United States v. Graham

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

A divided board of review affirmed the accused’s conviction for desertion with the intent to remain away permanently, in violation of Article 85, Uniform Code of Military Justice, 50 USC § 679. We granted review to determine whether the accused was prejudiced by the admission of certain evidence intended to show his intent.

Six extracts of entries in the accused’s service record constitute the prosecution’s direct case. Three of these, admitted in evidence without objection, show that at 5:00 a.m. on May 13, 1953, the accused failed to return from liberty; he was declared .a deserter on June 13, 1953; and he remained absent without authority until apprehended on July 21, 1953, by Federal Bureau of Investigation agents. The remaining four documents were offered in evidence by trial counsel for the purpose of showing the accused’s “intent to leave the service.” Defense counsel objected on the ground that they were not related to the offense charged and tended to show only general bad moral character, which was not in issue. The law officer sustained the objection to an extract purporting to show nonjudicial punishment for an unauthorized absence of twenty-two hours in January 1952. However, he admitted the others.

From the contested exhibits, it ap*267pears that, on December 11, 1952, the accused was convicted by a general court-martial for three offenses against the Uniform Code of Military Justice. These were an unauthorized absence from his ship from May 13, 1952, to July 30, 1952; a breach of arrest on August 7, 1952, at the U. S. Naval Receiving Station, Norfolk, Virginia; and a second unauthorized absence from the latter station from August 7, 1952, to September 21, 1952. The sentence imposed by the court was confinement at hard labor for six months, reduction in grade, and partial forfeitures. On December 30, 1952, competent authority approved the sentence and ordered it executed. The U. S. Naval Retraining Command, Norfolk, Virginia, was designated as the place of confinement. A service record entry by the Retraining Command indicates that the accused was in that unit on May 11, 1953.

At the time of his objection, defense counsel produced two entries in the accused’s service record from which it appeared that both of the prior unauthorized absences were terminated by surrender. In spite of this showing, the law officer admitted the prosecution documents. He also admitted the entries relied upon by the accused. At the same time, and again in his final instructions, he told the court it could not consider the evidence as showing the bad character of the accused, but only “for the purpose of showing the course of conduct which may be considered by the court in determining whether or not the accused had the requisite intent” to remain away permanently.

Evidence of acts of misconduct by an accused other than those charged is generally inadmissible. United States v. Yerger, 1 USCMA 288, 3 CMR 22. However, such evidence is admissible, if apart from showing bad moral character of the accused it has substantial value as tending to prove a fact in issue. Thus, several categories of admissibility are well-recognized. If the evidence meets the requirements of any of these, it is admissible, even though it may have other incidental effects that are unfavorable to the accused. United States v. Valencia, 1 USCMA 415, 4 CMR 7. Two of these categories are relevant here. The Manual for Courts-Martial sets them out as follows:

“. . . (3) When it tends to prove guilty knowledge or intent, if guilty knowledge or intent is an element of the offense charged.
(4) When it tends to prove motive.” [Manual for Courts-Martial, United States, 1951, paragraph 138gr, pages 245-246.]

Both the Government and the accused agree to these general rules. However, they differ on their appli- cation to the facts. In that difference, each relies upon our opinion in United States v. Powell, 3 USCMA 64, 11 CMR 64. The accused stresses the substantial difference in number between the absences here and those in the Powell case. On the other hand, the Government emphasizes the relevancy of the absences, rather than the number. Actually, the respective contentions pivot on the same question, namely, do the prior acts of misconduct “shed light clearly on the accused’s mental attitude”? United States v. Powell, supra, page 70. If it satisfies any of the requirements for admission, a single other offense is as much admissible as multiple acts of misconduct. Cf. United States v. Jones, 2 USCMA 80, 6 CMR 80. In the Powell case, the prosecution relied upon a series of eighteen absences and confinements to show the accused’s intent to remain away permanently. However, in United States v. Deller, 3 USCMA 409, 12 CMR 165, we sustained the admissibility of evidence of half that number of absences and confinements, as bearing directly on the accused’s intent to prevent completion of his basic training. See United States v. O’Neil, 3 USCMA 416, 12 CMR 172. In our opinion, the evidence of misconduct in this case is distinctly relevant to the determination of the accused’s guilt of the particular offense charged.

Taken as a whole, the evidence reveals an integrated course of conduct which throws light on the accused’s intent *268during the absence charged. After an unauthorized absence of over two and one-half months, the accused remained in military control for only one week. He ended this brief return to the service not just by a second absence, but by one accompanied by a breach of arrest. These circumstances reduce the significance of the surrender which terminated the accused’s first absence.

Surrender usually provides the basis for an inference that the accused did not intend to remain away permanently. But, standing alone, it does not compel that conclusion. It is just a factor to be weighed along with other evidence. United States v. Cirelli, 1 USCMA 568, 4 CMR 160. It may, in fact, indicate only repentance. Certainly, the accused’s breach of arrest only a week after his return from a long unauthorized absence would tend to indicate that the accused believed he made a mistake by returning to the service, and that he should have stayed away permanently. His later conduct gives force to this inference. After remaining away for a second lengthy period, he again returned. The record does not show his status after this return, but it affirmatively appears that he was tried, convicted, and confined for his earlier offenses. Immediately after his release from confinement, he once more absented himself. This time he was gone almost two and one-half months; and the absence was terminated by apprehension. It is, therefore, not unreasonable to conclude that, having twice surrendered, and twice regretted that act, the accused determined, during his third absence, to remain away permanently. Consequently, in relation to all the evidence, the fact of surrender lessens but does not, as a matter of law, so far outweigh the significance of the other evidence as to require its exclusion.

In its entirety, the evidence shows a course of conduct which supports an inference that, during the absence charged, the accused intended to remain away permanently. Since it was relevant, it was properly admissible. The weight to be given to it is for the triers of fact to determine. United States v. Strong, 1 USCMA 627, 5 CMR 55. Ac-cordingly, the law officer was correct in denying the accused’s objection to the admission of the documentary evidence.

The decision of the board of review is affirmed.