U.S. v. Trew, 68 M.J. 364

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in a judge-alone case, a military judge can clarify an ambiguity in the findings by making a clear statement on the record as to which alleged incident formed the basis of the conviction
2. in this case, the government charged the accused with indecent acts on “divers occasions,” introduced evidence of more than one occasion, and argued in both opening and closing statements that at least two incidents had occurred; when the military judge clarified that her guilty findings to the LIO of assault consummated by a battery on a child under 16 years were for “one occasion,” she should have made a clear statement on the record as to which alleged incident formed the basis of the conviction; the military judge’s failure to do so resulted in fatally ambiguous finding

Military Justice Personnel: Military Judge: Instructions

1. where a specification alleges wrongful acts on “divers occasions,” the members must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based; that 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

Trial Stages: Merits: Instructions › Divers occasions

1. where a specification alleges wrongful acts on “divers occasions,” the members must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based; that 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

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
2. a finding on the guilt or innocence of the accused is not final until it is formally and correctly announced in open court; the general findings of a court-martial state whether the accused is guilty of each offense charged; one or more words or figures may be excepted from a specification, and, when necessary, others substituted, if the remaining language of the specification, with or without substitutions, states an offense by the accused which is punishable by court-martial; if an error was made in the announcement of the findings of the court-martial, the error may be corrected by a new announcement in accordance with RCM 922; the error must be discovered and the new announcement made before the final adjournment of the court-martial in the case; 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
3. a military judge’s findings of guilty to the LIO of assault consummated by a battery on a child under 16 years, when initially announced, did not reference the charged “divers occasions” language in the specification; however, trial counsel immediately asked for a clarification of those findings with regard to the divers occasions language; when the military judge responded that it was “on the one occasion,” she made clear on the record that her findings as to the LIO were only applicable for one event, rather than multiple incidents as charged; under the facts of this case, a formal recitation of exceptions and substitutions was not necessary because of the military judge’s clarification immediately following her announcement of the findings; the clarification that it was “on the one occasion,” amounted to a correction of the announcement of the findings as permitted by RCM 922
4. where a specification alleges wrongful acts on “divers occasions,” the members must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based; that 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
5. in a judge-alone case, a military judge can clarify an ambiguity in the findings by making a clear statement on the record as to which alleged incident formed the basis of the conviction
6. in this case, the government charged the accused with indecent acts on “divers occasions,” introduced evidence of more than one occasion, and argued in both opening and closing statements that at least two incidents had occurred; when the military judge clarified that her guilty findings to the LIO of assault consummated by a battery on a child under 16 years were for “one occasion,” she should have made a clear statement on the record as to which alleged incident formed the basis of the conviction; the military judge’s failure to do so resulted in fatally ambiguous finding

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. where the findings remove the “on divers occasions” language from a specification but do not disclose the single occasion on which a 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 acquitted of; double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty; 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 for the conviction; however, a court of criminal appeals may review the record to determine if there was only a single possible incident that met all the details of the specification for which an appellant was convicted

Trial Stages: Appeals: Remedies › Generally

1. in this case, the fatally ambiguous findings, caused when the military judge changed the “divers occasions” language to “one occasion” without clarification, created the possibility that the reviewing court would affirm a finding of guilty based on an incident of which the appellant had been acquitted by the factfinder at trial; RCM 1102(c)(1) plainly prohibits post-trial sessions for reconsideration of a finding of not guilty to any specification, or a ruling which amounts to a finding of not guilty; the military judge’s ambiguous findings amounted to a not guilty finding on one of the instances raised by the “divers occasions” charge; thus, a post-trial session to recast the language of the military judge would amount to a reassessment of a not guilty verdict in violation of double jeopardy; the appropriate remedy is to set aside the findings and dismiss the charges with prejudice