Opinion of the Court
GEORGE W. LATIMER, Judge:
A general court-martial convicted accused of taking indecent liberties with a minor child, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, and sentenced him to dishonorable discharge, total forfeitures, confinement at hard labor for seven years, and reduction to the lowest enlisted pay grade. The convening authority approved, except that he reduced the term of imprisonment to five years. Thereafter, a board of review in the office of The Judge Advocate General of the Army affirmed the findings and sentence. Accused then petitioned this Court, seeking reversal of his conviction for the alleged offense. We granted his petition for review in order to consider the following single issue:
“Whether there was sufficient independent evidence of the ‘exciting event’ to make the spontaneous exclamation admissible.”
A short narration of facts is desirable in order to place the granted issue in its proper perspective. The eight-year-old German girl victimized by accused’s despicable actions lived with her parents on an upstairs floor of a building in which a restaurant was located. In a hallway on the ground floor was a service window for the restaurant, a staircase leading to the apartments upstairs, and the door to the men’s restroom. Not wishing to sub-jeet the child to the ordeal of recounting the horrifying details of the incident, trial counsel did not call her as a witness. However, a waitress at the restaurant testified that on the evening in question accused was present as a customer. While he was there, at approximately 7:45 p.m. the victim appeared at the service window to obtain two bottles of beer. The child, who appeared happy and friendly, laughed, took the beer and left. Some eight to ten minutes later, the witness saw the victim again as the latter emerged from the men’s restroom. She was excited and crying, and had flushed red cheeks. Shortly thereafter accused came out of the restroom. When, seeing the child and noticing her condition, the waitress inquired what the strange man had done, the victim interrupted her and without any hesitation stated that he had lifted her skirt, pulled down her underclothes, and performed a certain repulsive and obviously indecent act. Thereupon, the witness sent the child upstairs to her mother and had accused remain until the military police came and escorted him away. That, together with a detailed confession by the accused which the record established was executed voluntarily after proper warning, constituted the prosecution’s case.
At trial, the defense objected to the witness’ recitation of the remarks made by the child upon emerging from the men’s room on the grounds that the [231]*231statements were inadmissible hearsay. Trial counsel responded that the evidence fell within a permissible and recognized exception to that rule as a spontaneous exclamation. After hearing arguments and citations of authority on the point in an out-of-court hearing, the law officer overruled the defense counsel’s objection and allowed the testimony into evidence. It is that ruling which accused here seeks to have us overturn for, he asserts, without the child’s complaint, there is insufficient evidence to corroborate his confession. United States v Isenberg, 2 USCMA 349, 8 CMR 149; United States v Landrum, 4 USCMA 707, 16 CMR 281; United States v Villasenor, 6 USCMA 3, 19 CMR 129; United States v Mims, 8 USCMA 316, 24 CMR 126; United States v McFerrin, 11 USCMA 31, 28 CMR 265.
In one of our early cases, United States v Mounts, 1 USCMA 114, 2 CMR 20, we were confronted with this same problem. There, in considering the foundation necessary for admission of spontaneous exclamations by children of tender years who have been victimized by sexual misconduct, we noted, among others, the prerequisite that the Government introduce independent evidence of an unusual or exciting event. Judge Brosman, writing for a unanimous Court, used the following language to express that requirement:
“. . . However, the fact remains that regardless of the verbalization used, there must be some independent evidence of the exciting, startling, or surprising event which circumstantially guarantees the offered hearsay utterance before it may be accepted by the court. It would be faulty and circuitous reasoning with a vengeance to permit the questioned declaration itself to furnish the essential basis for its own guaranty. To allow this would, indeed, be to allow an item of evidence to raise itself to the level of admissibility by its own bootstraps.”
There we found the evidence lacking in that respect, as likewise we did more recently in United States v Anderson, 10 USCMA 200, 27 CMR 274. Indeed, appellate defense counsel, in urging reversal in the instant case, place strong reliance on those decisions. To the extent that the principles announced in those two cases are controlling in this instance, that contention ' is correct. But insofar as the defense asserts that those cases compel reversal here, reliance is misplaced, for when this record is weighed in the balance it is apparent the opposite result is required.
A short comparison of facts should suffice to make the matter clear. In Mounts, supra, pretermitting a confession by that accused, we found the record totally devoid of any evidence of a shocking event except for the declarations of the victim and his twin brother. With regard to the Anderson case, supra, a majority of the Court likewise concluded the prosecution had failed to establish the necessary predicate for the child’s statement. There the record contained no evidence of injury or other physical indication of an untoward incident; there was no testimony that the parents noticed any mental disturbance when the child was first observed or at any time before she was disciplined; and we found nothing concerning her appearance or demeanor prior to the statements she made to her parents that aroused suspicion of foul play; and even assuming the victim’s presence at the time inside the dwelling where the crime allegedly was committed — a questionable conclusion— there was no indication, apart from his confession, that accused or anyone else was also present. Moreover, there was nothing from which it could be reasonably inferred that a visit with neighbors was not commonplace.
In sharp contrast to those situations are the facts presently before us. Here the victim was an eight-year-old girl who lived up the stairs in the same building. Certainly by reason of her age and familiarity with the premises, it is most unlikely she would have entered a men’s restroom by reason of mistake or through curiosity. Likewise, there is little reason to believe she might have entered from necessity while running a short errand; she was, after [232]*232all, in a hallway of the building where her own dwelling was located just a few short steps away. Furthermore, there is, in the case at bar, no doubt that the child and accused — who was a stranger to her — were indeed closeted in such a place as their presence together would be wholly unexpected in the course of ordinary events. And additionally, the record portrays a cheerful laughing girl who was transformed into such a highly upset and excited young child that the first person to observe her was unqualifiedly convinced that something unnatural had transpired. In that regard, it is to be remembered that the transformation occurred in a period of only a few minutes — during which time the child was known to have been with accused in a place from which she would ordinarily be barred.
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Opinion of the Court
GEORGE W. LATIMER, Judge:
A general court-martial convicted accused of taking indecent liberties with a minor child, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, and sentenced him to dishonorable discharge, total forfeitures, confinement at hard labor for seven years, and reduction to the lowest enlisted pay grade. The convening authority approved, except that he reduced the term of imprisonment to five years. Thereafter, a board of review in the office of The Judge Advocate General of the Army affirmed the findings and sentence. Accused then petitioned this Court, seeking reversal of his conviction for the alleged offense. We granted his petition for review in order to consider the following single issue:
“Whether there was sufficient independent evidence of the ‘exciting event’ to make the spontaneous exclamation admissible.”
A short narration of facts is desirable in order to place the granted issue in its proper perspective. The eight-year-old German girl victimized by accused’s despicable actions lived with her parents on an upstairs floor of a building in which a restaurant was located. In a hallway on the ground floor was a service window for the restaurant, a staircase leading to the apartments upstairs, and the door to the men’s restroom. Not wishing to sub-jeet the child to the ordeal of recounting the horrifying details of the incident, trial counsel did not call her as a witness. However, a waitress at the restaurant testified that on the evening in question accused was present as a customer. While he was there, at approximately 7:45 p.m. the victim appeared at the service window to obtain two bottles of beer. The child, who appeared happy and friendly, laughed, took the beer and left. Some eight to ten minutes later, the witness saw the victim again as the latter emerged from the men’s restroom. She was excited and crying, and had flushed red cheeks. Shortly thereafter accused came out of the restroom. When, seeing the child and noticing her condition, the waitress inquired what the strange man had done, the victim interrupted her and without any hesitation stated that he had lifted her skirt, pulled down her underclothes, and performed a certain repulsive and obviously indecent act. Thereupon, the witness sent the child upstairs to her mother and had accused remain until the military police came and escorted him away. That, together with a detailed confession by the accused which the record established was executed voluntarily after proper warning, constituted the prosecution’s case.
At trial, the defense objected to the witness’ recitation of the remarks made by the child upon emerging from the men’s room on the grounds that the [231]*231statements were inadmissible hearsay. Trial counsel responded that the evidence fell within a permissible and recognized exception to that rule as a spontaneous exclamation. After hearing arguments and citations of authority on the point in an out-of-court hearing, the law officer overruled the defense counsel’s objection and allowed the testimony into evidence. It is that ruling which accused here seeks to have us overturn for, he asserts, without the child’s complaint, there is insufficient evidence to corroborate his confession. United States v Isenberg, 2 USCMA 349, 8 CMR 149; United States v Landrum, 4 USCMA 707, 16 CMR 281; United States v Villasenor, 6 USCMA 3, 19 CMR 129; United States v Mims, 8 USCMA 316, 24 CMR 126; United States v McFerrin, 11 USCMA 31, 28 CMR 265.
In one of our early cases, United States v Mounts, 1 USCMA 114, 2 CMR 20, we were confronted with this same problem. There, in considering the foundation necessary for admission of spontaneous exclamations by children of tender years who have been victimized by sexual misconduct, we noted, among others, the prerequisite that the Government introduce independent evidence of an unusual or exciting event. Judge Brosman, writing for a unanimous Court, used the following language to express that requirement:
“. . . However, the fact remains that regardless of the verbalization used, there must be some independent evidence of the exciting, startling, or surprising event which circumstantially guarantees the offered hearsay utterance before it may be accepted by the court. It would be faulty and circuitous reasoning with a vengeance to permit the questioned declaration itself to furnish the essential basis for its own guaranty. To allow this would, indeed, be to allow an item of evidence to raise itself to the level of admissibility by its own bootstraps.”
There we found the evidence lacking in that respect, as likewise we did more recently in United States v Anderson, 10 USCMA 200, 27 CMR 274. Indeed, appellate defense counsel, in urging reversal in the instant case, place strong reliance on those decisions. To the extent that the principles announced in those two cases are controlling in this instance, that contention ' is correct. But insofar as the defense asserts that those cases compel reversal here, reliance is misplaced, for when this record is weighed in the balance it is apparent the opposite result is required.
A short comparison of facts should suffice to make the matter clear. In Mounts, supra, pretermitting a confession by that accused, we found the record totally devoid of any evidence of a shocking event except for the declarations of the victim and his twin brother. With regard to the Anderson case, supra, a majority of the Court likewise concluded the prosecution had failed to establish the necessary predicate for the child’s statement. There the record contained no evidence of injury or other physical indication of an untoward incident; there was no testimony that the parents noticed any mental disturbance when the child was first observed or at any time before she was disciplined; and we found nothing concerning her appearance or demeanor prior to the statements she made to her parents that aroused suspicion of foul play; and even assuming the victim’s presence at the time inside the dwelling where the crime allegedly was committed — a questionable conclusion— there was no indication, apart from his confession, that accused or anyone else was also present. Moreover, there was nothing from which it could be reasonably inferred that a visit with neighbors was not commonplace.
In sharp contrast to those situations are the facts presently before us. Here the victim was an eight-year-old girl who lived up the stairs in the same building. Certainly by reason of her age and familiarity with the premises, it is most unlikely she would have entered a men’s restroom by reason of mistake or through curiosity. Likewise, there is little reason to believe she might have entered from necessity while running a short errand; she was, after [232]*232all, in a hallway of the building where her own dwelling was located just a few short steps away. Furthermore, there is, in the case at bar, no doubt that the child and accused — who was a stranger to her — were indeed closeted in such a place as their presence together would be wholly unexpected in the course of ordinary events. And additionally, the record portrays a cheerful laughing girl who was transformed into such a highly upset and excited young child that the first person to observe her was unqualifiedly convinced that something unnatural had transpired. In that regard, it is to be remembered that the transformation occurred in a period of only a few minutes — during which time the child was known to have been with accused in a place from which she would ordinarily be barred. Surely this showing is sufficient to establish that the mental disturbance arose and the child volunteered her utterance under conditions which guarantee that it was related to an unusual event and that it was spontaneous, without reflection, and not the product of her imagination.
In connection with the child’s emotional disturbance, we have not failed to consider appellate defense counsel’s argument that evidence of her excitement cannot be used to show both the spontaneity of her complaint and, as well, the unusual event that occasioned it. Clearly an utterance by itself may not be used to establish a startling event and thus provide the basis for its own admission in evidence. That is the teaching of United States v Mounts, supra, where we refused to countenance such circuitous reasoning. The short answer to the defense contention, however, is that here we do not have merely a spontaneous statement, nor is any reliance placed on the victim’s utterance as a predicate for its own admission. Other factors to which we have adverted point toward an unusual incident, and the young girl’s demeanor as she came out of the men’s restroom —wholly apart from the statement she then made — fixes with some degree of certainty the occurrence of a startling event.
Neither are we impressed by the defense argument that the victim’s complaint was precipitated by a question from the waitress. In point of fact the record shows that the child even interrupted her and voiced complaint without hesitation. Certainly this was not “a calm and deliberate narrative of past events under examination.” United States v Mounts, supra, at page 122. As we said in United States v Nastro, 7 USCMA 373, 376, 22 CMR 163:
“. . . The fact that Fueser prefaced the statement with a question as to what had happened does not require its exclusion.”
Manifestly, the posture of the evidence in this instance presents a picture wholly different than those in the Mounts and Anderson cases and dictates the conclusion that the law officer did not err in allowing the victim’s spontaneous exclamation into evidence.
Accordingly, the granted issue is resolved adversely to petitioner, and the decision of the board of review, therefore, is affirmed.
Chief Judge Quinn concurs.