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).