United States v. Oliver, 2011 CAAF LEXIS 382

Appellant was tried for desertion with intent to remain away permanently under UCMJ Article 85; AWOL pleaded to Article 86.
He received orders June 7, 2006 to report September 10, 2006, to Fort Eustis, but remained in New York for nearly three years.
Appellant took leave August 16–September 10, 2006; instead of reporting, he stayed with his mother and daughter in New York.
He turned himself in on July 15, 2009, after which investigators met him in Norfolk, VA; his absence beyond leave was recognized as unauthorized.
At trial, government offered sister’s testimony about circumstances suggesting intent to remain away permanently; Appellant testified he intended to return to Fort Eustis.
Court reviewed whether evidence was legally sufficient to show the requisite intent under Jackson v. Virginia.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there legal sufficiency of evidence for intent to desert?	Oliver argued the record lacked sufficient circumstantial evidence of permanent intent.	Oliver contended the evidence, including his own testimony, showed intent to return and not to desert permanently.	Yes; evidence supports intent to remain away permanently.

Jackson v. Virginia, 443 U.S. 307 (1979) (requires only rational finding of guilt beyond reasonable doubt)
McCrary, 1 C.M.A. 1, 1 C.M.R. 1 (1951) (establishes appellate deference to fact-finder for sufficiency)
Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969) (long absence with other factors may support inference)
Cothern, 8 C.M.A. 158, 23 C.M.R. 382 (1957) (absence duration not a substitute for intent)
Ferretti, 1 C.M.A. 323, 3 C.M.R. 57 (1952) (evidence of intent sufficient given circumstances)
Peterson, 1 C.M.A. 317, 3 C.M.R. 51 (1952) (insufficient intent where absence had foreseeable return and other factors)