Howard Vernon Hughes was charged with rape and sexual abuse by engaging in deviate sexual activity between July and November 1985 with a five year old boy in violation of Ark. Stat. Ann. § 41-1803 and § 41-1808 (Repl. 1977). Hughes was convicted and sentenced to forty years in the Department of Correction.
On appeal Hughes contends the trial court erred in ádmitting hearsay evidence without first determining the child’s reliability in accordance with A.R.E. Rule 803(25)(A)(l)(j). He submits also the statements were too remote in time and were not shown to be sufficiently reliable to be admitted under A.R.E. Rule 803(25). He contends testimony proffered by the defense should not have been refused. We affirm the judgment.
The state’s proof was that appellant’s mother, Hazel Hughes, operated a baby-sitting service in her home. The child was left there two or three days a week from 9 o’clock in the morning until his mother got off work at about 6:00 p.m. At times the child was alone with Howard. The child’s mother received information in November 1985 that prompted her to ask her son whether he had been touched around his genitals. The child, she said, readily told her that Howard had touched him there, he said Howard had made him put his penis in his mouth, that he had twisted his arm and once put him in a closet. He told his mother he did not like Howard.
The child testified at trial and described the same occurrences—Howard made him put his penis (referred to as his “peek-a-dear”) in his mouth and did the same to him, that Howard had hit him, and scared him by putting him in a bedroom closet. These accusations were repeated by Sergeant Denny Halfacre of the Sheriff’s Department based on his interviews with the child. He said the child also told him, “Howard tries to make me hit and be bad to other kids, but Hazel makes him stop.”
Stephanie Danielson, a psychological examiner at Ozark Guidance Center, and Judith Smith, an investigative social worker with Arkansas Social Services testified to similar statements made by the child in the course of their interviews. Ms. Smith said the child told her that white sticky stuff came out of Howard’s penis into his mouth. Ms. Danielson testified that using anatomically correct dolls the child had demonstrated the sexual acts which had occurred between Howard and himself and, when asked what kind of sound was made by the act of oral sex, the child made a sucking noise. He said the same thing happened to one of his friends.
Trustworthiness of the Statements
Prior to trial the state notified the defense that it intended to rely on A.R.E. Rule 803(25) and a pre-trial hearing was conducted. The state presented essentially the same testimony which was later offered at trial, except that the child did not testify at the hearing. Ms. Danielson’s testimony included her reasons for believing the child’s statements to her were reliable and Ms. Smith said she had “no reason whatsoever to suspect that [the child] was not telling the truth.” At the close of the hearing the trial judge ruled the statements could be admitted at trial.
On appeal appellant does not question the constitutionality of A.R.E. Rule 803(25) under the confrontation clause, rather, he submits the in camera procedure under the rule requires that the child personally appear before the trial judge at the hearing to establish the reliability-credibility of his statements if they are to be introduced at trial. We sustain the argument.
Rule 803 of the Arkansas Rules of Evidence was amended by Act 405 of 1985. The amendment added subsection 25 to A.R.E. Rule 803 by providing that the statements of a child under ten years of age concerning sexual offenses are admissible in a criminal proceeding, provided the court determines in a hearing outside the presence of the jury that the statements have a reasonable likelihood of trustworthiness using thirteen criteria, including “(j) the reliability-credibility of the child witness before the Judge.” Among the other criteria are: the age and maturity of the child, the circumstances, time and content of the statement, “any other corroborative evidence,” and “any other factor which the court at the time and under the circumstances deems relevant and appropriate.” The emergency clause recites the alarming rate of child abuse, the need to expedite the prosecution of such crimes, and to minimize “the trauma and distress of child victims.”
While we agree with appellant’s argument that the wording of A.R.E. Rule 803(25) can only be read as intending that the trial judge must form his own conclusions of the trustworthiness of the statements by observing the child as a witness, we are satisfied there was substantial compliance with subsection (j) in this case by the child taking the stand at trial and testifying to the factual details on which the charges were based. The testimony of the other witnesses came afterwards, with the exception of the child’s mother, and their testimony was consistent with that given by the child. In Interest of C.K.M., 481 N.E.2d 883 (Ill. App. 1985). Other states have adopted statutes similar to Act 405 of 1985 and those enactments have provisions requiring the child to appear before the trial judge unless the child is unavailable. In the latter case, other corroborative evidence is required. See Revised Code of Washington, 9 A.44.120 (1982); Kansas Stat. Ann., § 60-460 (dd) (1982); Colorado Rev. Stat. § 18-3-411 (e); 111. Rev. Stat. ch. 38, para. 115-10 (1983); Ind. Code § 35-37-4-6 (1984); Minn. Stat. § 595-02(3) (1984); Utah Code Ann. § 76-5-411 (1983).
Proximity of the Statements
We disagree, that the statements in this case were too remote in time to be admissible under A.R.E. Rule 803(25). The statements were made within a few months of the alleged events. Nothing in the act suggests that a proximity of that degree is beyond the intended scope of the act.
Testimony of Ms. Judith Smith
We find no merit in the contention that the statements given by Ms. Smith should have been excluded because she was uncertain whether she had questioned the child about the evils of lying. She said she avoided using the word “lie,” preferring other methods of stressing the importance of truth. Nothing in her testimony suggests she was not alert to distinguishing between fact and falsehood.
Testimony of Ms. Stephanie Danielson
Appellant maintains the testimony of Ms. Danielson should have been excluded because, as a psychological examiner, she was not observed by a supervisor while interviewing and testing this child in January, 1986. Appellant relies on Ark. Stat. Ann. § 72-1502(A) which provides that a psychological examiner may practice certain kinds of personality appraisal, counseling, psychotherapy or personality readjustment techniques “only under qualified supervision.” There was no proof that this provision was intended to apply to these procedures. The trial court interpreted the statute as intended for control within the profession and appellant has not demonstrated how that was error. Even if the act applies, Ms. Danielson’s testimony that her conclusions were reached after discussions with her supervisor indicates reasonable compliance. Ricketts v. Ferrell, 283 Ark. 143, 671 S.W.2d 753 (1984).
Proffered Testimony
Appellant’s remaining point is that the trial court should have permitted the defense to introduce two statements. The parents of the appellant, Roger Hughes and Hazel Hughes, were prepared to testify that in the spring of 1985, before the alleged events with Howard, they separately overheard the child talking to other children about an incident involving his mother and her boyfriend. Mr. Hughes understood the child to say that he had seen his mother “kissing her boyfriend’s stomach and below.” Mrs. Hughes said she overheard similar remarks from the child, “I think he said tummy and down below.”
Appellant submits this proferred testimony was erroneously excluded as hearsay. He contends the purpose of the proof was to show that the child had knowledge of oral sex prior to any of the alleged acts charged to Howard. We need not weigh whether the proposed testimony was subject to a hearsay objection, as it is clear the trial judge excluded it as collateral (R.p. 591) and because he did not consider it relevant. (R.p. 607).
We note initially there is room for considerable doubt as to just what inference can be drawn from the proferred testimony. Aside from that, Mrs. Hughes was not even certain of what she heard the child say. Be that as it may, whether the remarks are probative of the conclusion that the child was thus informed about oral sex by his observations at home rather than his asserted experiences at the Hughes household is, at best, debatable, and one which resides largely with the discretion of the trial court. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). Giving the remarks as much probative force as possible, they do not explain the child’s graphic description of Howard’s ejaculation in his mouth nor the sounds he associated with the experience. We are satisfied the proferred remarks had minimal probative value and there was no abuse of the trial court’s discretion in excluding them for lack of relevance. Killensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983); Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). A.R.E. Rule 403.
For the reasons stated, the judgment of conviction is Affirmed.