U.S. v. Oliver, 70 M.J. 64

Core Criminal Law Subjects: Crimes: Article 85 - Desertion Pre-2019 offenses

1. the elements of desertion with the intent to remain away permanently are: (1) that the accused absented himself from his unit, organization, or place of duty; (2) that such absence was without authority; (3) that the accused, at the time the absence began or at some time during the absence, intended to remain away from his unit, organization, or place of duty permanently; and (4) that the accused remained absent until the date alleged
2. the intent to remain away permanently as an element of desertion may be established by circumstantial evidence; among the circumstances from which an inference may be drawn that an accused intended to remain absent permanently are: that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a considerable distance from the accused’s station; that the accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused’s unit, ship, or with military service; that the accused made remarks indicating an intention to desert; that the accused was under charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example, financial arrangements); or that the accused enlisted or accepted an appointment in the same or another armed force without disclosing the fact that the accused had not been regularly separated, or entered any foreign armed service without being authorized by the United States; on the other hand, the following are included in the circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous long and excellent service; that the accused left valuable personal property in the unit or on the ship; or that the accused was under the influence of alcohol or drugs during the absence
3. although duration alone does not prove an intent to remain away permanently as an element of desertion, it may nevertheless be a factor from which a factfinder might infer intent in concert with other evidence
4. in this case, evidence that appellant was absent for an extended amount of time, nearly three years, that he had ready access to military authorities but did not report himself or inform the military regarding his alleged “crisis” with his daughter, and that despite his almost daily interaction with his sister, he made no indication to her of his current relationship with the military whatsoever was sufficient evidence for a rational trier of fact to conclude that at some point during his lengthy period of absence, appellant possessed the intent to remain away permanently, even though other facts such as living with his mother rather than finding his own residence and evidence suggesting that he only had a temporary rather than permanent job during his absence could cut the other way on intent; in addition, there is no evidence in the record that appellant ever wore his uniform or indicated in any way to anyone his ongoing military commitment, thus causing his sister to think he was out of the military; based on this, a rational factfinder could have determined that such behavior manifested an intent to remain away permanently at some point during his absence and was inconsistent with appellant’s testimony that it was always his intent to return

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; it does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, rather it requires that a reviewing court examine only whether any rational trier of fact could have made that determination; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts; and it requires courts to review the evidence in a light most favorable to the prosecution, which preserves the factfinder’s role as weigher of evidence and impinges upon the factfinder’s discretion only to the extent necessary to guarantee the fundamental protection of due process
2. an appellate court reviews the issue of legal sufficiency de novo