dissenting, joined by ROSE, Justice, with reservations.
Although I disagree with the majority’s reasoning in upholding appellant’s conviction I take comfort in the fact that this court is not affirming the conviction of an innocent person. In my opinion the majority is approving appellant’s conviction by the use of improper evidence.
The record contains two confessions by appellant which were ruled inadmissible before trial. Courts at all levels find it difficult to ignore inadmissible evidence, which save for a technicality would be conclusive of a defendant’s guilt. Knowing that a defendant has committed the acts complained of, courts succumb to the temptation to stretch, expand and distort the rules of evidence to rationalize a finding of guilt.
A casual observer might reason that no great harm is done in this case by affirming the conviction. After all, appellant committed the acts charged. The offense is only a misdemeanor and appellant is not going to jail or paying any fine. Furthermore, she will be on unsupervised probation.
My concern about the majority’s reasoning and disposition is how it will be viewed as precedent.
“It is a maxim among these lawyers, that whatever has been done before may legally be done again; and therefore'they take especial care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.” Jonathan Swift, Gulliver’s Travels: Houyhnhnms, oh. 5.
This case could logically be cited for the proposition that when a patient tells the physician the name of the person that caused the injury the physician can tell the trier of fact, even though the identity of the person inflicting injury is not necessary to the diagnosis or treatment of the injury.
The trial court admitted the doctor’s testimony under Rule 803(4), Wyoming Rules of Evidence, “Statements for Purposes of Medical Diagnosis or Treatment.” I am not sure whether the majority approved the doctor’s testimony under Rule 803(4), carved out a new exception to the hearsay rule or made an ad hoc determination because of expediency or policy. If the majority intended to approve the admission of the doctor’s testimony under Rule 803(4), W.R.E., I think such holding is contrary to authority and results in expanding, stretching and distorting the rule.
Rule 803(4), W.R.E. is the same as Rule 803(4), Federal Rules of Evidence. Louisell & Mueller discuss that rule in Federal Evidence:
*729“* * * The principal reason for admitting statements made for purposes of obtaining medical treatment is that they are considered trustworthy. Usually such statements are made by the patient to his physician, and usually they describe the patient’s own past and present physical sensations, and things which happened to him personally. Thus, risks of misperception and of faulty memory are minimal. Moreover, the patient will understand that his description is important in determining the treatment he will receive, so he has every reason to speak not only truthfully, but carefully, so that risks of insincerity and ambiguity are likewise minimal.
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“The pertinency standard. To be within Rule 803(4), the statement must be ‘reasonably pertinent’ to the treatment or diagnosis sought. * * *
“[T]he physician’s belief as to what is pertinent should ordinarily control in applying the pertinency standard. * * *
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“The pertinency standard should be construed broadly enough to reach facts which would naturally be recited in a good-faith effort to provide needed information. * * *
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“But the pertinency standard does impose a true limit. Embellishments attributing fault are not reasonably pertinent. * * *” Louisell & Mueller, Federal Evidence, § 444, pp. 592-603 (1980).
“* * * However, a declarant’s statement as to who caused an injury or illness is not pertinent to medical treatment or diagnosis and is therefore inadmissible.” 55 A.L.R.Fed. § 2(b), p. 694 (1981).
In United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981), the trial court admitted the testimony of the doctor who examined a nine-year old victim concerning statements made by her following an assault. The court said:
“* * * It is jmp0rtant to note that the statements concern what happened rather than who assaulted her. The former in most cases is pertinent to diagnosis and treatment while the latter would seldom, if ever, be sufficiently related. * * * ” Id., at 84.
In United States v. Nick, 604 F.2d 1199 (9th Cir.1979), the examining physician was allowed under Rule 803(4), F.R.E., to repeat a three-year old child’s description of the sexual assault, including the victim’s statement concerning the cause of the injury. However, the court excluded any comment about the identity of the assailant.
In another reference to Rule 803(4), F.R.E., it was said:
“The rule is limited to facts related which are ‘reasonably pertinent to diagnosis or treatment;’ it has never been held to apply to accusations of personal fault, either in a civil or criminal context.” United States v. Narcisco, 446 F.Supp. 252, 289 (E.D.Mich.S.D.1977).
See also State v. Fleming, 27 Wash.App. 952, 621 P.2d 779 (1980).
The advisory committee notes on the rules, say:
“ * * * Statements as to fault would not ordinarily qualify under this latter language. Thus a patient’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.” Rule 803, F.R.E., 28 U.S.C.A., p. 585 (1975).
Here, then, as in most cases, the crucial question is whether the statements made by the victim to the nurse and doctor were “reasonably pertinent to diagnosis or treatment.” Ms. Ullrich, the nurse, said she needed to know what type of injuries were sustained. This seems reasonable, because the answer immediately rules out other ways bruises or discoloration could have been caused. However, Ms. Ullrich did not *730need to know who caused the bruises or who was at fault.
Dr. Merrill C. Horne, the treating physician, said the statement he heard from Tabatha, the victim, that her mother had beaten her did not help him to treat the bruises. However, he inferred that he was treating the victim for child abuse syndrome rather than bruises, and again he inferred but never said that the statement helped treat the child’s case. The record does not tell us what the phenomenon “child abuse syndrome” is, whether it is a recognized medical phenomenon, or whether Dr. Horne is qualified to recognize and treat child abuse syndrome. Some of the deficiencies in foundation indicated above are supplied by the majority either as a result of independent research or knowledge. There is nothing in the record concerning the treatment of Tabatha that suggests that she was treated for “child abuse syndrome.” Her tests, observation and treatment were for her physical injuries.
I believe that it was error to permit the trier of fact to hear or consider evidence identifying the person who assaulted the victim. The statements identifying the person who assaulted the child were not reasonably pertinent to diagnosis or treatment. Had the statements given to both Dr. Horne and Ms. Ullrich been limited to the fact that the child said she was beaten, spanked, hit or struck, they likely would have been properly admitted. This would be consistent with United States v. Nick, supra, where any comment about the identity of the assailant was excluded. The majority says “The identity of the person causing those injuries is a pertinent fact in these circumstances.” Dr. Horne did not say that nor did any other witness.
In support of its position the State relies a great deal on Moore v. State, 26 Md.App. 556, 338 A.2d 344, (1975). In Moore a physician testified that a three and one-half year old victim told him, “Daddy was mad, Daddy did it.” The court upheld the conviction and held that the statement was admissible in evidence upon the exception to the hearsay rule as an “excited utterance.” Wyoming recognizes the “excited utterance” exception to the hearsay rule, Rule 803(2), W.R.E. However, the record does not disclose that this exception is applicable. Deputy Sheriff Hamilton testified that Tabatha was not crying and did not appear to be in any pain when he and Mrs. O’Brien went to the house. The nurse testified that as far as she remembered, Tabatha was not crying. There was nothing in the record to indicate that Tabatha was in the excited state of mind which would lend reliability to the statement and qualify it as admissible under the excited utterance exception to the hearsay rule. Furthermore, the State does not contend that Rule 803(2), W.R.E., is applicable. The State’s reliance on Moore v. State, supra, is misplaced.
The State contends that the error, if any, in the admission of the victim’s out-of-court statements to the doctor and nurse was harmless and that there was sufficient evidence to convict appellant even if the child’s statements to the doctor and nurse were disregarded. I disagree. Without the ob-jectional statements the State failed to prove the identity of the assailant beyond a reasonable doubt. The only evidence as to the identity of the assailant is the statements of the victim to the nurse and doctor.
It is suggested by the majority that because of appellant’s custodial relationship with Tabatha she had the opportunity to abuse the child and is the most logical person to be the assailant. However, the record is insufficient to show the necessary exclusive custody. We do not know when the bruises were inflicted; we do not know if other people were with Tabatha before she was taken to the hospital. We only know that the deputy sheriff and Mrs. O’Brien did not observe any other adults at appellant’s home when they picked Tabatha up and took her to the hospital. We do not know if they looked for any other adults or made any investigation to see if others had had contact with Tabatha that day or in the recent past. This circumstantial evidence standing alone is not sufficient to indicate that appellant was the assailant.
*731In order to bolster a shakey rationale for its determination, the majority cites Marshall v. State, Wyo., 646 P.2d 795 (1982) and earlier cases for the proposition that “opportunity, together with injuries consistent with child abuse, is sufficient evidence to support a conviction for homicide.” In the Marshall case we said:
“Trauma, consistent with child abuse, coupled with an opportunity to inflict the injuries as in this case, satisfies us that the jury was justified in accepting the circumstantial evidence against appellant rather than his denial; and there was a basis for the jury to find appellant guilty beyond, a reasonable doubt.” Marshall v. State, supra, at 799.
In Marshall and the other cases cited by the majority the defendants were alone with the victims at the time the injuries were inflicted. Here we do not know if appellant was alone with the victim when the injury occurred; we do not even know when the injuries occurred. The cases cited by the majority, therefore, have no application to the facts of this case.
I conclude that the majority does not disagree with the authority that I have cited. The majority says:
“We have no quarrel with the general rule that statements attributing fault usually are not admissible under rules identical to Rule 803(4), W.R.E. * * * If the goal of our court were simply to pursue the common-law tradition of stare decisis, then the cited authorities must be recognized as supporting the position of the appellant. In this instance, however, the function of the court must be to pursue the transcendent goal of addressing the most pernicious social ailment which afflicts our society, family abuse, and more specifically, child abuse. * * *”
In the context of this statement by the majority I return to my original problem. Did the majority approve the admission of the doctor’s testimony under Rule 803(4), W.R.E., did they invent a new exception to the hearsay rule, or did they approve the evidence for this special case?
There are twenty-four exceptions to the hearsay rule. I would prefer it if the majority would create a new exception to the hearsay rule or expand one of the existing exceptions to fit this set of circumstances. The “excited utterance” exception, Rule 803(2), W.R.E., or the “other exceptions” section, Rule 803(24), W.R.E., could be expressly expanded to cover this case. However, we have to stretch and distort the existing Rule 803(4), W.R.E., too much to rationally admit the doctor’s testimony.
For these reasons I would remand for a new trial.