Excited utterances at trial and on appeal: United States v. Kindschi

When there is no eyewitness to the charged act itself, sexual assault prosecutions under UCMJ art. 120, 10 U.S.C. § 920, often rise or fall on what the complaining witness told other people shortly afterward. Those statements are hearsay. The government gets them in, if at all, through an exception. The workhorse exception is the excited utterance, and the Army Court of Criminal Appeals (ACCA) has just given us a useful look at how these fights play out at trial and on appeal. *United States v. Kindschi*, ARMY 20240417, 2026 CCA LEXIS 281 (A. Ct. Crim. App. 16 Jun. 2026) (unpub.).

The case

A military judge (MJ) sitting alone convicted a sergeant, contrary to his pleas, of two specifications of abusive sexual contact and one specification of assault with intent to commit sexual assault, in violation of UCMJ arts. 120 and 128, 10 U.S.C. §§ 920 and 928. The events occurred on deployment in Poland, first in the bunk area of a tent during a movie and then outside against a generator. The MJ sentenced the sergeant to a bad-conduct discharge, 120 days of confinement, total forfeitures, and reduction to E-1.

Two hearsay rulings drove the appeal. First, the complaining witness left the tent, found a specialist, and, while described as scared, shaken, and hyperventilating, said the appellant tried to kiss her. Second, the next morning she discovered a bruise on her inner thigh, “started crying even more,” found a corporal, and after calming down enough to be coherent gave a fuller account and attributed the bruise to the appellant. The defense objected to both statements as hearsay. The MJ held two Article 39(a) sessions, made findings on the record, and admitted both statements under Rule 803(2), Military Rules of Evidence (Mil. R. Evid.), Manual for Courts-Martial, United States (2024 ed.), the excited utterance exception.

The first statement: deference earned on the record

ACCA reviewed the rulings for abuse of discretion, citing *United States v. Henry*, 81 M.J. 91, 95 (C.A.A.F. 2020), and applied the familiar three-part foundation from *Henry*, 81 M.J. at 96: the statement must be spontaneous rather than the product of reflection, the event must be startling, and the declarant must still be under the stress of excitement the event caused. For the third element, courts weigh the six *Donaldson* factors, including lapse of time and the declarant’s physical and mental condition. *United States v. Donaldson*, 58 M.J. 477, 483 (C.A.A.F. 2003).

The defense had a real timeline argument. The complaining witness testified she stayed in the bunk area for what felt like two or three minutes before leaving to get help. Eyewitnesses put it at fifteen to twenty minutes and described her as “normal.” The MJ resolved the conflict on the record, discounting the bunk-room witnesses because they were watching a movie in a dark tent and crediting the specialist, who was actually focused on her. He also noted that the appellant’s parting instruction, to meet him at his bed at 2 or 3 in the morning, kept the fear alive. ACCA affirmed, and its reasoning contains the practice point: when an MJ lays out facts, analysis, and findings on the record, the appellate court gives the ruling more deference. *United States v. Smith*, 83 M.J. 350, 355 (C.A.A.F. 2023). A thin record cuts the other way. Trial counsel on both sides should treat the Article 39(a) session as the whole ballgame, because it usually is.

The second statement: assume error, find no prejudice

The next-morning statement to the corporal was the more interesting issue. Hours had passed. The complaining witness had slept, or at least had the night to reflect. The government’s theory had to be that discovering the bruise renewed the excitement, a doctrine *Donaldson* acknowledges but treats warily, since the whole premise of the exception weakens once a declarant has had the opportunity to deliberate. *Donaldson*, 58 M.J. at 483.

ACCA called this “a closer call” and then declined to decide it. Instead the court assumed error and tested for prejudice under the four-factor framework of *United States v. Kohlbek*, 78 M.J. 326, 334 (C.A.A.F. 2019): strength of the government’s case, strength of the defense case, and the materiality and quality of the contested evidence. Because the declarant testified and faced cross-examination, the error was nonconstitutional, so the question was whether it had a substantial influence on the findings. *See United States v. Pablo*, 53 M.J. 356, 359 (C.A.A.F. 2000). The court found the government’s case strong, the defense case built on minor inconsistencies, and the corporal’s account both less detailed than the in-court testimony and silent on the tent specifications entirely. No prejudice, findings and sentence affirmed.

What appellants and counsel should take from Kindschi

Three things. First, excited utterance litigation is won or lost on the trial record. Nail down the timeline through cross, and force the MJ to make findings; deference flows to reasoned rulings and away from bare ones. Second, the “renewed excitement” theory for next-day statements remains unsettled in the military courts. ACCA had a clean opportunity to draw a line and chose the prejudice off-ramp instead, which means the issue is still live for a case where the hearsay actually mattered. Third, prejudice is where most evidentiary appeals die. An appellate court that can call a ruling a close question and still affirm has told you what the real battlefield is: showing that the contested statement carried weight the rest of the record did not.

We litigate hearsay and confrontation issues at trial and on appeal, including in Article 120 sexual assault courts-martial and Article 128 assault cases, where excited utterance fights are routine. If you have been convicted and want an honest assessment of the evidentiary issues in your record, start with our overview of court-martial appeals under the UCMJ.