UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         HOLDEN, HOFFMAN, and SULLIVAN
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                      Specialist THOMAS E. RUSSELL, JR.
                         United States Army, Appellant

                                   ARMY 20050281

              United States Army Field Artillery Center and Fort Sill
                         Donna M. Wright, Military Judge
     Lieutenant Colonel Lorianne M. Campanella, Acting Staff Judge Advocate
                                (recommendation)
            Colonel Randall L. Keys, Staff Judge Advocate (addendum)

For Appellant: Colonel John T. Phelps II, JA; Lieutenant Colonel Steven C.
Henricks, JA; Major Billy B Ruhling, JA; Captain Ryan M. Suerth, JA (on brief).

For Appellee: Captain Jaired D. Stallard, JA; Captain Magdalena A. Acevedo, JA;
Major Tami L. Dillahunt, JA; Colonel John W. Miller II, JA (on brief).

                                     29 April 2008

                             ------------------------------------
                               OPINION OF THE COURT
                             ------------------------------------

SULLIVAN, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of rape of a child under twelve years of
age, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920
[hereinafter UCMJ]. The convening authority approved the adjudged sentence to a
dishonorable discharge, forfeiture of all pay and allowances, confinement for ten
years, and reduction to Private E1. This case is before the court for review pursuant
to Article 66, UCMJ.

       Appellant asserts the military judge erred by admitting statements made by
the victim, MR, to a neighbor, YH, and to a psychologist, Doctor (Dr.) Robert
Finkelstein. First, appellant contends that MR’s statements to YH were improperly
admitted under Military Rule of Evidence [hereinafter Mil. R. Evid.] 807 and in
violation of appellant’s Sixth Amendment right to confrontation under Crawford v.
Washington, 541 U.S. 36 (2004). Second, appellant contends MR’s statements to
RUSSELL – ARMY 20050281


Dr. Finkelstein were improperly admitted under Mil. R. Evid. 803(4) and the
Confrontation Clause.

       We find MR’s statements to YH were nontestimonial under Crawford because
there was no governmental involvement and no anticipation that such statements
would be used at trial. 1 Furthermore, we find that the statements made to YH were
properly admitted under Mil. R. Evid. 807.

       In analyzing appellant’s second assignment of error, we agree the military
judge erroneously admitted MR’s statements to Dr. Finkelstein under Mil R. Evid.
803(4). To assure the fullest protection of appellant’s confrontation rights, we apply
a constitutional standard for determining prejudice; nevertheless, we find the
military judge’s error harmless beyond a reasonable doubt and affirm the findings of
guilty and the sentence.

                                       FACTS

                                     Background

       Appellant, a thirty-two-year-old married operations clerk, pleaded not guilty
to raping his five-year-old daughter, MR, in Lawton, Oklahoma, between December
2003 and April 2004, and at Fort Sill, Oklahoma, on 11 September 2004. The
government’s case consisted principally of two confessions made by appellant to
criminal investigators, corroborated by two witnesses: YH, a neighbor in Fort Sill
family housing, and Dr. Finkelstein, a psychologist who interviewed MR
approximately two months after the allegations first surfaced.


1
  We note, without resolving, the possibility MR’s physical presence and limited
testimony at trial satisfied appellant’s right to confrontation under the Sixth
Amendment. See United States v. Owens, 484 U.S. 554, 561 (1988) (“Ordinarily, a
witness is regarded as subject to cross-examination when she is placed on the stand,
under oath, and responds willingly to questions.” (quotation marks and citation
omitted)); see also United States v. Rhodes, 61 M.J. 445, 450 (C.A.A.F. 2005) (“It
seems counterintuitive that a witness who professes no memory of an event
described in an earlier statement is available for confrontation purposes but
unavailable for hearsay purposes. Yet that is the law . . . .”). At trial, the military
judge made findings of fact and conclusions of law that MR “could not even testify
on direct examination” and was not available “for purposes of the confrontation
clause.” These remarks, along with the cases cited by the military judge to support
her findings (United States v. Dorian, 803 F.2d 1439 (8th 1986) and United States v.
Lyons, 36 M.J. 183 (C.M.A. 1992)), indicate that the military judge made a finding
that appellant’s constitutional right to cross-examination was not satisfied through
the limited testimony of MR. Since there is no absolute line as to what constitutes
sufficient cross-examination for a child witness, we will not disturb the decision of
the military judge.


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RUSSELL – ARMY 20050281


        YH, a military spouse, was the first to report appellant’s rape of his young
daughter. YH lived on post with her husband and three young children across the
street from appellant and his family. Her six-year-old daughter, ZH, was a playmate
of the victim. On 12 September 2004, the two girls, MR and ZH, were playing in
ZH’s bedroom. YH went to check on the girls because they had become quiet; she
found the bedroom door locked and knocked several times, but the girls did not open
the door. YH, who thought the girls were engaged in normal play, directed, “ZH,
open this door or I’m going to spank you.” At that point, ZH opened the door
looking “like the cat that ate the canary.” MR was standing on the other side of the
bed with her shirt off. MR pointed at ZH and laughingly stated, “ZH wanted to play
it; she liked it.” YH, who was confused about what game the girls were playing,
asked, “What’s going on?” ZH didn’t answer, but MR responded they were playing
a “sex game.”

       YH immediately became concerned. She sent ZH from the room, had MR put
her shirt back on, and took MR to the living room. Still smiling, YH told MR, “I
want you to tell me about this game.” MR said it took two people (a boy and a girl)
who take off their clothes, lock the door, get on the bed, and go up and down. MR
then demonstrated a pumping motion, laid on the floor on her stomach, and made her
“midsection” go up and down. MR said her mom and dad do it and asked YH,
“Don’t you and your husband do it?” MR also said, “my daddy showed me and he
hurt me in the middle.”

        YH proceeded to ask MR open-ended questions about the incident. YH
testified she was aware that, if a question suggested an answer, children would “take
it and run with it.” YH asked MR to explain the “middle,” and MR pointed to the
center of the coffee table. When YH asked MR to point to her middle, MR pointed
between her legs, at her vagina. MR said that it happened at “the other house, not
where we live at now.” YH asked how many times it happened; MR held up two
fingers and said “two.” Finally, YH asked where her mother was at those times and
MR said that “she was outside raking the grass.” YH had MR recount the incidents
twice; on the third time, MR replied, “I already told you that.” YH asked no further
questions.

       The conversation ended when MR asked for something to drink. YH, who
was “rattled” by the disclosure, got the drink, took MR aside, and, in a comforting
tone of voice, told her that “this is not a game for little girls to play.” YH added, “if
[MR] wanted to continue to play these games with ZH, she wouldn’t be allowed to
play” with ZH. MR’s demeanor changed noticeably from “smiling, bubbly, and
happy” to sad. YH asked no further questions and reported the conversation to Mrs.
Russell, appellant’s wife and MR’s mother. Mrs. Russell informed YH that she told
MR about sex when MR walked in on her parents being “intimate” when MR was
three years old.

       YH spoke with Mrs. Russell a few days later. Mrs. Russell stated she had
talked to MR and decided “we were just going to take this and we were going to put



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RUSSELL – ARMY 20050281


it in a little box and we’re going to set it over here.” Until then, YH had not
intended to report MR’s statements to any official agency because she did not want a
girl as young as MR to be taken from her mother. At the time she had the
conversation with MR, YH did not contemplate calling the Oklahoma Department of
Human Services (DHS) or envision future court proceedings. YH’s “heart went out
to MR and I felt like I couldn’t tell her mother fast enough.” She assumed that Mrs.
Russell “would take care of it.” After concluding Mrs. Russell was not taking
appropriate action in a timely manner, YH notified DHS officials. They took
custody of MR.

       On 17 September 2004, appellant was apprehended by the military police and
transported to the Criminal Investigation Command (CID) office. Appellant was
appropriately notified of the charges against him, advised of his right to counsel, and
his rights against self-incrimination under Article 31, UCMJ. After a knowing and
voluntary waiver of those rights, appellant was interviewed by several CID agents.
Appellant provided an initial statement and the CID agents asked clarifying
questions. Appellant completed a sworn statement indicating that, while his wife
was absent, MR would climb on him while he was lying in bed. He recalled one
incident at their home in Lawton in which he was lying naked in bed with an erect
penis. MR, wearing a night gown, climbed on top of him, straddled him, and moved
back and forth simulating sexual activities. Although appellant initially vacillated
on the issue of penetration of MR’s vagina, he eventually clarified there was slight
penetration of about one-eighth of an inch. Appellant also confessed to a similar
incident involving MR straddling him the week before, on 11 September 2004, while
his wife was at work. On this second occasion, appellant stated MR began a rocking
motion, which gave him an erection. Although MR was wearing underwear and he
was wearing shorts, he admitted that their “private parts made contact” and
eventually conceded “slight penetration” of about five-eighths of an inch. He denied
assisting MR in the rocking motion.

       A few days later, appellant voluntarily returned to the CID office to “clarify”
his previous statement. A different investigative agent conducted this interview and,
once again, appellant confessed to two “incidents” when his daughter climbed on top
of him. In his second statement, appellant admitted that, while his daughter lay on
top of him and his penis was on her vagina, he started moving her up and down in a
rocking motion, at which time he believed his penis “may have put pressure on her
vaginal opening and caused her to experience some pain at the time.” He continued
rocking until he eventually realized his actions were wrong and stopped. Appellant
described the second incident in similar terms.

       Over two months after YH’s report, DHS requested Dr. Finkelstein, who
possessed a doctorate in psychology and a master’s degree in social work, to assess
MR and make recommendations for treatment. Wearing casual civilian clothes, Dr.
Finkelstein met MR only once in his office which he described as “homey.” He did
not introduce himself by name, although MR called him “Dr. Bob.” Instead, he
introduced himself by telling MR he understood she was in foster care and he was



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RUSSELL – ARMY 20050281


there to try to help her with that: “I explained to her that I was going to try and help
her with her foster care situation.” He then placed MR in a play therapy area where
she could relax, play, and have fun. MR was allowed to choose her play things.

       Dr. Finkelstein testified that he did not “go into specifics of why I was there
to help her.” As he explained, his style is to use a relaxed atmosphere and he did
not want to traumatize MR. He further stated that he never discussed with MR how
he could help her with the alleged sexual abuse. Dr. Finkelstein testified he
interrupted MR and asked her to use anatomically correct dolls “to demonstrate what
happened to her that got her into foster care.” MR picked one male and one female
doll and, with Dr. Finkelstein’s assistance, undressed them. She then put the male
doll on top of the female doll, carefully aligning the respective genital areas. MR
then stepped away from the dolls and said “It happened twice,” “it hurt,” and “her
dad told her not to tell her mom but she told her mom.” Afterward, Dr. Finkelstein
thanked MR and let her go back to the play area.

                                   Trial Proceeding

      At trial, the government moved to admit MR’s statements under Mil. R. Evid.
807. The government noted they would attempt to produce MR at trial; however,
they were unsure “[h]ow willing she is to talk about the allegations and the sex
game.” All parties agreed to reserve judgment on the admissibility of MR’s
statements to YH until MR testified.

       The government first called MR as a witness. On direct examination, MR was
able to testify that ZH’s mom (YH) was nice, did not scare her, and that she told YH
about the sex game. Even with prompting from the trial counsel and military judge,
however, MR refused to respond to more specific questions about the incident.
When specifically asked about the “sex game,” MR began to cry and the military
judge called a recess.

        Approximately fifteen minutes later, the court-martial reconvened and MR
was again called to testify. Almost immediately, MR stated, “I’m scared,” and again
refused to respond to specific questions about the incident or the “sex game.” The
trial counsel ceased questioning the witness and the defense counsel stated he had no
“cross[-examination]” of the witness. Again, the military judge excused MR from
the stand, but reserved judgment on the “unavailability” of MR. The military judge
wanted to “hear from [MR] again” before making a determination of unavailability.

      After the government called two other witnesses, MR was recalled to testify.
Once again, MR refused to testify concerning the allegations of sexual abuse.
Without objection from the defense counsel, the military judge then declared MR
unavailable:

             [A]s a threshold matter, although [MR] did appear in
             court, I think for purposes of the confrontation clause, she



                                           5
RUSSELL – ARMY 20050281


             is not available since she was not able to talk, really about
             any of the substance of the allegations. In terms of [YH]’s
             testimony, I think it is admissible as residual hearsay.

       In her written ruling, the military judge restated and supplemented her
rationale for declaring MR unavailable:

             Although she appeared in court, this is a situation much
             like one described in United States v. Dorian, where the
             five year old victim was “too young and too frightened to
             be subject to a thorough direct or cross-examination.” 803
             F.2d 1439, 1446 (8th Cir. 1986). Here [MR] could not
             even testify on direct examination. See also United States
             v. Lyons, 36 M.J. 183 (C.M.A. 1992) (17 year old mentally
             retarded victim testified at trial but her testimony was
             unintelligible).

       During the defense case-in-chief, appellant testified the contact with his
daughter was non-sexual: he was wearing shorts on both occasions and at no time
was there penetration. Appellant claimed his first statement to CID was initially
consistent with his testimony at trial but the investigating agents would not believe
him. They “added” to his statement, which he signed only after becoming tired of
“haggling.” Regarding the discrepancies between his testimony and his second CID
statement, appellant asserted the investigator would not let him tell his version and
the investigator became angry. Appellant’s wife also testified for the defense and
declared MR denied the incidents happened.

       The CID agents rebutted appellant’s testimony, denying appellant was forced
to sign his statement or that they denied appellant the right to amend either
statement. With respect to penetration, appellant indicated during the second CID
interview he did not think he penetrated quite as far as he’d admitted in his first
statement. The CID agent explained that the test was “any penetration whether it
was slight or whether it was full,” to which appellant responded “okay” and never
retracted his initial confession of penetration.

                               LAW and DISCUSSION

                       Hearsay and the Confrontation Clause

       The Sixth Amendment to the United States Constitution provides, in part: “In
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause
requires “the declarant to be physically present in the courtroom; physical presence
allows the accused to confront the declarant in person, and cross-examine him in
front of the trier of fact.” United States v. Williamson, 65 M.J. 706, 715 (Army Ct.
Crim. App. 2007) (quotation marks and citation omitted). The Confrontation



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RUSSELL – ARMY 20050281


Clause’s mandate is analogous to the evidentiary hearsay rules: “hearsay is defined
as ‘a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.’” United
States v. McCaskey, 30 M.J. 188, 190-91 (C.M.A. 1990) (quoting Mil. R. Evid.
801(c)); see also Federal Rule of Evidence 801(c).

       The two concepts, constitutional confrontation and evidentiary hearsay, “are
generally designed to protect similar values,” California v. Green, 399 U.S. 149, 155
(1970), and “stem from the same roots.” Dutton v. Evans, 400 U.S. 74, 86 (1970).
However, “it is quite a different thing to suggest that the overlap is complete and
that the Confrontation Clause is nothing more or less than a codification of the rules
of hearsay and their exceptions as they existed historically. . . .” Green, 399 U.S. at
155. Although the “hearsay rules and the Confrontation Clause are generally
designed to protect similar values,” they do not completely “overlap.” Id. Thus, a
statement properly admitted under a hearsay exception may violate confrontational
rights. Id. at 155-56 (citing Barber v. Page, 390 U.S. 719 (1968)). Similarly, a
violation of the hearsay rules may not infringe upon the Sixth Amendment. Id. at
156. In a case such as this, a separate analysis of Confrontation Clause and
evidentiary hearsay issues is necessary for resolution of the assigned errors.

       Whether a statement constitutes testimonial hearsay is a legal question we
review de novo. United States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007). In
addition, this Court reviews evidentiary rulings on hearsay for an abuse of
discretion. United States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005). A military
judge’s findings of fact will be accepted “unless they are clearly erroneous or
unsupported by the record.” United States v. Foerster, 65 M.J. 120, 123 (C.A.A.F.
2007) (quotation marks and citation omitted).

              MR’s Statement to YH under the Confrontation Clause

      In Crawford, the Supreme Court addressed the intersection between hearsay
exceptions and the Confrontation Clause, holding “testimonial” statements of
witnesses not testifying at trial are admissible “only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-
examine.” 541 U.S. at 59. 2 The Court drew a distinction between testimonial and
nontestimonial hearsay:

             Where nontestimonial hearsay is at issue, it is wholly
             consistent with the Framers’ design to afford the States
             flexibility in their development of hearsay law . . . .

2
 Prior to Crawford, the governing standard was Ohio v. Roberts, 448 U.S. 56
(1980), which held that out-of-court testimonial statements may be admitted as long
as the witness is unavailable and the statements have “adequate indicia of
reliability,” i.e., fall within a “firmly rooted hearsay exception” or bear
“particularized guarantees of trustworthiness.” Id. at 66.


                                           7
RUSSELL – ARMY 20050281


             Where testimonial evidence is at issue, however, the Sixth
             Amendment demands what the common law required:
             unavailability and a prior opportunity for cross-
             examination. We leave for another day any effort to spell
             out a comprehensive definition of ‘testimonial.’ Whatever
             else the term covers, it applies at a minimum to prior
             testimony at a preliminary hearing, before a grand jury, or
             at a former trial; and to police interrogations.

Id. at 68 (footnotes omitted).

       In Davis v.Washington, 547 U.S. 813, 822 (2006), the Supreme Court had
further opportunity to define what constitutes a testimonial statement:

             Statements are nontestimonial when made in the course of
             police interrogation under circumstances objectively
             indicating that the primary purpose of the interrogation is
             to enable police assistance to meet an ongoing emergency.
             They are testimonial when the circumstances objectively
             indicate that there is no such ongoing emergency, and that
             the primary purpose of the interrogation is to establish or
             prove past events potentially relevant to later criminal
             prosecution.

While Davis expounded the meaning of “testimonial,” courts still struggled with the
respective concepts of testimonial and nontestimonial, particularly when resolving
issues involving child witnesses. See Commonwealth v. DeOliveira, 849 N.E.2d
218, 226 (Mass. 2006) (concluding that a reasonable person in a child witness’s
position would not have foreseen prosecutorial use of a statement to a doctor); Wall
v. State, 184 S.W.3d 730, 742-43 (Tex. Crim. App. 2006) (the court looked towards
an objectively reasonable declarant standing in the shoes of the actual declarant).

      Our superior court has established three non-dispositive factors for analyzing
whether a statement is testimonial:

             [A] number of questions emerge as relevant in
             distinguishing between testimonial and nontestimonial
             hearsay made under circumstances that would cause an
             objective witness to reasonably believe that the statement
             would be available for use at a later trial. First, was the
             statement at issue elicited by or made in response to law
             enforcement or prosecutorial inquiry? Second, did the
             “statement” involve more than a routine and objective
             cataloging of unambiguous factual matters? Finally, was
             the primary purpose for making, or eliciting, the




                                          8
RUSSELL – ARMY 20050281


             statements the production of evidence with an eye toward
             trial?

Rankin, 64 M.J. at 352. “In undertaking this factors approach, our goal is an
objective look at the totality of the circumstances surrounding the statement to
determine if the statement was made or elicited to preserve past facts for a criminal
trial.” United States v. Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2006).

       Applying the factors identified in Rankin to appellant’s case, it is evident the
statement was not “elicited by or made in response to law enforcement.” YH was a
neighbor of MR with no recorded police or governmental involvement and,
therefore, was not in any way an agent of law enforcement. According to her
testimony at trial, YH had no intention of even reporting MR’s statements other than
to the child’s mother. Her role was analogous to someone in loco parentis: MR was
playing in her house with a similarly-aged child. When she heard silence, YH
intervened to reassure herself the girls were safe and engaged in appropriate play.
After MR’s initial statement, YH further questioned the girl only to determine what
MR meant by her statement about a “sex game.” We are thus fully satisfied that YH
was not engaged in an attempt to collect evidence for later use in a criminal
proceeding. 3

        The third factor in Rankin, whether the “primary purpose for making, or
eliciting, the statements is the production of evidence with an eye toward trial,” also
demonstrates the nontestimonial nature of the statement. It is in this factor that
conflict and controversy continue to abound about who is the focus of the
testimonial analysis. 4 We do not purport to resolve this issue, other than to note that
regardless whether we focus on the state of mind of the declarant, the questioner, or
an objective reasonable person, the result is the same: in this case, it is clear the
statements were not testimonial. Neither the questioner, YH, nor declarant, MR, had
any expectation the statements would be used for criminal prosecution, nor would
any objective witness believe that such an expectation or intent would be reasonable
in this “context.” Rankin, 65 M.J. at 352. MR had no idea that her statements
would likely be used in a criminal investigation or prosecution and “didn’t appear or
act in any manner that said she was doing anything wrong.” Additionally, as
previously noted, YH plainly did not think she was interrogating MR for the
purposes of obtaining testimony to be used at a future criminal proceeding. See

3
  As to the second factor identified in Rankin, we find YH’s conversation with MR
to be more than “routine and objective cataloging of factual matters.” 63 M.J. at
126. Unlike Rankin, however, this second factor has little import in the factual
scenario presently before us. Id. (concerning admission of hearsay evidence
admitted at trial under the business record exception).
4
 While not adopting a strict test, the Supreme Court noted that “it is in the final
analysis the declarant’s statements, not the interrogator's questions, that are decisive
under the Confrontation Clause.” Davis, 547 U.S. at 822 n.1.


                                           9
RUSSELL – ARMY 20050281


Gardinier, 65 M.J. at 65 (considered the first and third factors identified in Rankin
together for a child witness). Instead, the conversation between MR and YH was
simply a concerned parent and neighbor questioning a young child to determine
whether something inappropriate occurred.

       As our superior court noted, “Statements made to family, friends, and
acquaintances without an intention for use at trial have consistently been held not to
be testimonial, even if highly incriminating to another.” United States v. Scheurer,
62 M.J. 100, 105 (C.A.A.F. 2005) (quotation marks and citation omitted). Similarly,
we find MR’s statements to a neighbor, YH, were not made in response to any law
enforcement or prosecutorial inquiry and the primary purpose was not to produce
evidence with an “eye toward trial.” Under these circumstances, no objective
witness would reasonably believe MR’s statements to YH were intended “to preserve
past facts for a criminal trial.” Gardinier, 65 M.J. at 352. Accordingly, we find
MR’s statements to YH nontestimonial.

                  MR’s Statements to YH Under Mil. R. Evid. 807

       While YH’s testimony did not violate appellant’s Sixth Amendment right to
confrontation, we must also analyze its admissibility under evidentiary hearsay
rules. In general, an out-of-court statement made by someone other than the
testifying declarant offered in evidence to prove the truth of the matter asserted is
hearsay and is not admissible unless an exception applies. Mil. R. Evid. 801(d) and
802. The residual hearsay exception at Mil. R. Evid. 807 is one such exception. The
rule states:

             A statement not specifically covered by Rule 803 or 804
             but having equivalent circumstantial guarantees of
             trustworthiness, is not excluded by the hearsay rule, if the
             court determines that (A) the statement is offered as
             evidence of a material fact; (B) the statement is more
             probative on the point for which it is offered than other
             evidence which the proponent can procure through
             reasonable efforts; and (C) the general purposes of these
             rules and the interests of justice will best be served by
             admission of the statement into evidence.

Mil R. Evid. 807. 5

5
 Given MR’s tender age, demeanor, the numerous unsuccessful efforts from the
military judge to procure additional live testimony, as well as trial defense counsel’s
apparent acknowledgement of unavailability, we agree with the military judge’s
determination MR was unavailable under Mil. R. Evid. 804. See United States v.
Ferdinand, 29 M.J. 164, 166 (C.M.A. 1989) (testimony admitted under Mil. R. Evid.

                                                                       (continued . . .)


                                          10
RUSSELL – ARMY 20050281


       Since residual hearsay is not a “firmly rooted” hearsay exception, Idaho v.
Wright, 497 U.S. 805 (1990), such hearsay must possess “particularized guarantees
of trustworthiness” to be considered reliable and admissible. United States v.
Giambra, 33 M.J. 331, 334 (C.M.A. 1991) (citing Roberts, 448 U.S. at 66). Our
superior court has established certain non-dispositive factors to determine if there
are sufficient circumstantial guarantees of trustworthiness. “These [factors] may
include, among other things: ‘(1) the mental state of the declarant; (2) the
spontaneity of the statement; (3) the use of suggestive questioning; and (4) whether
the statement can be corroborated.’” United States v. Donaldson, 58 M.J. at 477,
488 (C.A.A.F. 2003) (quoting United States v.Grant, 42 M.J. 340, 343-44 (C.A.A.F.
1995)). 6

       Under the totality of the circumstances, we find MR’s statements to YH
carried particularized guarantees of trustworthiness. Foremost, MR’s statements
were spontaneous and unprompted. During her conversation with YH, MR was
“laughing, bubbly, and happy” and MR’s initial statements to YH “appeared not to
be rehearsed, but to be speaking from memory.” United States v. Ureta, 44 M.J.
290, 296 (C.A.A.F. 1996), cert denied, 519 U.S. 1059 (1997). Also suggestive of
the trustworthiness of the statement is the manner in which YH conducted the
interview. As YH testified, her initial inquiry into MR’s statement about the “sex
game” was non-suggestive and YH’s follow-up questions were open-ended. Indeed,
MR volunteered the information about appellant’s acts.

       Second, MR’s terminology about the “sex game” in conjunction with her
physical demonstrations was beyond the norm for a five-year-old child. Her
statements and physical gestures paralleled each other: she both said her father did
it “twice” and held up two fingers to show how many times; she used hand gestures
to demonstrate the “up and down” motion, laid on the floor, and reenacted the
motion; she pointed to the middle of the coffee table to show her understanding of
“middle” and then pointed to her vagina as her “middle.” See Donaldson, 58 M.J. at
488-89. Finally, there is no evidence of a motive to fabricate testimony; in
describing the incident, MR displayed no awareness that her statements might
implicate appellant in any wrongdoing.


(. . . continued)
807, the residual hearsay exception, may be admissible “provided the Government
adequately demonstrates the declarant’s unavailability as a witness” (quotation
marks and citations omitted)); United States v. Bridges, 55 M.J. 60, 63 (C.A.A.F.
2001) (“the residual hearsay exception is not firmly rooted--thus, the requirement to
establish unavailability and particularized guarantees of trustworthiness” (citations
omitted)).
6
  The Supreme Court identified the following factors for determining trustworthiness
in cases involving child witnesses: (1) spontaneity and consistent repetition of the
statement; (2) mental state of the declarant; (3) use of terminology expected of a
child witness; and (4) lack of motive to fabricate. Wright, 497 U.S. at 821.


                                         11
RUSSELL – ARMY 20050281


      We hold the military judge did not err in ruling MR’s statements to YH
admissible under Mil. R. Evid. 807: they were trustworthy, offered as evidence of a
material fact (appellant’s sexual acts upon his five-year-old daughter), were more
probative on that point than any other reasonably available evidence, and the general
purposes of the hearsay rules and interests of justice were best served by the
admission of the evidence.

          MR’s Statements to Dr. Finkelstein under Mil. R. Evid. 803(4)

       Under Mil. R. Evid. 803(4), certain hearsay statements made to medical
personnel are admissible even if the witness is otherwise available. See United
States v. Rodriguez-Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006) (hearsay testimony of
child victim through a doctor was properly admitted at trial under Mil. R. Evid.
803(4) even though the interview was initiated by the trial counsel). Such
statements include: “Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause of external source
thereof insofar as reasonably pertinent to diagnosis or treatment.” Mil. R. Evid.
803(4); see also United States v. Cucuzzella, 66 M.J. 57, 62 (C.A.A.F. 2008)
(statements made to a nurse and social worker were properly admitted under Mil. R.
Evid 803(4)).

       To qualify for this hearsay exception, two conditions must be met: “first, the
statement must be made for purposes of medical diagnosis or treatment; and second,
the patient must make the statement with some expectation of receiving medical
benefit from the medical diagnosis or treatment that is being sought.” United States
v. Williamson, 26 M.J. 115, 118 (C.M.A. 1988) (quotation marks and citation
omitted). “The rationale for Mil. R. Evid. 803(4) is the self-interested motivation to
speak the truth to a treating physician or an individual in the mental health field in
order to receive proper care and the necessity of the statement for a diagnosis or
treatment.” United States v. Quigley, 35 M.J. 345, 347 (C.M.A. 1992). “[A]n
individual seeking relief from a medical problem has incentive to make accurate
statements.” Manual for Courts-Martial,United States, Analysis of the Rules for
Courts-Martial app. 22, at A22-53 (2005 ed.).

       Cases of child sexual abuse have presented particular challenges to our courts
when analyzing the expectations of very young children. Compare United States v.
Dean, 31 M.J. 196 (C.M.A. 1990), cert denied, 499 U.S. 906 (1991) (statements by
six-year-old to medical center coordinator of child protective team and staff
psychologist at county mental health center admissible), and United States v. Edens,
31 M.J. 267 (CM.A. 1990) (statements by three-year-old child to pediatrician
admissible), with United States v. Avila, 27 M.J. 62 (C.M.A. 1988), cert denied, 493
U.S. 1002 (1989) (statement by four-year-old child to psychologist who introduced
herself by first name and said “just another Mommy” not admissible). While our
superior court has acknowledged there may be some relaxation of the required proof
to establish admissibility where a child is being treated, the mere fact a child is



                                          12
RUSSELL – ARMY 20050281


involved does not eliminate the need to meet both prongs. Indeed, “even when
children are involved, ‘the facts and circumstances must support a finding that both
prongs of the test are met.’” United States v. Faciane, 40 M.J. 399, 403 (C.M.A.
1994) (quoting Williamson, 26 M.J. at 118).

       In conducting an analysis of a child-victim’s expectation when receiving
medical treatment, courts can look beyond the testimony of the child and consider
the testimony of the treating care provider and others who explained the purpose of
the meeting with the provider. United States v. Hollis, 57 M.J. 74, 79-81 (C.A.A.F.
2002), cert denied, 537 U.S. 1039 (2002). As our superior court stated, “[W]hen a
child is involved, ‘it is often important for their caretakers to explain to them the
importance of the treatment in terms that are understandable to the child.’” United
States v. Siroky, 44 M.J. 394, 400 (C.A.A.F. 1996) (quoting Avila, 27 M.J. at 66).
Indeed, “[t]he critical question is whether [the witness] had some expectation of
treatment when she talked to the caregivers.” United States v. Haner, 49 M.J. 72, 76
(C.A.A.F. 1998).

        Considering the evidence presented during trial, there is little indication MR
understood Dr. Finkelstein was a doctor or that the examination was for the purpose
of receiving medical treatment. Foremost, no one from DHS or MR’s foster care
testified about what information MR was given prior to her meeting with Dr.
Finkelstein. Dr. Finkelstein’s only meeting with MR was at his “homey” office, in a
play therapy area filled with toys selected at random by the child. He did not
introduce himself as a doctor, was wearing casual civilian attire, and conducted no
medical testing of any kind. Consequently, the sole evidence MR knew of any
possible medical association was MR referring to Dr. Finkelstein as “Dr. Bob.”

       Second, while Dr. Finkelstein may have understood the purpose of the
interview was for medical diagnosis, the relevant focus for the second prong is on
MR’s understanding. The evidence indicates MR had no expectation of receiving a
medical benefit. Dr. Finkelstein never indicated to MR he was there to help her with
a medical problem; instead, he told her he was there to help her with her foster care
situation. When asked “[a]t some point did you discuss with her the allegations she
had made about her father and how you could help her with those,” Dr. Finkelstein
stated flatly, “No.” Over defense objection, the military judge allowed Dr.
Finkelstein’s testimony:

             I think even a 5-year-old, given the sequence of events in
             this case, would understand why she was in foster care.
             And one would presume that if she’s taken out of the
             home, somebody is going to tell the child at least some
             reason of why she’s in foster care. So, I think [Dr.
             Finkelstein’s] explanation to [MR] that he’s going to help
             her with the foster care situation establishes that [MR]
             knew why she was there. And I think the requirements of




                                          13
RUSSELL – ARMY 20050281


             [Mil. R. Evid.] 803(4) have been met, under this
             circumstance.

       Based upon the totality of the evidence in this case, we find the military
judge’s ruling on this issue to be “clearly erroneous.” Hollis, 57 M.J. at 79. While
MR may have understood Dr. Finkelstein could help with her foster care situation,
Mil. R. Evid. 803(4) is not so expansive as to equate foster care with medical
diagnosis or treatment. Cf. United States v. O’Rourke, 57 M.J. 636 (Army Ct. Crim.
App. 2002), pet. denied, 59 M.J. 147 (C.A.A.F. 2003) (statements made to social
worker admissible where social worker explained that social workers provide
services closely akin to medical treatment).

                                    Error Analysis

       Since the military judge abused her discretion by admitting MR’s statements
to Dr. Finkelstein into evidence in violation of Mil. R. Evid. 803(4), we must now
determine whether appellant suffered any prejudice as a result of the inadmissible
testimony. Considering the facts of this case, the continuing uncertainty regarding
the application of Ohio v. Roberts, and to assure the fullest safeguard of appellant’s
confrontation rights in this case, we will apply a constitutional standard for
determining prejudice. 7 See United States v. Wilson, 20 M.J. 31, 32 (C.M.A. 1985)
(harmless beyond a reasonable doubt standard applied in abundance of caution).

       With that constitutional standard in mind, we decide de novo whether the
error was “harmless beyond a reasonable doubt.” United States v. Othuru, 65 M.J.
375, 377 (C.A.A.F. 2007); United States v. Simmons, 59 M.J. 485, 489 (C.A.A.F.
2004) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). In so deciding, we
consider all the circumstances of appellant’s trial. United States v. Hall, 58 M.J. 90,
94 (C.A.A.F. 2003) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

             Whether such an error is harmless in a particular case
             depends upon a host of factors, all readily accessible to
             reviewing courts. These factors include the importance of
             the witness’ testimony in the prosecution’s case, whether
             the testimony was cumulative, the presence or absence of
             evidence corroborating or contradicting the testimony of

7
  Many jurisdictions no longer apply a constitutional standard to hearsay evidentiary
rules. See United States v. Arnold, 486 F.3d 177 (6th Cir. 2007) (nontestimonial
statements are only subject to the Federal Rules of Evidence); Robinson v. Greene,
507 F. Supp. 2d 279 (2d. Cir. 2007) (intimated, without ruling, that nontestimonial
statements are not subject to the Sixth Amendment); see e.g. United States v.
Magyari, 63 M.J. 123, 127 (C.A.A.F. 2006) (internal citations omitted) (“[W]hen the
Crawford framework does not apply, the Ohio v. Roberts requirement for
particularized guarantees of trustworthiness continues to govern confrontation
analysis for nontestimonial statements.”).


                                          14
RUSSELL – ARMY 20050281


             the witness on material points, the extent of cross-
             examination otherwise permitted, and, of course, the
             overall strength of the prosecution’s case.

United States v. Williams, 40 M.J. 216, 218-19 (C.M.A. 1994) (citing Van Arsdall,
475 U.S. at 684).

       Applying the factors set forth in Van Arsdall and excluding from our
consideration the erroneously admitted testimony of Dr. Finkelstein, we find beyond
a reasonable doubt that the military judge — or any reasonable trier of fact — would
have concluded the appellant raped his daughter on two separate occasions. In
addition, disregarding the improperly admitted evidence, we are convinced of
appellant’s guilt beyond a reasonable doubt. See United States v. Turner, 25 M.J.
324, 324-25 (C.M.A. 1987). We find the importance of Dr. Finkelstein’s testimony
to be of little consequence. As noted by appellant’s defense counsel during closing
argument, MR never specifically told Dr. Finkelstein appellant did anything
inappropriate. Instead, MR simply “lined up the genitals of the male and female
dolls” Dr. Finkelstein provided. MR then stepped away from the dolls and said, “[i]t
happened twice,” “[i]t hurt,” and “dad told [me] not to tell [my] mom.” These
statements provided little substantive information not already before the factfinder
and, therefore, were merely cumulative of the other evidence already admitted.

        Second, the quality of the improperly admitted evidence was de minimis. The
interview between MR and Dr. Finkelstein occurred nearly two months after the
allegation. MR did not provide an elaborate or detailed account. Instead, MR’s
statements were a limited response to direct questions from Dr. Finklestein rather
than a more open-ended query. Consequently, the testimony provided by Dr.
Finkelstein was less reliable than the other evidence produced at trial. Cf. United
States v. Cravens, 56 M.J. 370, 376 (C.A.A.F. 2002) (other evidence proximate in
time to the offense was relevant to corroborate a confession).

       Most significant here, the government presented a compelling case. Appellant
was convicted of raping his daughter chiefly on the strength of his own statements to
CID. In general, “[a] confession is like no other evidence. Indeed, the defendant’s
own confession is probably the most probative and damaging evidence that can be
admitted against him.” United States v. Ellis, 57 M.J. 375, 381 (C.A.A.F. 2002)
(quoting Arizona v. Fulminante, 499 U.S. at 279, 296 (1991)); see also Hopt v. Utah,
110 U.S. 574, 584 (1884) (“[A] voluntary confession of guilt is among the most
effectual proofs in the law, and constitutes the strongest evidence against the party
making it that can be given of the facts stated in such confession.”); accord United
States v. Monge, 1 U.S.C.M.A. 95, 2 C.M.R. 1 (1952). In this case, after being fully
advised of his constitutional and statutory rights, appellant voluntarily confessed he
penetrated MR’s vagina with his penis on two separate occasions. Appellant further
confessed he knew his conduct was wrong on both occasions and he should not have
engaged in these activities with his daughter. Those confessions were detailed and,




                                          15
RUSSELL – ARMY 20050281


as acknowledged by both parties during closing argument, constituted the foundation
of the government’s case.

       In addition, appellant’s attempts at trial to explain away the two separate
admissions were not plausible. Significantly, appellant confessed on two separate
occasions to two different individuals, and on the second occasion he initiated the
contact with CID. See Fulminante 499 U.S. at 299 (“it is clear the jury might have
believed that the two confessions reinforced and corroborated each other”); United
States v. Murphy, 50 M.J. 4, 11 (C.A.A.F. 1998) (holding, in part, “we are convinced
beyond any reasonable doubt that appellant was not prejudiced by the unresolved
conflict of interest because of the admission of his multiple confessions and the
corroborating physical evidence”); Turrentine v. Mullin, 390 F.3d 1181 (10th Cir.
2004) (included multiple confessions by appellant in its determination of the
“overwhelming evidence” against the accused); United States v. Stapleton, 288 F.3d
863, 868 (6th Cir. 2002) (a jury could have believed that multiple confessions
“reinforced and corroborated each other” (quotation marks and citations omitted)).
Consequently, appellant’s incredible claim at trial that “I was just tired of fighting
with them and I signed [the confession]” only served to highlight his guilt.

       In addition to appellant’s two confessions, MR’s statements to YH provided
independent, corroborative evidence of appellant’s own confessions. 8 See e.g. Opper
v. United States, 348 U.S. 84, 93, 99 (1954) (independent evidence is evidence not
based on or derived from the accused's extrajudicial statements). In fact, in most
respects, MR’s statements to YH mirrored appellant’s own admissions in each
critical detail: MR spoke of two incidents, including one at her previous home, and
appellant confessed to two incidents, one per house; MR demonstrated an up and
down motion, and appellant confessed to the same; MR said it hurt her in “the
middle,” pointing to her vaginal area; appellant confessed that the pressure of his
penis on her vaginal opening could have hurt her; MR said her mother was out of the
house; appellant confessed his wife was not home; MR said the “game” was played
with a boy and a girl wearing no clothes and on the bed; and appellant confessed he
lay on the bed with MR, with both of them naked on the first occasion and, on the
second occasion, he wore only thin silk-like shorts and she wore a nightgown and no
underwear. Simply stated, YH’s testimony alone was highly probative and provided
sufficient corroborative evidence for appellant to convict himself. “In light of the
record of trial in its entirety, we consider [] appellant to have been his own worst
enemy” and find the evidence ruled inadmissible was harmless. Williams, 40 M.J. at
219.




8
  Mil. R. Evid. 304(g): “An admission or a confession of the accused may be
considered as evidence against the accused on the question of guilt or innocence
only if independent evidence, either direct or circumstantial, has been introduced
that corroborates the essential facts admitted to justify sufficiently an inference of
their truth.”


                                           16
RUSSELL – ARMY 20050281


      On consideration of the entire record, including the assignments of error and
matters personally asserted by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), the findings of guilty and the sentence are affirmed.

      Senior Judge HOLDEN and Judge HOFFMAN concur.


                                              FOR THE COURT:




                                              MALCOLM H. SQUIRES, JR.
                                              Clerk of Court




                                         17
