The AFCCA set aside the findings of guilt and sentence of CPT Anthony R. Morrow, finding the conviction to be legally and factually insufficient.
Morrow opinion here.
Editor's Note: The Air Force court should be commended for this scholarly discussion of dis-con law, and for its enlightened decision. It is not a crime for a police officer to dislike you; it is not a crime to be a "smart aleck." That anyone thought it was appropriate to deprive a human being of two months of his life for this is absurd.
On October 1, 2020, Appellant was convicted contrary to his pleas, of one specification of disorderly conduct, in violation of Article 134, UCMJ, and one specification of absence without leave, in violation of Article 86, UCMJ. Appellant was sentenced to a dismissal and confinement for two months.
Six issues were raised on appeal however, because the first two were resolved in Appellant’s favor and the findings set aside, the AFCCA did not reach the remainder. Appellant asserted that the evidence was legally and factually insufficient to support a finding of guilt for either specification.
Appellant was arrested pursuant to a Texas public-intoxication law after a service woman called the police when Appellant tried to get into her apartment. The officers concluded that Appellant was intoxicated because of Appellant’s behavior. Appellant had earlier taken a mixture of prescription medication and consumed alcohol at a party that Appellant and his girlfriend attended. The officer testified that Appellant was compliant for the most part but seemed confused and had moments of outbursts during his time at the police station. The arrest caused Appellant to arrive later than he usually does for work. Appellant was accused of disorderly conduct and absence without leave, for not being present at Building 7233.
The AFCCA held that the record shows no indication that Appellant was disorderly while he was intoxicated. Citing the evidence, the court found that Appellant only went to the wrong apartment, and that no evidence showed an illicit purpose. Additionally, Appellant was not belligerent with abusive towards towards anyone that night, nor was he combative or violent. After a review of the evidence in a light most favorable to the prosecution, the court concluded that the facts did not meet the elements of disorderly conduct beyond a reasonable doubt and therefore found the evidence legally insufficient. The court then decided the absence without leave charge.
At trial, it was never established who had authority over Appellant, or that he was directed to be at Building 7233. The only facts that were established was that Appellant was “assigned” to Ms. KC, but she was not Appellant’s supervisor, and that the standard duty day for that unit was from 0730 hours to 1630 hours. However, Ms. KC stated that the unit’s schedule was “loose” and “fairly flexible” and that it was “not uncommon” for Appellant to be out of the office working on projects outside of the typical duty day, with no advance approval required. The evidence proffered at trial did not support the claim that Appellant was required to be at “Dyess Air Force Base, Texas, Building 7233” and that he was absent from the same without proper authority.
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