UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           MULLIGAN, FEBBO, and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                  Sergeant First Class EDWARD L. CROWDER
                         United States Army, Appellant

                                   ARMY 20150728

               Headquarters, Fires Center of Excellence and Fort Sill
                         Jeffery R. Nance, Military Judge
       Lieutenant Colonel Katherine K. Stich, Staff Judge Advocate (pretrial)
          Colonel David E. Mendelson, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Ryan T.
Yoder, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief).


                                 26 September 2017
                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of a single specification of sexual assault in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter
UCMJ]. The military judge sentenced appellant to a dishonorable discharge, which
was mandatory. The convening authority, who under Article 60, UCMJ, had no
other option, approved the sentence.

      Appellant raises two assignments of error, each requiring a brief discussion
but no relief. The matters personally asserted by appellant pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), require no discussion.

                                     DISCUSSION

       Appellant was charged with sexually assaulting his ex-wife (“SC”) while she
had stopped by his house to pick up some documents. Shortly after the assault, SC
called 911 to report the offense and drove herself to the hospital. Both appellant and
CROWDER-ARMY 20150728

SC testified, providing the military judge with irreconcilable factual descriptions of
what transpired. SC described a sexual assault where she had repeatedly said “No,”
and tried to resist. Appellant described a completely consensual event. Appellant
contended at trial that SC fabricated the assault out of vindictiveness.

                            A. Admission of the 911 Call

       “A military judge’s decision to admit or exclude evidence is reviewed for an
abuse of discretion.” United States v. Bowen, 76 M.J. 83, 87 (C.A.A.F.
2017)(quoting United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003)).
Appellant argues on appeal that the military judge erred when he admitted an audio
recording of the 911 phone call as an excited utterance. In the call, which the
military judge found was made about thirty-minutes post-assault, SC states she had
just been raped by appellant and was driving herself to the hospital. In the recording
SC is audibly distraught and overcome with emotion. The military judge described
SC’s state during the phone call as “dare I say, hysteria . . . .”

        Appellant argues that the military judge abused his discretion in admitting the
recording. Most poignantly, appellant notes that SC first called, or attempted to
call, four other persons before calling 911. We find that the military judge was well
within his discretion in admitting the call. 1 United States v. Olson, 74 M.J. 132
(C.A.A.F. 2015).

       Nonetheless, we briefly note three issues. First, a substantial portion of
appellant’s argument addresses facts that were introduced after the ruling was made.
In general, we review the legal soundness of a military judge’s evidentiary ruling at
the time it is made. See Military Rule of Evidence [hereinafter Mil. R. Evid.]
103(a)(1)(2) (to preserve claim of error objecting party must “state[] the specific
ground [for the objection], unless it was apparent from the context.”

       Second, we disagree with appellant that the military judge should have
considered SC’s “motive to fabricate” when ruling on the motion. “The implicit
premise [of the exception] is that a person who reacts ‘to a startling event or
condition’ while ‘under the stress of excitement caused’ thereby will speak
truthfully because of a lack of opportunity to fabricate.” Bowen, 76 M.J. at 88
(quoting United States v. Jones, 30 M.J. 127, 129 (C.M.A. 1990)); White v. Illinois,

1
 We specifically do not address whether—in this judge alone trial—an erroneous
admission of the 911 recording would have been harmless. See Article 59(a), UCMJ.
While the recording was duplicative of SC’s testimony, it was separately probative
because of the contemporaneous recording of her emotion and anguish.

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CROWDER-ARMY 20150728

502 U.S. 346, 357 (1992) (“a statement that qualifies for admission under a ‘firmly
rooted’ hearsay exception is so trustworthy that adversarial testing can be expected
to add little to its reliability”).

       Finally, we note that the military judge’s threshold decision to admit evidence
is entirely separate from the evidentiary weight the fact-finder accords the evidence
when deliberating on findings. United States v. Martinez, 43 C.M.R. 434 (A.C.M.R.
1970) (quoting Kay v. United States, 255 F.2d 476 (4th Cir. 1958)).

                           B. Factual and Legal Sufficiency

        Article 66(c), UCMJ, provides that this court may “weigh the evidence, judge
the credibility of witnesses, and determine controverted questions of fact.” When
exercising this authority, this court does not give deference to the decisions of the
trial court (such as a finding of guilty). United States v. Washington, 57 M.J. 394,
399 (C.A.A.F. 2002) (A court of criminal appeals gives “no deference to the
decision of the trial court” except for the “admonition . . . to take into account the
fact that the trial court saw and heard the witnesses”).

      Appellee cites our decision in United States v. Stanley, 43 M.J. 671, 674
(Army Ct. Crim. App. 1995), for the proposition that “[i]n cases where witness
credibility plays a critical role in the outcome of trial, this court should hesitate to
second-guess the trial court’s findings.” (emphasis added). Although the quoted
language is oft-repeated in government briefs, we question whether the language in
Stanley continues to be appropriate.

       First, the emphasized language in Stanley is troublesome. The job of an
appellate court—especially an appellate court that conducts a de novo review of the
facts—is to “second guess” the findings of the trial court. We should never
“hesitate” in performing our review.

       Second, our published decision in Stanley must yield to the CAAF’s later
decision in Washington. 2 If we give “no deference” to the decisions of the trial
court, then we must approach a factual sufficiency review without hesitation or
presupposing what the outcome will be. Washington, 57 M.J. at 399.

      Third, our decision in Stanley relied on United States v. Albright, 9
U.S.C.M.A. 628, 26 C.M.R. 408 (1958) for its authority. As the CAAF is strictly a


2
 As Washington is controlling we do not think it necessary to revisit Stanley in a
published opinion.
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CROWDER-ARMY 20150728

court of law, see Article 67, UCMJ, the “deference” given by CAAF when
considering witness credibility is not controlling authority for how we conduct our
review as a court of law and fact under Article 66, UCMJ.

       In sum, Stanley is awkwardly phrased, relied on questionable authority, and
cannot be asserted in a manner inconsistent with the CAAF’s decision in
Washington. Nonetheless, we are “admoni[shed]” under Washington to “take into
account the fact that the trial court saw and heard the witnesses.” We have said
“that the degree to which we ‘recognize’ or give deference to the trial court’s ability
to see and hear the witnesses will often depend on the degree to which the credibility
of the witness is at issue.” United States v. Davis, 75 M.J. 537, 546 (Army Ct. Crim.
App. 2015) (citing Article 66(c), UCMJ).

       Here, this case turned on the relative credibility of the witnesses. After
taking into account that the trial court saw and heard the witness, we find the
evidence factually sufficient.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED. 3

                                        FOR THE COURT:
                                        FOR THE COURT:



                                        JOHN P. TAITT
                                        JOHN Clerk
                                        Acting P. TAITT
                                                   of Court
                                        Acting Clerk of Court




3
  According to United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998), we are required
to consider post-trial submissions in determining sentence appropriateness. SC
submitted matters pursuant to Article 6b, and R.C.M. 1105A, outlining the trauma
she continues to suffer as a result of appellant’s crime. SC’s statement has not been
authenticated, sworn, determined admissible under the Military Rules of Evidence,
or been subject to adversarial testing. Thus, we would find application of Boone to a
victim’s clemency submission to warrant discussion. However, in this case,
appellant’s only sentence was to be dishonorably discharged. In United States v.
Kelly, 2017 CCA LEXIS 453 (Army Ct. Crim. App. 5 July 2017), we determined that
our review of sentence appropriateness does not extend to reviewing sentences made
mandatory under Article 56.
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