U.S. v. Ross, 68 M.J. 415

Trial Stages: Merits: Findings

1. a clear record as to the occasion for which an accused is found guilty is necessary when the words “on divers occasions” are excepted from findings
2. when the phrase “on divers occasions” is included in the charged specification but removed from the findings, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions
3. where appellant was charged with possession of child pornography on divers occasions during a particular time period and the military judge excepted from the specification the words “on divers occasions” without further explanation, the findings were ambiguous; although excepting those words without explanation created ambiguous findings, the government could nevertheless prevail if the evidence was legally insufficient to show that appellant was guilty of possession with respect to two of the three seized electronic storage media; under those circumstances, as a matter of law, the military judge could have found appellant guilty of possession with respect to only one of the media - in other words, the verdict would be unambiguous; but here, where the evidence was legally sufficient with respect to the presence of child pornography on two of the storage media, the fact remains that an appellate court could not know what the military judge found appellant guilty and not guilty of, or indeed whether he found appellant not guilty of anything at all; under these circumstances, a proceeding in revision is not permitted, and dismissal of the charge and its specification with prejudice is required

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

1. if the record does not indicate which of the alleged incidents forms the basis of the conviction, the resulting ambiguous findings, along with double-jeopardy principles, bar the CCA from performing its usual factual-sufficiency review
2. where appellant was charged with possession of child pornography on divers occasions during a particular time period and the military judge excepted from the specification the words “on divers occasions” without further explanation, the findings were ambiguous; although excepting those words without explanation created ambiguous findings, the government could nevertheless prevail if the evidence was legally insufficient to show that appellant was guilty of possession with respect to two of the three seized electronic storage media; under those circumstances, as a matter of law, the military judge could have found appellant guilty of possession with respect to only one of the media - in other words, the verdict would be unambiguous; but here, where the evidence was legally sufficient with respect to the presence of child pornography on two of the storage media, the fact remains that an appellate court could not know what the military judge found appellant guilty and not guilty of, or indeed whether he found appellant not guilty of anything at all; under these circumstances, a proceeding in revision is not permitted, and dismissal of the charge and its specification with prejudice is required

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

1. whether a verdict is ambiguous and thus precludes a CCA from performing a factual-sufficiency review is a question of law reviewed by the Court of Appeals for the Armed Forces de novo