Concerns: Sufficient basis for court to base its judgment and protect against double prosecution
- Concerns: Sufficient basis for court to base its judgment and protect against double prosecution.
- Divers occasions.
- United States v. Walters , 58 M.J. 391 (C.A.A.F. 2003). Appellant charged with drug use on divers occasions. The evidence put on by the government alleged six separate periods. The panel returned a finding by exceptions and substitutions (excepting the words “divers occasions” and substituting the words “one occasion”), but did not specify the time frame. The CAAF held that the findings were ambiguous, setting aside the findings and sentence. The court noted that where a specification alleges acts on divers occasions, the members must be instructed that any findings by exceptions and substitutions must reflect the specific instance of conduct on which the modified findings are made.
- United States v. Wilson , 67 M.J. 423 (C.A.A.F. 2009). Appellant charged with rapeof a child on divers occasion. The testimony of the victim, and a sworn statement of the appellant admitted at trial, indicated that there were two possible occasions when a rape may have occurred. The military judge found the appellant guilty, excepting the words “on divers occasions,” but did not indicate which occasion was the basis for the single rape conviction. The CAAF held that a court of criminal appeals did even have the authority to review the cases because the findings where ambiguous – the appeals court would not know which occasion the appellant was guilty of. The CAAF dismissed the rape charge with prejudice. The CAAF identified two methods to prevent such a drastic remedy in future cases. First, when “on divers occasions” is excepted out, the substituted findings must clearly identify which conduct served as a basis for the findings. Second, in a judge alone trial, a clear statement from the military judge on the record explaining which conduct formed the basis for the conviction.
- United States v. Trew , 68 M.J. 364 (C.A.A.F. 2010). Appellant charged withindecent acts on diverse occasions. Military judge finds him guilty of LIO of assault consummated by battery on a child under sixteen and excepts the words “divers occasions.” Trial counsel asks military judge to clarify if the guilty finding was for “divers occasions as charged or is that just for—for one event or—will you clarify that further for us? The military judge replied “[i]t is on the one occasion.” NMCCA found the findings “were not ambiguous when placed it in the context of the entire record.” CAAF reversed the NMCCA, stating that NMCCA’s “distinction between ‘evaluat[ing] evidence’ and ‘consider[ing] the record as a whole to clarify the meaning and intent of the “military judge’s words’ appears to be a distinction without a difference.” CAAF finds findings “ambiguous” and unreviewable, and dismissed the charges with prejudice.
- United States v. Ross , 68 M.J. 415 (C.A.A.F. 2010). Appellant found guilty bymilitary judge alone of possession of child pornography, excepting the words “on divers occasions.” CAAF holds findings are ambiguous and dismisses charge with prejudice. Even though possession of child pornography is a continuing offense and the words “on divers occasions” may be “surplusage,” on these facts they were not because the images were on three different media. Because the images could have been on more than one form of storage media, charging “on divers occasions” was appropriate, and excepting that language without identifying which media the child pornography was on created an ambiguous finding.
- United States v. Saxman , 69 M.J. 540 (N. M. Ct. Crim. App. 2010). Appellantcharged with possession of twenty-two child pornography videos on a computer. Appellant was convicted by officer members by exceptions and substitutions of possessing only four of the charged twenty-two videos. The announced finding did not specify which four videos formed the basis of the guilty finding. NMCCA applies the Walters and Wilson logic to these facts and dismisses charge with prejudice. Members’ finding meant the appellant was not guilty of possessing eighteen of the twenty-two videos. Without knowing exactly which eighteen videos were not child pornography, the findings are ambiguous.
- Divers occasions.