In United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), the appellant was charged with wrongful use of ecstasy of divers occasions, but was convicted by exceptions and substitutions of wrongful use on only one occasion. But the members did not specify which occasion formed the basis for the conviction. CAAF determined that this created an ambiguous finding.
The NMCCA faced a similar issue in United States v. Tinsley, No. 201600083 (N-M. Ct. Crim. App. Jul. 6, 2017) (link to slip op.). Sergeant (E-5) Tinsley was charged with numerous offenses including larceny of “33 pieces of working dog gear from the United States on divers occasions between 25 January 2013 and 30 June 2014.” Slip op. at 8. Those items included “two kennels.” Slip op. at 8 n.10. The members, however, convicted Tinsley of larceny of only one kennel, and they didn’t specify which of the two kennels was stolen. So, on appeal:
The appellant argues the members’ substitution of “one kennel” and lack of clarification from the military judge regarding whether he was convicted of stealing the kennel found at his residence or the kennel found in his in-laws’ home violates double jeopardy principles, renders impossible our ability to determine which kennel the appellant was convicted of stealing, and precludes our ability to conduct a factual sufficiency review regarding that specific language in Specification 1 of the Charge.
Slip op. at 8. The majority of a three-judge panel disagrees. Writing for the majority, Chief Judge Glaser-Allen rejects application of Walters (finding that it only applies in cases where divers occasions is narrowed to one occasion) and also finds that:
That the members excepted “two kennels” while substituting “one kennel” is of little concern given the facts of this case and the nature of a general verdict, because the members still convicted the appellant of stealing multiple items on divers occasions (between 25 January 2013 and 30 June 2014) in the specification. An acquittal of an offense is not a general repudiation of all the underlying facts related to that offense. Because we find there was enough evidence to sustain convictions to either kennel, we are unconvinced this case requires “greater specificity in the findings . . . to determine which act survives the verdict for appellate review.” Thus, we are satisfied that jeopardy attached for the entire charged time period and the exception and substitution from “two kennels” to “one kennel” does not render the verdict ambiguous.
Slip op. at 9.
Senior Judge Marks dissents from this part of the decision, and believes that the findings regarding the kennel are ambiguous, because “the distinction between ‘occasion’ or ‘incident’ in Walters and ‘kennel’ in this case is semantics.” Slip op. at 12. Senior Judge Marks would set aside the conviction of larceny of the kennel but otherwise approve the findings and sentence.