United States, Appellee

                                        v.

                   David H. DONALDSON, JR., Sergeant
                          U.S. Army, Appellant


                                  No. 02-0931

                          Crim. App. No. 9900544

________________________________________________________________

       United States Court of Appeals for the Armed Forces

                        Argued April 9, 2003

                        Decided July 15, 2003

     BAKER, J. delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, and ERDMANN, JJ., joined. EFFRON, J.,
filed a separate opinion concurring in part and in the result.

                                    Counsel

For Appellant: Captain Gregory M. Kelch (argued);
Colonel Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler,
Jr. and Major Imogene M. Jamison (on brief).

For Appellee: Captain Matthew J. Maclean (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and
Major Jennifer H. McGee (on brief).




Military Judge: James J. Smith


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Donaldson, No. 02-0931/AR


       Judge BAKER delivered the opinion of the Court.

       In accordance with his pleas, Appellant was convicted by a

military judge, sitting as a general court-martial, of failure

to report, disobeying an officer, disobeying a noncommissioned

officer (three specifications), disrespect to a noncommissioned

officer, failure to obey a lawful general regulation, driving

while intoxicated, cocaine use (two specifications), assault

(two specifications), adultery, breaking restriction, and

disorderly conduct, in violation of Articles 86, 90, 91, 92,

111, 112a, 128, and 134, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 891, 892, 911, 912a,

928, 934 (2000), respectively.    Contrary to his pleas, Appellant

was convicted of indecent acts with a child less than sixteen

years of age and communicating a threat, in violation of Article

134.

       The adjudged sentence included seven years’ confinement, a

reduction to the lowest enlisted grade, forfeiture of all pay

and allowances, and a dishonorable discharge.    The convening

authority reduced the confinement to seventy-eight months, but

otherwise approved the adjudged sentence.    He also granted

Appellant 239 days of credit against his sentence to

confinement.    The Army Court of Criminal Appeals affirmed the

findings of guilty and the sentence in an unpublished opinion.




                                  2
United States v. Donaldson, No. 02-0931/AR


United States v. Donaldson, ARMY No. 9900544 (A. Ct. Crim. App.

June 10, 2002).     We granted review on the following issue:

      WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
      HOLDING THAT THE HEARSAY TESTIMONY OF BT WAS
      ADMISSIBLE UNDER MILITARY RULE OF EVIDENCE
      [HEREINAFTER M.R.E.] 803(2), THAT THE HEARSAY
      TESTIMONY OF DR. ROGERS WAS ADMISSIBLE UNDER M.R.E.
      803(4), AND THAT THE HEARSAY TESTIMONY OF DR. ROGERS
      AND INVESTIGATOR BASS-CAINE WAS ADMISSIBLE UNDER
      M.R.E. 803(24).∗

      We hold that the Court of Criminal Appeals did not err in

holding J's statements to BT admissible as excited utterances

under M.R.E. 803(2).      We further conclude that the court

correctly held that J's statements to Dr. Carrie Rogers were

admissible under M.R.E. 803(4) as statements made for purposes

of medical diagnosis or treatment.         As such, we do not address

whether these statements to Dr. Rogers would have been

admissible under M.R.E. 807.        Finally, we hold that J's

statements to Investigator Tracy Bass-Caine were properly

admitted as residual hearsay under M.R.E. 807.           As a result, we

affirm the lower court's opinion.




∗
  Pursuant to the June 1999 Amendments to the Military Rules of Evidence,
M.R.E.s 803(24) and 804(b)(5) were combined and promulgated as M.R.E. 807.
Stephen A. Saltzburg et al., Military Rules of Evidence Manual 228-29 (4th
ed. & Supp. 2002). The change did not alter the meaning or application of
the residual hearsay exception. 

this change and to avoid
confusion, this opinion will refer to M.R.E. 807 in lieu of 803(24), even
though the military judge and the Court of Criminal Appeals referred to the
rule as 803(24).


                                      3
United States v. Donaldson, No. 02-0931/AR


                                 FACTS

     The alleged errors underlying this appeal relate to the

military judge's decision to allow several witnesses to testify

about the hearsay statements of a three-year-old victim, J. The

relevant statements concerned indecent acts committed by

Appellant on the victim and threats Appellant made to her to

keep her from reporting his misconduct.

     At the time of the offenses J lived with her single mother,

BT, and her brother John.   Also residing in the home was

Appellant's girlfriend, SK, who rented a room and helped pay the

bills.   Because SK lived with the family, Appellant frequently

spent time in the home.

     At approximately 7:00 a.m. on November 11, 1996, BT was

getting ready to go to a 9:00 a.m. doctor's appointment.    While

she was getting ready, J was running back and forth in the

hallway between her mother's bedroom and SK's bedroom.    SK was

taking a shower and getting ready in another room, and Appellant

was in SK's bedroom.   BT testified that she periodically called

out to J to find out what she was doing.    In response to BT's

inquiry, J responded, "I'm up here in [SK's] room."

     At about 8:00 a.m., BT was ready to depart her residence

with J to go to the doctor's appointment.    At that time, she

noticed that J was unusually quiet.   BT testified that

throughout the rest of the day, J was very "cling[y]," would not


                                 4
United States v. Donaldson, No. 02-0931/AR


urinate, wanted to be carried, and would not let ”[me] get out

of her sight."    After the doctor's appointment, BT and J went to

the mall and then returned home.       Ms. Elaine Sandreth, a friend,

accompanied BT and J to the doctor's office and to the mall.

     That evening, at approximately 7:00 p.m., BT gave J a bath.

At one point, BT attempted to wash between J's legs, but J

resisted saying, "No, no, no."    After getting J out of the

bathtub, BT started drying J off.      When BT attempted to dry J's

vaginal area, J began to cry.    BT attempted to look between J's

legs to see what was wrong.    According to BT, J again resisted,

held her legs together, and became "really hysterical, crying

and even more."   After several minutes, BT was able to calm J

down and look between her legs.    She testified that the skin in

the vaginal area was "real raw, red and irritated."      She further

stated that J became "very, very hysterical . . . screaming and

crying."   When BT asked her what was the matter, J stated, "Him

touched me."   When BT asked her who had touched her, J stated

"Him, Dave."   BT then asked her, "What do you mean Dave touched

you?"   J responded by pointing to the top part of her vaginal

area with her little finger.    J also stated that the touching

had occurred that morning.    When BT asked J why she did not tell

her that Appellant had touched her, J responded, "Him said he

would kill you, John and me, if I told you."      Appellant was the

only "Dave" J knew.


                                   5
United States v. Donaldson, No. 02-0931/AR


     After J calmed down, BT called her sister to discuss J's

statement.   Her sister advised her to call the police.   BT also

called a friend who came over to discuss the situation.      BT then

proceeded to call the police.    While waiting for the police to

arrive, BT called SK at work and told her to come home because

they needed to talk.

     The police eventually arrived and began filling out a

report.   SK also came in, and SK and BT began arguing over

Appellant's inappropriate touching of J.    J was present during

the argument, and BT testified that J was "very nervous . . .

[and] a little bit upset."    At one point, J put her hands over

her ears while BT and SK yelled at each other.    Finally,

Investigator Bass-Caine, a child abuse investigation specialist

from the Fayetteville Police Department, arrived to help with

the investigation.

     Investigator Bass-Caine took J into a bedroom and

interviewed her privately.    Investigator Bass-Caine asked J who

lived in the house.    J told her that her brother and mother

lived in the house, as did SK and "Dave."    Investigator Bass-

Caine testified that when J mentioned Appellant's name, she

stated that she did not like him.     Investigator Bass-Caine asked

her why she did not like Appellant, to which J responded,

"Because Dave hurt me."    Investigator Bass-Caine testified that

when she asked J how Appellant had hurt her, J pointed to her


                                  6
United States v. Donaldson, No. 02-0931/AR


vaginal area and stated, "He touched me.    He touched me there."

When Investigator Bass-Caine asked her whether Appellant had

touched "the inside or the outside," J "laid back on the bed,

pulled her panties to the side, and stuck her finger . . . real

close in her vaginal area."    Investigator Bass-Caine testified

that she was surprised at J's reaction in leaning over and

revealing her private parts.    She stated that she had never seen

another child abuse victim respond in such an "animated" manner.

She further testified that J did not appear to be upset at the

time she related this information to her.

       After Investigator Bass-Caine completed her report, the

officers left.    BT did not take J to the doctor that evening,

but waited until the next morning to have a physician examine

her.    An examination revealed that there "was no evidence of

bruising, no evidence of any discharge, no evidence of any

swelling or any laceration."    The examination further noted that

J's "anatomy was normal, only some minor erythema or redness.”

The doctor was unable to determine whether there was any digital

penetration.    The doctor further testified that the redness

could have been caused by any number of things.

       In the months following the incident, BT noticed a change

in J.    J began "wetting the bed, walking in her sleep, having

nightmares, [she] did not want to be alone, didn't want [BT] out

of her sight."    In addition, J began throwing things, acting


                                  7
United States v. Donaldson, No. 02-0931/AR


out, and physically hurting herself.     Finally, J was still very

clingy, and was traumatized each time she saw a black Nissan

pickup truck, similar to the one driven by Appellant.

     Because of J's declining behavior, BT took J to see a child

clinical psychologist, Dr. Rogers.     BT told J that they "were

going to see a doctor who would help her get better and get over

the nightmares and the rages, the crying."     In January 1997, J

had her first meeting with Dr. Rogers.     Dr. Rogers testified

that she told J that she was "not a shot doctor and not a doctor

that looks in ears and at teeth; but a doctor that talks about

feelings and worries.”    Her testimony in this respect, however,

was contradicted by her answers on cross-examination and re-

cross-examination.   In response to several of defense counsel's

questions, Dr. Rogers stated that she did not remember exactly

what she told J.   She added that she was not sure whether J knew

why her mother had brought her or what kind of doctor she was.

     J met with Dr. Rogers in the early part of 1997 and then

again in late 1998, in all meeting with her 13 times.     During

the sessions, Dr. Rogers talked with J.     She also frequently

played with J on the floor or drew pictures with her.     Dr.

Rogers testified that during the second session, J told her that

"Dave" had touched her.   She further testified that, in a later

session, J told her, while pointing to her vaginal area, that

"[Dave] put his finger on [her]."     The doctor stated that a


                                  8
United States v. Donaldson, No. 02-0931/AR


"recurring theme" during these sessions "was that [Dave] had

said if [J] talked about what had happened, he was going to get

her, hurt her, her family."   To aid J in discussing the abuse,

Dr. Rogers would have J draw pictures about the incident.       On

several occasions, J drew pictures of Appellant, "describing him

as mean and ugly, drew him as a worm, as a monster[.]”     On

occasion, J would yell at these drawings or stomp on them.

     Appellant was eventually charged with committing indecent

acts upon J and communicating a threat to her.   At trial, the

Government sought to have BT, Investigator Bass-Caine, and Dr.

Rogers testify regarding J's statements to them under various

exceptions to the hearsay rule.   To prevent the hearsay

testimony, Appellant submitted a motion in limine, arguing that

J's hearsay statements were not admissible under M.R.E.s 803(2),

807, or 803(4).   During a hearing on the motion, pursuant to

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), the Government

argued that J's statements to her mother and Investigator Bass-

Caine were admissible as excited utterances under M.R.E. 803(2).

The Government further maintained that J's statements to Dr.

Rogers were admissible under M.R.E. 803(4) as statements made

for the purpose of medical diagnosis or treatment.

     J testified during the hearing and on the merits, but

neither trial counsel on direct examination, nor defense counsel

on cross-examination, could get her to discuss the facts


                                  9
United States v. Donaldson, No. 02-0931/AR


relevant to the charged offenses.    She discussed general details

about her life and family, but was unable or unwilling to

elaborate on her relationship with Appellant, SK, or Dr. Rogers.

     After the Article 39(a) session, the military judge denied

the defense motion.   The military judge concluded that J's

statements to her mother and Investigator Bass-Caine were

admissible as excited utterances.    In reaching this conclusion,

the judge found that the statements related to a startling event

(Appellant's indecent touching and threat) and that "they were

made while [J] was still under the stress and excitement caused

by the event, and they were not the result of reflection or

fabrication."

     As to J's statements to Dr. Rogers, the judge determined

that they were admissible under M.R.E. 803(4).   In reaching this

conclusion, the military judge made several findings.   First, he

found that Dr. Rogers "told the victim that her role was to help

the victim feel better."   He also found that "J understood that

Dr. Rogers was her doctor, and that she went to Dr. Rogers to

feel better."   The judge therefore reasoned that J made the

statements for the purpose of medical diagnosis with "some

expectation of receiving a medical benefit."   Finally, in the

alternative, the judge determined that all three statements were

admissible as residual hearsay under M.R.E. 807.   In making this




                                10
United States v. Donaldson, No. 02-0931/AR


determination, the judge did not make specific findings of fact,

but stated:

          In the alternative, all of these statements were
     admissible because the victim testified at trial, was
     subject to confrontation and cross-examination, and
     the totality of the circumstances indicated that the
     statements were trustworthy. The court determined
     that (A) the statements were offered as evidence of
     material facts; (B) the statements were more probative
     on the points for which they were offered than any
     other evidence the government could procure through
     reasonable efforts; and (C) the general purpose of the
     rules of evidence and the interests of justice were
     best served by admission of the statements into
     evidence[.]

     The Army Court of Criminal Appeals in affirming the

military judge's decision, held that J's statements to her

mother were excited utterances under M.R.E. 803(2).      Donaldson,

ARMY No. 9900544, slip op. at 5-6.     The court also agreed that

J's statements to Dr. Rogers were admissible under M.R.E.

803(4).    The court, however, held that J's statements to

Investigator Bass-Caine were not excited utterances.      The court

found that J made the statements "in a calm, matter-of-fact

manner and, thus, [the statements were] made as a result of

recall not as a result of the event."     

  The court

therefore concluded: "The circumstances surrounding [J's]

statement and the nature of her responses to Investigator Bass-

Caine's questioning, convinces us that they were reflective and

not made under the stress or excitement of events from the

past."    

States v. LeMere, 

, 68


                                  11
United States v. Donaldson, No. 02-0931/AR


(C.M.A. 1986)).    Nevertheless, the court affirmed the military

judge's conclusion that J's statements to Investigator Bass-

Caine were admissible as residual hearsay under M.R.E. 807.       

       In his appeal to this Court, Appellant again asserts that

J's statements to her mother, Dr. Rogers, and Investigator Bass-

Caine are inadmissible hearsay statements.     He argues that J's

statements to her mother were not made under the stress or

excitement of a startling event.      Specifically, he asserts that

considering the significant time gap between the event and J's

statement, J's statements to her mother were made upon

reflection.    Second, Appellant maintains that J's statements to

Dr. Rogers "were not made with the understanding that if she

were truthful, she would be helped."     Finally, Appellant asserts

that J's statements to Investigator Bass-Caine lacked

"equivalent circumstantial guarantees of trustworthiness

comparable to other hearsay exceptions."     As such, Appellant

argues that the military judge and the lower court erred in

admitting these statements under M.R.E.s 803(2), 803(4), and

807.

       We review a military judge's ruling on the admissibility of

evidence for abuse of discretion.     United States v. Moolick, 

, 176 (C.A.A.F. 2000)(citing United States v. Hyder, 

, 48 (C.A.A.F. 1997)).    An abuse of discretion occurs


                                 12
United States v. Donaldson, No. 02-0931/AR


when a military judge either erroneously applies the law or

clearly errs in making his or her findings of fact.    United

States v. Humpherys, 

, 90 (C.A.A.F. 2002).

                            DISCUSSION

A.   Admissibility of J's Statement to BT Under M.R.E. 803(2).

     An otherwise inadmissible hearsay statement is admissible

under M.R.E. 803(2), even though the declarant is available as a

witness, if (1) the statement relates to a startling event, (2)

the declarant makes the statement while under the stress of

excitement caused by the startling event, and (3) the statement

is "‘spontaneous, excited or impulsive rather than the product

of reflection and deliberation.’" United States v. Feltham, __

M.J. ___ (C.A.A.F. 2003); United States v. Arnold, 

,

132 (C.M.A. 1987)(quoting United States v. Iron Shell, 

, 86 (8th Cir. 1980), cert. denied, 

(1981)).

     Appellant does not dispute that sexual abuse accompanied by

a threat of harm would constitute a startling event.   Nor does

Appellant dispute that J’s statements related to sexual abuse

and a threat of harm.   Appellant contests the military judge’s

finding that J’s statements to BT were spontaneous statements

made under the stress or excitement of a startling event.

Citing United States v. Grant, 

, 343 (C.A.A.F. 1995),

United States v. Richmond, 

(C.M.A. 1988), and

several service courts, Appellant argues that there is a


                                13
United States v. Donaldson, No. 02-0931/AR


difference between an utterance made under stress and excitement

and one made upon sad reflection or under the trauma of having

to retell events after one has calmed down.    Under these cases,

and Judge Everett’s dissent in 

, he

contends that the latter statements do not qualify as excited

utterances.   Appellant places particular emphasis on the time

lag between the startling event and J's statement to her mother.

He asserts that J clearly had time to calm down, and her later

excitement, if any existed, was the product of trauma upon

reflection and was not an excited utterance.   Further, Appellant

distinguishes his case from Arnold by arguing that, unlike the

victim in Arnold, J “had no reason to wait until that evening to

find a ‘compassionate adult [that she could] trust.’”    He

asserts that because she was with her mother all day, she had an

opportunity to discuss the event earlier in the day.    He

therefore maintains that J’s statements were prompted by her

mother's questioning and not the stress and excitement of a

startling event.

     The argument that statements made after one has calmed down

can never be excited utterances presents an unsettled legal

question.   The "implicit premise" underlying the excited

utterance 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 the lack of


                                14
United States v. Donaldson, No. 02-0931/AR


opportunity to fabricate."   United States v. Jones, 

,

129 (C.M.A. 1990).   This premise becomes more tenuous where the

exciting influence has dissipated and one has had the

opportunity to deliberate or fabricate.   Even if one were to

have a renewal of the stress involved in the original exciting

event, the existence of a deliberative period increases the

concern that subsequent statements will be inaccurate or

contrived.   On the other hand, some courts and commentators have

accepted the premise that even after the excitement of a

startling event has dissipated, a subsequent statement may

constitute an excited utterance if a renewal of the excitement

provides an adequate safeguard against fabrication.   See United

States v. Napier, 

, 317-18 (9th Cir. 1975)

(admitting a statement as an excited utterance where the

declarant was "suddenly and unexpectedly confronted with a

photograph of her alleged assailant," even though the statement

related to a startling event that occurred a week prior); 4

Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence

§ 435, at 401-02 (2d ed. 1994)(noting the risks associated with

applying the exception after the "stress subsides," but

implicitly accepting that admission may occur under the right

conditions).

     We ultimately need not resolve the question of whether the

excited utterance exception can apply to statements made after


                                15
United States v. Donaldson, No. 02-0931/AR


the original stress of excitement caused by the event has

subsided.   We are convinced there was sufficient evidence for

the military judge to conclude that J made the statements to her

mother while she "was under the stress of excitement caused by

the event, and they were not the result of reflection or

fabrication."

     In determining whether a declarant was under the stress of

a startling event at the time of his or her statement, courts

have looked to a number of factors.   These may include: “the

lapse of time between the startling event and the statement,

whether the statement was made in response to an inquiry, the

age of the declarant, the physical and mental condition of the

declarant, the characteristics of the event, and the subject

matter of the statement.”   Reed v. Thalacker, 

,

1061 (8th Cir. 1999).   See Morgan v. Foretich, 

, 947

(4th Cir. 1988).   A lapse of time between a startling event and

an utterance, while a factor in determining whether the

declarant was under the stress of excitement caused by the

event, is not dispositive of that issue.   

(citing Garcia v. Watkins, 

, 1300 (10th Cir.

1979)); United States v. Scarpa, 

, 1017 (2d Cir.

1990); Iron 

.

     As a general proposition, where a statement relating to a

startling event does not immediately follow that event, there is


                                16
United States v. Donaldson, No. 02-0931/AR


a strong presumption against admissibility under M.R.E. 803(2).

.    However, courts have been more flexible

in cases in which the declarant is young, particularly where the

statement was made during the child's first opportunity alone

with a trusted adult.    See 

children may

stay excited longer than adults); 

(statement of 16-year-old rape victim held admissible despite at

least a 12-hour lapse between the rape and the statement);

United States v. Farley, 

, 1126 (10th Cir.

1993)(admitting statements of five-year old though one statement

was made two hours after the assault and the other at least 12

hours after the assault); 

(finding that

a four-year old’s three-hour lapse in reporting an assault was

“well within the bounds of reasonableness” for an excited

utterance); Goss v. Greer, 

, 119-20 (7th Cir.

1985)(holding that a lower court properly admitted a four-year

old's hearsay statement although she made it 12-15 hours after

the startling event); Iron 

(admitting

statement of nine-year-old victim as an excited utterance

although she made the statement one hour after the assault);

but see 

(questioning the rationale

for applying the excited utterance exception differently for

children and adults).




                                 17
United States v. Donaldson, No. 02-0931/AR


     In Appellant's case, the military judge found that J made

the statements to her mother while she "was under the stress and

excitement caused by the event.”     This finding is supported by

the facts.   It is undisputed that J was three years old at the

time of the event.   She was able to demonstrate exactly where

she claimed Appellant had touched her.    J's mother testified

that J's behavior throughout the day was abnormal.    She stated

that J was unusually quiet and clingy.    Furthermore, she

testified that when she attempted to wash J's vaginal area, J

became “hysterical.”

     As to the lapse in time, the military judge’s findings

indicate that J must have made her statement within roughly 11

to 12 hours of the abuse.   Although the lapse in time is

significant, it is made less significant by the fact that there

was evidence indicating that Appellant threatened to kill J, her

brother and her mother if she told about the abuse.    See 

.   Under the circumstances, the delay was not so

long that it was clearly erroneous for the judge to find that J

was still under the stress of a startling event.

     Finally, contrary to Appellant's contention, there were

facts supporting the military judge's finding that J and her

mother were not alone during the day.    BT testified that her

friend, Ms. Sandreth, accompanied her and J to the doctor's

office and to the mall.   She also stated that on their way home


                                18
United States v. Donaldson, No. 02-0931/AR


from the mall, they picked up J's brother.        Appellant has failed

to show that this finding was clearly erroneous.

        While the facts of United States v. Grant, 

(C.A.A.F. 1995), are similar to those present in this case,

there are significant differences that distinguish it from this

case.     Unlike the present case, the victim in Grant appeared to

be happy, was not acting abnormally, and was "'telling . . .

about all the Christmas presents she had received'" just prior

to making her hearsay statement.        

  Moreover, the

victim in Grant made her statement 36 to 48 hours after the

alleged startling event, three to four times the lapse in this

case.     

J's distressed response in this

case, the victim in Grant appeared "'very sad and teary eyed'"

when she made her statements.      

suggest

that Appellant's reliance on Grant is misplaced.

     On the facts of this case, the military judge did not

clearly err in finding that J was still under the excitement and

stress of a startling event when she made the incriminating

statements about Appellant to her mother.        Therefore, there was

no abuse of discretion in admitting the statements as excited

utterances.

B.   Admissibility of J's Statements to Dr. Rogers Under M.R.E.
     803(4).




                                   19
United States v. Donaldson, No. 02-0931/AR


     Under M.R.E. 803(4), certain hearsay statements made to

medical personnel are admissible even though the declarant is

available as a witness.    Those statements include:

     Statements made for purposes of medical diagnosis or
     treatment and described medical history, or past or
     present symptoms, pain, or sensation, or the inception
     or general character of the cause or external source
     thereof insofar as reasonably pertinent to diagnosis
     or treatment.

M.R.E. 803(4) is not limited to statements made to licensed

physicians.   In United States v. Welch, 

, 25 (C.M.A.

1987), this Court held that a victim's statements to a

psychologist fell within the scope of M.R.E. 803(4).    Several

years later, in United States v. Morgan, 

(C.M.A.

1994), we stated that under the “proper circumstances,

statements made to psychologists, social workers, and other

health care professionals may well fall within the purview of

the medical-treatment exception to the hearsay rule.”    

(citing 

).     See United States v. Haner,

, 77 (C.A.A.F. 1998).    We ultimately held in Morgan

that a victim's statements to two social workers qualified as

statements of medical diagnosis or treatment under M.R.E.

803(4).   

  Our position is consistent with a number

of federal circuits who have held that statements to

psychologists are admissible as statements for the purpose of

medical diagnosis or treatment under Fed. R. Evid. 803(4).    See



                                  20
United States v. Donaldson, No. 02-0931/AR


United States v. Yellow, 

, 1442 (8th Cir. 1994);

United States v. Newman, 

, 210 (7th Cir. 1992);

n.17.

     Statements offered under M.R.E. 803(4) must satisfy two

requirements to be admissible: “first the statements must be

made for the purposes of ‘medical diagnosis or treatment’; and

second, the patient must make the statement ‘with some

expectation of receiving medical benefit for the medical

diagnosis or treatment that is being sought.’”   United States v.

Edens, 

, 269 (C.M.A. 1990)(quoting United States v.

Deland, 

, 75 (C.M.A. 1986), cert. denied, 

(1986)).   While both requirements must be met, the "critical

question [in this inquiry] is whether [the patient] had some

expectation of treatment when she talked to the caregivers.”

.   "The key factor in determining whether a

particular statement is embraced by the medical-treatment

exception is 'the state of mind or motive of the patient in

giving the information to the physician and the expectation or

perception of the patient that if he or she gives truthful

information, it will help him or her to be healed.'"   

(quoting United States v. White, 

, 51

(C.M.A. 1987)).   In United States v. Siroky, 

, 400

(C.A.A.F. 1996), we recognized that "a small child may not be

able to articulate that he or she expects some benefit from


                                21
United States v. Donaldson, No. 02-0931/AR


treatment."    Thus, we stated that where a child is involved, "it

is often important for their caretakers to explain to them the

importance of the treatment in terms that are understandable to

the child."    

States v. Avila, 

, 66

(C.M.A. 1988)).   A military judge’s determination that a patient

made a statement for the purpose of medical diagnosis or

treatment out of an expectation of receiving medical benefit is

a question of fact that we review for clear error.   

.

     Looking only at J's visits with Dr. Rogers, there is little

evidence that J would have understood that Dr. Rogers was a

doctor from whom she could have expected some medical benefit.

Dr. Rogers testified that she did not wear a doctor’s coat, she

did not do a physical examination, she did not give shots or

take J’s temperature or blood pressure.   Further her office was

in a shopping center and not a medical facility like a hospital

or an outpatient treatment office, which might otherwise have

suggested to J that Dr. Rogers was a doctor.   Finally, she

testified that J's visits often consisted of the two of them

playing or drawing together.

     Moreover, Dr. Rogers' testimony regarding what she told J

was contradictory.   At one point she stated that she told J she

was a doctor, but not a shot doctor.   On cross-examination,

though, she stated that she did not remember exactly what she


                                 22
United States v. Donaldson, No. 02-0931/AR


told J.    She added that she was not sure whether J knew what

kind of doctor she was or why J was there.    Still later in her

testimony, the doctor testified that she was confident she told

J that she was a doctor and that her role was to help J deal

with what was bothering her and to help make things better.

Yet, on re-cross-examination, she again stated that she did not

recall what she told J.   Further, Dr. Rogers stated that she did

not know whether J understood that she was a doctor or whether J

knew why she came to Dr. Rogers' office.

     On the other hand, J's mother's testimony strongly supports

a conclusion that J had an expectation of medical benefit when

she visited with Dr. Rogers.    BT testified that before she took

J to Dr. Rogers, she told J that she was going to take her to

"see a doctor who would help her get better and get over the

nightmares and the rages, the crying."   She further stated that

J "seemed to understand" why she needed to see Dr. Rogers.

     Although a child's testimony about his or her expectation

of receiving medical benefit would normally be given great

weight, J's in-court affirmation that she went to Dr. Rogers to

get better, while relevant, is not conclusive for several

reasons.   First, she initially was unable or unwilling to

testify about why she went to see Dr. Rogers.   It was only after

trial counsel asked her whether she went to see Dr. Roger "to

feel better" that she nodded her head in the affirmative.


                                 23
United States v. Donaldson, No. 02-0931/AR


Second, when asked why she needed to get better, J was unable to

answer and only shrugged her shoulders.   Finally, it is unclear

from J's statement whether, at the time she began her counseling

sessions with Dr. Rogers, she expected a medical benefit as

required by M.R.E. 803(4).

     Based on the above testimony, the military judge made the

following findings:

          Prior to going to see Dr. Rogers, the victim’s
     mother told her that they were going to see a doctor
     who would help her get better and get over the rages,
     crying and nightmares . . . . At the beginning of the
     first session, Dr. Rogers explained to the victim that
     she was not a doctor who gives shots or looks in ears
     or at teeth, but she was a doctor who talks about
     “feelings” and “worries.” Dr. Rogers told the victim
     that her role was to help the victim feel better. The
     victim understood that Dr. Rogers was her doctor, and
     that she went to Dr. Rogers to feel better.

     Based on the totality of the evidence presented, we hold

that the military judge did not clearly err in finding that Dr.

Rogers told J she was a doctor and that she would help J feel

better.   Moreover, while we recognize that this is a close case,

the testimony of J, and particularly that of her mother, support

the judge's finding that J understood that Dr. Rogers was a

doctor and that she was going to help J get over her problems.

     Appellant argues that this case is similar to United States

v. Faciane, 

(C.M.A. 1994) and Siroky, both cases in

which we concluded that there was insufficient evidence to find

that a child/declarant had an expectation of receiving a medical


                                24
United States v. Donaldson, No. 02-0931/AR


benefit by talking with mental health professionals.         However,

we believe this case is distinguishable from Faciane and Siroky.

       In Faciane, a mother suspected her ex-husband of sexually

abusing their three-year-old 

.     She

decided to file a police report and take her daughter to a

children's counselor at an area hospital.      

   She

testified that she told her daughter that “she was going to go

see a doctor there and there would be a lady there for her to

talk to.”    

later admitted that she could not

recall exactly what she told her daughter.      

who interviewed the child was not dressed like a doctor, did not

conduct any physical examination, and met with the child in an

office filled with toys.    

was unable to

remember exactly what she told the child she was there for,

except that she thought she told the child that she was “going

to talk and play with her.”      

these facts, we held that there was insufficient

evidence to support the military judge’s conclusion that the

child’s statements were admissible under M.R.E. 803(4).        

   In so doing we stated:

       Although the child may have associated a hospital with
       treatment and may have known that she was in a
       hospital when she talked with Mrs. Thornton, there is
       no evidence indicating that the child knew that her
       conversation “with a lady” in playroom surroundings
       was in any way related to medical diagnosis or
       treatment. Mrs. Thornton testified that she did not


                                   25
United States v. Donaldson, No. 02-0931/AR


     present herself as a doctor or do anything medical.
     There is no evidence that Mrs. Thornton was dressed or
     otherwise identified as a medical professional. The
     interview took place in a room filled with toys.
     There is nothing suggesting that the child made the
     statements with the expectation that if she would be
     truthful, she would be helped.

     Similarly, in Siroky, a mother took her two-and-a-half-

year-old daughter to a psychotherapist, claiming that the child

had been sexually abused by the child’s 

.

The doctor was unable to remember whether she introduced herself

as a doctor.    

that she generally introduced

herself to her patients as a “helper” and was there to talk

about “feelings and to help” the child.        

and the

child played with toys together.       

on cross-

examination whether she believed the child was aware of why the

family visited her office, the doctor stated, the child's

“family and mother . . . would refer to me as ‘the lady’ or ‘the

doctor.’”   

   She also stated that she did not think a

child so young would understand what a counselor was, although

the child would understand that she was a helper.        

this testimony, we held that M.R.E. 803(4) was

inapplicable.    In so holding we explained:

     Even if there was clearly sufficient evidence to meet
     the requirement that the statements were made for the
     purposes of treatment, there is simply insufficient
     evidence in the record to support the expectation-of-
     treatment prong. As this prong focuses on the


                                  26
United States v. Donaldson, No. 02-0931/AR


     declarant’s state of mind, we recognize that a small
     child may not be able to articulate that he or she
     expects some benefit from treatment. Thus it is often
     important for their caretakers to explain to them the
     importance of the treatment in terms that are
     understandable to the child. Not only did [the child]
     not testify in this trial, but also there is no
     evidence on the record that her mother explained the
     importance of treatment to [the child]. Specifically,
     the record does not give us any indication that the
     statements made by [the child] concerning her father
     on July 24, 1992, were believed by her to be pertinent
     to treatment. Further as in Faciane, there is
     insufficient evidence for us to draw the inference
     that [the child] must have known that any statement
     she made would help her in treatment. [The counselor]
     did not present herself as a doctor and did not engage
     in any activity which [the child] could have construed
     as treatment. Further, the interviews with [the
     child] were conducted in a room filled with toys.

(emphasis added).

     Unlike Faciane and Siroky, there is evidence in this case

to indicate that J understood that Dr. Rogers was a doctor.

Taken together, the testimony of Dr. Rogers, BT, and J, provided

the military judge with sufficient facts for him to find that J

expected some medical benefit from discussing her problems with

Dr. Rogers.   We therefore hold that the judge did not abuse his

discretion by admitting J's statement to Dr. Rogers under M.R.E.

803(4), and therefore, in response to the granted issue,

conclude that the Court of Criminal Appeals did not err in

affirming the military judge's admission of J's statements to

Dr. Rogers.




                                  27
United States v. Donaldson, No. 02-0931/AR


     Because we hold that the military judge did not err in

admitting J's statements to Dr. Rogers under M.R.E. 803(4), we

need not reach whether the statements were also admissible as

residual hearsay under M.R.E. 807.

C.   Applicability of J's Statements to Investigator Bass-Caine
     Under M.R.E. 807.

     Appellant's final argument is that J's statements to

Investigator Bass-Caine were inadmissible under M.R.E. 807.

M.R.E. 807 is a residual hearsay exception rule, permitting a

party to introduce hearsay evidence that does not otherwise fall

under the exceptions contained in M.R.E.s 803 and 804, where

certain requirements are met.   The rule states:

     A statement not specifically covered by Rule 803 or
     804 but having equivalent circumstantial guarantees of
     trustworthiness, is not excluded by the hearsay rule,
     if the court determines that (A) the statement is
     offered as evidence of a material fact; (B) the
     statement is more probative on the point for which it
     is offered than other evidence which the proponent can
     procure through reasonable efforts; and (C) the
     general purposes of these rules and the interests of
     justice will best be served by admission of the
     statement into evidence. However, a statement may not
     be admitted under this exception unless the proponent
     of it makes known to the adverse party sufficiently in
     advance of the trial or hearing to provide the adverse
     party with a fair opportunity to prepare to meet it,
     the proponent’s intention to offer the statement and
     the particulars of it, including the name and address
     of the declarant.

(Emphasis added.)

     Appellant argues that the lower court erred in concluding

that J's statements to Investigator Bass-Caine were reliable


                                28
United States v. Donaldson, No. 02-0931/AR


because they were accompanied by circumstantial guarantees of

trustworthiness like those supporting the other hearsay

exceptions.

     In United States v. Giambra, 

, 334 (C.M.A.

1991), we stated that for a hearsay statement to be admissible

under the residual hearsay exception it "must have 'equivalent

circumstantial guarantees of trustworthiness' as do the first 23

exceptions."   In determining whether a statement is supported by

circumstantial guarantees of trustworthiness, we look to a

number of indicia of reliability.    These may include, among

other things: (1) the mental state of the declarant; (2) the

spontaneity of the statement; (3) the use of suggestive

questioning; and (4) whether the statement can be corroborated.

United States v. Grant, 

, 343-44 (C.A.A.F. 1995); see

United States v. Kelley, 

, 281 (C.A.A.F. 1996);

United States v. Cox, 

, 157 (C.A.A.F. 1996).      Other

indicators of reliability may include the declarant’s age or the

circumstances under which the statement was made.    

; see 

.    A court's factual

findings on the existence of circumstantial guarantees of

trustworthiness are reviewed for clear error.    United States v.

Workman, 

, 144 (4th Cir. 1988).    We accord a

military judge "considerable discretion" in admitting evidence

as residual hearsay.   

-82.


                                29
United States v. Donaldson, No. 02-0931/AR


     In this case, the Army Court of Criminal Appeals made

several findings to support its conclusion J's statements to

Investigator Bass-Caine had the kind of guarantees of

trustworthiness found in other hearsay exceptions.    First, it

found that “the ‘spontaneity’ of [J's] nonverbal adjustment of

her clothing prior to touching her vagina indicates

trustworthiness.”   Donaldson, ARMY No. 9900544, slip op. at 7.

In addition to the spontaneity of the statement, the court found

that less than sixteen hours had transpired between the incident

and the interview with the investigator, and the “events were

still fresh in [J's] young memory.”   

  The court

further found that J had no motive to fabricate.    

lower court determined that J's statements to Investigator

Bass-Caine were corroborated by J’s statements to BT and Dr.

Rogers.

     Appellant challenges these findings on several bases.

First, he asserts that J's action in adjusting her clothing to

show where Appellant touched her is not an indication of

reliability because "[i]t is not uncommon for a child of this

age to remove her clothing in front of an adult."    Appellant

particularly notes that J's actions and her statement were not

surprising in light of the fact that J was present when her

mother recounted J's initial statement on at least three




                                30
United States v. Donaldson, No. 02-0931/AR


occasions--to Ms. Sandreth, Officer Hagen, and SK, the latter

discussion culminating in a heated argument.

     In addition, Appellant objects to the lower court's finding

that despite the passage of time, the substance of the statement

showed that the "events were still fresh in [J's] young memory."

He argues that the lack of specificity in J's statement

demonstrates that the events were not fresh in J's memory, but

that she was relying on what her mother had told her.    Appellant

further objects to the court's finding that J had no motive to

fabricate.    He asserts that there is no support for this finding

and it is persuasive only if one assumes that Appellant is

guilty of the offense.    Next, Appellant objects to the lower

court's reliance on United States v. Lingle, 

, 708

(A.F. Ct. Crim. App. 1988) in reaching its conclusion that J's

tender age increased the probability that her statements were

truthful.    Appellant argues that Lingle is inapplicable in this

case because J's statements were not made to a playmate, but

rather to an adult.    Finally, because Appellant contends that

J's statements to her mother and Dr. Rogers are inadmissible, he

maintains that J's statements to the investigator were not

corroborated by admissible circumstantial evidence.

     On the one hand, this Court has generally treated hearsay

statements solicited by police officers, particularly when they

are elicited in private conversations, with caution.    United


                                 31
United States v. Donaldson, No. 02-0931/AR


States v. Ureta, 

, 296 (C.A.A.F. 1995)(citing United

States v. Pollard, 

, 49 (C.M.A. 1993)).   In addition,

in this case, J's statements to Investigator Bass-Caine were

preceded by several emotionally charged conversations between BT

and Ms. Sandreth, Officer Hagan, and SK, each of which J heard,

raising the concern that J's recollection of the events could

have been colored by her mother's view of the incident.   As

Appellant notes, the lower court appears not to have considered

this concern in reaching its determination nor substantiated its

finding that J had no motive to fabricate.

     On the other hand, we agree with the lower court that J's

spontaneous act of pulling her panties aside and placing her

finger by her vaginal area was an unusual event that supports a

finding of reliability.   Investigator Bass-Caine testified that

she had never seen a child witness perform such an act.

Moreover, because we conclude that the military judge did not

err in admitting J's statements to her mother and Dr. Rogers, we

disagree with Appellant that J's statements were not

corroborated by admissible circumstantial evidence.    Lastly, we

disagree with Appellant that J's statements did not contain the

degree of specificity normally associated with reliable

statements.   J was able to identify who touched her, where she

was touched and the manner in which the touching occurred.




                                32
United States v. Donaldson, No. 02-0931/AR


     Therefore, while there are points to consider against

admission of the statements as residual hearsay, Appellant has

failed to demonstrate that the military judge abused his

“considerable discretion” when he determined that the statements

were accompanied by circumstantial guarantees of

trustworthiness.   

-82.   We therefore

conclude that the lower court did not err when it held that the

military judge properly admitted J's statements to Investigator

Bass-Caine under M.R.E. 807.

                            CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                33
United States v. Donaldson, No. 02-0931/AR


     EFFRON, Judge (concurring in part and in the result):

     I agree with the lead opinion with respect to the

admissibility of the testimony of BT and Dr. Carrie Rogers.    I

write separately regarding the lead opinion’s conclusion that

the testimony of Investigator Tracy Bass-Caine was admissible

under the residual hearsay exception, Military Rule of Evidence

807 [hereinafter M.R.E.].

     As our Court noted in United States v. Kelley, 

(C.A.A.F. 1996), the legislative history of the residual hearsay

exception indicates that the exception should be used “very

rarely, and only in exceptional circumstances."   

(citations and internal quotations omitted).   The express

exceptions to the hearsay rule are tightly drawn and are limited

to circumstances that offer assurance of reliability.    M.R.E.

807 requires that the circumstances of the making of a statement

offered under the residual exception provide the same degree of

assurance of reliability as is found under the specific

exceptions.

     The present case involves hearsay testimony by Investigator

Bass-Caine about the results of her interview with J, the 3-

year-old victim.   In the few hours that preceded the interview,

J heard her mother engage in five emotionally charged

conversations in which her mother recounted details of the

incident to her sister, her best friend, an acquaintance of her
United States v. Donaldson, No. 02-0931


friend who was a deputy sheriff, Appellant's girlfriend, and a

police officer.   J was so distraught during her mother’s

interchange with Appellant’s girlfriend that she covered her

ears with her hands and cried while the two women yelled and

cursed at each other.

     The repeated, emotional recounting of the details by the

mother –- a person who would have the trust and confidence of

the child -- created a substantial risk of reinforcing the

mother’s description of the events in the mind of this 3-year

old, as distinct from her own recollection of the events.    Under

these circumstances, there is a significant risk that J’s

responses to Investigator Bass-Caine involved an unreliable

regurgitation of the mother’s recitation rather than her own

recollection.

     The risk was not ameliorated in this case by evidence that

would offer any objective assurance as to how the interview was

conducted.   This is particularly important in view of the degree

of skepticism applicable when statements are sought by, and made

to, police investigators.   See, e.g., United States v. Ureta, 

, 296 (C.A.A.F. 1995).   In the present case, the

questioning of J was undertaken by the investigator in private,

with no video or audio recording or other means of assessing the

details of the interview.




                                 2
United States v. Donaldson, No. 02-0931


     Under the circumstances of the case, this hearsay testimony

does not present the type of special circumstance demonstrating

guarantees of trustworthiness equivalent to the enumerated

hearsay exceptions.   Nonetheless, in view of the admissibility

of the balance of the evidence against Appellant, any error in

admitting Investigator Bass-Caine’s testimony was harmless.




                                 3