In Brown, the military judge (the universally respected Chief Judge Vowell) “instructed the members on rape” and three lesser included offenses including indecent assault. “She instructed the members that to find Appellant guilty of indecent assault, they could find he did so ‘by inserting his fingers and penis, or fingers, or penis into [PFC NB’s] vagina.'” United States v. Brown, __ M.J. ___, No. 07-0286, slip op. at 5 (C.A.A.F. Nov. 30, 2007). The members found Staff Sergeant Brown not guilty of rape but convicted him of the lesser included offense of indecent assault. The issue before CAAF in Brown was whether “the military judge erred by instructing the members that Appellant could be convicted of indecent assault based on any one of three factual scenarios, without requiring the members to vote on each scenario and to disclose the factual basis of their findings.” Id., slip op. at 5-6.
CAAF definitively and unanimously answers, No. Judge Stucky’s opinion for the Court reasoned:
With minor exceptions for capital cases, a “court-martial panel, like a civilian jury, returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to convict or acquit.” United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997). In returning such a general verdict, a court-martial panel resolves the issue presented to it: did the accused commit the offense charged, or a valid lesser included offense, beyond a reasonable doubt? A factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt. Griffin v. United States, 502 U.S. 46, 49-51 (1991); Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality opinion) (“We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.”).
Id., slip op. at 9-10.
As Judge Mathews the Greatest indicates in his comment to the post below, it’s hard to argue with that conclusion.