This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Ellwood T. BOWEN III, Airman First Class

United States Air Force, Appellant

No. 16-0229

Crim. App. No. 38616

Argued November 1, 2016—Decided February 8, 2017

Military Judge: Lyndell M. Powell

For Appellant: Major Johnathan D. Legg (argued); Colonel 

Jeffrey G. Palomino.

For Appellee: Major Meredith L. Steer (argued); Colonel 

Katherine E. Oler, and Gerald R. Bruce, Esq. (on brief).

Amicus Curiae for Appellant: Patrick D. Kummerer (law 

student) (argued); Michael N. Mulvania, Esq. 

(supervising attorney) (on brief)—University of Colorado 

Law School.

Amicus Curiae for Appellee: Adam Zenger (law student) 

(argued); John G. Scott, Esq. (supervising attorney) (on 

brief)—University of Colorado Law School.

Chief Judge ERDMANN delivered the opinion of the 

court, in which Judges STUCKY, RYAN, OHLSON, and 

SPARKS joined. 

_______________

Chief Judge ERDMANN delivered the opinion of the

court.1

A panel of officer members convicted Airman First Class

Ellwood T. Bowen III, contrary to his pleas, of one 

 1 We heard oral argument in this case at the University of 

Colorado Law School, Boulder, Colorado, as part of the court’s 

“Project Outreach.” See United States v. Mahoney, 58 M.J. 346, 

347 n.1 (C.A.A.F. 2003). This practice was developed as part of a 

public awareness program to demonstrate the operation of a 

federal court of appeals and the military justice system.
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

2

specification of aggravated assault upon his wife, Mrs. MB, 

and one specification of assault consummated by battery 

upon a fellow airman, Senior Airman (SrA) BB, in violation 

of Article 128, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 928 (2012).2 The panel acquitted Bowen of two 

specifications of assault with a dangerous weapon, one 

specification of assault consummated by battery upon Mrs. 

MB, and one specification of communicating a threat, in 

violation of Articles 128, UCMJ, and Article 134, UCMJ, 10 

U.S.C. §§ 928, 934 (2012). Bowen was sentenced to one year 

of confinement and reduction to the lowest enlisted grade. 

The convening authority approved the sentence as adjudged 

but waived the mandatory forfeitures in the amount of $800 

for the benefit of Bowen’s dependent child. The United 

States Air Force Court of Criminal Appeals (CCA) affirmed 

the findings and the sentence. United States v. Bowen, No. 

ACM 38616, 2015 CCA LEXIS 453, at *15, 2015 WL 

6655193, at *6 (A.F. Ct. Crim. App. Oct. 26, 2015).

Military Rule of Evidence (M.R.E.) 803 contains the 

“excited utterance” exception to the hearsay rule and 

provides for the admissibility of “[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.” M.R.E. 803(2). We granted review in this case to 

determine whether the military judge abused his discretion

when he permitted evidence that the victim nodded her head 

to be admitted under the excited utterance exception.3 We 

 2 With respect to the specification of aggravated assault, the 

panel excepted the words “pushing her into a wall and furniture, 

kicking her in the face, and” and found Bowen not guilty of the 

excepted words. With respect to the specification of assault 

consummated by battery, the panel excepted the words “his 

hands, choke him, and push him into a wall and furniture,” 

substituted “his hands and choke him,” and found him not guilty 

of the excepted words and guilty of the substituted words. 

3 We specified the following issue:

Whether the military judge erred in applying the 

“excited utterance” exception to the hearsay rule to 

permit the government to introduce through the 

testimony of law enforcement personnel that 

Appellant’s wife nodded her head in response to a 

question whether her husband “did this,” and in 

concluding that the prejudicial effect of this testimony 

was outweighed by its probative value. See M.R.E. 802 
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

3

hold that, under the circumstances of this case, the military 

judge abused his discretion by admitting the hearsay 

testimony under M.R.E. 803(2) without adequately 

considering the victim’s mental capacity at the time in 

question. We therefore reverse the military judge and the 

CCA.

BACKGROUND

On November 24, 2013, Bowen, Mrs. MB, and SrA BB 

attended a party together where all three consumed alcohol. 

At some point during the night, Bowen became ill from 

excessive alcohol consumption and was escorted home

between midnight and 2:00 a.m. by several partygoers, 

including his wife (Mrs. MB) and SrA BB. Once at the 

Bowens’ residence, Bowen was placed on the couch. The 

party attendees who had helped Bowen then left the 

Bowens’ residence, leaving only Mrs. MB, SrA BB, and 

Bowen at the house. 

According to SrA BB, after they returned to the Bowens’ 

residence, he and Mrs. MB took more shots of alcohol while 

Bowen slept on the couch. Eventually, SrA BB and Mrs. MB 

retired to the guest bedroom together and locked the door. 

They were engaging in sexual activity when they heard

Bowen banging on the door and asking if Mrs. MB was in 

the guest room with SrA BB. Bowen broke through the 

locked door, pulled the blanket off of Mrs. MB and SrA BB, 

and asked why they were naked in bed together. 

SrA BB testified that Bowen became angry, slapped and 

hit Mrs. MB, grabbed her by the hair and threw her out of 

the guest bedroom toward the front door, causing her to 

strike the wall and rendering her unresponsive. SrA BB 

asserted that he tried to stop Bowen, at which point the two 

of them got into a physical altercation. According to SrA BB,

Bowen continued to strike Mrs. MB even after she remained 

unresponsive. SrA BB fled the house and went straight to 

Security Forces. SrA BB arrived at Security Forces at 

approximately 6:00 a.m. and reported that Mrs. MB was 

being assaulted by Bowen. 

 

and 803(2); M.R.E. 403; United States v. Donaldson, 58 

M.J. 477 ([C.A.A.F.] 2003); United States v. Jones, 30 

M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 

M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 

F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 

(1981).
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

4

At 6:04 a.m., the Bowens’ neighbors heard a “loud boom,” 

followed by Mrs. MB’s screams in “tremendous pain” from 

the bathroom or the bedroom area of the Bowens’ home. The 

neighbors heard screams for help, the sound of bathwater 

running, and a male voice saying “why are you naked in the 

front bedroom?” Soon after hearing these noises, the 

neighbors called Security Forces to report the disturbance. 

Security Forces responded to the residence and were let 

into the house by Bowen, who appeared disoriented. 

Technical Sergeant (TSgt) VAC inspected the house and 

found Mrs. MB unconscious in the bathtub of the master 

bedroom. Mrs. MB’s 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. TSgt VAC initially 

thought Mrs. MB was dead, but realized she was still alive 

when she heard her groan. TSgt VAC and Staff Sergeant 

(SSgt) T lifted Mrs. MB out of the bathtub and placed her on 

the bed in the master bedroom. At that point Mrs. MB was 

only partially conscious. SSgt T asked Mrs. MB if her 

husband “did this” to her. Mrs. MB nodded her head, which 

indicated an affirmative response to the law enforcement

personnel. Mrs. MB was taken to the hospital where her 

blood alcohol level was registered at “221.” As a result of the 

assault, Mrs. MB suffered a subdural hematoma, a 

traumatic brain injury, seventy percent visual loss, the loss 

of her sense of smell, and other lesser physical injuries. A 

craniotomy was required to reduce the swelling in her brain. 

Bowen was charged with three specifications of assault 

against Mrs. MB, two specifications of assault against SrA 

BB, and one specification of communicating a threat. Before 

trial, Bowen raised an oral motion in limine to prevent the 

Government from introducing Mrs. MB’s head nod under the 

excited utterance exception. Over defense counsel’s 

objection, the military judge permitted TSgt VAC to testify 

that Mrs. MB nodded her head when SSgt T asked whether 

her husband “did this” to her. The military judge did not 

issue a written ruling, but from the bench explained:

 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 [that]

although Mrs. [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 
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

5

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.

 The court finds that [the head nod] does fall 

under the excited utterance exception to hearsay, 

so the court will allow Sergeant [VAC] to testify to 

the head nod in response to the question.

After a recess, the military judge supplemented his 

ruling by adding:

 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. 

At trial, the Government presented, in relevant part, 

TSgt VAC’s testimony as a first responder to the incident,

the testimony of the neighbors regarding what they heard 

the night of the assault, and SrA BB’s eyewitness account 

under a grant of immunity. The Government also revealed a 

prior instance of domestic violence between Bowen and Mrs. 

MB. 

Although the Government called Mrs. MB to testify, she

only had a vague recollection of the events on the night of 

the assault. Mrs. MB remembered lying on the floor by the 

couch in the living room and hearing Bowen and SrA BB 

fighting. Mrs. MB recalled Bowen yelling at SrA BB “what 

did you do to her?” and “what happened to her?” Mrs. MB 

also remembered getting up from the floor and walking 

toward the front door before falling near the entryway. Mrs. 

MB recalled being in the shower, feeling cold water, and 

believing that Bowen was concerned and taking care of her. 
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

6

However, Mrs. MB relayed that she was confused at that 

time and “couldn’t explain to him.” Mrs. MB had no memory 

of speaking with investigators and stated that, if she had 

any conversations with Security Forces, her statements were 

not reliable since she was “[a]bsolutely not” in her right 

state of mind. 

At trial, Bowen theorized that SrA BB was the 

perpetrator of the assault on Mrs. MB. Trial defense counsel 

emphasized the inconsistencies in SrA BB’s story, that SrA 

BB’s demeanor upon arrival at Security Forces did not 

match the seriousness of the report he was making, and the 

fact that SrA testified under a grant of immunity. 

Furthermore, although the neighbors heard a male and a 

female voice, trial defense counsel noted that the neighbors 

had no way of knowing for sure whether the male’s voice 

was Bowen’s. Mrs. MB also testified during crossexamination that she did not believe her husband would 

harm her in this way. 

ISSUE AND ARGUMENTS

We specified an issue in this case to determine whether 

the military judge abused his discretion by admitting TSgt 

VAC’s testimony that Mrs. MB nodded her head after SSgt T

asked whether Bowen “did this” to her under the “excited 

utterance” exception to the hearsay rule.4

Bowen argues that the military judge abused his 

discretion by admitting TSgt VAC’s hearsay testimony 

because Mrs. MB was not in an excited state when she made 

the nonverbal statement. Bowen also emphasizes that Mrs. 

MB’s statement was made in response to highly suggestive, 

vague, and closed-ended questioning by law enforcement

and, therefore, was not sufficiently spontaneous to be 

admitted under the M.R.E. 803(2) hearsay exception. 

Finally, because the trial was closely contested and the 

Government’s case relied primarily on circumstantial 

evidence and a single eyewitness with a motive to lie, Bowen 

urges the court to conclude this error prejudiced his 

substantial rights.

 4 Our specified issue also granted review of the military 

judge’s M.R.E. 403 determination that the admitted testimony 

was not more prejudicial than probative. However, because we 

conclude that the testimony was erroneously admitted under 

M.R.E. 803(2), we do not reach the M.R.E. 403 question.
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

7

The Government counters by asserting that the military 

judge’s findings of fact are supported by the record and, 

based on those factual findings, the military judge correctly 

applied the law in order to conclude the challenged hearsay 

was admissible as an excited utterance. The Government

argues that the neighbors’ testimony that they heard 

screams coupled with the fact that the investigators found 

Mrs. MB unconscious and badly beaten supports the 

military judge’s conclusion that a startling or stressful event 

occurred and Mrs. MB was under the stress of that event 

when she nodded her head. Furthermore, according to the 

Government, the evidence does not support a finding that 

Mrs. MB’s statement was the product of reflection and 

deliberation since Mrs. MB was largely unresponsive just 

moments before she made the statement. Finally, the 

Government contends that, even if the statement was 

erroneously admitted, there was no prejudice to Bowen since 

the Government presented a strong case against him, which 

was not effectively combated by trial defense counsel.

DISCUSSION

“A military judge’s decision to admit or exclude evidence 

is reviewed for an abuse of discretion.” United States v. 

McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). “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.” United States v. Donaldson, 58 M.J. 477, 482 

(C.A.A.F. 2003). “Whether an error, constitutional or 

otherwise, was harmless is a question of law that we review 

de novo.... For nonconstitutional errors, the Government 

must demonstrate that the error did not have a substantial 

influence on the findings.” McCollum, 58 M.J. at 342.

I. Admissibility Under the Excited Utterance Exception

“A statement5 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 

exception to the general prohibition on hearsay. M.R.E. 

803(2) (footnote added); see Manual for Courts-Martial,

United States, Analysis of the Military Rules of Evidence

 5 A “statement” includes an “(1) oral or written assertion or (2) 

nonverbal conduct of a person, if it is intended by the person as an 

assertion.” M.R.E. 801(a). The parties stipulated that the head 

nod in this case constitutes a statement. See Bowen, 2015 CCA 

LEXIS 453, at *10 n.3, 2015 WL 6655193, at *4 n.3.
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

8

app. 22 at A22-55 (2012 ed.) (“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); White v. Illinois, 502 U.S. 346, 357 

(1992) (“a statement that qualifies for admission under a 

‘firmly rooted’ hearsay exception is so trustworthy that 

adversarial testing can be expected to add little to its 

reliability”). This court’s predecessor adopted a threepronged test to determine whether a hearsay statement 

qualifies 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.” United 

States v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987) (citations 

omitted) (internal quotation marks omitted). Relevant to the 

third prong of this inquiry is “the physical and mental 

condition of the declarant.” Donaldson, 58 M.J. at 483. 

 We recognize that, under certain circumstances, a 

nonverbal hearsay statement such as a head nod might 

qualify as an excited utterance. See, e.g., Miller v. State, No. 

12-12-00401-CR, 2013 Tex. App. LEXIS 7679, at *7, 2013 

WL 3243539, at *3 (Tex. Ct. App. June 25, 2013) (mem. op., 

not designated for publication) (upholding eye blinks as 

excited utterances). However, given the extent of the 

declarant’s injuries in this case—including a subdural 

hematoma, a traumatic brain injury, seventy percent loss of 

vision, and the loss of smell—and the fact that her blood 

alcohol level was nearly three times the legal limit

permitted for driving, whether Mrs. MB was mentally 

capable of understanding the question posed to her when 

she nodded her head is critical to deciding whether her 

nonverbal statement was admissible as an excited utterance.

Thus, our review of the evidentiary ruling in this case 

necessitates determining whether the military judge 

adequately considered Mrs. MB’s physical and mental 

condition. 

In ruling that the head nod was admissible, the military 

judge referenced the “shouting and banging heard” by the 

Bowens’ neighbors “combined with Ms. [MB’s] physical 

condition when law enforcement arrived.” Following a short 
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

9

recess, the military judge provided a more detailed 

explanation for this conclusion:

 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 court finds that in light of those facts the 

court can conclude that Ms. [MB] was in an excited, 

nervous, or stressful state at the time she nodded 

her head in response to the question by security 

forces.

From these findings we are unable to conclude that the 

military judge properly considered Mrs. MB’s mental 

capacity as it pertained to the admissibility of the head nod. 

Quite to the contrary, the military judge’s recognition that 

Mrs. MB was “in no position to testify about her own mental 

state [on the night in question] and, certainly, was in no 

physical condition to manifest outward expressions of 

excitement,” undermines the conclusion that the declarant 

was under the stress of excitement caused by the event.

Furthermore, as even Mrs. MB testified, her memory of the 

events on the night in question was vague and, if she had 

any conversations with Security Forces personnel that night 

her statements were unreliable since she was “[a]bsolutely 

not” in her right state of mind.

For these reasons, the military judge’s brief reference to 

Mrs. MB’s mental capacity is insufficient to assure us that 

he properly considered whether the head nod satisfied the 

third prong of the Arnold test. By failing to adequately 

address Mrs. MB’s mental capacity—a critical aspect of the 

admissibility determination under these circumstances—the 
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

10

military judge committed legal error and, thus, abused his 

discretion.6

II. Prejudice

“[A] finding or sentence of a court-martial may not be 

held incorrect on the ground of an error of law unless the 

error materially prejudices the substantial rights of the 

accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012). We 

evaluate the harmlessness of an evidentiary ruling by 

weighing: “(1) the strength of the Government’s case, (2) the 

strength of the defense case, (3) the materiality of the 

evidence in question, and (4) the quality of the evidence in 

question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.

1999).

Applying the Kerr factors, we lack confidence that the 

panel members were not influenced by the improper hearsay 

testimony in this case. Id. The record demonstrates a closely 

contested court-martial, the outcome of which turned on the 

panel’s resolution of who caused Mrs. MB’s injuries. The 

Government’s case against Bowen included the eyewitness 

testimony of SrA BB and “earwitness” testimony from the 

Bowens’ neighbors, which generally corroborated the 

timeline established by SrA BB. The neighbors testified that 

they heard a male voice saying “why are you naked in the 

front bedroom?” which also supported SrA BB’s version of 

events. Additionally, the Government uncovered a prior 

instance of domestic violence between Bowen and his wife. 

By comparison, Bowen contended that SrA BB was 

responsible for Mrs. MB’s injuries. In support of this theory, 

trial defense counsel emphasized the inconsistencies in SrA 

BB’s story, his strange appearance to Security Forces 

investigators, and that he was testifying under a grant of 

immunity. Also, despite the prior domestic disturbance, Mrs. 

MB did not believe her husband would harm her in this way. 

Finally, Mrs. MB testified that while she was in the bathtub, 

she believed Bowen was taking care of her instead of trying 

to harm her. Ultimately, the panel acquitted Bowen of four 

of the six specifications charged.

 6 Due to the absence of sufficient facts pertaining to Mrs. MB’s 

mental state at the time in question, we are unable to render a 

legal determination as to Mrs. MB’s competence. We therefore 

reverse without making that determination.
United States v. Bowen, No. 16-0229/AF

Opinion of the Court

11

The hearsay evidence was also likely material to the 

panel’s resolution of key issues in the case. In particular, the 

identity of the perpetrator was a central issue at the courtmartial. Thus, the introduction of TSgt VAC’s testimony 

that Mrs. MB responded to the question of whether her 

husband “did this” to her with a head nod in affirmation—

opposed to her simply groaning and making sounds—was 

presumably a compelling piece of evidence in the minds of 

the panel members. Moreover, trial counsel emphasized this 

evidence during closing statements by telling the members, 

“[TSgt VAC] approached [Mrs. MB], ... [a]nd she asked the 

question, did your husband do this to you? [Mrs. MB] nodded 

her head affirmatively and she groaned. There were two 

eyewitnesses.” 

Upon this foundation, we lack confidence that Mrs. MB’s 

head nod identifying Bowen as her attacker did not 

materially prejudice the panel’s conclusion that Bowen was 

guilty of assault against Mrs. MB. Moreover, we conclude 

that the evidence had a prejudicial impact on Bowen’s 

conviction for assault against SrA BB. SrA BB—the 

Government’s key witness—had apparent motives to lie 

about the events during the hours in question. Coupled with 

trial defense counsel’s credibility attacks against this 

witness, without Mrs. MB’s head nod tending to support SrA 

BB’s version of events, it is unclear if the members would 

have deemed SrA BB credible enough to convict Bowen of 

the assault against his fellow airman.

Consequently, we conclude that the erroneous admission 

of Mrs. MB’s head nod identifying Bowen as her attacker 

materially prejudiced Bowen’s substantial rights in this 

case. 

DECISION

The specified issue is answered in the affirmative. The 

decision of the United States Air Force Court of Criminal 

Appeals is reversed. The findings of guilty to Charge I, 

Specifications 3 and 4, and the sentence are set aside. The 

record of trial is returned to the Judge Advocate General of 

the Air Force with authorization for a rehearing on Charge 

I, Specifications 3 and 4.