Uncharged Misconduct.

The First Sentence:  “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.” 

Two components:

”...to prove the character of a person...” refers to proof that the accused is inclined to wrongdoing in general or tends to commit a particular type of wrongdoing.

”...in order to show that he acted in conformity therewith” means that the Government is truing to use character as a link in the chain leading to the ultimate inference of conduct in conformity with character.

The rule thus prohibits a theory of logical relevance based upon the following inferences:  The first inference deduces the accused’s character from the uncharged act, i.e., “proving character.” The second inference infers conduct on a specific occasion from the accused’s subjective character.

The Second Sentence:  “[Uncharged Misconduct] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

Uncharged misconduct is not offered to prove that a person acted in conformity with that person’s character on a particular occasion.  Uncharged misconduct is offered to prove such things as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The list in Mil. R. Evid. 404(b) is not exhaustive:  The “sole test” for admissibility of uncharged misconduct is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime and therefore to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses.  It is unnecessary that relevant evidence fit snugly into a pigeon hole provided by Mil. R. Evid. 404(b).  United States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989). 

Mil. R. Evid. 404(b) is an “inclusive rule” which permits admission of extrinsic evidence unless the sole purpose is to show criminal disposition.  If the proponent can articulate a non-character theory of logical relevance for the uncharged misconduct evidence, the military judge will have discretion to admit or exclude the evidence.

United States v. Arevalo, 43 M.J. 719 (A.F. Ct. Crim. App. 1995) (statement that accused said he would “do anything if the charges were dropped” reflected a consciousness of guilt and admissible as other acts evidence).

United States v. Garland, 39 M.J. 618 (A.C.M.R. 1994).  Accused had undergone previous rape kit examination.   Fact he asked roommate for fingernail clippers when told cops were on the way to apprehend him reflected a consciousness of guilt and admissible as other acts evidence.

Some Non-Character Theories of Relevance.

Motive.  Motive supplies the reason that nudges the will and prods the mind to indulge criminal intent.  Such evidence may be offered to prove that the act was committed, or to prove the identity of the actor, or to prove the requisite mental state. 

Two inferences are required:  first, the act(s) must support an inference of some mental state, second, the mental state must be causally related to an issue in the case.  This is an area which is difficult to distinguish, analytically, from propensity.  Examples: 

United States v. Watkins, 21 M.J. 224, 225 (C.M.A. 1986) (motive evidence relevant to show a person’s action as an outlet for emotions.  Prior acts of conduct must be of a type which reasonably could be viewed as the expression and effect of the existing internal emotion, and same motive must exist at time of subsequently charged acts). 

United States v. Jenkins, 48 M.J. 594 (Army Ct. Crim. App 1998).  In order to prove intent and motive, in spousal assault and rape case, government introduced evidence of five previous incidents where the accused hit, pushed, chased and beat his wife.  Court said the evidence reasonably proved the uncharged misconduct, the evidence was relevant to show motive and intent, and the probative value was not outweighed by unfair prejudice.  This case illustrates the importance of articulating more than one non-character theory. 

United States v. Phillips, 52 M.J. 286 (2000).  Accused charged with BAQ fraud and entering into a sham marriage in order to collect BAQ payments.  Court held that evidence of the accused’s homosexual relationship was admissible under 404(b) to show motive and intent.

United States v. Baumann, 54 M.J. 100 (2000).  Accused convicted of sexually molesting his daughter.  The CAAF held that it was error (harmless) for the military judge to admit evidence that the accused molested his sisters 25 years ago.  The military judge admitted this evidence over defense objection under 404(b), to show the wife’s motive for finalizing the divorce and to rebut credibility attacks against her.  The evidence was a statement by the accused’s mother to his wife that the accused had molested his sisters when he was 13.  The CAAF held that the probative value of this evidence was outweighed by the unfair prejudice, particularly because the government had other evidence to explain the reason for the divorce and rebut the defense claim of motive.

Intent:  Negates accident, inadvertence or casualty.  Intent differs from other named 404(b) exceptions because, typically, it is an ultimate issue in a case.  Intent may be shown through an inference at the time of the uncharged acts.  Schematically, this involves:

United States v. Beechum, 582 F.2d 898 (5th Cir. 898 (5th Cir. 1978), cert. denied, 440 U.S. 920 (1979):  “Where the issue...is the defendant’s intent to commit the offense charged, the relevancy of the extrinsic evidence derives from the defendant’s indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses.”  See also, United States v. Whitner, 51 M.J. 457 (1999). 

The “doctrine of chances.”  United States v. Merriweather, 22 M.J. 657, 661 (A.C.M.R. 1986) (“[T]he sheer number of injuries suffered by the victim over a relatively short period of time would have led common persons to conclude that the charged injury was less likely to have been accidental, thus rebutting the inference of possible accident which arose from the testimony elicited by the defense counsel.”)

United States v. Sweeny, 48 M.J. 117 (1998).  Accused charged with stalking his current wife.  Court allowed evidence that accused stalked former wife in a similar manner.  Court said uncharged misconduct probative of intent to inflict emotional distress.   

United States v. Tanksley, 54 M.J. 169 (2000).  Accused, Navy Captain was convicted of indecent liberties with his child.  The government introduced testimony from another daughter that he had sexually abused her 30 years earlier.  This evidence was admitted under 404(b) to show the accused’s intent.  The CAAF held that the military judge did not abuse his discretion in admitting this evidence.

United States v. Henry, 53 M.J. 108 (2000).  At his trial for rape of his stepdaughter, evidence was introduced that the accused made her watch pornographic videos with him.  No videos were found in the home but magazines containing video order forms were found and introduced at trial under MRE 404(b).  The CAAF affirmed holding that this evidence was relevant to show intent and that the accused may have groomed his victim.  Court also said this evidence was relevant to impeach the victim’s in-court testimony because she was now recanting her allegations of rape.  

Plan:  Connotes a prior mental resolve to commit a criminal act, and implies preparation, and working out the particulars—time, place, manner, means, and so forth.  Plan may prove identity, intent, or the actual criminal act. 

Some decisions have been quite liberal in admitting uncharged misconduct evidence under the rubric of plan.  See United States v. Munoz, 32 M.J. 359 (C.M.A.), cert. denied, 502 U. S. 967 (1991) (where the “age of the victim, the situs of the offenses, the circumstances surrounding their commission, and the fondling nature of the misconduct” were similar to sexual misconduct of the accused 12 years earlier, the evidence was admissible to show a plan to sexually abuse his children (per Judge Sullivan).  Contra Strong, “What is a Plan?  Judicial Expansion of the Plan Theory of Military Rule of Evidence 404(b) in Sexual Misconduct Cases,”  The Army Lawyer, June 1992, at 13.

United States v. Wright, 943 F.2d 748 (7th Cir. 1991) (no error admitting close-in-time arrest for distribution of crack cocaine in same geographical area to show general plan for distributing cocaine to certain individuals at certain locations).

Identity:  The Government may use modus operandi evidence to establish the identity of the accused. 

A high degree of similarity between the extrinsic act and the charged offense is required, so similar as to constitute “a signature marking the offense as the handiwork of the accused.”  United States v. Gamble, 27 M.J. 298, 305 (C.M.A. 1988).   

United States v. Fierro, 39 M.J. 1046 (A.C.M.R. 1994):  To prove identity of the killer, the Government offered uncharged misconduct that, while drunk, the accused would often physically abuse his estranged wife after she refused to have sex with him.  The military judge admitted to show identity of the perpetrator based upon the accused’s modus operandi of assaulting a woman who refused to have sex with him or a drinking buddy.

U.S. v. Davis, 47 M.J. 707(N.M.Ct. Crim. App. 1997).  Accused was found guilty of rape and sodomy of stepdaughter, which occurred over a long period of time.  Govt. introduced evidence of some abuse that was outside the statute of limitations under MRE 404(b) to show plan and establish force and lack of consent.  Held:  Judge did not abuse his discretion in allowing this evidence.

U.S. v. Mance, 47 M.J. 742 (N.M.Ct. Crim. App. 1997).  Accused was charged with aggravated assault by allegedly pointing a loaded weapon at the victim.  In order prove reasonable apprehension of immediate bodily harm, the govt. introduced evidence of a previous uncharged incident where the accused drew a loaded weapon on a person.  The victim was present at that prior incident.  Court held that 404(b) allowed this evidence for the limited purpose of showing assault victim’s apprehension.  Court noted that the list in 404(b) is not exclusive.

Your Analysis.  See United States v. Miller, 46 M.J. 63 (1997).

Identify the “other act” and show who did it.  This is a question of conditional relevancy, and governed by Mil. R. Evid. 104(b).  The judge is required only to consider the evidence offered and decide whether the panel reasonably could find that the “similar act” was committed by the accused.

In determining whether the Government has introduced enough evidence, the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. 

The court simply examines all the evidence in the case and decides whether the jury reasonably could find the conditional fact.  See Huddleston v. United States, 485 U.S. 681 (1988) (preliminary finding by the court that the Government has proved the act by a preponderance of the evidence is not required by Fed. R. Evid. 104(a)); United States v. Castillo, 29 M.J. 145, 151 (C.M.A. 1989). 

What is the specific purpose for which the evidence is offered, other than to show a predisposition to crime? 

What inferences and conclusions can be drawn from the evidence?  Articulate as many non-character inferences as possible 

If the inference intended includes one’s character as a necessary link, the past bad act evidence is excluded. 

Mil. R. Evid. 403 balancing test:  Has the party seeking exclusion shown that unfair prejudicial effect substantially outweighs the probative value of the uncharged misconduct?

Reynolds test for admission of uncharged misconduct:

Does the evidence reasonably support a finding by the members that the accused committed prior crimes, wrongs, or acts?

Does the evidence make a “fact of consequence” more or less probable?

Is the probative value of the evidence outweighed by danger of unfair prejudice?

United States v. Acton, 38 M.J. 330 (C.M.A. 1993): Military judge admitted evidence that the accused had showered with his children and shown them sexually explicit videotapes.  COMA found no abuse of discretion after analyzing the facts under Reynolds. 

Confession confirmed the accused showed video and showered with his children. 

Disclaiming sexual interest in his daughter made the evidence relevant to show accused’s plan or scheme to condition his daughter to view incest as normal. 

While preferable for military judges to articulate findings, so reviewing courts can determine how 403 was applied, COMA nevertheless found that element of the test also was satisfied. 

Admissibility of Post-Offense Misconduct.  Evidence of an accused’s crack-related activities occurring after the charged offense was admissible to show intent and knowledge as to earlier offense.  United States v. Latney, 108 F.3d 1446 (D.C. Cir. 1997), United States v. Matthews, 50 M.J. 584 (A.F. Ct. Crim. App. 1999).

Defense Concessions.  U.S. v. Crowder, 141 F.3d. 1202 (D.C. Cir. 1998).  Case remanded from the Supreme Court in light of Old Chief v. U.S., 117 S.Ct. 644 (1997).  In an en banc reversal a majority of the court held that the defense could not stipulate to uncharged misconduct in an effort to preclude the government from introducing evidence under Rule 404(b).  The D.C. Circuit said that the evidence was relevant under 401 even though there may have been other forms of evidence available.  The defense can’t force the government to stipulate, and if the evidence fits and exception under 404(b) and is not unduly prejudice under 403, then it comes in in the form the government wants.  Stipulations not the same as other evidence and the contexts and richness of the evidence would otherwise be lost.  Compare United States v. Whitner, 51 M.J. 457 (1999) with United States v. Morrison, 52 M.J. 117 (1999).

Uncharged Acts During Sentencing

Remember, admissibility of uncharged misconduct during presentencing is controlled by RCM 1001(b)(4), not Mil. R. Evid. 404(b).  Mil. R. Evid. 404(b) evidence which may have been admissible on the merits is not admissible during presentencing unless it constitutes aggravating circumstances within the purview of R.C.M. 1001(b)(4).  

United States v. Wingart, 27 M.J. 128, 136 (C.M.A. 1988) (provocative photos of young girl taken 3 years before indecent acts charge even occurred not admissible).

United States v. Hollingsworth, 44 M.J. 688 (C.G.Ct.Crim.App. 1996). Accused pleads guilty to one of two indecent acts specifications.  Second specification withdrawn per pretrial agreement.  Court hold it was proper for TC to introduce evidence directly relating to offense to which accused plead guilty.  See also United States v. Watts, 117 S. Ct. 633 (1997) (per curiam) (sentencing authority may consider conduct of which defendant has been acquitted, so long as that conduct has been proven by a preponderance of the evidence).

Double Jeopardy Issue:  In United States v. Mundell, 40 M.J. 704 (A.C.M.R. 1994), the accused alleged error based on the admission of uncharged misconduct which had been the subject of a not guilty finding at a prior court-martial.  A.C.M.R. found the judge properly applied Mil. R. Evid. 404(b) and 403, noting that COMA (in United States v. Hicks, 24 M.J. 3 (C.M.A. 1987)), and the Supreme Court (in Dowling v. United States, 493 U.S. 342 (1990)) already had held that collateral estoppel does not preclude use of otherwise admissible evidence even though it was previously introduced on charges of which an accused has been acquitted.

Intrinsic Misconduct:  United States v. Metz, 34 M.J. 349 (C.M.A. 1992).  In a premeditated murder case the accused told two witnesses that one time, during an argument, he had lifted his wife off the floor by her nose, and that sometimes he had to “rough her up. Military judge found the evidence admissible under Mil. R. Evid. 404(b) “to show identification of Mrs. Metz’s possible attacker and on the issue of premeditation or intent. 

COMA held the statements were part of res gestae of the murder and, thus, helpful to place the identity and intent evidence in context.”  This type of evidence enables the factfinder to see “the full picture,” and prevents gaps in the “narrative of occurrences” which might otherwise induce unwarranted speculation on the part of the factfinder.

Metz does not indicate when res gestae evidence is sufficiently “interwoven” with a charged offense to qualify for admission without an independent theory of logical relevance.  Other formulations of this intrinsic misconduct theory are “interconnected, intermingled, interrelated, [or] inextricably intertwined. . . . with the charged act.”  E.  Imwinkelried, Uncharged Misconduct, at  6:24. 

United States v. Alexander, 27 M.J. 834 (A.C.M.R. 1989) (Involved indecent acts and indecent liberties with a child under the age of sixteen.  Appeal alleged military judge erred in admitting the victim’s statement that the accused not only indecently touched her, but also had sexual intercourse with her.  A.C.M.R. held “when the uncharged misconduct is inextricably related in time and place with the charged offenses, it is generally admissible without the necessity for an appropriate limiting instruction.”  The court found the accused’s uncharged misconduct in Alexander “inextricably bound up with the charged offenses” and rejected that allegation of error.)