In United States v. Mark, No. 20160101 (A. Ct. Crim. App. Oct. 23, 2017) (per curiam) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant waived the erroneous use of charged offenses for propensity purposes under Mil. R. Evid. 413 because his defense counsel withdrew the objection.
The withdrawal of the objection (and the trial) occurred before CAAF decided United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), holding that charged offenses may not be used for propensity purposes.
Prior to CAAF’s decision in Hills, Army courts-martial were bound by the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015), holding that:
We find no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the “similar crime” is also a charged offense.
74 M.J. at 697-98. So, by withdrawing the objection, the defense merely followed the CCA’s binding precedent.
If you follow the Army CCA’s published opinions, you waive errors on appeal.