                        UNITED STATES, Appellee

                                     V.

               Mark K. HOLLIS, Journalist First Class
                        U.S. Navy, Appellant


                               No. 01-0337


                         Crim. App. No. 99-0297



       United States Court of Appeals for the Armed Forces

                        Argued December 12, 2001

                         Decided July 23, 2002

     GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and BAKER, J., joined. EFFRON, J., and SULLIVAN,
S.J., each filed an opinion concurring in part and in the result.

                                  Counsel

For Appellant: Lieutenant I. L. Paredes, JAGC, USNR (argued and
   on brief); Captain Curtis M. Allen, USMC.

For Appellee: Lieutenant Christopher J. Gramiccioni, JAGC, USNR
   (argued and on brief); Lieutenant William C. Minick, JAGC,
   USNR.

Military Judge: Gerald T. Hatch


  This opinion is subject to editorial correction before final publication.
United States v. Hollis, No. 01-0337/NA


        Judge GIERKE delivered the opinion of the Court.

        A military judge sitting as a general court-martial

convicted appellant, contrary to his pleas, of rape, forcible

sodomy, and indecent acts, in violation of Articles 120, 125, and

134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and

934, respectively.      The victim of the offenses was appellant’s

five-year-old daughter, J.H.        The adjudged and approved sentence

provides for a dishonorable discharge, confinement for 22 years,

total forfeitures, and reduction to the lowest enlisted grade.

The Court of Criminal Appeals affirmed the findings and sentence.

54 MJ 809 (2002).

        Before this Court, appellant has raised three issues arising

from the admission, over defense objection, of the testimony of

two Navy medical officers, Lieutenant (LT) Stephen Novek and

Captain (CAPT) Barbara Craig, relating statements made by J.H.

and her three-year-old sister, R.H.1       For the reasons set out

below, we affirm.




1
    The granted issues are:

        I. WHETHER THE LOWER COURT ERRED WHEN IT AFFIRMED THE
        MILITARY JUDGE’S DECISION TO ALLOW LT NOVEK AND CAPT CRAIG
        TO PRESENT, OVER DEFENSE OBJECTION, THE INADMISSIBLE HEARSAY
        STATEMENTS OF J.H. AND R.H. TO THE COURT-MARTIAL.

        II. WHETHER THE HEARSAY TESTIMONY BY LT NOVEK AND CAPT
        CRAIG IS INADMISSIBLE BECAUSE THE PRIMARY PURPOSE OF THEIR
        INTERVIEWS WAS TO COLLECT INCRIMINATING EVIDENCE AGAINST
        APPELLANT.

        III. WHETHER APPELLANT WAS DENIED HIS RIGHTS TO
        CONFRONTATION AND DUE PROCESS BY THE ADMISSION OF HEARSAY
        STATEMENTS UNDER AN EXTENSIVELY BROADENED FORM OF THE
        MEDICAL TREATMENT HEARSAY EXCEPTION, WHICH IS NOT A FIRMLY
        ROOTED HEARSAY EXCEPTION.


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United States v. Hollis, No. 01-0337/NA


                               The Evidence

      In December 1995, appellant reported for duty at the U.S.

Naval Support Activity in Naples, Italy.        His estranged wife and

two daughters remained in Arizona until April 1996, when the two

daughters were escorted to Italy by Ms. Kathy Robie, who stayed

in Italy as their live-in nanny.

      On August 11, 1997, Ms. Robie had a conversation with J.H.

that caused her to believe appellant had sexually abused her.

Ms. Robie contacted the Family Services Center and told Ms. Lyn

Flahardy about her conversation with J.H.        Ms. Flahardy contacted

LT Novek, a staff pediatrician who had previously treated J.H. as

a patient.    Ms. Flahardy told LT Novek that J.H. “had disclosed

alleged sexual abuse” and asked him to see her.        When Ms.

Flahardy said that the most recent sexual abuse was “last night,”

LT Novek responded that it was a “medical emergency” and arranged

to see J.H. later in the day “for a medical evaluation for

alleged child sexual abuse.”        Ms. Flahardy and two agents from

the Naval Criminal Investigative Service (NCIS) escorted Ms.

Robie, J.H., and R.H. to the U.S. Naval Hospital, Naples, where

J.H. was examined by LT Novek.

      Ms. Flahardy, NCIS Special Agent (SA) Kevin Hutson, and

Hospitalman Third Class Laura Rodriguez-Calderon were present

during LT Novek’s meeting with J.H.        SA Hutson testified that LT

Novek told him “he would be conducting a physical examination of

the girl, . . . and desired to interview her.”

      LT Novek began by talking to J.H. about the importance of

telling the truth, in order “[t]o help her to understand that it

was important that she explain things clearly and tell us the


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United States v. Hollis, No. 01-0337/NA


truth about what had gone on.”        LT Novek testified that J.H. knew

who he was because he had previously treated her.

Notwithstanding their previous contact, LT Novek told J.H. that

he was a doctor and that he “was going to try to help her to

figure out what had happened and to help her if she needed help.”

LT Novek testified that he knew J.H. understood he was trying to

make her better, because “she was nodding and she recognized

[him] from prior visits.”

      LT Novek then took a medical history, which he defined as “a

series of questions that the physician asks of the patient to try

to understand what is wrong with the patient and how to help the

patient and how to treat the patient.”         During the medical

history, J.H. told LT Novek that appellant had been touching her

“private parts” and that it “hurt a lot.”         She also told LT Novek

that appellant “used his hand to put medicine on in front and

that he used his private part to touch her from behind and she

pointed to her anus.”

      Toward the end of LT Novek’s medical history interview,

after J.H. had disclosed appellant’s abuse, he invited the other

persons present to ask questions.         SA Hutson asked J.H. if

appellant “said this was a secret.”         She responded, “He said not

to tell anybody, because he would go to jail.”         SA Hutson also

had J.H. identify the partially used tube of Westcort cream

prescribed to R.H. but used on J.H. by appellant.         LT Novek

testified that he asked all other questions.

      After completing the medical history, LT Novek performed a

complete physical examination of J.H. that included a detailed

genital and anal examination.        He identified vaginal injuries


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United States v. Hollis, No. 01-0337/NA


that were consistent with digital or penile penetration.      He

characterized his findings as “highly suspicious of abuse but

non-confirmatory.”      In his written “progress note,” LT Novek

prescribed a plan that provided for treatment by a clinical

psychologist.

      In August 1997, appellant’s trial defense counsel asked CAPT

Barbara Craig, an experienced pediatrician at the National Naval

Medical Center in Bethesda, Maryland, to evaluate J.H. and R.H.,

who were then six years old and four years old, respectively.

CAPT Craig contacted the girls’ grandparents and arranged a

medical evaluation on September 4, 1997.

      When CAPT Craig contacted the grandparents, she told the

grandfather that “he needed to prepare the children for coming in

by telling them they were coming to see a physician, a

pediatrician, that [she] was a doctor, that [she] help[s] kids,

and that it’s always important to tell the truth to the doctor

when children come in for a checkup.”      When CAPT Craig first met

J.H. and R.H. at the hospital, she explained that she was a

“kids’ doctor,” that she “help[s] kids,” that she would be asking

a lot of questions, and that she wanted them to answer “as best

they could.”    She was wearing a white coat and had a stethoscope

around her neck.     J.H. addressed CAPT Craig as “doctor.”

      Trial defense counsel had asked CAPT Craig to inquire about

the possibility that J.H. had been abused by the son of her

mother’s boyfriend while she was living in Arizona with her

mother.   CAPT Craig testified that J.H. said the boy had done

something bad or wrong to her and that she did not want to talk

about it.    When CAPT Craig began to ask questions about what


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United States v. Hollis, No. 01-0337/NA


happened in Italy, J.H. began shouting “no, no,” and asked her to

stop asking questions about it.           J.H. told CAPT Craig that

“something bad had happened with her dad,” that “it happened in

the bedroom in Italy, that it happened at nighttime, that it

happened in the bed that she slept in with her father and her

sister, [R.H.].”     J.H. said that “her father told her not to tell

about what was happening between her father and herself in Italy

because he would go to jail.”        At this point, J.H. was “heaving,

crying, yelling the answers.”        She was saying, “I just wanted it

to stop, no, no.”     She was “yelling the answers . . . , with her

head in the corner and kind of rocking back and forth.”           CAPT

Craig terminated the interview without completing the medical

history, because of J.H.’s emotional state.

      CAPT Craig was able to conduct a physical examination of

J.H. on September 4.      She found vaginal injuries consistent with

penile or digital penetration.        CAPT Craig also examined R.H. on

September 4.    She explained that she examined R.H. “because

frequently children that are in the same home and in the same

surroundings or conditions of the child who has been physically

or sexually abused might suffer a physical or emotional trauma

either by having the abuse occur to them or they can be equally

traumatized by witnessing the abuse happen to someone else.”

      R.H. was four years and ten months old at the time of the

examination.    CAPT Craig explained to R.H. that she was a

pediatrician, “and that’s a doctor who takes care of tummy aches

and rashes or whatever.”       R.H. interrupted her and blurted out,

“I’ve had medicine for a rash before.”           CAPT Craig explained the

importance of telling the truth, and R.H. told CAPT Craig that


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United States v. Hollis, No. 01-0337/NA


she understood.     CAPT Craig testified that, in her opinion, R.H.

knew she was a doctor and understood the need to tell her the

truth.

       During the medical history, R.H. told CAPT Craig that while

sleeping in the same bed with appellant and J.H., she saw and

heard appellant doing “yucky” and “bad” things to J.H.        She saw

appellant “opening [J.H.’s] privates with his hands,” forcing

J.H. to “eat” something in the middle of the night in bed, and

kneeling over J.H. as she lay in bed.        R.H. said that she heard

J.H. cry and ask appellant why he “does this” to her and not to

R.H.

       CAPT Craig talked with J.H. again on September 30, this time

at J.H.’s request.      J.H. remembered CAPT Craig and greeted her by

saying, “Hello, Dr. Craig.”       J.H. indicated that she understood

this second interview was to enable CAPT Craig to help her.

During this interview, J.H. described acts of rape and said that

it happened “a zillion times.”        She said that appellant kissed

her on the mouth.     She described being forced to perform fellatio

on appellant, and she described appellant’s digital penetration

of her anus.

       CAPT Craig recommended counseling for both J.H. and R.H.

For J.H., she “strongly” recommended counseling consisting of

“longer-term therapy.”

       Over defense objection, the military judge admitted the

testimony of LT Novek and CAPT Craig under Mil. R. Evid. 803(4),




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United States v. Hollis, No. 01-0337/NA


Manual for Courts-Martial, United States (2000 ed.).2      The

defense objected to LT Novek’s testimony as inadmissible hearsay,

on the ground that there was an inadequate showing that J.H.

“understood what benefit she was gonna gain from talking to this

roomful of people.”      The defense also objected that LT Novek’s

testimony and written report were incomplete because the report

did not include the questions preceding J.H.’s statements and

“some portions of what happened in that interview [were] not

recorded in this history.”       With respect to LT Novek’s testimony,

the military judge stated:

            I specifically state for the record that the court has
            heard ample evidence that [J.H.] was aware of the
            circumstances for which she was at the doctor’s office.
            She recognized the doctor from prior visits for medical
            treatment. The doctor and his staff advised her that
            she was there for possible medical treatment and to
            determine what was wrong with her so they could get
            treatment, and what had happened so she could be
            treated. No evidence to the contrary that she didn’t
            understand that. In fact, the doctor indicated that in
            his opinion, she did, and his opinion is obviously
            based on previous exposure to her also.


      With respect to R.H.’s statements to CAPT Craig, the

military judge stated:

            I find that [R.H.] understood that she was talking to a
            doctor that helped children. She understood the need
            to tell the truth and based on Dr. Craig’s testimony
            that she understood that it was in her best interest to
            be truthful and that those truthful answers were
            necessary for any type of treatment, whether it was
            physical or counseling. Even though [R.H.] probably
            didn’t know what the word counseling meant, but Dr.
            Craig said talk to for -- to make you better or words
            to that effect. Therefore, I find that even though it
            is hearsay, it comes within M.R.E. 803(4), as medical
            exception to the hearsay rule.


2
 All Manual provisions cited are identical to those in effect at
the time of appellant’s court-martial.


                                      8
United States v. Hollis, No. 01-0337/NA



      Finally, with respect to J.H.’s statements to CAPT Craig,

the military judge stated:

            I find based on Dr. Craig’s testimony that the
            statements made by [J.H.] to Dr. Craig on the 30th of
            September 1997 were for the purpose of promoting her
            well-being and receiving medical treatment or
            diagnosis, that [J.H.] knew she was talking to a
            medical professional. In fact, she greeted her as Dr.
            Craig, and she understood the need for truthful
            answers, that they were necessary for her treatment[.]


      The prosecution’s case-in-chief included the testimony of LT

Novek and CAPT Craig relating the statements of J.H. and R.H.,

and physical evidence of J.H.’s vaginal injuries.         It also

included appellant’s statement to SA Hutson, in which he admitted

touching J.H.’s vaginal area and asserted that he was role

playing in an effort to determine what had happened between J.H.

and her mother’s boyfriend’s son.         Finally, the prosecution case

included deoxyribonucleic acid (DNA) evidence identifying 11

semen stains on J.H.’s nightgown as having come from appellant.

Neither appellant nor his daughters testified.

                                 Discussion
      Appellant contends that there is no evidence J.H. understood

she was being treated for sexual abuse or that she would receive

any medical benefit for any ailments when LT Novek and CAPT Craig

questioned her.     He argues that the purpose of the interviews was

to collect incriminating evidence and to smuggle in hearsay

testimony using medical professionals acting in complicity with

law enforcement officials.       He asserts that admitting his

daughters’ statements under the medical exception violated his

right to confront the witnesses.          Finally, he asserts that he was



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United States v. Hollis, No. 01-0337/NA


denied due process when the Government, in bad faith, failed to

preserve potentially material evidence by failing to videotape or

audiotape the interviews of J.H. and R.H.

      The Government argues that the military judge’s decision to

admit the statements of J.H. and R.H. was not an abuse of

discretion and that his findings of fact were not clearly

erroneous.    The Government asserts that the purpose of the

interviews was to elicit information for medical diagnosis or

treatment, not prosecution.       The Government asserts that

appellant waived any issue about the availability of J.H. and

R.H. by not raising it at trial.           It argues that even if the

availability issue was not waived, the right of confrontation was

satisfied because the medical exception is a firmly rooted

exception to the hearsay rule.        Finally, the Government argues

that there has been no showing of bad faith on the part of LT

Novek and CAPT Craig, and that there is no requirement that

medical professionals use videotapes or audiotapes during medical

examinations.

                            Standard of Review
      A military judge’s decision to admit evidence is reviewed

for abuse of discretion.       United States v. Sullivan, 42 MJ 360,

363 (1995).    We review a military judge’s factfinding under the

clearly erroneous standard of review, and conclusions of law we

review de novo.     Id.   We will reverse if the findings of fact are

clearly erroneous or if the military judge’s decision is

influenced by an erroneous view of the law.           Id.




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United States v. Hollis, No. 01-0337/NA


                               Confrontation

      The “medical exception” is a firmly rooted exception to the

hearsay rule, and, as such, it satisfies the constitutional right

of confrontation.     White v. Illinois, 502 U.S. 346, 356-57

(1992).   Thus, there is no need to establish that the declarant

is unavailable as a witness.

                 Admissibility under Medical Exception

      Under Mil. R. Evid. 803(4), “[s]tatements made for purposes

of medical diagnosis or treatment and described medical history”

are not excluded by the hearsay rule, even if the declarant is

available.    The proponent of evidence offered under the medical

exception must establish that (1) the statements were made for

the purposes of medical diagnosis or treatment, and (2) that the

declarant made the statement “with some expectation of receiving

medical benefit for the medical diagnosis or treatment that is

being sought.”     United States v. Edens, 31 MJ 267, 269 (CMA 1990)
(internal citation omitted).        “The key factor in deciding if the

second prong is met is ‘the state of mind or motive of the

patient in giving the information . . . 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.”       United

States v. Kelley, 45 MJ 275, 279 (1996) (internal citation

omitted).    The determination whether the patient has the

requisite state of mind is a preliminary question of fact under

Mil. R. Evid. 104(a), and, as such, it will be overturned on

appeal “only if clearly erroneous.”        Id. at 280.

      A child-victim’s expectation of receiving medical treatment

need not be established by the child-victim’s testimony.       It may


                                      11
United States v. Hollis, No. 01-0337/NA


be established by the testimony of the treating medical

professionals.     See United States v. Quigley, 40 MJ 64, 66 (CMA

1994); Edens, supra at 268.       Although a medical doctor’s

determination that the child understood the need to be truthful

can be an important component of the military judge’s inquiry,

the record must support the military judge’s determination that

the child had the requisite understanding and expectation of a

medical benefit to satisfy the subjective prong, even if the

military judge relies on the doctor’s testimony to establish the

factual predicate for this determination.      See United States v.
Williamson, 26 MJ 115, 118 (CMA 1988), quoted in Edens, supra at

269 (“Although there may be some relaxing of the quantum of proof

in those situations where a child is being treated, the facts and

circumstances must support a finding that both prongs of the test

were met.”).

      We hold that the military judge did not abuse his discretion

by permitting LT Novek to testify about J.H.’s responses to his

questions during his medical history interview.      J.H. was taken

to LT Novek’s office at the Naval Hospital shortly after making
an emotional disclosure to her nanny.      J.H. had been treated

previously by LT Novek and knew that he was a doctor.      She

indicated that she understood the need for truthful answers so

that LT Novek could determine what had happened, in order to

treat her.

      Although appellant asserts that LT Novek was acting in

complicity with law enforcement personnel and not for medical

reasons, the record shows the contrary.      LT Novek told Ms.

Flahardy he needed to see J.H. immediately because it was a


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United States v. Hollis, No. 01-0337/NA


medical emergency.      When J.H. arrived at his office, LT Novek

told SA Hutson that he wanted to interview J.H.      The impetus for

the interview was LT Novek’s concern about a medical emergency,

not a request from SA Hutson for investigative assistance.

      J.H.’s responses to the two questions asked by SA Hutson

were not admissible under the medical exception.      See United

States v. Armstrong, 36 MJ 311, 313 (CMA 1993) (responses to

trial counsel’s questions not admissible under Mil. R. Evid.

803(4)).    In United States v. Siroky, 44 MJ 394, 400 (1996), this
Court recognized the responsibility of a military judge to

scrutinize each segment of a statement offered under Mil. R.

Evid. 803(4) to ensure that it satisfies both prongs of the test

for the medical exception.       We are satisfied, however, that the

admission of LT Novek’s testimony relating J.H.’s responses to SA

Hutson’s two questions was harmless beyond a reasonable doubt in

light of the other evidence of appellant’s guilt.

      We also hold that the military judge did not abuse his

discretion by admitting CAPT Craig’s testimony.      CAPT Craig

examined the children, at defense counsel’s request, to determine
if they had been physically and emotionally traumatized.      The

record reflects that J.H. knew CAPT Craig was a medical doctor,

that J.H. asked to see CAPT Craig on September 30, that J.H.

addressed CAPT Craig as “Doctor Craig,” and that J.H. knew CAPT

Craig needed truthful answers to help her.

      Similarly, R.H. indicated that she knew CAPT Craig was a

doctor.    R.H. demonstrated that she knew doctors help children,

spontaneously announcing that a doctor had treated her skin rash.

R.H. told CAPT Craig that she understood the need for truthful


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United States v. Hollis, No. 01-0337/NA


answers so that CAPT Craig could “make [her] better or words to

that effect.”     CAPT Craig’s professional assessment was that R.H.

knew she was a doctor who helped children and that R.H.

understood the need to tell the truth.

      Based on this record, we hold that the military judge’s

preliminary findings of fact were not clearly erroneous, and that

he made his ruling based on a correct understanding of the law.

Accordingly, we hold that, with the exception of LT Novek’s

testimony relating J.H.’s responses to SA Hutson’s two questions,

the military judge did not abuse his discretion by permitting LT

Novek and CAPT Craig to testify about the victims’ statements to

them during their interviews.        We further hold that the admission

of the portion of LT Novek’s testimony relating J.H.’s responses

to SA Hutson’s two questions was harmless beyond a reasonable

doubt in light of the other evidence of appellant’s guilt.

                      Failure to Preserve Evidence
      Appellant’s assertion that he was denied due process by the

failure to audiotape or videotape the interviews of J.H. and

R.H. is without merit for several reasons.       First, there is no
rule requiring that medical interviews be taped.       Second, there

is no indication in the record that material evidence was lost.

To the contrary, the record reflects that the evidence was

carefully preserved by the meticulous interview notes and

diagnostic reports prepared by the medical professionals

involved.    Third, there is nothing in the record suggesting bad

faith.   See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“We

therefore hold that unless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially


                                      14
United States v. Hollis, No. 01-0337/NA


useful evidence does not constitute a denial of due process of

law.”).

                                  Decision

      The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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United States v. Hollis, No. 01-0337/NA



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


     I agree with the majority opinion’s conclusion that J.H.’s

statements to Drs. Novek and Craig were properly admitted under

Mil. R. Evid. 803(4).   There are sufficient indicia of J.H.’s

subjective intent in the record to show that she understood the

purpose for speaking with each doctor and, in return, expected

to receive a medical benefit as a result of those

communications.   See __ MJ at (12-14).   However, the record is

less than clear as to the motivation of her younger sister,

R.H., in speaking to Dr. Craig.   The record does not demonstrate

that R.H. (1) perceived a link or otherwise understood that her

statements to Dr. Craig were for the purpose of medical

diagnosis or treatment; (2) believed she needed to be helped,

even in a general sense; or (3) expected to medically benefit

from responding truthfully when speaking with Dr. Craig.


     We have held that “[t]he key factor in deciding if the

second prong is met is ‘the state of mind or motive of the

patient in giving the information . . . 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.”   United

States v. Kelley, 45 MJ 275, 279 (1996) (citation omitted).

This standard applies equally to adults and children.   As this
United States v. Hollis, No. 01-0337/NA


Court made clear in United States v. Williamson, 26 MJ 115 (CMA

1988), “Although there may be some relaxing of the quantum of

proof in those situations where a child is being treated, the

facts and circumstances must support a finding that both prongs

of the test were met.”   Id. at 118, quoted in United States v.

Edens, 31 MJ 267, 269 (CMA 1990).


     In this case, the majority opinion relies entirely on

R.H.’s spontaneous statement, “I’ve had medicine for a rash

before,” __ MJ at (6), and the military judge’s finding, based

on Dr. Craig’s testimony, that “[e]ven though [R.H.] probably

didn't know what the word [‘]counseling[’] meant, . . . Dr.

Craig said talk to for – to make you better or words to that

effect,” to satisfy the test’s subjective prong.   R.H.’s

spontaneous statement merely establishes that she may have

associated doctors with treating physical ailments.   It does not

demonstrate that R.H. acted on the belief that disclosing

information about appellant’s abuse of her sister would enable

Dr. Craig “to make [her] better.”    Cf. Olesen v. Class, 164 F.3d

1096, 1098 (8th Cir. 1999) (reversing where physician merely

explained “what was going to happen” during the physical

examination and no evidence was presented to show the child-

victim understood revealing her abuser’s identity was important

to diagnosis and treatment).




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United States v. Hollis, No. 01-0337/NA


      I agree with the majority that the fact R.H. may not have

known what the word “counseling” meant does not, in and of

itself, render her statements inadmissible under the medical

exception.    However, the burden remained on the prosecution to

present evidence establishing that R.H. understood she was there

to receive counseling services or, at minimum, help in a general

sense, although she may not have known “counseling” was the term

to describe the treatment.       United States v. Avila, 27 MJ 62, 66

(CMA 1988) (“[U]nless it appears that the child knows at least

that the person is rendering care and needs the information in

order to help, the rationale for the [medical] exception

disappears entirely.”); Kelley, 45 MJ at 277, 280 (affirming

where counselor introduced himself as a “talking doctor” and

“the record support[ed] the military judge’s preliminary

findings of fact that [the six-year-old victim] understood that

Mr. Mills was trying to help her deal with unpleasant thoughts

and feelings, and that she needed to tell him what she was

thinking and feeling.”).       The prosecution failed to present such

evidence in this case.∗



∗
  We have upheld admission of a six-year-old’s statements to a psychologist
upon finding that the second prong was “narrowly” satisfied where the mother
testified that she “‘encourag[ed]’ her ‘daughter to speak openly with Ms.
Miller [the psychologist] because she was there to help her’; and ‘I’ve
always asked [my daughter] to tell the truth.’” United States v. Dean, 31 MJ
196, 200-01 (CMA 1990). There is no evidence in the record to show that
R.H.’s grandparents, who had custody of her at the time of her interview with
Dr. Craig, explained to R.H. the purpose of her visit with Dr. Craig or the
importance of being truthful or that she needed to be truthful so that Dr.


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United States v. Hollis, No. 01-0337/NA


      Although R.H.’s statements were erroneously admitted, I

believe the error was harmless in light of the Government’s

overwhelming evidence of appellant’s guilt.           The DNA evidence of

appellant’s semen stains on his daughter’s pajamas and

undergarments, the physical evidence of abuse observed by Drs.

Novek and Craig, appellant’s admission to touching his

daughter’s vaginal area, and J.H.’s statements admitted through

Drs. Novek and Craig establish appellant’s guilt beyond a

reasonable doubt.




Craig could properly treat her. See also United States v. Siroky, 44 MJ 394,
400 (1996) (“[W]e 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 [the child’s] caretakers to explain to [the child] the
importance of the treatment in terms that are understandable to the child.”).
As the majority opinion notes, Dr. Craig testified that she asked the
grandparents to “prepare” the children for a “checkup” and to tell them to be
truthful. However, no evidence was presented to show that the grandparents
did in fact prepare R.H. as requested.


                                      4
United States v. Hollis, No. 01-0337/NA


    SULLIVAN, Senior Judge (concurring in part and in the
result):



    I have continued fear about admission of the testimony of

very young children under the medical exception to the hearsay

rule under Mil.R.Evid 803(4).    In United States v. Kelley, 45 MJ

275, 282 (1996), I stated in a separate opinion:


          Moreover, let me express my growing
          uneasiness with the continuous expansion
          of and reliance upon the medical
          exception to the hearsay rule.
          Mil.R.Evid. 803(4). Here, a 6-year-old
          child’s statements to a family counselor
          are taken as proof of a crime under Fed.
          and Mil.R.Evid. 803(4). Every day in
          America, countless statements are given
          in emergency rooms and medical offices by
          children, young adults, middle-aged, and
          elderly patients to doctors of medicine
          and their assistants. Are all these
          statements true? Are all these
          statements admissible in court as the
          sole proof of a crime? I and my fellow
          judges should wonder about this and
          perhaps tighten application of this rule.
          I suspect that many statements given
          under the current breadth of the medical-
          exception umbrella, if closely
          scrutinized, may not be the complete
          truth. Motives should be thoroughly
          examined at the trial level before such
          statements are allowed as evidence in
          court.

    On this basis, with regard to the statements of the three-

year-old sister, R.H., I adopt the excellent opinion of my

brother judge, Judge Effron.    Nevertheless, like my brother, I

come to the conclusion that the erroneous admission of R.H.’s
United States v. Hollis, No. 01-0337/NA

testimony was harmless in light of the overwhelming evidence of

appellant’s guilt.




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