2020 (October Term)
United States v. Long, 81 M.J. 362 (using charged conduct as propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected).
United States v. Upshaw, 81 M.J. 71 (MRE 413 addresses the admission of evidence of similar crimes in sexual assault cases and states in relevant part that in a court-martial proceeding for a sexual offense, a military judge may admit evidence that the accused committed any other sexual offense and that evidence may be considered on any matter to which it is relevant; this provision provides an exception to MRE 404(b) and the general concept that prior convictions or uncharged misconduct are not admissible to show an accused’s propensity towards bad acts or bad character; the constitutionality of permitting admission of such propensity evidence was upheld by CAAF in US v. Wright, 53 MJ 476 (CAAF 2000)).
(as determined in US v. Hills, 75 MJ 350 (CAAF 2016), the government cannot use charged sexual misconduct to prove propensity to commit other charged sexual misconduct under MRE 413; neither the text of MRE 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case).
2019 (October Term)
United States v. Prasad, 80 M.J. 23 (it impermissible to use MRE 413 propensity evidence as a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct).
2018 (October Term)
United States v. Hyppolite, 79 M.J. 161 (under MRE 404(b)(1) (MCM, 2016 ed), evidence that an accused committed one offense is not admissible to prove that the accused had the propensity to commit another offense; but under MRE 404(b)(2), such evidence may be admissible for another purpose).
(in this case, the military judge did not abuse his discretion in his MRE 404(b) ruling that the evidence that appellant committed abusive sexual contact by touching the genitalia of three alleged victims, respectively, either directly or through their clothing, with an intent to gratify appellant’s sexual desire, when appellant knew or reasonably should have known that these men were asleep, could be used to show that appellant engaged in a common plan or scheme of criminality encompassing not only those offenses but also the offenses of abusive sexual contact by causing bodily harm by touching another victim’s genitalia with an intent to gratify appellant’s sexual desire and sexually assaulting that victim by penetrating his mouth and anus with appellant’s penis, even though the other victim was not asleep at the time of the sexual contact; in the latter case, the judge could have found that before appellant entered the room to assault the other victim, he may have thought that the victim was asleep because all the incidents occurred after a night of drinking when the alleged victims were asleep or falling asleep).
(MRE 413(a) (2016 ed) creates an exception to MRE 404(b)(1) by providing that in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. And the evidence may be considered on any matter to which it is relevant; although MRE 413(a) sometimes may allow a court to consider propensity evidence, the rule is limited by US v. Hills, 75 MJ 350 (CAAF 2016), and US v. Hukill, 76 MJ 219 (CAAF 2017); these decisions prohibit using evidence of one charged offense as proof of another charged offense under MRE 413).
(under MRE 404(b)(2), while evidence of a crime, wrong, or other act may not be used to show character or propensity, it may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident; one proper purpose of such evidence is to prove the existence of a plan or scheme).
2008 ( September Term)
United
States v. Burton, 67 M.J. 150 (the government
may not introduce similarities
between a charged offense and prior conduct, whether charged or
uncharged, to
show modus operandi or propensity without using a specific exception
within our
rules of evidence, such as MRE 404 or 413 [allowing character evidence
when
offered first by the accused, allowing evidence of other crimes to show
motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of
mistake, and allowing evidence of prior sexual assaults when the
accused is
charged with a sexual assault offense]; it follows, therefore, that
portions of
a closing argument encouraging a panel to focus on such similarities to
show
modus operandi and propensity, when made outside the ambit of these
exceptions,
are not a reasonable inference fairly derived from the evidence, and
are
improper).
United
States v. Goodin, 67 M.J. 158 (MRE 404(b)
excludes evidence of other crimes,
wrongs, or acts offered solely to prove the character of a person in
order to
show action in conformity therewith; such evidence may still be
introduced
under MRE 404(b) if it is offered for another purpose, such as proof of
motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of
mistake or accident).
United States v. Harrow, 65 M.J. 190 (the correct
test for the admissibility of uncharged misconduct under MRE 404(b) is:
first, does the evidence reasonably support a finding by the
court members that appellant committed prior crimes, wrongs or acts;
second, what fact of consequence is made more or less probable by the
existence of this evidence; and last, is the probative value
substantially outweighed by the danger of unfair prejudice).
(in interpreting MRE 404(b),
CAAF has joined the prevailing federal practice, which does not limit
“other” in acts under Fed. R. Evid. 404(b) to “prior” acts; it now
continues down that road and concludes that the “one or more offenses”
language of MRE 413 and MRE 414 is no more temporally restrictive than
the “other crimes” language of MRE 404(b)).
United States v. Washington, 63 M.J. 418 (although the
members found appellant not guilty of carnal knowledge with his
daughter on divers occasions before the date of the offense of carnal
knowledge with his daughter for which he was convicted, the lower court
did not err in relying on the evidence regarding those earlier divers
acts in upholding the factual and legal sufficiency of his conviction
where the members could reasonably have found by a preponderance of the
evidence that the prior acts occurred, the evidence that appellant may
have earlier engaged in nearly identical acts was relevant to whether
he engaged in similar conduct on the later date, and the probative
value of the evidence was not substantially outweighed by the danger of
unfair prejudice).
(the admissibility of other
acts evidence is governed by the Military Rules of Evidence, and not by
the members’ verdict; a finding of not guilty is not a finding of fact,
but a determination that the government has not proved all the elements
of the charged offense beyond a reasonable doubt).
(with respect to other acts
evidence involving child molestation and sexual assault, MRE 413 and
MRE 414 are intended to provide for more liberal admissibility of
character evidence in criminal cases).
(before a court-martial may
submit evidence of prior charged or uncharged acts to the members, it
must examine the evidence in the case and decide whether the members
could reasonably find the conditional fact by a preponderance of the
evidence; the three-prong test of United States v. Reynolds, 29
MJ 105 (CMA 1989), for the admissibility of uncharged misconduct can
apply to evidence of charged misconduct; the test contains the
following elements: (1) Does the evidence reasonably support a finding
by the court members that the appellant committed prior crimes, wrongs
or acts?; (2) What fact of consequence is made more or less probable by
the existence of this evidence?; (3) Is the probative value
substantially outweighed by the danger of unfair prejudice?).
United States v. Tanner, 63 M.J. 445 (under MRE
404(b), evidence of uncharged misconduct is expressly inadmissible as a
general matter to show propensity to commit the charged crime, but it
may be admissible for other purposes).
(MRE 404(b) does not provide a
basis for admission of evidence during sentencing that is not otherwise
admissible under RCM 1001(b)(4)).
(MRE 414, which addresses the
admissibility of evidence of similar crimes in child molestation cases,
establishes a presumption in favor of admissibility of evidence of
prior similar crimes in order to show predisposition to commit the
designated crimes; as such, MRE 414 stands in sharp contrast to MRE
404(b), which bars uncharged misconduct as evidence of predisposition).
(the
structure of MRE 404(b) permits admission of evidence of other crimes,
wrongs, or acts only upon a showing by the proponent of a specifically
relevant purpose to be served under the circumstances of the particular
case).
(MRE 414 does not contain a
prohibition against predisposition evidence; instead, in a
court-martial for child molestation, MRE 414 provides a vehicle for the
admissibility of other acts of child molestation committed by the
accused; the rule reflects a presumption that other acts of child
molestation constitute relevant evidence of predisposition to commit
the charged offense; as such, in a child molestation case, evidence of
a prior act of child molestation directly relates to the offense of
which the accused has been found guilty and is therefore relevant
during sentencing under RCM 1001(b)(4)).
(evidence under MRE 414 is
subject to a balancing test pursuant to MRE 403, under which relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members).
2004
United
States v. McDonald, 59 MJ 426 (this Court relies upon
the
following three-part test in United States v. Reynolds, 29 M.J.
105
(C.M.A. 1989) to determine the admissibility of “other acts” evidence
under MRE
404(b): (1) Does the evidence reasonably support a finding by the court
members
that appellant committed prior crimes, wrongs, or acts?; (2) What fact
of
consequence is made more or less probable by the existence of this
evidence?;
and (3) Is the probative value substantially outweighed by the danger
of unfair
prejudice?).
(the
first and
second prongs of the Reynolds test address the logical
relevance of the
evidence; the third prong ensures that the evidence is legally, as well
as
logically, relevant; the moving party must satisfy all three prongs for
the
evidence to be admissible).
(MRE
404(b)
evidence is relevant only if the jury can reasonably conclude that the
act
occurred and that the defendant was the actor; the threshold inquiry a
court
must make before admitting similar acts evidence under MRE 404(b) is
whether
that evidence is probative of a material issue other than character,
such as
plan or intent; finally, a court must determine whether the probative
value of
the evidence is substantially outweighed by the danger of unfair
prejudice).
(applying
the
second prong of Reynolds, we hold that evidence of appellant’s
uncharged
acts was not logically relevant to show either a common plan or
appellant’s
intent; the common plan analysis considers whether the uncharged acts
in
question establish a plan of which the charged act is an additional
manifestation, or whether the acts merely share some common elements;
the
question as applied to the facts of this case, is whether the uncharged
acts
evidence shows that appellant had a plan to commit indecent acts that
manifested itself on two occasions: first, when appellant was 13 years
old with
his stepsister, and second, 20 years later, with his adopted daughter;
in
answering such a question, we have examined the following factors: the
relationship between victims and the appellant; ages of the victims;
nature of
the acts; situs of the acts; circumstances of the acts; and time span;
viewing
the facts of this case under that framework, we conclude that the
military
judge abused his discretion in admitting the uncharged acts to
establish a
common plan; indeed, the uncharged acts in this case are extremely
dissimilar
to the charged offenses: Appellant was 13 years of age at the time
of the
uncharged acts, rather than a 33-year-old adult; the uncharged acts
were
committed in the home of his stepsister, where he was visiting, while
the
charged acts occurred where he was the head of the household; the
uncharged
acts were with a stepsister who was about five years younger, rather
than with
a young stepchild under his parental control, who was about 20 years
younger;
the intent analysis considers whether appellant’s state of mind in the
commission of both the charged and uncharged acts was sufficiently
similar to
make the evidence of the prior acts relevant on the intent element of
the
charged offenses; in this case, appellant was a 13-year-old child at
the time
of the uncharged acts, and a 33-year-old married adult at the time of
the
charged acts; absent evidence of that 13-year-old adolescent’s mental
and
emotional state, sufficient to permit meaningful comparison with
appellant’s
state of mind as an adult 20 years later, the military judge’s
determination of
relevance on the issue of intent was fanciful and clearly unreasonable).
2003
United
States v. Diaz, 59 MJ 79 (this Court applies a
three-pronged test for determining admissibility of other-acts evidence
under
M.R.E. 404(b): (1) whether the evidence reasonably supports a finding
by the
court members that the accused committed prior crimes, wrongs or acts;
(2) what
fact of consequence is made more or less probable by the existence of
this
evidence; and (3) whether the probative value is substantially
outweighed by
the danger of unfair prejudice; if the evidence fails any of the three
tests,
it is inadmissible).
2002
United
States v. Tyndale, 56 MJ 209 (evidence of prior
drug use
is not inadmissible per se at a court-martial; Mil.R.Evid
404(b) permits
evidence of other crimes, wrongs, or acts to prove facts other than a
person’s
character, such as intent, knowledge, absence of mistake or accident,
motive,
opportunity, or knowledge).
(the test for admissibility of other acts evidence under Mil.R.Evid.
404(b)
is whether the evidence is offered for some purpose other than to
demonstrate
the accused’s predisposition to crime; the rule is one of inclusion).
(evidence offered under Mil.R.Evid. 404(b) must meet three criteria
for
admissibility: (1) the evidence must reasonably support a finding by
the court
members that appellant committed the prior crimes, wrongs, or acts; (2)
the
evidence must make a fact of consequence more or less probable; and (3)
the
probative value of the evidence must not be substantially outweighed by
the
danger of unfair prejudice).
United
States v. Simpson, 56 MJ 462 (similar offenses
occurring
earlier in time may be used as “other crimes, wrongs, or acts” for the
limited
purpose of demonstrating appellant’s tendency to take advantage
sexually of
women who were intoxicated or under the influence of alcohol).
United
States v. Humpherys, 57 MJ 83 (Mil.R.Evid. 404(b)
is a
rule of inclusion, not exclusion; the sole test under Mil.R.Evid.
404(b) is
whether the evidence of the misconduct is offered for some purpose
other than
to demonstrate the accused’s predisposition to crime).
(In addition to having a proper purpose under Mil.R.Evid. 404(b),
proffered
evidence must meet the standards of Mil.R.Evid. 104(b), 402, and 403).
(There is a three-pronged test for determining admissibility of
other-acts
evidence under Mil.R.Evid. 404(b), failure of the evidence under any
one of
which renders the evidence inadmissible: (1) whether the evidence
reasonably supports a finding by the court members that appellant
committed
prior crimes, wrongs or acts; (2) what fact of consequence is made more
or less
probable by the existence of this evidence; and (3) whether the
probative value
is substantially outweighed by the danger of unfair prejudice).
(Under the three-pronged analysis for determining admissibility of
other-acts evidence under Mil.R.Evid. 404(b), the military judge did
not abuse
his discretion by admitting the challenged testimony concerning
statements made
to other female soldiers where: (1) there was more than
sufficient
evidence for the members to conclude that appellant made the statements
in
issue; (2) the evidence was relevant to a probable defense that the
statement
was made for an official purpose as well as being relevant to
appellant’s
intent in making the charged remark, a fact in issue and of
consequence; and
(3) the danger of unfair prejudice to appellant's interests did not
substantially outweigh the probative value of the extrinsic-acts
evidence in
proving intent).
(extrinsic acts evidence may be critical to the establishment of the
truth
as to a disputed issue, especially when that issue involves the actor’s
state
of mind and the only means of ascertaining that mental state is by
drawing
inferences from conduct).
(extrinsic evidence of prior acts of misconduct is not admissible to
rebut
opinion evidence of good military character).
2001
United
States v. Young, 55 MJ 193 (the test for
admissibility of
evidence of uncharged crimes is whether the evidence of the misconduct
is
offered for some purpose other than to demonstrate the accused’s
predisposition
to crime).
(there is a three-part test for admissibility of evidence of other
crimes,
wrongs, or acts: (1) the evidence must reasonably support a finding
that the
accused committed the crime, wrong, or act; (2) the evidence must make
a fact
of consequence more or less probable; and (3) its probative value must
not be
substantially outweighed by the danger of unfair prejudice).
(the three-part test for admissibility of evidence of other crimes,
wrongs,
or acts applies to subsequent acts).
(military judge did not abuse his discretion by admitting evidence
of a drug
conversation involving appellant weeks after the charged drug
conspiracy; the
subsequent conversation revealed the subject matter and context of a
conversation in which appellant admitted the charged conspiracy).
2000
United
States v. Phillips, 52 MJ 268 (there is a
three-part test
to determine the admissibility of evidence of “other crimes, wrongs, or
acts”: (1) the evidence must reasonably support a finding by the
court members
that appellant committed prior crimes, wrongs, or acts; (2) the
evidence must
make a fact of consequence more or less probable; and, (3) the
probative value
must not be substantially outweighed by the danger of unfair
prejudice).
United
States v. Smith, 52 MJ 337 (upon objection, the
proponent
of other acts evidence should be required to identify the specific
purpose or
purposes for which evidence of other crimes, wrongs, or acts is being
offered).
(in determining the admissibility of MRE 404(b) evidence,
circumstantial
evidence that appellant may have wrongfully appropriated money
entrusted to him
was sufficient for the fact-finder to reasonably find that the accused
committed the “other act” of temporarily appropriating money for his
own
purposes).
(proffered MRE 404(b) evidence that appellant may have wrongfully
appropriated money entrusted to him was relevant to a fact of
consequence in
larceny case; specifically, that appellant had financial difficulties
and the
degree of financial pressure that was applied to appellant on the
actual day of
the charged theft were probative of a motive on his part to commit
larceny).
(the probative value of evidence that appellant may have wrongfully
appropriated money entrusted to him was not substantially outweighed by
the
danger of unfair prejudice where: (1) military judge ruled and
instructed
that the evidence could be used only for its tendency, if any, to prove
the accused’s
motive for alleged theft; (2) the evidence had great probative value
because it
revealed the true extent of the accused’s financial desperation on the
day of
the alleged theft; and, (3) the military judge instructed that the
evidence
could not be used as propensity evidence).
United
States v. Taylor, No. 98-1140, 53 MJ 195 (evidence of other
crimes,
acts, or wrongs must be offered for some purpose other than to
demonstrate the
accused’s predisposition to crime and thereby to suggest that the
factfinder
infer that he is guilty because he is predisposed to commit similar
offenses;
such evidence may be admitted if it: (1) reasonably supports a
finding
that the accused committed the crime, wrong, or act; (2) makes a fact
of
consequence more or less probable; and (3) possesses probative value
that is
not substantially outweighed by the danger of unfair prejudice).
(accused’s pretrial statement contained references to minor criminal
conduct, brandishing a knife at his roommate, arming himself with a
knife in
response to a disagreement, and firing a weapon at a person before he
joined
the Marine Corps; military judge did not abuse his discretion by not
redacting
this other acts evidence from accused’s pretrial statement where:
blanking out
an entire paragraph might invite the members to speculate and infer
something
adverse to the accused; the military judge provided cautionary
instructions;
appellant offered nothing to show that the use of the disputed evidence
was not
limited by effective instructions; and the members may be presumed to
have
followed the limiting instructions).
United
States v. Wright, No. 99-0318, 53 MJ 476 (MRE 413, “Evidence of
similar
crimes in sexual assault cases”, creates an exception to MRE 404(b)’s
general
prohibition against the use of a defendant’s propensity to commit
crimes and is
subject to the balancing test of MRE 403).
(before admitting evidence under MRE 413, “Evidence of similar
crimes in
sexual assault cases”, three threshold findings are required: (1)
the
accused is charged with an offense of a sexual nature; (2) the evidence
proffered is evidence of the defendant’s commission of another offense
of
sexual assault; and (3) the evidence is relevant under MREs 401 and
402).
(before admitting evidence under MRE 413, “Evidence of similar
crimes in
sexual assault cases”, the military judge must apply a balancing test
under MRE
403 and consider the following non-exclusive factors: (1)
strength of
proof of prior acts; (2) probative weight of evidence; (3) potential
for less
prejudicial evidence; (4) distraction of factfinder; (5) time needed
for proof
of prior conduct; (6) temporal proximity; (7) frequency of the acts;
(8)
presence or lack of intervening circumstances; and (9) the relationship
between
the parties).
(in addition to a requirement to balance under MRE 403, MRE 413,
“Evidence
of similar crimes in sexual assault cases”, also protects: (1) by
limiting the uncharged misconduct to serious offenses; (2) by requiring
the
evidence to meet the relevancy requirements of MREs 401 and 402 and
enforced
through MRE 104(b); (3) by requiring the military judge to conclude by
a
preponderance of the evidence that the offenses occurred; and (4) by
the notice
requirement in MRE 413(b) which ensures that the admission of evidence
does not
threaten the presumption of innocence).
(in a “judgment of the Court”, MRE 413, “Evidence of similar crimes
in
sexual assault cases”, was found to be constitutional in the face of
appellant’s claim that the rule violated the Due Process and Equal
Protection
Clauses of the Constitution).
United
States v. Matthews, No. 99-0487, 53 MJ 465 (other acts evidence
offered
under MRE 404(b) must satisfy three tests to be admissible: (1)
the
evidence must reasonably support a finding by the court members that
appellant
committed prior crimes, wrongs, or acts; (2) the evidence must make a
fact of
consequence more or less probable; and (3) the evidence must satisfy
the
balancing required by MRE 403).
United
States v. Henley, No. 99-0094, 53 MJ 488 (where victims of
long-term
sexual abuse as children testified about uncharged sexual abuse outside
the
statute of limitations, testimony regarding this uncharged sexual abuse
was
admissible as other crimes, wrongs or acts evidence under MRE 404(b)).
United
States v. Browning, 54 MJ 1 (MRE 404(b) is a rule
of
inclusion rather than exclusion; it permits admission of relevant
evidence of
other crimes or acts unless the evidence tends to prove only criminal
disposition).
(there is a three-pronged test for admissibility of other acts
evidence: (1) such evidence must reasonably support a finding by
the
court members that appellant committed prior crimes, wrongs, or acts;
(2) such
evidence must make a fact of consequence more or less probable; and (3)
the
probative value must not be substantially outweighed by the danger of
unfair
prejudice).
(the standard of proof for the first prong of the test for
admissibility of
other acts evidence is quite low and is satisfied by evidence upon
which the
trier of fact could reasonably conclude that the accused committed the
act
sought to be introduced; this prong was satisfied where co-actor
testified that
the events did take place and that they were in furtherance of the
conspiracy).
(admissibility of evidence of other acts, crimes or wrongs committed
by
appellant’s co-conspirators is not evaluated under MRE 404(b), but
instead is
evaluated under MREs 401, 402, and 403).
United
States v. Baumann, 54 MJ 100 (MRE 404(b) is viewed
as a
rule of inclusion, not exclusion, thus evidence of uncharged misconduct
of an
accused may be offered to show a motive for some action by a person
other than
an accused).
United
States v. Tanksley, 54 MJ 169 (Mil. R. Evid.
404(b) is a
rule of inclusion; the nub of the matter is whether the evidence is
offered for
a purpose other than to show an accused’s predisposition to commit an
offense).
(testimony from appellant’s older daughter that he had sexually
molested her
years earlier was admissible against appellant on charge of sexually
molesting
a different daughter where the evidence met the three-prongs for
admissibility
of Mil. R. Evid. 404(b) evidence: (1) the testimony of the older
daughter
reasonably supported a finding by the court members that appellant has
sexually
abused the older daughter; (2) the evidence made the existence of
appellant’s
malevolent intent in bathing with the second daughter more probable;
and (3),
as the evidence was properly before the members on another charge and
because
the trial judge’s instructions precluded any improper use of the
evidence,
there was no danger of unfair prejudice).
1999
United
States v. Griggs, 51 MJ 418 (the fact of an acquittal
does not
necessarily bar evidence of prior acts where those prior acts are
relevant and
probative).
(at a trial for indecent exposure, military judge did not abuse his
discretion by admitting evidence of prior uncharged acts of indecent
exposure
and masturbation as evidence of intent and absence of mistake under MRE
404(b),
where: (1) there was sufficient evidence that the prior acts
occurred;
(2) the appropriate MRE 403 balancing test was applied; and (3) due
sensitivity
was exercised toward the fact that the prior acts had been subject to
an
acquittal).
United
States v. Morrison, 52 MJ 117 (evidence of other acts of
misconduct may not be introduced solely to show that an accused has a
propensity to commit crimes of the type charged).
(to be admissible under MRE 404(b), evidence of other acts of
misconduct
must meet a three-part test: (1) the evidence must reasonably
support a
finding by the court members that the accused committed the other act –
preponderance of the evidence is the standard; (2) the evidence must
make a
fact of consequence more or less probable; and, (3) the probative value
of the
evidence is not substantially outweighed by the danger of unfair
prejudice
under MRE 403).
(to be admissible to show a plan or scheme, other acts of misconduct
must be
almost identical to the charged acts; where offered to show modus
operandi,
there must be a high degree of similarity between the extrinsic
evidence and
the charged act, so much so that it is like a “signature” marking the
charged
offense as the product of the accused).
(military judge abused his discretion admitting evidence of other
acts of
misconduct in the form of testimony by the accused’s natural daughter
about a
prolonged period of sexual abuse at the hands of the accused, where the
uncharged acts were not sufficiently similar to the charged acts to
show plan,
scheme, or modus operandi because: (1) aside from youth,
there was
no common relationship between the victims and appellant; (2) the ages
of the
victims varied over a broad range; (3) the nature of the acts was
different in
type and character; (4) the acts were in different types of places; (5)
there
was no common theme among the circumstances of the acts; and, (6) the
time gap
between the acts lessened the probative value to show a plan or
scheme).
(although uncharged acts had some tendency to show motive and
intent, where
these issues were not contested and nature of the charged acts was so
overtly
sexual that motive and intent were not in issue, the probative value of
the
uncharged acts on motive and intent was minimal).