United States v. Oliver

UNITED STATES, Appellee

v.

Mervyn W. OLIVER Jr., Specialist
U.S. Army, Appellant

No. 11-0089

Crim. App. No. 20091109

United States Court of Appeals for the Armed Forces

Argued March 7, 2011

Decided May 5, 2011

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

Counsel

For Appellant: Captain Tiffany K. Dewell (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Imogene M. Jamison, Lieutenant
Colonel Peter Kageleiry Jr., and Captain Barbara A. Snow-Martone
(on brief); Lieutenant Colonel Jonathan F. Potter.

For Appellee: Captain Kenneth W. Borgnino (argued); Colonel
Michael E. Mulligan, Major Christopher B. Burgess, Major Sara M.
Root, and Major Amber J. Williams (on brief).

Military Judge: Denise R. Lind

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Oliver, No. 11-0089/AR

Judge BAKER delivered the opinion of the Court.

At a general court-martial convened at Fort Eustis,

Virginia, a panel composed of officer and enlisted members

convicted Appellant, contrary to his plea, of one specification

of desertion with the intent to remain away permanently, in

violation of Article 85, Uniformed Code of Military Justice

(UCMJ), 10 U.S.C. § 885 (2006). The adjudged and approved

sentence consists of a bad-conduct discharge, confinement for

six months, and reduction to E-1.

On review, the United States Army Court of Criminal Appeals

summarily affirmed. United States v. Oliver, No. ARMY 20091109

(A. Ct. Crim. App. Sept. 9, 2010) (unpublished).

We granted review of the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
THE FINDING OF GUILTY TO DESERTION.

For the reasons set forth below, we conclude that the

evidence was legally sufficient under Jackson v. Virginia,

443 U.S. 307, 319 (1979). Therefore, we affirm the United

States Army Court of Criminal Appeals.

I. BACKGROUND

While stationed at Redstone Arsenal, Alabama, Appellant

received orders dated June 7, 2006, to report on September 10,

2006, to the Enlisted Replacement Detachment at Fort Eustis,

Virginia. On July 19, 2006, Appellant requested twenty-six days

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of leave beginning on August 16, 2006, and ending on September

10, 2006, the day on which Appellant was to report to Fort

Eustis. Appellant took leave as scheduled, but rather than

reporting to Fort Eustis on September 10, 2006, as scheduled,

Appellant took up residence in New York with his mother and

daughter until July 15, 2009, nearly three years later. On July

15, 2009, Appellant voluntarily turned himself in to military

authorities at Fort Hamilton, New York.1 He flew to Norfolk,

Virginia that same day, where agents from the Criminal

Investigations Division (CID) met him at the airport. In

addition to the above facts, Appellant agreed in a stipulation

of fact that his absence beyond his requested leave was

unauthorized. Appellant was subsequently charged with desertion

with the intent to remain away permanently.

At trial, Appellant pled not guilty to desertion but guilty

of the lesser offense of absence without leave (AWOL) in

violation of Article 86, UCMJ, 10 U.S.C. § 886 (2006). The

Government, however, proceeded on the contested charge of

desertion offering the testimony of Appellant’s older sister as

evidence that Appellant had the additional requisite intent to

“remain away . . . permanently.” Appellant’s sister testified

regarding the circumstances of Appellant’s stay in New York.

The testimony included the following observations: She “would

1
Fort Hamilton is located in Brooklyn, New York.

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see [Appellant] frequently, [mostly] every day.” She did not

know whether Appellant had brought his military property with

him. She “cannot say for certain” that Appellant was employed,

but she was “sure he had to have something” because “he

supported his daughter at the time.” She recalled dropping

Appellant off at a pizzeria, “but I don’t know if he worked

there.” Finally, trial counsel asked whether Appellant “ever

t[old] you why he left or what he was doing there?” to which she

responded, “To my knowledge, he . . . finished his service. . .

. I just believed his service was finished, because if he was

home -- he had been in the military -- what? -- I think about

ten years at that time, so I would have said that his service

was over.”

During the Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006),

session that followed, defense counsel moved under Rule for

Courts-Martial (R.C.M.) 917 to dismiss the charge based on

insufficient evidence that Appellant had the requisite intent

for the offense of desertion. The military judge denied the

motion, finding that the Government raised circumstantial

evidence that the court could consider under Manual for Courts-

Martial, United States pt. IV, para. 9.c.(1)(c)(iii) (2008 ed.)

(MCM). The military judge specifically noted that Appellant was

away for “slightly less than three years,” “that [Appellant] was

in New York City,” Appellant “made no effort to surrender

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himself to military control,” and “in today’s current

environment of planes, trains, automobiles, internet, [Appellant

had] the access to military installations within the proximity

of New York City.”

The defense then elicited testimony from Appellant that

when he left Redstone Arsenal, Alabama, “My intent was to PCS to

Fort Eustis, sir.” Appellant further testified that he did not

dispose of any of his military property, but “put it in storage

on the household good shipment to forward it to Fort Eustis.”

Appellant testified to being satisfied with the military and re-

enlisting one month prior to taking leave. He also testified

that he felt his command was “very good.” Appellant testified

that he never stated any intention to never return to the Army,

but that “I always had an intent to come to Fort Eustis.”

Finally, Appellant testified that the reason he remained in New

York for thirty-three months before turning himself in was that

“I had a crisis with my daughter . . . It took this long to get

her to a sustainable manner.”

On cross-examination, trial counsel asked Appellant, “in

the nearly three years that you remained absent, did you ever

make any attempt to go get your military property from storage?”

Appellant replied, “No, ma’am.”

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II. DISCUSSION

A. Circumstantial Evidence of Intent

Appellant was charged with desertion in violation of

Article 85, UCMJ, on the theory of desertion with intent to

remain away permanently derived from subsection (a)(1) of the

statute, which provides:

Any member of the armed forces who . . . without authority
goes or remains absent from his unit, organization, or
place of duty with the intent to remain away permanently .
. . is guilty of desertion.

The elements of desertion with the intent to remain away

permanently, as stated in the MCM, are as follows:

(1) That the accused absented himself or herself from his
or her 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 or her unit, organization or place of duty
permanently; and

(4) That the accused remained absent until the date
alleged.

MCM pt. IV, para. 9.b.(1). The dispute in this case centers on

the third and only element not conceded by Appellant in the

stipulation of fact and his plea to unauthorized absence:

whether the accused at some time during the absence intended to

remain away permanently.

Both parties rely on the explanation section of the MCM in

support of their arguments. Among other things, the MCM states

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that the requisite intent may be proved by circumstantial

evidence and essentially summarizes previous legal precedent in

providing examples of such evidence and how it may be used:

The intent to remain away permanently may be established by
circumstantial evidence. Among the circumstances from
which an inference may be drawn that an accused intended to
remain absent permanently or; 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.

MCM pt. IV, para. 9.c.(1)(c)(iii).

We begin our analysis with two observations. First, many

of the factors identified in the MCM can cut both ways depending

on the circumstances of the case. When an absent servicemember

takes on civilian employment, for example, a factfinder might

derive both an inference that he is making financial

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arrangements to remain away permanently or alternatively that he

is merely providing for himself on a temporary basis until he

returns. This is especially true in cases such as this, where

the Government merely raises the circumstances listed in the MCM

rather than providing additional context on the record through

further examination. In addition, as both sides’ arguments

reflect, the storage of household goods may reflect the

abandonment of property, demonstrating an intent to remain away

permanently, or the opposite, an intent to return to reclaim the

property.

Moreover, given modern technology, the time or location of

surrender can also give rise to differing inferences. For

example, as noted by the military judge, although absent

servicemembers may be thousands of miles from their duty

stations, modern transportation and communication technology has

virtually ensured that servicemembers can quickly surrender to

or communicate with military authorities from virtually any

location. Similarly, a decision to surrender in one’s hometown

rather than at one’s appointed duty station can reflect a prior

intent to remain away permanently, but surely it can just as

likely reflect a desire to have the government initially bear

the cost of return travel, or indeed an intent to return as soon

as possible.

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Second, at the appellate level the question presented is

one of legal sufficiency, not factual sufficiency. Both parties

argue that the presence or absence of several of these factors

either supports an inference of an intent to remain away

permanently or negates it. Both parties also rely in part upon

the pre-Jackson cases giving rise to those factors. Ultimately,

the Court is invited to weigh these factors anew and determine

whether Appellant possessed at some point an intent to remain

away permanently. That is not our role. Rather, from the

beginning of our case law to our current application of the

Jackson standard, our role has been to review for legal

sufficiency applying long-standing doctrines of appellate

deference to the factfinder.

B. Legal Sufficiency Review in Historic Context

In United States v. McCrary, the first opinion published by

the United States Court of Military Appeals, this Court reviewed

the legal sufficiency of a desertion conviction. 1 C.M.A. 1, 1

C.M.R. 1 (1951). In light of the opinion’s historic place in

this Court’s case law, the Court set forth the foundational

principles of appellate review of legal sufficiency:

[I]f there is any substantial evidence in the record to
support a conviction an appellate court, in the absence of
other error, will not set aside the verdict. In stating
this rule we have not overlooked the converse principle
that where there is no substantial evidence in the record
to sustain the conviction the appellate court will set it
aside. While this latter rule in a sense permits this

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court to weigh and evaluate the testimony for the purpose
of testing its sufficiency for a limited purpose, it does
not permit us to substitute our judgment for that of the
triers of fact . . . . Furthermore, this rule neither
precludes [the trier of fact] from drawing reasonable
inferences from the evidence presented nor does it permit
this court to set aside a conviction because we might have
inferred differently.

Id. at 3.

Desertion cases reviewing legal sufficiency following

McCrary reflect a detailed analysis of the factors now listed in

the MCM. See United States v. Care, 18 C.M.A. 535, 540, 40

C.M.R. 247, 252 (1969) (holding that an extended absence

combined with apprehension 3,000 miles away from duty station

supports an inference of the requisite intent); United States v.

Cothern, 8 C.M.A. 158, 161, 23 C.M.R. 382, 385 (1957) (holding

that a period of absence may not act as a substitute for the

necessary element of intent); United States v. Peterson, 1

C.M.A. 317, 319-21, 3 C.M.R. 51, 53-55 (1952) (holding that the

evidence was insufficient to support an inference of the

requisite intent given the appellant’s relocation to a

foreseeable residence related to a reason for absence, lack of

civilian employment, an intention to return, voluntary

surrender, and preservation of the uniform); United States v.

Ferretti, 1 C.M.A. 323, 325-28, 3 C.M.R. 57, 59-62 (1952)

(holding that the evidence of the requisite intent was

sufficient given that the appellant had no reason for leaving,

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lived in various locations, and was apprehended by civilian

authorities). However detailed, the standard of review applied

in each of these cases reflected the principle of deference to

triers of fact found in McCrary:

Our inquiry, then, becomes one of whether the complex
evidence in this case permitted a determination, beyond a
reasonable doubt and within the fair operation of
reasonable minds, that the accused, at the inception of, or
at some time during his unauthorized absence, possessed the
intention permanently to abandon the naval service.

Ferretti, 1 C.M.A. at 325, 3 C.M.R. at 59; see also Peterson, 1

C.M.A. at 320, 3 C.M.R. at 54.

C. The Jackson Standard

Ten years following this Court’s decision in Care, the last

of McCrary-desertion sufficiency cases, the Supreme Court

decided Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson,

the Supreme Court established a new standard of review in legal

sufficiency cases founded on the same principle of deference to

the trier of fact. The Supreme Court stated that 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.” Id. at 319.

Jackson’s two distinctive features establish the contours

of appellate deference to triers of fact: First, it “does not

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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. Id. at 318-19. Thus, the Jackson 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.” Id. at 319. Second, 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 ‘jury’ discretion only to the

extent necessary to guarantee the fundamental protection of due

process.” Id.

In the context of desertion the Jackson standard removes

from this Court’s review some of the difficulties inherent in

making an independent determination regarding an appellant’s

intent to remain away permanently based on the MCM’s list of

circumstantial evidence. Under Jackson, our decision does not

hinge on whether or how the parties’ lists of circumstantial

evidence or negating factors stack up against each other.

Rather, it hinges on whether reasonable factfinders could have

drawn inferences one way or the other under a given set of

circumstances. As government counsel argued at oral argument,

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the appellate question is not whether the evidence is better

read one way or the other, but whether under Jackson a

reasonable factfinder reading the evidence one way could have

found all the elements of the offense beyond a reasonable doubt.

D. Jackson Applied

This Court reviews the issue of legal sufficiency de novo.

United States v. Green, 68 M.J. 266, 268 (C.A.A.F. 2010). The

question presented in this case is “whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found . . . beyond a

reasonable doubt” that Appellant intended to remain away

permanently at some time during his absence. Jackson, 443 U.S.

at 319. We believe so.

Appellant was absent for an extended amount of time, nearly

three years. Although duration alone does not prove an intent

to remain away permanently, Cothern, 8 C.M.A. at 161, 23 C.M.R.

at 385, it may nevertheless be a factor from which a factfinder

might infer intent in concert with other evidence. Care, 18

C.M.A. at 540, 40 C.M.R. at 252. Although the Government did

little to develop the factual context of its evidence at trial,

there is other evidence in the record of trial from which a

reasonable trier of fact could have found the element of intent

when combined with the length of absence. During his absence,

Appellant had ready access to military authorities but did not

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report himself or inform the military regarding his “crisis”

with his daughter. Neither did Appellant’s testimony provide a

basis upon which to evaluate whether the crisis necessitated a

temporary, lengthy, or permanent absence. Despite almost daily

interaction with his sister, Appellant made no indication of his

current relationship with the military whatsoever. Indeed, his

sister was left with the impression that he was out of the

military. There are also facts that could cut the other way on

intent. For example, Appellant was living with his mother

rather than finding his own residence. If he was working, the

only evidence in the record is suggestive of a temporary rather

than permanent job. Nonetheless, given Appellant’s behavior, we

believe a rational trier of fact could have concluded that at

some point during his lengthy period of absence Appellant

possessed the intent to remain away permanently. During his

absence of nearly three years, Appellant lived with family

members and interacted with his sister on an almost daily basis.

Yet, there is no evidence in the record that he 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. 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.

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III. CONCLUSION

For the foregoing reasons, the decision of the United

States Army Court of Criminal Appeals is affirmed.

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