is no indication on the record which of the alleged incidents forms the basis of the conviction, the courts of criminal appeals may not perform an independent review of the record to determine which of the possible incidents most likely formed the basis of the conviction; ambiguous findings preclude any attempt by the lower courts to distinguish incidents that resulted in acquittal from the single incident that resulted in a conviction
4. when the phrase “on divers occasions” is removed from a specification, a court of criminal appeals may review the record to determine if there is only a single possible incident that meets all the details of the specification for which the appellant was convicted
5. where the government presented evidence of multiple incidents of rape that occurred during a lengthy time frame and in the general location stated in a rape specification, where the military judge found appellant guilty of the rape specification, excepting the words “on divers occasion,” where two alleged rape incidents occurred within the remaining language of the specification after the removal of the divers occasion language, where the military judge did not indicate on the record or through substitutions to the specification which alleged rape incident she was convicting appellant of, and where neither party asked for clarification as to which allege rape incident formed the basis of the conviction, the court of criminal appeals was not in a position as a matter of law to determine which of the two alleged incidents served as the grounds for appellant’s conviction without explicit guidance on the record from the military judge, and thus, it was precluded from performing a factual sufficiency review

Trial Stages: Appeals: Remedies › Generally

1. the remedy for a Walters violation, where the phrase “on divers occasions” is removed from a specification and there is no indication on the record which of the alleged incidents forms the basis of the conviction, is to set aside the finding of guilty to the affected specification and dismiss it with prejudice