                       UNITED STATES, Appellee

                                    v.

           Daniel V. TREW, Machinist’s Mate First Class
                       U.S. Navy, Appellant

                              No. 09-0414

                       Crim. App. No. 200800250

       United States Court of Appeals for the Armed Forces

                       Argued December 7, 2009

                      Decided February 25, 2010

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER and RYAN, JJ., joined. STUCKY, J.,
filed a separate opinion concurring in the result.

                                 Counsel


For Appellant: Lieutenant Brian D. Korn, JAGC, USN (argued);
Captain S. Babu Kaza, USMC.

For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Brian K. Keller, Esq. (on brief); Major Elizabeth A.
Harvey, USMC.

Military Judge:   Patricia J. Battin


       This opinion is subject to revision before final publication.
United States v. Trew, No. 09-0414/NA

     Judge ERDMANN delivered the opinion of the court.

     Machinist’s Mate First Class Daniel V. Trew was charged

with committing indecent acts on a female under sixteen years of

age on divers occasions.   At a contested general court-martial,

he was convicted by a military judge of the lesser included

offense of assault consummated by a battery upon a child under

sixteen years of age.   Trew was sentenced to eighteen months

confinement and a bad-conduct discharge.   The convening

authority approved the sentence and the United States Navy-

Marine Corps Court of Criminal Appeals affirmed the findings and

sentence.   United States v. Trew, 67 M.J. 603, 606 (N-M. Ct.

Crim. App. 2008).

     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.”   United States v. Augspurger, 61 M.J. 189,

190 (C.A.A.F. 2005).    “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).”   United States v. Wilson 67 M.J. 423, 428 (C.A.A.F.

2009).




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United States v. Trew, No. 09-0414/NA

        We granted review in this case to determine whether the

military judge’s clarification immediately following the

announcement of the findings resulted in an ambiguous finding,

and if so, whether the charge must be dismissed under United

States v. Walters and its progeny.1    We hold that the findings of

the military judge were ambiguous and therefore the lower court

could not conduct a proper appellate review under Article 66,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006).2

                              Background

        The charges against Trew arose out of allegations made by

his stepdaughter, KT.    KT testified that she awoke at about four

or five in the morning on September 26, 2006, to find Trew

touching “the bottom of my butt, near my leg.”    KT testified

that Trew was rubbing her legs, the inside of her thigh, and her

butt.    KT said that she knew it was Trew because she looked at


1
    We granted the following issue:

        Whether, in light of United States v. Walters, 58 M.J.
        391 (C.A.A.F. 2003) and United States v. Seider, 60
        M.J. 36 (C.A.A.F. 2004), the charge and specification
        must be dismissed with prejudice, because the lower
        court could not conduct a proper appellate review
        under Article 66 and double jeopardy prevents a
        rehearing. See United States v. Wilson, 67 M.J. 423
        (C.A.A.F. 2009).

United States v. Trew, 68 M.J. 150 (C.A.A.F. 2009) (order
granting review).
2
  We do not address the lesser included offense issue raised by
Judge Stucky’s concurring opinion as the issue was not raised or
briefed by the parties nor was it specified by this court.

                                   3
United States v. Trew, No. 09-0414/NA

him when she woke up.   When KT told Trew to get out of her room,

he said he was sorry and left.   Trew returned to KT’s room

before he left for work that morning and apologized to her

again.

     KT also testified that when she awoke to Trew touching her

on the morning of September 26, it jogged her memory and she

remembered Trew touching her in the same manner the day before.

When pressed about how she knew it was Trew who had been

touching her on the morning prior to September 26, KT explained

that she knew it was Trew because of the size of his hands.    KT

reported these incidents to her mother the next day.   KT’s

mother testified that Trew admitted that he touched KT twice, on

two different occasions.

     The Government’s opening arguments referenced Trew’s

“touching [of KT] on numerous occasions.”   In closing, the

Government argued, “[y]ou’ve heard testimony, you’ve received

evidence in this case, ma’am, how in the fall of 2006, on at

least two occasions, [KT] . . . was indecently contacted by her

adopted father, Petty Officer Trew.”    The Government also

referenced comments that Trew allegedly made to his wife that

“[n]ot only did I do that on the 26th, but I did that on the

night or the two nights before that.”

     At the conclusion of the findings portion of the court-

martial, the military judge announced the findings as follows:



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United States v. Trew, No. 09-0414/NA

“Of the Specification under the Charge:   Not Guilty, but Guilty

of the lesser included offense of Article 128, assault

consummated by a battery upon a child under 16 years, paragraph

54(b)(3)(c) in the Manual for Courts-Martial.”    Immediately

following the announcement of the findings, the military judge

addressed a defense motion for a continuance relating to the

sentencing phase of the trial.   The trial counsel then asked the

military judge, “[b]efore we recess, though, ma’am, one

question.   On your findings of the LIO under Article 128, is

that on 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.”    There

was no further discussion or clarification as to which occasion

the military judge was referring to in her findings.

       On appeal to the Court of Criminal Appeals, Trew argued

that the military judge’s findings were ambiguous and his

conviction should be set aside under Walters.    Trew, 67 M.J. at

603.   In Walters this court held that a Court of Criminal

Appeals could not conduct a factual sufficiency review of an

accused’s conviction when “the findings of guilty and not guilty

do not disclose the conduct upon which each of them was based.”

58 M.J. at 397.   Relying on United States v. Perkins, 56 M.J.

825 (A. Ct. Crim. App. 2001), a pre-Walters United States Army

Court of Criminal Appeals decision, the lower court



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United States v. Trew, No. 09-0414/NA

distinguished Walters and affirmed the findings except the words

“on divers occasions.”3   Trew, 67 M.J. at 606.

     The court in Perkins had held that “[t]he announcement of a

verdict is sufficient if it decides the questions in issue in

such a way as to enable the court intelligently to base judgment

thereon and can form the basis for a bar to subsequent

prosecution for the same offense.”   56 M.J. at 827 (citation and

quotation marks omitted).   The Perkins court relied on

“appellant’s pleas and statements during a thorough providence

inquiry” to determine that the findings under the circumstances

were “sufficient to intelligently discern the basis for the

findings.”   Id.

     Relying on Perkins the lower court in Trew held:

     [W]e find the words used by the military judge to
     frame her findings were not ambiguous when placed in
     the context of the entire record. It is clear that
     the military judge, counsel, and the appellant all
     understood, and, at various times, used essentially
     the same shorthand reference ultimately adopted by the
     military judge. We, therefore, find that the military
     judge’s announcement of the findings, while irregular,
     clearly referred to the single incident on 26
     September 2006.

Trew, 67 M.J. at 606.




3
  The Court of Criminal Appeals also excepted the words
“genitalia” and “and breasts” but those exceptions are not
pertinent to our review. Trew, 67 M.J. at 606. The lower court
set aside and dismissed the findings as to the excepted
language. Id.

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United States v. Trew, No. 09-0414/NA

                           Discussion

     The granted issue addresses whether the Navy-Marine Corps

Court of Criminal Appeals could properly review Trew’s

conviction in light of the military judge’s clarification that

her findings were for “the one occasion.”   Trew argues that the

military judge’s failure to specify the incident that formed the

basis for his conviction prohibited the Court of Criminal

Appeals from conducting a proper review under Article 66, UCMJ.

Therefore, according to Trew, the Court of Criminal Appeals

erred when they reviewed the record to independently determine

which incident the military judge was referring to when she

responded to trial counsel’s request for a clarification.4

     The Government responds that the military judge’s findings

were proper and her clarification did not modify the

specification but “altered it only with respect to making

findings on the lesser included offense.”   The Government also

argues that the military judge’s clarification could not alter

her original findings because her comment was not consistent

with Rule for Courts-Martial (R.C.M.) 918, which sets forth the

proper form for announcements of general findings.    Finally, the

Government argues that even if the military judge’s


4
  In addition to Walters, Trew cites this Court’s recent case law
on ambiguous findings in United States v. Seider, 60 M.J. 36
(C.A.A.F. 2004), and Wilson, 67 M.J. 423, in support of his
contention that the military judge’s findings were fatally
ambiguous.

                                7
United States v. Trew, No. 09-0414/NA

clarification created an ambiguity, this court should order a

proceeding in revision to clarify the findings rather than

setting aside the findings.

     The threshold issue is the effect of the military judge’s

response to trial counsel’s request for a clarification of the

findings.    If the Government is correct and the clarification

had no effect on the findings, the Government has a credible

argument that the military judge’s findings were not ambiguous

and the Court of Criminal Appeals could properly affirm a

finding of guilty to one of the “divers occasions” under a

general verdict theory.   See United States v. Rodriguez, 66 M.J.

201, 203 (C.A.A.F. 2008).   If, however, Trew is correct that the

clarification resulted in an ambiguous verdict, we must then

analyze the case under Walters.

     “A finding on the guilt or innocence of the accused is not

final until it is formally and correctly announced in open

court.”   United States v. London, 4 C.M.A. 90, 96, 15 C.M.R. 90,

96 (1954).   “The general findings of a court-martial state

whether the accused is guilty of each offense charged.”    R.C.M.

918(a).   “One or more words or figures may be excepted from a

specification, and, when necessary, others substituted, if the

remaining language of the specification, with or without

substitutions, states an offense by the accused which is

punishable by court-martial.”   R.C.M. 918(a)(1) Discussion.   “If



                                  8
United States v. Trew, No. 09-0414/NA

an error was made in the announcement of the findings of the

court-martial, the error may be corrected by a new announcement

in accordance with this rule.    The error must be discovered and

the new announcement made before the final adjournment of the

court-martial in the case.”    R.C.M. 922(d).   We have stated, “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.”    Wilson, 67 M.J. at 428 (citation

omitted).

     The military judge’s findings, when initially announced,

did not reference the charged “divers occasions” language.

However, trial counsel immediately asked for a clarification of

those findings with regard to the divers occasions language.

When the military judge responded, “[i]t is on the one occasion”

she made clear on the record that her findings as to the lesser

included offense were only applicable for one event, rather than

multiple incidents as charged.

     The Government argues that this clarification “cannot

function retroactively to modify her proper findings and cannot

act to set aside an element of the specification charged.”      The

Government also suggests that the “on the one occasion” comment

does not amount to a “formal announcement” of the findings per

London.     However, R.C.M. 922 provides military judges with a



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United States v. Trew, No. 09-0414/NA

mechanism to correct errors in the findings.     Under the facts of

this case, a formal recitation of exceptions and substitutions

was not necessary because of the military judge’s clarification

immediately following her announcement of the findings.     The

clarification, “[i]t is on the one occasion,” amounted to a

correction of the announcement of the findings as permitted by

R.C.M. 922.

     Having determined that the military judge’s clarification

altered the findings and resulted in a finding of guilty to only

one occasion, we must now determine whether the Court of

Criminal Appeals could properly conduct an Article 66, UCMJ,

review.    “Where the findings do not disclose the single occasion

on which the conviction is based, the Court of Criminal Appeals

cannot conduct a factual sufficiency review or affirm the

findings because it cannot determine which occasion the

servicemember was acquitted of.”      Augspurger, 61 M.J. at 190.

“Double jeopardy principles prohibit a reviewing court from

rehearing any incidents for which the accused was found not

guilty.”   Wilson, 67 M.J. at 428 (citations omitted).    “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 for the conviction.”     Id. (citation omitted).

However, a Court of Criminal Appeals may review the record to

determine if there was only a single possible incident that met



                                 10
United States v. Trew, No. 09-0414/NA

“all the details of the specification” for which an appellant

was convicted.   Id.

       In holding that the military judge’s finding “while

irregular, clearly referred to the single incident on 26

September 2006,” the Court of Criminal Appeals relied primarily

on comments made during a pretrial motions hearing.   Trew, 67

M.J. at 606.   The lower court found that during that hearing the

military judge and counsel “repeatedly referred to the 26

September 2006 touching as ‘the September incident.’”   Id. at

605.   It is true that the military judge, Government counsel,

and defense counsel referred to a “September incident” at the

motions hearing.   However, at that hearing the military judge

asked trial counsel, “are you limiting your discussion to the

timeframe [sic] of September of 2006?”   Trial counsel responded

“[m]y discussion would be with respect to the charge as charged,

from the 1 March timeframe [sic] to the October timeframe [sic].

So, no, I’m not limiting it to September.”   Trial counsel’s

response clearly indicates that he was not limiting his

reference to a particular date.

       In discussing their reliance on Perkins, the lower court

explained that “[u]nlike Walters, the Perkins court did not

evaluate evidence in an attempt to dispel factual ambiguity, but

rather considered the record as a whole to clarify the meaning

and intent of the military judge’s words.”   Id.   The lower court



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United States v. Trew, No. 09-0414/NA

then distinguished the Walters line of cases finding that Trew’s

case was one “in which an evaluation of the meaning of the words

used in the findings are assessed in the context of the trial.”

Id.   The Court of Criminal Appeal’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.   The lower

court clearly went to the record of the pretrial motions hearing

and evaluated the statements of the parties in an attempt to

discern the meaning of the military judge’s clarification.      In

doing so they did exactly what they recognized they could not do

under Walters.   Id.

      The Walters line of cases provides clear guidance to

military judges and the courts of criminal appeals regarding the

need for specificity in the findings.   However, once again we

find it necessary to restate that “[b]oth trial practitioners

and military judges need to be aware of the potential for

ambiguous findings in such cases and take appropriate steps

through instruction and pre-announcement review of findings to

ensure that no ambiguity occurs.”    Walters, 58 M.J. at 396.

           Where a specification alleges wrongful acts on
      “divers occasions,” the members must be instructed
      that any findings by exceptions and substitutions that
      remove the “divers occasions” language must clearly
      reflect the specific instance of conduct upon which
      their modified findings are based. That can generally
      be accomplished through reference in the substituted
      language to a relevant date or other facts in evidence


                                12
United States v. Trew, No. 09-0414/NA

      that will clearly put the accused and the reviewing
      courts on notice of what conduct served as the basis
      for the findings.

Id.   As we have explained, a military judge can clarify an

ambiguity in the findings by making a “clear statement on the

record as to which alleged incident formed the basis of the

conviction.”   Wilson, 67 M.J. at 428 (citation omitted).

      The Government charged Trew with indecent acts on “divers

occasions,” introduced evidence of more than one occasion, and

argued in both opening and closing statements that at least two

incidents had occurred.   When the military judge clarified that

her findings were for “one occasion,” she should have made a

clear statement on the record as to which alleged incident

formed the basis of the conviction under this Court’s explicit

direction in Augspurger, Walters, Seider, and Wilson.   The

military judge’s failure to do so resulted in fatally ambiguous

findings.

      The Government further argues that if this court were to

hold that the findings were ambiguous, instead of dismissing the

charges, we should remedy the ambiguity by ordering a proceeding

in revision pursuant to R.C.M. 1102(d).   This is a familiar

argument as the Government has unsuccessfully made the same

argument in Final Brief on Behalf of the United States, Seider,

60 M.J. 36 (No. 04-0082); Brief on Behalf of Appellee at 19-22,

Augspurger, 61 M.J. 189 (No. 04-0563); Final Brief on Behalf of



                                13
United States v. Trew, No. 09-0414/NA

Appellee at 30-32, Wilson, 67 M.J. 423 (No. 09-0010).    The

Government’s argument in this case adds nothing new to the

assertions that have previously been made to and rejected by

this court.

     As in Seider, Augspurger, and Wilson, the fatally ambiguous

findings by the military judge at Trew’s court-martial created

“the possibility that the [reviewing] court would affirm a

finding of guilty based on an incident of which the appellant

had been acquitted by the factfinder at trial.”    Wilson, 67 M.J.

at 428.    R.C.M. 1102(c)(1) plainly prohibits post-trial sessions

“for reconsideration of a finding of not guilty to any

specification, or a ruling which amounts to a finding of not

guilty.”   The military judge’s ambiguous findings amounted to a

not guilty finding on one of the instances raised by the “divers

occasions” charge.   Thus, a post-trial session to recast the

language of the military judge would amount to a re-assessment

of a not guilty verdict in violation of double jeopardy.   As in

Seider, Augspurger, and Wilson, the appropriate remedy for the

Walters violation at Trew’s court-martial is to set aside the

findings and dismiss the charges with prejudice.




                                 14
United States v. Trew, No. 09-0414/NA

                           Conclusion

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed, the findings and sentence are

set aside, and the charge is dismissed with prejudice.




                               15
United States v. Trew, No. 09-0414/NA


        STUCKY, Judge (concurring in the result):

        Appellant was tried by general court-martial on a

specification alleging indecent acts with a child on divers

occasions between on or about March 1, 2006, and October 15,

2006.    Article 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 934 (2006).1    The military judge acquitted him of the

charge, but found him guilty of the lesser included offense of

assault consummated by a battery upon a child, in violation of

Article 128, UCMJ, 10 U.S.C. § 928 (2006).    The United States

Navy-Marine Corps Court of Criminal Appeals excepted the words

“on divers occasions,” “genitalia,” and “and breasts” from the

specification but otherwise affirmed the findings and sentence.

United States v. Trew, 67 M.J. 603, 606 (N-M. Ct. Crim. App.

2008).

        The MCM listed assault consummated by a battery as a lesser

included offense of indecent acts with a child.     MCM pt. IV,

para. 87.d.(2).    However, the elements of the two offenses are

different, and proof of each requires proof of a fact that proof

of the other does not.    In the case of the Article 128, UCMJ,

offense of which Appellant was convicted, the elements include

1
  As the offenses alleged took place prior to October 1, 2007,
the UCMJ and Manual for Courts-Martial, United States (2005 ed.)
(MCM) provisions existing prior to the 2006 amendment of Article
120, UCMJ, 10 U.S.C. § 920 (2000), apply. See National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, §
United States v. Trew, No. 09-0414/NA


(i) that the accused did bodily harm to a child under 16 and

(ii) that this bodily harm was done with unlawful violence or

force.   MCM pt. IV, para. 54.b.(3)(c).   Neither of these is an

element of indecent acts with a child under Article 134, UCMJ,

the offense with which Appellant was charged.   The elements of

the offense of indecent acts with a child under Article 134,

UCMJ, included (c) that Appellant’s act was indecent; (d) was

committed with the intent to arouse, appeal to or gratify his or

the victim’s lust, passions or sexual desires; and (e) that

under the circumstances, the conduct was to the prejudice of

good order and discipline or was of a nature to bring discredit

upon the armed forces.   MCM pt. IV, para. 87.b.(1).   These

elements are not required to prove assault consummated by a

battery under Article 128, UCMJ.

     Since the elements test is the proper one for determining

lesser included offenses, see United States v. Teters, 37 M.J.

370, 376 (C.A.A.F. 1993), and the Article 128, UCMJ, conviction

here does not pass that test, it follows that Appellant could

not be convicted of the Article 128, UCMJ, offense as a lesser

included offense of indecent acts with a child under Article

134, UCMJ.   United States v. McCracken, 67 M.J. 467, 469




552, 119 Stat. 3136, 3257 (2006) (codified as amended at 10
U.S.C. § 920 (2006)).

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United States v. Trew, No. 09-0414/NA


(C.A.A.F. 2009) (Stucky, J., concurring in part and dissenting

in part).

     I concur in the result.




                                3
