(dissenting):
I do not agree with the majority that the military judge did not err when he admitted into evidence Dr. Boos’ testimony concerning statements made to him by the alleged victim [K], see Mil.R.Evid. 803(4), Manual for Courts-Martial, United States (1995 edition); neither do I agree with the majority that the military judge did not abuse his discretion when he admitted into evidence the videotape of an interview with K by an agent of the Office of Special Investigations (OSI), see Mil.R.Evid. 804(b)(5). Accordingly, in each instance, I agree with Chief Judge Dixon who dissented below, see 41 MJ 571, 581-87 (1994), that appellant was denied his constitutional confrontation right to cross-examine K, see Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), and that the error was not harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
In United States v. Clark, 35 MJ 98, 105 (1992), this Court wrote that, when considering applicability of the medical-treatment exception to the exclusionary hearsay rule, compare Mil.R.Evid. 801 and 802 with Mil. R.Evid. 803(4),
“we look to the state of mind or motive of the patient in giving the information to the physician and the expectation or perception of the patient that if he or she gives truthful information, it will help him or her to be healed.” United States v. White, 25 MJ 50, 51 (CMA 1987).
Put another way:
Thus, “unless it appears that the child knows at least that the person is rendering care and needs the information in order to *300help, the rationale for the exception disappears entirely.” United States v. Avila, 27 MJ 62, 66 (CMA 1988), affirmed after remand, 29 MJ 299, cert. denied, 493 U.S. 1002, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989).
United States v. Clark, supra at 105.
Despite the requirement that medical-treatment hearsay evidence meet this underpinning of Mil.R.Evid. 803(4) if it is to be admitted under that exception, it does not appear that it was satisfied in this case. The OSI agent who conducted this investigation acknowledged that K did not ask to be taken to the hospital. Instead, she was taken there only after he had “asked her if she would consent to an examination because medical evidence had to be gathered in these types of allegations.” (Emphasis added.) Dr. Boos did testify that, when beginning his interview of K, he had told her that he “wanted to talk to her and to examine her to see whether any harm had come to her, whether she had caught any infections; but that before I started, to do the best job I needed to hear her story from herself.”
As Chief Judge Dixon opined, this superficial record does not support a conclusion that K expected to receive medical help from Dr. Boos and that this help depended on her giving full and truthful information to the doctor. In fact, if anything, the record more likely suggests that K merely was asked to repeat to Dr. Boos the “story” she had told the OSI and that she anticipated a mere physical examination. At best from the Government’s standpoint, the record is ambiguous, and ambiguity does not suffice for admissibility. Accordingly, in the absence of supporting evidence, I believe that the military judge was clearly erroneous in concluding that K had made her statements in the expectation of obtaining medical treatment.
As to the videotaped interview of K by the OSI, I am content to refer the reader to Chief Judge Dixon’s treatment of that issue, 41 MJ at 584-86. For the reasons discussed by him, I believe that the Government has not carried its burden of “showing particularized guarantees of trustworthiness,” see Idaho v. Wright, supra at 815, 110 S.Ct. at 3146—that is, circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” Id. at 819, 110 S.Ct. at 3148; accord United States v. Lyons, 36 MJ 183, 186 (CMA 1992), and United States v. Clark, supra at 106.
Accordingly, I conclude that appellant has been denied his constitutionally assured right to confrontation as to the hearsay evidence from K, admitted through the testimony of Dr. Boos and the videotaped interview by the OSI. Further, there can be no sincere claim that this denial was harmless beyond a reasonable doubt. As a result, this conviction should be reversed; so I must dissent from the majority’s decision to affirm it.