                  U NITED S TATES AIR F ORCE
                 C OURT OF C RIMINAL APPEALS
                               ________________________

                                    No. ACM 39358
                               ________________________

                                  UNITED STATES
                                      Appellee
                                            v.
                           Ralph J. HYPPOLITE, II
                 Staff Sergeant (E-5), U.S. Air Force, Appellant
                               ________________________

           Appeal from the United States Air Force Trial Judiciary
                              Decided 25 October 2018 1
                               ________________________

Military Judge: Charles E. Wiedie, Jr. (arraignment); Joseph S. Im-
burgia.
Approved sentence: Dishonorable discharge, confinement for 7 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 8 June 2017 by GCM convened at Kadena Air Base, Japan.
For Appellant: William E. Cassara, Esquire (argued); Captain Dustin
J. Weisman, USAF.
For Appellee: Major J. Ronald Steelman, III, USAF; Captain Michael
T. Bunnell (argued), USAF; Mary Ellen Payne, Esquire.
Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior
Judge HARDING joined. 2 Judge HUYGEN filed a separate opinion
concurring in the result in part and dissenting in part.
                               ________________________



1   We heard oral argument in this case on 5 September 2018.
2   Senior Judge Harding participated in this decision prior to his retirement.
                  United States v. Hyppolite, No. ACM 39358


    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                            ________________________

POSCH, Judge:
    A general court-martial composed of a military judge found Appellant
guilty, contrary to his pleas, of three specifications of abusive sexual contact
and one specification of sexual assault, all in violation of Article 120, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920. Appellant was acquitted of
one specification of abusive sexual contact. The military judge sentenced Ap-
pellant to a dishonorable discharge, confinement for seven years, forfeiture of
all pay and allowances, and reduction to the grade of E-1. The convening au-
thority approved the adjudged sentence.
    Appellant raises five issues on appeal: (1) whether the military judge
erred in allowing the Government to use the charged offenses as evidence of a
plan or scheme under Mil. R. Evid. 404(b) to prove other charged offenses; (2)
whether the evidence is legally and factually sufficient to support the convic-
tions; (3) whether the convening authority improperly referred Specifications
1 and 5 of the Charge alleging sexual misconduct after a preliminary hearing
officer (PHO) determined there was no probable cause to believe Appellant
committed those offenses; (4) whether the addendum to the staff judge advo-
cate’s recommendation (SJAR) failed to adequately address raised legal er-
rors and provided incomplete advice to the convening authority; and (5)
whether the military judge erred by admitting messages Appellant sent to
Senior Airman (SrA) JD, in which Appellant took “full responsibility for what
happened,” without also admitting later messages from the conversation,
which showed that Appellant believed he and SrA JD both made bad deci-
sions while they were drunk. 3 We also considered the issue of post-trial delay,
although it was not raised by Appellant.
    We find the evidence is factually insufficient to sustain the conviction of
abusive sexual contact of Staff Sergeant (SSgt) RW in Specification 1 of the
Charge. We thus set aside the finding of guilt for Specification 1 and reassess
the sentence. We also find the military judge erred in ruling that evidence of
a common plan or scheme under Mil. R. Evid. 404(b) was relevant and proba-
tive for all specifications but conclude the error was harmless. Finding no fur-
ther error, we affirm the remaining convictions and sentence as reassessed.

3Appellant personally asserts issues (4) and (5). See United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).




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                  United States v. Hyppolite, No. ACM 39358


                                 I. BACKGROUND
    The five charged offenses span a two-year period when Appellant and the
alleged victims were assigned to the same unit at Seymour Johnson Air Force
Base, North Carolina. The allegations involve three Airmen and a former
Airman, SSgt RW, SSgt SAK, Mr. STK, and SrA JD, who all testified at Ap-
pellant’s court-martial. 4 In Specifications 1–3, Appellant was alleged to have
committed abusive sexual contact by touching the genitalia of SSgt RW, SSgt
SAK, and Mr. STK, respectively, either directly or through their clothing,
while each was asleep, with an intent to gratify Appellant’s sexual desire. In
Specification 4, Appellant was alleged to have committed abusive sexual con-
tact by causing bodily harm by touching SrA JD’s genitalia with an intent to
gratify Appellant’s sexual desire. In Specification 5, Appellant was alleged to
have sexually assaulted SrA JD by penetrating his mouth and anus with Ap-
pellant’s penis.
    The military judge applied Mil. R. Evid. 404(b) to find a common plan or
scheme and ruled that evidence of each offense alleged in Specifications 1–3
was relevant and probative as to Specifications 4 and 5 and vice versa. The
military judge convicted Appellant of abusive sexual contact of SSgt RW, Mr.
STK, and SrA JD (Specifications 1, 3, and 4, respectively) and of sexual as-
sault of SrA JD (Specification 5). Appellant was acquitted of abusive sexual
contact of SSgt SAK (Specification 2). At trial, the parties presented evidence
as described below.
A. Evidence of Abusive Sexual Contact of SSgt RW, SSgt SAK, and
Mr. STK (Specifications 1–3)
    1. SSgt RW
   SSgt RW and Appellant became friends in technical training and worked
together in the same unit at Seymour Johnson Air Force Base. They re-
mained friends and were housemates from the fall of 2011 until SSgt RW
moved out just before Appellant transferred to a new duty assignment in
2014. In August 2012, Appellant, SSgt RW and other Airmen were on a tem-
porary duty (TDY) assignment to Mountain Home Air Force Base, Idaho, and
were billeted on base in individual rooms. One evening Appellant, SSgt RW,
and others visited a bar to celebrate SSgt RW’s birthday and consumed alco-


4For consistency, we refer to the Airmen by their grade on the charge sheet and
when they testified. At the time of the respective alleged offenses, SSgt RW and SSgt
SAK were Senior Airmen (E–4), Mr. STK was an Airman First Class (E–3), and SrA
JD was an Airman (E–2).




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                 United States v. Hyppolite, No. ACM 39358


hol. Around 0200, the group, including Appellant and SSgt RW, returned to
lodging. SSgt RW went to bed in his own room wearing only boxer-brief un-
derwear.
    After falling asleep, SSgt RW woke from a “very, oddly realistic” dream
about having sexual intercourse with a woman. He testified that during the
dream he “felt weight” on his body, and “[i]t actually felt like [he] was having
intercourse.” Then, “when it just seemed too real and [he] woke up from [his]
sleep,” he called out, “who’s there?” unsure if someone else was in his room or
not. After a moment of silence, SSgt RW felt movement at the foot of the bed
and observed a figure run out of the room. SSgt RW sprang out of bed and
gave chase. He pulled up his underwear as he pursued because the waist
band of his briefs covered only the bottom half of his genitalia. His penis was
partially exposed but still tucked under the waistband of his briefs. In the
light of the hallway, SSgt RW observed Appellant, wearing only underwear,
go into Appellant’s room.
    SSgt RW returned to his room to go back to bed and noticed his penis was
“wet.” He was confused, “didn't know what to think,” and “didn’t know if any-
thing was even real at that point.” SSgt RW testified he texted a coworker
and relayed some of what happened to him, except he told her that the dream
involved him and Appellant having sex. The coworker testified that SSgt RW
knocked on her door after everyone had returned to lodging from the bar, and
he looked like he had seen a ghost. He appeared panicked, out of breath, pale,
“clammy looking,” and sweaty, and he repeated over and over that “[Appel-
lant] was in my room.” SSgt RW testified he was terrified but convinced him-
self that the incident was a dream, that nothing had happened with Appel-
lant, and that the wetness he felt was his own sweat.
    SSgt RW remained housemates with Appellant for at least 16 months af-
ter the incident and nothing similar happened to him again. SSgt RW contin-
ued to believe the incident in his billeting room was a dream. That belief
changed in December 2013 or early 2014 when SSgt RW learned of an inci-
dent involving Appellant and another housemate. Consequently, SSgt RW led
an “intervention” with at least three other Airmen, including SSgt SAK and
Mr. STK, to confront Appellant about his behavior. Speaking for the group,
SSgt RW told Appellant that they knew what he had been doing to them
when they were sleeping or after they had been drinking and that he needed
to stop. None of the Airmen went into detail about what each believed Appel-
lant had done. Appellant appeared nervous and responded, “I know it’s a
problem . . . it’s caused by when I drink,” or words to that effect, but did not
admit to specifics of any particular incident. They told Appellant they would
report him if it happened again. Even though they tried to stay friends with



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                 United States v. Hyppolite, No. ACM 39358


Appellant, Appellant started to avoid them and soon thereafter SSgt RW
moved out of the house.
  The military judge convicted Appellant of abusive sexual contact of SSgt
RW as charged in Specification 1.
   2. SSgt SAK
    SSgt SAK testified that he knew Appellant from technical training and
work and was once housemates and close friends with Appellant. Outside of
work SSgt SAK and a group of friends that included Appellant and SSgt RW
spent time together at house parties, bars, movies, and the like. After he had
moved out of the house, in October 2013, he and Appellant went to a bar,
drank alcohol, and returned to Appellant’s house. SSgt SAK fell asleep on a
couch and awoke three hours later to find his pants’ zipper undone and his
penis and testicles fully exposed through the opening in his underwear. SSgt
SAK testified that Appellant’s housemates were absent and he was alone
with Appellant. SSgt SAK had no recollection of Appellant touching his geni-
talia. He did not think at the time that Appellant had done anything unto-
ward until about January 2014 when SSgt RW related his own incident with
Appellant when the two were TDY.
  The military judge acquitted Appellant of abusive sexual contact of SSgt
SAK as charged in Specification 2.
   3. Mr. STK
    Mr. STK described Appellant as a best friend and coworker. He was con-
sidered the “extra roommate” because two or three times a week he was at
Appellant’s house. Their off-duty time together included going to bars and
riding motorcycles on weekends. Sometime in 2013 or early 2014, Mr. STK
and Appellant completed their shifts and went to Appellant’s house. Both
drank alcohol and no one else was present. Mr. STK consumed several beers
and, although not intoxicated, fell asleep on the couch wearing his Airman
Battle Uniform (ABU). As he slept on his back, Mr. STK woke up feeling
someone touch his groin near his penis and reach for his belt. He observed a
hand reaching over the back of the couch and touching his genitalia over his
ABU at least five times, and each time Mr. STK swatted at the hand. Finally,
Mr. STK stood up and asked Appellant, who was behind the couch, “What are
you doing?” Mr. STK observed Appellant crouched over, face down as if Ap-
pellant were “trying to hide,” and then Appellant “scurried” away.
  The military judge convicted Appellant of abusive sexual contact of Mr.
STK as charged in Specification 3.




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                 United States v. Hyppolite, No. ACM 39358


B. Evidence of Abusive Sexual Contact and Sexual Assault of SrA JD
(Specifications 4 and 5)
    SrA JD, who was then an E–2, met Appellant in June 2014, soon after
SrA JD had graduated from technical training and was assigned to Appel-
lant’s unit. SrA JD thought of Appellant, an E–5, as an “acquaintance.” In
August 2014, SrA JD accepted an invitation to a party at Appellant’s house
along with six to eight other Airmen from the unit. Appellant served alcoholic
beverages, including to SrA JD who had at least three or four mixed drinks.
Early in the evening, SrA JD “was feeling quite intoxicated” to the point that
he was slurring words and bumping into things. SrA JD told Appellant he
“felt really drunk” and was concerned about where he was going to sleep. Ap-
pellant offered him Appellant’s bed, and he went to Appellant’s bedroom,
closed the door, lay on top of the bedding with his clothes on, and quickly fell
asleep.
    SrA JD testified that he woke to the sound of the door opening and Appel-
lant entering the bedroom. As Appellant got on the bed to lie down, SrA JD
felt awkward because he thought Appellant would sleep somewhere else.
However, SrA JD knew there was plenty of room for them both, compared
sharing the bed with Appellant to military members showering together in
Basic Military Training, and was not going to “kick [Appellant] out of his own
bed.” Appellant rolled to face SrA JD and asked SrA JD “if [he]’d ever wanted
to experiment with guys, or if [he]’d ever thought about messing around with
other guys.” Still feeling the effects of alcohol, including a headache and nau-
sea, SrA JD responded, “no, man. I just want to go to sleep.” As SrA JD lay on
his back, Appellant reached out and grabbed SrA JD’s penis over his shorts
and began to massage it. Meanwhile, Appellant asked SrA JD, “you’ve never
thought about it before?” and “are you sure?” Three or four times, SrA JD told
Appellant variously “no, man” and that he just wanted to sleep. Appellant
persisted in touching SrA JD’s genitalia through his clothing and trying to
change his mind. SrA JD testified that Appellant’s conduct in touching his
genitalia was the first time a male had ever done something like that to him.
    The next thing SrA JD recalled was being naked with his feet towards the
head of the bed, his head positioned over Appellant’s groin, and Appellant
moving Appellant’s penis into and out of SrA JD’s mouth. SrA JD testified
that he did not recall his precise position or how he got into that position and
felt “disassociated” from what was happening. SrA JD felt a “dullness of
senses” and the same effects of intoxication from alcohol that he felt when
Appellant was rubbing his penis. SrA JD testified that he remembered tast-
ing lotion and noticed Appellant was naked at least from the neck to the
knees, and he did not try to stop Appellant. He remembered Appellant
“grabbed” and “kind of pushed and moved” him to a “chest-to-chest” position


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                   United States v. Hyppolite, No. ACM 39358


so that SrA JD was on top of Appellant. SrA JD did not resist because, ac-
cording to his testimony, he “disassociated” from what was happening to him
physically. Appellant then pushed his penis into SrA JD’s anus. SrA JD testi-
fied the penetration was very painful and he felt fear. He winced and may
have made a vocal expression of pain. Appellant stopped said he would finish
on his own and began to masturbate. SrA JD faced away from Appellant and
fell asleep. Later, SrA JD awoke, dressed, left Appellant asleep in the bed,
and laid awake on a couch in the living room for a couple hours. SrA JD testi-
fied that he had a “very severe headache and very bad nausea” as well as
soreness on his anus. He did not leave immediately because he thought he
might still be intoxicated. It did not occur to him to call someone to pick him
up and he just wanted to go back to sleep. When asked how he knew the sex-
ual acts were nonconsensual, SrA JD testified that he would not have en-
gaged in the acts had he been sober and that he did not feel like he had con-
sented at the time.
    That morning SrA JD told his girlfriend what had happened. He did not
report the incident to law enforcement because the thought of having the
“spotlight” on him, being an E–2 and new to the Air Force, was an “incredibly
terrifying thought.” About one month after the incident, among other at-
tempts to contact SrA JD, Appellant sent SrA JD a message stating Appel-
lant took “full responsibility for what happened that night. We were drunk
and one thing lead [sic] to another.” In 2016, SrA JD reported the assault af-
ter he learned he was to be transferred to a new base and assigned to the
same unit as Appellant.
    The military judge convicted Appellant of abusive sexual contact and sex-
ual assault of SrA JD as charged in Specifications 4 and 5.

                                   II. DISCUSSION
   Appellant submitted five assignments of error. We separately address
four of these issues 5 and post-trial delay below.


5 Appellant’s fourth assignment of error alleging defects in the post-trial processing of
his case is resolved by our assessment of the impact of the military judge’s error in
the Mil. R. Evid. 404(b) ruling. While we agree with Appellant that the SJAR adden-
dum incorrectly assessed the legal error in the use of Mil. R. Evid. 404(b) in his case,
we find no prejudicial error because the SJAR addendum was legally sufficient. Rule
for Courts-Martial 1106(d)(4). Thus, we have considered and reject this claim, which
neither requires additional analysis nor warrants relief. See United States v. Matias,
25 M.J. 356, 363 (C.M.A. 1987).




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                     United States v. Hyppolite, No. ACM 39358


A. Mil. R. Evid. 404(b) Evidence
    Before trial, the Defense moved to sever Specifications 1–3 from Specifica-
tions 4 and 5, as the latter specifications dealt with a different victim. The
Government argued, as a reason the motion to sever should be denied, 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.
    The crux of Appellant’s position throughout trial and on appeal is that the
sexual conduct alleged in each specification was separate and distinct and
must stand on its own. Appellant contends that the allegations were not suf-
ficiently similar to show a common plan and that allowing evidence of one
charged offense as evidence of a separate charged offense was tantamount to
allowing the factfinder to consider evidence of Appellant’s propensity to en-
gage in sexual misconduct. Appellant, citing United States v. Hukill, 76 M.J.
219 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F 2016),
renews on appeal his claim that the military judge misapplied Mil. R. Evid.
404(b) and Mil. R. Evid. 403 and improperly allowed charged offenses to be
used as propensity evidence to prove other charged offenses. 6
      1. Military Judge’s Ruling
    The military judge who presided on the motion agreed with the Govern-
ment and denied the Defense motion to sever. 7 To resolve the severance mo-
tion, the military judge determined that evidence admitted to prove Specifi-
cations 1–3 was probative as to Specifications 4 and 5 and vice versa. The
military judge applied the three-pronged test articulated in United States v.
Reynolds, 29 M.J. 105 (C.M.A. 1989), to find that Mil. R. Evid. 404(b) allowed
the evidence of one charged offense to be used to prove another.
   In Reynolds, the Court of Military Appeals, the predecessor to the United
States Court of Appeals for the Armed Forces (CAAF), established a three-
pronged test for the admission of evidence under Mil. R. Evid. 404(b): (1)
Does the evidence reasonably support a finding by the factfinder that Appel-


6In Hukill, 76 M.J. at 222, and Hills, 75 M.J. at 355–56, the United States Court of
Appeals for the Armed Forces (CAAF) held that the use of evidence of charged con-
duct as Mil. R. Evid. 413 propensity evidence for other charged conduct in the same
case is error, regardless of the forum, the number of victims, or any connection be-
tween the events.
7   Appellant does not challenge the severance ruling on appeal.




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                     United States v. Hyppolite, No. ACM 39358


lant committed other crimes, wrongs, or acts? (2) Does the evidence of the
other act make a fact of consequence to the instant offense more or less prob-
able? (3) Is the probative value of the evidence of the other act substantially
outweighed by the danger of unfair prejudice under Mil. R. Evid. 403? 29
M.J. at 109 (citations omitted). “If the evidence fails to meet any one of these
three standards, it is inadmissible.” Id.
   Applying the first Reynolds prong, the military judge found that a reason-
able member could find by a preponderance of evidence that Appellant en-
gaged in the conduct alleged in each charged specification. As to the second
prong, the military judge agreed with the Government that the evidence
could be used for a purpose other than to show propensity. The military judge
explained:
          In this case, the common factors were the relationship of the al-
          leged victims to the accused (friends), the circumstances sur-
          rounding 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 nature of the misconduct alleged in
          Specification 5 is different than the other allegations but is al-
          leged to have occurred in connection with the alleged touching
          of SrA [JD]’s genitalia. This court finds that each specification
          is relevant and probative as to the other specifications regard-
          ing the accused’s common plan to engage in sexual conduct
          with his friends after they have been drinking and were asleep
          or falling asleep.
    The military judge applied the third Reynolds prong and concluded the
probative value of the common-plan evidence was not substantially out-
weighed by the danger of unfair prejudice, such as the risk of confusion of the
issues, misleading the members, or any other factor listed in Mil. R. Evid.
403.
   Appellant elected trial by military judge alone. 8 After the presentation of
evidence, the military judge who presided at trial held the testimony at trial
was similar to the evidence on the motion to sever and, citing Rule for
Courts-Martial (R.C.M.) 801(e)(1)(A), did not disturb the motions judge’s Mil.
R. Evid. 404(b) ruling except to find a “scheme” instead of a “common plan.”



8   A change of military judge occurred after the ruling on the severance motion.




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                  United States v. Hyppolite, No. ACM 39358


   2. Law
    Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is not admissible as evidence of the person’s character in order to
show the person acted in conformity with that character on a particular occa-
sion. It cannot be used to show predisposition toward crime or criminal char-
acter; however, such evidence may be admissible for another purpose, includ-
ing, inter alia, proving intent or plan. Mil. R. Evid. 404(b); United States v.
Staton, 69 M.J. 228, 230 (C.A.A.F. 2010).
    The three-pronged test for determining the admissibility of evidence un-
der Mil. R. Evid. 404(b) is set forth in Reynolds, supra. The CAAF has applied
Reynolds when the Government seeks to use evidence of charged misconduct
for a Mil. R. Evid. 404(b) purpose to prove another charged offense. See Unit-
ed States v. Tanksley, 54 M.J. 169, 176 (C.A.A.F. 2000) (overruled in part on
other grounds by United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003)).
Consequently, we conclude that the Reynolds test for admissibility of un-
charged acts is instructive to determine use of facts underlying one charged
offense to prove a different charged offense.
    A military judge’s ruling under Mil. R. Evid. 404(b) and Mil. R. Evid. 403
will not be disturbed except for a clear abuse of discretion. United States v.
Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999) (citation omitted). In analyzing
discrete acts for evidence of a “plan,” we consider whether the “charged act is
an additional manifestation, or whether the acts merely share some common
elements.” United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (cita-
tions omitted). Evidence of other acts “‘must be almost identical to the
charged acts’ to be admissible as evidence of a plan or scheme.” Morrison, 52
M.J. at 122 (quoting United States v. Brannan, 18 M.J. 181, 183 (C.M.A.
1984)). The standard for a “scheme” is “significantly similar conduct.” Reyn-
olds, 29 M.J. at 110. In contrast, to be used as evidence of intent, the “other
wrongs or acts need only be similar to the offense charged and not too remote
therefrom.” United States v. Woodyard, 16 M.J. 715, 718 (A.F.C.M.R. 1983)
(footnote omitted) (citing United States v. Goodwin, 492 F.2d 1141, 1153 (5th
Cir. 1974)).
    “A military judge abuses his discretion when: (1) the findings of fact upon
which he predicates his ruling are not supported by the 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) (citing United States v. Mackie, 66 M.J. 198,
199 (C.A.A.F. 2008)). In reviewing the military judge’s decision to admit evi-
dence, “we consider the evidence ‘in the light most favorable to the’ prevailing
party.” United States v. Rodriguez, 60 M.J. 239, 246−47 (C.A.A.F. 2004) (cita-
tion omitted).

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                 United States v. Hyppolite, No. ACM 39358


   3. Analysis
   We agree with the military judge’s ruling on the first Reynolds prong. A
reasonable factfinder could find by a preponderance of evidence that Appel-
lant engaged in or attempted the conduct alleged in each of the five charged
specifications.
    As to the second Reynolds prong, a fact of consequence for Specifications
1–3 was whether Appellant engaged in a plan or scheme to touch the genita-
lia of friends in a way that evaded their notice or attention after they had
been drinking and were asleep. The separate evidence of Specifications 1, 2,
and 3 made this fact more probable than not for each offense charged in Spec-
ifications 1, 2, and 3. Appellant’s furtive conduct in Specifications 1–3 was
nearly identical and, therefore, could properly be used as evidence of a plan
or scheme common to Specifications 1–3. A second fact of consequence for
Specifications 1–3 was Appellant’s intent to gratify his sexual desire. Though
not articulated by the military judge, we find that the separate evidence of
Specifications 1, 2, and 3 made this fact more probable than not for each of-
fense charged in Specifications 1, 2, and 3 because it showed Appellant’s in-
tent to gratify his sexual desire as opposed to an intent to joke. The acts in
Specifications 1–3 are significantly alike, are not too remote, and support an
inference of Appellant’s intent to gratify his sexual desire. Thus, Appellant’s
plan or scheme to touch the genitalia of friends after they had been drinking
and were asleep and specific intent to gratify Appellant’s sexual desire are
facts of consequence for Specifications 1–3 made more probable by the evi-
dence of Specifications 1–3.
    As to the third Reynolds prong, the military judge properly applied the
Mil. R. Evid. 403 balancing test. The probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice to determine Ap-
pellant’s guilt of Specifications 1–3.
    We find, however, that 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. In Specifications
1–3, Appellant acted secretively while his friends slept, whereas, in Specifica-
tions 4 and 5, Appellant 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. The common fac-
tors between Specifications 1–3 and Specifications 4–5 were that Appellant
attempted sexual activity with a male Airman after the Airman had been
drinking and lain down to sleep. Considering that Appellant lived in a house
with several male Airmen and regularly socialized and drank alcohol with
these and other male Airmen, we find the acts charged as Specifications 1–3


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                   United States v. Hyppolite, No. ACM 39358


and the acts charged as Specifications 4–5 shared some common factors but
were insufficiently similar to prove a common plan or scheme. 9
    Therefore, we find that evidence of sexual contact supporting Specifica-
tions 1–3 did not make a fact of consequence for the sexual contact charged in
Specification 4 and the sexual act charged in Specification 5 more probable
and vice versa. Accordingly, we conclude that the military judge’s application
of the second Reynolds prong to the evidence of each of the five specifications
as a plan or scheme common to all five specifications was clearly unreasona-
ble and therefore constituted a clear abuse of discretion. We address the im-
pact of our finding in our test for prejudice below.
B. Factual and Legal Sufficiency
    Appellant challenges the legal and factual sufficiency of the four findings
of guilty. We review issues of legal and factual sufficiency de novo. Article
66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394,
399 (C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual
sufficiency is limited to the evidence produced at trial. United States v. Dykes,
38 M.J. 270, 272 (C.M.A. 1993) (citations omitted). Though we “cannot find as
fact any allegations of which [an appellant] was found not guilty at trial,” we
“may consider facts underlying an acquitted charge in considering whether
the facts support a separate charge.” United States v. Rosario, 76 M.J. 114,
117 (C.A.A.F. 2017).
    “The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting Rosario, 76
M.J. at 117 (C.A.A.F. 2017)).


9 The Government urges us to consider that “each specification involved Appellant
taking advantage of his friends when they were asleep or almost asleep after drink-
ing alcohol.” Indeed, there is commonality in relationship (Airmen who were assigned
to the same unit and sometimes worked together), ages of victims (young adult
males), circumstances of the acts (nighttime sexual activity after drinking alcohol
and sleeping or falling asleep in the same general location as Appellant), and the
sexual nature of the acts. However, we caution that many incidents share these
common factors but do not result in sexual abuse or assault. And, on these facts, we
cannot conclude that the factors were sufficiently distinctive to establish a common
plan or scheme under Mil. R. Evid. 404(b) and Mil. R. Evid. 403—particularly when
the charged acts themselves were infrequent and the “common” factors were endur-
ing (e.g., friendship) and recurring (e.g., drinking alcohol) over a prolonged period of
time (e.g., as long as two years).




                                          12
                 United States v. Hyppolite, No. ACM 39358


    “For factual sufficiency, the test is whether, after weighing the evidence
in the record of trial and making allowances for not having personally ob-
served the witnesses, [we are] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
In conducting this unique appellate role, we take “a fresh, impartial look at
the evidence,” applying “neither a presumption of innocence nor a presump-
tion of guilt” to “make [our] own independent determination as to whether
the evidence constitutes proof of each required element beyond a reasonable
doubt.” Washington, 57 M.J. at 399. While we must find that the evidence
was sufficient beyond a reasonable doubt, it “does not mean that the evidence
must be free of conflict.” United States v. Galchick, 52 M.J. 815, 818 (A.F. Ct.
Crim. App. 2000) (citation omitted).
   1. Specification 1—Abusive Sexual Contact of SSgt RW
    We are not convinced that the evidence of Specification 1 was sufficient
beyond a reasonable doubt and find Appellant’s conviction factually insuffi-
cient. In order for the military judge to find Appellant guilty of abusive sexu-
al contact of SSgt RW, as charged in Specification 1, the Government was re-
quired to prove beyond a reasonable doubt four elements: (1) Appellant com-
mitted sexual contact upon SSgt RW by touching SSgt RW’s genitalia; (2)
SSgt RW was asleep; (3) Appellant knew or reasonably should have known
that SSgt RW was asleep; and (4) Appellant touched SSgt RW’s genitalia
with the intent to gratify Appellant’s sexual desire. See Manual for Courts-
Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 45.b.(7)(e). The term “sex-
ual contact” allows that “[t]ouching may be accomplished by any part of the
body.” Article 120, UCMJ, 10 U.S.C. § 920(g)(2)(B).
   Even accepting the truth of SSgt RW’s recollection and testimony and
considering the evidence of Specifications 2 and 3 as a common plan or
scheme under Mil. R. Evid. 404(b), we are not convinced beyond a reasonable
doubt that Appellant committed an abusive sexual contact offense against
SSgt RW. Immediately after his late-night interaction with Appellant, SSgt
RW was confused, “didn’t know what to think,” and “didn’t know if anything
was even real at that point.” For about 16 months he believed that he had
only experienced a very realistic dream and that his penis was wet from his
own sweat and not attributable to sexual contact by Appellant.
    On this record, we find reasonable doubt whether Appellant touched SSgt
RW—much less made sexual contact—while SSgt RW slept. However realis-
tic the erotic dream may have seemed to SSgt RW at the time, it is insuffi-
cient proof of sexual contact of SSgt RW’s genitalia by any part of Appellant’s
body. We also do not agree with the Government’s claim that sexual contact
was proven beyond a reasonable doubt because SSgt RW woke to find his un-
derwear partially covered his genitalia or because, sometime after giving

                                      13
                   United States v. Hyppolite, No. ACM 39358


chase to Appellant, SSgt RW discovered that his penis was wet. A coworker’s
testimony corroborated that SSgt RW was sweating and he looked “clammy”
immediately after the incident. We give greater weight to this circumstantial
evidence that SSgt RW’s penis was wet because he was sweating than cir-
cumstantial evidence that Appellant touched SSgt RW’s penis and somehow
made it wet because Appellant was present at the foot of the bed.
    At trial, the Government relied on Appellant’s guilty conscience—shown
by Appellant bolting out of SSgt RW’s room when discovered and Appellant’s
admission when confronted that he had a “problem”—and pattern of engag-
ing in sexual conduct with male friends after they had been drinking and
were asleep or falling asleep as evidenced by Appellant’s common plan or
scheme. We agree these facts tend to show that Appellant was present in
SSgt RW’s room with the intent to gratify Appellant’s sexual desire. Howev-
er, the evidence as a whole does not persuade us beyond a reasonable doubt
that Appellant touched SSgt RW’s genitalia and engaged in sexual contact.
    After weighing the evidence in the record of trial and making allowances
for not having personally observed the witnesses, we are not convinced be-
yond a reasonable doubt of Appellant’s guilt of the offense against SSgt RW.
We therefore find the evidence factually insufficient 10 to support the finding
of guilty for Specification 1. We address the impact of our finding and reas-
sess Appellant’s sentence below.
    This finding of factual insufficiency does not end our analysis of Specifica-
tion 1. We “may approve or affirm . . . so much of the finding as includes a
lesser included offense.” Article 59(b), UCMJ, 10 U.S.C. § 859(b). We “may
not affirm an included offense on ‘a theory not presented to the’ trier of fact.”
United States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999) (citation omitted)
(quoting Chiarella v. United States, 445 U.S. 222, 236 (1980)). “To do so ‘of-
fends the most basic notions of due process,’ because it violates an [appel-
lant’s] ‘right to be heard on the specific charges of which he [or she] is ac-
cused.’” Id. (second alteration in original) (quoting Dunn v. United States, 442
U.S. 100, 106 (1979)).
    Before findings argument, the Government maintained there was no less-
er-included offense (LIO) of Specification 1. The military judge asked the De-
fense and the Defense agreed. Even if we were convinced beyond a reasonable
doubt that Appellant is guilty of attempted abusive sexual contact of SSgt


10 Because we find the evidence factually insufficient, we do not address legal suffi-
ciency.




                                         14
                  United States v. Hyppolite, No. ACM 39358


RW, this theory was disclaimed by the Government at the close of its case,
and it was not presented to the military judge as the trier of fact. According-
ly, we may not affirm a conviction on the LIO of attempted abusive sexual
contact.
     2. Specification 3—Abusive Sexual Contact of Mr. STK
    In order for the military judge to find Appellant guilty of abusive sexual
contact of Mr. STK, as charged in Specification 3, the Government was re-
quired to prove beyond a reasonable doubt the same four elements of abusive
sexual contact as charged in Specification 1. However, unlike in Specification
1, in Specification 3 the Government charged Appellant with touching
“through the clothing” the genitalia of Mr. STK. Appellant argued at trial and
again on appeal that proof Appellant acted with the intent to gratify his sex-
ual desire is lacking. Mr. STK testified that it was not uncommon for mem-
bers of the unit to flick each other’s genitalia as a joke, or what was called a
“ball tap.” The Defense characterized Appellant’s actions on the night in
question as such a joke. We are not persuaded.
    The touching charged in Specification 3 was very different from the joke
Mr. STK described in that Appellant’s hand stayed on Mr. STK’s genitalia for
longer than a mere flick and the contact occurred when Mr. STK was asleep.
Because of Appellant’s repeated groping of Mr. STK, his hiding behind the
couch and then fleeing when confronted by Mr. STK, and his general admis-
sion to his friends that he knew he had a “problem” that happened when he
had been drinking, we agree with the Government that Appellant’s contact
with Mr. STK’s genitalia on the night in question was motivated by an intent
to gratify Appellant’s sexual desire and was not meant as a joke. Additional-
ly, evidence supporting Specifications 1 and 2 could properly be used under
Mil. R. Evid. 404(b) as a plan or scheme to prove that the sexual contact
charged in Specification 3 occurred and that it was intended to gratify Appel-
lant’s sexual desire. 11
   Considering the evidence in the light most favorable to the prosecution,
we find that a rational factfinder could have found Appellant guilty beyond a
reasonable doubt of all the elements of Specification 3. Furthermore, we our-




11Though we find Appellant’s conviction of sexual misconduct of SSgt RW factually
insufficient and Appellant was acquitted of sexual misconduct of SSgt SAK, the facts
underlying these allegations are nevertheless permissible for appellate review. See
United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017).




                                        15
                  United States v. Hyppolite, No. ACM 39358


selves are convinced of Appellant’s guilt beyond a reasonable doubt. There-
fore, we find Appellant’s conviction both legally and factually sufficient.
     3. Specification 4—Abusive Sexual Contact of SrA JD
    Appellant renews the argument he made at trial that the Government
failed to prove beyond a reasonable doubt that SrA JD did not consent to Ap-
pellant touching SrA JD’s genitalia and that, even if SrA JD did not consent,
it was reasonable for Appellant to have had a mistaken belief that SrA JD did
consent. We disagree.
   As charged in Specification 4, the Government had to prove beyond a rea-
sonable doubt the following three elements: (1) Appellant committed sexual
contact upon SrA JD by touching SrA JD’s genitalia; 12 (2) Appellant caused
bodily harm to SrA JD by touching SrA JD’s genitalia; and (3) Appellant did
so with the intent to gratify his own sexual desire. See MCM, pt. IV, ¶
45.b.(7)(b). “The term ‘bodily harm’ means any offensive touching of another,
however slight, including any . . . nonconsensual sexual contact.” Article 120,
UCMJ, 10 U.S.C. § 920(g)(3).
    With regard to consent, the statute provides, “‛[C]onsent’ means a freely
given agreement to the conduct at issue by a competent person. An expres-
sion of lack of consent through words or conduct means there is no consent.
Lack of verbal or physical resistance or submission resulting from the [appel-
lant]’s use of force . . . does not constitute consent.” Id. § 920(g)(8)(A). “Lack of
consent may be inferred based on the circumstances of the offense. All the
surrounding circumstances are to be considered in determining whether a
person gave consent, or whether a person did not resist or ceased to resist on-
ly because of another person’s actions.” Id. § 920(g)(8)(C).
    Before and after Appellant initiated sexual contact, SrA JD repeatedly
told Appellant “no, man.” His words were plain, unambiguous and coherent
and more than adequately manifested lack of consent:
        Q [Trial Counsel]. Did you say anything that would convey to
        [Appellant] that that was something that you wanted?
        A [SrA JD]. No, not at all.



12The evidence at trial established that Appellant touched, through the clothing, the
genitalia of SrA JD. We find this variance from the specification was not material
and did not substantially change the nature of the offense, increase the seriousness
of the offense, or increase the punishment. See United States v. Marshall, 67 M.J.
418, 420 (C.A.A.F. 2009).




                                         16
                 United States v. Hyppolite, No. ACM 39358


       Q. Did you say that loud enough that [Appellant] would have
       been able to hear it?
       A. Absolutely.
       Q. How many times do you think that you said no, or stop or
       some variation thereof?
       A. At least three or four times.
       Q. Did [Appellant] stop?
       A. No, he continued.
       Q. And had you said stop or no, I want to go to sleep before
       [Appellant] touched you as well?
       A. Yes.
       Q. And you said that [Appellant] touched you where at that
       point?
       A. On my penis, on top of my shorts . . . [he] didn’t place his
       hands underneath my pants, but over my pants and he began
       to massage my penis.
       Q. Is that something you wanted?
       A. No, ma’am.
    Knowing full well that SrA JD had gone to bed because of the amount of
alcohol he had consumed and because he was tired, Appellant was on notice
that SrA JD’s words and inaction unequivocally conveyed that all he wanted
to do was sleep. SrA JD’s verbal protestations and—under these circum-
stances—his lack of physical resistance demonstrate and are consistent with
a lack of consent.
    If shown by some evidence, mistake of fact as to consent is a defense to
abusive sexual contact. It requires that an appellant, due to ignorance or mis-
take, incorrectly believed that another consented to the sexual contact. To be
a viable defense, the mistake of fact must have been honest and reasonable
under all the circumstances. See R.C.M. 916(j)(1). To be persuaded by Appel-
lant’s argument that he was mistaken, we would have to discount evidence
that Appellant initiated sexual contact with SrA JD and that Appellant con-
tinued to touch SrA JD in spite of his protests. On these facts we find the
Government proved Appellant was not reasonably mistaken as to consent.
    Viewing the evidence in the light most favorable to the prosecution, we
find that a rational factfinder could have found Appellant guilty beyond a
reasonable doubt of all the elements of Specification 4. Furthermore, we our-
selves are convinced of Appellant’s guilt beyond a reasonable doubt. Specifi-

                                          17
                 United States v. Hyppolite, No. ACM 39358


cally, we find there was proof beyond a reasonable doubt that Appellant
committed sexual contact upon SrA JD by touching his genitalia through his
clothing, without SrA JD’s consent, and with the intent to gratify Appellant’s
sexual desire. Therefore, we find Appellant’s conviction both legally and fac-
tually sufficient.
   4. Specification 5—Sexual Assault of SrA JD
    The military judge also convicted Appellant of sexual assault of SrA JD.
As charged in Specification 5, the Government had to prove beyond a reason-
able doubt the following elements: (1) Appellant committed a sexual act upon
SrA JD by causing penetration, however slight, of SrA JD’s mouth and anus
with Appellant’s penis; and (2) Appellant caused bodily harm to SrA JD by
penetrating SrA JD’s mouth and anus with Appellant’s penis. See MCM, pt.
IV, ¶ 45.b.(3)(b). “The term ‘bodily harm’ means any offensive touching of an-
other, however slight, including any nonconsensual sexual act . . . .” Article
120, UCMJ, 10 U.S.C. § 920(g)(3). “Lack of consent” is defined by statute the
same as it was in our analysis of Specification 4.
    As with Specification 4, Appellant renews the argument he made at trial
that the Government failed to prove beyond a reasonable doubt that SrA JD
did not consent to the sexual acts and that, even if SrA JD did not consent, it
was reasonable for Appellant to have had a mistaken belief that SrA JD did
consent. Viewing the sexual assault offense in isolation from Appellant’s abu-
sive sexual contact of SrA JD that preceded this allegation, we might agree.
However, the sexual act alleged in Specification 5 followed Appellant’s non-
consensual sexual contact with SrA JD that was charged in Specification 4.
Appellant’s conduct with SrA JD, charged as two discrete offenses, neverthe-
less occurred as a continuous course of conduct with a single criminal objec-
tive. Thus, we find the two offenses are factually intertwined and the circum-
stances that underlie Appellant’s non-consent to the abusive sexual contact in
Specification 4 are relevant here.
    SrA JD was a very junior Airman and did not know Appellant well either
socially or professionally. On the night of the assault, Appellant knew that
SrA JD was tired, drunk, and—as evident by Appellant’s query if SrA JD had
“ever wanted to experiment” or had “ever thought about” messing around
with other men—uninitiated in male-on-male sexual acts. Appellant’s repeat-
ed propositioning of SrA JD verbally and, at the same time, physically was
unwelcome, and his prodding was matched by SrA JD’s repeated protests to
just allow him to sleep. It is in this context that we consider evidence that
SrA JD “disassociated” and did not further resist oral and anal penetration
by Appellant and that SrA JD’s memory or recall of the incident was far from
complete. On these facts, Appellant as the initiator to the conduct that began
in Specification 4 turned a deaf ear to SrA JD’s repeated manifestations of

                                      18
                  United States v. Hyppolite, No. ACM 39358


non-consent and, we find, could not have held a reasonably mistaken belief
that SrA JD consented to the sexual acts of Specification 5. Considering all
the surrounding circumstances in a light most favorable to the prosecution, to
include Appellant’s statement taking full responsibility for his conduct with
SrA JD, we find that a reasonable factfinder could have found that SrA JD
ceased resisting because of Appellant’s actions and that there was no “freely
given agreement to the conduct at issue.” Article 120, UCMJ, 10 U.S.C. §
920(g)(8)(A). We conclude that the Government proved beyond a reasonable
doubt that SrA JD did not consent to Appellant’s oral and anal penetration of
SrA JD and that it was not reasonable for Appellant to believe that SrA JD
had consented.
    Considering the evidence in the light most favorable to the prosecution,
we find that a rational factfinder could have found Appellant guilty beyond a
reasonable doubt of all the elements of Specification 5. Furthermore, we our-
selves are convinced of Appellant’s guilt beyond a reasonable doubt. There-
fore, we find Appellant’s conviction both legally and factually sufficient.
C. Harmless Error
    Finding error in the Mil. R. Evid. 404(b) ruling allowing use of the evi-
dence underlying Specifications 1–3 to prove Specifications 4–5 and vice ver-
sa, we address the impact of our finding and test for prejudice. When there is
nonconstitutional 13 error in the admission of evidence, including under Mil.
R. Evid. 404(b), we ask whether the evidence had a “substantial influence on
the [military judge’s] verdict in the context of the entire case.” See United
States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007) (citations omitted). “We
consider four factors: (1) the strength of the government’s case; (2) the
strength of the defense case; (3) the materiality of the evidence in question;
and (4) the quality of the evidence in question.” Id. (citation omitted). “An er-
ror is more likely to be prejudicial if the fact was not already obvious from the
other evidence presented at trial and would have provided new ammunition
against an appellant.” United States v. Barker, 77 M.J. 377, 384 (C.A.A.F.
2018) (citing Harrow, 65 M.J. at 200).




13Citing Hukill, 76 M.J. at 222, and Hills, 75 M.J. at 357, Appellant urges us to ap-
ply the harmless beyond a reasonable doubt standard to test for prejudice because
the military judge committed constitutional error. We decline to apply the more
stringent standard. Because the military judge did not use the charged conduct as
propensity evidence under Mil. R. Evid. 413, there are no “constitutional dimensions
at play.” Hukill, 76 M.J. at 222 (citation omitted).




                                         19
                   United States v. Hyppolite, No. ACM 39358


     1. Conviction of Specification 3—Abusive Sexual Contact of Mr.
     STK
    As to Specification 3, we conclude the erroneous Mil. R. Evid. 404(b) rul-
ing did not have a substantial influence on Appellant’s conviction. 14 The Gov-
ernment’s case for Specification 3 was very strong without the evidence un-
derlying Specifications 4 and 5. The testimony of Mr. STK provided convinc-
ing proof of all the elements of the abusive sexual contact offense. It was sup-
ported by Appellant’s admission when he was confronted by his friends. The
Government’s case was also supported by Appellant’s common plan or scheme
to secretively engage in sexual contact with SSgt RW and SSgt SAK with the
specific intent to gratify Appellant’s sexual desire, as shown by SSgt RW and
SSgt SAK’s testimony.
    The Defense largely conceded that Appellant touched Mr. STK on his gen-
italia but sought to minimize Appellant’s specific intent by characterizing his
conduct as a prank. The “prank” argument was a weak one as the circum-
stances of Appellant touching Mr. STK’s genitalia were not the typical cir-
cumstances of a “ball tap” joke.
     As to Harrow factors (3) and (4), the materiality and quality of the evi-
dence for Specifications 4 and 5 was low because Appellant’s acts were dis-
similar, even if the military judge erred in finding a common plan or scheme.
Further, questions about consent and mistake of fact as to consent that per-
meated the Defense case against Specifications 4 and 5 were not present in
litigating Specification 3.
    Collectively, the evidence of Specifications 1, 2, and 3 could properly be
used pursuant to Mil. R. Evid. 404(b) for Specifications 1, 2, and 3. Consider-
ing the four Harrow factors together, we conclude that the admission of evi-
dence of sexual conduct underlying Specifications 4 and 5 to prove Specifica-
tion 3 did not have a substantial influence on the finding or materially preju-
dice Appellant’s substantial rights. Accordingly, we find the error to be harm-
less.




14Because we find the evidence of Specification 1 factually insufficient and because
Appellant was acquitted of Specification 2, we consider the erroneous admission of
Appellant’s acts with SrA JD only as they may affect the finding of guilty of Specifi-
cation 3.




                                         20
                  United States v. Hyppolite, No. ACM 39358


   2. Conviction of Specifications 4 and 5—Abusive Sexual Contact
   and Sexual Assault of SrA JD
    As to Specifications 4 and 5, we conclude the erroneous ruling did not
have a substantial influence on Appellant’s convictions of these offenses. The
testimony of SrA JD established convincing proof of all the elements of the
abusive sexual contact and sexual assault offenses involving SrA JD. The
Government’s case was also supported by Appellant’s admission taking “full
responsibility” for what happened. The Defense largely conceded that Appel-
lant engaged in sexual conduct with SrA JD but sought to show that either
SrA JD consented or that Appellant labored under an honest and reasonable
mistake of fact as to consent. The cross-examination of SrA JD challenged his
claim of lack of consent and tried to bolster Appellant’s mistake of fact as to
consent. Because the critical issue was not whether Appellant engaged in the
charged acts or, for Specification 4, whether Appellant intended to gratify his
sexual desire, the erroneous admission of plan or scheme evidence of Specifi-
cations 1–3 was not dispositive for the findings on Specifications 4–5. With
respect to the materiality and quality of the evidence of acts underlying Spec-
ifications 1–3, they, again, were dissimilar, even if the military judge erred in
finding a common plan or scheme, and thus not logically material to the Gov-
ernment’s proof on Specifications 4–5. The evidence of Appellant’s intent to
gratify his sexual desire underlying Specifications 1–3 was of little conse-
quence to litigation of consent and mistake of fact in Specifications 4–5.
   Considering the four Harrow factors together, we conclude that the ad-
mission of evidence of sexual conduct underlying Specifications 1–3 to prove
Specifications 4 and 5 did not have a substantial influence on the findings or
materially prejudice Appellant’s substantial rights. Accordingly, we find the
error to be harmless.
D. Referral of Specification 5
    Appellant alleges that the military judge who presided at his trial erred
in denying Appellant’s motion to dismiss Specifications 1, 2, and 5 because
the staff judge advocate (SJA) improperly advised the convening authority
that the specifications were warranted by the evidence contrary to the deter-
mination made by the PHO who conducted the Article 32, UCMJ, 10 U.S.C. §
832, preliminary hearing. Because we find the evidence of Specification 1 fac-
tually insufficient and Appellant was acquitted of Specification 2, we address
Appellant’s assignment of error only as it affects Specification 5.
   1. Procedural Background
   The PHO found no probable cause and recommended Specification 5 not
be referred to trial. The special court-martial convening authority disagreed
and forwarded the specification to the general court-martial convening au-

                                       21
                 United States v. Hyppolite, No. ACM 39358


thority (GCMCA) with the recommendation that it be referred. The pretrial
advice of the SJA stated that Specification 5 was warranted by the evidence
and recommended referral. The GCMCA followed his SJA’s advice and or-
dered Specification 5 be referred to trial.
   2. Analysis
    Appellant asserts that when a PHO determines there is no probable
cause, the specification cannot be warranted by the evidence and cannot be
referred to trial. We disagree. Were we to follow Appellant’s logic to its con-
clusion, a PHO’s determination of no probable cause would bind and diminish
the role of the GCMCA and moot the independence of the SJA who may disa-
gree with the PHO’s determinations and recommendations.
    We agree with the Government that the PHO’s recommendation, to in-
clude the probable cause determination, is not binding on the SJA or GCM-
CA. See also R.C.M. 405(a), Discussion (“Determinations and recommenda-
tions of the preliminary hearing officer are advisory.”). We conclude that Ap-
pellant’s substantial rights were not prejudiced by the manner in which Spec-
ification 5 was referred to trial by court-martial.
E. Evidence of Messages Between Appellant and SrA JD
    Appellant asserts that the military judge erred when he refused to admit
text messages between Appellant and SrA JD. Over Defense objection, the
military judge admitted a message Appellant sent to SrA JD in September
2014, in which Appellant stated he took “full responsibility” for what hap-
pened the night of the alleged sexual assault. The Defense moved to admit
subsequent messages in the same message thread arguing that they were
part of the same conversation or statement. These messages, initiated by SrA
JD with the assistance of an AFOSI agent, were exchanged between Appel-
lant and SrA JD about 20 months later in May 2016, and they continued the
discussion of what happened in August 2014. Appellant argues on appeal, as
he did at trial, that the subsequent messages show that Appellant apologized
because he believed both he and SrA JD made mistakes that night while they
were drunk and that Appellant did not believe he had done anything against
SrA JD’s will.
    We review a military judge’s ruling on the admissibility of evidence for an
abuse of discretion. United States v. Johnson, 46 M.J. 8, 10 (C.A.A.F. 1997).
In United States v. Rodriguez, the CAAF determined that a subsequent
statement made at a different time and place and to a different set of persons
is a “discrete, complete event” and is not admissible under the rule of com-
pleteness to rebut, explain, or modify the content of an earlier statement if it
was “not part of the same transaction or course of action.” 56 M.J. 336, 342
(C.A.A.F. 2002). In Rodriguez, the CAAF held that the military judge did not

                                      22
                  United States v. Hyppolite, No. ACM 39358


err in excluding the appellant’s subsequent statements to law enforcement
provided one day after the statements admitted by the Government, even
though the statements all related to the same topic: the death of the appel-
lant’s wife. Id. at 338–39, 342. Here, Appellant’s subsequent statements oc-
curred 20 months after Appellant’s original message to SrA JD and after Ap-
pellant’s transfer to a new duty station without any intervening contact be-
tween the two. Like Rodriguez, the subsequent messages here were ex-
changed at a different time and at a different place. The continuation of a
previous message thread using the same messaging application does not
make the new messages part of the same conversation, or statement, as one
made many months prior.
    We find that the messages Appellant sought to admit were discrete and
complete events unto themselves owing to the very significant passage of
time and therefore were not part of the same transaction or course of action
as his message taking “full responsibility.” We find the military judge did not
abuse his discretion in either admitting Appellant’s admission to SrA JD or
excluding the subsequent messages Appellant sent some 20 months later.
F. Sentence Reassessment
    Because we set aside and dismiss Specification 1 of the Charge, we next
consider whether we can reassess the sentence. We have “broad discretion”
when reassessing sentences. United States v. Winckelmann, 73 M.J. 11, 13
(C.A.A.F. 2013) (citation omitted). The CAAF has repeatedly held that if we
“can determine to [our] satisfaction that, absent any error, the sentence ad-
judged would have been of at least a certain severity, then a sentence of that
severity or less will be free of the prejudicial effects of error . . . .” United
States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). Thus, our analysis is based on
a totality of the circumstances with the following as illustrative factors: dra-
matic changes in the penalty landscape and exposure, the forum, whether the
remaining offenses capture the gravamen of the criminal conduct, whether
significant or aggravating circumstances remain admissible and relevant,
and whether the remaining offenses are of the type that we as appellate
judges should have the experience and familiarity with to reliably determine
what sentence would have been imposed at trial. Winckelmann, 73 M.J. at
15–16 (citations omitted). We find the factors weigh in favor of reassessment
rather than rehearing.
    We can reliably determine Appellant would have received a sentence of at
least a dishonorable discharge, confinement for six years, forfeiture of all pay
and allowances, and reduction to the grade of E-1. We are mindful there has
been a change in the sentencing posture of this case, with three victims and
three convictions of abusive sexual contact reduced to two and the maximum
sentence to confinement reduced from 51 to 44 years. Appellant’s conviction

                                       23
                 United States v. Hyppolite, No. ACM 39358


for sexual assault remains the most serious offense of which Appellant was
found guilty. While the dismissal of Specification 1 of the Charge creates a
moderate difference in what would be an appropriate punishment, the re-
maining offenses of abusive sexual contact of Mr. STK and SrA JD and sexu-
al assault of SrA JD are of the type that we have experience and familiarity
with as appellate judges to determine the sentence that would have been im-
posed.
    We also conclude that the reassessed sentence is appropriate. We assess
sentence appropriateness by considering Appellant, the nature and serious-
ness of the offenses, Appellant’s record of service, and all matters contained
in the record of trial. United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim.
App. 2006) (citing United States v. Healy, 26 M.J. 394, 395–96 (C.M.A 1988);
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)). We are convinced
that the reassessed sentence is not inappropriately severe.
G. Post-Trial Delay
    We note that 131 days elapsed between Appellant’s sentencing and the
convening authority’s action. Although this 11-day delay is presumptively
unreasonable, Appellant asserts no prejudice and we discern none. See Unit-
ed States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006) (establishing presump-
tion of unreasonable delay where the convening authority does not take ac-
tion within 120 days of the completion of trial). Accordingly, we find no viola-
tion of Appellant’s due process right to timely post-trial processing and ap-
peal. Id. at 136. The delay was not so egregious as to undermine the appear-
ance of fairness in Appellant’s case and the integrity of our military justice
system. See United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
    Nevertheless, recognizing our authority under Article 66(c), UCMJ, 10
U.S.C. § 866(c), we considered whether relief for post-trial delay is appropri-
ate in this case even in the absence of a due process violation. See United
States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002) (“Appellate relief under Ar-
ticle 66(c) should be viewed as the last recourse to vindicate, where appropri-
ate, an appellant’s right to timely post-trial processing and appellate re-
view.”). After considering the factors enumerated in United States v. Gay, 74
M.J. 736, 744 (A.F. Ct. Crim. App. 2015), we find it is not.

                              III. CONCLUSION
    The finding of guilty of Specification 1 of the Charge is SET ASIDE and
Specification 1 of the Charge is DISMISSED WITH PREJUDICE. We reas-
sess the sentence to a dishonorable discharge, confinement for six years, for-
feiture of all pay and allowances, and reduction to the grade of E-1. The re-
maining findings and the sentence as reassessed are correct in law and fact,


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                    United States v. Hyppolite, No. ACM 39358


and no other error materially prejudicial to the substantial rights of Appel-
lant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Ac-
cordingly, the remaining findings and the sentence as reassessed are AF-
FIRMED. 15
HUYGEN, Judge (concurring in the result in part and dissenting in part):
    I agree with my esteemed colleagues in the majority that the military
judge erred by admitting for a Mil. R. Evid. 404(b) purpose the evidence of
Specifications 1, 2, and 3 as a common plan or scheme to find Appellant
guilty of Specifications 4 and 5. However, I respectfully dissent with regard to
that error’s harm for Specification 5 and, correspondingly, the factual suffi-
ciency of Appellant’s conviction of sexual assault of SrA JD.
    The majority finds that the error was harmless with regard to Specifica-
tion 4 because the evidence of Specifications 1–3 as a common plan or scheme
did not have a substantial influence on Appellant’s conviction for abusive
sexual contact of SrA JD; I concur. 16 Nonetheless, I must distinguish SrA
JD’s actual testimony about the incident from the majority’s succinct descrip-
tion of it.
     At trial, SrA JD testified as follows:



15 The military judge ordered sealed pages 173–86 of the transcript, which was a
closed Mil. R. Evid. 412 hearing; however, those pages were not sealed. We direct the
Government seal those pages in the original record of trial. We further direct the
Government ensure that every paper copy of those pages is retrieved and destroyed,
and every electronic copy is destroyed.
16 I also concur with the majority that the current state of the law is to analyze Mil.
R. Evid. 404(b) error as nonconstitutional error and apply the four-factor test of Unit-
ed States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007), but I question whether that
will remain the state of the law. In Appellant’s case, Mil. R. Evid. 404(b) presents the
same problem as Mil. R. Evid. 413 prior to 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): the fact-
finder is tasked first to apply a preponderance of the evidence standard to charged
conduct of similar crimes in a sexual offense case and then to apply a standard of be-
yond a reasonable doubt to the same charged conduct. The Court of Appeals for the
Armed Forces in Hills could have been talking about Appellant’s case and Mil. R.
Evid. 404(b) when it wrote, “While [a Mil. R. Evid. 413] error . . . is usually nonconsti-
tutional in nature, here, the error involved using charged misconduct . . . and violat-
ed Appellant’s presumption of innocence and right to have all findings made clearly
beyond a reasonable doubt, resulting in constitutional error.” Id. at 356 (citation
omitted).




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                  United States v. Hyppolite, No. ACM 39358


           He [Appellant] gets into the bed and I remember him roll-
       ing towards me to face me and asking me if I’d ever wanted to
       experiment with guys, or if I’d ever thought about messing
       around with other guys, to which I responded, you know, no,
       man. I just want to go to sleep. . . . He continued questioning,
       and it was at that point he reached his hand out and grabbed
       my penis over my pants and began to massage it. And while he
       was doing that, he continued to sort of ask me, you know,
       you’ve never thought about it before, you know, are you sure?
       Like he kept pleading to, you know, get me to change my mind
       to which I continued saying, you know, no, man, I just want to
       go to sleep.
    As the Defense pointed out at trial, SrA JD’s “no” was not specifically and
directly a “no” to the sexual contact, before or while it was taking place. 17 In-
stead, it was a specific and direct answer that no, SrA JD had not previously
wanted to engage in or thought about sexual experimentation with another
male. I still concur with the majority’s decision to affirm the guilty finding of
Specification 4. The most important facts and circumstances of the contact
charged in Specification 4—namely, that Appellant knew SrA JD was awake
and had a verbal exchange with him about sexual experimentation before
touching him—were sufficiently different from those of the contact incidents
charged in Specifications 1, 2, and 3, all of which involved the alleged victim
being asleep or unaware, to conclude the evidence of Specifications 1, 2, and 3
did not have a substantial influence on the finding of Specification 4. Moreo-
ver, SrA JD’s “no,” combined with his immediate follow-on statement of “I
just want to go to sleep,” made clear to Appellant that, at that moment, SrA
JD wanted to sleep. This manifestation of lack of consent made it unreasona-
ble for Appellant to believe SrA JD consented to Appellant’s contemporane-
ous touching of SrA JD’s genitalia.
    I cannot apply the same reasoning to the guilty finding of Specification 5.
Considering the four factors of Harrow, I find the Government’s case for
Specification 5 had a glaring weakness: SrA JD had no memory of the period
of time during which he went from being clothed to being naked, from having
his head at the head of the bed to having his feet there, or from lying on his
back to facing downward and holding his head over Appellant’s groin while
Appellant’s lotion-coated penis first moved in and out of his mouth. The De-


17 Despite trial counsel’s attempts to the contrary, SrA JD was clear: he never said
“stop.”




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                 United States v. Hyppolite, No. ACM 39358


fense’s case was strong in that SrA JD did not remember Appellant holding
SrA JD’s head during the oral penetration or restraining him during the anal
penetration. But SrA JD did remember that he did nothing to resist, verbally
or physically, the oral penetration, Appellant’s re-positioning of his body, or
the anal penetration and that, as soon as he winced and may have made a
“vocal expression of pain,” Appellant stopped the anal penetration. At that
point, not only did Appellant stop and roll SrA JD or allow SrA JD to roll off
of Appellant, but he acknowledged SrA JD’s reaction to the anal penetration
and said he would “just finish the rest” himself.
    Considering the third and fourth Harrow factors, I find the evidence of
Specifications 1–3 immaterial and of low quality as evidence of Specification
5. This finding is premised on the charging theory the Government chose for
Specification 5, which was charged as bodily harm, or the alleged act being
nonconsensual, and not as the alleged victim being asleep or unaware, which
was the Government’s charging theory of Specifications 1–3. But I note that
the difference is one of charging and not of key fact. The evidence was that
SrA JD, the alleged victim in Specification 5, remembered nothing between
the ongoing sexual contact and the ongoing oral penetration and thus was
arguably unaware at the time the sexual assault began, as the alleged vic-
tims of Specifications 1–3 were asleep or unaware at the time the sexual con-
tact began. Despite the obvious difference in charging theories, the military
judge found a common plan or scheme between Specifications 1–3 and Speci-
fication 5, and that finding leads me to conclude the evidence of Specifica-
tions 1–3 substantially influenced the judge’s verdict on Specification 5.
Thus, the judge’s error to admit, for a Mil. R. Evid. 404(b) purpose, the evi-
dence of Specifications 1–3 for Specification 5 was not harmless.
   I also dissent from the majority’s conclusion that the guilty finding for
Specification 5 is factually sufficient. Even if I assume arguendo the Govern-
ment proved beyond a reasonable doubt that SrA JD did not consent to either
the oral or the anal penetration, I cannot agree that the Government met its
burden and proved beyond a reasonable doubt that Appellant did not have an
honest and reasonable belief SrA JD consented to both.
    There is no basis to presume that a man who has a girlfriend or who has
not previously engaged in male-male sexual activity or who, when sober,
would not consent to male-male sexual activity would never consent to such
activity when drunk. The record indicates all of those presumptions were im-
plicated in the Government’s case with regard to not only the question of SrA
JD’s consent but also the question of Appellant’s mistake of fact about SrA
JD’s consent, specifically, whether the mistake was reasonable.
    SrA JD did nothing to physically resist or avoid Appellant’s repeated con-
tact of SrA JD’s genitalia. SrA JD did answer the question of whether he had

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                 United States v. Hyppolite, No. ACM 39358


“ever thought about messing around with other guys” with the disjointed an-
swer of “no, man, I just want to go to sleep.” While SrA JD had no memory of
what SrA JD (or Appellant) did next, the evidence is clear that some period of
time elapsed during which SrA JD went from being clothed, positioned with
his head at the head of the bed, and lying on his back to being naked with his
clothes on the floor on the side of the bed where he slept, having his feet at
the head of the bed, and facing down, holding his head over Appellant’s na-
ked groin while Appellant’s lotion-coated penis moved in and out of his
mouth. The only manifestation of non-consent was SrA JD’s ambiguous “no”
before and during the touching of his genitalia. There was a break in time
long enough for SrA JD and Appellant’s state of clothing and physical posi-
tions to undergo complete transformation. By the end of that break in time,
the manifestations of consent, particularly SrA JD holding up his own head
after the oral penetration began, support Appellant’s honest and reasonable
belief that SrA JD was consenting to the oral penetration. Similarly, SrA JD’s
apparent acquiescence to Appellant moving him and then penetrating his
anus were manifestations of consent that support Appellant’s honest and rea-
sonable belief that SrA JD consented to the anal penetration. Finally, that
Appellant stopped the anal penetration when SrA JD winced demonstrates
that Appellant was willing to stop at the first indication SrA JD was uncom-
fortable and is evidence that Appellant believed SrA JD consented to the anal
penetration.
    Applying the test for factual sufficiency, I am not convinced beyond a rea-
sonable doubt of Appellant’s guilt on Specification 5. The majority considers
it significant that Appellant sent a message to SrA JD in which Appellant
accepted “full responsibility” for the sexual activity with SrA JD; I do not.
The message was the last of several Appellant sent to SrA JD to discuss what
happened, none of which SrA JD responded to and none of which referred to
the sexual activity as occurring against SrA JD’s will. Accepting responsibil-
ity for sexual activity is not confessing to sexual assault, and Appellant’s
message doing the former cannot be read as doing the latter.
   The majority also considers “Appellant’s conduct with SrA JD, charged as
two discrete offenses” as “a continuous course of conduct” and thus applies
SrA JD’s answer of “no, man, I just want to go to sleep” before and during the
touching of his genitalia to the later oral and anal penetration. I do not and,
because of the break in time and significant change in circumstances during
that time, cannot. For all of the reasons articulated, I am not persuaded the




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                United States v. Hyppolite, No. ACM 39358


Government proved beyond a reasonable doubt that Appellant did not hon-
estly and reasonably believe SrA JD consented to the oral and anal penetra-
tion.


                FOR THE COURT



                CAROL K. JOYCE
                Clerk of the Court




                                     29
