United States v. Siroky

SULLIVAN, Judge

(concurring in the result):

The Court of Criminal Appeals held that “the evidence is insufficient to show J made her statements with an expectation of promoting her well being.” It went on to hold: “As noted above, the military judge made no express findings of fact concerning J’s expectation. To the extent he may have intended his T rule to the contrary’ comment to be such a finding, it is clearly erroneous.” 42 MJ 707, 713 (1995). These holdings in my view are not synonymous; they are distinct *402holdings, either one being legally sufficient to resolve this case.

The majority opinion blurs the distinction between a military judge’s ruling that is erroneous because it is based on insufficient evidence of record (see United States v. Faciane, 40 MJ 399, 403 (CMA 1994)) and one that is supported by evidence in the record but is “clearly erroneous.” See United States v. Quigley, 40 MJ 64, 66 (CMA 1994). In my view the Court of Criminal Appeals reached alternative holdings in this case and I agree with' this approach. Cf. United States v. Morgan, 40 MJ 405, 409 (CMA 1994) (Court not prepared to hold military judge’s findings of fact were unsupported by evidence or clearly erroneous). Accordingly, I concur in the result.