        This opinion is subject to revision before publication




         UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
        Ellwood T. BOWEN III, Airman First Class
             United States Air Force, Appellant
                           No. 16-0229
                       Crim. App. No. 38616
       Argued November 1, 2016—Decided February 8, 2017
                 Military Judge: Lyndell M. Powell
   For Appellant: Major Johnathan D. Legg (argued); Colonel
   Jeffrey G. Palomino.
   For Appellee: Major Meredith L. Steer (argued); Colonel
   Katherine E. Oler, and Gerald R. Bruce, Esq. (on brief).
   Amicus Curiae for Appellant: Patrick D. Kummerer (law
   student) (argued); Michael N. Mulvania, Esq.
   (supervising attorney) (on brief)—University of Colorado
   Law School.

   Amicus Curiae for Appellee: Adam Zenger (law student)
   (argued); John G. Scott, Esq. (supervising attorney) (on
   brief)—University of Colorado Law School.

   Chief Judge ERDMANN delivered the opinion of the
   court, in which Judges STUCKY, RYAN, OHLSON, and
   SPARKS joined.
                       _______________

   Chief Judge ERDMANN delivered the opinion of the
court. 1
   A panel of officer members convicted Airman First Class
Ellwood T. Bowen III, contrary to his pleas, of one


   1  We heard oral argument in this case at the University of
Colorado Law School, Boulder, Colorado, as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
               United States v. Bowen, No. 16-0229/AF
                        Opinion of the Court

specification of aggravated assault upon his wife, Mrs. MB,
and one specification of assault consummated by battery
upon a fellow airman, Senior Airman (SrA) BB, in violation
of Article 128, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 928 (2012). 2 The panel acquitted Bowen of two
specifications of assault with a dangerous weapon, one
specification of assault consummated by battery upon Mrs.
MB, and one specification of communicating a threat, in
violation of Articles 128, UCMJ, and Article 134, UCMJ, 10
U.S.C. §§ 928, 934 (2012). Bowen was sentenced to one year
of confinement and reduction to the lowest enlisted grade.
The convening authority approved the sentence as adjudged
but waived the mandatory forfeitures in the amount of $800
for the benefit of Bowen’s dependent child. The United
States Air Force Court of Criminal Appeals (CCA) affirmed
the findings and the sentence. United States v. Bowen, No.
ACM 38616, 2015 CCA LEXIS 453, at *15, 2015 WL
6655193, at *6 (A.F. Ct. Crim. App. Oct. 26, 2015).
   Military Rule of Evidence (M.R.E.) 803 contains the
“excited utterance” exception to the hearsay rule and
provides for the admissibility of “[a] statement relating to a
startling event or condition made while the declarant was
under the stress of excitement caused by the event or
condition.” M.R.E. 803(2). We granted review in this case to
determine whether the military judge abused his discretion
when he permitted evidence that the victim nodded her head
to be admitted under the excited utterance exception. 3 We

   2  With respect to the specification of aggravated assault, the
panel excepted the words “pushing her into a wall and furniture,
kicking her in the face, and” and found Bowen not guilty of the
excepted words. With respect to the specification of assault
consummated by battery, the panel excepted the words “his
hands, choke him, and push him into a wall and furniture,”
substituted “his hands and choke him,” and found him not guilty
of the excepted words and guilty of the substituted words.
   3   We specified the following issue:
         Whether the military judge erred in applying the
         “excited utterance” exception to the hearsay rule to
         permit the government to introduce through the
         testimony of law enforcement personnel that
         Appellant’s wife nodded her head in response to a
         question whether her husband “did this,” and in
         concluding that the prejudicial effect of this testimony
         was outweighed by its probative value. See M.R.E. 802


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            United States v. Bowen, No. 16-0229/AF
                     Opinion of the Court

hold that, under the circumstances of this case, the military
judge abused his discretion by admitting the hearsay
testimony under M.R.E. 803(2) without adequately
considering the victim’s mental capacity at the time in
question. We therefore reverse the military judge and the
CCA.
                        BACKGROUND
    On November 24, 2013, Bowen, Mrs. MB, and SrA BB
attended a party together where all three consumed alcohol.
At some point during the night, Bowen became ill from
excessive alcohol consumption and was escorted home
between midnight and 2:00 a.m. by several partygoers,
including his wife (Mrs. MB) and SrA BB. Once at the
Bowens’ residence, Bowen was placed on the couch. The
party attendees who had helped Bowen then left the
Bowens’ residence, leaving only Mrs. MB, SrA BB, and
Bowen at the house.
    According to SrA BB, after they returned to the Bowens’
residence, he and Mrs. MB took more shots of alcohol while
Bowen slept on the couch. Eventually, SrA BB and Mrs. MB
retired to the guest bedroom together and locked the door.
They were engaging in sexual activity when they heard
Bowen banging on the door and asking if Mrs. MB was in
the guest room with SrA BB. Bowen broke through the
locked door, pulled the blanket off of Mrs. MB and SrA BB,
and asked why they were naked in bed together.
    SrA BB testified that Bowen became angry, slapped and
hit Mrs. MB, grabbed her by the hair and threw her out of
the guest bedroom toward the front door, causing her to
strike the wall and rendering her unresponsive. SrA BB
asserted that he tried to stop Bowen, at which point the two
of them got into a physical altercation. According to SrA BB,
Bowen continued to strike Mrs. MB even after she remained
unresponsive. SrA BB fled the house and went straight to
Security Forces. SrA BB arrived at Security Forces at
approximately 6:00 a.m. and reported that Mrs. MB was
being assaulted by Bowen.

      and 803(2); M.R.E. 403; United States v. Donaldson, 58
      M.J. 477 ([C.A.A.F.] 2003); United States v. Jones, 30
      M.J. 127 (C.M.A. 1990); United States v. Arnold, 25
      M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633
      F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001
      (1981).



                               3
             United States v. Bowen, No. 16-0229/AF
                      Opinion of the Court

    At 6:04 a.m., the Bowens’ neighbors heard a “loud boom,”
followed by Mrs. MB’s screams in “tremendous pain” from
the bathroom or the bedroom area of the Bowens’ home. The
neighbors heard screams for help, the sound of bathwater
running, and a male voice saying “why are you naked in the
front bedroom?” Soon after hearing these noises, the
neighbors called Security Forces to report the disturbance.
   Security Forces responded to the residence and were let
into the house by Bowen, who appeared disoriented.
Technical Sergeant (TSgt) VAC inspected the house and
found Mrs. MB unconscious in the bathtub of the master
bedroom. Mrs. MB’s head was leaning against the faucet
and her hair was covering her face. Her eyes were swollen
and there was a gash over one eye. TSgt VAC initially
thought Mrs. MB was dead, but realized she was still alive
when she heard her groan. TSgt VAC and Staff Sergeant
(SSgt) T lifted Mrs. MB out of the bathtub and placed her on
the bed in the master bedroom. At that point Mrs. MB was
only partially conscious. SSgt T asked Mrs. MB if her
husband “did this” to her. Mrs. MB nodded her head, which
indicated an affirmative response to the law enforcement
personnel. Mrs. MB was taken to the hospital where her
blood alcohol level was registered at “221.” As a result of the
assault, Mrs. MB suffered a subdural hematoma, a
traumatic brain injury, seventy percent visual loss, the loss
of her sense of smell, and other lesser physical injuries. A
craniotomy was required to reduce the swelling in her brain.
    Bowen was charged with three specifications of assault
against Mrs. MB, two specifications of assault against SrA
BB, and one specification of communicating a threat. Before
trial, Bowen raised an oral motion in limine to prevent the
Government from introducing Mrs. MB’s head nod under the
excited utterance exception. Over defense counsel’s
objection, the military judge permitted TSgt VAC to testify
that Mrs. MB nodded her head when SSgt T asked whether
her husband “did this” to her. The military judge did not
issue a written ruling, but from the bench explained:
          The court notes that there’s been testimony from
       the neighbors who heard screaming from a female
       in that vicinity of the house only a few moments
       before law enforcement showed up. I think [that]
       although Mrs. [MB] is in no position to testify about
       her own mental state at the time and, certainly,
       was in no physical condition to manifest outward
       expressions of excitement, I think the fact that


                                4
            United States v. Bowen, No. 16-0229/AF
                     Opinion of the Court

      there were screams heard, shouting and banging
      heard in the bathroom only a few moments before,
      combined with Ms. [MB’s] physical condition when
      law enforcement arrived, I think it’s reasonable.
         The court finds that [the head nod] does fall
      under the excited utterance exception to hearsay,
      so the court will allow Sergeant [VAC] to testify to
      the head nod in response to the question.
    After a recess, the military judge supplemented his
ruling by adding:
         The court finds that a startling or stressful
      event occurred. And, again, the court references
      regardless of when some of the assault occurred on
      Ms. [MB], as the court noted previously the next
      door neighbors heard screaming and a female voice
      yelling stop, along with yelling from a male voice
      only minutes before. The court finds that that
      would be a startling stressful event for the person
      who is conducting the screaming. The declarant,
      that is Ms. [MB], despite the fact that she doesn’t
      currently recall the incident, certainly she testified
      that she remembered being confused. And,
      certainly, from the testimony of the neighbors
      indicating that the female was screaming out in
      pain the court concludes that the declarant would
      have had personal knowledge, at least to the fact
      that she was in pain and suffering from severe
      injuries.
   At trial, the Government presented, in relevant part,
TSgt VAC’s testimony as a first responder to the incident,
the testimony of the neighbors regarding what they heard
the night of the assault, and SrA BB’s eyewitness account
under a grant of immunity. The Government also revealed a
prior instance of domestic violence between Bowen and Mrs.
MB.
    Although the Government called Mrs. MB to testify, she
only had a vague recollection of the events on the night of
the assault. Mrs. MB remembered lying on the floor by the
couch in the living room and hearing Bowen and SrA BB
fighting. Mrs. MB recalled Bowen yelling at SrA BB “what
did you do to her?” and “what happened to her?” Mrs. MB
also remembered getting up from the floor and walking
toward the front door before falling near the entryway. Mrs.
MB recalled being in the shower, feeling cold water, and
believing that Bowen was concerned and taking care of her.



                                5
            United States v. Bowen, No. 16-0229/AF
                     Opinion of the Court

However, Mrs. MB relayed that she was confused at that
time and “couldn’t explain to him.” Mrs. MB had no memory
of speaking with investigators and stated that, if she had
any conversations with Security Forces, her statements were
not reliable since she was “[a]bsolutely not” in her right
state of mind.
    At trial, Bowen theorized that SrA BB was the
perpetrator of the assault on Mrs. MB. Trial defense counsel
emphasized the inconsistencies in SrA BB’s story, that SrA
BB’s demeanor upon arrival at Security Forces did not
match the seriousness of the report he was making, and the
fact that SrA testified under a grant of immunity.
Furthermore, although the neighbors heard a male and a
female voice, trial defense counsel noted that the neighbors
had no way of knowing for sure whether the male’s voice
was Bowen’s.       Mrs. MB also testified during cross-
examination that she did not believe her husband would
harm her in this way.
                   ISSUE AND ARGUMENTS
   We specified an issue in this case to determine whether
the military judge abused his discretion by admitting TSgt
VAC’s testimony that Mrs. MB nodded her head after SSgt T
asked whether Bowen “did this” to her under the “excited
utterance” exception to the hearsay rule. 4
   Bowen argues that the military judge abused his
discretion by admitting TSgt VAC’s hearsay testimony
because Mrs. MB was not in an excited state when she made
the nonverbal statement. Bowen also emphasizes that Mrs.
MB’s statement was made in response to highly suggestive,
vague, and closed-ended questioning by law enforcement
and, therefore, was not sufficiently spontaneous to be
admitted under the M.R.E. 803(2) hearsay exception.
Finally, because the trial was closely contested and the
Government’s case relied primarily on circumstantial
evidence and a single eyewitness with a motive to lie, Bowen
urges the court to conclude this error prejudiced his
substantial rights.


   4  Our specified issue also granted review of the military
judge’s M.R.E. 403 determination that the admitted testimony
was not more prejudicial than probative. However, because we
conclude that the testimony was erroneously admitted under
M.R.E. 803(2), we do not reach the M.R.E. 403 question.



                              6
             United States v. Bowen, No. 16-0229/AF
                      Opinion of the Court

    The Government counters by asserting that the military
judge’s findings of fact are supported by the record and,
based on those factual findings, the military judge correctly
applied the law in order to conclude the challenged hearsay
was admissible as an excited utterance. The Government
argues that the neighbors’ testimony that they heard
screams coupled with the fact that the investigators found
Mrs. MB unconscious and badly beaten supports the
military judge’s conclusion that a startling or stressful event
occurred and Mrs. MB was under the stress of that event
when she nodded her head. Furthermore, according to the
Government, the evidence does not support a finding that
Mrs. MB’s statement was the product of reflection and
deliberation since Mrs. MB was largely unresponsive just
moments before she made the statement. Finally, the
Government contends that, even if the statement was
erroneously admitted, there was no prejudice to Bowen since
the Government presented a strong case against him, which
was not effectively combated by trial defense counsel.
                           DISCUSSION
    “A military judge’s decision to admit or exclude evidence
is reviewed for an abuse of discretion.” United States v.
McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). “An abuse of
discretion occurs when a military judge either erroneously
applies the law or clearly errs in making his or her findings
of fact.” United States v. Donaldson, 58 M.J. 477, 482
(C.A.A.F. 2003). “Whether an error, constitutional or
otherwise, was harmless is a question of law that we review
de novo.… For nonconstitutional errors, the Government
must demonstrate that the error did not have a substantial
influence on the findings.” McCollum, 58 M.J. at 342.
   I. Admissibility Under the Excited Utterance Exception
   “A statement 5 relating to a startling event or condition
made while the declarant was under the stress of excitement
caused by the event or condition,” is admissible as an
exception to the general prohibition on hearsay. M.R.E.
803(2) (footnote added); see Manual for Courts-Martial,
United States, Analysis of the Military Rules of Evidence

   5 A “statement” includes an “(1) oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an
assertion.” M.R.E. 801(a). The parties stipulated that the head
nod in this case constitutes a statement. See Bowen, 2015 CCA
LEXIS 453, at *10 n.3, 2015 WL 6655193, at *4 n.3.



                                 7
            United States v. Bowen, No. 16-0229/AF
                     Opinion of the Court

app. 22 at A22-55 (2012 ed.) (“Rule 803(2) is taken from the
Federal Rule [803(2)] verbatim.”). “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.” United States v. Jones, 30 M.J.
127, 129 (C.M.A. 1990); White v. Illinois, 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”). This court’s predecessor adopted a three-
pronged test to determine whether a hearsay statement
qualifies 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. Arnold, 25 M.J. 129, 132 (C.M.A. 1987) (citations
omitted) (internal quotation marks omitted). Relevant to the
third prong of this inquiry is “the physical and mental
condition of the declarant.” Donaldson, 58 M.J. at 483.
   We recognize that, under certain circumstances, a
nonverbal hearsay statement such as a head nod might
qualify as an excited utterance. See, e.g., Miller v. State, No.
12-12-00401-CR, 2013 Tex. App. LEXIS 7679, at *7, 2013
WL 3243539, at *3 (Tex. Ct. App. June 25, 2013) (mem. op.,
not designated for publication) (upholding eye blinks as
excited utterances). However, given the extent of the
declarant’s injuries in this case—including a subdural
hematoma, a traumatic brain injury, seventy percent loss of
vision, and the loss of smell—and the fact that her blood
alcohol level was nearly three times the legal limit
permitted for driving, whether Mrs. MB was mentally
capable of understanding the question posed to her when
she nodded her head is critical to deciding whether her
nonverbal statement was admissible as an excited utterance.
Thus, our review of the evidentiary ruling in this case
necessitates determining whether the military judge
adequately considered Mrs. MB’s physical and mental
condition.
   In ruling that the head nod was admissible, the military
judge referenced the “shouting and banging heard” by the
Bowens’ neighbors “combined with Ms. [MB’s] physical
condition when law enforcement arrived.” Following a short



                               8
            United States v. Bowen, No. 16-0229/AF
                     Opinion of the Court

recess, the military judge provided a more detailed
explanation for this conclusion:
         The court finds that a startling or stressful
      event occurred. And, again, the court references
      regardless of when some of the assault occurred on
      Ms. [MB], as the court noted previously the next
      door neighbors heard screaming and a female voice
      yelling stop, along with yelling from a male voice
      only minutes before. The court finds that that
      would be a startling stressful event for the person
      who is conducting the screaming. The declarant,
      that is Ms. [MB], despite the fact that she doesn’t
      currently recall the incident, certainly she testified
      that she remembered being confused. And,
      certainly, from the testimony of the neighbors
      indicating that the female was screaming out in
      pain the court concludes that the declarant would
      have had personal knowledge, at least to the fact
      that she was in pain and suffering from severe
      injuries.
         The court finds that in light of those facts the
      court can conclude that Ms. [MB] was in an excited,
      nervous, or stressful state at the time she nodded
      her head in response to the question by security
      forces.
   From these findings we are unable to conclude that the
military judge properly considered Mrs. MB’s mental
capacity as it pertained to the admissibility of the head nod.
Quite to the contrary, the military judge’s recognition that
Mrs. MB was “in no position to testify about her own mental
state [on the night in question] and, certainly, was in no
physical condition to manifest outward expressions of
excitement,” undermines the conclusion that the declarant
was under the stress of excitement caused by the event.
Furthermore, as even Mrs. MB testified, her memory of the
events on the night in question was vague and, if she had
any conversations with Security Forces personnel that night
her statements were unreliable since she was “[a]bsolutely
not” in her right state of mind.
    For these reasons, the military judge’s brief reference to
Mrs. MB’s mental capacity is insufficient to assure us that
he properly considered whether the head nod satisfied the
third prong of the Arnold test. By failing to adequately
address Mrs. MB’s mental capacity—a critical aspect of the
admissibility determination under these circumstances—the



                                9
             United States v. Bowen, No. 16-0229/AF
                      Opinion of the Court

military judge committed legal error and, thus, abused his
discretion. 6
   II. Prejudice
    “[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) (2012). We
evaluate the harmlessness of an evidentiary ruling 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.
1999).
    Applying the Kerr factors, we lack confidence that the
panel members were not influenced by the improper hearsay
testimony in this case. Id. The record demonstrates a closely
contested court-martial, the outcome of which turned on the
panel’s resolution of who caused Mrs. MB’s injuries. The
Government’s case against Bowen included the eyewitness
testimony of SrA BB and “earwitness” testimony from the
Bowens’ neighbors, which generally corroborated the
timeline established by SrA BB. The neighbors testified that
they heard a male voice saying “why are you naked in the
front bedroom?” which also supported SrA BB’s version of
events. Additionally, the Government uncovered a prior
instance of domestic violence between Bowen and his wife.
    By comparison, Bowen contended that SrA BB was
responsible for Mrs. MB’s injuries. In support of this theory,
trial defense counsel emphasized the inconsistencies in SrA
BB’s story, his strange appearance to Security Forces
investigators, and that he was testifying under a grant of
immunity. Also, despite the prior domestic disturbance, Mrs.
MB did not believe her husband would harm her in this way.
Finally, Mrs. MB testified that while she was in the bathtub,
she believed Bowen was taking care of her instead of trying
to harm her. Ultimately, the panel acquitted Bowen of four
of the six specifications charged.



   6 Due to the absence of sufficient facts pertaining to Mrs. MB’s
mental state at the time in question, we are unable to render a
legal determination as to Mrs. MB’s competence. We therefore
reverse without making that determination.



                                10
            United States v. Bowen, No. 16-0229/AF
                     Opinion of the Court

   The hearsay evidence was also likely material to the
panel’s resolution of key issues in the case. In particular, the
identity of the perpetrator was a central issue at the court-
martial. Thus, the introduction of TSgt VAC’s testimony
that Mrs. MB responded to the question of whether her
husband “did this” to her with a head nod in affirmation—
opposed to her simply groaning and making sounds—was
presumably a compelling piece of evidence in the minds of
the panel members. Moreover, trial counsel emphasized this
evidence during closing statements by telling the members,
“[TSgt VAC] approached [Mrs. MB], … [a]nd she asked the
question, did your husband do this to you? [Mrs. MB] nodded
her head affirmatively and she groaned. There were two
eyewitnesses.”
    Upon this foundation, we lack confidence that Mrs. MB’s
head nod identifying Bowen as her attacker did not
materially prejudice the panel’s conclusion that Bowen was
guilty of assault against Mrs. MB. Moreover, we conclude
that the evidence had a prejudicial impact on Bowen’s
conviction for assault against SrA BB. SrA BB—the
Government’s key witness—had apparent motives to lie
about the events during the hours in question. Coupled with
trial defense counsel’s credibility attacks against this
witness, without Mrs. MB’s head nod tending to support SrA
BB’s version of events, it is unclear if the members would
have deemed SrA BB credible enough to convict Bowen of
the assault against his fellow airman.
   Consequently, we conclude that the erroneous admission
of Mrs. MB’s head nod identifying Bowen as her attacker
materially prejudiced Bowen’s substantial rights in this
case.
                           DECISION
    The specified issue is answered in the affirmative. The
decision of the United States Air Force Court of Criminal
Appeals is reversed. The findings of guilty to Charge I,
Specifications 3 and 4, and the sentence are set aside. The
record of trial is returned to the Judge Advocate General of
the Air Force with authorization for a rehearing on Charge
I, Specifications 3 and 4.




                              11
