Variance. Benchbook, paras. 7-15 and 7-16
This instruction should be given if the evidence indicates that the offense occurredbut the time, place, amount, etc. is different than that charged.
- United States v. Walters , 58 M.J. 391 (C.A.A.F. 2003). The appellant was tried for wrongful use of ecstasy on “divers occasions.” The government presented evidence of six uses, and after being instructed on variance, the panel found him guilty of use on “one occasion.” The court reversed, holding that where a specification alleges wrongful acts on “divers occasions,” any findings by exceptions and substitutions that remove the “divers occasions” language must specify the particular instances of conduct upon which the findings are based.
- See also United States v. Seider , 60 M.J. 36 (C.A.A.F. 2004) (citing Walters and holding that the lower court could not conduct an Art. 66 review when the members excepted the words “divers occasions” from their findings and did not indicate which of the two instances the accused was guilty); United States v. Augspurger 61 M.J. 189 (C.A.A.F. 2005).
- However, a factfinder may enter a general verdict of guilt even when the chargecould have been committed by two or more means, as long as the evidence supports at least one of those means beyond a reasonable doubt. United States v. Brown , 65 M.J. 356 (C.A.A.F. 2007); United States v. Hardy , 46 M.J. 67, 73 (C.A.A.F. 1997)