dissenting. My chief disagreement with the majority opinion is that I feel A.R.E. 803(25) is unconstitutional as violative of the Confrontation Clause of the Sixth Amendment. The appellant in the present case did not argue the constitutionality of A.R.E. 803(25) and I will therefore not address that issue in this opinion. For a discussion of the constitutionality of the new child hearsay exception, see my concurring opinions in Joe Henry Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987) and Charles Wesley Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). The appellant did, however, argue that the trial court did not comply with the requirements of Rule 803(25) itself and I agree with his argument.
The provisions of A.R.E. Rule 803(25) were not followed by the trial court in the present case. The new rule excludes from the rule against hearsay statements concerning physical or sexual abuse made by a child under ten years of age:
PROVIDED The court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria:
j. the reliability-credibility of the child witness before the Judge.
3. If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors.
The child did not testify at any hearing conducted outside the presence of the jury. The only testimony presented by the child was that on one occasion the appellant made him put the appellant’s penis in the child’s mouth. That’s enough to sustain a conviction. However, all the amplification and/or embellishment presented by hearsay witnesses was probably the basis of the conviction by the jury.
One of the hearsay witnesses testified that the victim said the appellant twisted his arm. The victim testified that it did not happen. The child did not state either by tape recorded statement or trial testimony, that “sticky stuff’ came out of the appellant’s penis. He never referred to his penis as a “pick-a-dear”, “pick a dur”, or any of the other funny little names furnished by the hearsay witnesses. All of the witnesses, including the officer, stated that the appellant denied the accusations.
Witness Smith, the social worker, testified to the boy’s detailed description of the alleged sexual acts between the appellant and the child. However, the child did not remember telling her any of these things. Neither did he confirm the testimony of witness Danielson, the psychological examiner, who gave equally damaging testimony.
Ms. Danielson testified that it was her opinion that the child was telling the truth and that it was her opinion that the child had been sexually abused. In the companion case of Johnson v. State, we hold that a medical witness could not give his opinion, in the absence of medical evidence, that a child had been sexually abused. We base this holding on our decision in Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), where we stated:
The single point of appeal concerns a question asked of the State’s first witness, Dr. Donna Van Kirk, a licensed psychologist. The Deputy Prosecuting Attorney first asked Dr. Van Kirk if in her opinion the victim had been sexually abused. The appellant objected, and the trial court correctly ruled that the witness could not give her opinion about whether sexual abuse had, in fact, occurred.
Ms. Danielson is a licensed psychological examiner. Why should a psychological examiner be allowed to give such an opinion in this case and a psychologist not be allowed to give a similar opinion in Russell? The only answer is that our opinions are not consistent.
Although the victim was present at the trial and testified on behalf of the state, the trial court allowed all of the hearsay testimony from the other witnesses. The mother testified before the child as to the boy’s recitation to her of the accusations concerning the appellant. The police officer testified after the child that that’s what the boy told him (or something like it). The social worker testified that that’s what the child told her (or something like it). The psychological examiner testified that that’s what the child told her (or something like it). It was primarily all this hearsay testimony, not the alleged victim’s testimony, that contributed to the severity of the sentence, if not the conviction itself. After five (5) different versions of the alleged despicable act had been presented to the jury, the inescapable inference was that the accusations must be true.
The child did not testify that the appellant performed oral sex on him. This evidence was solely presented by hearsay witnesses who stated that they heard the child make the statements. The child was not even asked about this type of activity, nor was he questioned concerning the details of the other allegations. Judy Smith, the social worker, testified that the child did not tell her that the appellant placed the child’s penis in his mouth. Her exact words were: “I don’t believe he told me that Howard had put his mouth on his ‘peck a doo.’ ” Officer Halfacre was asked the question: “Did it occur to you that you should have asked if the child had actually had to perform oral sex on this adult?” His answer was: “Okay. That I did ask. He said no.” Witness Danielson stated the victim told her both acts of oral sex were performed. This witness also stated that the victim related that a sucking sound was made during the performance of oral sex. The child did not state such in his testimony nor was he asked about it.
I mention only a few of the hearsay statements to show how devastating the testimony must have been. It was absolutely unnecessary because the witness was present and testified. Even if all these statements were actually made, they should not have been admitted because there was absolutely no confrontation afforded. No power on earth can reveal what result confrontation would have had at the time the statements were allegedly made. The trial court allowed their introduction into evidence because Rule 803(25) dispenses with the right of confrontation whenever the declarant is under the age of 10 and is the alleged victim of physical or sexual abuse.
The majority opinion makes the statement that the trial judge must form his own conclusions of the trustworthiness of the hearsay statements by observing the child as a witness as required by subsection (j). Where in the record is a finding of “the reliability-credibility of the child witness before the judge?” The majority’s statement that this requirement was met is not founded anywhere in the record. The opposite is true. There was not a hearing conducted outside the presence of the jury, or anywhere else, to determine the reliability-credibility of the child. It was impossible for the trial court to make such a determination because the child never appeared before him for such purpose at all. The trial court made absolutely no attempt to determine the trustworthiness of the alleged statements. How this Court can make the statement that the rule was substantially complied with by the child taking the stand at the trial is beyond me. This determination is supposed to take place before the introduction of the hearsay statements or the testimony of the child at the trial.
The majority is in error again where it states the hearsay witnesses’ testimony was consistent with the child’s testimony. The statement is only partially true because, as discussed earlier in this opinion, their testimony went far beyond the testimony of the child. He never told the jury half the things the hearsay witnesses did. Their testimony at trial, with the exception of the mother’s, was presented after the testimony of the child. This testimony very obviously was not intended to prove the trustworthiness of the child’s statements, but rather to prove additional criminal acts of which these witnesses had no personal knowledge and which were not even corroborated by the testimony of the victim.
The reliability of the hearsay statements is particularly lacking in this case. There is no testimony from any source which even establishes the month this crime was supposed to have occurred. All we know is that many months afterward, following two or three discussions with the child, he eventually gave several different recitations of the alleged act. The original information was filed January 7,1986. On April 29,1986, two days before the trial, the court permitted the state to amend the information to allege the crime occurred between May and September, 1985. The defense in this case was alibi and the practical elfect of this amendment was to give the defense an additional forty-five days to account for—with only two days until trial. Smith did not interview the victim until November, 1985, and Danielson did not interview him until January of 1986. It is quite clear that the statements were not within a relatively short time span of the alleged act. See State v. Skala, 719 P.2d 283 (Ariz. App. 1986), where two days was considered too remote. Certainly the legislature intended that the time of the statements in relation to the alleged offense be considered when determining the trustworthiness of the hearsay statements.
The defense proffered hearsay testimony which has long been considered within a well-established exception to the hearsay doctrine. There is no doubt that in order that justice be done the jury should have been allowed to consider the proffered testimony of Hazel and Roger Hughes, the defendant’s mother and father, in determining the credibility of the victim’s statements. This proffered statement occurred prior to any hearsay statement made to the state’s witnesses. The testimony was offered for the purpose of showing that the child’s knowledge of oral sex existed prior to the time of the alleged offense. The testimony was a statement by the child that he had come into the living room unexpectedly one night and discovered his mother “sitting on” her boyfriend and “kissing him on the stomach and below”. The record clearly demonstrates that the state objected to this testimony as hearsay, and the trial court excluded it as such. The following exchange from the record:
STATE: Judge, it is still hearsay he is trying to show.
DEFENSE: It is not.
THE COURT: Let him finish. He is trying to show that that’s where the boy got the knowledge, so it has to be true for him to have gotten that knowledge. So it is as to the truth of the matter asserted. I will sustain objection to it.
A statement made out of court is not hearsay if offered for the purpose of providing that the statement was made, and not for the purpose of proving the truth of the matter asserted. Nowlin v. State, 252 Ark. 870, 481 S.W.2d 320 (1972); and A.R.E. 801(c).
Even if the proffered testimony were hearsay, so was that of the other witnesses. I fail to understand why the hearsay rule applies to one and not the others. These proffered statements were no more collateral or irrelevant than were all of the other hearsay statements. They all fit the same category. The discretion of the trial court does not extend to the extent of allowing hearsay in favor of the state and rejecting it on behalf of the defense.
I cannot end this dissent without a final reference to my concurring opinions in Johnson and Cogburn. Neither can I vote to uphold a conviction based solely upon completely untested hearsay testimony. I would reverse and remand for a new trial.