Mil. R. Evid. 404(b) permits admission of evidence of uncharged acts for non-propensity purposes such as proving knowledge, intent, or the existence of a plan.
In the Air Force case of United States v. Hyppolite, No. 39358 (A.F. Ct. Crim. App. Oct. 25, 2018) (link to slip op.), the Air Force CCA considered convictions of unlawful sexual touchings of four individuals where the prosecution was allowed to use each alleged touching as evidence of the accused’s plan to commit the other touchings:
The Government argued . . . that Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.
Slip op. at 8. Of five charged specifications (one of which – specification 2 – resulted in an acquittal) the CCA concluded that some were admissible as evidence of a plan to commit others, but all were not admissible to prove all:
the military judge erred in concluding that evi-dence of sexual contact supporting Specifications 1–3 made more probable a fact of consequence for Specifications 4 and 5 and vice versa.
Slip op. at 11. The CCA then found one conviction (specification 1) factually insufficient and the erroneous 404(b) ruling harmless with respect to the other convictions.
Last week CAAF granted review of the CCA’s finding of harmlessness:
No. 19-0119/AF. U.S. v. Ralph J. Hyppolite, II. CCA 39358. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following 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.
Briefs will be filed under C.A.A.F. R. 25.