             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                             Airman First Class ELLWOOD T. BOWEN
                                      United States Air Force

                                                  ACM 38616

                                               26 October 2015

            Sentence adjudged 8 March 2014 by GCM convened at Edwards Air Force
            Base, California. Military Judge: Lyndell M. Powell.

            Approved Sentence: Confinement for 1 year and reduction to E-1.

            Appellate Counsel for the Appellant: Captain Johnathan D. Legg.

            Appellate Counsel for the United States: Major Meredith L. Steer; Major
            Thomas J. Alford; and Gerald R. Bruce, Esquire.

                                                      Before

                                SANTORO, BROWN, and ZIMMERMAN
                                     Appellate Military Judges

                                        OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



SANTORO, Judge:

       A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of aggravated assault upon his wife and one
specification of assault consummated by a battery upon a fellow Airman, in violation of
Article 128, UCMJ, 10 U.S.C. § 928.1 The adjudged and approved sentence consisted of
confinement for 1 year and reduction to E-1. Before us, Appellant asserts that (1) the

1
 Appellant was found not guilty of two specifications alleging assault with a dangerous weapon (a knife) against his
wife and the same fellow Airman, one specification alleging assault consummated by a battery upon his wife, and
one specification of communicating a threat, in violation of Articles 128 and 134, UCMJ, 10 U.S.C. §§ 928, 934.

                                                                                                                  1
military judge erred by admitting testimony that Appellant’s wife nodded her head when
asked whether Appellant had “done this” to her, and (2) the evidence is factually
insufficient to sustain the findings of guilt. We disagree and affirm.

                                       Background

       Appellant, his wife (MB), and Senior Airman (SrA) BB were friends and had
socialized as a group on four to five occasions. On the night that gave rise to the charges
in this court-martial, the three met at Appellant’s home and drove together to an
“anything but clothes” party. SrA BB wore a green bed sheet draped over his body like a
toga while MB wore a bra top with playing cards attached.

       All three drank and played drinking games at the party. During the evening
Appellant became sick and vomited. When the trio was ready to leave the party, two
other guests had to help SrA BB carry Appellant out and bring him back to his residence.
Appellant, MB, and SrA BB remained overnight at Appellant’s home.

       What happened in the hours after the three returned to Appellant’s home was the
focus of the trial.

       Around 0600, SrA BB walked into the Security Forces office and reported that
there was a woman being assaulted in an ongoing “domestic” involving a knife. The
Security Forces member to whom SrA BB spoke found his demeanor unusual, believing
that his behavior did not match the serious nature of the report he was making. SrA BB
did not appear to be intoxicated, had some scratches on his face, and his hands appeared
to have been recently washed.

       SrA BB told Security Forces that he and MB had been “taking shots” and then
they went to sleep in the guest bedroom. He reported that he was awakened by Appellant
beating MB in that same guest bedroom. SrA BB told investigators that nothing had
happened between him and MB and that he did not know why Appellant was assaulting
his wife.

       As SrA BB was giving his initial statement to law enforcement, other Security
Forces members responded to the house. They knocked on the door, and Appellant
answered. He appeared disoriented and was wearing a pair of sweatpants and socks but
no shirt. There was what appeared to be water and blood in the entryway. Technical
Sergeant (TSgt) VC, the Security Forces flight chief, inspected the remainder of the
house. In the master bedroom she found blood on the sheets.

       MB was unconscious in the tub in the master bathroom. Her 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. Although TSgt VC initially thought MB was dead, she realized

                                                                                         2
she was alive when MB groaned. TSgt VC and another Security Forces member lifted
MB out of the bathtub and placed her on the bed. MB’s eyes remained closed and she
was only partially conscious. One of the other Security Forces responders asked MB
whether her husband “did this to her.” MB shook her head up and down, which TSgt VC
interpreted as an affirmative response. TSgt VC instructed her personnel to apprehend
Appellant.

        Law enforcement processed the scene, making observations and collecting
evidence. In the guest bedroom they found a pair of women’s black pants on the floor
with panties inside them, along with a black bra with playing cards attached. TSgt VC
testified that the appearance of the pants and panties suggested that they had been
removed at the same time. There was a feminine napkin inside the panties. There was a
colored sheet and what appeared to be men’s black socks on the floor.

        Additional physical evidence included red marks (apparent blood) on the couch in
the living room and a knife beside the television. In the kitchen, which was generally in
disarray, were another knife, scissors, a blue woman’s nightie, and a bottle of alcohol
with two glasses. There was also vomit on the side of a car in front of the residence.

        When TSgt VC called the Security Forces office and learned that SrA BB had
arrived without socks, she directed that he also be apprehended. Following a rights
advisement, SrA BB told investigators that when they returned from the party, he assisted
Appellant to the couch, put a blanket over him, and began taking shots with MB. When
they had finished drinking, SrA BB went to the guest room to sleep. He was awakened
by loud moans and yells and Appellant beating his wife in that same guest bedroom.
SrA BB denied having had any sexual contact with MB—a subject investigators had not
yet raised.

       Later that day, Air Force Office of Special Investigations (AFOSI) investigators
informed SrA BB that he was suspected of having sexually assaulted MB. SrA BB then
changed his initial statements about what had occurred. He told investigators that MB
came onto him, kissed him and fondled him in the kitchen when they were drinking, and
then led him to the guest bedroom and locked the door. He said that MB took her clothes
off and pulled him onto her.

       SrA BB testified under a grant of immunity. His trial testimony was generally
consistent with his second statement to investigators in which he admitted engaging in
sexual contact with MB. SrA BB characterized Appellant as “wasted” and so intoxicated
that he urinated and possibly vomited in a bush. They returned home from the party
between 2400 and 0200. In the guest bedroom, when he was digitally penetrating MB,
SrA BB heard Appellant bang on the door, demanding that they open it and asking why
his wife was in the bedroom with SrA BB. Upon hearing Appellant, both MB and
SrA BB separated and pulled the sheets up to cover themselves.

                                                                                       3
      Appellant “busted through the door,” pulled the blanket off MB, and saw that she
was naked. When Appellant pulled the entire blanket off, he saw that SrA BB was also
naked and asked his wife why she was in bed with SrA BB.

       According to SrA BB, Appellant became angry and threw MB out of the guest
bedroom toward the front door. She struck a table. SrA BB tried to get Appellant to stop
and denied that he had done anything with his wife. Appellant then struck SrA BB
several times in the living room; SrA BB struck back and a scuffle ensued. The fight
moved into the kitchen. Appellant alternated between fighting with SrA BB and telling
MB to wake up (at one point throwing water on her face); she remained unresponsive.

        Appellant then grabbed a knife, slapped SrA BB with the flat side, and threatened
to kill him. He also slapped MB with the knife, eliciting a painful yell. Appellant “dug
the knife up against” SrA BB and threatened to kill him. SrA BB then put on his clothes
and ran out of the house yelling for help and drove straight to Security Forces.

        SrA BB conceded that MB had never shown any sexual or romantic interest in him
before that night or flirted with him at the party. He also never mentioned the presence of
a feminine napkin in MB’s panties or the possibility that she was menstruating when he
digitally penetrated her.

       Appellant’s neighbors testified that they heard a “loud boom” around 0600 and
then heard MB scream in “tremendous pain” from the bathroom/bedroom area of
Appellant’s house. The neighbors further testified they heard screams for help, the sound
of bath water running, and a male whom they believed was Appellant saying, “[W]hy are
you naked in the front bedroom?”

       MB also testified at trial, although she professed no memory of the assault itself.
She said that when the three of them returned to her home after the party, she went into
the kitchen and “took a shot.” Her next memory is of Appellant and SrA BB fighting.
She remembered Appellant saying, “what . . . did you do to her?” She got up, started to
walk, felt dizzy, and fell. She next remembered being in the shower and feeling cold.
She testified that she thought her husband was doing for her as he normally did when she
became intoxicated: giving her a bath and putting her to bed.

        As a result of the assault, MB suffered a subdural hematoma and a traumatic brain
injury, 70 percent visual loss, the loss of smell, and other lesser physical injuries. As part
of her medical treatment, a craniotomy was performed to reduce swelling on her brain.

       Additional facts necessary to resolve the assignments of error are included below.



                                                                                            4
                                 Admission of Evidence

       Arriving law enforcement found MB in the bathtub with obvious injuries. As they
removed her from the tub, one of the first responders asked whether her husband “did
this” to her. MB groaned and shook her head up and down, indicating “yes.” Over
defense objection, the military judge admitted this evidence as an excited utterance
pursuant to Mil. R. Evid. 803(2).

       We review a military judge’s admission of evidence for an abuse of discretion.
United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). “The abuse of discretion
standard is a strict one, calling for more than a mere difference of opinion.” United
States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000). “[O]n a mixed question of law
and fact . . . a military judge abuses his discretion if his findings of fact are clearly
erroneous or his conclusions of law are incorrect.” United States v. Ayala, 43 M.J. 296,
298 (C.A.A.F. 1995). At trial, the proponent has the burden of establishing an adequate
evidentiary foundation. United States v. Maxwell, 38 M.J. 148, 150 (C.M.A. 1993). This
burden can be met with direct or circumstantial evidence. Id. at 150–51.

       Both at trial and on appeal, Appellant argues that admission of this evidence
violated his Sixth Amendment2 right to confront the witnesses against him. MB testified
that she had no recollection of having nodded her head and that based on her mental state
at the time, she did not believe she could have made a reliable statement. Therefore,
Appellant argues, he could not meaningfully cross-examine her on a statement that she
did not recall making.

        In United States v. Rhodes, 61 M.J. 445 (C.A.A.F. 2005), a witness made a pretrial
statement implicating both himself and Rhodes in drug offenses. Id. at 446–47. At trial,
however, the witness testified that he had no recollection of making that statement. Id. at
447. The government instead introduced the witness’s pretrial statement through a law
enforcement officer as a statement against interest pursuant to Mil. R. Evid. 804(b)(3).
Id. Our superior court held that the Sixth Amendment’s Confrontation Clause was not
violated because the witness took the stand and was subject to cross-examination on
matters such as bias and ability to observe and recall accurately, despite his purported
inability to recollect having made the statement. Id. at 449 (citing United States v.
Owens, 484 U.S. 554 (1988)).

       We see no meaningful distinction between Rhodes and the facts of this case. We
therefore conclude that the admission of testimony concerning MB’s head-nod did not
violate Appellant’s Sixth Amendment right to confront the witnesses against him.



2
    U.S. CONST. amend. VI.

                                                                                         5
       We next consider whether the evidence was properly admitted as an excited
utterance. The parties do not dispute that the head-nod qualifies as a hearsay statement.3
Appellant contends, however, that the Government failed to establish the necessary
evidentiary foundation to qualify as an excited utterance.

        Military Rule of Evidence 803(2) allows admission of a “statement relating to a
startling event or condition, made while the declarant was under the stress of excitement
that it caused.” Excited utterances have long been admissible as an exception to the rule
against hearsay on the assumption “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, 25 M.J. 129
(C.M.A. 1987), our superior court established a three-prong test for the admissibility of
excited utterances:

         “(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.”

Feltham, 58 M.J. at 474 (citing United States v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987);
United States v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003)).

         In allowing the evidence, the military judge stated:

                  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 although Ms. [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 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.

                  ....


3
 “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an
assertion. Mil. R. Evid. 801(a). “Hearsay” is a statement that the declarant does not make while testifying at the
current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement. Mil.
R. Evid. 801(c).

                                                                                                                       6
              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 military judge’s findings of fact were amply supported by the record and are not
clearly erroneous. The military judge also conducted the balancing test required by
Mil. R. Evid. 403 and placed his analysis on the record.

       Appellant argues that the “head-nod” was not sufficiently contemporaneous with
the assault, that the law enforcement officer’s question was vague, and that Ms. MB’s
injuries might have made her head-nod less reliable. Based upon his factual findings, it
was not an abuse of discretion for the military judge to conclude that MB’s head-nod
qualified as an excited utterance.

                                    Factual Sufficiency

       Appellant next argues that SrA BB’s testimony was not credible, and, as a result,
the evidence is factually insufficient to sustain the convictions. We review issues of legal
and factual sufficiency de novo. See United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). “The test for legal sufficiency of the evidence is ‘whether, considering
the evidence in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.’” United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J.
324, 324–25 (C.M.A. 1987)). Proof beyond a reasonable doubt does not mean that the
evidence must be free of conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.
1986).

       The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the witnesses,
[we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner,
25 M.J. at 325. In conducting this unique appellate role, we take “a fresh, impartial look
at the evidence,” applying “neither a presumption of innocence nor a presumption of

                                                                                          7
guilt” to “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.

       Appellant both attacks SrA BB’s credibility and offers an alternate theory
regarding the source of MB’s injuries. We acknowledge that SrA BB had a motive to
conceal the true nature of his interaction with MB, that he was not completely truthful in
his initial statement to law enforcement, and that his estimates of time appear to be
inconsistent with other evidence. Appellant’s proffered alternate theory—that Appellant
caught SrA BB sexually assaulting his wife and that all her injuries resulted from that
sexual assault—has even less evidentiary support. Viewing the record as a whole, we
conclude that SrA BB’s testimony was generally credible and supported by other
testimony and physical evidence and that the weight of the evidence establishes that
Appellant was the cause of both MB’s and SrA BB’s injuries.

       We have considered the evidence in the light most favorable to the prosecution.
We have also made allowances for not having personally observed the witnesses. Having
paid particular attention to the matters raised by Appellant, we find the evidence legally
sufficient to support the conviction. Moreover, we are ourselves convinced of his guilt
beyond a reasonable doubt.

                                                   Conclusion

       The approved findings and sentence are correct in law and fact, and no error
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are
AFFIRMED.4


                  FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




4
  We direct promulgation of a corrected court-martial order to address the following errors: (1) the order incorrectly
states that appellate review would be conducted pursuant to Article 69(a), UCMJ, 10 U.S.C. § 869(a); (2)
Specifications 3 and 4 of Charge I fail to reflect not guilty findings with respect to language excepted by the
members; and (3) the order added the title “Ms.” in Specification 5 of Charge I, which did not appear on the charge
sheet.

                                                                                                                    8
