U.S. v. Hyppolite, 79 M.J. 161

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion in his MRE 404(b) ruling that the evidence that appellant committed abusive sexual contact by touching the genitalia of three alleged victims, respectively, either directly or through their clothing, with an intent to gratify appellant’s sexual desire, when appellant knew or reasonably should have known that these men were asleep, could be used to show that appellant engaged in a common plan or scheme of criminality encompassing not only those offenses but also the offenses of abusive sexual contact by causing bodily harm by touching another victim’s genitalia with an intent to gratify appellant’s sexual desire and sexually assaulting that victim by penetrating his mouth and anus with appellant’s penis, even though the other victim was not asleep at the time of the sexual contact; in the latter case, the judge could have found that before appellant entered the room to assault the other victim, he may have thought that the victim was asleep because all the incidents occurred after a night of drinking when the alleged victims were asleep or falling asleep

Core Criminal Law Subjects: Evidence: Generally

1. evidence may be admissible for some purposes but not others

Core Criminal Law Subjects: Evidence: Other Acts

1. under MRE 404(b)(1) (MCM, 2016 ed), evidence that an accused committed one offense is not admissible to prove that the accused had the propensity to commit another offense; but under MRE 404(b)(2), such evidence may be admissible for another purpose
2. in this case, the military judge did not abuse his discretion in his MRE 404(b) ruling that the evidence that appellant committed abusive sexual contact by touching the genitalia of three alleged victims, respectively, either directly or through their clothing, with an intent to gratify appellant’s sexual desire, when appellant knew or reasonably should have known that these men were asleep, could be used to show that appellant engaged in a common plan or scheme of criminality encompassing not only those offenses but also the offenses of abusive sexual contact by causing bodily harm by touching another victim’s genitalia with an intent to gratify appellant’s sexual desire and sexually assaulting that victim by penetrating his mouth and anus with appellant’s penis, even though the other victim was not asleep at the time of the sexual contact; in the latter case, the judge could have found that before appellant entered the room to assault the other victim, he may have thought that the victim was asleep because all the incidents occurred after a night of drinking when the alleged victims were asleep or falling asleep
3. MRE 413(a) (2016 ed) creates an exception to MRE 404(b)(1) by providing that in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. And the evidence may be considered on any matter to which it is relevant; although MRE 413(a) sometimes may allow a court to consider propensity evidence, the rule is limited by US v. Hills, 75 MJ 350 (CAAF 2016), and US v. Hukill, 76 MJ 219 (CAAF 2017); these decisions prohibit using evidence of one charged offense as proof of another charged offense under MRE 413
4. under MRE 404(b)(2), while evidence of a crime, wrong, or other act may not be used to show character or propensity, it may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident; one proper purpose of such evidence is to prove the existence of a plan or scheme

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. MRE 413(a) (2016 ed) creates an exception to MRE 404(b)(1) by providing that in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. And the evidence may be considered on any matter to which it is relevant; although MRE 413(a) sometimes may allow a court to consider propensity evidence, the rule is limited by US v. Hills, 75 MJ 350 (CAAF 2016), and US v. Hukill, 76 MJ 219 (CAAF 2017); these decisions prohibit using evidence of one charged offense as proof of another charged offense under MRE 413

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. to reverse for an abuse of discretion involves far more than a difference in opinion; the challenged action must be found to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous in order to be invalidated on appeal