                         UNITED STATES, Appellee

                                         v.

                   James D. WILSON, Staff Sergeant
                         U.S. Army, Appellant

                                  No. 09-0010
                         Crim. App. No. 20061187

       United States Court of Appeals for the Armed Forces

                          Argued April 27, 2009

                          Decided June 18, 2009

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, and RYAN, JJ., joined. STUCKY, J., filed a
dissenting opinion.

                                     Counsel


For Appellant: Captain Pamela Perillo (argued); Lieutenant
Colonel Mark Tellitocci, Lieutenant Colonel Matthew M. Miller,
and Major Grace M. Gallagher (on brief).


For Appellee: Captain Sarah J. Rykowski (argued); Colonel
Denise R. Lind, Lieutenant Colonel Mark H. Sydenham, and Captain
Philip M. Staten (on brief).


Military Judge:    Donna M. Wright


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wilson, No. 09-0010/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    The charges referred to Appellant’s general court-martial

alleged a variety of offenses concerning abuse of his

stepdaughter, RC.   The charged offenses included making a false

official statement, rape of a child (two specifications), sodomy

with a child, and indecent act with a child (two

specifications), in violation of Articles 107, 120, 125, and 134

of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

907, 920, 925, 934 (2000).   The military judge dismissed the

sodomy and indecent acts charges based upon the statute of

limitations.   The prosecution elected to not present evidence on

one of the rape specifications, leading to a finding of not

guilty on that specification.   The military judge, sitting as a

general court-martial, convicted Appellant, contrary to his

pleas, of making a false official statement and of the remaining

rape specification.

    The military judge sentenced Appellant to reduction to pay

grade E-1, confinement for eleven years, and a dishonorable

discharge.   The convening authority approved the adjudged

sentence and waived the automatic forfeitures for six months.

     The present appeal concerns the rape conviction.   The

offense, as charged, read as follows:

     In that [Appellant], did, at or near Colorado Springs,
     Colorado, on divers occasions between on or about 15
     February 1996 and on or about 1 March 1998, rape [RC], a


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United States v. Wilson, No. 09-0010/AR


     person under the age of 12.

The military judge concluded that the offense consisted of a

single incident, and struck out the phrase “on divers occasions”

from the findings.   In so doing, the military judge convicted

Appellant of a single rape, while acquitting Appellant of

multiple incidents of rape.

     The United States Army Court of Criminal Appeals affirmed.

United States v. Wilson, No. ARMY 20061187 (A. Ct. Crim. App.

Aug. 27, 2008) (unpublished).   On Appellant’s petition, we

granted review of the following issue:


     WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
     IN AFFIRMING APPELLANT’S CONVICTION FOR RAPE WHEN
     THE MILITARY JUDGE EXCEPTED “ON DIVERS OCCASIONS”
     FROM THE SPECIFICATION AND DID NOT SPECIFY THE
     SINGLE OCCASION AS PART OF THE FINDING, BUT THE
     VICTIM ONLY TESTIFIED TO A SINGLE OCCURRENCE AND
     THE PARTIES ONLY ARGUED THIS SINGLE OCCASION TO
     THE MILITARY JUDGE.


For the reasons set forth below, we conclude that the military

judge erred under the circumstances of this case by not

identifying the single occasion that formed the basis for the

conviction.




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United States v. Wilson, No. 09-0010/AR


                                I.   BACKGROUND

              A.    THE CHARGE: MULTIPLE INCIDENTS OF RAPE
                      OVER AN EXTENDED PERIOD OF TIME

        The convening authority had a number of options with

respect to the offense at issue, including referring a single

specification alleging a single incident of rape; referring

multiple specifications alleging different incidents of rape; or

referring a single specification alleging multiple incidents of

rape.    In choosing the last option, a single specification

covering multiple incidents, the convening authority referred

for trial an allegation that the rapes occurred “on divers

occasions” over a lengthy period of time -- “between on or about

15 February 1996 and on or about 1 March 1998.”


                   B.   THE PROSECUTION’S OPENING STATEMENT

        Trial counsel made a very brief opening statement in which

he underscored the prosecution’s primary reliance on two sources

of evidence about alleged acts.         First, he referred to the

anticipated testimony from the victim, RC, and her difficulty in

recalling specific dates.        He noted that RC would describe a

specific incident of rape on Appellant’s bed and “other

incidents.”    Second, trial counsel stated that the prosecution

would present evidence “about these acts from the mouth of the

accused through” statements he provided to law enforcement

officials.    According to trial counsel, Appellant’s pretrial


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United States v. Wilson, No. 09-0010/AR


statements would “clarify the critical details of [RC’s]

recollection of those events.”


 C.    EVIDENCE OF THE INCIDENTS FROM THE TESTIMONY OF THE VICTIM
              AND FROM APPELLANT’S PRETRIAL ADMISSIONS

1.     Testimony of the victim

       RC testified at the court-martial regarding the incidents

she could remember.   These incidents occurred approximately ten

years before the court-martial, when RC was five to seven years

old.   When asked if she understood at the time what had occurred

during the incidents, she said:   “I didn’t know what was

happening.   I knew that it was what he told me to do and that I

didn’t like it at all.”

       RC described one incident in which Appellant “did penetrate

me” in a bedroom of their Colorado Springs home.   RC recounted a

number of details including the following:   Appellant placed her

in a bent position and approached her from behind; the act took

place on the floor; the penetration was painful; she asked for

her teddy bear for comfort during the act but Appellant refused

to give it to her; and that, following the act, Appellant told

her not to tell anyone what had happened.

       In addition to the incident in the bedroom, RC testified

about other incidents, including some that occurred in the

bathroom of their home in Colorado Spring, Colorado.   RC

recalled using an old, pink washcloth to clean herself up after


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United States v. Wilson, No. 09-0010/AR


one incident in the bathroom.   She also testified that Appellant

would instruct her on how to perform oral sex on him, and that

Appellant would rub his penis against her vagina.

     In response to trial counsel’s questions, she testified

that there were seven such incidents, that “actual penetration”

occurred once, and that the other incidents involved oral sex

and touching and rubbing his penis on her vagina.   When trial

counsel asked if she could recall “if he penetrated you a little

bit” in those incidents, she said:   “I don’t recall.   I’m pretty

sure it would have hurt as much as it hurt that one time.”

2.   Appellant’s Sworn Pretrial Statement

     The prosecution introduced into evidence a sworn statement

made by Appellant during the course of the pretrial

investigation.   In this sworn statement, Appellant admitted to

penetrating RC during one occasion in the bathroom of their

Colorado Springs home.

     Appellant also described incidents involving RC while

stationed both at Fort Bliss, Texas, and at Fort Carson,

Colorado, including occasions in which he would rub his penis

against RC’s vagina as she sat on the counter in the bathroom.

During one such incident, Appellant recalled that RC had said,

“Ouch, that hurts.”   Upon further questioning by the

investigating officer, Appellant answered “Yes” to the question,

“Did your penis ever enter in between [RC’s] external labia?”


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United States v. Wilson, No. 09-0010/AR


     Appellant denied any incidents of sexual contact with RC

apart from those he specifically described in his statement.

Appellant’s admissions were corroborated by RC’s testimony in a

number of respects, including the sexual activity in the

bathroom in which his penis touched her vagina, Appellant’s

instructions to her regarding oral sex, and RC’s use of a

washcloth to clean up after one of the incidents.


                     D.   CLOSING STATEMENTS

1.   Trial Counsel’s Closing Statement

     Trial counsel recounted RC’s detailed description of the

bedroom rape and focused on the impact of the event on RC.      He

also argued that Appellant’s sworn statement corroborated RC’s

testimony that Appellant penetrated her in their Colorado

Springs home.

2.   Defense Counsel’s Closing Statement

     Defense counsel’s closing statement focused on whether the

facts alleged in Appellant’s admission and RC’s testimony

satisfied the legal definition of rape.    He argued that the

Government failed to produce evidence of Appellant’s guilt

beyond a reasonable doubt.   Defense counsel further argued that,

even if the Government had met its burden of proof, “it is very

clear that this [court-martial] only pertains to one incident,

not on divers occasions as alleged in the charge.”   Defense



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United States v. Wilson, No. 09-0010/AR


counsel did not state on the record which of the alleged

incidents -- the incident in the bedroom or the incident in the

bathroom -- formed the basis for his contention that there was

only one incident at issue in the court-martial.

3.   Trial Counsel’s Rebuttal

     In rebuttal, trial counsel stated that Appellant’s sworn

statement corroborated RC’s testimony as to everything that

occurred.   He also argued that Appellant’s sworn statement

contained an admission to rape which satisfied the legal

definition of that offense.   Finally, trial counsel argued that

RC’s testimony about the bedroom incident was sufficient to

corroborate Appellant’s admission that he raped RC in the

bathroom.   He reasoned that RC’s testimony that she said words

to the effect of “[o]uch.   That hurts,” during the bedroom rape

incident was consistent with, and therefore corroborated by,

Appellant’s statement that RC said similar words during the

bathroom incident.    Trial counsel concluded by asking the court

to enter a finding of guilty for Specification 2 of Charge II as

written.


                 E.   THE MILITARY JUDGE’S FINDINGS

     Immediately after trial counsel finished his rebuttal

argument, the following exchange took place between trial

counsel and the military judge:



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United States v. Wilson, No. 09-0010/AR


     MJ:    You would agree that, at most, it [sic] would be
            guilty except the words “on divers occasions”?

     TC:    Yes, Your Honor.   The government would agree to that.

     Trial counsel appeared to abandon the Government’s view

regarding multiple incidents of rape, but neither the military

judge nor trial counsel identified which incident would form the

basis of Appellant’s conviction should the words “on divers

occasions” be excepted from the specification.     The parties had

a separate, detailed discussion about the appropriate lesser

included offense to be considered by the military judge during

her deliberations.

     The military judge found Appellant guilty of Specification

2 of Charge II, excepting the words “on divers occasions.”      The

military judge did not indicate on the record or through

substitutions to the specification the rape incident of which

she was convicting Appellant.     Neither party asked for

clarification as to which alleged rape incident formed the basis

of the conviction.


           F.   THE DECISION OF THE COURT OF CRIMINAL APPEALS

     The Court of Criminal Appeals issued a one-paragraph, per

curiam opinion affirming the findings of guilty and the sentence

as approved by the convening authority.     Wilson, No. ARMY

20061187, slip op. at 1.     The opinion also contained the

following footnote:


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United States v. Wilson, No. 09-0010/AR

     The findings unquestionably disclose the single
     occasion on which the conviction is based. We are
     able to conduct a factual sufficiency review and
     affirm the findings because we can confidently, and
     without any doubt, determine which occasion the
     appellant was convicted of and for which occasion he
     was acquitted. See generally U.S. v. Scheurer, 62
     M.J. 100, 110-112 (C.A.A.F. 2005) (The court
     determined that when the findings provide sufficient
     certainty to establish which of the charged divers
     occasions provide the basis for the conviction, there
     is sufficient basis for factual sufficiency review by
     the appellate courts.) The victim in this case
     unequivocally testified that she was raped on only one
     occasion, and the parties accordingly shaped their
     closing arguments to address the only assertion of
     rape described by the victim. Thus, we find no
     ambiguity in the finding at issue.

Id. at 1-2 n.*.


                          II.   DISCUSSION

     On appeal, Appellant contends that the Court of Criminal

Appeals erred in affirming his conviction because the military

judge’s findings were ambiguous as to which alleged incident

formed the basis of the conviction.   In that context, according

to Appellant, the lower court was precluded from performing a

factual sufficiency review.

     In response, the Government contends that the lower court

was not precluded from performing a factual sufficiency review

because evidence of only one alleged incident of rape was

presented at trial.   The Government also asserts that it was

clear from the record that all the parties understood which rape

incident formed the basis of Appellant’s conviction.


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United States v. Wilson, No. 09-0010/AR

   A.    EVIDENCE AT TRIAL CONCERNING MULTIPLE INCIDENTS OF RAPE

        In this case, the Government chose to charge Appellant with

raping RC at or near Colorado Springs “on divers occasions.”

The evidence was not presented as a single incident in which the

victim and perpetrator had different accounts.    From the

drafting of the charges through the prosecution’s closing

argument, the Government focused on multiple incidents of rape.

It presented evidence of two separate incidents -- one in the

bathroom and one in the bedroom.

        Appellant, through a sworn statement that was admitted into

evidence at trial, admitted to raping RC in the bathroom of

Appellant’s Colorado Springs home.     The testimony from RC

corroborated Appellant’s admission in many respects,

particularly her testimony that a sexual incident took place in

the bathroom in which his penis touched her vagina.    See

Military Rule of Evidence (M.R.E.) 304(g)(1) (noting that

corroborating evidence “need raise only an inference of the

truth of the essential facts admitted”).

        RC also testified in detail to a separate incident that

occurred in the bedroom of the Colorado Springs home.    Although

this was the only incident of rape that she could recall in

detail, her testimony -- covering events many years in the past

when she was quite young -- left open the possibility that

Appellant raped her on multiple occasions.    The details that she


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United States v. Wilson, No. 09-0010/AR

provided of other incidents in the bathroom corroborated

Appellant’s admission that he raped RC in the bathroom.

     Trial counsel explicitly referenced both RC’s testimony and

Appellant’s sworn statement during his opening and closing

statements.   He used RC’s testimony to support a theory of

multiple rapes.   Trial counsel discussed RC’s account of the

bedroom rape incident in detail, and he also used overlapping

similarities between Appellant’s admissions and RC’s testimony

regarding the other indecent acts Appellant performed to argue

that Appellant’s statements about the bathroom rape incident

were credible.


                  B.   THE FINDINGS WERE AMBIGUOUS

     As we noted in United States v. Augspurger, 61 M.J. 189,

190 (C.A.A.F. 2005), when the phrase “on divers occasions” is

removed from a specification, the effect is “that the accused

has been found guilty of misconduct on a single occasion and not

guilty of the remaining occasions.”   If there is no indication

on the record which of the alleged incidents forms the basis of

the conviction, then the findings of guilt are ambiguous and the

Court of Criminal Appeals cannot perform a factual sufficiency

review.   United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F.

2003).

     In the present case, the military judge found Appellant



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United States v. Wilson, No. 09-0010/AR

guilty of the specification of rape, but excepted the words “on

divers occasions.”   Because evidence of multiple incidents of

rape was presented at trial, the military judge was required to

indicate the single incident for which she convicted Appellant.

     Clarification of ambiguous findings “can generally be

accomplished through reference in the substituted language to a

relevant date or other facts in evidence that will clearly put

the accused and the reviewing courts on notice of what conduct

served as the basis for the findings.”    Walters, 58 M.J. at 396.

In addition, in the context of a judge-alone trial,

clarification of the ambiguity can be accomplished by a clear

statement on the record by the military judge as to which

alleged incident formed the basis of the conviction.   See United

States v. Dunn, 2006 CCA LEXIS 143, at *5, 2006 WL 1815975, at

*2 (N-M. Ct. Crim. App. June 30, 2006) (unpublished) (“[I]f the

intent of the military judge can be determined from the record,

the finding can be affirmed on appeal and the appellant is

afforded full protection against double jeopardy.”) (citation

omitted).

     Here, the record does not contain either substituted

language or a statement on the record that would identify

whether the military judge convicted Appellant of rape for the

bathroom incident or the bedroom incident.   Without such

clarification, the findings of the present case are fatally


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United States v. Wilson, No. 09-0010/AR

ambiguous.

     Double jeopardy principles prohibit a reviewing court from

rehearing any incidents for which the accused was found not

guilty.   Green v. United States, 355 U.S. 184, 187-88 (1957);

United States v. Scheurer, 62 M.J. 100, 112 (C.A.A.F. 2005).     An

ambiguous determination of guilt precludes a Court of Criminal

Appeals from performing a factual sufficiency analysis.

Walters, 58 M.J. at 396-97.   The court may not conduct a factual

sufficiency review when the findings are ambiguous because such

action creates the possibility that the court would affirm a

finding of guilt based on an incident of which the appellant had

been acquitted by the factfinder at trial.   Id. at 395.

     Similarly, the Courts of Criminal Appeals may not perform

an independent review of the record to determine which of the

possible incidents most likely formed the basis of the

conviction.    See generally Augspurger, 61 M.J. at 192-93

(holding that the Court of Criminal Appeals could not

independently conclude which occasion was the basis for the

conviction and then perform a factual sufficiency review of that

conclusion).   Ambiguous findings preclude any attempt by the

lower courts to “distinguish[] incidents that resulted in

acquittal from the single incident that resulted in a

conviction.”   Scheurer, 62 M.J. at 112.   “The defect is neither

a question of the legal or factual sufficiency of the evidence


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United States v. Wilson, No. 09-0010/AR

of one alleged use versus the other, nor is it a question to be

resolved by weighing the evidence and concluding that evidence

of one use is quantitatively or qualitatively inferior.”     United

States v. Seider, 60 M.J. 36, 38 n.* (C.A.A.F. 2004).

     The lower court in this case relied on Scheurer to reach

the conclusion that it was “able to conduct a factual

sufficiency review . . . because we can confidently, and without

any doubt, determine which occasion the appellant was convicted

of and for which occasion he was acquitted.”   Wilson, No. ARMY

20061187, slip op. at 1-2 n*.   Scheurer, however, does not stand

for the general proposition that when evidence of multiple

offenses has been presented at trial, the lower court may make

its own determination as to which of the multiple offenses

formed the basis of the factfinder’s unexplained decision to

replace a charge of multiple incidents with a finding of a

single incident.   See Scheurer, 62 M.J. at 111.   Rather,

Scheurer stands for the more limited proposition that a Court of

Criminal Appeals may review the record to determine if there is

only a single possible incident that meets all the details of

the specification for which the appellant was convicted.     Id. at

111-12.

     The present case is analogous to the circumstances

surrounding the dismissed specification in Scheurer.    Here, the

Government presented evidence of multiple incidents that


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United States v. Wilson, No. 09-0010/AR

occurred during the lengthy time frame and in the general

location stated in the specification.    Because both incidents

occurred within the remaining language of the specification

after removal of the phrase “on diverse occasions,” the Court of

Criminal Appeals was not in a position as a matter of law to

determine which of the two alleged incidents served as the

grounds for Appellant’s conviction without explicit guidance on

the record from the military judge.    See Augspurger, 61 M.J. at

192 (stating that the lower court “did not have the authority to

review and affirm [the appellant’s] conviction by selecting the

occasion that formed the basis for the conviction and then

reviewing that conclusion for factual sufficiency”).


               C.    REMEDIES FOR AMBIGUOUS FINDINGS

     “[T]he remedy for a Walters violation is to set aside the

finding of guilty to the affected specification and dismiss it

with prejudice.”    Scheurer, 62 M.J. at 112.   Accordingly, we set

aside the finding of guilty as to Specification 2 of Charge II

and dismiss that specification with prejudice.


                           III.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The finding of guilty of Specification 2

of Charge II and the sentence are set aside.    That specification

and charge are dismissed with prejudice.     The remaining finding


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United States v. Wilson, No. 09-0010/AR

of guilty is affirmed.   The record of trial is returned to the

Judge Advocate General of the Army.   A rehearing on sentence may

be ordered.




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United States v. Wilson, No. 09-0010/AR


     STUCKY, Judge (dissenting):

     In my opinion, the United States Army Court of Criminal

Appeals (CCA) did not err in affirming Appellant’s conviction

for the rape of his stepdaughter, RC, in the bedroom; therefore,

I respectfully dissent.

     In the written statement he provided to law enforcement

agents, Appellant described two incidents in the bathroom of the

family apartment in Colorado Springs, in which, among other

indecent acts, he rubbed his penis on RC’s vagina, masturbated,

and ejaculated.   With prodding from the interrogator, Appellant

made additional admissions:

     Q:   Did your penis enter her vagina, which caused her to
          make that statement [“Ouch, that hurts”]?

     A:   I do not know. She never stated that it did and
          honestly I don’t know.

     Q:   Did the head of your penis enter her vagina, meaning
          her external labia, and you then stopped before
          entering her vaginal canal when she stated that it
          hurt?

     A:   That could have happened, I remember her saying ouch,
          yes, that hurts, then I stopped. I can say that is a
          possibility.

     Q:   Do you understand what external labia means?

     A:   Yes.

     Q:   Do you understand what vaginal canal means?

     A:   Yes.

     Q:   Did your penis ever enter [RC]’s vaginal canal?
United States v. Wilson, No. 09-0010/AR


        A:     No.

        Q:     Did your penis ever enter in between Rene’s external
               labia?

        A:     Yes.

        RC testified that Appellant raped her.       “[H]e did take me

into my mother’s bedroom and he did penetrate me when I was,

like -- I don’t remember -- 5 or 6.”         “I remember going into the

bedroom and I remember being bent over in the doggy-style

position . . . .        I don’t quite remember what he said, but I

remember something hurt -- it hurt a lot.         And I said ‘Ow, that

hurts.       Stop.    Please stop.   Ow, that hurts.’”   She agreed with

the trial counsel that it was her vagina that hurt.          Although RC

remembers seven instances during which she was sexually

molested, she insisted that there was actual penetration only

once.    The military judge asked if she believed Appellant

penetrated her with his penis.         RC answered “yes.”

        Military Rule of Evidence (M.R.E.) 304(g) provides in

pertinent part:

        An admission or a confession of the accused may be
        considered as evidence against the accused on the
        question of guilt or innocence only if independent
        evidence, either direct or circumstantial, has been
        introduced that corroborates the essential facts
        admitted to justify sufficiently an inference of their
        truth. . . . If the independent evidence raises an
        inference of the truth of some but not all of the
        essential facts admitted, then the confession or
        admission may be considered as evidence against the
        accused only with respect to those essential facts



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United States v. Wilson, No. 09-0010/AR


     stated in the confession or admission that are
     corroborated by the independent evidence.

     The corroboration rule seems to contemplate two different

issues:   First, if objected to, the military judge must hold a

hearing to determine whether there is sufficient corroborating

evidence to admit the statement, M.R.E. 304(g)(2); second, the

trier of fact must consider the “amount and type of evidence

introduced as corroboration . . . in determining the weight, if

any, to be given to the admission or confession.”   M.R.E.

304(g)(1); see United States v. Duvall, 47 M.J. 189, 192

(C.A.A.F. 1997); 1 Stephen A. Saltzburg et al., Military Rules

of Evidence Manual § 304.02[7], at 3-102 (6th ed. 2006).

     There was no objection to the admission of Appellant’s

statement.   Therefore, the sole question for the military judge

was the weight to give to the admission that his penis entered

between RC’s external labia based on the evidence introduced as

corroboration.   If RC had testified only that she was sexually

molested in the bathroom, that alone would have been sufficient

for the military judge to give weight to Appellant’s admission

that, during the molestation, his penis entered RC’s external

labia.    Likewise, if RC had testified that she had been molested

in the bathroom and raped in the bedroom, without asserting that

it was the only time she was raped, then the evidence would have

been sufficient for the military judge to give weight to



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United States v. Wilson, No. 09-0010/AR


Appellant’s admission.   Under these scenarios, we would be

unable to tell which rape the military judge convicted Appellant

of committing.   But here, RC insisted that she was raped only

once and it occurred in the bedroom.

     “Military judges are presumed to know the law and follow it

absent clear evidence to the contrary.”   United States v.

Martinez, 65 M.J. 431 (C.A.A.F. 2007) (summary disposition)

(citing United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F.

2007) (a sentencing case)).   The military judge was confronted

with Appellant’s statement wherein he readily admitted

performing indecent acts and cunnilingus on RC and having her

perform fellatio on him, but only reluctantly admitted that his

penis entered RC’s external labia.   On the other hand, RC

insisted that there was only one rape and it occurred in the

bedroom.   Under these circumstances, the military judge could

not have inferred the truth of Appellant’s statement that he

placed his penis between RC’s external labia in the bathroom.

The military judge could have convicted Appellant only of the

rape in the bedroom.   Therefore, I would affirm the decision of

the CCA.




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