¶1(dissenting).
¶2I respectfully dissent. The defendant has been convicted by two different juries of sexually abusing his daughter. The majority orders a third trial in this case because the trial court failed to hold the hearing required by Minn.Stat. § 595.02, subd. 3 (1984 & Supp.1985), even though the defendant failed to object to the absence of a hearing. In addition, the majority finds the record “reveals nothing about the indicia of reliability the trial court considered.” Any inadequacy in the record is directly attributable to the defendant’s failure to raise the issue before the trial court.
¶3The defendant never contended the statements were unreliable at trial. ■ He objected to the statements solely on the basis that the witness was not unavailable within the meaning of the statute.
¶4I also would hold that admission of the child’s hearsay statements did not violate the defendant’s sixth amendment right to confront witnesses because the circumstances in which they were made demonstrate particularized guarantees of trustworthiness. The statements were made shortly after the incident happened; the child told the same story very consistently; there is no apparent motive to fabricate; the child’s statements were spontaneous; and they were not the product of leading questions. The evidence is clearly sufficient to sustain the convictions.
¶5. This contention was incorrect. We held in State v. Bellotti, 383 N.W.2d 308, 314 (Minn.Ct.App.1986), that a witness found incompetent to testify is unavailable under § 595.02, subd. 3.
¶6. The plain error rule in Minn.R.Evid. 103(d) and Minn.R.Crim.P. 31.02 is based on Fed.R. Crim.P. 52(b). To prevail, the defendant must show the trial court erred in admitting evidence and that the error had a substantial adverse effect on the defendant’s rights resulting in a miscarriage of justice. United States v. Resnick, 745 F.2d 1179, 1183 (8th Cir.1984); State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 550-51, 141 N.W.2d 3, 11 (1965) (a conviction based on evidence obtained in violation of the federal constitution may be reversed although no objection was made at trial, if to do otherwise would perpetuate a substantial and essential injustice in the sense that an innocent person may have been convicted). In this case the error in failing to hold a hearing is procedural only, because the statements are admissible under § 595.02, subd. 3, in view of the corroborating evidence. The defendant has not shown any substantive error in admission of the evidence.