(Concurring in part and concurring in the result):
I concur only with Parts I, II-B and D, III-B, XI, XII, and XIII of the majority opinion. Otherwise, I concur only in the result, and I provide my bases for why I believe the findings and the sentence, as reassessed, should be affirmed. The majority opinion disposes of two critical issues which are issues of first impression in the Air Force. In the residual hearsay area, the majority opinion, sub silentio, expands the law to allow the admission of a hearsay declaration by an unavailable child witness found incompetent to testify truthfully. Further, we struggle to replace the legislature’s silence with rational guidance on how Mil. R.Evid. 414 will be applied. Because of what I view as critical uncertainty in certain parts of the majority opinion on this issue, and how it may impact issues of constitutional magnitude, I choose to set forth my reasoning separately.
Before beginning my detailed analysis, I must state a general observation. One of the main premises of the majority opinion is that the military judge did not abuse her discretion by admitting the hearsay statements of MJI. Nonetheless, the majority opinion finds it necessary to find additional facts pursuant to Article 66(c), UCMJ, to support its erroneous conclusion that MJI’s hearsay statements contain the necessary indicia of reliability. The majority opinion apparently forgets that, once we exercise our Article 66(c), UCMJ, power with regard to the facts, we no longer are applying an abuse of discretion standard of review. The majority has, unwittingly, crossed the border into de novo territory. This is fine, but it would be better if the correct result ensued from the incursion.
*725I. RESIDUAL HEARSAY STATEMENTS OF MJI
A Statements to Mother and Grandmother
I concur with the majority’s conclusion that MJI’s out-of-court declarations made to her mother that evening after having experienced a medical examination and a police interview were not excited utterances under Mil.R.Evid. 803(2). There were just too many intervening events to reliably conclude that MJI was acting under the stress and excitement of the events of the night before. I agree, fully, with the majority that it is more likely MJI was stimulated by the events of the medical examination and police interview. The majority does not address the admissibility of these hearsay declarations under Mil.R.Evid. 804(b)(5), although the prosecution included it as an alternative basis for admissibility. Nonetheless, I do not believe these declarations qualify for admission under the residual hearsay rule.
While MJI spontaneously related information which she had not mentioned earlier in the day, we still must factor in all of the questioning she had undergone earlier in the day, as well as the issue of her incompetency, which I discuss infra. Therefore, these declarations should not have been admitted. Cf. United States v. Grant, 42 M.J. 340 (1995). Unfortunately, I cannot agree with the majority on the admissibility of the other hearsay declarations by MJI.
I am troubled by the failure of the majority opinion to specifically put the law applicable to the Confrontation Clause and the residual hearsay rule to the actual test of the facts of this case. My principal disagreement with the majority opinion is its analytical model for finding some of MJI’s out-of-court declarations admissible under the Mil. R.Evid. 804(b)(5) residual hearsay exception.
I am deeply concerned that appellant’s Sixth Amendment right to confrontation has been invoked as an incantation but not actually enforced. On the legal grid that is hearsay in criminal law, the right of confrontation is the goal line which must be crossed to score the touchdown of admissibility. Indicia of reliability or circumstantial guarantees of trustworthiness is the defense which the proffered hearsay declaration must defeat to score.
With regard to the issues of hearsay and the right of confrontation, one principle is steadfast: The Sixth Amendment dictates that hearsay declarations which do not qualify as a firmly rooted exception are presumptively unreliable and inadmissible. Idaho v. Wright, 497 U.S. 805, 818, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). This means that we must test for whether the evidence of record establishes that MJI was capable of receiving just impressions of fact and relating them truthfully, and that the circumstances surrounding her hearsay declarations provide the necessary indicia of reliability. I believe this record falls short of doing so.
Notwithstanding compelling evidence to the contrary, the majority opinion concludes that the military judge did not find MJI incapable of telling the truth in general, but “like most four year olds, MJI would not understand the significance of testifying truthfully in a judicial proceeding.” The majority then proceeds to compound its erroneous conclusion by erroneously applying opposite language in Wright to highly adverse facts. Specifically, “[ijndeed, 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.’ ” (Citation omitted.) In Wright, however, the Supreme Court was not faced with a finding by the trial court that the witness was in fact incompetent to testify truthfully as is the ease with MJI. The majority opinion is one of the most profound examples of refusing to yield to overwhelming facts that I’ve witnessed in my 27 years’ experience. Is there really a difference between an inability to testify truthfully in a judicial proceeding and the inability to tell the truth in general?
The simple fact of the matter is that the military judge declared MJI incompetent to testify. In fact, I view the evidence sufficiently compelling to warrant a finding of incompetency by this Court under Article 66(c), UCMJ, even if the military judge had not done so, albeit unconsciously. During *726the hearing on trial defense counsel’s motion to exclude MJI’s hearsay statements, Mrs. DJI was asked if MJI could “understand that she had to tell the truth” and “would she understand what can happen if she lied?” Mrs. DJI answered, “No,” to both questions. The military judge, as part of her essential findings, found: “[MJI] has never attended preschool or school. She is four years old and would not understand the significance of what would happen if she lied in court.” (Emphasis added.)
Even though the military judge jumbled this finding with her finding that MJI would not respond to questions from either counsel and that a counsellor believed testifying would be traumatic to her, we nonetheless have a finding of fact by the military judge, fully supported by the record, that MJI could not distinguish between truth and falsity. This finding has a far more profound impact than a finding that MJI merely was not capable of communicating in a courtroom setting, an area I explore further, infra. Mil.R.Evid. 603 reads as follows:
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind.with the duty to do so.
Although Mil.R.Evid. 601 greatly relaxed the rules of witness competency by declaring everyone competent to testify unless expressly excepted, Mil.R.Evid. 603 is a crystal clear exception to Mil.R.Evid. 601’s rule of universal competency. Even with a child witness of tender years, the military judge must determine if a child can testify truthfully as required by Mil.R.Evid. 603 before allowing even a willing child witness to testify. United States v. Morgan, 31 M.J. 43, 46-48 (C.M.A.1990), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1047 (1991); United States v. Allen, 13 M.J. 597 (A.F.C.M.R. 1982). The military judge explicitly ruled that MJI did not meet the requirement of Mil.R.Evid. 603. Yet, paradoxically, the majority opinion concludes that an out-of-court hearsay declaration by MJI is admissible when she would not have been allowed to testify even if produced by her mother. I am unaware of any military or civilian precedent which supports this conclusion, except perhaps with a firmly rooted exception to the hearsay rule. See, e.g., State v. Deanes, 323 N.C. 508, 374 S.E.2d 249, 259 (1988). Available precedents do, however, support the opposite conclusion.
The majority opinion, in my view, takes the wrong path at the fork because it ignores the distinction between incompetency to testify due to an inability to communicate in the courtroom setting and incompetency due to the inability to distinguish truth from falsity. The latter is critical and is an integral part of assessing the indicia of reliability of hearsay declarations of child witnesses. The Supreme Court spoke specifically to this issue in Wright when the Court observed that the Idaho trial court did not declare the child witness incompetent, but merely that she was unable to communicate to the jury, stating as follows:
[T]he more reasonable inference is that, by ruling that the statements were admissible under Idaho’s residual hearsay exception, the trial court implicitly found that the younger daughter, at the time she made the statements, was capable of receiving just impressions of the facts and of relating them truly.
Wright, 497 U.S. at 824-25 (emphasis added). As I alluded to, ante, the Court’s inference was drawn because of an absence of evidence to the contrary. With MJI, there is clear, unrebutted testimony from her mother that she could not distinguish truth from falsity— in any setting! This testimony sets the boundaries, period. Any finding contrary to this testimony is erroneous. The Supreme Court’s language really only highlighted the necessity of clearly distinguishing the two types of incompetency. As a result, the federal courts have been diligent to make this critical distinction.
In Swan v. Peterson, 6 F.3d 1373 (9th Cir.1993), the Court framed the issue as follows:
The Swans do not contest the trial court’s determination that the children were incompetent to testify and “unavailable” for hearsay purposes. The crux of this appeal is whether the incriminating statements *727bore sufficient “indicia of reliability” to withstand scrutiny under the [confrontation] clause____ The trial court recognized the distinction between RT.’s ability to testify in a courtroom setting and to tell the truth at the time of the declarations. It clearly considered her incompetent only as to the former. We defer to its finding.
Id. at 1379,1382 (emphasis added).
In Government of Virgin Islands v. Riley, 754 F.Supp. 61 (D.Vi.1991), the issue before the Court was whether the child witness was sufficiently unavailable for the child’s deposition to be admissible under Fed.R.Evid. 804(b)(5). In actuality, this particular decision was Riley II. In Riley I, the trial judge authorized a video taped deposition after declaring the child incompetent to testify in open court, stating as follows:
I am confident that the child is capable of receiving just impressions of fact and of relating them truly [citation omitted], but I am equally certain that the child may be unable to communicate to the jury at trial, either because of generalized courtroom trauma, nervousness or excitement.
Government of Virgin Islands v. Riley, 750 F.Supp. 727, 729 (D.Vi.1990) (emphasis added).
A brief look at Gregory v. North Carolina, 900 F.2d 705 (4th Cir.1990), also is illustrative, wherein the Court viewed its task as follows:
No doubt because of the relative novelty of the [Ohio v. Roberts ] exception and the fact-specific examination each Roberts inquiry demands, the cases, rather than publishing a comprehensive list of possible corroborating factors, tend to consider what, in the declarant’s condition or otherwise, suggests truthfulness or a lack thereof
Id. at 707 (emphasis added).
Our own superior court also has indicated that competency to testify truthfully is an integral part of determining admissibility of hearsay declarations under the residual hearsay rule. While reviewing the admissibility of an out-of-court interview of a non-commu-nieative 4-year-old witness who appeared at trial, the Court stated as follows before setting forth the child’s in-eourt testimony:
On direct examination of AG, after establishing her ability to distinguish between truth and falsehood and her understanding of the need to testify truthfully. ...
United States v. Casteel, 45 M.J. 379, 381 (1996) (emphasis added).
All these cases stand for the fact that there is an immense substantive difference between a trial judge determining a witness, who is otherwise competent, is incapable of testifying in a courtroom setting and determining a witness is unable to distinguish truth from falsity, because the latter impacts whether the witness’ testimony will even be heard. This leads to the inescapable conclusion that, where the latter is present, that fact must be an integral part of any assessment of whether an out-of-court declaration by such an incompetent witness possesses sufficient indicia of reliability for confrontation purposes.
If MJI, due to tender years and insufficient maturity, rather than a subsequent intervening physical disability, was incapable of distinguishing truth from falsity at the time of trial, she surely was incompetent to do so at an earlier time. Therefore, any out-of-court declaration by MJI must be assessed for indicia of reliability in light of the fact that she was incompetent to testify truthfully both at the time of trial and when she made the out-of-court declarations in question. See, e.g., United States v. White, 17 M.J. 953, 954-60 (A.F.C.M.R.1984). The factors used by the majority to find indicia of reliability are inconsequential without an assessment of her ineompetency.
Accordingly, it is imperative that military judges clearly distinguish between the two and where, as in the instant case, we have an inability to testify truthfully, the surrounding circumstances of a hearsay declaration must be especially scrutinized to satisfy the Sixth Amendment requirement of sufficient indicia of reliability. Swan, 6 F.3d at 1379, 1382; Gregory, 900 F.2d at 707; Riley, 750 F.Supp. at 729; see also Doe v. United States, 976 F.2d 1071 (7th Cir.1992). If a child witness merely is incapable of testifying in open court, the critical factors considered and *728weighed to determine if an out-of-court declaration by an incompetent child witness possesses indicia of reliability appear to be spontaneity, whether there is a motive to fabricate, and the presence or absence, or both, of age-appropriate terminology. These, of course, are some of the Wright factors. Wright, 497 U.S. at 822-23. In light of Mrs. DI’s testimony that MJI didn’t understand truthfulness, what caused her to conclude that MJI should be believed when she pulled down her panties and made the statements in question? The majority approaches it from the opposite direction: since Mrs. DI reacted by taking MJI to the doctor and reporting the incident, etc., she obviously viewed MJI as truthful; voila, MJI is truthful and reliable.
The true state of the record in the instant case, however, is that we have no assessment whatsoever of MJI’s ability to perceive and communicate events. The reason for this is that this area was completely ignored at trial, a factor which should enure to appellant’s benefit. The majority opinion remedies this deficit merely by concluding it away instead of testing for supporting facts.
Under normal circumstances, I would be disposed to find MJI’s spontaneous, non-verbal, hearsay declaration of pulling down her panties sufficiently rehable to satisfy appellant’s right of confrontation and admit the evidence under Mil.R.Evid. 804(b)(5). See United States v. Grant, 42 M.J. at 343. Unfortunately, as I note above, there is no evidence in the record to demonstrate that MJI was capable of understanding and replying truthfully to her mother’s question of what games did she play with appellant, as well as the other questions asked her. This probably is because the parties at trial did not appreciate the significance of the military judge declaring MJI incompetent to distinguish truth from falsity. There simply is no evidence in the record to comply with Wright’s requirement that the surrounding circumstances demonstrate that MJI could receive just impressions and relate them truly. Therefore, I believe the majority is in error in holding that she could, and I believe this non-verbal hearsay declaration is inadmissible.
Obviously, I reach the same conclusion with regard to MJI’s other hearsay declarations made in the presence of her grandmother and Mrs. DJI. In justifying its conclusion to the contrary, the majority apparently forgets or ignores the Supreme Court’s adjuration in Wright that a true statement is not necessarily a reliable statement. Wright, 497 U.S. at 822. The circumstances surrounding the making of the hearsay statement must demonstrate that it is reliable as well as true. Given MJI’s incompetency, and the dearth of other illuminating evidence, I cannot so conclude.
MJI’s hearsay statement that “he blew on my butt” was not spontaneous. It was in response to Mrs. DJI’s question after MJI pulled down her panties. In making her findings, the military judge made no mention whatsoever of MJI’s inability to testify truthfully, nor did she make a specific finding that MJI exhibited the ability to accurately perceive and relate events at the time she made the statement. Further, neither counsel nor the military judge inquired of Mrs. DJI what the term “butt” meant to MJI or if it had any meaning at all. It’s an elementary term to adults of average intelligence, but what did it mean to MJI, a child who cannot distinguish truth from falsity? Was it part of her daily vocabulary, or was it a term she would have heard someone else use? Here the record is deafly silent. The absence of this evidence is not merely a matter of what weight the factfinder might attach to MJI’s statement. It actually goes to the heart of testing for indicia of reliability and, hence, admissibility.
B. Statements To Detective Perry
With regard to MJI’s statements made to Detective Perry, the majority strays even further afield. But then, again, the record does not provide much assistance, which means the statements should not be considered. Remember, per Wright, we begin with an assumption of unreliability and inadmissibility.
The majority misreads the record by saying defense counsel had the opportunity to call Detective Perry to testify. First, upon timely objection — which we have in the in*729stant case — it is the prosecution’s burden to produce evidence which establishes the admissibility of hearsay evidence. In the instant case, there was no evidence presented and heard on the circumstances surrounding Detective Perry’s interview of MJI, other than Mrs. DI’s testimony regarding MJI’s view of policemen. This hardly is sufficient. Further, when defense counsel reminded the military judge that the defense also objected to the hearsay statements made to Detective Perry, the military judge merely stated that her findings regarding MJI’s statements to Mrs. DI and her mother applied equally to Detective Perry’s interview and the objection was therefore overruled.
This manner of assessing the admissibility of hearsay under the residual rules is interesting to say the least. It flies directly in the face of long-standing precedents regarding out-of-court statements made during police interviews. Although not per se unreliable, they must be construed thoroughly prior to admitting them. United, States v. Cabral, 47 M.J. 268, 271 (1997) (and eases cited therein). This required scrutiny is totally absent from the instant case. The majority’s reliance on Casteel is misplaced. First, in Casteel, the witness was competent and was produced and testified in court, albeit briefly and incompletely. Casteel, 45 M.J. at 381. Second, the issue in the instant case is not Mrs. DI’s veracity, but the absence of testimony regarding the circumstances surrounding the interview, of which there was an abundance in Casteel. Id. at 382-83.
There also is the fact that, by the time MJI was interviewed by Detective Perry, she had been questioned by her mother and examined and questioned by a physician. Further, as mentioned, we have no evidence as to MJI’s daily vocabulary, etc. See Wright, 497 U.S. at 826-27. But we do have the fact of her ineompeteney. MJI was not able to affirm the truthfulness of what she told Detective Perry. Whether the interview was under oath is an important factor when assessing police interviews. Cabral, 47 M.J. at 272. Therefore, I have difficulty with the military judge lumping an entirely separate interview, with a police officer no less, in with MJI’s initial declaration. Further, I deem the record woefully inadequate for me to find the necessary indicia of reliability using our factfinding power under Article 66(c), UCMJ.
II. MIL.R.EVID. 414
Before all is said and done, this rule probably will supplant Mil.R.Evid. 404(b) as the most litigated rule. I agree almost entirely with the majority’s final result, but I write separately to state what I believe to be the holding of this decision with regard to how Mil.R.Evid. 414 will be applied in the Air Force pending a decision from our superior court. Because I am not at all certain that this rule is as expansive as the majority opinion states (but yet applies restrictively— properly I might add), I also set forth my analysis.
A Admissibility
First, I address the admissibility of Mrs. Hughes’ statements that there were prior allegations of sexual abuse made by the daughter of her best friend and by a niece and nephew. My first determination is the standard of review. Trial defense counsel did not interpose further objection when Mrs. Hughes’ testimony extended to allegations regarding her best friend’s child. While failure to object usually results in waiver absent plain error, Mil.R.Evid. 103(a)(1) and (d), I believe counsel sufficiently objected to preserve the matter for review. Prior to Mrs. Hughes’ testimony, there had been an extensive Article 39(a), UCMJ, session where trial defense counsel vigorously objected to testimony involving other acts or offenses, even to the extent of requesting a mistrial on the grounds of ineffective assistance of counsel. Therefore, I find that the defense had more than indicated their objection to this line of questioning. Accordingly, I will review the military judge’s ruling allowing the testimony for an abuse of discretion vice plain error. United States v. Spata, 34 M.J. 284 (C.M.A.1992).
Mil.R.Evid. 414 provides, in part, as follows:
(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be *730considered for its bearing on any matter to which it is relevant.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) ‘[C]hild’ means a person below the age of 14____
Neither trial nor appellate defense counsel attack the constitutionality of the rule. Therefore, I do not address that issue.
The genesis of this rule is the Violent Crime and Control and Law Enforcement Act of 1994, Pub.L. 103-322 (1994), which amended the Federal Rules of Evidence by adding Rule 414. Pursuant to Mil. R.Evid. 1102, the Military Rules of Evidence were amended by operation of law effective 180 days later (6 January 1996). Although the language of the rule is straightforward, how the rule fits into the overall design and concept of the Military Rules of Evidence and the limitation on its reach, if any, is hardly straightforward. To the extent that the new rule has attracted the attention of commentators, significant attention has been devoted to concern that the rule has no limits with regard to admissibility and use, and they search the limited legislative history as a source of such limitation. See, e.g., Military Rules of Evidence Manual, 3d ed., 161 (1996 Supp.); Major Stephen R. Henley, Caveat Crimínale: The Impact of the New Military Rules of Evidence in Sexual Offense And Child Molestation Cases, Department of the Army Pamphlet 27-50-280, 88-89 (Mar.1996); Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, American Criminal Law Review, 67-68 (Fall 1995).
Unlike the majority, however, I believe we must forgo the legislative history and deal solely with the terms of Mil.R.Evid. 414 because of its straightforward language, at least with regard to subsections (a) and (d). In the absence of ambiguity, and the absence of a clear, unambiguous expressed legislative intent to the contrary, the judiciary does not look beyond the terms of the statute itself. United States v. Guess, 48 M.J. 69 (1998); United States v. Desha, 23 M.J. 66, 68 (C.M.A.1986) (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)); see also Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 808, n. 3, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989).
Considering how the new rule fits into the whole that is the Military Rules of Evidence, I first note that it is part of Section IV, Relevancy and Its Limits, from which I infer, in the absence of a contrary intent specifically expressed in the terms of the rule, that Congress intended Mil.R.Evid. 414 to work in consonance with the other rules contained in Section IV. Congress’ mandatory language, “is admissible,” standing alone, appears to satisfy Mil.R.Evid. 401 and 402, which define relevancy and allow admission of all relevant evidence respectively. A dictum of our superior court’s chief judge makes a similar observation: “in any trial under the rules of evidence now in effect, such prior acts are purportedly admissible per se.” Casteel, 45 M.J. at 385 (Cox, C.J.) (emphasis added). Unlike the commentators, however, I do not read Mil.R.Evid. 414 as requiring the quantum leap in logic to unlimited admissibility and unfettered application, because Mil.R.Evid. 414 also states that the admissibility of such evidence is “on any matter to which it is relevant.” Accordingly, evidence of other acts of child molestation must still survive a relevancy determination in order to be admissible, although Congress clearly intended that the scales start out tipped in favor of relevancy. Further, in my view, Congress’ clear statement of admissibility means that the prosecution need not await the rebuttal stage to seek introduction of such evidence, as is currently the case for evidence offered under Mil.R.Evid. 404(b). United States v. Franklin, 35 M.J. 311 (C.M.A.1992). This is consistent with where Congress inserted Mil.R.Evid. 414. There remains, however, the question of the interoperability of the rule with the remaining rules of Section IV.
The only language within Mil.R.Evid. 414 which specifically refers to the other rules is subsection (c). Interestingly, the Military Rules of Evidence Manual opines that, “This rule is an exception to Rule 404(b). Here trial counsel can use a prior act of child *731molestation specifically to prove the accused’s propensity to commit the charged act of child molestation____ [Mil.R.Evid.] 414(c) state[s] that no other provision shall be construed to limit the admission of sexual offense evidence.” Military Rules of Evidence Manual at 158 (1996 Supp.). That, however, is not what the rule says. Subsection (c) states “This rule,” meaning 414, “shall not be construed to limit the admission or consideration of evidence under any other rule.” Whatever this language means, I decline to read it as barring or limiting the application of the other rules of Section IV, especially Mil.R.Evid. 403.
In the absence of specific language, or unambiguous legislative history, to the contrary, it is not reasonable to assume or conclude that the mere existence of Mil.R.Evid. 414 either cancels Mil.R.Evid. 403, 404, or 405, or that those rules are now to be read essentially as, “except for sexual assault or child molestation cases.” It would have been too easy for Congress to have said so had that been the case.
In view of subsection (c)’s lack of clarity, I believe the legislative history, such as it is, is applicable and may be consulted. With regard to subsection (e), the legislative history is consistent with my and the majority’s conclusion that Mil.R.Evid. 403 et seq. still are fully applicable. United States v. Sumner, 119 F.3d 658, 661-62 (8th Cir.1997). Therefore, if I correctly read the majority opinion to conclude that Mil.R.Evid. 414 must be applied within the complete framework of Section IV, I agree with that conclusion. I now consider the mode of proffer and admission, two critical areas where the majority opinion is silent.
Mil.R.Evid. 414 also is silent on how such potentially explosive evidence will come before the factfinder. As character or reputation evidence or as evidence of other acts or offenses? As stated above, we hold that Mil.R.Evid. 403 and 404(a) still are players, 414 notwithstanding. Mil.R.Evid. 404(a) prohibits evidence of character or a trait of character which is admitted for the purpose of proving that a person acted in conformity therewith. Therefore, my understanding of today’s decision is that we further hold that, whenever a military judge rules other offenses of child molestation admissible under Mil.R.Evid. 414, such evidence shall not be admitted as character or reputation evidence contrary to Mil.R.Evid. 404(a). One reason for this holding is Mil.R.Evid. 405(a), which restricts proof of character or a trait of character to testimony of either reputation or opinion of the witness. Absent our holding in this regard, an accused may be left helpless while a witness testifies to mere rumor or other hearsay, as was the testimony in the . instant case.
I also read today’s decision to further hold that, if such evidence is ruled relevant and admissible by the military judge, it will be solely as evidence of other offenses and not propensity. If that is not the intent of the majority, it is certainly my position. This requirement ensures that a military judge must at least make a preliminary determination that the proffered evidence is sufficient for a reasonable court member to conclude, by a preponderance of the evidence, that the other offense or offenses in fact occurred. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); United States v. Mirandes-Gonzalez, 26 M.J. 411 (C.M.A.1988). If the evidence clears this minimal hurdle, the military judge will then conduct the Mil.R.Evid. 403 balancing test.
How will the military judge perform the balancing test in view of Mil.R.Evid. 414? Since Congress has clearly stated a preference for admissibility, I believe the military judge must now ensure that the balancing test is performed with that preference in mind. This means that the tendency, if any, of the evidence to establish propensity will no longer weigh as heavily as it does when conducting the balance for admissibility of Mil.R.Evid. 404(b) evidence. The danger of unfair prejudice clearly must be substantially higher than the evidence’s probative value. To apply this standard, the military judge should test for whether the proffered Mil. R.Evid. 414 evidence raises a substantial risk that it will cause the members not to hold the prosecution to its burden of proof of beyond a reasonable doubt as it applies to the offense or offenses charged.
*732In any limiting instruction given, the military judge "will no longer instruct that the evidence is not admitted to prove the accused has a propensity to commit such offenses. Obviously, neither will the military judge instruct that the evidence is admitted for that purpose. Any limiting instruction will be limited to informing the members of the specific purpose trial counsel articulates as the basis for admissibility, and that it is not to be considered for any other purpose. This approach may be viewed as overly restrictive, but I believe it necessary to avoid very serious constitutional issues with regard to Mil. R.Evid.. 414. See Sumner, 119 F.3d at 661. This is especially so in light of the rule’s apparent limitless reach. It does not impose a time frame for remoteness or prescribe any mode of proof. In the absence of clear guidance from the legislature, the judiciary must apply the legislation in a manner consistent with military due process. Ensuring a fair trial is the bedrock of military due process and the raison d’etre of the trial judiciary.
There still are other issues to be sorted out with regard to Mil.R.Evid. 414 which must await the case-by-case approach. For example, Mil.R.Evid. 403 empowers the military judge to preclude a mini-trial within the trial. For dynamite evidence such as other acts of child molestation, how much leeway should be given the defense to contest whether those acts occurred or that they were, or are, out of character? We are confident that our military judges are up to the task.
In sum, admitting Mil.R.Evid. 414 evidence can be equivalent to escalating from conventional to nuclear weapons. In those instances where such evidence may cause the members to conclude — “The issue is determined, period; case closed! What is the maximum sentence available?”, the military judge must hold the line by applying Mil. R.Evid. 403. While Mil.R.Evid. 414 now makes relevance essentially a “gimme,” I believe propensity still is off-limits. To repeat: until, or unless, our superior court rules otherwise, I do not believe Mil.R.Evid. 414 evidence is admissible solely as propensity evidence. I now apply what I believe are our holdings to the instant case.
Applying these factors, I conclude the military judge erred by not excluding Mrs. Hughes’ testimony regarding appellant’s commission of other acts of child molestation. As regards her testimony regarding the alleged abuse of her son, I note, initially, that the military judge made no articulation or finding that there was sufficient evidence to meet the Huddleston/Mirandes-Gonzalez admissibility test. Further, the military judge had earlier excluded this evidence under Mil.R.Evid. 804(b)(5) because it lacked indicia of reliability — the child did not tell anyone else about the allegation, the statement could refer to something other than sexual abuse, and Mrs. Hughes was in a child custody fight with the appellant. The unreliability of this evidence did not dissipate merely because the defense “opened the door,” or because Mil.R.Evid. 414 liberalized the admissibility of certain evidence. The standard of proof for admissibility under Mil.R.Evid. 804(b)(5) is no more stringent than that we prescribe for 414, which is by a preponderance of the evidence. See R.C.M. 905(c)(1). Unreliable hearsay is still unreliable and, ergo, inadmissible. Nevertheless, I will continue my analysis.
The military judge also erred in ruling that this evidence was admissible as a present sense impression. A present sense impression is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” Mil.R.Evid. 803(1). Even a cursory reading of this rule reveals it to be inapplicable. First, it was the mental state of the witness, Mrs. Hughes, which was in issue, not another declarant. Her testimony regarding what she may have said or done on the day in question is not hearsay. Therefore, this rule may not be used to smuggle in a prejudicial belief or mental impression she may have had. Her belief regarding appellant’s responsibility for abusing their child was not a statement made contemporaneously with experiencing or observing an event. See United States v. Evans, 23 M.J. 665, 670-72 (A.C.M.R.1986).
Similar deficiencies apply to Mrs. Hughes’ testimony regarding the “other” allegations of abuse (those of her nephew, niece, and *733friend’s child). The military judge did not make a finding that the offenses occurred, and Mrs. Hughes’ testimony, in fact, provided no evidence on which the military judge could have ruled that the members could find, by a preponderance, that the other acts or offenses in fact occurred. See Mirandes-Gonzalez. Further, I fail to see how Mrs. Hughes’ testimony met even the relaxed relevancy test of Mil.R.Evid. 414. The relevance of this testimony should have been tested against the basis for which trial counsel sought to elicit it, which was the credibility of Mrs. Hughes.
Defense counsel was not seeking to impeach Mrs. Hughes in the classic manner envisioned by Mil.R.Evid. 608(e). All defense counsel was seeking was a basis from which he could argue to the members, not that Mrs. Hughes was testifying falsely against appellant to benefit her in her custody suit against him, but the opposite. Defense counsel sought only to extract the fact that she was seeking custody of her son so he could argue that, these factors (divorcing appellant and seeking custody of them child) notwithstanding, her testimony is that she checked on appellant and the children on some five or six occasions and observed nothing suspicious. Defense counsel was seeking to enhance Mrs. Hughes’ credibility in this area, rather than attacking her truthfulness, the premise being: Mrs. Hughes would not have hesitated to reveal any wrongful conduct by appellant if she had observed any. And this is, in fact, what defense counsel asserted during closing argument on findings.
Given this basis for defense counsel’s question, there was nothing from which to rehabilitate Mrs. Hughes. Allowing trial counsel to extract the highly prejudicial reason why she was seeking custody of her son was immaterial to the issue at hand at that particular time in the trial, Mil.R.Evid. 414 notwithstanding. Finally, even if I were to conclude that this evidence meets the applicable relevancy requirements, its unduly prejudicial impact far outweighed the probative value for which it was admitted. Mil. R.Evid. 403.
B. Test For Prejudice
Having determined that the testimony regarding other acts of child molestation should not have been admitted, we must now test for prejudice. With error of non-constitutional dimension, we may find an error harmless if either the finder of fact was not influenced by the inadmissible evidence, or it had but a slight effect on the resolution of the ease. United States v. Barnes, 8 M.J. 115 (C.M.A.1979); see also United States v. Acton, 38 M.J. 330 (C.M.A.1993); Franklin, 35 M.J. 311.
Applying this test, I conclude the inadmissible evidence of other alleged acts of child molestation had only a minimal impact on the members’ verdict of guilty. First, the evidence against appellant is compelling. ALI’s testimony is condemning. Further, notwithstanding the complexity with which this case comes to us, the essence of the prosecution’s task was to corroborate appellant’s admissions to Detective Perry. Appellant’s feeble elaim of accidentally touching the girls’ genitalia is incredible and collapses under its own weight. Second, the military judge provided limited instructions each time she admitted the. evidence, including a caution to the members that they were not at liberty to use the evidence as propensity evidence, which I believe is not required when giving a limiting instruction for Mil.R.Evid. 414 evidence. Therefore, I find the error in admitting the evidence discussed above harmless. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (1994).
A couple of other comments are in order with regard to Mrs. DI’s testimony regarding appellant’s commission of other acts of child molestation. While I agree with the majority that, at the time the evidence was offered the military judge should not have admitted it; nonetheless, before the trial’s conclusion, this evidence was rendered entirely admissible. During the defense’s case on findings, trial defense counsel called Mrs. DI as a hostile witness. During her testimony, trial defense counsel elicited from her the fact that appellant had admitted to her that improper touchings occurred with the other children in question but the touchings were accidental.
First, this testimony more than satisfies the Huddleston test, as appellant purported*734ly admitted the other offenses in question. Second, in view of the fact that the defense of accident was in issue, one would be hard pressed to conclude the prejudicial nature of this evidence substantially outweighed its probative value. Therefore, although the majority excludes it, by my assessment, its admission obviously was harmless error since it eventually was rendered properly admissible.
With regard to the improper admission of hearsay evidence, I agree that a constitutional test for harmless error must be applied. The error must be found harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). When I apply this test, I am convinced, beyond a reasonable doubt, that the impact of this evidence on the members’ findings was harmless. As I noted above, ALI’s testimony doomed appellant. It was clear, withstood cross-examination and, when combined with the evidence of appellant’s opportunity to commit the offenses and his admissions, it alone is sufficient to convict him.
Although I find no prejudice to appellant with respect to findings, I agree that we cannot be so convinced with regard to the sentence. Even harmless error on findings may impact the sentence. See United States v. Mann, 26 M.J. 1, 6 (C.M.A.1988) (Everett, C.J., concurring and dissenting in part). Accordingly, I agree with the reassessment of the sentence to cure any error.
III. OTHER ISSUES
A Accident Instruction
The defense of accident clearly was placed in issue by the evidence, and trial defense counsel specifically requested the instruction. Therefore, the military judge erred in not giving^ an accident instruction unless it was covered by the instructions given. R.C.M. 1005(c); United States v. Briggs, 42 M.J. 367 (1995).
The members were instructed that they had to be convinced, beyond a reasonable doubt, that appellant acted with the intent to gratify his sexual desires and they had to consider that appellant claimed the touchings were accidental. Therefore, appellant was not deprived of the defense of accident, as the military judge’s instructions on the elements of the offense adequately included the defense. As instructed, the members could not find the specific intent to gratify his sexual desires unless they were convinced beyond a reasonable doubt that appellant’s acts were not accidental. See United States v. Barnes, 33 M.J. 893 (A.F.C.M.R.1991). Accordingly, I agree that the military judge did not abuse her discretion by not giving the standard accident instruction.
B. Remaining Issues
With regard to Parts IV through X‘ of the majority opinion, I concur only in the result.