CAAF decided the Air Force case of United States v. Hyppolite, II., 79 M.J. __, Nos.19-0119/AF & 19-0197/AF (CAAFlog case page) (link to slip op.), on August 1, 2019. Reviewing a military judge’s ruling under Military Rule of Evidence 404(b) that allowed the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme, a majority of the court finds no error and it affirms the findings and sentence.

Judge Maggs writes for the court, joined by all but Judge Ohlson, who dissents.

Staff Sergeant (E-5) Hyppolite was charged with five violations of Article 120 for allegedly sexually assaulting four other Airmen over a two-year period. The first three specifications alleged that Hyppolite touched three victims’ genitals while they were asleep; the last two specifications alleged non-consensual sexual acts with an intoxicated victim (who was not necessarily asleep) on one occasion. Hyppolite’s defense counsel moved to sever the first thee specifications from the last two, highlighting the different facts of each set of allegations. A military judge disagreed, ruling instead that “each specification is probative as to the other specifications on the issue of a common plan on the part of the accused.” Slip op. at 3 (marks omitted). Hyppolite then elected to be tried by a military judge alone, and he was convicted of four of the five specifications: two of the alleged touchings of sleeping victims, and both of the alleged acts with the intoxicated victim. The military judge sentenced Hyppolite to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

On appeal, a three-judge panel of the Air Force CCA reversed one of Hyppolite’s convictions (involving a sleeping victim) for factual insufficiency. It also held that the military judge’s common plan or scheme ruling was error because evidence of the alleged acts with the sleeping victims did not support the existence of a common plan for the alleged acts with the intoxicated victim, and vice versa. But the CCA concluded that the error was harmless with respect to the remaining convictions (one of the sleeping victim allegations, and both of the intoxicated victim allegations).

CAAF granted review of the CCA’s finding of harmlessness and then the Judge Advocate General of the Air Force cross-certified a challenge to the CCA’s finding of error:

Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Judge Maggs’ majority opinion answers only the certified issue, concluding that two military judges – one who ruled on the motion and another who presided over the trial – did not abuse their discretion because “it was within the discretion of the two military judges to find a common plan or scheme based on the common factors among the specifications.” Slip op. at 11. Judge Ohlson, however, finds both error and prejudice, and would reverse the two convictions involving the intoxicated victim.

Judge Maggs’ opinion explains that:

At the close of evidence but before arguments on the findings, the trial judge and counsel for each side reopened the question of how the first three specifications might be relevant to the fourth and fifth specifications. Following a substantial discussion of the issue, the trial judge announced that he would not disturb the motions judge’s ruling that evidence of the acts alleged in Specifications 1, 2, and 3 could be used to show a common plan under M.R.E. 404(b). The trial judge, however, indicated that he would “call it a ‘scheme’ instead of a ‘common plan.’ ”

Because the court-martial did not include members, the ruling only affected what trial counsel and trial defense counsel properly could argue with respect to the findings and what the trial judge would consider in his deliberations. The trial judge also acknowledged that the existence or non-existence of a common plan was a fact to be decided. “[F]or the purposes of M.R.E. 404(b),” the trial judge explained, “the common scheme is certainly something that each side can argue.”

Slip op. at 5 (marks in original). Both sides then argued whether or not the evidence supported the existence of a plan, and both sides emphasized that the evidence may not be used to show propensity. In particular,

Trial counsel’s argument was that the evidence admitted in connection with each specification proved Appellant’s scheme of “engaging in unwanted sexual conduct with his friends after they have been drinking and are asleep or trying to go to sleep.” Trial counsel further argued that proof of this scheme made a fact of consequence—whether the “accused knew what he was doing”—more probable.

Slip op. at 9.

Military law – like civil law – generally prohibits using evidence of a person’s character “to prove that on a particular occasion the person acted in accordance with the character or trait.” Mil. R. Evid. 404(a). In other words, it prohibits evidence of propensity (with limited exceptions not applied in this case). But the law allows evidence to be used for non-propensity purposes, such as proof of motive, opportunity, intent, preparation, or plan. See Mil. R. Evid. 404(b).

The military judge in Hyppolite permitted the evidence of Hyppolite’s criminal conduct to also be used for the non-propensity purpose of proving that Hyppolite acted pursuant to a plan or scheme, which CAAF has explained requires that the “acts be almost identical.”United States v. Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999) (marks and citations omitted). Hyppolite opposed that at trial, and on appeal he also argued that the military judge used the evidence for propensity purposes:

Both parties agree that the military judge could not consider the evidence of the acts alleged in Specifications 1, 2, and 3 as proof of Appellant’s character for criminality or propensity to commit the kinds of crimes alleged in Specifications 4 and 5. . . . Appellant, however, contends that the trial judge violated this prohibition. Appellant’s argument is that even though the Government characterized the evidence as proof of a plan or scheme, the “true character of the evidence was propensity evidence.” Under this view, if the trial judge considered the evidence at all, he must have violated M.R.E. 404(b)(1).

Slip op. at 8. The majority rejects that contention entirely, with Judge Maggs writing:

We disagree with Appellant’s argument because we see nothing in the record to support his position. . . . [The arguments of counsel against propensity and the comments of the military judge at trial] leads us to the straightforward conclusion that the trial judge considered the evidence to the extent that it was proof of a scheme and did not consider the evidence to the extent that it might have been evidence of propensity.

Slip op. at 8-9. Judge Maggs then explains that neither military judge abused their discretion in concluding that the evidence supported the existence of a plan by Hyppolite “to engage in sexual conduct with his friends after they have been drinking and were asleep or falling asleep,” slip op. at 10, writing:

The motions judge recognized common factors in the evidence proffered for each specification: “the relationship of the alleged victims to the accused (friends), the circumstances surrounding the alleged commission of the offenses (after a night of drinking when the alleged victim was asleep or falling asleep), and the nature of the misconduct (touching the alleged victims’ genitalia).” The motions judge then identified a specific “common plan,” namely, a plan “to engage in sexual conduct with his friends after they have been drinking and were asleep or falling asleep.” The trial judge adopted the motions judge’s conclusion.

Given that the motions judge and the trial judge properly understood the law and found facts supported by the record, the only question is whether they abused their discretion in applying the law to the facts. . . . Here, as in Munoz and Johnson, it was within the discretion of the two military judges to find a common plan or scheme based on the common factors among the specifications. Likewise, the trial judge did not abuse his discretion to the extent that he considered evidence of that common plan or scheme in assessing Appellant’s knowledge and intent.

Slip op. at 10-11.

Judge Ohlson dissents because he finds that the two sets of allegations – the first three involving touching victims’ while they were asleep; the last two involving non-consensual sexual acts – are not sufficiently similar to be admissible to prove a plan. He writes:

To be sure, there were some commonalities between the offenses charged under Specifications 1, 2, and 3 and the offenses charged under Specifications 4 and 5. The motions judge characterized them as follows: “[T]he accused’s common plan [was] to engage in sexual conduct with his friends after they ha[d] been drinking and were asleep or falling asleep.” In my view, however, there are two problems with the military judges’ reliance on these commonalities as sufficient support for their determination that there was a common plan or scheme under the provisions of Military Rule of Evidence (M.R.E.) 404(b). First, these commonalities are notably generalized and superficial. And second, there are important differences between the factual underpinnings of the two sets of specifications, and these differences vitiate any significance attributed to the cited commonalities. Specifically, as noted by the CCA: “In Specifications 1–3, Appellant acted secretively while his friends slept, whereas in Specifications 4 and 5, Appellant [openly] initiated sexual contact with SrA JD while SrA JD was awake and aware of Appellant’s presence and Appellant communicated Appellant’s desire to engage in sexual activity with SrA JD.”

Diss. op. at 1 (marks in original) (citation to CCA opinion omitted). Judge Ohlson also finds that the evidence violated the prohibition on propensity evidence, writing that:

Because the evidence was not admissible as a common plan or scheme—or for any other proper purpose under M.R.E. 404(b)—I am left with the conclusion that, despite the best intentions of the trial judge, the charged conduct in Specifications 1, 2, and 3 served as nothing more than propensity evidence in regard to the charged conduct in Specifications 4 and 5.

Diss. op. at 2. Finding that the evidence invoked propensity, Judge Ohlson applies the constitutional error standard of harmlessness beyond a reasonable doubt and concludes that the Government Division fails to meet it:

At trial, the Government did not offer evidence to rebut Appellant’s mistake of fact defense in regard to Specifications 4 and 5. Rather, during closing argument the Government relied on the improperly admitted M.R.E. 404(b) evidence to suggest that Appellant acted without SrA JD’s consent and without a reasonable mistake of fact. Trial counsel argued that the trial judge could “absolutely use those commonalities [between the facts underlying Specifications 1, 2, and 3 and the facts underlying Specifications 4 and 5] as you’re looking at each of these fact patterns and deciding exactly what happened, as you’re deciding if the accused is, in fact, guilty.” Therefore, in my view the Government is unable to demonstrate that there was no reasonable possibility that the military judge’s error in admitting the evidence as a common plan or scheme contributed to the guilty verdict in this case.

Diss. op. at 3.

The majority having found no error at all, however, the cross-certified issue is answered in the affirmative and the findings and sentence (as approved by the Air Force CCA) are affirmed.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Blog post: JAG cross-certifies
Granted Issue: Appellant’s brief
Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
Certified Issue: Cross-Appellee’s brief
Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief
• Oral argument audio (wma) (mp3)
CAAF opinion
Blog post: Opinion analysis

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