U.S. v. Smith, 83 M.J. 350

Military Justice Personnel: Military Judge: Discretion

1. in this case, even though the military judge was entitled to little deference because his ruling was supported by only bare-boned findings of fact and analysis on the record, he did not abuse his discretion in admitting the victim’s Snapchat message to a friend, “I think he [appellant] raped me,” as an excited utterance where (1) the message was a spontaneous outburst shortly after the event which was prompted by looking in a mirror and seeing a hickey on her neck and bruises on her chest and arms, (2) her discovery of the hickey and bruising was startling, causing her to shake, feel nauseated, and sweat, and (3) at the time, she was under the stress caused by the event, as she was shaking, nauseated, and sweating

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Offenses on/after 1 Jan 2019 › (b) Sexual Assault

1. the evidence for appellant’s conviction for sexual assault by oral penetration was legally sufficient where the government introduced ample evidence for a rational trier of fact to find beyond a reasonable doubt that appellant committed a sexual act upon the victim when she was incapable of consenting due to impairment by intoxication, and appellant knew or reasonably should have known of the impairment
2. incapable of consenting to a sexual act means lacking the cognitive ability to appreciate the sexual conduct in question or lacking the mental or physical ability to make or communicate a decision about whether the alleged victim agrees to the conduct
3. intoxication, standing alone, does not indicate one is sufficiently impaired to be incapable of consenting to sexual activity

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. as a general rule, hearsay, defined as an out of court statement offered into evidence to prove the truth of the matter asserted, is not admissible in courts-martial

Core Criminal Law Subjects: Evidence: Hearsay › Excited utterances

1. a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused, is admissible as an exception to the general prohibition on hearsay as an excited utterance; 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
2. for hearsay to be admitted as an excited utterance: (1) the statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation; (2) the event that prompts the utterance must be startling; and (3) the declarant must be under the stress of excitement caused by the event; relevant to the third prong of this inquiry are the physical and mental condition of the declarant and the lapse of time between the startling event and the statement; the proponent of the excited utterance has the burden to show by a preponderance of the evidence that each element is met
3. in this case, even though the military judge was entitled to little deference because his ruling was supported by only bare-boned findings of fact and analysis on the record, he did not abuse his discretion in admitting the victim’s Snapchat message to a friend, “I think he [appellant] raped me,”as an excited utterance where (1) the message was a spontaneous outburst shortly after looking in a mirror and seeing a hickey on her neck and bruises on her chest and arms, (2) her discovery of the hickey and bruising was startling, causing her to shake, feel nauseated, and sweat, and (3) at the time, she was under the stress caused by the event, as she was shaking, nauseated, and sweating
4. the plain language of the hearsay exception provides for admission of a statement relating to a startling event or condition; there is no requirement that the excited utterance directly mention the startling event or condition, or that the startling event or condition must be the underlying offense
5. the basis of the excited utterance exception rests with the spontaneity and impulsiveness of the statement; thus, the startling event does not have to be the actual crime itself, but rather may be a related occurrence that causes such a reaction
6. a statement of belief or opinion can constitute an excited utterance as long as it is related to the startling event that prompted it

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when reviewing a decision of a CCA on a military judge’s discretionary ruling, the CAAF typically has pierced through that intermediate level and examined the military judge’s ruling; it then decides whether the CCA was correct in its examination of the military judge’s ruling

Trial Stages: Appeals: Preservation of Error / Plain Error

1. unpreserved evidentiary errors are forfeited in the absence of plain error; under this standard, appellant bears the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights
2. where the defense did not object to the victim’s testimony that she sent a text message to a friend about suspecting that appellant had sexually assault her, the admission of the testimony is reviewed by an appellate court for plain error

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s ruling admitting or excluding an excited utterance for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range; where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; on the contrary, if a military judge fails to place his findings and analysis on the record, less deference will be accorded
2. unpreserved evidentiary errors are forfeited in the absence of plain error; under this standard, appellant bears the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights
3. where the defense did not object to the victim’s testimony that she sent a text message to a friend about suspecting that appellant had sexually assault her, the admission of the testimony is reviewed by an appellate court for plain error
4. an appellate court reviews questions of legal sufficiency de novo; the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; in reviewing legal sufficiency, an appellate court draws every reasonable inference from the evidence of record in favor of the prosecution; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction