United States v. Henry ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Dashaun K. HENRY, Sergeant First Class
United States Army, Appellee
No. 20-0342
Crim. App. No. 20190688
Argued October 28, 2020—Decided April 9, 2021
Military Judge: S. Charles Neill
For Appellant: Major Jonathan S. Reiner (argued); Colonel
Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
and Captain Allison L. Rowley (on brief).
For Appellee Captain Catherine E. Godfrey (argued). Colo-
nel Michael C. Friess, Lieutenant Colonel Angela D. Swilley,
and Major Jodie L. Grimm (on brief).
Amici Curiae for Appellant: Lynn Hecht Schafran, Esq.,
William D. Dalsen, Esq., and James R. Anderson, Esq.
(on brief) (on behalf of Legal Momentum and Sanctuary
for Families).
Chief Judge STUCKY delivered the opinion of the Court,
in which Judge SPARKS and Senior Judge EFFRON
joined. Judge OHLSON and Judge MAGGS filed sepa-
rate dissenting opinions.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
A military judge granted the accused’s motion to suppress
four statements as hearsay, rejecting the Government’s con-
tention that they were excited utterances, or, in the alterna-
tive, present sense impressions. The Government appealed
the military judge’s ruling to the United States Army Court
of Criminal Appeals (CCA) under Article 62, 10 U.S.C. § 862(2018). The CCA concluded that the military judge did not
abuse his discretion and affirmed the trial court’s judgment.
The Army Judge Advocate General then certified the issue to
United States v. Henry, No. 20-0342/AR
Opinion of the Court
this Court.1 We hold that the military judge abused his dis-
cretion in refusing to admit the four statements under the ex-
cited utterance exception to the rule against hearsay.
I. Background
Early, one cold, late December morning, Staff Sergeant
(SSG) DC was awoken by a pounding at his door. A quick look
revealed that it was JH, the ten-year-old son of SSG DC’s
neighbor, the accused. Despite the cold, JH was clothed only
in his pajamas. JH looked frightened and his exclamations
suggested why: “He’s beating my mom. He’s beating my
mom.” SSG DC invited JH inside, and went upstairs to
change his clothes. As he came back downstairs, SSG DC saw
JH run back towards his home, shouting, “[y]ou better not hit
her again.” Sometime later, the backdoor of the accused’s
home was “fl[u]ng open” and KH and her children, including
JH, ran towards SSG DC’s front porch, with the accused in
pursuit. As she fled the accused, KH, “crying and upset,” said,
“He hit me. He hit me.”
Once KH and her children were inside SSG DC’s home,
the accused returned to his own home. KH “cowered over by
the coat closet” while her children sat on DC’s couch. KH in-
dicated she wanted SSG DC to call the MPs, and she told the
911 operator that her husband had “been beating me for the
last couple of hours.” When the MPs arrived soon after, they
observed red marks on one of KH’s cheeks and a scratch on
her neck.
At trial, the Government sought to introduce the following
four statements for the truth of the matter asserted, under
the excited utterance or present sense impressions exceptions
to the rule against hearsay:
(1) JH’s statement to SSG DC: “He’s beating my mom. He’s
beating my mom.”
(2) JH’s exclamation: “You better not hit her again.”
(3) KH’s statement to SSG DC: “He hit me. He hit me.”
1 The Government certified the following issue: Did the military
judge abuse his discretion in excluding the four statements on
which the prosecution sought interlocutory appellate review, pur-
suant to Article 62, UCMJ?
2
United States v. Henry, No. 20-0342/AR
Opinion of the Court
(4) KH’s statement to the 911 operator that her husband had
“been beating me for the last couple of hours.”
In an Article 39(a) session on the admissibility of these
statements, KH testified for the defense. She stated that she
had told JH to run over to SSG DCs house and tell him to call
911, and she lied when she told SSG DC that the accused had
beaten her. At the Article 39(a) session, the military judge de-
nied the admission of the statements as exceptions to hearsay
or under the residual hearsay exception. He did not make a
finding that KH’s recantation was at all credible, nor did he
reference it his ruling.2
At trial, the Government attempted to introduce the four
statements under the excited utterance or present sense
impression exception to hearsay. The military judge denied
the admission of all four statements on the grounds that the
Government failed to lay a proper foundation, specifically
that there was insufficient evidence as to when the alleged
assault occurred.
II. Law
A. Standard of Review
“ ‘In an Article 62, UCMJ, appeal, this Court reviews the
military judge’s decision directly and reviews the evidence
in the light most favorable to the party which prevailed
at trial.’ ” United States v. Lewis, 78 M.J. 447, 452 (C.A.A.F.
2019) (quoting United States v. Pugh, 77 M.J. 1, 3 (C.A.A.F.
2017)). We review a “military judge’s ruling admitting or ex-
cluding an excited utterance [for] an abuse of discretion.”
United States v. Feltham, 58 M.J. 470, 474–75 (C.A.A.F.
2003). We will only reverse “if the military judge’s findings of
fact are clearly erroneous or if his decision is influenced by an
erroneous view of the law.” Id. (internal quotation marks
omitted) (citation omitted).
2 The only potential reference to KH’s recantation was in his ruling on
JH’s statement. He discounted JH’s statements as lacking personal
knowledge, noting they may have been motivated by “hearing a com-
motion or repeating something his mother told him while she was hav-
ing an intoxicat[ed] argument with the accused.”
3
United States v. Henry, No. 20-0342/AR
Opinion of the Court
B. Personal Knowledge
Military Rule of Evidence (M.R.E.) 602, which is taken
verbatim from Fed. R. Evid. 602, requires that a witness must
have personal knowledge in order to testify. Hearsay declar-
ants are, of course, witnesses, and so also must have personal
knowledge in order for their statements to be admissible. Fed.
R. Evid. 104(a) advisory committee’s note to 1972 amend-
ment; see, e.g., Bemis v. Edwards, 45 F.3d 1369, 1373 (9th Cir.
1995). In the case of a hearsay declarant, the personal
knowledge does not need to be conclusively established before
the testimony is admitted; rather, “it is enough, if the declar-
ant ‘so far as appears [has] had an opportunity to observe the
fact declared.’ ” Fed. R. Evid. 104(a) advisory committee’s note
to 1972 amendment (quoting 1 McCormick on Evidence § 10
at 19) (interpolation in original); see, e.g., United States v.
Hickey, 917 F.2d 901, 904 (6th Cir. 1990) (explaining that
“[t]estimony should not be excluded for lack of personal
knowledge unless no reasonable juror could believe that
the witness had the ability and opportunity to perceive the
event that he testifies about”). When it comes to personal
knowledge, the military judge’s role is to determine whether
there is sufficient evidence for a reasonable court member to
find that declarant had personal knowledge of his declaration.
See M.R.E. 104(b); Stephen A. Saltzburg et al., 2 Military
Rules of Evidence Manual, § 602.02[3], at 6-19 to 6-20 (8th ed.
2015). This is not a high bar.
C. Excited Utterance
“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,” is admissible as an excep-
tion to the general prohibition on hearsay. M.R.E. 803(2); see
Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-63 (2016 ed.) [here-
inafter Drafters’ Analysis] (“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) (citation omitted); see also White v. Illinois, 502 U.S.
346, 357 (1992) (“[A] statement that qualifies for admission
4
United States v. Henry, No. 20-0342/AR
Opinion of the Court
under a ‘firmly rooted’ hearsay exception is so trustworthy
that adversarial testing can be expected to add little to its re-
liability.”) (quoting Idaho v. Wright, 497 U.S. 805, 820–21
(1990))).
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 de-
clarant must be “under the stress of excitement caused by the
event.” United States v. Arnold, 25 M.J. 129, 132 (C.M.A.
1987) (internal quotation marks omitted) (citations omitted).
Relevant to the third prong of this inquiry are “the physi-
cal and mental condition of the declarant” and “the lapse of
time between the startling event and the statement.” United
States v. Donaldson, 58 M.J. 477, 483 (C.A.A.F. 2003) (inter-
nal quotation marks omitted) (citation omitted). However,
“[i]t is the totality of the circumstances, not simply the length
of time that has passed between the event and the statement,
that determines whether a hearsay statement was an excited
utterance.” United States v. Belfast, 611 F.3d 783, 817 (11th
Cir. 2010). Further, M.R.E. 803(2) does not require corrobora-
tion—the declarant’s statement is sufficient to prove the ex-
istence of the startling event. Drafters’ Analysis at A22-63.
The proponent of the excited utterance has the burden to
show by a preponderance of the evidence that each element is
met. See Bourjaily v. United States, 483 U.S. 171, 175 (1987)
(explaining that though a court determines admissibility of
evidence, the Supreme Court has “traditionally required that
these matters be established by a preponderance of proof”);
see also United States v. Mehanna, 735 F.3d 32, 56 (1st Cir.
2013).
III. Discussion
The military judge excluded all four statements due to
lack of a proper foundation. He based this finding primarily
on three alleged defects. First, the Government did not estab-
lish when the alleged startling event occurred. Second, be-
cause SSG DC did not know the declarants well, he could not
say whether they were speaking while under the stress of an
exciting event. Third, the Government had not shown that JH
had personally witnessed the assault that he described. The
5
United States v. Henry, No. 20-0342/AR
Opinion of the Court
military judge also stated that KH’s injuries did not match
her description of the assault. We address each purported de-
fect in turn.
A. Timing of the Alleged Assault
In Arnold, we listed three elements that must be met be-
fore a statement can qualify as an excited utterance: (1) the
statement must be spontaneous; (2) the event must be star-
tling; and (3) the declarant must be under stress caused by
the startling event. 25 M.J. at 132.
Elements one and three implicate the timing of the event.
The first element implicates the timing of the event, as the
closer in time, the less likely the statements are the result of
careful consideration (and possible mendacity). We elabo-
rated on the third element in Donaldson, listing six factors to
help determine whether the declarant was still under the
stress of excitement caused by the startling event. Donaldson,
58 M.J. at 483 (quoting Reed v. Thalacker, 198 F.3d 1058,
1061 (8th Cir. 1999)). One of the Donaldson factors is “the
lapse of time between the startling event and the statement.”
Id. (internal quotation marks omitted) (citation omitted).
Given that two of the three Arnold elements implicate the
timing of the exciting event, it is understandable that the mil-
itary judge would be concerned if there was no evidence when
the alleged abuse occurred. What is not understandable is
why he did not recognize this evidence when it was presented.
As a foundational note, we emphasize that M.R.E. 803(2), in
contrast with M.R.E. 803(1), present sense impression, does
not contain a corroboration requirement. This means that the
declarant’s statement is sufficient to establish the existence
of the event that caused his excitement. The four statements,
considered together as part of the “totality of the circum-
stances,” provided evidence of the existence of the startling
event, an assault, and when it happened, early in the morning
of December 29, 2018.
Statements of JH. JH made two statements, both of which
contain evidence of the timing of the alleged assault. First, he
yelled at SSG DC “[h]e’s beating my mom. He’s beating my
mom.” Second, he ran back to his house yelling, “[y]ou better
not hit her again.” Taken at face value, this suggests that, at
the very least, immediately prior to leaving his house and
6
United States v. Henry, No. 20-0342/AR
Opinion of the Court
pounding on SSG DC’s door, JH believed his mother was be-
ing beaten. Both the present tense of his first exclamation,
“[h]e’s beating my mom” and the fact that he ran back to the
house yelling “[y]ou better not hit her again” suggest that the
alleged assault took place shortly before 2 a.m., when JH
pounded on his neighbor’s door.
In holding that these statements did not establish timing,
the military judge stated that “the [G]overnment has not
shown that JH observed an alleged assault” (Emphasis
added.) The military judge further suggested that, despite the
statement being in the present tense, “it is possible that that
JH was saying that, at some point, the accused had assaulted
[K]H.” (Emphasis added.) This concern is misplaced.
First, the members must determine whether a declarant
had personal knowledge of what he stated. See supra part
II.B. The military judge’s analysis is confined to whether a
reasonable member could find that the declarant had per-
sonal knowledge. Id. Second, the members must determine
what weight to give hearsay statements, and how to interpret
them. The military judge oversteps when he searches for al-
ternative theories3 and forces the government to prove to him
what weight to give hearsay statements.
Here, JH yelled, “[h]e’s beating my mom.” This is in the
present tense. That statement, coupled with the time (2 a.m.),
the temperature (20-degree Fahrenheit weather), his excited
state (“scared”), his tone (yelling), and his actions (pounding
on a stranger’s door in only his pajamas), could lead a
reasonable court member to find that JH had witnessed the
startling event only moments before he was yelling about his
mother being beaten. JH’s statement that the alleged assault
was ongoing was sufficient evidence of when the startling
event took place.
Statements of KH. KH also made two statements that
evidence the timing of the alleged assault. First, as she was
running away from her husband towards her neighbor’s home
at 3 a.m., she said “He hit me. He hit me.” Second, shortly
3 No one, aside from the military judge, suggested that JH’s ex-
clamations to SSG DC were about a prior assault, rather than one
that had just taken place.
7
United States v. Henry, No. 20-0342/AR
Opinion of the Court
thereafter she told the 911 operator that her husband had
“been beating me for the last couple of hours.” KH’s statement
to SSG DC and her statement to the 911 operator suggest that
she fled her home soon after being beaten by her husband.
The military judge dismissed KH’s statements due to
imprecise timing of the assault, as well as her credibility,
finding that the marks on her body noted by the officer did
not match her testimony that she had been beaten over the
past several hours.
While the statement, “he hit me” in isolation may not es-
tablish when the assault occurred, this statement had signif-
icant context. It was made approximately an hour after her
ten-year-old son pounded on his neighbor’s door yelling, “he’s
beating my mom.” It was made as KH, JH, and another child
ran out of their house, and KH looked scared and like she had
been recently crying. This statement, in context, presents suf-
ficient circumstantial evidence to show that KH’s statement
was made soon after the alleged assault.
Having established that the Government presented suffi-
cient circumstantial evidence that the statements of JH and
KH related to a startling event that had just taken place, the
rest of our Arnold analysis is straightforward.
B. JH Statements
(1) JH’s statements were both excited
and not the product of reflection.
SSG DC testified that JH “pounded” on his door, was “yell-
ing” and looked “frightened” and “scared.” The military judge
dismissed SSG DC’s testimony, stating SSG DC didn’t know
JH well enough to say whether he was shaking due to being
scared or due to being out in the cold. This skepticism is mis-
placed. First, there is no requirement that a witness must be
well acquainted with a declarant to testify about his de-
meanor. Second, the fact that JH was shaking was not the
only indication that he was scared, he was also yelling and
pounding on the door of a stranger at 2 a.m. without having
taken the time to put on warmer clothing. Third, while being
outside in December at 2 a.m. clad only in pajamas could cer-
tainly cause a young child to shake with cold, the circum-
stances surrounding him being out there indicate that he was
excited about something. Quite simply, the fact that he was
8
United States v. Henry, No. 20-0342/AR
Opinion of the Court
shaking in the cold with a look of fear on his face, while yelling
about his mother being beaten, is sufficient evidence that JH
was excited by more than just the temperature.
(2) The alleged event that prompted JH’s
statements was “startling.”
Having established that the members could find that JH
had personal knowledge that his mother was being beaten,
and that JH’s statements were excited, we consider whether
the alleged event would be “startling” and whether this event
prompted the excited utterance. We reiterate that the mem-
bers must determine the ultimate question of whether JH
witnessed his mother being beaten. This inquiry then is
whether the event his statement related to would be a star-
tling event. See Donaldson, 55 M.J. at 482 (“Appellant does
not dispute that [the alleged event] would constitute a star-
tling event.”) Thankfully, all agree that a ten-year-old watch-
ing his mother being beaten would qualify as a startling
event. That JH ran outside early in the morning to yell about
a startling event that was presently occurring is sufficient ev-
idence that the event prompted his statement.
(3) JH was still under the excitement of
the startling event when he made his
statements.
As discussed in supra part III.A., this third element re-
lates, at least in part, to the lapse in time between the alleged
event and the statement. The circumstances surrounding
both statements indicate that a startling event prompted JH
to run to a stranger’s house early in the morning to pound on
his door and yell about what he witnessed. SSG DC testified
that JH was yelling and looked scared, and JH’s statement
indicates that the alleged event had just occurred. Therefore,
there is sufficient evidence that JH was still under the excite-
ment of the startling event when he made his statements.
In his questioning of SSG DC, the military judge appeared
to find a relevant distinction between JH being “scared” or
being “excited.”
Q. Well, you said, for example that he
was visibly scared?
A. Yes, he was.
9
United States v. Henry, No. 20-0342/AR
Opinion of the Court
Q. And then the trial counsel keeps
coming back with, ”So, he was ex-
cited?” Was he excited, or was he
scared, or what’s your opinion?
A. He—I mean, from the opinion—
from my opinion, it just looked like he
was afraid. He saw something that
may have happened, you know.
To the extent that this influenced the MJ’s determination,
it was misguided. The term “excited” means “emotionally
aroused; stirred.” The American Heritage Dictionary of the
English Language 639 (3d ed. 1992). The term “scared” means
a “condition or sensation of sudden fear” or a “general state of
alarm.” Id. at 1611. Clearly, being scared is simply a height-
ened state of excitement.
The military judge also stated that he could not “make a
determination that JH was reacting to a startling event as
opposed to just repeating what he has been told . . . by his
mother.” That was inappropriate speculation by the military
judge, whose duty was to determine whether no reasonable
court member could have concluded that JH had observed a
startling event. JH emphatically proclaimed that his mother
was being beaten. The members’ duty is to determine whether
this belief came from personal knowledge, and what weight
to give it. The accused is free to challenge the testimony, but
the military judge cannot keep it out merely because he is not
convinced.
In sum, JH’s demeanor and the circumstances surround-
ing his statement indicate that he was speaking out of excite-
ment and not from reflection and consideration. He stated
that his mother was being beaten, which is a startling event.
Considering JH’s age, the circumstances surrounding his
statement, and the statement itself which indicated the beat-
ing was presently happening, JH was likely still under the
stress and excitement of the startling event when he made his
statements. Therefore, the statements qualify as exceptions
to the rule against hearsay under M.R.E. 803(2).
10
United States v. Henry, No. 20-0342/AR
Opinion of the Court
C. KH’s Statements
(1) KH’s statements were both excited.
KH and her children ran out of their house, her husband
in pursuit, and told her neighbor, “He hit me. He hit me.” She
looked “afraid, like scared” and “like she had been crying.”
She then “cowered over by the coat closet.” Shortly thereafter,
she spoke to the 911 operator, stating that her husband had
“been beating me for the last couple of hours.” SSG DC’s
testimony about her demeanor is sufficient to establish that
KH’s statements were excited and not the product of
deliberation. Though KH’s statement was in response to the
operator’s question, “can you tell me what is going on,” this
does not move her statement from the realm of spontaneity to
that of deliberation. See United States v. Joy, 192 F.3d 761,
767 (7th Cir. 1999) (deciding that declarations prompted by
questions of “what happened?” and “who did it?” did not
destroy their spontaneity) (internal quotation marks omitted)
(citations omitted); United States v. Glenn, 473 F.2d 191, 194
(D.C. Cir. 1972) (holding that an excited utterance “may be
admissible although made in response to an inquiry” as the
“decisive factor is that the circumstances reasonably justify
the conclusion that the remarks were not made under the
impetus of reflection”).
(2) The alleged event that prompted
KH’s statements was startling.
As with JH’s statements, KH’s statements related to an
event that was startling—being beaten by her husband. Her
statements established that she had been hit a few times by
her husband, and then she fled her house and had her neigh-
bor call 911. An excited reaction immediately after a startling
event, describing that event—particularly one as traumatic
as being beaten by one’s spouse—indicates that the startling
event prompted the statements.
(3) KH was still under the excitement of
the startling event when she made her
statements.
When she made her first statement, “He hit me. He hit
me,” KH was running from the accused, appearing scared and
like she had been crying. She promptly cowered in fear by
SSG DC’s coat closet. This, coupled with JH’s exclamation
11
United States v. Henry, No. 20-0342/AR
Opinion of the Court
shortly before that his mother was being beaten, is sufficient
evidence that KH was still under the excitement of a startling
event when she made the first statement.
The second statement was made a few minutes later to the
911 operator. SSG DC testified that KH still appeared
“afraid,” “tearful,” and “visibly upset” when she spoke to the
911 operator. Though SSG DC testified that KH had calmed
down “maybe just a little bit” from when she was “cowering
in the corner,” he also said that she “wasn’t back to a complete
state of calm.” Further, her statements to the 911 operator
were consistent with her prior statement to SSG DC, and to
JH’s earlier statements. There is sufficient evidence that KH
was speaking while still under the excitement of a startling
event and not after a process of reflection and deliberation.
In sum, KH’s demeanor and the circumstances surround-
ing her statements and the statements of JH indicate that KH
was still under the excitement of the alleged event when she
made her statement to SSG DC and her statement to the 911
operator.
IV. Conclusion
The military judge erred in applying M.R.E. 803(2). The
Government merely needed to show, by a preponderance of
the evidence, the declarants were responding to a startling
event while still in an excited state. But the military judge
evidenced a grudging view of the excited utterance exception
and raised the standard to an impermissibly high level. In his
analysis of the declarant’s statements, the military judge con-
sidered each statement in isolation, and focused on whether
he was convinced the alleged event happened.
For example, the military judge weighed the evidence and
determined that if KH had actually been beaten, “she would
have had more visible injuries” than she did. But this is the
ultimate question for the members. The military judge should
have focused his analysis on whether the Government had
shown by a preponderance of the evidence that: (a) the declar-
ants were excited; (b) the alleged event was startling; and (c)
whether, if the event had happened, the declarant could have
still been under the excitement of the event. No further cor-
12
United States v. Henry, No. 20-0342/AR
Opinion of the Court
roboration of the startling event is required, and it is inappro-
priate for the military judge to look for alternate theories of
what could have prompted the excited statements.4
Since the military judge based his ruling on an incorrect
view of the law—requiring proof of personal knowledge and
considering each statement in isolation—and a view of the
facts that leaves us firmly convinced that a mistake was com-
mitted—that there was no evidence as to when the assault
occurred or that JH could have observed it—we hold that he
abused his discretion by excluding the four statements of JH
and KH.
V. Judgment
The certified question is answered in the affirmative. The
record is returned to the Judge Advocate General of the Army
for remand to the United States Army Court of Criminal Appeals
for further action consistent with this opinion.
4 Where factual issues are involved in determining a motion,
the military judge shall state the essential findings on the record.”
R.C.M. 905(d). It is those findings that provide appellate courts the
ability to review the military judge’s rulings. The fact that there
was other evidence available to the military judge to support his
ruling does not mean that he considered it or found it credible un-
less he says so in his essential findings. There is no evidence in the
record that the military judge relied on KH’s recantation in his ad-
missibility rulings at the Article 39(a) session or at trial. Neither
did he make a finding of fact that her testimony was credible and,
therefore, her alleged excited utterances were the product of reflec-
tion. Rather, his analysis focused solely on the lack of corroboration
about the timing of the alleged assault, her alleged intoxication,
and that her visible injuries did not match what he would have ex-
pected had the assault just taken place. Further, neither the CCA
in upholding the military judge’s ruling, nor the accused before this
Court, contended that the recantation formed the basis for the ad-
missibility ruling. Therefore, we will not defer to the military judge
based on speculation that he found a purported abuse victim’s re-
cantation credible, and that he based his ruling on this testimony.
13
United States v. Henry, No. 20-0342
Judge OHLSON, dissenting.
The majority concludes that the military judge abused his
discretion in refusing to admit four statements under the ex-
cited utterance exception. Because I disagree with this con-
clusion, I respectfully dissent.
This case is ultimately about the deference this Court
owes to a military judge’s decision to admit or exclude evi-
dence at trial. As explained by the majority, we use an abuse
of discretion standard when analyzing such issues, and an
abuse of discretion occurs when, inter alia, a military judge
makes clearly erroneous factual findings. A finding of fact is
clearly erroneous only where this Court is “left with a definite
and firm conviction that a mistake has been committed.”
United States v. Martin, 56 M.J. 97, 106 (C.A.A.F. 2001)
(quoting United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)). “This standard requires more than just [this
Court’s] disagreement with the military judge’s decision.”
United States v. Bess, 75 M.J. 70, 73 (C.A.A.F. 2016) (citing
United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015)).
In many ways, I do not disagree with the majority’s
presentation of the facts or the law, or with much of its anal-
ysis. Indeed, I believe the military judge could have properly
admitted the statements of JH and KH under the excited ut-
terance exception for many of the reasons outlined in the ma-
jority opinion. However, I find that it was not an abuse of dis-
cretion for the military judge to exclude the statements
because the record provided a firm factual basis for him to
conclude that a startling event did not occur.1
My primary concern with the majority opinion is that it
fails to appropriately consider KH’s testimony at an Article
39(a)2 hearing related to this case. In my view, this testimony
influenced the military judge’s decision to exclude the state-
ments of JH and KH. Specifically, at the Article 39(a) hearing,
1 If the preponderance of the evidence does not show a startling
event occurred, then none of the statements meet the second prong
of the Arnold test and are, therefore, inadmissible as excited utter-
ances. United States v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987).
2 Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 839(a)
(2012).
United States v. Henry, No. 20-0342/AR
Judge OHLSON, dissenting
KH unequivocally recanted her domestic violence allegations.
She stated that Appellee did not hit, choke, or headbutt her
and that the scratch on her neck that the military police ob-
served “could have been just from [her] scratching [her] own
neck.” In explaining her motives for falsely accusing Appellee,
KH testified that Appellee previously had obtained a civilian
restraining order against her to prevent her from entering
their home in November 2018 after she had threatened to
harm him. During the night in question, Appellee raised the
possibly of getting another restraining order against KH be-
cause she was “acting crazy,” so KH ran upstairs, woke up her
young son JH, and “told him to go to the neighbor’s house be-
cause [her] phone was dead” and “call 911 because [she]
wanted [Appellee] to get out [of their home] before [Appellee]
got [her] in trouble.”
After considering the testimony presented at trial, the
military judge stated the following when discussing the ad-
missibility of JH’s statements: “The court cannot make a de-
termination that JH was reacting to a startling event as op-
posed to just repeating . . . what he had been told by his
mother.” And, with regard to KH’s statements, the military
judge found it “unclear from the evidence presented whether
the alleged assault served as the startling event that
prompted [KH]’s statements to [her neighbor] and her 911
call.” Therefore, he concluded that he could not find that ei-
ther JH’s or KH’s statements met the second prong of the Ar-
nold test.
The majority, however, claims that the military judge
erred because it was “inappropriate for the military judge to
look for alternate theories of what could have prompted the
excited statements.” I disagree with this assertion. The mili-
tary judge did not go “look[ing] for alternate theories”; rather,
he was explicitly presented with an alternate version of the
relevant facts through KH’s testimony at the motions hearing
where she recanted her sworn statement made to the military
police and stated that she falsely accused Appellee. (Empha-
sis added.) Even though the military judge did not specifically
cite KH’s recantation in his later ruling during the case-in-
chief, the testimony gave the military judge a firm factual ba-
sis to determine that a startling event did not prompt the ex-
cited statements.
2
United States v. Henry, No. 20-0342/AR
Judge OHLSON, dissenting
Just as panel members “may properly believe one witness
and disbelieve several other witnesses whose testimony con-
flicts with the one,” the military judge may do so in making
his findings of fact. Dep’t of Army, Pam. 27-9, Legal Services,
Military Judge’s Benchbook, ch. 2, § V, para. 2-5-12 (2020).
Accordingly, I would find that the military judge did not
clearly err by deciding to credit the version of events pre-
sented by KH at the Article 39(a), UCMJ, session rather than
the version of events presented by the neighbor at trial, and
by therefore finding that a startling event did not occur.3
In reaching my conclusion, I am acutely mindful of the fact
that this is an alleged domestic abuse case and of all the fac-
tors that could cause such a victim to falsely recant meritori-
ous allegations. For example, KH may have recanted her tes-
timony because she is still married to Appellee and she could
have been acting under his malign influence. Brief for Legal
Momentum and Sanctuary for Families as Amici Curiae Sup-
porting Appellant at 7, United States v. Henry, No. 20-0342
(C.A.A.F. Aug. 13, 2020) (“Abusers are . . . highly motivated
3 The majority states that “[t]here is no evidence on the record
that” KH’s Article 39(a) testimony influenced the military judge’s
decision to exclude the evidence, noting that the military judge did
not cite KH’s testimony in his admissibility rulings at trial or “make
a finding of fact that her testimony was credible.” Therefore, the
majority refuses to “defer to the military judge based on speculation
that he found a purported abuse victim’s recantation credible, and
that he based his ruling on this testimony.” I first note, however,
that the Supreme Court held in Anderson v. Bessemer City, that an
appeals court may not reverse a trial court’s decision to credit a
particular version of events if that version of events “is plausible in
light of the record viewed in its entirety.” 470 U.S. 564, 574 (1985)
(emphasis added). Therefore, the implication by the majority that
this Court may consider only that evidence that is explicitly cited
by a military judge as a finding of fact—rather than the record in
its entirety—is mistaken. Second, although the military judge did
not explicitly note KH’s recantation when excluding the statements
at trial, he ruled against the admission of the hearsay statements
at the earlier Article 39(a) hearing directly after hearing KH’s re-
cantation. Thus, not only is KH’s recantation in the record before
us, her testimony formed the basis for the military judge’s earlier
ruling in which he excluded the statements at issue. For these rea-
sons, I believe the majority’s approach to this issue is misguided.
3
United States v. Henry, No. 20-0342/AR
Judge OHLSON, dissenting
to coerce victims to recant or decline to participate in prose-
cutions, and correctly estimate they will succeed in intimidat-
ing the victim into recanting or to declining to participate in
the prosecution.”). Indeed, under a de novo standard of re-
view, this Court would have weighed the recantation by this
potential domestic abuse victim against the testimony of the
involved neighbor who appears to have had no motive to lie,
and would have considered all the circumstantial evidence in
this case. However, the standard of review is not de novo.
Whether or not we believe that KH’s recantation testi-
mony at the motions hearing was credible, it is the military
judge who gets to make that determination in assessing
whether hearsay statements can come in at trial. See, e.g.,
United States v. Feltham, 58 M.J. 470, 473 (C.A.A.F. 2003)
(making a finding of fact that a startling event had occurred
and that statements during the event were made under
stress). As the Supreme Court held in Anderson:
If the [trial] court’s account of the evidence is plau-
sible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though con-
vinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.
470 U.S. at 573–74. After all, the military judge is ultimately
in a superior position “to make determinations of credibility”
because “only the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the lis-
tener’s understanding of and belief in what is said.” Id. at
574–75.
In sum, because the standard of review is abuse of discre-
tion, and there is evidence in the record—by way of KH’s mo-
tions testimony—to support the military judge’s determina-
tion, I do not find an adequate or appropriate basis to
conclude that the military judge’s findings of fact were clearly
erroneous. I would therefore answer the certified issue in the
negative and affirm the CCA’s ruling in its entirety.
Accordingly, I respectfully dissent.
4
United States v. Henry, No. 20-0342/AR
Judge MAGGS, dissenting.
The military judge ruled that Staff Sergeant Carson’s
statements about what he heard the accused’s son (JH) and
the accused’s wife (KH) say on the evening of the charged as-
sault were inadmissible because they contained hearsay. In
so doing, the military judge rejected the Government’s argu-
ment that the statements were admissible under the excep-
tion in Military Rule of Evidence (M.R.E.) 803(2) for excited
utterances. M.R.E. 803 provides: “The following are not ex-
cluded by the rule against hearsay, regardless of whether the
declarant is available as a witness: . . . (2) Excited Utterances.
A statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it
caused.” The military judge concluded that the Government
had not laid the foundation for the exception.
With respect to the son’s statements, the military judge
found that he “[could not] make a determination that JH was
reacting to a startling event” based on the evidence presented.
With respect to the wife’s statements, the military judge sim-
ilarly found: “Without evidence of when the alleged assault
occurred, I cannot make a determination that the alleged vic-
tim was acting under the stress and excitement caused by the
event or condition.” In this appeal, the Government argues
that the military judge erred because the “preponderance of
the evidence” established the foundation for the exception in
M.R.E. 803(2) for all the statements at issue.
We review a military judge’s evidentiary rulings for an
abuse of discretion. A military judge abuses his discretion
“when his findings of fact are clearly erroneous, the court’s
decision is influenced by an erroneous view of the law, or the
military judge’s decision on the issue at hand is outside the
range of choices reasonably arising from the applicable facts
and the law.” United States v. Miller, 66 M.J. 306, 307
(C.A.A.F. 2008). “A finding of fact is clearly erroneous when
there is no evidence to support the finding, or when, although
there is evidence to support it, the reviewing court on the en-
tire evidence is left with the definite and firm conviction that
a mistake has been committed.” United States v. Criswell, 78
M.J. 136, 141 (C.A.A.F. 2018) (citations omitted) (internal
quotation marks omitted).
United States v. Henry, No. 20-0234/AR
Judge MAGGS dissenting
In this case, the Government’s primary theory appears to
be that the military judge abused his discretion by making
two clearly erroneous findings of fact. The first finding is that
the Government did not establish that JH had direct
knowledge of the alleged assault, and the second finding is
that the Government did not establish when the alleged as-
sault occurred.1 The Government acknowledges that the rec-
ord contains no direct evidence that JH saw the assault. But
quoting McLaughlin v. Vinzant, 522 F.2d 448, 451 (1st Cir.
1975), the Government contends that the military judge in
this case should have “ ‘draw[n] an inference’ that JH had
firsthand knowledge of the alleged assault ‘not only from the
force of [JH’s] statement itself but from the fact that []he was
. . . somewhere in the immediate vicinity’ of the alleged as-
sault.” (Second and third interpolations in original.) The Gov-
ernment also acknowledges that the record contains no direct
evidence of when the charged assault occurred. But the Gov-
ernment argues that “the military judge failed to give due
weight to the circumstantial evidence that the alleged assault
occurred immediately preceding or a short time before KH’s
outcry.”
I agree with Judge Ohlson that the Government’s theory
fails because the military judge’s findings of fact are not
clearly erroneous. As Judge Ohlson explains, there is some
support for the military judge’s findings in KH’s testimony
during an Article 39(a), UCMJ, hearing in this case, which
the Government has generally overlooked in its briefs.2 But
1 The Government states: (1) “The military judge first erred by
finding that ‘it is unclear from the evidence presented whether the
alleged assault served as the startling event that prompted [KH]’s
statements . . . [in] her 911 call’ ” (interpolations in original); and
(2) “The military judge also erred in finding that there was ‘insuffi-
cient evidence to support th[e] conclusion’ that JH’s ‘statement was
made in an excited state’ ” (interpolation in original). The Govern-
ment does not expressly assert that these two allegedly erroneous
findings were “clearly erroneous,” but the Government correctly
states the clear error standard of review elsewhere in its brief.
2 The Court errs in reasoning that the military judge’s findings
of fact are clearly erroneous because “[t]here is no evidence in the
record that the military judge relied on KH’s recantation in his ad-
missibility rulings at the Article 39(a) session or at trial.” Henry, __
M.J. __, __ n.4 (13 n.4). It is true, as the Court states, that R.C.M.
2
United States v. Henry, No. 20-0234/AR
Judge MAGGS dissenting
even putting KH’s testimony aside, I also disagree with the
Government’s argument that the military judge’s findings of
fact in this case are clearly erroneous merely because the mil-
itary judge declined to draw inferences from the circumstan-
tial evidence in the record when making the findings.
A trier of fact undoubtedly may make findings based on
inferences from facts in the record, and such findings will be
upheld on appeal unless they are clearly erroneous. See An-
derson v. City of Bessemer, 470 U.S. 564, 577 (1985). But the
question here is whether the military judge’s findings were
clearly erroneous because the military judge was required to
draw inferences about matters not supported by the direct ev-
idence in this case. The answer is no. “[T]he fact that there
may have been evidence to support an inference contrary to
that drawn by the trial court does not mean that the findings
are clearly erroneous.” Ceraso v. Motiva Enterprises, L.L.C.,
326 F.3d 303, 316 (2d Cir. 2003).
As stated above, a finding of fact is clearly erroneous if
“there is no evidence to support the finding” or if the review-
ing authority has a “definite and firm conviction that a mis-
take has been committed.” Criswell, 78 M.J. at 141. In this
case, the military judge’s findings of fact are not clearly erro-
neous. They are supported by the lack of direct evidence in the
record about what JH saw or when the alleged assaults oc-
curred. And the circumstantial evidence about what might
905(d) required the military judge to state his essential findings on
the record. But the military judge complied with R.C.M. 905(d) by
stating his essential findings on the record. As described above, the
military judge stated that he “[could not] make a determination
that JH was reacting to a startling event” and that he could not
“make a determination that [KH] was acting under the stress and
excitement caused by the event or condition.” There is no additional
requirement that a military judge also expressly identify the evi-
dence relied on in making findings of fact. Instead, the clear error
standard requires only that the record contain sufficient evidence
to support the military judge’s findings. Criswell, 78 M.J. at 141.
Put another way, when an appellate court applies the clear error
standard of review to a trial judge’s findings, the appellate court
considers only whether the record contains testimony or other evi-
dence that the trial judge “could have relied on” in making the find-
ings. Hernandez v. New York, 500 U.S. 352, 369 (1991) (emphasis
added).
3
United States v. Henry, No. 20-0234/AR
Judge MAGGS dissenting
have happened in Appellee’s house is insufficient to provide a
“definite and firm conviction” that JH actually had firsthand
knowledge of the alleged assault and that the alleged assault
actually occurred immediately preceding or a short time be-
fore KH’s outcry. Other triers of fact, when confronted with
this lack of direct evidence, might have made different find-
ings based on inferences from circumstantial evidence of the
kind advocated by the Government. But “the fact that [an ap-
pellate court] might have drawn one inference does not entitle
it to overturn the trial court’s choice of the other.” Healey v.
Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir. 1991). See
also United States v. Lewis, 78 M.J. 447, 452 (C.A.A.F. 2019)
(requiring evidence to be reviewed in the light most favorable
to the party who prevailed at trial).
4