dissenting in part.
Cases such as the one before us are usually not easy, and this one is no exception. I regretfully conclude that the majority’s decision concerning the admissibility of the victim’s statements to her young uncle is incorrect, and therefore respectfully dissent.
I agree that the passage of time is not talismanic in these cases. Even if it were, the amount of time involved here is so short that no reasonable rule based upon time alone would bar the evidence in question here. However, there is a second criterion derived from State v. Kendrick, 239 Or 512, 515-516, 398 P2d 471 (1965), viz., the requirement that the victim’s utterance "* * * must be [made] * * * while the reflective powers are yet in abeyance,” which is not met. The evidence here shows that the victim in telling her uncle her story was careful not to say directly that she had been raped. She couched her story in such terms as to permit him to draw that inference. This is patently the exercise of "reflective powers.” I note also that she did not seize upon the first opportunity to tell her story. I would not, however, base an opinion on this fact alone, since the defendant was present at the time the victim could have spoken to her mother or grandmother, and the fear or loathing the victim doubtless felt toward the defendant at that time may have played a role in her silence.