dissenting:
I respectfully dissent. Based upon our decision in W.C.L. v. People, 685 P.2d 176 (Colo.1984), I would reverse the court of appeals and remand for a new trial.
The defendant has been convicted of a heinous crime based upon interviews with the defendant’s five-year old daughter that were conducted by social workers, a psychologist, and a pediatrician. In this case, as in W C.L., the trial court made a specific finding that the minor victim was incompetent to testify. Section 13-90-106(l)(b), 6 C.R.S. (1973). The majority acknowledges that under the standards that existed at the time of trial, the victim was incompetent to testify and that the defendant’s conviction is only supported by the hearsay evidence provided by the experts that interviewed the defendant’s minor daughter.
I concur with the majority in holding that none of the hearsay statements were admissible under the medical diagnosis exception to the hearsay rule. See CRE 803(4), majority op. at 1135-1136. I write separately to express my disagreement with the *1138way in which the majority justifies affirmance of the defendant’s conviction. In my view, a new trial is required to permit the district court to determine whether the admission of the challenged testimony is proper under the residual hearsay exception of CRE 803(24).
I agree with the majority that, on retrial, this case would be governed by the residual exception to the hearsay rule, CRE 803(24). Majority op. at 1136. The record before us, however, is confused and it is impossible to determine the precise grounds upon which the testimony was admitted. Moreover, the basis for the victim’s testimonial incapacity appears to preclude a finding of equivalent guarantees of trustworthiness required for the purposes of determining admissibility under CRE 803(24). Finally, the parties have not had the opportunity to brief the application of the residual hearsay exception to this case. In my view, the record does not justify the inference of foundation for the admission of the testimony under CRE 803(24).
The majority opinion is based, in large part, on the majority’s view that the trial court relied on the residual hearsay exception of the court of appeals decision in People ex rel. W.C.L., 650 P.2d 1302 (Colo. App.1982), which was reversed by W.C.L. v. People, 685 P.2d 176 (Colo.1984). Yet the record demonstrates that Dr. Cant-well’s testimony was originally admitted solely under the medical diagnosis exception of CRE 803(4). Dr. Cantwell, through the hearsay statements of the minor victim, identified the defendant as the perpetrator under the medical diagnosis exception because, in the trial judge’s view, medical diagnosis in the child abuse context required prevention of future abuse by identifying the perpetrator. Although the prosecutor cited W.C.L. repeatedly, the trial court did not admit testimony on the authority of W.C.L. until the prosecutor inquired into matters that were obviously. not within the medical diagnosis exception. By this time, the damage had been done. The defendant was identified as the assailant by Dr. Cantwell’s recital of the child’s statements. The minor victim’s hearsay statements were irrefutably reliable as the opinion of an expert in child abuse.
The trial judge did not rely on the residual hearsay exception of W.C.L. until the prosecutor asked Dr. Cantwell to relate the victim’s statement of where the sexual penetration occurred. The trial judge overruled defense counsel's objection, and stated:
The guidelines laid down in ... W.C.L. have been established here by the foundation that the witness is unavailable and incompetent to testify. And this particular witness, the doctor [Cantwell], was relating the conversations. [S]he had a particular duty to inquire, and a particular expertise, and a particular cause for the inquiry; and the court will allow the question that the doctor posed to the girl where this happened, and the answer thereto.
In my view, the quoted portion is the only part of a record that reflects that the trial judge relied exclusively on the residual hearsay exception of W.C.L. (rather than the medical diagnosis exception of CRE 803(4)), and it typifies the confused state of the record. The victim’s unavailability as a witness is relevant to the foundational requirements for the residual hearsay exception, because the statement must be “more probative on the point for which it is offered than any other evidence....” CRE 803(24)(B). The remaining factors listed by the judge — Dr. Cantwell’s duty to inquire, her expertise, and the cause for the inquiry — are irrelevant to a finding of foundation for the residual hearsay exception. The trial court must find equivalent guarantees of trustworthiness for the statements of the declarant, not the witness.
The reason for the victim’s testimonial incompetency and unavailability appears to preclude a finding of circumstantial guarantees of trustworthiness. The majority attempts to characterize the victim’s incapacity as resulting from an inability to communicate. Majority op. at 1132-1133, 1137. The record discloses that the victim, besides being unable to communicate, was *1139unable to receive and assimilate accurate factual impressions. The trial court found that the victim was incapable of “receiving accurate cognitive impressions,” that “she could not appreciate the nature of an oath,” and that she could not “receive impressions at a mature enough level to assess them and to report them....” The finding that the victim was unable to accurately receive and assimilate cognitive impressions is diametrically opposed to the equivocal finding that there were circumstantial guarantees of trustworthiness surrounding the child’s statements regarding those cognitive impressions. The foundation for the admission of the statements of the minor victim pursuant to CRE 803(24) is not clearly borne out by the record in this case.
Interests of fairness also require a remand in this case. Counsel for defendant vigorously argued that the medical diagnosis exception was inapplicable, and we vindicate that argument today. Counsel opposed the application of the judicially created residual hearsay exception of W.C.L., and we upheld that argument when we reversed the court of appeals decision in W.C.L. The residual hearsay exception is now codified in our rules of evidence, and the defendant should have the opportunity to refute the prosecutor’s showing of equivalent guarantees of trustworthiness.
The majority acknowledges that the grounds for admitting Dr. Cantwell’s testimony was incorrect. In my view, the record does not affirmatively demonstrate the basis for the admission of the remaining testimony, and the trial court’s finding of equivalent guarantees to trustworthiness flies in the face of the reason for the daughter’s testimonial incompetency. The danger of inferring a foundation for the hearsay statements of the victim is especially apparent in this case. There was competent evidence, derived from the testimony and his treating physician, that the defendant had been treated for high blood pressure, and that the medication caused impotency and sexual dysfunction. Since the sexual crime in this case is admittedly' difficult to prove and even more difficult to disprove, this court should not infer an evidentiary foundation from a contradictory record. I would reverse and remand the case for a new trial.