         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201500360
                         _________________________

                 UNITED STATES OF AMERICA
                                  Appellee
                                     v.

                            HYUNHO YOON
                 Hospitalman Recruit (E-1), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Captain Franklin J. Foil, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                   Air Station, Jacksonville, FL.
Staff Judge Advocate’s Recommendation: Commander Nell O. Evans,
                             JAG, USN.
For Appellant: Lieutenant Doug Ottenwess, JAGC, USN; Lieutenant
                    Ryan W. Aikin, JAGC, USN.
 For Appellee: Lieutenant Robert J. Miller, JAGC, USN; Lieutenant
                  Taurean K. Brown, JAGC, USN.
                      _________________________

                          Decided 27 April 2017
                         _________________________

   Before M ARKS , F ULTON , and B ELSKY , Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   BELSKY, Judge:
   In a mixed-plea case a military judge, sitting as a special court-martial,
convicted the appellant, pursuant to his pleas, of violating a lawful general
order, contrary to Article 92, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 892. The military judge also convicted the appellant, contrary to his
                        United States v. Yoon, No. 201500360


pleas, of abusive sexual contact, in violation of Article 120(d), UCMJ, 10
U.S.C. § 920(d), for wrongfully touching the breast of Hospital Corpsman
Apprentice (HA) LM, U.S. Navy.1 The adjudged sentence included six months’
confinement and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged and, with the exception of the bad-conduct
discharge, ordered the sentence executed.
    Following our initial review of the case, submitted without assignment of
error, we specified the following issues: (1) whether the appellant’s conviction
for abusive sexual contact was legally and factually sufficient where the
evidence during the government’s case indicated only that the appellant
“groped” HA LM while she was asleep, unconscious, or otherwise unaware,
but not that he touched her breast as alleged in the specification; (2) whether
the military judge erred in admitting as an excited utterance a hearsay
statement from HA LM that the appellant touched her breast; and (3)
whether this court had the authority under Article 66(c), UCMJ, to affirm the
appellant’s conviction through certain exceptions and substitutions. In his
response to these specified issues, the appellant also raised a supplemental
assignment of error alleging the specification underlying the appellant’s
conviction failed to state an offense. Having received and considered briefs on
all the issues, and having carefully reviewed the record of trial, we find that
the appellant’s conviction for abusive sexual contact is factually insufficient.
We will take corrective action in our decretal paragraph.2
                                  I. BACKGROUND
   On the evening of 17 January 2014, several service members, including
the appellant and HA LM, met at a hotel in San Antonio, Texas, to socialize
and drink alcohol before heading to a nearby nightclub. The events of the
early morning that followed led the government to allege a violation of Article
120(d), claiming the appellant did:
       on or about 18 January 2014, commit sexual contact upon [HA
       LM], to wit: wrongfully touching her breast with his hand,
       when the accused knew or reasonably should have known that




   1  The military judge found the appellant guilty of this offense after rejecting the
appellant’s guilty plea to the lesser included offense of assault consummated by a
battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928. The military judge
rejected the plea based on a concern that the appellant’s answers during the
providence inquiry raised a mistake of fact defense.
   2  Our ruling on factual sufficiency renders moot the appellant’s supplemental
assignment of error that the specification in this case failed to state an offense.


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                           United States v. Yoon, No. 201500360


         [HA LM] was asleep, unconscious, or otherwise unaware that
         the sexual contact was occurring.3
Based on the evidence, the specification referred to one of two possible
encounters between the appellant and HA LM which, for ease of discussion,
we will refer to as the “0600 incident” and the “0100 incident.”
    During the government’s case, HA LM testified that, due to her
intoxication, she had only vague memories of what happened after she and
the group left the hotel for the club on the night in question. She remembered
vomiting out the car window during the cab ride to the club, and falling in the
grass when they arrived outside the club. She testified that the next thing
she remembered was waking up around 0500 or 0600, in a room in a hotel
other than the one at which she had started her evening, wearing only her
shirt, with the appellant breathing in her ear and “groping” her (the “0600
incident”).4 HA LM also testified that she subsequently traveled back to the
original hotel and confided in Hospitalman (HN) JQ, U.S. Navy, that she
“woke up to [the appellant] groping [her].”5 HA LM never explained during
her testimony what she meant by her use of the term “groping” and never
specifically said the appellant touched her breast.
    The government also introduced the appellant’s sworn statement to
investigators from the Naval Criminal Investigative Service (NCIS). In this
statement, the appellant admitted touching HA LM’s breast when they were
alone, at approximately 0100, in the new hotel room HA LM mentioned in
her testimony (the “0100 incident”). The appellant also stated that when he
touched HA LM’s breast, she indicated she did not want him touching her,
and he stopped. The appellant denied touching HA LM at all at 0600. The
government also introduced evidence that upon returning to base the next
day, the appellant admitted to other service members who were at the party
the night before that he was “feeling up on [HA LM],” and had done
“something wrong.”6
    During the defense’s case, the appellant testified consistently with his
statement to NCIS, admitting again that he touched HA LM’s breasts at
approximately 0100 while she was still awake. He also again denied touching
HA LM’s breast later in the morning while she was sleeping.




   3   Charge Sheet.
   4   Record at 117-18.
   5   Id. at 121.
   6   Id. at 204-05, 207, 212.


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                         United States v. Yoon, No. 201500360


    The defense also called HN AZ, who testified both as to HA LM’s level of
intoxication during the night in question and her opinion as to HA LM’s
truthfulness. On cross-examination, and over trial defense counsel’s hearsay
objection, trial counsel elicited from HN AZ that HA LM told her sometime
the next day that “she woke up to [the appellant] touching her breasts.”7 The
military judge admitted HA LM’s statement as an excited utterance.
    Throughout the court-martial, trial counsel took the position that the
military judge could find the appellant guilty of abusive sexual contact based
on either the “0100 incident” or the “0600 incident.” During opening
statements, trial counsel referred to the “0100 incident,” stating that when
the appellant “touched [HA LM’s] breast for the first time . . . [t]he touch
revived her” and she indicated for the appellant to stop.8 Trial counsel also
stated that “[a]round 0600, [HA LM] was jolted awake” to find the appellant
touching her breast a second time.9 In closing argument, trial counsel
reiterated his position that both instances of sexual contact occurred stating,
“[a] finding that either one of these instances occurred would be sufficient to
support a finding of guilty[.]”10 Conversely, the appellant’s argument at trial
was that he mistakenly thought HA LM consented to his touching her breast
during the “0100 incident,” and that the “0600 incident” never occurred. The
military judge found the appellant guilty of the specification.11 Neither party
requested special findings, nor did the military judge provide any sua sponte.
                                 II. DISCUSSION
    Before determining whether the evidence was factually and legally
sufficient, we must first determine what evidence we can consider in
performing this task, as such a review is limited to evidence properly
admitted at trial. United States v. Abdirahman, 66 M.J. 668, 672 (N-M. Ct.
Crim. App. 2008) (en banc) (stating that “[i]n reaching our decision regarding
the legal and factual sufficiency of the evidence, we have disregarded the
evidence admitted in error.” (citing United States v. Holt, 58 M.J. 227, 232
(C.A.A.F. 2003))). This requires us to first address whether the military judge
committed prejudicial error when he admitted as an excited utterance HA
LM’s statement to HN AZ that the appellant touched her breast.




   7   Id. at 277.
   8   Id. at 100.
   9   Id.
   10   Id. at 444-45.
   11   Id. at 481.


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A. Excited utterance
    We review for an abuse of discretion a military judge’s evidentiary
rulings, reversing such rulings only where the military judge “either
erroneously [applied] the law or clearly [erred] in making his or her findings
of fact.” United States v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003)
(citation omitted).
   An “excited utterance” has long been recognized as an exception to the
evidentiary rule prohibiting admission of hearsay statements. MILITARY
RULE OF EVIDENCE (MIL. R. EVID.) 803(2), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.). 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.”
United States v. Bowen, 76 M.J. 83, 2017 CAAF LEXIS 86, at *12 (C.A.A.F.
Feb. 8, 2017) (quoting United States v. Arnold, 25 M.J. 129, 132 (C.M.A.
1987)). Failure to meet any one of these conditions renders a statement
inadmissible. Id. In the appellant’s case, over the defense’s objection, the
military judge allowed HN AZ to testify that HA LM told her that the
appellant touched her breast. The military judge ruled the statement was an
excited utterance. However, there is no evidence the military judge actually
conducted the aforementioned analysis to determine the admissibility of HA
LM’s statement, and the record of trial lacks sufficient evidence to find
prongs one and three of the test. Consequently, we must conclude that the
military judge abused his discretion in admitting HA LM’s statement.
   Turning to the first prong of the analysis, there is no evidence that HA
LM’s statement to HN AZ was “spontaneous, excited, or impulsive.”
Abdirahman, 66 M.J. at 676. To the contrary, the evidence suggests that HA
LM’s comment occurred as long as six hours after the alleged incident, after
HA LM had taken cabs from the hotel where the incident allegedly occurred
back to her original hotel, then to the base, and spoken with several other
service members about the incident. ‘“[A] lapse of time between the event and
the utterance creates a strong presumption against admissibility.”’ United
States v. Feltham, 58 M.J. 470, 475 (C.A.A.F. 2003) (quoting United States v.
Jones, 30 M.J. 127, 128 (C.M.A. 1990)).
    Additionally, there is insufficient evidence to find the critical third prong
of the analysis, that at the time of HA LM’s statement to HN AZ she was still
under the stress or excitement caused by the startling event. Id. at 475.
While the record of trial indicates that HA LM “seemed really sad” when she


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                           United States v. Yoon, No. 201500360


made her comment to HN AZ, there is no indication she was still under the
stress or excitement of the event.12 For example, as trial defense counsel
established on redirect examination of HN AZ, HA LM was not crying or
shaking when she made her comment, and her demeanor did not cause HN
AZ to seek medical attention for HA LM or encourage her to report the
incident as a sexual assault.13 Given the absence of evidence that HA LM was
still under the stress or excitement of the alleged assault when she made the
statement, combined with the amount of time that elapsed between the
startling event and the statement, we find that the military judge abused his
discretion allowing HA LM’s statement into evidence.
    Having found error, we must test for prejudice. Bowen, 2017 CAAF
LEXIS 86, at *15; Art. 59, UCMJ. “Whether an error, constitutional or
otherwise, was harmless is a question of law that we review de novo.” United
States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003) (citations omitted).
When evaluating whether the erroneous admission of government evidence is
harmless, we weigh: “(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. Berry, 61
M.J. 91, 98 (C.A.A.F. 2005) (citations omitted). The burden is on the
government to persuade us that such an error did not materially prejudice
the substantial rights of the appellant. United States v. Baumann, 54 M.J.
100, 105 (C.A.A.F. 2000). After conducting this analysis, we find that the
government has not carried its burden.
    HA LM’s statement to HN AZ was crucial to the government’s case
because it was the only evidence that the appellant touched HA LM’s breast
during the “0600 incident,” when HA LM was asleep or unconscious or
otherwise unaware the act was occurring. At no point during her own
testimony earlier in the trial did HA LM testify that the appellant touched
her breast during that encounter, only that he “groped” her. All we can
discern from that testimony is that the appellant touched some part of HA
LM’s body. This absence of any specificity from HA LM makes her statement
to HN AZ critical for the government’s case. Without it, there is no direct
evidence the appellant touched HA LM’s breast at 0600. Given the
significance of this statement, we cannot conclude that its erroneous
admission was harmless.




   12   Id. at 276.
   13   Id. at 279, 283.


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                         United States v. Yoon, No. 201500360


B. Factual sufficiency
    Questions of factual sufficiency are reviewed de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). A conviction is factually
sufficient if, “after weighing all the evidence in the record of trial and
recognizing that we did not see or hear the witnesses as did the trial court,
this court is convinced of the appellant’s guilt beyond a reasonable doubt.”
United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) (citing
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)), aff’d on other
grounds, 64 M.J. 348 (C.A.A.F. 2007). In performing this unique appellate
function, we take “a fresh, impartial look at the evidence,” applying “neither
a presumption of innocence nor a presumption of guilt,” and “make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” Washington, 57 M.J. at
399. While the standard of review is no doubt high, we recognize that the
phrase “beyond a reasonable doubt” does not require the evidence to be free
from conflict. Rankin, 63 M.J. at 557. Indeed, we recognize that the factfinder
at trial may “believe one part of a witness’ testimony and disbelieve another.”
Abdirahman, 66 M.J. at 672 (citation and internal quotation marks omitted).
Again, this review is limited to evidence properly admitted at trial. Id. In the
appellant’s case, after carefully reviewing the record of trial, evaluating the
arguments of the parties, making allowances for not having observed the
witnesses, and considering the unique facts of this case, we cannot be
convinced of his guilt of abusive sexual contact.
   In light of the manner in which it drafted the specification, the
government needed to establish the following elements during trial:
         (1) that the accused committed sexual contact14 upon the victim
         by touching her breast with his hand; and




   14   Sexual contact was defined as:
             (A) touching, or causing another person to touch, either directly or
         through the clothing, the genitalia, anus, groin, breast, inner thigh,
         or buttocks of any person, with an intent to abuse, humiliate, or
         degrade any person; or
             (B) any touching, or causing another person to touch, either
         directly or through the clothing, any body part of any person, if done
         with an intent to arouse or gratify the sexual desire of any person.
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV,
¶ 45a(g)(2); Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at
597-98 (10 Sep 2014)


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        (2) that the accused did so when he knew or reasonably should
        have known that the victim was asleep, unconscious, or
        otherwise unaware that the sexual contact was occurring.15
Accord United States v. Welch, No. 201500184, 2016 CCA LEXIS 253,
unpublished op. (N-M. Ct. Crim. App. 21 Apr 2016). Examining the evidence
in light of these elements, we start with the “0100 incident.”
    1. 0100 incident
    We have no doubt the appellant touched HA LM’s breast during the “0100
incident,” thereby satisfying the first element of the offense. The appellant
repeatedly admitted to NCIS and again under oath at trial that he touched
HA LM’s breast at 0100. However, the appellant also repeatedly stated to
NCIS and at trial that HA LM was awake and aware of what was happening
when he touched her. Although HA LM remembers nothing about her arrival
at a new hotel early on the morning of 18 January, evidence showed that she
left the cab, stood at the reception desk with the appellant while he rented a
room, and then walked to the room on her own power. The appellant testified
that once HA LM was in the room, she took off his jacket and asked him to
remove her shoes before she climbed into the bed. Next to her in the bed, the
appellant immediately removed her shorts, underwear, and bra and started
touching her breast. According to the appellant, HA LM reacted negatively to
his touching of her breast, and he stopped. Shortly thereafter, she began to
gag and vomited over the side of the bed. We are not convinced beyond a
reasonable doubt that the evidence concerning the “0100 incident”
established that the appellant touched HA LM’s breast while she was asleep,
unconscious, or otherwise unaware that the touching was occurring.
   2. 0600 incident
   Turning to the “0600 incident,” while HA LM did testify that she awoke to
the appellant “groping” her, she never testified he “groped” her breast.
Nowhere else during the government’s case-in-chief did trial counsel
establish that “groping” meant that the appellant touched HA LM’s breast.
While the term grope can mean “to feel one’s way” or to “feel up,”16 and it can
have a sexual connotation, the term does not suggest that any particular
body part was touched. We believe groping alone fails to convey the body
part, breast or otherwise, that suffered the sexual contact. Consequently, we
cannot find beyond a reasonable doubt that HA LM awoke at 0600 to the


   15 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 597-98 (10

Sep 2014).
   16See Merriam Webster Dictionary, https://www.merriam-
webster.com/dictionary/grope (last visited Apr. 25, 2017).


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                            United States v. Yoon, No. 201500360


appellant touching her breast. Accordingly, we must find the evidence
factually insufficient to sustain a conviction under this theory as well.
    In reaching this conclusion, we have considered the possibility that the
military judge, as the factfinder, may have found that the appellant and HA
LM were actually referring to the same event in their testimony. Aside from
the fact that trial counsel did not view the evidence this way but argued
throughout trial that “either one of these instances” was “sufficient to support
a finding of guilty,”17 viewing the evidence as a single encounter requires too
great a leap based on the record. The specificity with which the appellant and
HA LM each described the respective encounters and the lack of any
independent evidence that would weave this testimony together into one
event would require nothing short of speculation for us to conclude that the
evidence as a whole was referring to one encounter. In short, the evidence in
this case leads us to the conclusion that the evidence is factually insufficient
to support a conviction for abusive sexual contact while HA LM was asleep,
unconscious, or otherwise unaware.
C. Conviction by exceptions and substitutions
   While we find the evidence as presented to be factually insufficient to
support a conviction that the appellant touched HA LM’s breast while she
was asleep, unconscious, or otherwise unaware the act was occurring, we
consider whether we can nonetheless affirm the conviction via exceptions and
substitutions—namely, excepting the words “touching her breast with his
hand” and substituting the words “groping her body.”
    Under Article 66(c), UCMJ, this court “may affirm only such findings of
guilty . . . as it finds correct in law and fact and determines, on the basis of
the entire record, should be approved.” Art. 66(c), UCMJ. In the past,
military appellate courts have used this broad power to make exceptions and
substitutions on appeal to affirm convictions. See, e.g., United States v.
Dodson, 40 M.J. 634, 637 (N.M.C.M.R. 1994); United States v. Beale, 54 M.J.
651, 653, 655 (C. G. Ct. Crim. App. 2000). While our power under Article
66(c), UCMJ is broad, it is not unlimited. We may not amend findings on
appeal in such a manner so that a conviction rests on a theory not presented
to the trier of fact. See United States v. Riley, 50 M.J. 410, 415 (C.A.A.F.
1999) (“An appellate court may not affirm an included offense on a theory not
presented to the trier of fact.”) (citations and internal quotation marks
omitted); see also RULE FOR COURTS-MARTIAL 918(a)(1), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2016 ed.) (“Exceptions and substitutions
may not be used to substantially change the nature of the offense . . . .”);


   17   Record at 444-45.


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                      United States v. Yoon, No. 201500360


United States v. Marshall, 67 M.J. 418, 421 (C.A.A.F. 2009) (finding material
variance prejudiced an appellant when he could not “have anticipated being
forced to defend against the charge of which he was ultimately convicted.”)
    In the appellant’s case, trial counsel argued consistently and exclusively
throughout the entire trial that the appellant wrongfully touched HA LM’s
breast. Trial counsel never implied that the appellant might have committed
the sexual contact in any other manner. Given this posture of the record,
affirming the appellant’s conviction via the suggested exceptions and
substitutions would impermissibly convict the appellant on a theory not
presented at trial. Accordingly, we decline to modify the findings in order to
affirm the appellant’s conviction.
D. Sentence reassessment
    Having set aside the abusive sexual conduct conviction, we must consider
the need to reassess the appellant’s sentence. After setting aside a conviction,
this court possesses broad discretion to reassess an appellant’s sentence.
United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013).
    Reassessing a sentence is only appropriate if we are able to reliably
determine that, absent the error, the sentence would have been “at least of a
certain magnitude.” United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense involved.” United States v. Sales, 22 M.J.
305, 308 (C.M.A. 1986). Such review relies on the totality of the
circumstances of each case and is guided by the following “illustrative, but
not dispositive, points of analysis”:
       (1) Whether there has been a dramatic change in the penalty
       landscape or exposure;
       (2) Whether sentencing was by members or a military judge
       alone;
       (3) Whether the nature of the remaining offenses captures the
       gravamen of criminal conduct included within the original
       offenses and whether significant or aggravating circumstances
       addressed at the court-martial remain admissible and relevant
       to the remaining offenses;
       (4) Whether the remaining offenses are of the type with which
       appellate judges should have the experience and familiarity to
       reliably determine what sentence would have been imposed at
       trial.
Winckelmann, 73 M.J. at 15-16.



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                      United States v. Yoon, No. 201500360


   Applying these principles, we are confident we can reassess the
appellant’s sentence. Given the nature of the appellant’s remaining
conviction, we affirm only a sentence of 45 days’ restriction.
                              III. CONCLUSION
   We set aside the findings to Charge II and its specification, dismiss
Charge II and its specification, affirm the findings as to Charge I and its sole
specification, and approve only so much of the sentence as amounts to 45
days’ restriction.
   Senior Judge MARKS and Judge FULTON concur.
                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




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