                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0110p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                              Petitioner-Appellant, -
 TROY R. STUART,
                                                       -
                                                       -
                                                       -
                                                           No. 05-3092
           v.
                                                       ,
                                                        >
 JULIUS WILSON, Warden,                                -
                              Respondent-Appellee. -
                                                      N
                      Appeal from the United States District Court
                        for the Northern District of Ohio at Akron.
                     No. 03-00469—John R. Adams, District Judge.
                                     Argued: February 1, 2006
                               Decided and Filed: March 27, 2006
                     Before: RYAN, CLAY, and GILMAN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Nathan A. Ray, Akron, Ohio, for Appellant. Erik J. Clark, OHIO ATTORNEY
GENERAL OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Nathan A. Ray, Akron, Ohio,
for Appellant. Gregory T. Hartke, OHIO ATTORNEY GENERAL OFFICE, CORRECTIONS
LITIGATION SECTION, Cleveland, Ohio, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        CLAY, Circuit Judge. Petitioner Troy Stuart appeals the December 13, 2004 order of the
United States District Court for the Northern District of Ohio granting the motion of Respondent
Julius Wilson, Warden, to dismiss Petitioner’s habeas application filed pursuant to 28 U.S.C. § 2254.
Petitioner is currently incarcerated in Ohio state prison, having been convicted and sentenced for
the state crimes of rape of a victim under the age of thirteen and gross sexual imposition of a victim
under the age of thirteen. For the following reasons, we AFFIRM the order of the district court.
                                       I. BACKGROUND
A.     STATE PROCEEDINGS
        On October 14, 1999, an Ohio state grand jury indicted Petitioner for two counts of rape by
force of a victim under the age of thirteen and one count of gross sexual imposition of a victim under


                                                  1
No. 05-3092           Stuart v. Wilson                                                          Page 2


the age of thirteen. The alleged child victim in this case was Petitioner’s nephew (“D.S.”), the son
of Petitioner’s older brother.
         On February 4, 2000, the prosecution notified the court of its intention to admit into evidence
D.S.’s out-of-court statements to his mother (“Lisa”), father (“Lorin”), aunt (“Aunt Sue”), cousin
(“Cousin Cindy”), and the investigating detective pursuant to Ohio Evidence Rule 807. Under the
state rule, the hearsay statement of an alleged victim of a sexual crime under the age of twelve is
admissible if: (1) the state court finds particularized guarantees of trustworthiness of the hearsay
statement; (2) the victim’s testimony is not reasonably obtainable by the party seeking to admit the
hearsay statement; (3) there is independent proof of the sexual act; and (4) at least ten days before
the trial or hearing, the party seeking to admit the hearsay statement notifies the other parties of the
content of the statement, when and where the statement was made, the identity of the witness to
testify as to the statement, and the circumstances surrounding the statement that demonstrate
particularized guarantees of trustworthiness. Ohio Evid. R. 807(A). The party seeking to admit the
hearsay statement may satisfy requirement (2) if “[t]he child refuses to testify concerning the subject
matter of the statement or claims a lack of memory of the subject matter of the statement after a
person trusted by the child, in the presence of the court, urges the child to both describe the acts
described by the statement and to testify.” Ohio Evid. R. 807(B)(1).
         On February 17, 2000, the state trial court conducted an evidentiary hearing in order to
determine whether the prosecution met the requirements of Rule 807. D.S. was examined for
competency. He testified that he was five years old, and he testified that he knew the difference
between telling the truth and telling a lie. He promised that he would tell the truth during the
hearing. On cross-examination, D.S. admitted that he sometimes lied to his parents. When asked
if he lied to his Uncle Troy, Petitioner in this case, D.S. said yes, but he did not want to talk about
it. He testified that no one had told him what to say and that he was going to tell the truth. The state
trial court found that D.S. was competent to testify.
        The investigating detective on the case then testified at the hearing. She testified that on
October 5, 1999, D.S., his mother, and his father went to the police station to report a crime. The
detective was made aware of some of the factual circumstances surrounding the case, and she then
interviewed D.S. in the presence of his mother. After some small talk with D.S., the detective asked
if he knew the difference between a good touch and a bad touch. He stated that he did know the
difference; he identified his mother’s kiss and his father’s hug as good touches, and he identified
being spanked as a bad touch. The detective then asked if being touched on his “pee-pee” was a
good touch or bad touch, and D.S. responded that it was a bad touch. The detective asked if anyone
had touched his penis, and D.S. responded that Petitioner had done so. The detective then asked if
Petitioner had touched D.S.’s penis, and D.S. said yes. The detective then asked if D.S. had touched
Petitioner’s penis, and D.S. said yes. The detective asked where this conduct had occurred, and D.S.
answered that it had taken place in his parents’ bed or D.S.’s bed. When asked how many times this
conduct had occurred, D.S. stated that it had occurred many times. The detective then ended the
conversation with D.S. and spoke to his parents. The parents informed the detective that D.S. had
previously told them that D.S. and Petitioner had engaged in oral sex. After a few minutes, the
detective re-interviewed D.S. and asked if there was anything D.S. did not tell the detective. D.S.
answered, “Yes, yeah, Uncle Troy made me suck his pee-pee.” (J.A. at 120.) He also stated that
Petitioner performed oral sex on D.S. D.S. stated that the oral sex had occurred on many occasions.
On cross-examination, the detective testified that she had not tape-recorded her interview of D.S.,
but she did take notes.
       D.S.’s father, Lorin, also testified at the hearing. Lorin testified that he and his family moved
back to his father’s (D.S.’s grandfather and Petitioner’s father) house in September or October of
1998. Petitioner also lived at the house. When D.S.’s father and mother were at work, Petitioner
would often babysit the family’s children. On October 5, 1999, Lorin spoke with Aunt Sue (Lorin’s
No. 05-3092              Stuart v. Wilson                                                                  Page 3


sister) at Aunt Sue’s house, and Aunt Sue stated that in 1997 she had observed D.S. “playing with
himself.” (J.A. at 174.) She asked D.S. why he was doing that, and he responded, “[B]ecause Uncle
Troy does.” (J.A. at 174.) Aunt Sue told Lorin that she did not know if Petitioner was “fooling
around” with D.S., but that Lorin should find out. (J.A. at 174.) After this conversation, Lorin
returned to his father’s house, where D.S. was at the time. Lorin asked D.S. if there was anyone who
was touching him in the wrong places, and D.S. answered, “Yes, Uncle Troy.” (J.A. at 141.) Lorin
asked what Petitioner did to D.S., and D.S. responded that Petitioner made D.S. perform oral sex on
Petitioner, and that Petitioner would perform oral sex on D.S. Lorin testified that after October 5,
1999, he did not ask D.S. questions about what had occurred between D.S. and Petitioner, but D.S.
twice raised the subject, stating that Petitioner would get into bed with D.S. and engage in the sexual
abuse.
        D.S.’s mother, Lisa, also testified at the hearing. Lisa testified that on October 5, 1999, Lorin
recounted to Lisa the conversation that he had with D.S. about Petitioner and the sexual conduct
between D.S. and Petitioner. She spoke with D.S. about the matter, and D.S. stated that the abuse
had in fact happened, and that he was sorry for it. It is unclear from Lisa’s testimony whether she
used leading questions or the nature of the conversation. Lisa testified that she did not remember
the exact conversation. She also stated that after that day, D.S. would “just come[ ] up” and talk
about what had occurred between Petitioner and D.S., stating that Petitioner should not have “done
that” and asking “why daddy didn’t stop it.” (J.A. at 186.) D.S. also stated that the abuse would
occur when his older brother was at school. Lisa testified that she did not ask D.S. questions, but
rather D.S. would just come up and talk about what had occurred. On cross-examination, Lisa
admitted that in June 1998, the children’s services board (“CSB”) had received information that
Petitioner had abused D.S. A CSB worker went to the family’s home and interviewed both D.S. and
his older brother. Both boys denied any abuse. Lisa did not know who had made the allegations
of abuse, but she suspected that Aunt Sue or Cousin Cindy had done so as retribution for an
altercation between Cousin Cindy, her brother, and Petitioner that had taken place earlier. Lisa
admitted that Aunt Sue and Cousin Cindy did not say anything to her about Petitioner’s abuse of
D.S., and that her only basis of knowledge of the abuse was her conversation with D.S.
         D.S. then testified. Petitioner’s counsel objected to the presence of Lorin and Lisa, so the
court ordered the parents to leave the courtroom. Both the prosecution and Petitioner’s counsel
asked D.S. if he would talk about what had happened between D.S. and Petitioner, and D.S. refused
to answer. D.S. did testify that he did not lie to his father or to the investigating detective. D.S. also
testified that no one had told him to refuse to answer questions about Petitioner.
        D.S.’s aunt, Aunt Sue, then testified. She stated that in 1996,1 she observed D.S. with his
hands in his pants. She said to D.S., “Hey, boy, quit that,” and D.S. responded, “Uncle Troy does
that.” (J.A. at 228.) Both Lorin and Petitioner were present during this occasion. She also testified
that she recounted this event to Lorin on October 5, 1999. She also testified that her daughter,
Cousin Cindy, had made accusations against Petitioner in March 1997 or 1998.
        D.S.’s cousin, Cousin Cindy, also testified at the hearing. She stated that on March 18, 1997,
her birthday, she saw D.S. playing with his penis. She asked what he was doing, and she said that
he should not be doing that. D.S. replied that Uncle Troy does. Cousin Cindy then asked D.S. what
else Petitioner did. He replied that “Troy kissed his pee-pee and played with his butt hole.” (J.A.
at 241.) She testified that she told her mother what D.S. had said that day. About one year later, she
told Petitioner that he would pay for what he had done to D.S. She testified that on October 6, 1999,
she told Lorin what D.S. had said to her on March 18, 1997. On cross-examination, Cousin Cindy


        1
           There seems to be confusion between Lorin and Aunt Sue as to when the event occurred, as Lorin testified
that the event occurred in 1997.
No. 05-3092                Stuart v. Wilson                                                       Page 4


admitted that D.S. could have meant that Petitioner played with his own penis and anus. She also
testified that there was some question about whether Petitioner had previously stolen marijuana from
her.
       Shelly Kekic, a social worker with CSB, also testified at the hearing. She testified that in
June 1998, she went to the family’s home in response to an allegation that Petitioner was sexually
abusing D.S. She interviewed Lisa, Petitioner, Petitioner’s father, D.S. and D.S.’s older brother.
D.S. denied that he was touched inappropriately by anyone. Petitioner denied sexually abusing D.S.
       On March 21, 2000, the state trial court ruled that the hearsay statements were admissible
under Ohio Evidence Rule 807. The state trial court found that while D.S. was competent to testify,
he was not available to testify at trial:
       It ultimately became clear that [D.S.] was not, would not, and could not be coaxed,
       pressured, or cajoled into answering questions in the sexual area and relative to
       Uncle Troy. It was clear that [D.S.], although physically present and competent, was
       in fact unavailable to testify relative to any substantive matters and issues before the
       Court in this case. There is no reasonable basis for this Court to believe or assume
       that availability in this area will improve or change. Thus, [D.S.] is found to be not
       reasonably available to testify in this case.
(J.A. at 305.) The state trial court then addressed the issue of indicia of trustworthiness. The court
found that D.S.’s statements to Aunt Sue and Cousin Cindy, where both asked D.S. what he was
doing when he was playing with his penis, “were spontaneous, clearly not orchestrated or directed.”
(J.A. at 306.) The court also found that D.S.’s response to Lorin’s question of whether anyone had
touched him in the wrong places was also spontaneous and very specific in light of his father’s
general question. The court also found that D.S.’s response to Lisa’s questioning was “spontaneous
and responsive, consistent with statements to three others.” (J.A. at 306.) Likewise, the court found
that D.S.’s response to the investigating detective was consistent. In sum, the court found D.S.’s
statements to bear particularized guarantees of trustworthiness:
       In this case, considering the totality of the circumstances, the Court find [sic]
       particularized guarantee [sic] that [D.S.’s] statements are trustworthy. These indicia
       include the spontaneity of the statements to aunts [sic, should be aunt and cousin]
       and parents, the internal consistency as to all, the mental state of the child, [D.S.’s]
       lack of motive to fabricate, his use of terminology unexpected of a child of similar
       age, the means by which the statements were elicited, as well as the amount of time
       between acts and statements and circumstances of this case. In summary, [D.S.’s]
       statements consistently referred only to Uncle Troy and what he did. The
       terminology of “kiss his pee-pee” would not normally be expected of a four/five year
       old. The fact of the babysitting arrangement offered ample opportunity over a
       specific period of time. The unprovoked or directed statements to the aunts [sic] had
       a particularly high degree of spontaneity and consistency.
(J.A. at 306-07.)
       The court also found independent proof of sexual acts. The court referred to a letter that
Lorin and his father found in Petitioner’s bedroom.2 The court ultimately concluded that the hearsay
evidence was admissible under Ohio Evidence Rule 807.



       2
           We will not delve into the details of this issue, as it is not before this Court.
No. 05-3092                Stuart v. Wilson                                                                        Page 5


        On March 31, 2000, the jury found Petitioner guilty on all three counts. The state trial court
sentenced Petitioner to two life sentence for the rapes and one year imprisonment for the gross
sexual imposition, with the sentences to run concurrently. Petitioner appealed his conviction and
sentence.
        The state court of appeals affirmed. Petitioner made two claims before the state court of
appeals that are relevant to the instant case before this Court. In his Third Assignment of Error,
Petitioner claimed that the admission of the hearsay statements was improper under Ohio Evidence
Rule 807, and he claimed that the admission of the hearsay statements also violated his rights under
the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. In his Seventh
Assignment of Error, Petitioner claimed that the state trial court committed error when it denied his
request to call D.S. as a witness, in violation of his rights under the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution.
        The state court of appeals found that the trial court conducted the proper analysis as to the
admissibility of the hearsay statements under Ohio Evidence Rule 807. As to the particularized
guarantees of trustworthiness, the court found that the parents had enjoyed a good relationship with
Petitioner before the discovery of the abuse, so there was no motive to lie. In addition, the explicit
nature of the child’s statements also indicated trustworthiness. Finally, the court also agreed with
the state trial court that the statements were spontaneous. As to unavailability, the court found that
an uncooperative child could be determined to be unavailable under Rule 807. The court also found
that the prosecution had met the remaining two requirements, independent evidence of the sexual
act and proper notice of the intent to use the hearsay statements.
        The court also found that under Rule 807, if the child victim was uncooperative and thus
found unavailable, the defendant did not have the right to call the child victim to testify as a witness.
The court held that Petitioner’s right to confrontation under the Sixth Amendment of the
Constitution had not been violated by the admission of the hearsay statements under Rule 807, as
the Ohio Supreme Court had already ruled that Rule 807 met the Confrontation Clause requirements
in State v. Storch, 612 N.E.2d 305 (Ohio 1993).
        Petitioner appealed the decision to the state supreme court. In his memorandum in support
of the appeal, he argued, among other things, that the admission of the hearsay statements did not
conform to Ohio Evidence Rule 807 and violated his due process rights and his right to
confrontation under the United States Constitution. The Ohio Supreme Court denied Petitioner
leave to appeal. The United States Supreme Court denied Petitioner’s petition for writ of certiorari.
B.       FEDERAL PROCEEDINGS
         On March 17, 2003, Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 in federal
district court. On August 28, 2003, Petitioner filed a motion to file a corrected memorandum in
support of his petition, as the original memorandum was missing several pages. The district court
granted the motion. In his corrected memorandum, Petitioner argued, among other things, that the
admission of the hearsay statements was a violation of his due process rights and his right to
confrontation under the United States Constitution. Petitioner made three arguments: (1) the
declarant was not unavailable to testify at trial; (2) the hearsay statements did not have particularized
guarantees of trustworthiness; and (3) there was no independent proof of the sexual act.3


         3
            We note that Petitioner’s third claim, that there was no independent proof of the sexual act, was a claim that
the state trial court violated Ohio Evidence Rule 807. Generally speaking, a claim that a state trial court violated state
law is an insufficient basis for federal habeas relief: “Errors in application of state law, especially with regard to the
admissibility of evidence, are usually not cognizable in federal habeas corpus.” Walker v. Engle, 703 F.2d 959, 962 (6th
Cir. 1983) (citations omitted). Only errors of state law that result in a denial of fundamental fairness in violation of due
No. 05-3092                Stuart v. Wilson                                                                         Page 6


         On March 12, 2004, the magistrate judge recommended that the habeas petition be dismissed.
As to the admission of the hearsay statements, the magistrate judge found that to the extent
Petitioner challenged the admission on failure to conform to the requirements of Ohio Evidence4Rule
807, Petitioner did not have a cognizable claim, as the challenge was one solely of state law. See
note 3, supra. The magistrate judge found that Petitioner’s argument that his rights under the United
States Constitution were violated was made only in passing to the state appeals and state supreme
court. The magistrate judge also found that the state appeals court and the state supreme court had
made their decisions based solely on state law grounds. The magistrate judge therefore concluded
that Petitioner had failed to fairly present this claim to the state courts. The magistrate judge also
concluded that Petitioner had procedurally defaulted this claim in state court, as the time limitations
for post-conviction petitions under state law had since expired. This also meant that Petitioner had
technically exhausted his state court remedies. The magistrate judge found that Petitioner failed to
show adequate cause and prejudice for the procedural default, and he failed to show a miscarriage
of justice. The magistrate judge thus recommended that the district court reject this claim.
        Petitioner appealed the magistrate judge’s recommendation only with respect to the claim
of improper admission of the hearsay statements. Petitioner argued that he properly presented to the
state courts his claim under the Confrontation Clause of the United States Constitution. Petitioner
asserted that he specifically identified the source of federal law underlying his claim.
        On December 13, 2004, the district court adopted the magistrate judge’s recommendation,
with modification, and dismissed Petitioner’s habeas petition. The modification dealt with whether
Petitioner fairly presented his right to confrontation claim to the state courts. The district court
found that Petitioner had fairly presented this claim, so his claim was not barred by state law and
he therefore did not need to show cause and prejudice for his failure to raise the claim in state court.
The court cited to Baldwin v. Reese, where the Supreme Court explained:
         A litigant wishing to raise a federal issue can easily indicate the federal law basis for
         his claim in a state-court petition or brief, for example, by citing in conjunction with
         the claim the federal source of law on which he relies or a case deciding such a claim
         on federal grounds, or by simply labeling the claim “federal.”
(J.A. at 1274 (quoting Baldwin v. Reese, 541 U.S. 27, 32 (2004).) In his appeals to both the state
appeals court and the state supreme court, Petitioner stated that his claim as to the admission of the
hearsay statements was based in part on the United States Constitution, so that he in fact fairly
presented the claim to the state courts.
        While Petitioner had presented his right to confrontation claim to the state courts, the district
court held that the claim failed under the standards of the Antiterrorism and Effective Death Penalty


process are cognizable in federal habeas corpus proceedings. Id. (citations omitted).
         The question then becomes whether the state trial court’s admission of the hearsay statements, in light of the
alleged lack of independent proof of the sexual act, resulted in a due process violation. That question, however, is not
before this Court; while Petitioner argued to the district court that there was no independent proof of the sexual act, he
does not raise this argument in his brief to this Court.
         4
           Specifically, Petitioner argued to the district court that the hearsay evidence was inadmissible under Ohio
Evidence Rule 807 because D.S. was available to testify, D.S.’s hearsay statements did not have particularized
guarantees of trustworthiness, and there was no independent proof of the sexual act. We note that while Ohio Evidence
Rule 807 requires unavailability and particularized guarantees of trustworthiness, these same concepts are applicable
to the federal Confrontation Clause analysis. See infra. In other words, while a state law violation is generally not
cognizable at federal habeas, see note 3, supra, an action that is a state law violation may also be simultaneously a federal
constitutional or statutory violation, which is cognizable on federal habeas.
No. 05-3092           Stuart v. Wilson                                                         Page 7


Act (“AEDPA”), 28 U.S.C. § 2254. Petitioner claimed that the admission of the hearsay statements
was predicated on the state trial court’s finding of the unavailability of the declarant, and that this
finding was contrary to the clearly established Supreme Court precedents found in Coy v. Iowa, 487
U.S. 1012 (1986), and Maryland v. Craig, 497 U.S. 836 (1990). The district court rejected this
argument, relying on the Supreme Court’s holding in White v. Illinois, 502 U.S. 346 (1992), where
the Supreme Court limited Coy and Craig to the issue of what requirements were necessary under
the Confrontation Clause when a witness actually testified. The Supreme Court specifically refused
to extend the holdings of Coy and Craig to the admission of hearsay statements. In Petitioner’s case,
D.S. did not actually testify, so Coy and Craig were inapposite. The district court did issue a
certificate of appealability with respect to the claim of right to confrontation.
       On December 13, 2004, Petitioner timely filed a notice of appeal.
                                         II. DISCUSSION
A.     THE STATE COURT’S DECISION TO ADMIT HEARSAY EVIDENCE WAS NOT
       CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAW WHEN THE CHILD
       VICTIM DECLARANT WAS TECHNICALLY NOT UNAVAILABLE TO TESTIFY
       BUT WAS UNWILLING TO TESTIFY
       1.      Preservation of the Issue
       We agree with the district court’s holding that Petitioner fairly presented his right to
confrontation claim to the state courts.
       2.      Standard of Review
        When reviewing a district court’s habeas decision, this Court reviews the legal conclusions
de novo and the factual findings for clear error. Jones v. Jamrog, 414 F.3d 585, 590 (6th Cir. 2005).
Because Petitioner filed his habeas petition after the effective date of AEDPA, AEDPA applies.
Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under the strictures of that statute, the federal courts
may not grant habeas relief for a state prisoner unless the state court adjudication of his claim
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Petitioner argues that AEDPA is inapplicable in this case and that he is entitled to de
novo review because the state courts did not fully address the merits of his right to confrontation
claim. We disagree. The state court of appeals specifically held that the admission of the hearsay
statements under Ohio Evidence Rule 807 did not violate the Confrontation Clause, as the Ohio
Supreme Court had already held that Rule 807 comported with the Confrontation Clause in State v.
Storch, 612 N.E.2d 305. The state court therefore fully addressed Petitioner’s right to confrontation
claim and AEDPA applies.
        Petitioner does not claim that the state court unreasonably applied clearly established federal
law; he argues only that the state court decision was contrary to clearly established federal law. A
state court decision is contrary to clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by this Court on a question of law or if the state court decides
a case differently than this Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). “A legal doctrine is not ‘clearly established Federal law, as
determined by the Supreme Court’ unless it is based on ‘holdings, as opposed to the dicta, of the
Court’s decisions as of the time of the relevant state-court decision.’” Jamrog, 414 F.3d at 591
(quoting Williams, 529 U.S. at 412).
No. 05-3092               Stuart v. Wilson                                                                        Page 8


         3.       Analysis
       No clearly established federal law requires that, in order to satisfy the Confrontation Clause,
a declarant must be unavailable before the hearsay statements      of an alleged child victim may be
admitted under a non-firmly rooted hearsay exception.5 Thus, Petitioner may not attack the state
court decision based on the availability of D.S. to testify.
                  a.        Legal Framework
        The Sixth Amendment, in part, states: “In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. While the
Confrontation Clause could be interpreted literally to preclude all hearsay statements, Supreme
Court precedent demonstrates that this is not the case.
        In Ohio v. Roberts,6 the defendant was arrested for forgery of a check in the name of Bernard
Isaacs, and for possession of stolen credit cards in the names of Bernard and his wife Amy. 448 U.S.
at 58. The defendant contended that the Isaacs’ daughter, Anita, with whom he was acquainted,
gave him her parents’ checkbook and credit cards so that he could use them. Id. at 59. At a
preliminary hearing, before the defendant was even indicted, defense counsel called Anita as a
witness. Id. at 58. Anita testified that she knew the defendant, and that she had permitted him to
stay at her apartment for several days. Id. She denied, however, giving the defendant her parents’
checkbook and credit cards so that he could use them. Id.
        A state grand jury indicted the defendant for forgery, receiving stolen property, and heroin
possession. Id. In preparation for trial, the prosecution issued five subpoenas for Anita at her
parents’ residence. Id. at 59. She did not respond to these subpoenas and she did not appear at trial.
Id. At trial, the defendant testified that Anita had given him the checkbook and the credit cards so
that he could use them. Id. The state then offered Anita’s previous testimony in rebuttal. Id.
Relying on the Confrontation Clause, the defense objected, and the state trial court conducted a voir
dire hearing. Id. Anita’s mother, Amy, testified that Anita had gone to Tucson, Arizona shortly
after the preliminary hearing. Id. at 59-60. She testified that no one knew where Anita was. Id. at
60. The state trial court admitted the hearsay statements of Anita, and the defendant was convicted
on all counts. Id.


         5
           Firmly rooted hearsay exceptions are those that “rest upon such solid foundations that admission of virtually
any evidence within them comports with the substance of constitutional protection.” Ohio v. Roberts, 448 U.S. 56, 66
(1980) (internal quotation marks and citation omitted). “Admission under a firmly rooted hearsay exception satisfies
the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative
experience in assessing the trustworthiness of certain types of out-of-court statements.” Idaho v. Wright, 497 U.S. 805,
817 (1990). “This standard is designed to allow the introduction of statements falling within a category of hearsay whose
conditions have proved over time to remove all temptation to falsehood, and to enforce as strict an adherence to the truth
as would the obligation of an oath and cross-examination at a trial.” Lilly v. Virginia, 527 U.S. 116, 126 (1999) (internal
quotation marks and citation omitted). Examples of firmly rooted hearsay exceptions are (1) spontaneous declarations,
White v. Illinois, 502 U.S. 346, 357 (1992); (2) statements made for medical treatment, id.; (3) co-conspirator statements,
Bourjaily v. United States, 483 U.S. 171, 183 (1987); (4) voluntary admissions used against the declarant, Lilly, 527 U.S.
at 127.
         All other hearsay exceptions that do not have this longstanding recognition of reliability are non-firmly rooted
hearsay exceptions. Neither party argues that Ohio Evidence Rule 807 is a firmly rooted hearsay exception, and with
good reason: the state adopted the rule in 1991. Moreover, the rule is not analogous to any of the firmly rooted hearsay
exceptions. Thus, Ohio Evidence Rule 807 is a non-firmly rooted hearsay exception.
         6
           While Ohio v. Roberts has been partially overruled by Crawford v. Washington, 541 U.S. 36 (2004), it is still
relevant law in the instant case, as Petitioner’s sentence became final before Crawford, and Petitioner does not argue
that Crawford applies retroactively.
No. 05-3092           Stuart v. Wilson                                                          Page 9


        The Supreme Court held that the admission of the hearsay evidence was not error. The Court
first addressed the requirements that the Confrontation Clause placed on hearsay statements:
       The Confrontation Clause operates in two separate ways to restrict the range of
       admissible hearsay. First, in conformance with the Framers’ preference for face-to-
       face accusation, the Sixth Amendment establishes a rule of necessity. In the usual
       case (including cases where prior cross-examination has occurred), the prosecution
       must either produce, or demonstrate the unavailability of, the declarant whose
       statement it wishes to use against the defendant. . . .
       The second aspect operates once a witness is shown to be unavailable. Reflecting
       its underlying purpose to augment accuracy in the factfinding process by ensuring
       the defendant an effective means to test adverse evidence, the Clause countenances
       only hearsay marked with such trustworthiness that there is no material departure
       from the reason of the general rule.
Id. at 65 (internal quotation marks and citations omitted). With respect to unavailability, the Court
noted that “[a] demonstration of unavailability is not always required. In Dutton v. Evans 400 U.S.
74 . . . (1970), for example, the Court found that the utility of trial confrontation was so remote that
it did not require the prosecution to produce a seemingly available witness.” Id. at 65 n.7. With
respect to trustworthiness, the Court stated, “Reliability can be inferred without more in a case
where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must
be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id. at 66.
The Court found that the circumstances surrounding Anita’s testimony at the preliminary hearing
indicated trustworthiness, and that Anita was unavailable, so that the admission of the hearsay
statements did not violate the Confrontation Clause. Id. at 73, 77.
        In United States v. Inadi, 475 U.S. 387 (1986), the Supreme Court abrogated the
unavailability requirement of Roberts. There, the defendant was indicted for conspiracy to
manufacture and distribute methamphetamines. Id. at 388-89. At trial, the prosecution sought to
introduce evidence of taped conversations of the other co-conspirators, who were not indicted. Id.
at 390. The district court found that the hearsay statements of the co-conspirators were admissible
under Federal Rule of Evidence 801, as they were statements made during the course and in the
furtherance of the conspiracy. Id. The defendant objected on Confrontation Clause grounds,
claiming “that the statements were inadmissible absent a showing that the declarants were
unavailable.” Id. The prosecution subpoenaed one of the co-conspirators (“Lazaro”), but he failed
to appear. Id. Nonetheless, the district court admitted the statements based on Federal Rule of
Evidence 801. Id. at 391.
         The Supreme Court held that the evidence was properly admitted, despite the prosecution’s
failure to prove that Lazaro was unavailable. The Court explained that while language in Roberts
could be read to support the proposition that a party must prove a declarant’s unavailability as a
prerequisite for the admission of any hearsay statement,
       Roberts should not be read as an abstract answer to questions not presented in that
       case, but rather as a resolution of the issue the Court said it was examining: the
       constitutional propriety of the introduction in evidence of the preliminary hearing
       testimony of a witness not produced at the defendant’s subsequent state criminal
       trial.
       ...
       Roberts must be read consistently with the question it answered, the authority it
       cited, and its own facts. All of these indicate that Roberts simply reaffirmed a
No. 05-3092               Stuart v. Wilson                                                                     Page 10


         longstanding rule . . . that applies unavailability analysis to prior testimony. Roberts
         cannot fairly be read to stand for the radical proposition that no out-of-court
         statement can be introduced by the government without a showing that the declarant
         is unavailable.
Id. at 392-94 (internal quotation marks and citation omitted).
        The Court found that the unavailability rule, while logical in the context of prior testimony,
was inapplicable to the hearsay statement of a co-conspirator. With respect to prior testimony, the
Court stated that prior testimony was often merely a weaker substitute for live testimony at trial.
Id. at 394. “When two versions of the same evidence are available, longstanding principles of the
law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence.” Id.
The hearsay statements of a co-conspirator, however, could not be adequately replaced by live
testimony:
         Because they are made while the conspiracy is in progress, such statements provide
         evidence of the conspiracy’s context that cannot be replicated, even if the declarant
         testifies to the same matters in court. . . . Conspirators are likely to speak differently
         when talking to each other in furtherance of their illegal aims than when testifying
         on the witness stand.
         ...
         [C]o-conspirator statements derive much of their value from the fact that they are
         made in a context very different from trial, and therefore are usually irreplaceable as
         substantive evidence. Under these circumstances, only clear folly would dictate an
         across-the-board policy of doing without such statements.
Id. at 395-96 (internal quotation marks and citation omitted).
         The Court continued and explained why a universal unavailability rule would have little
benefit. First, the rule would not be a “better evidence” rule, as it would exclude evidence only
when the prosecution failed to produce an available declarant. Id. at 396. Second, key witnesses
at a trial would have already been subpoenaed, thus causing the rule to be relevant only to witnesses
with marginal information. Id. at 397. The Court then found that the burdens placed on the
prosecution by such a rule would be great, as the prosecution would be responsible for keeping
abreast of all of the movements of the declarants. Id. at 399. The Court concluded that the
unavailability rule was inapplicable to co-conspirator hearsay statements. Id. at 400.
       In Idaho v. Wright, 497 U.S. 805, the Supreme Court addressed Confrontation Clause
requirements in the context of the hearsay statements of an alleged child victim of sexual abuse. The
defendant was the mother of the two alleged victims of abuse, who were two and one-half years old
(“younger daughter”) and five and one-half years old (“older daughter”) at the time the defendant
was charged. Id. at 809. The allegations were that the defendant had held down her daughters while
her boyfriend raped them. After allegations of abuse had surfaced, a doctor examined the younger
daughter. Id. The doctor found strong evidence of sexual abuse of the younger daughter. Id. The
case revolved around certain statements elicited by the doctor from the younger daughter.7 Id. at
810-11. Over the objection of the defendant, the doctor testified as to the hearsay statements of the
younger daughter, as the state trial court found that they fell within the residual hearsay exception


         7
          The content of these statements will be discussed, infra, when we address the issue of particularized guarantees
of trustworthiness.
No. 05-3092           Stuart v. Wilson                                                         Page 11


of the state. Id. at 811-12. The state trial court found that the younger daughter was incapable of
communicating to the jury. Id. at 809.
      The Supreme Court made no finding as to whether the unavailability rule would apply to the
younger daughter’s hearsay statements:
       Applying the Roberts approach to this case, we first note that this case does not raise
       the question whether, before a child’s out-of-court statements are admitted, the
       Confrontation Clause requires the prosecution to show that a child witness is
       unavailable at trial–and, if so, what that showing requires. The trial court in this case
       found that respondent’s younger daughter was incapable of communicating with the
       jury, and defense counsel agreed. . . . For purposes of deciding this case, we assume
       without deciding that, to the extent the unavailability requirement applies in this
       case, the younger daughter was an unavailable witness within the meaning of the
       Confrontation Clause.
Id. at 815-16. The Supreme Court thus did not address whether the unavailability rule applied to
an alleged child victim’s hearsay statements when those statements were admitted under a non-
firmly rooted hearsay exception.
        In White v. Illinois, 502 U.S. 346, the Supreme Court again addressed hearsay statements and
the Confrontation Clause in the context of an alleged child victim of sexual abuse. There the
evidence showed that in the early morning hours of April 16, 1988, the defendant sexually attacked
S.G., a four-year old girl, in S.G.’s home. Id. at 349. S.G.’s babysitter heard S.G.’s screams and
went to her room, where he saw the defendant leave the room. Id. The babysitter knew the
defendant because the defendant was a friend of S.G.’s mother. Id. The babysitter asked S.G. what
had happened, and S.G. stated that the defendant had choked her, threatened her, and had touched
her inappropriately. Id. S.G.’s mother came home soon thereafter and asked S.G. what had
happened. S.G. repeated what she had told the babysitter earlier. Id. The mother called the police,
and a police officer questioned S.G. Id. at 349-50. S.G. repeated the same story she had told the
babysitter and her mother. Id. at 350. S.G. was then taken to the hospital, where she was examined
by a nurse and then a doctor. Id. S.G. told the nurse and the doctor the same story she had told to
the other individuals. Id.
         At trial, S.G. did not testify. The prosecution twice attempted to call her as a witness, but
she “experienced emotional difficulty” and did not testify. Id. Over the defendant’s objection, the
state trial court admitted S.G.’s hearsay statements to the babysitter, the mother, and the police
officer under the spontaneous declaration exception. Id. Over the defendant’s objection, the state
trial court admitted S.G.’s hearsay statements to the nurse and the doctor under both the spontaneous
declaration exception and the exception for statements made in the course of medical treatment. Id.
at 350-51.
        The Supreme Court affirmed the admission of all of the statements. The defendant, relying
on Roberts, argued that the Confrontation Clause required that the declarant be unavailable before
the hearsay statements could be admitted. Id. at 353. Echoing its analysis in Inadi, the Supreme
Court found, “Roberts stands for the proposition that unavailability analysis is a necessary part of
the Confrontation Clause inquiry only when the challenged out-of-court statements were made in
the course of a prior judicial proceeding.” Id. at 354 (citation omitted). The Supreme Court found
that the circumstances that support the trustworthiness of a spontaneous declaration or a statement
in the course of medical treatment “cannot be recaptured even by later in-court testimony.” Id. at
355-56. Live testimony could not replicate the excitement that causes a spontaneous declaration,
nor could it replicate a medical setting, where a false statement could cause misdiagnosis or
mistreatment. Id. at 356.
No. 05-3092           Stuart v. Wilson                                                          Page 12


         The Supreme Court concluded that when a hearsay statement “has sufficient guarantees of
reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is
satisfied.” Id. at 356. The Supreme Court rejected the defendant’s reliance on Coy v. Iowa, 487
U.S. 1012 (1988), and Maryland v. Craig, 497 U.S. 836 (1990). The Supreme Court explained that
those cases involved in-court procedures where the alleged child victim actually testified at trial; in
Coy, the witness testified behind a screen, and in Craig, the witness testified via closed circuit
television. Id. at 357. In those two cases, the Supreme Court required the prosecution to prove the
necessity of the procedure to “avert a risk of harm to the child.” Id. The defendant argued that the
hearsay statements of an alleged child victim should be admitted only when the prosecution makes
a showing of necessity, i.e., testifying would create a risk of harm to the witness. Id. The Supreme
Court disagreed, finding Coy and Craig inapplicable to out-of-court statements. Id. at 358.
                b.      Application to This Case
         There is no clearly established federal law that requires an alleged child victim to be
unavailable before his hearsay statements may be admitted under a hearsay exception that is not
firmly rooted. Petitioner relies primarily on Roberts, claiming that the Confrontation Clause requires
a declarant to be unavailable before the admission of the declarant’s hearsay statements. Petitioner
fails to recognize that the Supreme Court has twice limited the unavailability rule in Roberts, in both
Inadi and White, to hearsay statements made in a prior judicial proceeding. Of most significance,
the Supreme Court proclaimed in White that “Roberts stands for the proposition that unavailability
analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-
court statements were made in the course of a prior judicial proceeding.” 502 U.S. at 354 (citation
omitted) (emphasis supplied). We acknowledge that in Wright, the Supreme Court seemed to use
Roberts as a general framework in discussing hearsay statements under the Confrontation Clause;
however, the Supreme Court followed Wright with the previously-cited language in White, which
clearly limited the Roberts unavailability analysis to hearsay statements made in a prior judicial
proceeding. To the extent friction exists between Wright, Inadi, and White, such friction
demonstrates that there is no clearly established federal law as to an unavailability rule for the
hearsay statement of an alleged child victim under a hearsay exception that is not firmly rooted.
      As explained above, Petitioner may rely only on the holdings of Supreme Court cases to
demonstrate clearly established federal law. In our view, the Supreme Court held the following:
(1)     In Ohio v. Roberts, the Supreme Court held that the admission of hearsay statements made
        in prior judicial proceedings was dependent upon the unavailability of the declarant.
(2)     In United States v. Inadi, the Supreme Court held that the admission of a co-conspirator’s
        hearsay statement was not dependent upon the unavailability of the declarant.
(3)     In Idaho v. Wright, the Supreme Court made no holding as to whether the unavailability of
        the declarant was a prerequisite to the admission of hearsay statements of an alleged child
        victim under a non-firmly rooted hearsay exception.
(4)     In White v. Illinois, the Supreme Court held that the admission of hearsay statements of an
        alleged child victim under a firmly rooted hearsay exception was not dependent upon the
        unavailability of the declarant.
No Supreme Court holding clearly establishes the applicability of an unavailability rule in this case.
This is not a situation where “the state court arrive[d] at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or [where] the state court decide[d] a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. The
Supreme Court has not reached a conclusion as to an unavailability rule for the admission of hearsay
statements of an alleged child victim under a non-firmly rooted hearsay exception; in fact, the
No. 05-3092           Stuart v. Wilson                                                         Page 13


Supreme Court explicitly left this exact issue open in Wright. Moreover, White contained
unambiguous direction from the Supreme Court to apply the unavailability analysis only with
hearsay statements made in prior judicial proceedings. We therefore hold that the admission of
D.S.’s hearsay statements, despite the fact that D.S. was technically not unavailable, was not
contrary to clearly established federal law.
        Our decision today is further grounded in a prior decision of this Court. In Bugh v. Mitchell,
this Court found, on post-AEDPA habeas review, that the Roberts unavailability analysis was
limited to hearsay statements made in prior judicial proceedings. 329 F.3d 496, 507 n.3 (6th Cir.
2003).
        To the extent Petitioner relies on Coy and Craig for the proposition that the prosecution must
establish necessity before substituting D.S.’s hearsay statements for D.S.’s testimony, we agree with
the district court that the Supreme Court rejected this exact position in White.
B.     THE STATE COURT’S DECISION TO ADMIT HEARSAY EVIDENCE WAS NOT
       CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAW WHEN
       CONSIDERING THE PARTICULARIZED GUARANTEES OF
       TRUSTWORTHINESS OF THE HEARSAY EVIDENCE
       1.      Preservation of the Issue
       We agree with the district court’s holding that Petitioner fairly presented his right to
confrontation claim to the state courts.
       2.      Standard of Review
       The appropriate standard of review is set out above.
       3.      Analysis
        D.S.’s hearsay statements were characterized by particularized guarantees of trustworthiness,
as defined by the Supreme Court. As a result, the admission of D.S.’s hearsay statements was not
contrary to clearly established federal law.
               a.      Legal Framework
       As explained above, in Ohio v. Roberts, the Supreme Court set out a two-step Confrontation
Clause analysis for hearsay statements. The first step, the unavailability of the declarant, has been
the subject of continued abrogation and qualification. See supra. The second step, the
trustworthiness of the hearsay statements, has not been placed into doubt, outside of Crawford. In
Roberts, the Court observed that “[r]eliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be
excluded, at least absent a showing of particularized guarantees of trustworthiness.” 448 U.S. at 66.
         In Idaho v. Wright, the Supreme Court explained what the particularized guarantees of
trustworthiness encompassed in the context of an alleged child victim declarant. In that case, the
alleged child victim was taken to a doctor. 497 U.S. at 809-10. Over the defendant’s objection, the
doctor testified at trial as to statements made by the alleged child victim. Id. at 810. The trial court
admitted the hearsay statements under the residual hearsay exception. Id. at 811-12. The doctor
testified that he asked the child the following questions: “Do you play with your daddy? Does daddy
play with you? Does daddy touch you with his pee-pee? Do you touch his pee-pee?” Id. (quotation
marks omitted). The doctor testified that the child said yes to the question, “Does daddy touch you
with his pee-pee,” and the child did not respond to the question, “Do you touch his pee-pee.” Id.
No. 05-3092               Stuart v. Wilson                                                                  Page 14


at 811. After this line of questioning, the child volunteered the statement that daddy engaged in such
conduct with her older sister on a more frequent basis. Id.
         The Supreme Court held that the hearsay statements were inadmissible. The Court reiterated
the rule in Roberts that a hearsay statement must be trustworthy in order to satisfy the Confrontation
Clause. Id. at 816. The hearsay statement must fall under a firmly rooted hearsay exception, or it
must have particularized guarantees of trustworthiness. Id. (citation omitted). The Court stated that
a hearsay statement that did not fall under a firmly rooted hearsay exception was presumptively
unreliable. Id. at 818 (citation omitted). In the case of such a hearsay statement, the party seeking
admission must prove particularized guarantees of trustworthiness. Id. at 819. The particularized
guarantees of trustworthiness must be demonstrated through the totality of the circumstances.
Moreover, the particularized guarantees of trustworthiness must derive from the surrounding
circumstances of the hearsay statement. Id. at 819-20 (“[B]ut we think the relevant circumstances
include only those that surround the making of the statement and that render the declarant
particularly worthy of belief.”). Thus, evidence corroborating the hearsay statement may not be
considered a particularized guarantee of trustworthiness: “To be admissible under the Confrontation
Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue
of its inherent trustworthiness, not by reference to other evidence at trial.” Id. at 822.
        For hearsay statements made by an alleged child victim of sexual abuse, the Supreme Court
listed the following factors as particularized guarantees of trustworthiness: (1) spontaneity; (2)
consistent repetition; (3) the mental state of the declarant; (4) the8 use of terminology unexpected of
a child of similar age; and (5) the lack of a motive to fabricate. Id. at 821-22.
         Armed with these principles, the Supreme Court held that the hearsay statements of the child
to the doctor were inadmissible. The statements were admitted under the residual hearsay exception,
not a firmly rooted hearsay exception. Id. at 817. The Court found that the questions posed by the
doctor were suggestive and leading, and the responses were thus unreliable. Id. at 826. As to the
statement later volunteered by the child concerning her older sister, the Court found that while the
spontaneity of the statement suggested reliability, ultimately the spontaneity of the statement could
have been influenced by the preceding suggestive questioning. Id. at 826-27.
                  b.       Application to This Case
         We begin with the presumption that D.S.’s hearsay statements are inadmissible, as they do
not fall under a firmly rooted hearsay exception. With respect to spontaneity, we conclude that the
state court’s finding that all of the statements had a degree of spontaneity and were not the result of
suggestion is not contrary to clearly established federal law. When both Aunt Sue and Cousin
Cindy, on two separate occasions, questioned D.S. as to why he was playing with his penis, he
responded that Petitioner did so. When Cindy asked what else Petitioner did, D.S. responded that
Petitioner kissed his penis and played with his anus. Unlike the facts in Wright, the questions posed
by Cousin Cindy were not leading or suggestive; in fact, Cousin Cindy testified that she was shocked
at D.S.’s response. With respect to D.S.’s statements to Lorin, Lorin testified that, on October 5,
1999, after Aunt Sue had informed him of Petitioner’s possible abuse of D.S., Lorin asked D.S. if
anyone was touching him inappropriately. D.S. replied that Petitioner had been doing so. Lorin
asked what exactly Petitioner did, and D.S. replied that Petitioner made D.S. perform oral sex on
Petitioner, and that Petitioner would perform oral sex on D.S. In no way did Lorin imply, suggest,
or otherwise lead D.S. to name Petitioner as the perpetrator, nor did he lead D.S. to specify the
conduct involved. Moreover, Lorin testified that after October 5, 1999, D.S. would make
spontaneous statements about Petitioner’s conduct. With respect to D.S.’s statements to Lisa, the


       8
           These factors are listed under Ohio Evidence Rule 807 and were considered by the state courts.
No. 05-3092           Stuart v. Wilson                                                         Page 15


record is unclear as to her conversation with D.S. on October 5, 1999, although Lisa testified that
the conversation duplicated Lorin’s conversation with D.S.; however, Petitioner points to no
evidence that Lisa was suggestive or leading in that conversation. Lisa further testified that after
October 5, 1999, D.S. would make spontaneous statements to her about Petitioner concerning the
abuse. With respect to D.S.’s statements to the investigating detective, the detective testified that
she asked D.S. if anyone had touched his penis, and D.S. replied that Petitioner had done so. The
state court’s finding that this question was not leading or suggestive is not contrary to clearly
established federal law. The detective’s question of whether D.S. touched Petitioner’s penis,
however, was leading in the same way the questions posed by the doctor in Wright were leading;
the answer to the question was embedded in the question itself, so that D.S. only had to respond
“yes.” The detective’s question of whether D.S. had failed to mention anything, to which D.S.
explained that the sexual abuse involved oral sex, was not leading. While the detective already
knew from Lorin and Lisa that the abuse did in fact involve oral sex, the detective did not suggest
this answer in her question.
        With respect to consistent repetition, the record shows that D.S. recounted the same facts
concerning the abuse he suffered at the hands of Petitioner. In 1997, D.S. told Cousin Cindy that
Petitioner performed oral sex on D.S. On October 5, 1999, D.S. told essentially the same story to
his father, his mother, and the investigating detective. In our view, the fact that D.S. told the same
story more than two years after his statements to Cousin Cindy especially supports the reliability of
D.S.’s statements.
         With respect to the mental state of D.S., most of D.S.’s statements were not made under
stress, excitement, or similar mental states that would lend reliability to those statements. The only
possible situation where D.S.’s mental state may have been a factor was on October 5, 1999, when
Lorin asked D.S. whether anyone had touched him inappropriately. D.S. appeared as if he was about
to cry, and he answered that Petitioner had touched him. Lorin then asked what Petitioner did, and
D.S. described the nature of the abuse. It appears that D.S. answered these questions in an emotional
state, so as to decrease the likelihood of fabrication.
        With respect to use of terminology unexpected of a child of similar age, D.S.’s description
of the oral sex involved in the abuse is strong evidence as to the reliability of his statements. When
D.S. was three years old, he told Cousin Cindy that Petitioner performed oral sex on D.S. and that
Petitioner played with D.S.’s anus. When D.S. was five years old, D.S. told his father, mother, and
the investigating detective that Petitioner made D.S. perform oral sex on Petitioner and that
Petitioner performed oral sex on D.S. It is extremely unlikely that a child so young even has an
inkling as to the concept of oral sex, let alone knowledge sufficient to concoct a falsehood
concerning oral sex.
        With respect to the lack of a motive to fabricate the statements, there is nothing in the record
that suggests any animosity or any other reason D.S. would fabricate the statements about Petitioner.
Indeed, D.S. “indicated that he liked ‘Uncle Troy’ when he was not made to touch Troy or when
Troy did not touch him.” (J.A. at 1006.)
        When viewed in the totality of the circumstances, the factors are sufficient to establish
particularized guarantees of trustworthiness as to D.S.’s statements to overcome the presumption
of the inadmissibility of those statements. The manner in which the statements were elicited, the
consistency of the statements, the use of terminology unexpected of such a young child, and the lack
of a motive to fabricate the statements all indicate that the statements were reliable. At most, D.S.’s
response to the detective’s question of whether D.S. touched Petitioner’s penis was unreliable and
inadmissible, as the question was leading; however, the improper admission of this statement was
harmless, when considering the extent of the reliable statements properly admitted.
No. 05-3092        Stuart v. Wilson                                           Page 16


      For the foregoing reasons, we AFFIRM the order of the district court.
