(dissenting):
I
The alleged victim — appellant’s stepdaughter — did not appear at the trial; and, apparently, no effort was made by the Government to secure her presence. In her absence, the prosecution, over strenuous defense objection, introduced in evidence several out-of-court statements by her on the day after the alleged offense. The first was to a high school counselor, Mr. McGee; the next was in the presence of Mr. McGee and a school nurse, Mrs. Frank; and finally there was a written sworn statement to agents of the Criminal Investigation Command (CID). Both the principal opinion and the Court of Military Review hold that the latter two statements were inadmissible. I fully agree. However, I am at odds with their conclusion that the first statement to Mr. McGee was admissible as an excited-utterance hearsay exception under Mil.R.Evid. 803(2), Manual for Courts-Martial, United States, 1969 (Revised edition).
The rationale of this exception is “that persons are less likely to have concocted an untruthful statement when they are responding to the sudden stimulus of 'a startling event.’ ” United States v. LeMere, 22 M.J. 61, 68 (C.M.A.1986). Unlike the requirement under the original version of the 1969 Manual for Courts-Martial (para. 1426), which authorized admission in evidence of a declarant’s “spontaneous exclamation,” there is no requirement under the Military Rules of Evidence of “independent evidence of the startling event which gave rise to” the excited utterance. See United States v. Sandoval, 18 M.J. 55, 62 (C.M.A.1984). However, the excited utterance must occur “while the declarant was under the stress of excitement caused by the event or condition.” United States v. LeMere, supra at 67.
In LeMere, this Court agreed with the Court of Military Review that a statement made by a 3-and-a-half-year-old daughter to her mother the morning after the alleged sodomy could not qualify as an excited utterance, because the declarant clearly was no longer “under the stress of excitement” after a 12-hour lapse of time. In the present case, it is even more difficult than it would have been in LeMere to justify reception of the statement, because the alleged victim was 13 years of age and probably would be less likely than a younger child to sustain for a long period any excitement resulting from the alleged event.*
When the girl had first come in to see Mr. McGee, she had been “very quiet, subdued,” rather than excited. Then, over an hour and a half passed between the time that she first approached Mr. McGee and asked to speak with him and when she finally talked with him. Thus, there was ample opportunity for reflection; and so the latter conversation with this counselor clearly does not comply with the rationale of an “excited utterance” — namely, that if someone makes a statement about an emotional event before having an opportunity to reflect, it is likely to be truthful. When she did commence the conversation, it be*135gan not with a statement but with the question whether “the father [is] supposed to be the first one to have sex with you?” Only when Mr. McGee asked why she was inquiring, did she volunteer her accusations against appellant. According to McGee, she began crying later in the interview; but it would be bootstrapping to reason that excitement generated by telling about an event can give rise to the “excited utterance” contemplated by Mil.R.Evid. 803(2). Subsequently, when Mrs. Frank, the school nurse, was present, the girl was at times very calm and staring off into space.
If the statement to Mr. McGee was inadmissible, almost nothing is left of the Government’s case. Judge Sullivan refers to appellant’s “admitted presence at the scene of the incident that night and ... his daughter’s agitated demeanor the morning after the incident.” However, I perceive little significance in Arnold’s “presence” in the home where he and his daughter lived; and I am not sure what was the “agitated demeanor” and why it should be given much weight.
Of course, the issue is not one of the sufficiency of evidence to corroborate a confession but instead whether an accused has been prejudiced by reception of inadmissible evidence. It has not even been argued to this Court that, if the statement to Mr. McGee was inadmissible, error in receiving it was not prejudicial. While I do not believe such an argument has merit, it would seem that, before appellant’s conviction is affirmed on this ground, the case should be remanded to the Court of Military Review for consideration of the issue of prejudice.
II
In my view, even if the statement to Mr. McGee was properly admitted — as Judge Cox and the Court of Military Review believe is true — appellant is still entitled to a retrial because of the erroneous admission of the other statements — especially the girl’s detailed written statement to the CID.
Here, unlike LeMere, the alleged victim did not testify at trial and so could not be observed by the factfinder. Cf. United States v. White, 25 M.J. 50 (C.M.A.1987) (Everett, C.J., concurring). No showing has been made that she was unavailable; and, since she had apparently attempted to repudiate her pretrial statements, the Government probably was quite content not to have her testify. Her out-of-court statements do not fall within any established hearsay exception.
Accordingly, any error in admitting the extrajudicial statements was of constitutional dimensions and transgressed appellant’s right of confrontation. Consequently, the test for affirmance is whether the appellate court is convinced beyond a reasonable doubt that the accused was not prejudiced by the error at trial. United States v. Remai, 19 M.J. 229 (C.M.A.1985).
Under such a test, I cannot see how Arnold’s conviction can be affirmed. Indeed, if the statement to Mr. McGee was inadmissible, I cannot understand how the conviction could be upheld under any harmless error test with which I am familiar.
Ill
In closing, I emphasize that I abhor child abuse as much as anyone; and I recognize the difficulties a prosecutor must face in such cases. However, I also recognize that children sometimes make false accusations of sexual abuse and that even a confession is not conclusive evidence of guilt. The rights of a child victim are important; but so, too, are the constitutional rights of a criminal defendant, especially when faced with accusations of committing crimes which stir such deep feelings as these.
As I have commented elsewhere, "Judge Clause apparently believed that for a small child excitement can continue much longer than for an adult.” United States v. LeMere, 22 M.J. 61, 68 (C.M.A.1986); see United States v. LeMere, 16 M.J. 682, 688 (A.C.M.R.1983) (Clause, S.J., concurring.)