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

For Appellant: Captain Karen L. Hecker (argued); Lieutenant Colonel Jeanne M. Rueth, Lieutenant Colonel Ray T. Blank, Jr., and Major Carol L. Hubbard (on brief); Colonel Douglas H. Kohrt.

For Appellee: Captain Peter J. Camp (argued); Colonel Anthony P. Datillo, Lieutenant Colonel Ronald A. Rodgers, and Captain Milissa A. Burke (USAFR) (on brief); Captain Steven D. Dubriske.

Military Judge: Linda S. Murnane
 
 

Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of officer members convicted appellant, contrary to his pleas, of 2 specifications of indecent acts with a child, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results.

The Court of Criminal Appeals held that the military judge had erroneously admitted certain hearsay statements. After concluding that the errors affected the sentence but not the findings, the court reassessed the sentence. It reduced the period of confinement to 5 years but otherwise affirmed the sentence approved by the convening authority. 48 MJ 700, 724 (1998).

On appellant’s petition, we granted review of the following issues:

The Sixth Amendment provides that an accused has the right "to be confronted with the witnesses against him." See United States v. Jacoby, 11 USCMA 428, 29 RCM 244 (1960). The Sixth Amendment does not preclude admission into evidence of an out-of-court statement by an unavailable witness if the statement either falls within a firmly rooted hearsay exception or has "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980). See Idaho v. Wright, 497 U.S. 805 (1990); Mil. R. Evid. 804(b)(5), Manual for Courts-Martial, United States (1998 ed.).

In evaluating whether an out-of-court statement of an unavailable witness is sufficiently trustworthy, a military judge may consider only those circumstances "that surround the making of the statement and that render the declarant particularly worthy of belief." United States v. Pollard, 38 MJ 41, 49 (CMA 1993), quoting Wright, supra at 819. See United States v. Ureta, 44 MJ 290 (1996), cert. denied, 519 U.S. 1059 (1997). Accord United States v. Johnson, 49 MJ 467, 470 (1998). Where the statement was made by a child and concerned sexual abuse, the Supreme Court has noted that it is appropriate to consider factors such as spontaneity, consistency, "lack of motive to fabricate," the child's mental state, and "use of terminology unexpected of a child of similar age." Wright, supra at 821-22. The appropriate focus is on whether the child was "telling the truth when the statement was made." Id. at 822.

Under Mil. R. Evid. 804, the proponent of a hearsay statement has the burden of demonstrating both the witness' unavailability (804(b)) and the "circumstantial guarantees of trustworthiness" (804(b)(5)). A timely objection is necessary to preserve the issue for appellate review, absent prejudicial plain error. See Mil. R. Evid. 103(a)(1) and (d); Ureta, supra at 298. See generally United States v. Powell, 49 MJ 460 (1998).

At trial, appellant moved to suppress certain hearsay statements of 4-year-old MJI, one of the alleged victims. During the litigation of this motion, MJI's mother testified that MJI had not started school and had not gone to preschool. Trial counsel asked the mother whether MJI, if called to testify, would "understand that she had to tell the truth." She answered, "I don't think so, no." Trial counsel then asked the mother whether MJI would "understand what can happen if she lied," and again she answered, "No." MJI's mother also testified, without objection, that MJI's counselor believed that, "at her age and the way she handled everything else, it would do her damage to testify and that she wouldn't be able to handle it." According to MJI's mother, when she made MJI available to talk with defense counsel, MJI could not talk to them because "she was scared."

Subsequently, the following colloquy occurred between the military judge and MJI's mother:

Appellant asserts that the Court of Criminal Appeals "erred in finding [MJI] competent to testify truthfully despite overwhelming evidence to the contrary." See generally Mil. R. Evid. 601 (general rule of competence) and 603 (witness oath or affirmation required). Appellant contends that, in concluding that the child's hearsay statements in question contained "sufficient guarantees of trustworthiness" to qualify for admission under Mil. R. Evid. 804(b)(5), "the majority opinion failed to properly account for the single most egregious aspect of the admission of [MJI]'s out-of-court statements: namely that [MJI] did not understand the difference between telling truth or lying, in general." Final Brief at 10 (emphasis in original).

We do not agree with appellant's view of the record or his characterization of the opinion of the Court of Criminal Appeals. Because MJI did not testify, her competence to testify as a witness was not placed at issue. In that context, neither the military judge nor the court below addressed, much less decided, MJI's competence as a witness.

The record does not support the assertion by appellant that MJI "did not understand the difference between telling truth or lying, in general." The military judge did not conclude that MJI could not distinguish between truth and falsity or was unable to tell the truth. Trial counsel's questions and the military judge's findings of fact addressed the narrower issue of whether MJI would understand and appreciate the legal consequences of not telling the truth in the courtroom if called as a witness. We agree with the court below that the military judge's ruling reflected nothing more than the observation "that, like most four-year-olds, MJI would not understand the significance of testifying truthfully in a judicial proceeding." We also agree with the court's observation that "because of her tender age, [MJI] lacked the ability to appreciate the moral duty to tell the truth in the courtroom." 48 MJ at 710.

In that context, the military judge's ruling does not support appellant's contention that the out-of-court statements were made by a person who did not know truth from lies. Although the military judge's findings of fact might have been more explicit, we agree with the court below that, under the circumstances of this case, "by ruling that MJI's statements were admissible hearsay, 'the trial court implicitly found that [MJI] [...] was capable of receiving just impressions of the facts and of relating them truly.'" 48 MJ at 710 (quoting Wright, 497 U.S. at 825).

The detailed opinion of the Court of Criminal Appeals sets forth the factual context leading to the charges against appellant and carefully analyzes each of appellant's contentions regarding admission of hearsay and evidence of uncharged misconduct, which are the subjects of Issues II and III in this appeal. We agree with the treatment of these questions by the majority below, although we find it unnecessary to determine whether MJI's statements to Dr. Clinton, through her mother, were admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See Mil. R. Evid. 803(4). As to those statements, we agree with the court below that, even if they were inadmissible, any error was harmless. 48 MJ at 711. In addition, we conclude that the cumulative impact of any error was not prejudicial in the context of appellant's admissions and statements. See id. at 733 (Snyder, S.J., concurring in part and concurring in the result) (noting that appellant's claim of accidental touching "is incredible and collapses under its own weight").

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

SULLIVAN, Judge (concurring in the result):

Appellant was found guilty of committing an indecent act on M.J.I., a 4-year-old girl "by fondling her and placing his hands upon her private parts, with intent to gratify [his] sexual desires." He was also found guilty of committing an indecent act on A.L.I., her 6-year-old sister, "by fondling her and placing his hands upon her private parts," with same sexual intent. M.J.I. did not personally testify at appellant's court-martial because the military judge found her unavailable within the meaning of Mil. R. Evid. 804(a)(6). Numerous out-of-court statements made by M.J.I. to her mother, her grandmother, her doctor, and a police detective were admitted to show appellant's guilt. Also, evidence of uncharged acts of sexual molestation by appellant against other children was admitted in this case.

The military judge made the following findings in ruling on appellant's Sixth Amendment-confrontation objection to admission of M.J.I.'s out-of-court statements:

Of course, ignorance of the ramifications of testifying in court is a factor to be considered by the judge in determining whether appellant's constitutional right to confrontation was violated by admission of M.J.I.'s out-of-court declarations as residual hearsay. See Idaho v. Wright, 497 U.S. 805, 817 (1990); Myers, supra § 7.39 at 285. In this regard, appellant argued at trial:

The second granted issue in my view has some merit with respect to admission of some of the uncharged-misconduct evidence of sexual molestation of other children by appellant. However, the erroneous admission of this evidence was clearly harmless. The prosecution, as part of its case-in-chief, also introduced evidence of appellant’s pretrial admissions, which virtually assured his conviction. The record states:

In addition, I note that 6-year-old A.L.I. did testify to her own sexual molestation by appellant on the same day, at that same Super Bowl Party, in the same room during appellant's inexplicable and extended absence from the adults in the television room. In these circumstances, with respect to the erroneous admission of uncharged-misconduct testimony concerning other children, I agree with Senior Judge Snyder's astute no-prejudice analysis. See 48 MJ at 733-34 (concurring in part and concurring in the result).

The final issue in this case is:

I have examined the opinion of the lower court on whether these statements of M.J.I. qualified for admission as residual hearsay under Mil. R. Evid. 804(b)(5). Appellant does not argue that the factors identified by that appellate court as showing "equivalent circumstantial guarantees of trustworthiness" as required by this evidentiary rule were improperly drawn from the Confrontation Clause case of Idaho v. Wright, 497 U.S. 805 (1990). Indeed, if he did, I would reject this argument. See United States v. Ureta, 44 MJ 290, 297 (1996), cert. denied, 519 U.S. 1059 (1997); United States v. Pollard, 38 MJ 41, 49 (CMA 1993); cf. United States v. Lyons, 36 MJ 183, 186-87 (CMA 1992). Otherwise, I conclude his argument is reduced to a simple disagreement with the lower appellate court's reading of the record and, therefore, it is without legal merit. See Art. 67(c), UCMJ, 10 USC § 867(c) (1994).