United States v. Grant

SULLIVAN, Chief Judge

(concurring in the result):

18. I would uphold the judge’s decision in this case to admit the challenged statement on the basis of Mil.R.Evid. 803(2), Manual for Courts-Martial, United States, 1984. I am satisfied that he did not abuse his discretion in admitting the child’s statement to a neighbor, Mrs. P., as an excited utterance under the particular circumstances of this case. See United States v. Arnold, 25 MJ 129 (CMA 1987) (opinion of Cox, J.), cert. denied, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 980 (1988). Here, there was:

(1) a 7-year-old victim;
(2) the offense occurred around Christmas time and receiving of gifts;
(3) this was the first real opportunity for victim to report offense to an adult;
*345(4) the alleged statement occurred 36-48 hours after the offense;
(5) the victim’s mother was in a compromised position in the child’s eyes at the time of this statement.

Accordingly, I need not decide whether the challenged evidence was admissible under Mil.R.Evid. 803(24).