(dissenting):
I would reverse the military judge’s decision to suppress the appellee’s confession because he considered the lack of corpus delicti a significant factor in arriving at his conclusions of law.
As a society, our suspicion about convicting an accused based upon an uncorroborated confession is rooted in our past. Smith v. United States, 348 U.S. 147, 152-53, 75 S.Ct. 194, 99 L.Ed. 192 (1954). In the military, the requirement for corroboration has been codified in Mil.R.Evid. 304(g). This rule provides, in part,
An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth. Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence..... Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.
Subsection (1) describes the quantum of proof necessary for admission,
The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted.
Although there can be no debate about the requirement to corroborate a confession with independent evidence before its admission, the issue in each case naturally becomes a question of sufficiency or quantum of the corroboration. Historically, this inquiry has involved two competing theories: independent proof of the corpus delecti or independent evidence establishing the truthfulness of the statement.
In Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954), the Supreme Court resolved the question for the federal courts.
[W]e think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement.
Our superior court has consistently rejected efforts to interpret Mil.R.Evid. 304(g) as requiring independent proof of the corpus delicti. United States v. Cottrill, 45 M.J. 485, 489 (1997) (citing United States v. Maio, 34 M.J. 215, 218 (C.M.A.1992); United States v. Rounds, 30 M.J. 76, 80 (C.M.A.1990)). However, the military judge specifically referenced consideration of the corpus delicti rule as a factor in his decision. The majority endorses that approach.
“[W]hile the whole or entire corpus delicti need not be established by independent corroborative evidence, the independent corroborative evidence still must establish that an offense was committed, although not by any particular quantum of proof such as a preponderance, or clear and convincing.”
This ignores a plain reading of the rule and case law which mandate that the corroboration need raise only an inference of the truth of the essential facts admitted in the confession.
The military judge also cited United States v. Faciane, 40 M.J. 399 (C.M.A.1994), as his compass in this matter. However, both the facts and the law of that case are too dissimilar from the case sub judice to provide any *683meaningful guidance. In Faciane, our superior court ruled the military judge erred by admitting the statements of the child-victim to a child protective committee member under Mil.R.Evid. 803(4). These statements were also used by the military judge to corroborate the accused’s confession. Without these statements, the court determined the child’s aberrant behavior and the appellant’s access to her were insufficient to corroborate his confession. The court was unwilling “to attach a criminal connotation to the mere fact of a parental visit” nor draw any inference of corroboration from her behavior because she was the child “of recently divorced parents and a recently remarried mother.” Faciane, 40 M.J. at 403. In this case, no evidence was presented about the child-victim’s behavior after the assaults nor was the appellee’s presence in the room that night used as the only other corroborating evidence.
Instead of examining what the evidence did not show (independent evidence of the corpus delicti), the military judge should have focused on whether the evidence allowed an inference as to the truth of the essential facts admitted in the appellee’s confession. Although not permitted by the rule to use other uncorroborated confessions or admissions, we may look to the appellee’s conduct to corroborate the confession. Smith, 348 U.S. at 200, 75 S.Ct. 194. This conduct, after being discovered by his wife, epitomizes the concept of consciousness of guilt.
The appellee’s confession, written in his own hand, describes in detail his abuse of his stepdaughter. This confession was given five days after he was discovered by his wife in the child-victim’s room. The appellee stated he and his wife began to have difficulties in their marriage, including problems with their sex life, in March 1999. In early April 1999, when he went to check his stepdaughter because she had a problem sleeping with blankets on her, he noticed her genitals. Unable to dismiss this image from his mind, the appellee wrote, a week later he touched her sexually for the first time. He emphasized that he never penetrated her in any way. He recounted that over the next few weeks, even though he felt guilt and remorse, he touched her vagina on five occasions during weekends and that she never woke-up. Although he admitted to masturbating on a few occasions while touching her, he denied removing her clothes or placing his penis on her body. On 24 April 1999, after touching her again, the appellee wrote, his wife walked into the room and he realized what he had done and went out to get help for his behavior. He said he went to Chaplain Morey who referred him to a Mr. Cox. The appellee also wrote that his wife had taken every precaution to protect the child-victim and that he left the house voluntarily.
The testimony from the appellee’s wife corroborated they were having problems in their marriage prior to April 1999, and these problems included them sex life. She also corroborated that because the victim tossed in bed and kicked off her covers, she frequently had to cover her up throughout the night. She recalled on a weekend near the end of April 1999, she found the appellee in the child-victim’s room. When she began to enter the room, he turned, gave her a look she had never seen before, and left the bedroom. This look corroborates the sudden realization he wrote about in his confession. His feelings of guilt and remorse explain why he fled the bedroom and she found him on the floor in the living room crying.1 Her decision to have the child-victim sleep with her and the appellee’s departure from the marital home corroborates his statement that his wife took the necessary steps to protect the child-victim from him. Finally, her testimony about the accused’s conduct in going to the Chaplain and then seeing a man named Mr. Cox also corroborates the confession.
The testimony of the appellee’s mother corroborates the confession because he called her near the end of April 1999, and admitted he molested the victim.2 While talking with her, he explained his plan to see a chaplain, turn himself in, find a counselor, and move out of the house. His conduct in actually *684doing all these things gives rise to the inference that the confession is trustworthy.
The appellee also agreed to the admission of a stipulation of expected testimony from Doctor James Cox. The stipulation provided that the appellee became his patient on 28 April 1999, as the result of a referral from an Air Force chaplain. It also stated he was treating the appellee for problems with his stepdaughter. This information also corroborates the confession.
In the military judge’s brief findings of fact he makes no reference to the testimony of the appellee’s mother or the stipulation of expected testimony. Instead, he devotes a paragraph to evidence that was not presented. In doing so he reveals his belief that evidence of the corpus delicti was a requirement for corroboration and not just a factor. Unfortunately, he ignores how this “missing evidence” also corroborates the essential facts of the confession. Of course there was no complaint from the child-victim because, as the appellee duly noted in his confession, she never woke-up. This also explains the absence of any unusual behavior on her part and the lack of expert testimony that the child-victim’s actions were consistent with some type of post-traumatic stress syndrome. The appellee was not seen by anyone because, as noted in his confession, no one walked in on him until the last time. Finally, unless the appellee was lying when he wrote his confession, there would be no physical evidence of molestation because he said he never penetrated her.
The military judge used the wrong analysis in evaluating the corroborating evidence and in doing so revealed the very reason the corpus delicti test has been rejected by the Supreme Court, our superior court, and is not specified in Mil.R.Evid. 304(g). The appellee’s conduct, the testimony of his wife and mother, and the stipulation of expected testimony provide ample independent corroboration of his confession.
. The accused’s wife never testified he said he was sorry.
. See Maio, 34 M.J. at 221. (Cox, J. concurring).