U.S. v. Rosario, 76 M.J. 114

Military Justice Personnel: Military Judge: Instructions

1. it is not plain error for a military judge to instruct panel members, without objection, that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty

Trial Stages: Merits: Instructions › Generally

1. it is not plain error for a military judge to instruct panel members, without objection, that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty

Trial Stages: Merits: Findings

1. the members are permitted to independently consider evidence supporting a charge of which an appellant is acquitted while deliberating on other charges

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in contrast to most civilian appellate courts, courts of criminal appeals have a statutory mandate to conduct a de novo review of both the legal and factual sufficiency of a conviction
2. when the same evidence is offered at trial to support two different offenses, a court of criminal appeals is not necessarily precluded from considering the evidence that was introduced in support of the charge for which the appellant was acquitted when conducting its Article 66(c), UCMJ, legal and factual sufficiency review of the charge for which the appellant was convicted; appellants are generally acquitted of offenses, not of specific facts, and thus to the extent facts form the basis for other offenses, they remain permissible for appellate review

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

1. in contrast to most civilian appellate courts, courts of criminal appeals have a statutory mandate to conduct a de novo review of both the legal and factual sufficiency of a conviction
2. the test for a factual sufficiency review by the lower courts is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant’s guilt beyond a reasonable doubt
3. a court of criminal appeals cannot find as fact any allegations of which the accused was found not guilty at trial
4. a reviewing court may consider facts underlying an acquitted charge in considering whether the facts support a separate charge
5. when the same evidence is offered at trial to support two different offenses, a court of criminal appeals is not necessarily precluded from considering the evidence that was introduced in support of the charge for which the appellant was acquitted when conducting its Article 66(c), UCMJ, legal and factual sufficiency review of the charge for which the appellant was convicted; appellants are generally acquitted of offenses, not of specific facts, and thus to the extent facts form the basis for other offenses, they remain permissible for appellate review
6. double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty; however, in the instant case, the consideration by the court of criminal appeals of facts underlying the assault and abusive sexual contact offenses of which appellant was acquitted in evaluating the sexual harassment offense of which he was convicted did not violate double jeopardy principles because the offenses and elements were, quite simply, not the same
7. a court of criminal appeals can independently consider evidence supporting an offense for which an appellant was acquitted in evaluating whether evidence supported a different offense of which an appellant was convicted
8. in this case, the court of criminal appeals properly considered facts relevant to the abusive sexual contact and assault consummated by battery specifications of which appellant was acquitted because those facts were also relevant to the sexual harassment specification of which he was convicted

Trial Stages: Appeals: Preservation of Error / Plain Error

1. it is not plain error for a military judge to instruct panel members, without objection, that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty

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

1. the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the appellate question for this legal sufficiency test is whether a reasonable factfinder reading the evidence one way could have found all the elements of the offense beyond a reasonable doubt
2. the test for a factual sufficiency review by the lower courts is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant’s guilt beyond a reasonable doubt