Can MRE 404(b) allow for an end-run around Hills and Hukill?

The answer is possibly, but it requires some very specific analysis using the Reynolds test. The Air Force Court of Criminal Appeals has decided United States v. Hyppolite, II, where this issue arose.

In this case, the prosecution sought to use evidence of different allegations of a sexual offense to show 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 sufficiently 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 engage 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?

The AFFCA found that the second prong of the Reynolds test was incorrectly applied and found error for some of the allegations. The point here is to watch for the prosecution trying to do an end-run around Hills (and Hukill) by trying to argue Mil. R. Evid. 404(b) allows different specifications to be used in supporting other specifications.

There are some cases where it might be in the defense interest to argue that evidence should be admitted only under Mil. R. Evid. 404(a) and avoid the sting of Mil. R. Evid. 413, but not, it would seem in a judge alone case.