concurring:
I disagree with the majority’s determination that the trial judge erred by admitting in evidence the statement of the three and one-half year old victim to her mother. The trial judge admitted the statement as an exception to the hearsay rule under Military Rules of Evidence 803(2). This rule was adopted verbatim from the Federal Rules of Evidence and is a codification of the common law res gestae exception to the hearsay rule. It provides an exception for “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” In admitting the statement the trial judge stated,.
Because for a three and a half year old to make a statement like that strikes me that she’s very much under the influence of the event and it was — the answer was given in response to a nonsuggestive question. So I’m going to let that in. And it was made within 12 to 14 hours of the alleged events.
We should not substitute our judgment for that of the trial judge unless we find that admission of the testimony constituted an abuse of his discretion. United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980). See also United States v. Friedman, 593 F.2d 109 (9th Cir.1979); United States v. Bailey, 581 F.2d 341 (3d Cir.1978).
The three and a half year old victim in this case was far too young to appreciate the nature of the act and to feel or exhibit the excitement or moral indignation normally expected of a more mature victim as a result of such an act. In addition, the act was committed in the child’s bedroom by a houseguest of the family on Christmas day, a day normally filled with excitement for a child of the victim’s age. These factors all diminished the normal response expected as a result of such a sexual assault. However, the offense was clearly a startling event. The trial judge determined that the victim was still under the influence of the event when she made the response to her mother’s non-suggestive question. I believe that under the circumstances of this case that is sufficient to meet the requirements of the rule. See United States v. Nick, 604 F.2d 1199, 1202 (9th Cir.1979).
With respect to the timeliness of the statement, it should be noted that there is no fixed time under the rule and each case must be decided on its own circumstances. The purpose underlying the timeliness requirement is to assure reliability of the statement by precluding time for reflective thought which would allow for contrivance and misrepresentation. There is nothing to indicate that the child in this case engaged in reflective thought or had any motive to fabricate. Age of the victim has been a distinct factor which the courts have considered in determining this element of the rule. The decisions on this element are numerous and well catalogued by time increments of a “few minutes” to “more than one day” in an annotation in 89 A.L.R.3d 102 (1979). Statements of infants and minors are separately listed under each time increment as it is apparent that the courts are greatly influenced by this factor. See Commonwealth v. Nowalk, 160 Pa.Super. 88, 50 A.2d 115 (1946); Haley v. State, 157 *689Tex.Cr.R. 150, 247 S.W.2d 400 (1952); Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974). This is especially true in the reported Michigan cases where the courts have expressly relaxed the timeliness requirement for victims of a tender age when the delay is satisfactorily explained. See People v. Debreczeny, 74 Mich.App. 391, 253 N.W.2d 776 (1977); People v. Davison, 12 Mich.App. 429, 163 N.W.2d 10 (1968). I believe that under the circumstances of this case the trial judge was correct in finding that the period of twelve to fourteen hours was timely.
Although not capable, because of her tender age, of understanding the nature of the incident, the victim in this case confided in her mother in response to a non-suggestive question at a time when she was undoubtedly still under the influence of the incident. The statement related to the circumstances of the occurrence and there is nothing to indicate that the child engaged in reflective thought or had any motive to fabricate. For the foregoing reasons I believe the trial judge correctly determined that the statement was admissible.
Although I would hold that the statement by the child to her mother was properly admitted, I agree with the majority that even if it was error, it was harmless under the circumstances of this case.