UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
v.
Captain BRANDON T. HENLEY
United States Army, Appellant

ARMY 20180175

Headquarters, Eighth Army
Wendy P. Daknis, Military Judge
Colonel E. Edmond Bowen, Jr., Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Todd W. Simpson, JA; Major Robert Feldmeier, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Jeremy Watford, JA; Captain Brian Jones, JA (on brief).

27 September 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WALKER, Judge:

A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of one specification of assault consummated by a battery in
violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928.
The convening authority approved the adjudged sentence of a dismissal from
military service.

Appellant contends the military judge erred when she admitted a hearsay
statement made by the complaining witness as an excited utterance pursuant to
HENLEY—ARMY 20180175

Military Rule of Evidence [Mil. R. Evid.] 803(2). Further, appellant alleges that the
error prejudiced him at trial. We agree and accordingly, grant relief.'

BACKGROUND

On 30 November 2017, appellant’s wife, TH, called Staff Sergeant (SSG)
Villanova, from appellant’s cellular phone. Staff Sergeant Villanova was a medic in
appellant’s unit in Korea whom TH met upon her arrival to Korea. According to
SSG Villanova, TH said, “Brandon hit me,” and explained that she wanted her
husband to leave or she would be coming up to the camp. Staff Sergeant Villanova
testified that TH sounded “upset” on the phone, like she was crying. Staff Sergeant
Villanova then heard appellant in the background calmly state, “I’11 wait for you to
get off the phone.” After that, TH abruptly ended the phone call.

Later on, TH drove to the unit headquarters with her and appellant’s three
children. Staff Sergeant Villanova observed TH get out of the car with the children
and noticed some bruising and marking around her eye and temple. TH met with
Lieutenant Colonel (LTC) Johnson, the Detachment Executive Officer, and the
Detachment Sergeant Major. Lieutenant Colonel Johnson noticed that TH appeared
as if she had been crying and her eyes were swollen. TH complained of headaches
to the Detachment leadership so they suggested SSG Villanova examine her. Staff
Sergeant Villanova examined TH’s bruising but felt it was outside of his level of
expertise as a medic, so the unit escorted TH to the hospital in Yongsan. At the
hospital, a medical provider also noted a bruise on TH’s head.

At trial, the government called SSG Villanova as a witness and attempted to
admit the statements TH made to him during their short phone call on 30 November
2017. Appellant’s defense counsel objected on the basis of hearsay. The
government asserted that TH’s statements to SSG Villlanova satisfied the
requirements for the excited utterance exception to the general prohibition against
hearsay. Staff Sergeant Villanova’s testimony was the only evidence the
government presented for purposes of admitting TH’s statements as an excited
utterance. The government did not present any evidence as to when appellant
allegedly hit TH in relation to her phone call to SSG Villanova.

In ruling that TH’s statements to SSG Villanova qualified as an excited
utterance, the military judge found that because SSG Villanova described TH as

 

' In addition to the assignment of error for which we grant relief, appellant contends
that his Sixth Amendment right to confrontation was violated by the testimony of
Staff Sergeant Villanova and that the evidence was factually insufficient to sustain
his conviction. Due to the relief we grant in our decretal paragraph, we need not
address appellant’s Confrontation Clause or factual sufficiency assignments of error.
HENLEY—ARMY 20180175

sobbing during the phone call, the startling event was “ongoing.” The military judge
continued her analysis stating:

The emergency does not have to be ongoing for it to be a
nontestimonial statement... . So, the fact that [TH] was
no longer being hit is not relevant in the case, when the
reporting or the receiver of the report was not law
enforcement or a member of the prosecution. So, with
respect to the excited utterance, the court believes it was
close enough in time to the event. It’s clear from her
demeanor on the phone that it was close enough to the
event that she blurted it out without any introduction, any
questions of what’s going on, what happened and then
immediately hung up the phone. That does fit within the
exception of an excited utterance...

The military judge overruled the defense’s hearsay objection and allowed SSG
Villanova to testify that TH told him, “Brandon hit me.” TH did not testify at
appellant’s court-martial.

LAW AND DISCUSSION

We evaluate a military judge’s decision to admit evidence as an excited
utterance under an abuse of discretion standard. United States v. Moolick, 53 M.J.
174 (C.A.A.F. 2000). A military judge abuses her discretion when her findings of
fact are clearly erroneous or if her decision is based on an erroneous view of the
law. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995). “A military
judge’s fact-finding is reviewed under the clearly erroneous standard, while
conclusions of law are reviewed de novo.” United States v. White, 69 M.J. 236, 239
(C.A.A.F. 2010). Here, we conclude that the military judge abused her discretion in
admitting TH’s statement to SSG Villanova as an excited utterance because she
found a clearly erroneous fact—that TH’s statement was “close enough in time” to
the alleged assault—that is unsupported by the record. Further, the military judge
used that fact as the foundation for her legal analysis, wherein she misapplied the
relevant law.

A. The Excited Utterance Exception Requires More than a Crying Declarant
Military R. Evid. 802 generally prohibits admission of hearsay, defining
hearsay as “a statement, other than one made by the declarant while testifying at

trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Pursuant to Mil. R. Evid. 803(2), the “excited utterance” exception to the
prohibition against hearsay permits admission of “a statement relating to a startling
HENLEY—ARMY 20180175

event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” “The theory underlying the admission of an
excited utterance is ‘that persons are less likely to have concocted an untruthful
statement when they are responding to the sudden stimulus of a startling event.’”
United States v. Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003)(quoting United States v.
Lemere, 22 M.J. 61, 68 (C.M.A. 1986)).

In United States v. Arnold, our superior court articulated a three-prong test for
a statement to qualify as an excited utterance:

(1) the statement must be spontaneous, excited or
impulsive rather than the product of reflection and
deliberation;

(2) the event prompting the utterance must be startling,
and;

(3) the declarant must be under the stress of excitement
caused by the event.

25 M.J. 129, 132 (C.M.A. 1987). See also United States v. Bowen, 76 M.J. 83, 88
(C.A.A.F. 2017).

The first prong of the Arnold test requires the statement to be “spontaneous,
excited, or impulsive rather than the product of reflection.” Feltham, 58 M.J. at
475. In the instant case, the military judge noted in her ruling that when TH made
her telephonic statement to SSG Villanova she “blurted it out without any
introduction,” rather than in response to a prompting question. However, TH’s
acquisition of appellant’s cellular phone and execution of a call to SSG Villanova
while appellant stood calmly in the background cuts against the spontaneity of the
statement. Additionally, there was no evidence provided indicating when the alleged
assault occurred or the circumstances surrounding the statement in order to
determine whether it was spontaneous as opposed to being the product of reflection.
We do not hold that statements made over the phone cannot qualify as excited
utterances; rather we hold we do not have the factual foundation to conclude that the
statements TH made over the phone was spontaneous in nature.

The second prong of the Arnold test requires that the event prompting the
utterance must be startling. Certainly, being assaulted by one’s spouse might be
startling. However, it is unclear from the record whether the alleged assault served
as the startling event that prompted TH’s abrupt phone call and statement to SSG
Villanova.
HENLEY—ARMY 20180175

The third prong of the Arnold test requires that the declarant was under the
stress of excitement caused by the startling event when she made her statement.

In determining whether a declarant was under the stress of
a startling event at the time of his or her statement, courts
have looked to a number of factors. These may include:
the lapse of time between the startling event and the
statement, whether the statement was made in response to
an inquiry, the age of the declarant, the physical and
mental condition of the declarant, the characteristics of
the event, and the subject matter of the statement.

United States v. Donaldson, 58 M.J. 477, 483 (C.A.A.F. 2003)(internal citations
omitted).

A lapse of time between a startling event and the excited utterance “creates a
strong presumption against admissibility.” Feltham, 58 M.J. at 475 (quoting United
States v. Jones, 30 M.J. 127, 129 (C.M.A. 1990)); see also Donaldson, 58 M.J. at
484. However, the time that passes between the startling event and the excited
utterance is only one factor to consider when determining whether a statement
qualifies as an excited utterance. Jd. (citations omitted). In Arnold, the court held
that a victim’s unsolicited statement given 12 hours after being sexually assaulted
qualified as an excited utterance as it was made at her first opportunity and while
her demeanor was substantially different than normal and still under the stress of the
startling event. 25 M.J. at 132. But in Jones, our superior court held a statement
was not an excited utterance when it was made 12 hours after a startling event. 30
M.J. at 128. In that instance, the declarant made the statement in response to a
question, after failing to comment on the event at an earlier opportunity and carrying
on with daily business following the event. Id. The “critical determination” is
whether the declarant was still under the stress of the startling event while uttering
her statement, not the amount of time that lapsed between the event and the
statement. Feltham, 58 M.J. at 475.

There are insufficient facts in the record upon which the military judge could
have concluded that TH’s statement was made while she was still under the stress of
the startling event. In fact, the government failed to present any evidence as to
when the alleged assault occurred in relation to the phone call. Given the
abbreviated nature of the call, SSG Villanova was unable to provide any evidence to
support whether TH was upset over the phone because appellant hit her, only that
she sounded like she was crying. If appellant hit his wife, it could have been several
hours or even days prior to TH’s statement to SSG Villanova.

The military judge relied solely on TH’s demeanor over the phone as a basis
to conclude that TH’s statement to SSG Villanova was “close enough in time to the
HENLEY—ARMY 20180175

event” to qualify as an excited utterance. While a tearful demeanor is a
consideration in determining whether an individual is still under the stress of a
startling event, it is not a sufficient factual basis for the military judge to have
concluded that TH’s utterance was “close enough in time” to the startling event. It
is just as probable that an individual may become emotional when recalling a
traumatic event no matter how much time has passed. Not every statement a person
utters while crying is safe from the dangers of hearsay; they are not all excited
utterances. Without any evidence of when the alleged assault occurred, “[w]e have
no way of divining what ‘close enough’ means when reviewing the testimony and
evidence deduced at trial.” United States v. Rich, ARMY 20130805, 2016 CCA
LEXIS 493, *15 (Army Ct. Crim. App. 9 August 2016).

Presuming TH was excited by an alleged assault, the unknown passage of time
between the assault and the statement may have allowed TH to deliberate over her
story, forfeiting the presumption that she did not have time to concoct an untruthful
statement. There are no facts to establish why TH was upset on the phone when she
made her statement, whether her demeanor reflected stress or excitement from the
alleged assault, or any temporal connection between the statement and the alleged
assault. The government failed to establish the factual foundation for the three
prongs of the Arnold test for an excited utterance. See Rich, 2016 CCA LEXIS 493
at *16. As such, the military judge’s factual finding that TH’s statement was close
enough in time to the startling event that she was still under the stress of the
startling event was clearly erroneous.

Further, the military judge conflated her excited utterance analysis with a
Confrontation Clause analysis thereby basing her ruling on an erroneous view of the
law. In her ruling, the military judge focused on the receiver of the statement not
being law enforcement and whether there was an on-going emergency, rather than
the state of the declarant and the temporal proximity of the statement to the startling
event. The military judge should have considered whether the event in question—
being hit by appellant—was a startling event, whether TH’s statement in response to
the event was spontaneous, and whether she was still under the stress of the startling
event when she made it.

In the instant case, a critical fact upon which the military judge relied was
clearly erroneous because it was unsupported by the record, an error which was
further compounded by the judge’s erroneous view of the law. Therefore, we hold
that the military judge abused her discretion when she admitted TH’s statement to
SSG Villanova as an excited utterance.
HENLEY—ARMY 20180175
B. The Prejudicial Effect of the Error

Having found the military judge abused her discretion, we turn to the question
of whether the error had a prejudicial effect. “[A] finding or sentence of a court-
martial may not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.” Article 59(a), UCMJ, 10
U.S.C. §859(a). We evaluate an evidentiary ruling for prejudice by weighing: “(1)
the strength of the Government’s case, (2) the strength of the defense case, (3) the
materiality of the evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1995).

Applying the Kerr factors, we lack confidence that the military judge was not
influenced by the improper hearsay testimony in this case. While the government
presented evidence that TH had bruising in her eye and temple area consistent with a
physical assault, the government presented no evidence as to who caused those
injuries other than the hearsay statement made to SSG Villanova. The sole piece of
evidence that appellant assaulted TH was her hearsay statement to SSG Villanova.”
We find the hearsay statement in question was material to the military judge’s
conclusion that appellant was guilty of the charged assault and thus, its admission
materially prejudiced appellant.

CONCLUSION

For the foregoing reasons we conclude the military judge abused her
discretion by admitting as an excited utterance TH’s hearsay statement, such error
materially prejudicing appellant’s substantial rights at trial.

The findings of guilty of the Charge and its Specification are set aside. A
rehearing is authorized.

Senior Judge ALDYKIEWICZ and Judge SALUSSOLIA concur.
FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

 

* While TH informed a medical provider that appellant physically assaulted her and
that was the source of her injuries, the military judge excluded those particular
statements made to the medical provider under the Confrontation clause.
