Whether affirming a criminal conviction on a different theory than what was presented to the jury conflicts with this Court's holdings in Cole v. Arkansas, 333 U.S. 196, 202 (1948); Presnell v. Georgia, 439 U.S. 14, 16 (1978); Dunn v. United States, 442 U.S. 100, 106 (1979); Chiarella v. United States, 445 U.S. 222, 236 (1980); McCormick v. United States, 500 U.S. 257, 270 n. 8 (1991); and, Ciminelli v. United States, 598 U.S. 306, 316-17 (2023), which specifically prohibit a reviewing court from affirming a conviction on a different theory than what was presented to the jury, and thus violates the Due Process Clause of the Fourteenth Amendment.

Whether affirming a criminal conviction on a different theory than what was presented to the jury conflicts with Supreme Court precedent and violates the Due Process Clause of the Fourteenth Amendment