       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                      UNITED STATES
                    Appellee/Cross-Appellant
                                v.
         Ralph J. HYPPOLITE II, Staff Sergeant
       United States Air Force, Appellant/Cross-Appellee

                    Nos. 19-0119 & 19-0197
                     Crim. App. No. 39358

         Argued May 22, 2019—Decided August 1, 2019
 Military Judges: Charles E. Wiedie Jr. and Joseph S. Imburgia
   For Appellant/Cross-Appellee: William E. Cassara, Esq.
   (argued); Major Dustin J. Weisman (on brief); Lieutenant
   Colonel Anthony D. Ortiz.
   For Appellee: Captain Michael T. Bunnell (argued); Colo-
   nel Julie L. Pitvorec, Lieutenant Colonel Joseph J. Kubler,
   and Mary Ellen Payne, Esq. (on brief).
   Judge MAGGS delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN and
   SPARKS, joined. Judge OHLSON filed a separate dis-
   senting opinion.
                     _______________

   Judge MAGGS delivered the opinion of the Court.
    Under Military Rule of Evidence (M.R.E.) 404(b)(1), 1
evidence that an accused committed one offense is not
admissible to prove that the accused had the propensity to
commit another offense. But under M.R.E. 404(b)(2), such
evidence “may be admissible for another purpose.” In this
case, the military judge who heard the pretrial motions
(motions judge) and the military judge who presided at trial
(trial judge) agreed on the application of M.R.E. 404(b)(1)




   1  The version of M.R.E. 404(b) in the Manual for Courts-
Martial, United States (2016 ed.) (MCM) applies to this case be-
cause the court-martial occurred in March, May, and June 2017.
       United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                         Opinion of the Court

and (2). They ruled that evidence that Appellant 2 committed
the offenses alleged in Specifications 1, 2, and 3 of the sole
charge could be used to show that Appellant engaged in a
plan or scheme of criminality encompassing not only those
offenses but also the offenses alleged in Specifications 4 and
5 of the charge. The United States Air Force Court of
Criminal Appeals (AFCCA), in affirming parts of the
findings and the sentence, determined that the motions
judge and the trial judge abused their discretion in making
this evidentiary ruling but held that this error was
harmless. United States v. Hyppolite, No. ACM 39358, 2018
CCA LEXIS 517, at *35–39, 2018 WL 5516681, at *12–13
(A.F. Ct. Crim. App. Oct. 25, 2018). We affirm the judgment
of the AFCCA, but our reasoning is different. We conclude
that the motions judge and trial judge did not abuse their
discretion in their M.R.E. 404(b) ruling. We therefore do not
reach the issue of prejudice.
                          I. Background
    Appellant was charged with five specifications of violat-
ing Article 120, UCMJ, 10 U.S.C. § 920 (2012). Specifica-
tions 1, 2, and 3 accused Appellant of committing abusive
sexual contact by touching the genitalia of Senior Airman
(SrA) RMW, SrA SAK, and Airman First Class (A1C) STK
with the intent of gratifying Appellant’s sexual desire when
Appellant knew or reasonably should have known that these
men were sleeping. Specifications 4 and 5 accused Appellant
of committing abusive sexual contact and sexual assault, al-
leging that Appellant touched Airman (Amn) JCD’s genitals
and that he penetrated Amn JCD’s mouth and anus with his
penis, causing bodily harm to Amn JCD. 3


   2 Staff Sergeant Ralph J. Hyppolite II is both an appellant and
a cross-appellee in this case. For convenience, we will refer to him
simply as “Appellant.”
   3  At the time of trial, SrA RMW and SrA SAK had been pro-
moted to the rank of Staff Sergeant (SSgt), A1C STK had left the
Air Force, and Amn JCD had been promoted to the rank of Air-
man First Class. The charge sheet and the AFCCA use their ranks
at the time of trial, however, we will use their ranks at the time of
the alleged offenses. Appellant was an NCO SSgt at the time of
the alleged offenses.



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    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

    Prior to trial, Appellant moved to sever Specifications 1,
2, and 3 from Specifications 4 and 5. Appellant argued that
evidence of the acts alleged in Specifications 1, 2, and 3
would not be relevant to Specifications 4 and 5 for any
purpose. The motions judge disagreed, and denied
Appellant’s motion to sever the specifications. While
recognizing that M.R.E. 404(b)(1) would make evidence of
the acts alleged in Specifications 1, 2, and 3 inadmissible to
prove that Appellant had the propensity to commit the acts
alleged in Specifications 4 and 5, the motions judge
concluded that the evidence was admissible under M.R.E.
404(b)(2) because “[e]ach specification is probative as to the
other specifications on the issue of a common plan on the
part of the accused.”
    In reaching this conclusion, the motions judge applied
the Court’s decision in United States v. Reynolds, 29 M.J.
105 (C.M.A. 1989), which identified the following three ques-
tions regarding the standards for admitting evidence of un-
charged misconduct:
      1. Does the evidence reasonably support a finding
      by the court members that appellant committed
      prior crimes, wrongs or acts? United States v. Mi-
      randes-Gonzalez, 26 M.J. 411 (C.M.A. 1988).
      2. What “fact . . . of consequence” is made “more” or
      “less probable” by the existence of this evidence?
      Mil. R. Evid. 401; United States v. Ferguson, [28
      M.J. 104, 108 (C.M.A. 1989)].
      3. Is the “probative value . . . substantially out-
      weighed by the danger of unfair prejudice”? Mil. R.
      Evid. 403; [S. Saltzburg et al., Military Rules of Ev-
      idence Manual 362 (2d ed. 1986 & 1988 Supp.)].
Id. at 109 (first and third alterations in original). The mo-
tions judge found that the first standard was satisfied by the
proffered evidence. With respect to the second standard, the
motions judge recognized that M.R.E. 404(b) would not per-
mit the evidence to be admitted to show propensity but could
be admitted to show that Appellant had acted pursuant to a
“common plan.” The motions judge reasoned:
      Evidence of a common plan has been held admissi-
      ble under M.R.E. 404(b). See United States v.




                                3
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

      Munoz, 32 M.J. 359 (C.A.A.F. 1991); and United
      States v. Johnson, 49 M.J. 467 (C.A.A.F. 1998).
      In this case, the common factors were the relation-
      ship of the alleged victims to the accused (friends),
      the circumstances surrounding the alleged commis-
      sion 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 nature of the misconduct al-
      leged in specification 5 is different than the other
      allegations but is alleged to have occurred in con-
      nection with the alleged touching of [Amn JCD’s]
      genitalia. This court finds that each specification is
      relevant and probative as to the other specifications
      regarding the accused’s common plan to engage in
      sexual conduct with his friends after they have
      been drinking or were asleep or falling asleep.
   After arraignment, the motions judge was excused from
the court-martial. A different military judge (trial judge)
was detailed. Appellant elected to be tried by the trial judge
without members.
    At trial, the men identified as victims in the first three
specifications testified that they had been friends or room-
mates of Appellant. They also testified that, in separate in-
cidents, they had been drinking with Appellant, had retired
for the evening, and then had fallen asleep. With varying
degrees of certainty, they further testified that Appellant
surreptitiously and without their consent, had touched their
genitals after they had fallen asleep.
    The testimony regarding the fourth and fifth specifica-
tions was similar but not exactly the same. The alleged vic-
tim, Amn JCD, testified that he knew Appellant in a profes-
sional context and that their relationship grew more relaxed
and became more social over time, culminating in Appellant
inviting Amn JCD to his house for a party. Amn JCD testi-
fied that after a night of drinking at the party, he became
uncomfortably intoxicated and asked Appellant where he
could sleep. Appellant offered his bed, so Amn JCD went to
Appellant’s room alone to sleep in Appellant’s bed.
   Amn JCD awoke when Appellant entered the room and
lay down next to him. Appellant then asked Amn JCD if he
had ever considered engaging in sex with a man. Amn JCD


                                4
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

told him that he had not and that he merely wanted to sleep.
Appellant then touched Amn JCD’s genitals over his cloth-
ing and repeated his inquiry to which Amn JCD repeated his
response. This exchange was repeated three to four times.
Amn JCD testified that he had no recollection of what hap-
pened immediately after that. But Amn JCD recalled that
he subsequently became aware that Appellant’s penis was in
his mouth and then later that Appellant’s penis was pene-
trating his anus. Amn JCD testified that he did not consent
to this sexual activity.
    At the close of evidence but before arguments on the find-
ings, the trial judge and counsel for each side reopened the
question of how the first three specifications might be rele-
vant to the fourth and fifth specifications. Following a sub-
stantial discussion of the issue, the trial judge announced
that he would not disturb the motions judge’s ruling that ev-
idence 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.”
   In his argument on the findings, trial counsel first re-
viewed the evidence with respect to each offense and then
concluded by addressing M.R.E. 404(b). He asserted that the
evidence relevant to each specification showed a common
scheme and thereby negated any defense of mistake. After
summarizing the commonalities among the offenses, trial
counsel advised the military judge:
      TC: . . . And, you can absolutely use those common-
      alities as you’re looking at each of these fact pat-
      terns and deciding exactly what happened, as
      you’re deciding if the accused is, in fact, guilty;
      that’s what was going on.


                               5
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

       TC: The accused knew what he was doing, he knew.
       He knew what he was doing when he was doing it.
       He knew what he was doing after he did it. . . . He
       knows that it wasn’t a joke. It wasn’t a joke then. It
       wasn’t a joke now.
   During the defense’s argument on the findings, trial
defense counsel responded by arguing that the evidence was
insufficient. Trial defense counsel also reminded the
military judge not to consider any evidence of propensity,
saying:
       DC: . . . Standing alone, the evidence on each and
       every one of these specifications, standing alone, as
       the law requires, the evidence on each and every
       one of these specifications has gaps that can only be
       filled in by propensity assumptions. Since Your
       Honor will not do that, you must find Sergeant
       Hyppolite not guilty on the charge and each of its
       specifications.
   In reply, trial counsel expressed agreement that the trial
judge could not consider propensity evidence and insisted
that the Government was seeking to use evidence of each
specification to show a common plan. “A scheme, yes,” trial
counsel asserted. “Not propensity. That’s not what I’m argu-
ing, a scheme, as is allowed under the law; that’s exactly
what this is and [how] we look at it.”
    The trial judge found Appellant guilty of Specifications 1,
3, 4, and 5, and not guilty of Specification 2. The trial judge
subsequently sentenced Appellant to reduction to E-1, forfei-
ture of all pay and allowances, confinement for seven years,
and a dishonorable discharge. The convening authority ap-
proved the adjudged findings and sentence.
    On appeal, the AFCCA found the evidence factually in-
sufficient as to Specification 1 and vacated the finding of
guilty as to that specification. Hyppolite, 2018 CCA LEXIS
517, at *23–26, 2018 WL 5516681, at *8–9. The AFCCA also
concluded that the motions judge and the trial judge had
abused their discretion in applying the second prong under
the Reynolds test, rejecting their conclusion that evidence of
the sexual contacts alleged in Specifications 1, 2, and 3 made
more probable a fact of consequence for Specifications 4 and
5. Id. at *18–22, 2018 WL 5516681, at *7–8. The AFCCA de-



                                 6
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

termined that there was no common plan or scheme, ex-
plaining:
      In Specifications 1–3, Appellant acted secretively
      while his friends slept, whereas, in Specifications 4
      and 5, Appellant initiated sexual contact with
      [Amn JCD] while [Amn JCD] was awake and aware
      of Appellant’s presence and Appellant communicat-
      ed Appellant’s desire to engage in sexual activity
      with [Amn JCD].
Id. at *20, 2018 WL 5516681, at *7. The AFFCA, however,
determined that the error was harmless after applying the
factors that this Court considered in United States v.
Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007). Hyppolite, 2018
CCA LEXIS 517, at *36–39, 2018 WL 5516681, at *12–13.
   We granted Appellant’s petition for review of the issue
“[w]hether 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.”
The Government then certified the following 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.”
                          II. Analysis
    Evidence may be admissible for some purposes but not
others. See United States v. Phillips, 52 M.J. 268, 271
(C.A.A.F. 2000). In this case, evidence regarding Specifica-
tions 1, 2, and 3 was certainly relevant and admissible to
prove that Appellant committed each of these three specifi-
cations. But the question in this case is whether the trial
judge—in following the ruling of the motions judge—abused
his discretion in deciding that evidence regarding Specifica-
tions 1, 2, and 3 could also be considered for the purpose of
proving Specifications 4 and 5. Id. at 272 (reviewing the de-
cision of a military judge to admit evidence under M.R.E.
404(b) for an abuse of discretion).
   We agree with the motions judge, the trial judge, and the
AFCCA that our decision in Reynolds, 29 M.J. at 109,
provides the correct framework for addressing this question.



                               7
       United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                         Opinion of the Court

We also agree that the first and third standards identified in
Reynolds are satisfied. The issue in dispute is the second
Reynolds standard: “What fact . . . of consequence is made
more or less probable by the existence of this evidence?” Id.
(alteration in original) (internal quotation marks omitted)
(citations omitted). This standard can be met in this case
only if the evidence at issue is not excluded by M.R.E.
404(b)(1) and is admissible for a proper purpose under
M.R.E. 404(b)(2).
                        A. M.R.E. 404(b)(1)
    Both parties agree that the military judge could not con-
sider 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 Specifi-
cations 4 and 5. M.R.E. 404(b)(1) provides: “Evidence of a
crime, wrong, or other act is not admissible to prove a per-
son’s character in order to show that on a particular occasion
the person acted in accordance with the character.”4 Appel-
lant, 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).
   We disagree with Appellant’s argument because we see
nothing in the record to support his position. As described

   4  M.R.E. 413(a) (2016 ed.) creates an exception to M.R.E.
404(b)(1) by providing: “In a court-martial proceeding for a sexual
offense, the military judge may admit evidence that the accused
committed any other sexual offense. The evidence may be consid-
ered on any matter to which it is relevant.” Although M.R.E.
413(a) sometimes may allow a court to consider propensity evi-
dence, the rule is limited by our decisions in United States v. Hills,
75 M.J. 350 (C.A.A.F. 2016), and United States v. Hukill, 76 M.J.
219 (C.A.A.F. 2017). Those decisions prohibit using evidence of
one charged offense as proof of another charged offense under
M.R.E. 413. In this case, however, the motions judge and the trial
judge did not rely on M.R.E. 413(a). As explained here, they also
refused to consider the evidence admitted for the purpose of show-
ing propensity.




                                  8
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

above, trial defense counsel reminded the trial judge of the
prohibition against propensity evidence during arguments
on findings. Trial counsel agreed with this prohibition and
insisted that the Government was arguing only that the
evidence showed a plan or scheme, not propensity. The trial
judge adopted the motions judge’s written decision regarding
M.R.E. 404(b), which repeatedly made clear that the
evidence regarding Specifications 1, 2, and 3 could not be
considered as evidence of propensity. The trial judge also
invited both parties to argue about whether there was in
fact a scheme. All of this 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.
                     B. M.R.E. 404(b)(2)
    Under M.R.E. 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.”
As the motions judge correctly recognized, we have
previously held that one proper purpose of such evidence is
to prove the existence of a plan or scheme. United States v.
Munoz, 32 M.J. 359 (C.M.A. 1991); United States v. Johnson,
49 M.J. 467 (C.A.A.F. 1998). 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.
    In Munoz, the appellant was charged with committing
indecent acts against one of his daughters. 32 M.J. at 360.
The government sought to introduce evidence that the ap-
pellant previously had sexually abused his other daughters.
Id. at 360–61. The military judge admitted the evidence un-
der M.R.E. 404(b), finding it “to be probative of a plan on the
accused’s part to sexually abuse his children.” Id. at 361.
This Court recognized that the military judge found common


                              9
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

factors between the uncharged acts and the charged acts
such as “age of the victim, the situs of the offenses, the cir-
cumstances surrounding their commission, and the fondling
nature of the misconduct.” Id. at 363. We agreed with this
analysis and concluded that the military judge did not abuse
his discretion. Id. at 363–64.
    The facts in Johnson were similar. The appellant was
charged with sodomy, indecent acts, and carnal knowledge
with his younger daughter. 49 M.J. at 468. The government
sought to introduce evidence that the appellant previously
had sexually abused his older daughter. Id. at 469. The mili-
tary judge ruled that the evidence was admissible because it
showed “a pattern of behavior of the accused” which the mil-
itary judge considered to be a “design or system.” Id. at 474
(internal quotation marks omitted). This Court cited these
common factors between the charged acts and the uncharged
acts: “Both statements detail a pattern of abuse, beginning
in the children’s preteen years, that started with fondling,
progressed to masturbation and oral sodomy, and ultimately
culminated in partial penetration.” Id. at 475. Following
Munoz, this Court held that the military judge had not
abused his discretion in admitting the evidence. Id.
    In this case, the motions judge cited Munoz and Johnson
and closely followed their analysis. The motions judge rec-
ognized 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 na-
ture of the misconduct (touching the alleged victims’ genita-
lia).” 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. In Johnson, we addressed our
standard of review of this issue: “To reverse for an abuse of
discretion involves far more than a difference in . . . opin-


                              10
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

ion. . . . The challenged action must . . . be found to be arbi-
trary, fanciful, clearly unreasonable, or clearly erroneous in
order to be invalidated on appeal.” 49 M.J. at 473 (altera-
tions in original) (internal quotation marks omitted) (cita-
tions omitted). Under this deferential standard, we see no
abuse of discretion. 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.
    Appellant urges that we should adopt the AFCCA’s con-
clusion that he could not have acted pursuant to a common
plan or scheme in committing all of the charged offenses be-
cause Amn JCD, the alleged victim in Specifications 4 and 5,
was awake and aware of Appellant’s presence, while the al-
leged victims in Specifications 1, 2, and 3 were asleep. We
disagree. As the Government points out, the trial judge
could have found that, before Appellant entered the room,
his scheme or plan was to take advantage of Amn JCD while
he was sleeping. But when Appellant realized that Amn
JCD was awake, in the Government’s words, “he did not
abandon his plan, he simply adjusted fire” by speaking first
to Amn JCD.
    On this point, the facts here are similar to the facts in
Reynolds. The accused in Reynolds was charged with raping
a woman in his quarters after bringing her there following a
date. 29 M.J. at 105–06. In its case-in-chief, the government
sought to introduce evidence that the accused previously had
committed a similar offense against another woman, MG,
arguing that the evidence “show[ed] a common scheme, plan,
or design.” Id. at 107–08. The military judge permitted MG’s
testimony for this purpose and instructed the panel mem-
bers that they may consider the evidence for the limited
purpose to show “ ‘a plan or design of the accused to achieve
sexual intercourse with or without the consent of the other
party.’ ” Id. at 108. The facts of the charged offense and the
facts of the acts against MG in Reynolds were not exactly
the same. One important difference was that MG managed
to leave the accused’s room when he started to assault her.


                              11
    United States v. Hyppolite, Nos. 19-0119/AF, 19-0197/AF
                      Opinion of the Court

Id. at 107. But, the accused then followed MG in his car,
picked her up and drove her a mile down the road where he
stopped and raped her. Id. Despite this difference in how the
attacks ultimately occurred, this Court found that the mili-
tary judge did not abuse his discretion in concluding that the
accused still had a common plan that was relevant in deter-
mining this intent. Id. at 110–11. We explained that “[t]he
logical inference to be drawn from his similar acts was that
he had worked out a system to put his victim into an unsus-
pecting and vulnerable position whereby he could engage in
sexual intercourse with or without consent.” Id. at 110.
Likewise, in the present case, we conclude that the military
judges did not abuse their discretion in deciding that Appel-
lant had a common plan to take advantage of his sleeping
friends even though it turned out that Amn JCD was not
asleep when Appellant began the assault.
    Appellant also argues that the Government, at trial, only
sought to use the evidence presented in support of Specifica-
tions 1, 2, and 3 as proof of a common plan or scheme, and
that the Government did not seek, nor did the military judg-
es permit, the evidence to be used as proof of Appellant’s in-
tent. The Government responds that the common plan and
scheme evidence was intent evidence because mistake of fact
was the only issue in controversy. We agree with the Gov-
ernment. Indeed, trial counsel’s argument on findings makes
clear that the position of the Government was that proof of a
common plan or scheme showed that Appellant “knew what
he was doing” when he committed the charged offenses.
                III. Decision and Judgment
    The certified question is answered in the affirmative. Be-
cause we conclude that the motions and trial judges did not
abuse their discretion, we have no need to consider the issue
assigned by Appellant regarding prejudice. The findings and
sentence, as approved by the United States Air Force Court
of Criminal Appeals, are affirmed.




                              12
   United States v. Hyppolite, Nos. 19-0119/AF & 19-0197/AF


   Judge OHLSON, dissenting.
    Unlike the majority, I believe the Air Force Court of
Criminal Appeals (CCA) was correct in concluding that the
trial judge and motions judge abused their discretion in this
case. Further, I believe the judges’ error materially preju-
diced a substantial right of Appellant. Therefore, I respect-
fully dissent.
    To be sure, there were some commonalities between the
offenses charged under Specifications 1, 2, and 3 and the of-
fenses charged under Specifications 4 and 5. The motions
judge characterized them as follows: “[T]he accused’s com-
mon 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 suffi-
cient support for their determination that there was a com-
mon plan or scheme under the provisions of Military Rule of
Evidence (M.R.E.) 404(b). First, these commonalities are no-
tably generalized and superficial. And second, there are im-
portant differences between the factual underpinnings of the
two sets of specifications, and these differences vitiate any
significance attributed to the cited commonalities. Specifical-
ly, as noted by the CCA: “In Specifications 1–3, Appellant
acted secretively while his friends slept, whereas in Specifi-
cations 4 and 5, Appellant [openly] initiated sexual contact
with SrA JD while SrA JD was awake and aware of Appel-
lant’s presence and Appellant communicated Appellant’s de-
sire to engage in sexual activity with SrA JD.” United States
v. Hyppolite, No. ACM 39358, 2018 CCA LEXIS 517 at *20,
2018 WL 5516681 at *7 (A.F. Ct. Crim. App. Oct. 25, 2018).
    In light of these factors, I believe the military judges’
ruling in this case ran directly afoul of this Court’s holding
in United States v. Morrison, in which we stated that
evidence of other acts “ ‘must be almost identical to the
charged acts’ to be admissible as evidence of a plan or
scheme.” 52 M.J. 117, 122 (C.A.A.F. 1999) (emphasis added)
(quoting United States v. Brannan, 18 M.J. 181, 183 (C.M.A.
1984)). Accordingly, I conclude that the military judges
abused their discretion in this case. (“A military judge
abuses his discretion … : (1) [if] the findings of fact upon
which he predicates his ruling are not supported by the
   United States v. Hyppolite, Nos. 19-0119/AF & 19-0197/AF
                  Judge OHLSON, dissenting

evidence of record; (2) if incorrect legal principles were used;
or (3) if his application of the correct legal principles to the
facts is clearly unreasonable.” United States v. Ellis, 68 M.J.
341, 344 (C.A.A.F. 2010).)
    In terms of prejudice, prior to trial Appellant moved to
have Specifications 1, 2, and 3 severed from Specifications 4
and 5. Importantly, Appellant was raising a mistake of fact
defense regarding Specifications 4 and 5, and Appellant ar-
gued that evidence of the acts alleged in Specifications 1, 2,
and 3 could not be used by the trial judge to prove that Ap-
pellant had the propensity to commit the acts alleged in
Specifications 4 and 5. Appellant further argued that evi-
dence of the acts alleged in Specifications 1, 2, and 3 was not
relevant to Specifications 4 and 5 for any purpose under
M.R.E. 404(b). However, the motions judge and the trial
judge ruled that evidence that Appellant committed the of-
fenses alleged in Specifications 1, 2, and 3 could be used to
show that Appellant engaged in a common plan or scheme
with regard to Specifications 4 and 5. The trial judge subse-
quently convicted Appellant of Specifications 1, 3, 4, and 5.
    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 pro-
pensity evidence in regard to the charged conduct in Specifi-
cations 4 and 5. See United States v. McCallum, 584 F.3d
471, 477 (2d Cir. 2009) (describing evidence improperly ad-
mitted under Fed. R. Evid. 404(b) as “propensity evidence in
sheep’s clothing”). This is impermissible. As we stated in
United States v. Hills: “It is antithetical to the presumption
of innocence to suggest that conduct of which an accused is
presumed innocent may be used to show a propensity to
have committed other conduct of which he is presumed inno-
cent.” 75 M.J. 350, 356 (C.A.A.F. 2016).
   Pursuant to our holding in Hills, we must determine
whether the Government has established that this error was
harmless beyond a reasonable doubt by showing that there
was no reasonable possibility that the error might have con-




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   United States v. Hyppolite, Nos. 19-0119/AF & 19-0197/AF
                  Judge OHLSON, dissenting

tributed to the verdict. See Hills, 75 M.J. at 358. I do not be-
lieve the Government has met this burden.
    At trial, the Government did not offer evidence to rebut
Appellant’s mistake of fact defense in regard to Specifica-
tions 4 and 5. Rather, during closing argument the Govern-
ment relied on the improperly admitted M.R.E. 404(b) evi-
dence 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 Specifi-
cations 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 ac-
cused is, in fact, guilty.” Therefore, in my view the Govern-
ment 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.
   For the foregoing reasons, I would answer the certified
question in the negative by holding that the military judges’
M.R.E. 404(b) ruling constituted an abuse of discretion, and
I would answer the granted issue in the affirmative by hold-
ing that Appellant was prejudiced by this error. Accordingly,
I would affirm in part and reverse in part the decision of the
United States Air Force Court of Criminal Appeals, set aside
the findings with respect to Specifications 4 and 5, and au-
thorize a rehearing on those offenses and the sentence.




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