concurring in the result:
¶ 34 The majority holds that C.M.’s videotaped pretrial testimony was admissible at trial even though it was hearsay and even though C.M. was physically available to testify. Rule 15.5(l)(h) of the Utah Rules of Criminal Procedure allows videotaped testimony of child sex abuse victims in limited circumstances. But the requirements of that rule were not complied with. — as the majority admits — so C.M.’s out-of-court accusations were not admissible under that rule. Nevertheless, the Court holds that the evidence was admissible under an entirely new and, in my view, inappropriate construction of Rule 804(a) of the Utah Rules of Evidence. In its rush to affirm the conviction, the majority’s ruling creates a significant and unjustified loophole in the rules against hearsay evidence, utterly subverts the legislative policy embodied in Rule 15.5(l)(h), and seriously questions the right of confrontation under the Utah Constitution. See Utah Const, art. I, § 12; State v. Lenaburg, 781 P.2d 432, 434-36 (Utah 1989); State v. Mannion, 19 Utah 505, 512-13, 57 P. 542, 544 (1899).
¶ 35 The result of the majority’s opinion is that, in the future, Rule 15.5 and its safeguards will have absolutely no effect because prosecutors and trial courts can admit child hearsay evidence irrespective of that rule. Nevertheless, I agree that the conviction should be affirmed, not because the trial was error-free, as the majority holds, but because, in the end, the error did not affect the outcome of the trial.
¶ 36 Utah Code Ann. § 76-5-411 states that “a child victim’s out-of-court statement” may be admitted in three instances in sexual abuse cases, even though it is hearsay.4 The majority relies on § 76-5-411(l)(c),5 which permits the admission of a child’s out-of-court declaration if it meets the requirements of Rule 15.5(1) of the Utah Rules of Criminal Procedure. That rule permits the admission of a videotaped recording of the testimony of a child sex abuse victim. Subsection (h) of Rule 15.5(1) permits the admission of such evidence if the child is “unavailable” as that term is defined by Rule 804(a) of the Utah Rules of Evidence. However, Rule 15.5(l)(h) also provides an additional instance of “una*278vailability” in child abuse cases. A child may also be unavailable if the trial court finds, “based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or mental strain if required to testify at trial.” (Emphasis added.)
¶ 37 The rule specifically directs the trial judge to determine unavailability under the Rule 15.5(l)(h) test “based on medical or psychological evidence or expert testimony.” Absent some evidence from one qualified to comment on a child’s detrimental emotional or mental strain caused by testifying, a trial judge should not rule a child unavailable under Rule 15.5(l)(h). Cf. State v. Matsamas, 808 P.2d 1048, 1052 (Utah 1991). There was no such evidence in this case. The trial judge stated that “the State has not offered any medical or psychological evidence or expert testimony that [C.M.] would suffer serious emotional or mental strain if required to testify at trial.” He candidly acknowledged that “my bases [for ruling her unavailable] have been on my own observation of [her]” and that “I’m going to have to walk out on thin ice there to the extent that I’m not sure that I even need competent medical testimony to tell me that this child would be harmed by competent examination.” A ruling of unavailability under Rule 15.5(l)(h), in the absence of such evidence, is error, as the majority indeed recognizes.
¶ 38 Furthermore, C.M. was not unavailable under Rule 804(a) of the Utah Rules of Evidence. She did not fit any of the five circumstances in which a hearsay declarant may be found to be unavailable. Under Rule 804(a), a witness may be found “unavailable” to testify based on the witness’ (1) invoking of an evidentiary privilege, (2) refusal to testify, (3) lack of memory, or (4) death or infirmity, or the (5) inability to compel the witness’ attendance.
¶39 The majority properly holds that Rule 15.5(1) did not permit the admission of C.M.’s hearsay, but then, to justify admission of C.M.’s out-of-court statements, holds for the first time in our history that “Rule 804 does not limit the situations in which a witness may be found unavailable,” and that therefore C.M.’s statements were admissible. This ruling is simply contrary to where the law is. Courts have narrowly construed the definition of “unavailable,” limiting its application specifically to the five listed Rule 804(a) situations. See People v. Johnson, 118 Ill.2d 501, 115 Ill.Dec. 384, 517 N.E.2d 1070, 1074 (1987); Fed.R.Evid. 804 advisory committee’s notes on proposed rules, Note to Subdivision (a) (“Five instances of unavailability are specified_”); Jo Ellen S. McComb, Comment, Unavailability and Admissibility: Are a Child’s Out-of-Court Statements About Sexual Abuse Admissible if the Child Does Not Testify at Trial?, 76 Ky. L.J. 531, 547 (1987) (“[Unavailability] has been construed strictly according to the definition in Federal Rule 804(a).” (footnotes omitted)). But see Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law art. 8, at 75 (1996).6 Additionally, when the hearsay testimony of an unavailable person is used against a criminal defendant, courts typically apply the “unavailability” standard stringently to avoid any impingement on the defendant’s Sixth Amendment rights. See Glen Weissenberger, Federal Rule of Evidence 80⅛: Admissible Hearsay From an Unavailable Declarant, 55 U. Cin. L.Rev. 1079,1082,1087-88 (1987) (citing cases). Accordingly, I would limit the definition of “unavailable” under Rule 804(a) to the five specified situations.
¶ 40 In sum, C.M. was not unavailable to testify at trial under Rule 804(a) of the Utah Rules of Evidence or Rule 15.5(l)(h) of the Utah Rules of Criminal Procedure. I submit that the majority errs in finding that C.M. was “unavailable” and that her videotaped pretrial testimony could be used at trial.
¶ 41 Nevertheless, the error, in my view, was harmless, and Thomas’ conviction should therefore be affirmed. “'Harmless’ errors are ‘errors which, although properly preserved below and presented on appeal, are sufficiently inconsequential that we conclude there is no reasonable likelihood that the *279error affected the outcome of the proceedings.’ ” State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (quoting State v. Verde, 770 P.2d 116, 120 (Utah 1989)); see also Utah R. Evid. 103(a); Utah R.Crim. P. 30(a). “ ‘For an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict.’ ” Hamilton, 827 P.2d at 240 (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)). “The more evidence supporting the verdict, the less likely there was harmful error.” Id.
¶42 Because of the evidence supporting conviction in this case, I cannot say that the trial court’s error in ruling C.M. unavailable and admitting her videotaped testimony “undermines confidence in the verdict.” Although disputed, the prosecution put forward strong evidence that Thomas had confessed twice to the sexual assault — both in a written letter and in a phone conversation with his mother. S.M., C.M.’s older sister, testified that C.M. was present in the room the night Thomas assaulted S.M., putting both the accused and the victim in physical proximity on the night in question. Further, C.M.’s mother testified that, shortly after the assault, she had taken C.M. to a doctor for unexplained pain C.M. suffered when she urinated and redness in her genital area. Even without C.M.’s videotaped testimony, there is sufficient evidence to support the jury’s verdict, and the court’s evidentiary error does not undermine confidence in that verdict.
¶43 It follows the conviction should be affirmed.
¶ 44 Justice ZIMMERMAN concurs in Justice STEWART’s concurring in the result opinion.
. Utah Code Ann.§ 76-5-411 (1995) states:
(1) Notwithstanding any rule of evidence, a child victim’s out-of-court statement regarding sexual abuse of that child is admissible as evidence although it does not qualify under an existing hearsay exception, if:
(a) the child is available to testify in court or under Rule 15.5(2) or (3), Utah Rules of Criminal Procedure;
(b) if the child is not available to testify in court or under Rule 15.5(2) or (3), Utah Rules of Criminal Procedure, there is other corroborative evidence of the abuse; or
(c) the statement qualifies for admission under Rule 15.5(1), Utah Rules of Criminal Procedure.
(2) Prior to admission of any statement into evidence under this section, the judge shall determine whether the interest of justice will best be served by admission of that statement. In making this determination the judge shall consider the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child.
(3) A statement admitted under this section shall be made available to the adverse party sufficiently in advance of the trial or proceeding, to provide him with an opportunity to prepare to meet it.
(4) For purposes of this section, a child is a person under the age of 14 years.
. The majority does not and cannot rely on subsections (2) or (3) of Rule 15.5, nor does it assert that corroborative evidence was an essential aspect of defendant's conviction. The majority opinion refers only to Rule 15.5(l)(h).
. However, Professors Kimball and Boyce offer no support at all for their assertion that Rule 804(a) is nonexclusive.