United States v. Yoon, 201500360

Background

Appellant convicted at special court-martial (mixed plea): guilty to violating a lawful general order (Article 92); convicted, contrary to plea, of abusive sexual contact for allegedly touching HA LM’s breast while she was asleep/unaware (Article 120(d)).
Two possible encounters at issue: a 0100 incident (appellant admitted touching HA LM’s breast while she was awake and stopped when she objected) and a 0600 incident (HA LM testified she woke to the appellant “groping” her but never said "breast").
Government relied on HA LM’s statement to HN AZ that the appellant touched her breast (admitted at trial as an excited utterance) to prove the 0600 incident involved breast contact while victim was unaware.
Military judge admitted that out-of-court statement over defense hearsay objection; neither party requested special findings and the judge made no special findings sua sponte.
Appellate court found the excited-utterance ruling to be an abuse of discretion and concluded, after de novo factual-sufficiency review limited to properly admitted evidence, that the evidence was factually insufficient to prove the appellant touched HA LM’s breast while she was asleep/unaware.
Court set aside and dismissed the abusive-sexual-contact charge, affirmed the Article 92 conviction, and reassessed the sentence to 45 days’ restriction.

Issues

Issue	Government's Argument	Appellant's Argument	Held
Admissibility of HA LM’s out-of-court statement to HN AZ as an excited utterance	Statement was spontaneous and admissible under the excited-utterance exception	Statement was hearsay and inadmissible; lack of spontaneity and ongoing excitement	Military judge abused discretion admitting the statement; record lacks evidence for spontaneity and stress prongs; admission not harmless because it was critical to proving the 0600 incident
Factual sufficiency of evidence that appellant touched HA LM’s breast while she was asleep/unaware	Either the 0100 admission or the 0600 statement sufficed to prove the offense; argued trial evidence supported conviction on either incident	Admitted touching at 0100 when victim was awake; denied touching at 0600	Evidence factually insufficient: 0100 incident showed touching while victim was awake; 0600 evidence (without excluded hearsay) only showed "groping," not breast contact
Use of exceptions/substitutions under Art. 66(c) to affirm conviction as "groping her body" instead of "touching her breast"	Could affirm by excepting and substituting words to match proof	Would convict on a theory not tried; such modification impermissible	Court declined to use exceptions/substitutions because it would create a theory not presented to factfinder
Sentence reassessment after setting aside conviction	Original sentence included confinement and BCD; court should reassess given dismissal	Reduction appropriate; contest reassessment if unreliable	Court reliably reassessed sentence under Winckelmann factors and approved only 45 days’ restriction

Key Cases Cited

United States v. Bowen, 76 M.J. 83 (C.A.A.F. 2017) (sets three-part excited-utterance test)
United States v. Abdirahman, 66 M.J. 668 (N-M. Ct. Crim. App. 2008) (limit review to properly admitted evidence)
United States v. Feltham, 58 M.J. 470 (C.A.A.F. 2003) (lapse of time weighs against excited-utterance admissibility)
United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003) (harmless-error review is de novo)
United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005) (factors for assessing prejudice from erroneous admission)
United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (de novo factual-sufficiency review standard)
United States v. Rankin, 63 M.J. 552 (N-M. Ct. Crim. App. 2006) (definition of factual sufficiency review)
United States v. Riley, 50 M.J. 410 (C.A.A.F. 1999) (appellate courts may not affirm on a theory not presented to the trier of fact)
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standards and factors for sentence reassessment)
United States v. Marshall, 67 M.J. 418 (C.A.A.F. 2009) (material variance and prejudice concerns when altering theory on appeal)