                        UNITED STATES, Appellee

                                     v.

      William J. FELTHAM, Operations Specialist Senior Chief
                       U.S. Navy, Appellant


                               No. 02-0879


                         Crim. App. No. 9900966



       United States Court of Appeals for the Armed Forces

                          Argued April 9, 2003

                         Decided July 15, 2003

    GIERKE, J., delivered the opinion of the Court, in which
    CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.

                                  Counsel
For Appellant:    Lieutenant Marcus N. Fulton, JAGC, USN (argued).

For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR
(argued);Colonel R. M. Favors, USMC (on brief); Lieutenant
Adrienne N. Gagliardo, JAGC, USNR.

Military Judge:    Clark A. Price


  This opinion is subject to editorial correction before final publication.
United States v. Feltham, No. 02-0879/NA


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a general court-martial

convicted Appellant, contrary to his pleas, of forcible sodomy,

in violation of Article 125, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 925 (2000).       The adjudged and

approved sentence provides for a bad conduct discharge, reduction

to the lowest enlisted grade, and confinement for four years.

The Court of Criminal Appeals affirmed the findings and sentence

in an unpublished opinion.       United States v. Feltham, NMCM No.
9900966 (N-M. Ct. Crim. App. June 14, 2002).

      This Court granted review of the following issue:

       WHETHER THE LOWER COURT ERRED IN RULING THAT THE
       MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN
       ADMITTING THE VICTIM’S INCULPATORY STATEMENTS TO HIS
       ROOMMATE UNDER THE EXCITED UTTERANCE EXCEPTION TO THE
       RULE AGAINST HEARSAY.

      For the reasons set out below, we affirm the decision of the

Court of Criminal Appeals.

                            Factual Background

      Appellant was convicted of committing forcible sodomy on

Boatswain Mate Third Class Petty Officer (BM3) PW.       BM3 PW was 24
years old, attached to the USS NIMITZ for approximately three to

four years, and assigned to the Security/Legal Department.

Appellant, a shipmate of BM3 PW’s, was a 35 year-old Operations

Specialist Senior Chief Petty Officer with 17 years of naval

service.

      On May 5, 1998, the NIMITZ was berthed in Norfolk, Virginia,

awaiting overhaul.      After a full day’s work, BM3 PW, Appellant,

and several shipmates agreed to go ashore that evening to a local




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bar to celebrate their completion of the preparation for

overhaul.

      BM3 PW drove alone in his truck to the bar, arrived there at

approximately 7:00 or 7:30 p.m., played pool, and drank “no more

than five beers probably.”       He then left the bar and went back to

his barracks to get more money, returned after 9:00 p.m. and

drank more beer.     During the course of the evening, BM3 PW played

darts, sang karaoke, and engaged in conversation with Appellant

and other shipmates.

      At some point in the evening, because he was too intoxicated

to drive, apprehensive about leaving his truck in an unfamiliar

area, and concerned about getting to work the following day, BM3

PW gave his truck keys to a civilian whom he had met at the bar.

The civilian lived next door to the bar and told him he could

stay at his house and sleep on the couch.

      As the bar was closing on the morning of May 6, the civilian

approached BM3 PW and informed him that Appellant had his truck

keys and that he could stay at Appellant’s apartment instead.

BM3 PW testified that “by this time, I just said all right, fine.

You know, I agreed with him ’cause I wasn’t leaving my truck

there, you know, what I’m saying.           At least, my truck was going

with me.    So, I agreed with him.         I’m like, okay, fine.”

      When the two arrived at Appellant’s local apartment,

Appellant offered to share his bed with BM3 PW.          Appellant told

BM3 PW he could sleep on one side of his bed and Appellant could

sleep on the other side.       BM3 PW laughed, declined his offer, and

stated he would instead sleep on the couch.           Appellant gave BM3

PW a blanket and pillow and escorted him to the living room.


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Appellant returned to his bedroom.         BM3 PW undressed down to his

socks, tee-shirt, and briefs.

      Shortly after BM3 PW reclined on the couch in the living

room, Appellant came out of his bedroom wearing a bathrobe.

Appellant and BM3 PW went out on the balcony and each smoked a

cigarette.    While on the balcony, they engaged in conversation

but did not talk about anything sexual.

      After smoking the cigarette, BM3 PW again reclined on the

couch under the blanket and fell asleep.        At the time BM3 PW went

to sleep, he had been awake since approximately 4:00 a.m. in the

morning on May 5.     He had worked a full day aboard the ship, and

after work he had consumed approximately 12-15 beers over a

period of six to seven hours at the bar.

      BM3 PW testified as follows regarding the events at

Appellant’s apartment that resulted in the charge against

Appellant of forcible sodomy:

       Q.    What is the next thing you remember after laying
             down on the couch and going to sleep?
       A.    The next thing I remember, after I fell asleep,
             I remember having a dream -- sexual content. I
             don’t remember the dream specifics, but I
             remember having a sexual dream, yes.

       Q.    When you went to sleep, were you under the
             blanket?
       A.    Yes, Sir.

       Q.    And you said you had a sexual dream, but you
             don’t remember the content of it?
       A.    No, Sir.

       Q.   So, how do you know it was sexual?
       A.   ‘Cause I was having sexual pleasures in my dream.
            I mean, I know it was sexual like a wet dream.
            Like if you was having a wet dream, it was the
            same kind of -- same thing. Wet dream, that’s
            what I was having.




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       Q.   So, what is the next thing you remember after
            the dream?
       A.   The next thing I remember, I remember ejaculating
            and waking up at the same time, and I woke up as
            I was ejaculating actually into Senior Chief
            Feltham’s mouth.

       Q.   So, when you woke up, you were ejaculating?
       A.   Yes, Sir.

       Q.   Where was Senior Chief Feltham at that time?
       A.   He was on his knees next to the couch.

       Q.   And how were you positioned on the couch?
       A.   I was like kind of laying on my back and side
            like kind of on my back I would say.

       Q.   Was the blanket still on you?
       A.   I don’t remember the position of the blanket,
            but, no, the blanket was not covering me, no.

       Q.   And where were your undershorts at the time?
       A.   Around my thighs.

       Q.   Now, while this -- do you remember having your
            pants pulled down?
       A.   No, Sir.

       Q.   Do you remember Senior Chief placing his mouth on
            your penis?
       A.   No, Sir.

       Q.   At any point prior to ejaculation, were you
            awake and aware of what was happening?
       A.   No, Sir.

       Q.   What was your reaction when you woke up and found
            Senior Chief Feltham’s mouth on your penis?
       A.   Well, I pulled back and, when he realized that I
            was awake and pulled back, he jumped back and
            kind of scooted backwards and sat down on his
            chair.

      BM3 PW then asked Appellant “what’s going on here” and said

“that wasn’t cool.”      Appellant agreed that “it was messed up,”

but asked him if he liked it.        BM3 PW testified, “I was scared.

Confused because I didn’t really know what that –- you know, what

to think.    I wasn’t thinking too clearly about, you know, I was

trying to make sense of it all basically.”       In response to being



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United States v. Feltham, No. 02-0879/NA


asked by trial counsel if he was “shocked by waking up with

[Appellant’s] mouth on [his] penis,” BM3 PW stated, “Yes, Sir.”

      Appellant then left the living room and returned to his

bedroom.    BM3 PW decided to wait for Appellant to fall asleep.

BM3 PW testified:

      I didn’t know what to do, and I was still in shock, of
      course, and so at that point I guess I decided to wait until
      he fell asleep. Don’t ask me why, but I felt like maybe I
      had better chances of getting out of there without physical
      harm done. So I decided to wait until he went to sleep.”

Nonetheless, BM3 PW left within five minutes.

      After leaving Appellant’s apartment, BM3 PW climbed into his

truck, became upset, and began to cry.         At trial, BM3 PW

testified that he became upset at this point because he “was out

of the situation.”      He then drove between 10-15 minutes back to

his barracks.     BM3 PW arrived and went directly to his room.        He

testified that he was still shocked, scared, crying and upset.

BM3 PW woke up his roommate, BM3 Felton.         BM3 Felton was the

first person that he had the opportunity to speak with after the

incident at Appellant’s apartment.         BM3 PW told BM3 Felton

everything that had happened, beginning with the party at the bar

and ending with the sodomy.

      BM3 PW next went to a nearby convenience store.        When he

returned, he called his mother and informed her of the incident.

BM3 PW then reported the incident to Wackenhut Security, a

private security company working in his barracks, which referred

him to Petty Officer (PO) Battles, who was on watch.         PO Battles

referred BM3 PW to Master at Arms Third Class Petty Officer (MA3)

Allen.   MA3 Allen obtained a written statement concerning the

incident.    BM3 PW then spoke with Special Agent (SA) Suchy of the


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United States v. Feltham, No. 02-0879/NA


Naval Criminal Investigative Service.           BM3 PW did not testify as

to what he specifically told his mother, Wackenhut Security, PO

Battles, MA3 Allen, or SA Suchy.           His testimony concerning his

discussions with these individuals was offered for the limited

purpose of showing to whom he reported the incident.

      BM3 PW’s reporting of this incident resulted in Appellant

being charged with several offenses, but the trial on the merits

eventually proceeded on the single offense of forcible sodomy.

At trial, the defense unsuccessfully moved to suppress

Appellant’s oral and written confession of consensual sodomy.

After the judge denied the defense motion, the prosecution, for

reasons not reflected in the record of trial, never offered

Appellant’s confession into evidence.           This trial development

resulted in the testimony of BM3 PW being the linchpin of the

prosecution’s case.

      At trial, the defense presented no opening statement, no

defense witnesses, and no defense evidence on the merits.

Instead, the defense attacked the credibility of BM3 PW and in

closing argument asserted multiple defenses including that no

sodomy occurred or that it was consensual.            To bolster the

credibility of BM3 PW, the prosecution submitted a motion in

limine to admit BM3 PW’s statements to BM3 Felton as an excited

utterance or alternatively under the residual hearsay exception.

The military judge deferred ruling on the admissibility of the

evidence until after hearing the testimony.           BM3 Felton’s

testimony essentially corroborated the facts described by BM3 PW.

BM3 Felton also stated that he had lived with BM3 PW for

approximately one and a half months.           He testified that BM3 PW


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United States v. Feltham, No. 02-0879/NA


was crying and that he did not stop crying until “about half way”

through their twenty minute conversation.

      After considering the circumstances surrounding BM3 PW’s

statements to BM3 Felton, as set out above, the military judge

made the following findings of fact pertinent to the resolution

of the issue presented:

       Early on the morning of 6 May, BM3 [PW] was a
       participant in a startling event at the apartment of
       the accused.

       Immediately after the incident he was in a state of
       shock and was not thinking clearly.

       Shortly thereafter, he left the apartment and drove
       to his barracks room at Huntington Hall where he
       resided.

       During the short drive to his barracks, he began
       crying.

       Upon entering his room, he woke up his roommate, BM3
       Felton, and told him he had something to tell [BM3]
       Felton.

       BM3 [PW] was still crying at this point.

       He then told Felton he would not tell him about this
       matter unless Felton promised not to share it with
       anyone else, or words to that effect.

       No more than one hour passed from the time of the
       startling event until the conversation with . . . BM3
       Felton.

       . . . .

       BM3 [PW] then related to BM3 Felton what happened to
       him that night.

       This was a highly unusual conversation for these two
       roommates who had known each other for some time.

       BM3 Felton had never seen BM3 [PW] this way before.

The court, based on these factual findings, ruled as follows:

       The proffered statements to BM3 Felton were
       spontaneous, unrehearsed and not given in response to
       any interrogation. The statements were given in


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United States v. Feltham, No. 02-0879/NA


       close proximity of time to a startling event which
       caused great stress and excitement in BM3 [PW]. The
       statements were made under that same stress. The
       statements are, therefore, reliable under the excited
       utterance exception to the general hearsay rule.

The military judge chose not to address the residual hearsay

exception since he admitted the testimony under the excited

utterance exception to the hearsay rule.

      The Court of Criminal Appeals addressed the legal and

factual sufficiency of the evidence and the excited utterance

issue raised by Appellant.       The Court found that the military

judge did not abuse his discretion in admitting the statements by

BM3 PW to BM3 Felton.      In doing so, the Court stated, “Given the

victim’s countenance, the timing of his unsolicited disclosure,

and the subject matter of the disclosure, we have no doubt that

the victim’s statement to his roommate met the requirements for

an excited utterance.”      Feltham, NMCM No. 9900966, slip op. at 4.
      Before this Court, Appellant again asserts that the military

judge erred in admitting BM3 PW’s statements to BM3 Felton under

the excited utterance exception to the hearsay rule, because the

conversation with BM3 Felton was the product of a period of
reflection following the stress related to the incident.       The

Government argues that the judge did not abuse his discretion by

admitting the evidence because the testimony at trial established

that BM3 PW made his statements to BM3 Felton while under the

stress of a startling event which occurred at Appellant’s

apartment.




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United States v. Feltham, No. 02-0879/NA


                                 Discussion

       Military Rule of Evidence 802 [hereinafter M.R.E.] states

the general prohibition against admission of hearsay.      M.R.E.

801(c) defines hearsay as:

        [A] statement, other than one made by the declarant
        while testifying at the trial or hearing, offered in
        evidence to prove the truth of the matter asserted.

       M.R.E. 803(2), the excited utterance exception to the rule

prohibiting hearsay, permits admission of:

        A statement relating to a startling event or
        condition made while the declarant was under the
        stress of excitement cause[d] by the event or
        condition.


       The Supreme Court recently reaffirmed the reliability of the

longstanding and well recognized excited utterance exception to

hearsay in Lilly v. Virginia, 527 U.S. 116 (1999), stating that,
       In White, . . . we held that the hearsay exception for
       spontaneous declarations is firmly rooted because it
       "is at least two centuries old," currently "widely
       accepted among the States," and carries "substantial
       guarantees of . . . trustworthiness . . . [that]
       cannot be recaptured even by later in-court
       testimony." 502 U.S. at 355-356, and n. 8.

Id. at 126 (quoting White v. Illinois), 502 U.S. 346, 355-56 &
n.8.

       This Court, in United States v. Arnold, 25 M.J. 129 (C.M.A.

1987), 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.


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United States v. Feltham, No. 02-0879/NA


  Id. at 132.     See United States v. Donaldson, ___ M.J.___

  (C.A.A.F. 2003).

      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. Lemere, 22 M.J. 61, 68

(C.M.A. 1986).     This Court has recognized that the implicit

logical premise for admission of an excited utterance 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).
      At Appellant’s court-martial, the military judge applied the

three-prong test in Arnold and concluded that the facts supported

admitting the statements under the excited utterance exception to

the rule against hearsay.       The standard of review of a military

judge’s ruling admitting or excluding an excited utterance is an

abuse of discretion.      See United States v. Moolick, 53 M.J. 174
(C.A.A.F. 2000).     This Court “will reverse for an abuse of
discretion if the military judge’s findings of fact are clearly

erroneous or if his decision is influenced by an erroneous view

of the law.”    United States v. Sullivan, 42 M.J. 360, 363

(C.A.A.F. 1995).     When reviewing a decision of a Court of

Criminal Appeals on a military judge’s discretionary ruling, “we

typically have pierced through that intermediate level” and

examined the military judge’s ruling.      See United States v.

Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996).      We then decide whether




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United States v. Feltham, No. 02-0879/NA


the Court of Criminal Appeals was correct in its examination of

the military judge’s ruling.

      In applying the first prong of the test, which requires the

statements to be spontaneous, excited, or impulsive rather than

the product of reflection, the military judge found that BM3 PW’s

statements to BM3 Felton were “spontaneous, unrehearsed, and not

given in response to any interrogation.”      The statements were

made under the stress of the excitement stemming from the

forcible sodomy while BM3 PW “was in a state of shock and was not

thinking clearly.”      There was “no intervening reflection or

dispassionate deliberation” by BM3 PW.

      As to the second prong of the test, the military judge found

that the statement was the product of a startling event.

Specifically, the judge said that “[e]arly on the morning of 6

May, BM3 [PW] was a participant in a startling event at the

apartment of the accused.”

      The third prong of the test, which requires the declarant to

be under the stress of excitement caused by the event, was also

satisfied.    The military judge found that BM3 PW was in a state

of shock and not thinking clearly immediately after the event and

that he began crying while driving back to his barracks.      The

judge specifically stated that BM3 PW was still under the stress

and excitement of the event when he described the event to BM3

Felton.    He found “that no more than one hour passed from the

time of the startling event until the conversation with . . . BM3

Felton.”    He also stated that “[t]he statements were given in

close proximity of time to a startling event which caused great

stress and excitement in BM3 [PW].”


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United States v. Feltham, No. 02-0879/NA


      This Court has stated that the time between the startling

event and the excited utterance is one factor to consider when

determining whether a statement qualifies as an excited

utterance.    See Donaldson, ___ M.J. at ___ (statement made 11-12

hours after sexual abuse admissible as excited utterance); United

States v. Chandler, 39 M.J. 119 (C.M.A. 1993)(victim’s statement

made 30 minutes after startling event was admissible as an

excited utterance because victim was still in a state of nervous

excitement as a result of the event); Arnold, 25 M.J. at 132
(victim’s “unsolicited” statements, given 12 hours after being

sexually assaulted, were made at the first available opportunity

while the victim’s demeanor was substantially different than

normal and constituted an excited utterance).

      However, this Court has also stated that “a lapse of time

between the event and the utterance creates a strong presumption

against admissibility.”       Jones, 30 M.J. at   128.   In Jones, the

Court held that a statement was not an excited utterance when

made 12 hours after the startling event, after the declarant went

about daily business, after missing an earlier opportunity to
comment about the event, and when made in response to a question.

Appellant’s reliance on Jones is misplaced.        The military judge’s

ruling in the present case is consistent with the authority of

Jones because here there was less than one hour lapse of time

between the startling event and the utterance as opposed to 12

hours in Jones; BM3 PW made his statements at the first

opportunity, when he awoke BM3 Felton, rather than waiting until

morning; and the statements to BM3 Felton were not in response to

questioning by BM3 Felton.


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United States v. Feltham, No. 02-0879/NA


      Moreover, the lapse of any particular period of time, is not

the focus of the excited utterance rule.     The critical

determination is whether the declarant was under the stress or

excitement caused by the startling event.     See Lemere, 22 M.J. at

68.   In the present case, the military judge made a finding that

the declarant, BM3 PW, was under the stress of the excitement

caused by the forcible sodomy performed on him by Appellant.

This satisfies the third prong of the test.

      We hold that the findings of fact of the military judge are

supported by the evidence and that he did not abuse his

discretion in admitting BM3 PW’s statements to BM3 Felton as an

excited utterance.      The military judge applied the proper legal

test to evaluate these statements and, after hearing and

evaluating the evidence, determined that the facts satisfied the

test.   We hold that the Court of Criminal Appeals did not err in

affirming the decision of the military judge admitting this

evidence.

                                  Decision
      The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.




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